On April 13, Jennifer Barnes, disciplinary counsel of the Executive Office of Immigration Review, (EOIR) a federal agency within the Department of Justice, sent a cease and desist letter to a nonprofit organization in Seattle, Washington. If enforced, the cease and desist letter would effectively prevent the nonprofit from fulfilling its mission. The nonprofit at issue is the Northwest Immigration Rights Project (NWIRP), founded in 1984, and its mission is to assist undocumented immigrants through legal assistance, advocacy and education.
The cease and desist letter warned NWIRP that its long-term and open practice of assisting pro se litigants with the preparation of their filed documents in immigration court potentially violated a nine-year-old rule of professional conduct promulgated by EOIR, codified at 8 C.F.R. Section 1003.102(t) and never before enforced by the Department of Justice against NWIRP in this way. The rule requires attorneys to file a notice of appearance in any case in which the attorney has engaged in “practice or preparation.” In 2008, when the rule was adopted, NWIRP met with the local EOIR immigration court administrator to discuss the rule’s impact on NWIRP’s services to pro se litigants. As a nonprofit, NWIRP was only able to provide full representation to clients in removal proceedings in very few cases. Absent a few exceptions, there is no right to counsel in immigration court. Unsurprisingly, represented parties in immigration court fare exponentially better than unrepresented parties. In recognition of all these facts, after the disciplinary rule was promulgated, the local immigration court in the Western District of Washington agreed that NWIRP could continue its practice of assisting pro se litigants if any filing to which it contributed included notification of NWIRP’s participation. This was the procedure for nine years, until the April 13 cease and desist letter.
