EOIR Publishes Final Rule Permitting Limited Appearances in Custody/Bond Proceedings

The Executive Office for Immigration Review (EOIR) published a final rule yesterday related to representation in custody/bond proceedings for individuals in immigration detention.  The rule will permit the entry of a notice of appearance for the representation of individuals in custody and bond proceedings before the immigration courts, without such a notice constituting an entry of appearance for the individual’s entire immigration court case.  Under the previous rules, an attorney (or other representative) appearing on behalf of an individual in a bond hearing would become the representative of record for all of the individual’s removal proceedings, and would be required to file a motion to withdraw (to be granted at the discretion of the immigration judge) at the conclusion of the bond proceedings if they wished to limit their representation to the custody/bond proceedings only.  As EOIR explains, “[p]ermitting such separate appearances is expected to encourage more attorneys and accredited representatives to agree to represent individuals who would otherwise appear pro se at their custody and bond proceedings, which, in turn, will benefit the public by increasing the efficiency of the Immigration Courts.”  As a number of commentators have pointed out, detention can significantly impact a noncitizen’s likelihood of success in fighting removal due to the difficulties associated with obtaining witnesses and evidence, conducting research, and preparing testimony from detention and in the face of rapid calendaring pressures of the immigration courts’ detained dockets. 

A number of law students participating in law school immigration clinics have represented immigrant detainees in bond hearings.  In our experience at the Western State College of Law Immigration Clinic, representation of clients in bond hearings gives rise to various teaching opportunities related to lawyering and social justice.  Bond hearings expose students to core lawyering skills, such as client interviewing and counseling, fact investigation, case theory development, direct and cross examination, negotiation, and oral advocacy.  Working with detained clients – including navigating access to immigration detention centers – also leads students to grapple with the justice and fairness concerns associated with the immigration detention system.  While the legal requirements for bond are arguably quite simple (danger to the community and flight risk), the cases often generally lead students to conduct assessments of the clients’ removal claims, since the likelihood of relief can impact the flight risk determination.  And even after successfully securing a reasonable bond amount, students have found that the logistical arrangements necessary to witness the safe and timely release of a client from physical custody also raise questions related to access to justice and the fairness of the system.  Some teaching challenges related to bond hearings that we have experienced include the time pressures associated with representation, relative lack of predictability in terms of case identification, and determining how bond hearing representation fits into the broader clinic docket.

-JKoh