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BIA Practice Manual

BIA Practice Manual
Chapter 2 - Appearances Before the Board

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 Board 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 kinds of individuals who are expressly recognized by the Board (Chapter 2.5 and 2.9).

If a respondent wishes to be represented, the respondent may be represented by a practitioner of their choosing, at no cost to the government.  A list of pro bono legal service providers who may be willing to represent respondents at no cost is accessible on EOIR’s website.  The pro bono providers may represent respondents on appeal as well as in immigration court.  Bar associations and nonprofit agencies can also refer respondents to practitioners.

Attorneys and fully accredited representatives who are accredited to appear before EOIR must register with EOIR’s eRegistry in order to appear before the Board.  See 8 C.F.R. § 1292.1(f).  Other practitioners are not required to register with EOIR.

No one, other than a practitioner, is authorized to appear before the Board.  Non-lawyer  “immigration specialists,” “visa consultants,” and “notarios” are not authorized to represent parties or appear before the Board.  See Chapter 2.7 (Immigration Specialists).

(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 Appearance as Attorney or Representative Before the Board of Immigration Appeals (Form EOIR‑27) for each represented party on a separate Form EOIR‑27.  See 8 C.F.R. §§ 1003.38(g)(1), 1292.4.  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 before the Board.  See 8 C.F.R. §§ 1003.38(g)(1)(ii), 1292.5(a).  A properly filedForm 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 is considered to be represented for the Board proceeding in which a Notice of Appearance (Form EOIR-27) has been properly filed and accepted.  See 8 C.F.R. § 1003.38(g)(1)(ii).

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

 

(1) 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 Notice of Appearance (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 Notice of Appearance (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 persons (“pro se” respondents) should not file a Form EOIR-27. 

(C) Notice to opposing party — The Notice of Appearance (Form EOIR‑27) may need to be served on the Department of Homeland Security in certain circumstances.  See Chapter 3.2 (Service).

(2) Scope of Representation — Once a practitioner has made an appearance as the practitioner of record through the filing of a Notice of Appearance (Form EOIR-27), the practitioner has an obligation to continue representation until such time as the respondent 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 CFR 1003.38(g)(1)(iii).

(3) Change in Representation — A represented respondent may substitute or release a practitioner of record before the Board at their discretion.  A practitioner of record may withdraw from representation under certain conditions.  Respondents and their practitioners of record must keep the Board apprised of all changes in representation.

(A) Substitution of counsel — A represented respondent may substitute a practitioner at their discretion.  When a respondent wishes to substitute a new practitioner for a previous practitioner, the new practitioner must file a Notice of Appearance (Form EOIR‑27).  The new practitioner is expected to serve a copy of the Form EOIR-27 on the prior practitioner as well as DHS if required.  See Chapter 3.2 (Service).

Upon receipt of the new Form EOIR-27, the Board automatically recognizes the new practitioner as the practitioner of record, and the prior practitioner need not file a motion to withdraw.  However, until such time as a new Form EOIR-27 has been filed, the prior practitioner remains the practitioner 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).

(B) Release of counsel — A represented respondent may, at their discretion, terminate representation by a practitioner of record before the Board at any time.

If a represented respondent dismisses their practitioner of record and does not retain a new practitioner immediately, the represented respondent should notify the Board through correspondence with a cover page labeled.  “NOTICE OF DISMISSAL OF PRACTITIONER.”  See Appendix E (Cover Pages).  This “dismissal notice” should contain the full name, A-Number, and complete address of the respondent, as well as the name of the practitioner of record being dismissed.  The dismissal notice should also contain Proof of Service indicating that both the practitioner of record 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 respondent dismisses one practitioner of record but retains a new practitioner who immediately files a Form EOIR‑27, the respondent need not file a dismissal notice for the first practitioner of record.

If, after a dismissal notice has been filed, a respondent retains a new practitioner, the new practitioner must file a Notice of Appearance (Form EOIR‑27). 

(C) Withdrawal of counsel — A practitioner of record seeking withdrawal should file a motion with a cover page labeled “MOTION TO WITHDRAW AS COUNSEL.” See Chapter 3.2 (Service), Appendix E (Cover Pages).  The motion should contain the following information:

  • the last known address of the represented respondent
  • evidence that the practitioner of record has notified or attempted to notify the respondent of the request to withdraw as counsel
  • evidence that either (a) the respondent is aware of pending deadlines, existing obligations, and the consequences for failing to comply with those deadlines and obligations, or (b) the practitioner of record attempted to notify the respondent 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 respondent.

(4) Multiple practitioners of record — Sometimes, a respondent may retain more than one practitioner for representation before the Board.  All of the practitioners seeking to appear before the Board must file a Notice of Appearance (Form EOIR‑27), and each Form EOIR‑27 must be annotated to reflect whether the specified practitioner is the primary or non-primary practitioner of record.  Only the primary practitioner of record will receive mailings from the Board.  All of the practitioners, regardless of primary or non-primary designation, are practitioners of record and are individually responsible as practitioners for the respondent.  All submissions to the Board must bear the name of one of the practitioners of record and be signed by the practitioner of record whose name is on the submission.  See Chapter 3.3(b) (Signatures).

Circumstances may arise that require the Board to switch service of mailings from the primary practitioner of record to a non-primary practitioner of record.  For example, if the primary practitioner of record is suspended from practice before the Board and immigration courts, or a discrepancy exists as to the designation of primary and non-primary in the received Form EOIR-27s, or no designation is made by the practitioners on the received Form EOIR 27s.  When discrepancies occur, the Board will make reasonable efforts to resolve the discrepancy with the practitioners.  However, service of Board notices and orders will not be delayed as a result of the suspension of the primary practitioner of record, discrepancies as to designations of primary and non-primary on the Form EOIR-27s, or failure to designate the primary practitioner of record on the Form EOIR-27s.  As noted above, all the practitioners are practitioners of record, and the Board may change the primary practitioner of record designation when warranted.

(5) Law Firms/Organizations — Only individual practitioners, and not firms, offices, or organizations, may enter an appearance before the Board.  A named practitioner must enter an appearance on a Notice of Appearance (Form EOIR-27) to act as the practitioner of record.  Accordingly, the Board does not accept appeals, motions, briefs, or other filings submitted by a law firm, law office, or other entity, if they do not include the name and signature of the practitioner of record.  See also Chapter 3.3(b)(3) (Law firms).  If at any time, more than one practitioner represents a respondent, one of the practitioners must be designated as the primary practitioner of record to receive Board notices and orders.  See subsection (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 Notice of Appearance (Form EOIR-27). The new Form EOIR-27 must reflect any change of address information and should apprise the Board of their change in office affiliation.  The practitioner should check the “new address” box in the address block on the new Form EOIR-27.  The practitioner must also update their eRegistry information online prior to submitting a new Form EOIR-27.

(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 promptly file a Notice of Appearance (Form EOIR‑27) and thereby become the practitioner of record.  Similarly, if a law firm/organization wishes to reassign responsibility for a case from the practitioner of record to another practitioner in the firm/organization, the new practitioner must file a Form EOIR‑27.  Until such time as another practitioner files a Form EOIR‑27 (or a motion to withdraw is granted by the Board), the original practitioner of record remains the practitioner of record and is responsible for the case.   

(6) Address Obligations of Practitioners — All practitioners have an affirmative duty to keep the Board apprised of their current contact information, including address and email address.  See 8 C.F.R. §§ 1003.2(g)(9)(ii), 1003.3(g)(6)(ii), 1003.38(e).  Changes in an attorney’s or accredited representative’s contact information should be made by updating the registration information in EOIR’s eRegistry to include the new contact information.  However, updates to the registration information 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 Notice of Appearance (Form EOIR-27) for each respondent for which the practitioner’s address is being changed.  The practitioner should check the “New Address” box in the address block on the Form EOIR-27.  The practitioner should not submit a change of address on the respondent’s Change of Address Form (Form EOIR‑33/BIA).

(A) No compound changes of address — A practitioner of record must submit a separate Notice of Appearance (Form EOIR-27) for each respondent represented.  A practitioner of record may not submit a list of clients for whom their change of address should be entered.

(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 Board apprised of their current address.  Address changes by practitioners of record on behalf of their clients must be submitted through the Case Portal.  Changes of address for the respondent 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).       

(7) Filings After Entry of Appearance as Practitioner of Record — After a practitioner has filed a Notice of Appearance (Form EOIR-27) and become the practitioner of record, all filing and communications to the Board should be submitted through the practitioner of record.   Filings should always be made by a party to the proceedings, or a party’s practitioner of record, and not by a third party.

(8) 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 (4) regarding multiple practitioners of record, any filing from a practitioner who is not the practitioner of record must be accompanied by a completed Notice of Appearance (Form EOIR‑27), whereupon that practitioner will become the new practitioner of record. 

(c) Limited Appearance for Document Assistance — Practitioners who have not filed a Notice of Appearance (Form EOIR-27) to become the practitioner of record as discussed in section (b) above and who provide assistance to unrepresented or pro se respondents with the drafting, completion, or filling in of blank spaces of a specific appeal, motion, brief, form, or other document or set of documents intended to be filed with the Board must disclose such assistance by completing a Notice of Entry of Limited Appearance for Document Assistance Before the Board of Immigration Appeals (Form EOIR-60).  See 8 C.F.R. § 1003.38(g)(2).  In contrast to a practitioner of record, a practitioner who provides document assistance and discloses that assistance on a Notice of Limited Appearance (Form EOIR-60) does not have any ongoing obligations to the unrepresented or pro se respondent or the Board, if and when the Notice of Limited Appearance (Form EOIR-60) and the associated assisted documents are filed with the Board.  A practitioner who enters a limited appearance is not authorized or required to appear before the Board on behalf of the unrepresented or pro se respondent, is not authorized to have access to the record of proceedings and is not required file a motion to withdraw.  An unrepresented or pro se 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. §§ 1003.38(g)(2)(ii), 1292.5.

(1) Filing Form EOIR-60 and Assisted Documents — A Notice of Limited Appearance (Form EOIR-60) 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. § 1003.38(g)(2)(i).

Practitioners should use the most current version of the Notice of Limited Appearance (Form EOIR-60), which can be found on the EOIR’s website at www.justice.gov/eoir.  See also Chapter 12 (Forms).  Note that there is a distinction between the Board’s Notice of Limited Appearance (Form EOIR-60) and the immigration court’s version of the Notice of Limited Appearance (Form EOIR-61).  The Board will not recognize a Form EOIR-61 filed with the Board, and assisted document or set of documents received with a Form EOIR-61 will be rejected.

The Notice of Limited Appearance (Form EOIR-60) and assisted document or set of documents may be filed by the unrepresented or pro se respondent or the unrepresented or 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 Notice of Limited Appearance (Form EOIR-60) will not be accepted if a respondent has a practitioner of record in the relevant proceeding before the Board.

After the filing of a Notice of Limited Appearance (Form EOIR-60) and assisted document(s), any subsequent filing of an assisted document or set of documents must be accompanied by a new Notice of Limited Appearance (Form EOIR-60) from the practitioner, regardless of whether the same practitioner is providing assistance.  See 8 C.F.R. §1003.38(g)(2)(i).

(2) Practitioner Identification on Assisted Documents — Notwithstanding a practitioner’s disclosure of assistance on a Notice of Limited Appearance (Form EOIR-60), the practitioner must comply with the particular disclosure requirements for preparers on applications and forms, and the practitioner must identify themselves by name, accompanied by their signature, on appeals, motions, briefs, or other documents intended to be filed with the Board pursuant to a limited appearance for document assistance.  See 8 C.F.R. § 1003.38(g)(3).

(3) Limited Appearances for Document Assistance Only Permitted in Cases that Originated in the Immigration Court — Practitioners are only permitted to make a limited appearance for document assistance through a Notice of Limited Appearance (Form EOIR-60), as discussed above, in Board proceedings related to appeals cases arising from the immigration court.  Limited appearances for document assistance through the Notice of Limited Appearance (Form EOIR-60) are not permitted in cases before the Board arising from a DHS decision, such as those related to a visa petition, waivers of inadmissibility for nonimmigrants under § 212(d)(3)(A)(ii) of the Immigration and Nationality Act, or fine.  Any Notice of Limited Appearance (Form EOIR-60) and the associated assisted documents filed in cases before the Board arising from a DHS decision will not be recognized and will be rejected.  Practitioners that provide document assistance in such cases must file a Notice of Appearance (Form EOIR-27) as discussed above.  See generally Chapter 9 (Visa Petitions), 10 (Fines).