2.1 - Representation and Appearances Generally

(a) Right to Counsel and Individuals Authorized to Provide Representation and Make Appearances –

Under the regulations, parties appearing before the immigration court may represent themselves (Chapter 2.2) or be represented by practitioners.  See 8 C.F.R. §§ 1001.1(ff), 1292.1.  Practitioners include: attorneys (Chapter 2.3), accredited representatives (Chapter 2.4), and certain categories of persons who are expressly recognized by the immigration court (Chapters 2.5, 2.8, and 2.9).

A respondent may be represented by a practitioner of their choosing, at no cost to the government.  As in most civil or administrative proceedings, the government does not provide legal counsel.  The immigration court provides respondents with a list of pro bono legal service providers who may be willing to represent respondents at no cost.  Many of these providers may represent respondents on appeal as well.  See Chapter 2.2(b) (Legal Service Providers).  Bar associations and nonprofit agencies can also refer noncitizens to practitioners.

Attorneys and accredited representatives must register with EOIR in order to practice before the immigration court.  See 8 C.F.R. § 1292.1(a)(1), (a)(4), (f); Chapters 2.3(b)(1) (eRegistry), 2.4 (Accredited Representatives and Recognized Organizations).  Other practitioners are not required to register with EOIR.

No one other than a practitioner is authorized to appear before the immigration court.  Non-lawyer immigration specialists, visa consultants, and “notarios” are not authorized to represent parties or appear before the immigration court.

(b) Entering an Appearance as the Practitioner of Record

To perform the functions of and become the practitioner of record, a practitioner must file a 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, to file all documents on behalf of a respondent, and to accept service of process of all documents filed in the proceedings.  A properly filed Form EOIR-28 provides a practitioner with access to the record of proceedings during the course of proceedings.  A respondent is considered to be represented for the proceeding in which a Form EOIR-28 has been properly filed and accepted.  See 8 C.F.R. §§ 1003.17, 1292.4, 1292.5(a).

Note that different forms are used to enter an appearance before an immigration court, the Board of Immigration Appeals, and the Department of Homeland Security (DHS).  The forms used to enter an appearance before the Board and DHS are as follows:

• The Notice of Entry of Appearance as Attorney or Representative Before the Board of Immigration Appeals (Form EOIR-27) is used to enter an appearance as the practitioner of record before the Board
• The Notice of Entry of Appearance of Attorney or Representative (Form G-28) is used to enter an appearance before DHS

The Immigration Court will not recognize a practitioner as the practitioner of record using any form except the Form EOIR-28.  Persons representing themselves (“pro se”) should not file a Form EOIR-28.

         (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 the 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
      • 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, and not an electronic, Form EOIR-28 must be filed by all practitioners in the following situations:

• A motion to recalendar proceedings that are administratively closed
  • Disciplinary proceedings

                When filing a paper Form EOIR-28, practitioners should be sure to use the most current version of the form, which can be found on the EOIR website. See also Chapter 11 (Forms), Appendix D (Forms).  The use of green paper when filing a paper Form EOIR-28 is strongly encouraged. See Chapter 11.2(f) (Form Colors).

If a paper Form EOIR-28 is submitted with other documents, the Form EOIR-28 should be at the front of the package.  See Chapter 3.3(c) (Format). It should not be included as an exhibit, as part of an exhibit, or with other supporting materials.

                   (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 3.2 (Service on the Opposing Party).

           (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 2.1(b)(3) (Change in Representation). 

            (3) Change in 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.  Changes in representation may be made as described below.

                   (A) Change in Scope of Representation — If a practitioner wishes to change the scope of representation indicated on a previously filed Form EOIR-28 to either increase or decrease the scope of representation but not completely withdraw from the representation, the practitioner must file a new Form EOIR-28 and, as applicable, a motion to withdraw.  For example:

• If a practitioner previously filed a Form EOIR-28 and checked the box indicating that the entry of appearance is for custody and bond proceedings only, and the practitioners later wishes to represent the same respondent in removal proceedings as well, the practitioner must file a new Form EOIR-28 and check the box indicating that the entry of appearance is for all proceedings or removal proceedings, as appropriate.
• If a practitioner previously filed a Form EOIR-28 and checked the box indicating that the entry of appearance is for all proceedings, and the practitioner later no longer wishes to represent the respondent in removal proceedings but does wish to continue representing the respondent in custody and bond proceedings only, the practitioner must file a motion to withdraw from the removal proceedings as well as a new Form EOIR-28 in which the practitioner has checked the box indicating that the entry of appearance is for custody and bond proceedings only.

                  (B) Substitution of counsel — When a respondent wishes to substitute a new practitioner for a previous practitioner, the new practitioner must submit a written or oral motion for substitution of counsel, accompanied by a Form EOIR-28.  See 8 C.F.R. § 1003.17(a)(3).  If in writing, the motion should be filed with a cover page labeled “MOTION FOR SUBSTITUTION OF COUNSEL” and comply with the deadlines and requirements for filing. See Chapter 3 (Filing with the Immigration Court), Appendix E (Cover Pages).  The motion should contain the following information:

• whether the motion to substitute counsel is for all proceedings, custody and bond proceedings only, or all proceedings other than custody and bond proceeding
• the reason(s) for the substitution of counsel, in conformance with applicable state bar and other ethical rules
• evidence that the prior practitioner has been notified about the motion for substitution of counsel
• evidence of the respondent’s consent to the substitution of counsel

If the motion is in writing, the new practitioner should serve a copy of the motion and executed Form EOIR-28 on the prior practitioner, as well as on the Department of Homeland Security if required.  A Proof of Service of the motion and Form EOIR-28 on the prior practitioner is sufficient to show that the prior practitioner has been notified about the motion to substitute counsel.

In adjudicating a motion for substitution of counsel, the time remaining before the next hearing and the reason(s) given for the substitution are taken into consideration.  Extension requests based on substitution of counsel are not favored.

If a motion for substitution of counsel is granted, the prior practitioner need not file a motion to withdraw. However, until a motion for substitution of counsel is granted, the original practitioner remains the respondent’s practitioner of record and must appear at all scheduled hearings.

The granting of a motion for substitution of counsel does not constitute a continuance of a scheduled hearing.  Accordingly, parties must be prepared to proceed at the next scheduled hearing.

                (C) Withdrawal of counsel — When a practitioner wishes to withdraw from representing a respondent, the practitioner must submit a written or oral motion to withdraw. See 8 C.F.R. §1003.17(b).  If in writing, the motion should be filed with a cover page labeled “MOTION TO WITHDRAW AS COUNSEL” and comply with the deadlines and requirements for filing.  See Chapter 3 (Filing with the Immigration Court), Appendix E (Cover Pages).  The motion should contain the following information:

• whether the motion to withdraw is for all proceedings, custody and bond proceedings only, or all proceedings other than custody and bond proceedings
• the reason(s) for the withdrawal of counsel, in conformance with applicable state bar or other ethical rules
• the last known address of the respondent
• a statement that the practitioner has notified the respondent of the request to withdraw as counsel or, if the respondent could not be notified, an explanation of the efforts made to notify the respondent of the request
• evidence of the respondent’s consent to withdraw or a statement of why evidence of such consent is unobtainable
• evidence that the practitioner notified or attempted to notify the respondent, with a recitation of specific efforts made, of (a) pending deadlines; (b) the date, time, and place of the next scheduled hearing; (c) the necessity of meeting deadlines and appearing at scheduled hearings; and (d) the consequences of failing to meet deadlines or appear at scheduled hearings

In adjudicating a motion to withdraw, the time remaining before the next hearing and the reason(s) given for the withdrawal are taken into consideration.

Until a motion to withdraw is granted, the practitioner who filed the motion remains the practitioner of record and must attend all scheduled hearings.

                 (D) Release of counsel/practitioner — When a respondent elects to terminate representation by a practitioner, the practitioner remains the practitioner of record until the Immigration Judge has granted either a motion for substitution of counsel or a motion to withdraw, as appropriate.  See (B) and (C), above.

          (4) Multiple Practitioners — Sometimes, a respondent 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.  One of the practitioners is recognized as the primary practitioner (notice attorney).  All of the practitioners must file a Form EOIR-28, checking the appropriate box to reflect whether the practitioner is the primary practitioner or a non-primary practitioner.  All submissions to the immigration court must bear the name of one of the practitioners of record and be signed by that practitioner.  See Chapter 3.3(b) (Signatures).

          (5) Law Firms/Organizations — Only individual practitioners, and not firms, offices, or organizations, may enter an appearance before the immigration court to act as a practitioner of record.  Accordingly, the immigration court does 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.  See (4), above; see also Chapter 3.3(b)(2) (Law firms).  If, at any time, more than one practitioner represents a respondent, one of the practitioners must be designated as the primary practitioner (notice practitioner).  See (4), above.

                     (A) Change in firm/organization — In the event that a practitioner departs a law firm or organization but wishes to continue representing the respondent as the practitioner of record, the practitioner must promptly file a new Form EOIR-28.  The new Form EOIR-28 must reflect any change of address information and apprise the immigration court of their change in affiliation.  The practitioner should check the “new address” box in the address block of the new Form EOIR-28, which must be served on the opposing party if not filed through ECAS.  See Chapter 3.2 (Service on the Opposing Party).

                     (B) Change in practitioner — If the practitioner of record leaves a law firm/organization but the law firm/organization wishes to retain the case, another practitioner in the firm/organization must file a motion for substitution of counsel. Similarly, if a law firm/organization wishes to reassign responsibility for a case from one practitioner to another practitioner in the firm/organization, the new practitioner must file a motion for substitution of counsel.  Until such time as a motion for substitution of counsel is granted, the original practitioner remains the respondent’s practitioner of record and is responsible for the case.  See (3), above.

            (6) Address Obligations of Practitioners — All practitioners have an affirmative duty to keep the immigration court apprised of their current contact information, including address, email address, and telephone number.  Changes in an attorney’s or an accredited representative’s address or contact information should be made by updating the registration information in the EOIR eRegistry to include the new address and contact information.  See Chapter 2.3(b)(1) (eRegistry), 2.4 (Accredited Representatives and Recognized Organizations).  However, updates to the registration in EOIR’s eRegistry do not change an attorney’s or an accredited representative’s address in individual cases.

              For practitioners of record, the practitioner must submit a new Form EOIR-28 for each respondent for which the practitioner’s address is being changed.  If a practitioner has multiple addresses, the practitioner should make sure that the appropriate practitioner address is designated for each respondent.  See Chapter 2.3(b) (Entering an Appearance as the Practitioner of Record).  The practitioner also should check the “New Address” box in the address block on the Form EOIR-28.  The practitioner should not submit a change of address form (Form EOIR-33/IC) to notify the immigration court of a change in the practitioner’s address.

                   (A) No compound changes of address — A practitioner of record may not simply submit a list of clients for whom their change of address should be entered.  Practitioners of record must submit a new Form EOIR-28 for each represented respondent.

                   (B) Address obligations of represented respondents — Even when a respondent is represented by a practitioner of record, the respondent is still responsible for keeping the immigration court apprised of their address and telephone number.  Address changes by practitioners of record on behalf of their clients must be submitted through the CASE Portal.  Changes of address or telephone number for the respondent may not be made on the Form EOIR-28 but must be made on the change of address form (Form EOIR-33/IC).  See Chapter 2.2(c) (Address Obligations).

       (7) Filing After Entry of Appearance as Practitioner of Record — After a practitioner has filed a Form EOIR-28 and has become the practitioner of record, all filings and communications to the immigration court 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); Chapter 3.1 (Delivery and Receipt). 

       (8) Appearances “on behalf of” — Appearances “on behalf of” occur when a second practitioner appears on behalf of the practitioner of record at a specific hearing before the immigration court. The practitioner making the appearance need not work at the same firm or organization as the practitioner of record.  Appearances “on behalf of” are permitted as described below.

• First, 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.
• Second, the practitioner making the appearance must file a Notice of Entry of Appearance of Attorney or Representative Before the Immigration Court (Form EOIR-28) with the immigration court and serve it on the opposing party.  The practitioner must file a paper Form EOIR-28, not an electronic Form EOIR-28.  See Chapter 2.1(b)(1) (How to File the Form EOIR-28). The practitioner must check the box on the Form EOIR-28 indicating that they are making an appearance on behalf of the practitioner of record and fill in the name of the practitioner of record.
• Third, the appearance on behalf of the practitioner of record must be authorized by the Immigration Judge.

At the hearing, the practitioner making the appearance may file documents on behalf of the respondent.  The practitioner making the appearance cannot file documents on behalf of the respondent at any other time.  See Chapters 3.3(b) (Signatures), 3.2 (Service on the Opposing Party).  The practitioner of record need not file a new Form EOIR-28 after the hearing.

(c) Limited Appearance for Document Assistance – Practitioners who have not filed a Form EOIR-28 to become the practitioner of record as discussed in (b), above, and who provide assistance to pro se respondents with the drafting, completion, or filling in of blank spaces of a specific motion, brief, form, or other document or set of documents intended to be filed with the immigration court, must disclose such assistance by completing a Notice of Entry of Limited Appearance for Document Assistance Before the Immigration Court (Form EOIR-61).  In contrast to a practitioner of record, a practitioner who provides document assistance and discloses that assistance on a Form EOIR-61 does not have any ongoing obligations to the pro se respondent or the immigration court, if and when the Form EOIR-61 and the associated assisted documents are filed with the Immigration Court.  A practitioner who enters a limited appearance is not authorized or required to appear in immigration court on behalf of respondent, is not authorized to have access to the record of proceedings, and is not required file a motion to withdraw.  A respondent who receives document assistance is not represented, remains pro se, and is subject to service of process of all documents filed in the proceedings.  See 8 C.F.R. §§ 1003.17(b), 1292.5. 

                        (1) Filing Form EOIR-61 and Assisted Documents — The Form EOIR- 61 is not filed as a standalone document and must be paper-filed at the same time as the document or set of documents with which the practitioner assisted.  See 8 C.F.R. § 1003.17(b)(1).

Practitioners should use the most current version of the Form EOIR-61, which can be found on EOIR’s website. See also Chapter 11 (Forms), Appendix D (Forms). The Form EOIR-61 and assisted document or set of documents may be filed by the pro se respondent, or the pro se respondent may arrange for another individual, such as the practitioner who assisted, to file the documents in accordance with EOIR filing polices.  See Chapter 3.1 (Delivery and Receipt).  A Form EOIR-61 will not be accepted if a respondent has a practitioner of record in the relevant proceeding.  After the filing of a Form EOIR-61 and assisted document(s), any subsequent filing of an assisted document or set of documents must be accompanied by a new Form EOIR-61 from the practitioner, regardless of whether the same practitioner is providing assistance.  See 8 C.F.R. § 1003.17(b)(1).

                        (2) Practitioner Identification on Assisted Documents —

Notwithstanding a practitioner’s disclosure of assistance on a Form EOIR-61, the practitioner must comply with the particular disclosure requirements for preparers on applications and forms, and the practitioner must identify him or herself by name, accompanied by his or her signature, on motions, briefs, or other documents intended to be filed with the immigration court pursuant to a limited appearance for document assistance.  See 8 C.F.R. § 1003.17(c).