5.3 - Entering an Appearance as the Practitioner of Record

(a) Appearance Before the Immigration Court – To perform the functions of, and become the practitioner of record, a practitioner must file a properly completed Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28).  A practitioner of record is authorized and required to appear on behalf of a respondent/applicant, to file all documents on behalf of a respondent/applicant, and to accept service of process of all documents filed in the proceedings.  A properly completed and filed Form EOIR-28 provides a practitioner with access to the record of proceedings during the course of proceedings.  An alien is considered to be represented for the proceeding in which a Form EOIR-28 has been properly completed, filed and accepted.  See 8 C.F.R. §§ 1003.17, 1292.4, 1292.5(a).

    (1) How to file the Form EOIR-28 – 

        (A) Electronic entry of appearance - After registering with EOIR’s eRegistry, attorneys and accredited representatives must electronically file a Form EOIR-28 through ECAS in the following situations:

• The first appearance of the attorney or accredited representative, either at a hearing or by filing a pleading, motion, application, or other document;

• Whenever a case is remanded to the immigration court;

• Any change of business address or telephone number for the attorney or accredited representative; or

• Upon reinstatement following the suspension or disbarment of an attorney or accredited representative from practice. 

       (B) Paper entry of appearance - Practitioners who are neither attorneys nor accredited representatives must file a paper Form EOIR-28 in all circumstances.  Additionally, a paper Form EOIR-28 must be filed by all practitioners in the following situations:

• A motion to recalendar proceedings that are administratively closed; or

• Disciplinary proceedings. When filing a paper Form EOIR-28, practitioners must use the most current version of the form, which can be found on EOIR’s website.  

Unrepresented respondent/applicants (“pro se” respondents) should not file a Form EOIR-28. 

      (C)  Notice to opposing party – Where the Form EOIR-28 cannot be filed electronically through ECAS, DHS must be served with a paper copy of the Form EOIR-28 when it is filed with the immigration court.  See Chapter 2.2 (Service).

  (2) Scope of Representation — When completing the Form EOIR-28, a practitioner must check the box indicating whether the entry of appearance is for all proceedings, custody and bond proceedings only, or all proceedings other than custody and bond proceedings.  Once a practitioner has made an appearance, that practitioner has an obligation to continue representation until such time as a motion to withdraw or substitute counsel has been granted by the immigration court.  See Chapter 5.4 (Changes in Representation).  

      (A) Change in Scope of Representation — When a practitioner wishes to change the scope of his or her appearance in a particular case, the practitioner must file a new Form EOIR-28 and, if necessary, a motion to withdraw or substitute counsel.  

  (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 Form EOIR-28.  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, expelled, or disbarred – must be listed and the state bar number, if any, provided.

  (4) Disciplinary information – An attorney must not check the box regarding attorney bar membership and disciplinary action on the Form EOIR-28 if the attorney is subject to any order disbarring, suspending, or otherwise restricting the attorney in the practice of law.  If the attorney is subject to discipline or otherwise restricted in the practice of law, then the attorney must provide additional information on the back of the form.  (Attorneys may attach an explanatory supplement or other documentation to the form.)  An attorney who fails to provide disciplinary information will not be recognized by the immigration court and may be subject to disciplinary action.

(b) Appearance before the Board - To perform the functions of and become the practitioner of record, the practitioner must file a Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals (Form EOIR-27) for each represented respondent/applicant.  See 8 C.F.R. §§ 1003.2(g)(1), 1003.3(a)(3), 1003.38(g)(1).  If information is omitted from the Form EOIR-27, or Form EOIR-27 is not properly completed, the practitioner’s appearance may not be recognized, and the filing may be rejected.  A practitioner of record is authorized and required to appear on behalf of a respondent/applicant, to file all documents on behalf of a respondent/applicant, and to accept service of process of all documents filed in the proceedings before the Board.  See 8 C.F.R. §§ 1003.38(g)(1)(ii), 1292.5(a).  A properly filed Form EOIR-27 provides a practitioner with access to the record of proceedings during the course of proceedings before the Board.  See 8 C.F.R. § 1003.38(g)(1)(ii).  A respondent/applicant is considered to be represented for the Board proceeding in which a Form EOIR-27 has been properly filed and accepted.  See 8 C.F.R. § 1003.38(g)(1)(ii).

     (1) A practitioner seeking to be the practitioner of record, or who is the practitioner of record, must file a Form EOIR-27 in the following situations:

• the filing of an appeal

• the filing of a motion to reopen

• the filing of a motion to reconsider

• the first appearance of a practitioner

• any change of business address for the practitioner

• request a copy of the official record of proceedings

• other motions

    (2) How to file the Form EOIR-27 – 

       (A) Electronic entry of appearance - After registering with EOIR’s eRegistry, attorneys and accredited representatives must electronically file a Form EOIR-27 through ECAS in cases eligible for electronic filing.  If filing an appeal or motion on paper, users may electronically file their EOIR-27 but must include a paper copy of the EOIR-27 with their appeal or motion filing.

        (B) Paper entry of appearance - Practitioners who are neither attorneys nor accredited representatives must file a paper Form EOIR-27 in all circumstances.  When filing a paper Form EOIR-27, practitioners must use the most current version of the form, which can be found on EOIR’s website.  Note that Form EOIR-27 is not the same as the appearance form used before the immigration court (Form EOIR-28), and that the Board will not recognize a practitioner using Form EOIR-28.  Unrepresented respondent/applicants (“pro se” respondents) should not file a Form EOIR-27.

       (C) Notice to opposing party - The Form EOIR-27 may need to be served on the Department of Homeland Security (DHS) in certain circumstances.  See Part III, Chapter 2.2 (Service on the Opposing Party).

   (3) Scope of representation - Once a practitioner has made an appearance as the practitioner of record through the filing of a Form EOIR-27, the practitioner has an obligation to continue representation until such time as the respondent/applicant terminates representation, another practitioner enters an appearance on a Form EOIR-27, or a motion to withdraw as counsel has been granted by the Board.  See 8 C.F.R. 1003.38(g)(1)(iii).

   (4) 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 Form EOIR-27.  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, expelled, or disbarred – must be listed and the state bar number, if any, provided.

   (5) Disciplinary information – An attorney must not check the box regarding attorney bar membership and disciplinary action on the Form EOIR-27 if the attorney is subject to any order disbarring, suspending, or otherwise restricting the attorney in the practice of law.  If the attorney is subject to discipline or otherwise restricted in the practice of law, then the attorney must provide additional information on the back of the form.  (Attorneys may attach an explanatory supplement or other documentation to the form.)  An attorney who fails to provide disciplinary information will not be recognized by the immigration court and may be subject to disciplinary action.

   (6) Amicus Curiae - An appearance as amicus curiae is not a request to represent a party before the Board.  Therefore, a Notice of Entry of Appearance Form is not required.  

The Board generally limits the appearance of amicus curiae to the filing of briefs.  See Part III, Chapter 3.6(i) (Amicus Curiae Briefs).  Amicus curiae may request an opportunity to present oral argument, but such requests are granted sparingly.  See Part III, Chapter 7.7(d)(5) (Supplemental briefs).  

A person or organization wishing to make an appearance as an amicus curiae must file a written request with the Clerk’s Office, preferably with a cover page labeled “REQUEST TO APPEAR AS AMICUS CURIAE.”  See Appendix A (Directory), Appendix D (Cover Pages).  That request should specify the name and alien registration number (“A number”) of the matter in which an amicus curiae wishes to appear and articulate why amicus curiae should be permitted to appear.  A brief should accompany the request to appear as amicus curiae.  If the Board grants the request, the parties will be provided an opportunity to respond.  See Part III, Chapter 3.6(h) (Reply Briefs), 3.6(i) (Amicus Curiae Briefs).  The request and brief should be served on all parties to the proceedings.  See Part III, Chapter 2.2 (Service on the Opposing Party).

The Board may, at its discretion, acknowledge helpful amicus curiae brief(s) and contributors.

(c) Law Students and Law Graduates –The law student’s or law graduate’s supervising attorney or accredited representative must notify the immigration court or the Board of both individuals’ appearances by filing two separate documents.  The supervising attorney or accredited representative must complete and submit a Form EOIR-27 or EOIR-28, as appropriate, as the practitioner of record in the proceeding.  Together with that Form EOIR-27 or EOIR-28, the supervising attorney or accredited representative must inform the immigration court or the Board of the law student’s or law graduate’s appearance by filing a “Notice of Representation by a Law Student or Law Graduate” and a statement from the law student or law graduate.  The notice must include a copy of an EOIR-27 or EOIR-28, as appropriate, completed by the law student or law graduate.  The statement from the law student or law graduate must indicate that the student is appearing at the request of the alien, that the law student or law graduate is acting under the direct supervision of an EOIR-registered attorney or accredited representative, and that the student is appearing without direct or indirect remuneration from the alien he or she represents.  Law students may only appear when participating in a legal aid program or clinic conducted by a law school or non-profit organization.  8 C.F.R. § 1292.1(a)(2)(ii).    

If the appearance is permitted by the Immigration Judge or the Board, the law student or law graduate will not appear as the official practitioner of record for the proceeding.  Instead, the law student’s or law graduate’s supervising attorney or accredited representative is the practitioner of record for the case and the person who submits all filings on behalf of the respondent/applicant whom the law student is helping to represent.  8 C.F.R. § 1292.1(a)(2)(v).  The law student’s or law graduate’s supervisor is required to accompany the law student at any hearing and be prepared to proceed with the case at all times.  8 C.F.R. § 1292.1(a)(2)(iv).  The Immigration Judge or the Board may permit the law student or law graduate and supervising attorney or accredited representative to appear from separate physical locations.  See generally 8 C.F.R. § 1292.1(a)(2)(iv).

(d) Multiple Practitioners — Sometimes, a respondent/applicant may retain more than one practitioner at a time.  In such cases, all of the practitioners are practitioners of record, and will all be held responsible as practitioners for the respondent/applicant.  One of the practitioners is recognized as the primary practitioner.  Only the primary practitioner of record will receive mailings from the immigration court and the Board as appropriate.  All of the practitioners must file a Form EOIR-28 or Form EOIR-27 as appropriate, checking the appropriate box to reflect whether the practitioner is the primary practitioner or a non-primary practitioner.  All submissions to the immigration court or the Board must bear the name of one of the practitioners of record and be signed by that practitioner.  See Part II, Chapter 2.3(b) (Signatures); Part III, Chapter 2.3(b) (Signatures).

(e) Law Firms/Organizations — Only individual practitioners, and not firms, offices, or organizations, may enter an appearance before the immigration court and the Board to act as a practitioner of record.  Accordingly, the immigration court and the Board do not recognize appearances or accept pleadings, motions, briefs, or other filings submitted by a law firm, law office, or other entity if the name and signature of a practitioner of record is not included.  If at any time, more than one practitioner represents a respondent/applicant, one of the practitioners must be designated as the primary practitioner of record to receive notices and orders.  

(f) Filing After Entry of Appearance as Practitioner of Record — After a practitioner has filed a Form EOIR-28 or Form EOIR-27 and has become the practitioner of record, all filings and communications to the immigration court or the Board must be submitted through the practitioner of record in accordance with EOIR filing polices.  See 8 C.F.R. §§ 1003.17(a)(2), 1292.5(a); Part II, Chapter 2.1; Part III, Chapter 2.1 (Delivery and Receipt).  

(g) Appearances “on behalf of” — Appearances “on behalf of” occur when a practitioner appears on behalf of the practitioner of record at a specific hearing before the immigration court.  

• The practitioner making the appearance must notify the Immigration Judge on the record that he or she is appearing on behalf of the practitioner of record.

• The practitioner making the appearance must file paper-file a Form EOIR-28 with the immigration court and serve it on the opposing party.  The practitioner must check the box on the Form EOIR-28 indicating that he or she is making an appearance on behalf of the practitioner of record and fill in the name of the practitioner of record.

• The appearance on behalf of the practitioner of record must be authorized by the Immigration Judge.

(h) No filings “on behalf of” – The Board only accepts filing by the practitioner of record, not on behalf of the practitioner of record.  Thus, except as provided in subsection (c) regarding multiple practitioners of record, any filing from a practitioner who is not the practitioner of record must be accompanied by a completed Form EOIR-27, whereupon that practitioner will become the new practitioner of record.