(a) Right to Counsel
An alien in immigration proceedings may be represented by an attorney of his or her own choosing at no cost to the government. Unlike criminal proceedings, the government is not obligated to provide legal counsel. The Immigration Courts provide lists of attorneys who may represent aliens for little or no cost, and many of these attorneys handle cases on appeal as well. Bar associations and nonprofit agencies can also refer aliens to practicing attorneys.
(b) Qualifications
An attorney may practice before the Board if he or she is a member in good standing of the bar of the highest court of any State, possession, territory, or Commonwealth of the United States, or the District of Columbia, and is not under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting him or her in the practice of law. See 8 C.F.R. §§ 1001.1(f), 1292.1(a)(1). Any attorney practicing before the Board who is the subject of such disciplinary action in any jurisdiction must promptly notify the Board of that action. See Chapter 11.6 (Duty to Report).
(1) eRegistry - Attorneys must electronically register through eRegistry on the EOIR website in order to practice before the Board. See 8 C.F.R. § 1292.1(f). An attorney who fails to provide required registration information risks being administratively suspended from practice before EOIR. Access and instructions for eRegistry can be found on EOIR’s website. Once EOIR has activated the registered account, the attorney will be assigned a unique EOIR ID number.
(c) Appearances
Attorneys must enter an appearance before the Board by filing a Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals (Form EOIR‑27) for each represented alien. See 8 C.F.R. §§ 1003.2(g)(1), 1003.3(a)(3). A Notice of Appearance should always be filed in the situations described in Chapter 2.1(b) (Entering an Appearance). The Notice of Appearance must be served on the opposing party. See Chapter 3.2 (Service). If information is omitted from the Notice of Appearance or the form is not properly completed, the attorney’s appearance may not be recognized, and the filing may be rejected.
(1) Form EOIR‑27 - Practitioners must use the most current version of the form, which can be found on the EOIR website. Practitioners should observe the distinction between the Board’s Notice of Appearance (Form EOIR‑27) and Immigration Courts’ version (Form EOIR‑28). The Board will not recognize a practitioner based on an Immigration Court appearance form (Form EOIR‑28), whether filed with the Immigration Court or the Board. The Board will accept from a registered attorney either the electronic or paper submission of the Form EOIR‑27, though practitioners may wish to file a paper copy in conjunction with electronic submission.
(2) Attorney information - The Notice of Appearance must bear an individual’s attorney’s current address and the attorney’s original signature in compliance with the requirements of Chapter 3.3(b) (Signatures). The EOIR ID number issued by EOIR through the eRegistry process must be provided on the Notice of Appearance.
(3) Bar information - When an attorney is a member of a state bar which has a state bar number or corresponding court number, the attorney must provide that number on the Notice of Appearance. If the attorney has been admitted to more than one state bar, each and every state bar to which the attorney has ever been admitted – including states in which the attorney is no longer an active member or has been suspended, or disbarred – must be listed and the state bar number, if any, provided.
(4) Discipline information - An attorney who is subject to discipline must provide additional information on the form and may include an explanatory supplement. An attorney who fails to provide discipline information risks not being recognized by the Board and may be subject to disciplinary action by EOIR.
(d) Scope of Representation
Once an attorney has made an appearance, he or she has an obligation to continue representation until such time as the alien terminates representation, another attorney enters an appearance, or a motion to withdraw as counsel has been granted by the Board. Therefore, outside the context of oral argument, the Board generally does not allow limited appearances. See subsection (f), (g), and (j), below. See also Chapter 8.6(b) (Multiple representation).
(1) Multiple representatives - Sometimes, an alien may retain more than one attorney at a time. When that is the case, one of the attorneys must be identified as the primary attorney. All of the attorneys must file Notices of Appearances (Form EOIR‑27), and each Form EOIR‑27 must be annotated to reflect which is the primary attorney. Only the primary attorney will receive mailings from the Board. All of the attorneys, regardless of primary or non-primary designation, are representatives of record and are individually responsible as attorneys for the alien. All submissions to the Board must bear the name of one of the representatives of record and be signed by the attorney. See subsection (b), above. See also Chapter 3.3(b) (Signatures).
Circumstances may arise that require the Board to switch service of mailings from the primary attorney to a secondary attorney or representative. For example, if the primary attorney is suspended from practice before the Board and Immigration Courts, or a discrepancy exists as to the designation of primary and non-primary in received Notice of Appearances, or no designation is made by attorneys or representatives. When discrepancies occur, the Board will make reasonable efforts to resolve the discrepancy with the attorneys. However, service of Board notices and orders will not be delayed as a result of the suspension of the primary attorney, discrepancies as to designations of primary and non-primary on the Notice of Appearance, or failure to designate the primary attorney/representative. As noted above, all the attorneys are representatives of the record, and the Board may change the primary attorney designation when warranted.
(2) Change in firm - In the event that an attorney departs a law firm but wishes to continue as attorney of record, the attorney should promptly submit a new Notice of Appearance. The Notice of Appearance must reflect any change of address and should apprise the Board of his or her change in office affiliation. The attorney should check the “new address” box in the address block on the Notice of Appearance. The attorney should also update his or her eRegistry information online prior to submitting a new electronic or paper Form EOIR-27. See subsection (i) below.
(3) Change in attorney - If the attorney of record leaves a law firm but the law firm wishes to retain the case, another attorney in the firm must file a Notice of Appearance (Form EOIR‑27) and thereby become the attorney of record. Similarly, if a law firm wishes to reassign responsibility for a case from the attorney of record to another attorney in the firm, the new attorney must file a Form EOIR‑27. Until such time as another attorney files a Form EOIR‑27 (or a motion to withdraw is granted by the Board), the original attorney of record remains the attorney of record and is responsible for the case. See subsection (j), below.
(f) Law Firms
(1) Firm not the representative - Only individuals, not firms or offices, may represent parties before the Board. In every instance of representation, a named attorney must enter an appearance to act as the attorney of record. Accordingly, the Board does not accept appeals, motions, briefs, or other filing submitted by a law firm, law office, or other entity, if they do not include the name and signature of the attorney of record. See subsection (f), above. See also Chapter 3.3(b)(2) (Law Firms). If at any time, more than one attorney represents an alien, one of the attorneys must be designated as the primary attorney to receive Board notices and orders. See subsection (f) above.
(2) No filings “on behalf of” - The Board only accepts filing by the attorney of record, not on behalf of the attorney of record. Thus, any filing from an attorney who is not the attorney of record must be accompanied by a completed Notice of Appearance (Form EOIR‑27), whereupon that attorney will become the new attorney of record. See subsection (j), below. Limited appearances for purposes of filing an appeal, motion, brief, or other document are not recognized. See subsection (e), above.
(g) Service upon Counsel
Service of papers upon counsel of a represented party constitutes service on the represented party. 8 C.F.R. § 1292.5(a).
(h) Address obligations of counsel
Attorneys who enter an appearance before the Board have an affirmative duty to keep the Board apprised of their current address and contact information. See 8 C.F.R. § 1003.38(e). Changes of address should be made by filing an updated Notice of Appearance (Form EOIR‑27), not through the alien Change of Address Form (Form EOIR‑33/BIA). If a registered attorney has a new address, he or she must update the eRegistry information online prior to submitting a new Form EOIR‑27. An attorney filing a change of his or her address should check the “New Address” box in the address block on the Notice of Appearance.
(1) Compound changes of address - Attorneys must submit a separate Notice of Appearance for each alien represented. An attorney may not submit a list of clients for whom his or her change of address should be entered.
(2) Address obligations of represented aliens - Even when an alien is represented, the alien is still responsible for keeping the Board apprised of his or her current address. Changes of address for the alien may not be made on the Notice of Appearance (Form EOIR‑27) but must be made on the Change of Address Form (Form EOIR‑33/BIA). See Chapter 2.2(c) (Address obligations).
(i) Change in Representation
A represented alien may substitute or release counsel at his or her discretion. A representative may withdraw from representation under certain conditions. Aliens and their representatives must keep the Board apprised of all changes in representation.
(1) Substitution of counsel - A represented alien may substitute counsel at his or her discretion. When an alien wishes to substitute a new attorney for a previous counsel, the new attorney must file a Notice of Appearance (Form EOIR‑27). The new attorney is expected to serve a copy of the Notice of Appearance on prior counsel and the opposing party. See Chapter 3.2 (Service).
Upon receipt of the new Notice of Appearance, the Board automatically recognizes new counsel, and prior counsel need not file a motion to withdraw. However, until such time as a new Notice of Appearance has been filed, prior counsel remains the attorney of record and is accountable as such.
Extension requests that are based on substitution of counsel are not favored. See Chapter 4.7(c) (Extensions).
(2) Release of counsel - A represented alien may, at his or her discretion, terminate representation at any time.
If a represented alien dismisses his or her attorney and does not retain a new attorney immediately, the represented alien should notify the Board through correspondence with a cover page labeled. “NOTICE OF DISMISSAL OF ATTORNEY.” See Appendix E (Sample Cover Pages). This “dismissal notice” should contain the full name, alien registration number (“A number”), and complete address of the alien, as well as the name of the attorney being dismissed. The dismissal notice should also contain Proof of Service indicating that both the attorney and DHS have been served. See Chapter 3.2 (Service). An updated Change of Address Form (Form EOIR‑33/BIA) should accompany the dismissal notice.
If a represented alien dismisses one attorney, but retains a new attorney who immediately files a Notice of Appearance (Form EOIR‑27), the alien need not file a dismissal notice for the first attorney.
If, after a dismissal notice has been filed, an alien retains a new attorney, the new attorney must file a Notice of Appearance (Form EOIR‑27). See subsection (d), above.
(3) Withdrawal of counsel - Counsel seeking withdrawal should file a motion with a cover page labeled “MOTION TO WITHDRAW AS COUNSEL.” See Chapter 3.2 (Service), Appendix E (Sample Cover Pages). The motion should contain the following information:
- the last known address of the represented alien
- evidence that the attorney has notified or attempted to notify the alien of the request to withdraw as counsel
- evidence that either (a) the alien is aware of pending deadlines, existing obligations, and the consequences for failing to comply with those deadlines and obligations, or (b) the attorney attempted to notify the alien of those deadlines and obligations
See Matter of Rosales, 19 I&N Dec. 655 (BIA 1988). Withdrawal should be effected in a timely fashion to avoid compromising the interests of the alien.
(j) Attorney misconduct
The Board has the authority to impose disciplinary sanctions upon attorneys and representatives who violate rules of professional conduct in practice before the Board, the Immigration Courts, and DHS. See Chapter 11 (Discipline). Where an attorney in a case has been suspended from practice before the Board and the alien has not retained new counsel, the Board will treat the alien as pro se. All mailings from the Board, including briefing schedules and orders, will be mailed directly to the alien. Any filing from an attorney who has been suspended from practice before the Board will be rejected.
(k) Administrative suspension
If an attorney fails to comply with mandatory eRegistry registration requirement, he or she may be administratively suspended from practice before the Board. See 8 C.F.R. § 1292.1(f). Multiple attempts by an unregistered attorney to appear before EOIR may result in disciplinary sanctions. See 8 C.F.R. § 1003.101(b). See Chapter 2.1(b) (Registry Requirement).