FAQs Relating to the EOIR-28 Requirements for Immigration Attorneys Practicing Before the Immigration Court

Attorneys who practice before the immigration courts are typically required to fill out a form EOIR-28, also known as a Notice of Entry as Attorney or Representative Before the Immigration Court. This is more than a simple form; it contains a number of serious and wide-ranging representations that the court will rely upon concerning the practitioner and their underlying matter before the court. Therefore, it is critical for the attorney filing the EOIR-28 to be aware of the inherent representations being made by filing that form.

Set forth below are some highlights of the more significant issues that such attorneys must keep in mind when submitting their notice of appearance.

Frequently Asked Questions About the EOIR-28 Notice of Appearance That Typically Apply to Attorneys Practicing Before the Immigration Courts

1. What are the different categories of “attorney[s] or representative[s]” who are allowed to practice before the immigration courts?

EOIR-28 contains a series of check boxes for the different roles that both attorneys and non-attorneys can play in filing an appearance before the immigration court. They include the following:

• I am an attorney eligible to practice law in, and a member in good standing of, the bar of the highest court(s) of the following states(s), possession(s), territory(ies), commonwealth(s), or the District of Columbia (use additional space on reverse side if necessary), and I am not subject to any order disbarring, suspending, enjoining, restraining or otherwise restricting me in the practice of law in any jurisdiction [TO BE FILLED IN]
• I am a representative accredited to appear before the Executive Office for Immigration Review as defined in 8 F.R. §1292.1(a)(4) with the following recognized organization. [TO BE FILLED IN]
• I am a law student or law graduate of an accredited U.S. law school as defined in 8 C.F.R. § 1292.1(a)(2).
• I am a reputable individual as defined in 8 C.F.R. § 1292.1(a)(3) and I am appearing without direct or indirect remuneration. I am providing further information in the Additional Information box below. [TO BE FILLED IN].
• I am an accredited foreign government official, as defined in 8 C.F.R. § 1291.1(a)(5), from [TO BE FILLED IN] country.
• I am a person who was authorized to practice on December 23, 1952, under 8 C.F.R. § 1292.1(b)

2. What is the difference between appearing as a primary and non-primary attorney?

The type of appearance is required to be input on the EOIR-28 form. Specifically, the person submitting it “must designate primary or non-primary unless you are appearing in an ‘on behalf of’ capacity for another attorney for a specific hearing. Only the primary attorney /representative will receive mailings from the Immigration Court. All attorneys/representatives, regardless of the type of appearance, are practitioners of record and are individually responsible as representatives for the respondent. Circumstances may arise that require the Immigration Court to designate a primary and/or switch service of mailings from the primary to a non-primary.”

3. Can one EOIR-28 submission suffice for multiple parties in the same matter that all have one attorney?

No, the language of the form states that “[t]o perform the functions of and become the practitioner of record, the practitioner must file a separate Form EOIR-28 for each represented party in each case before an Immigration Judge (see 8 C.F.R. § 1003.17).”

4. Do the Rules of Professional Conduct apply?

The EOIR-28 Notice of Appearance form clearly indicates that the person filing it is agreeing to the fact that it “will comply with the EOIR Rules of Professional Conduct in 8 C.F.R. § 1003.102.” Likewise, any misconduct that occurs in regard to the appearances and representations before the immigration court and otherwise can be publicly disclosed. Specifically, the form states:

By signing this form, I consent to publication of my name and any findings of misconduct by EOIR, should I become subject to any public discipline by EOIR pursuant to the rules and procedures at 8 C.F.R. 1003.101 et seq. 

5. May an attorney who has entered their appearance withdraw unilaterally or do they need permission from the court?

Once an attorney files an appearance as the “practitioner of record,” they are agreeing to the restriction that “substitution or withdrawal may be permitted upon the approval of the Immigration Judge of a request by the attorney or practitioner of record in accordance with 8 C.F.R. § 1003.17(b).”

6. Is the EOIR-28 sufficient to allow an attorney to file appeals to a ruling by the immigration court?

No, “A separate appearance form (Form EOIR-27) must be filed with an appeal to the Board of Immigration Appeals (see 8 C.F.R. § 1003.38(g))”.

The Nissenbaum Law Group can Provide Legal Counsel for EOIR Concerns

The Nissenbaum Law Group has an attorney ethics defense team of attorneys and paralegals are available to handle matters before the EOIR, BIA and/or DHS. It is an adjunct to the ethics defense team’s tri-state defense practice centered in New Jersey, New York, and Pennsylvania.  The firm welcomes inquiries from attorneys who are the subject of any such matters. In order to initiate such an inquiry, kindly review our EOIR Practice or Ethics Practice.