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Separate Representation for Custody and Bond Proceedings

Separate Representation for Custody and Bond Proceedings

The Immigration and Nationality Act (INA) provides that aliens appearing before an Immigration judge “shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such proceedings. ” INA sec. 240(b)(4)(8 U.S.C.1229 a(b)(4). In order to represent an individual before the EOIR, a representative must file a Notice of Entry of Appearance with the Immigration Court of the Board of Immigration Appeals (Board). See CFR 1003.17, 1003.3(a)(3). A representative who enters his or her appearance before the Immigration Court is the representative of record for the individual in all of the individual’s proceedings, including removal or deportation proceedings and, if the individual is detained, custody and bond proceedings. Under the current rules, to the extent a representative wishes to represent an individual solely in custody and bond proceeding, not in any other proceedings before the Immigration Court, he or she must file a motion to withdraw representation after the individual’s custody and bond proceedings conclude. Cf. Matter N-K-&V-S-,21 I&N Dec. 879, 890, 881 n.2(BIA 1997). Whether to grant or deny that motion is within the sole discretion of Immigration judge presiding over the particular case. See 8 CFR 1003.17(b).

In order to authorize a representative to enter an appearance solely for custody and bond proceedings before the Immigration Court, this final rule amends the Executive Office for Immigration Review (EIOR) regulations relating to the representation of an individual in custody and bond proceedings before EIOR by allowing a representative before EOIR to enter an appearance in custody and bond proceedings without such appearance constituting an entry of appearance for all of the individual’s proceedings before the Immigration Court. This rule is effective December 7, 2015.

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