In re Bay Area Legal Servs., Interim Decision #3984

CourtU.S. DOJ Board of Immigration Appeals
Writing for the CourtMcHENRY, Director
Citation27 I&N Dec. 837
PartiesMatter of BAY AREA LEGAL SERVICES, INC., Applicant Request for Accreditation
Docket NumberInterim Decision #3984
Decision Date22 May 2020

27 I&N Dec. 837

Matter of BAY AREA LEGAL SERVICES, INC., Applicant
Request for Accreditation

Interim Decision #3984

U.S. Department of Justice Executive Office for Immigration Review Office of the Director

May 22, 2020


(1) The Assistant Director for Policy has the discretion to extend the deadline for a request for reconsideration made pursuant to 8 C.F.R. § 1292.13(e), but not for a request for reconsideration made pursuant to 8 C.F.R. § 1292.16(f) or § 1292.17(d). The 30-day deadline for a request for reconsideration in 8 C.F.R. § 1292.13(e), § 1292.16(f), and § 1292.17(d) is otherwise mandatory and not subject to equitable tolling.

(2) A request for reconsideration made pursuant to 8 C.F.R. § 1292.13(e), § 1292.16(f), or § 1292.17(d) must demonstrate an error of fact or law in the previous decision.

(3) The standard of review for administrative reviews conducted under 8 C.F.R. § 1292.18 is de novo.

(4) Unless overruled by subsequent precedent or superseded by statute, regulation, or binding federal court decision, prior precedent decisions of the Board of Immigration Appeals remain binding in recognition and accreditation proceedings after January 18, 2017, including consideration of requests for reconsideration pursuant to 8 C.F.R. §§ 1292.13(e), 1292.16(f), or 1292.17(d) and administrative reviews conducted under 8 C.F.R. § 1292.18.

(5) In addition to establishing the requirements for partial accreditation, an organization seeking full accreditation for an individual pursuant to 8 C.F.R. § 1292.12(a)(6) must establish that the individual possesses "skills essential for effective litigation." Such skills include, at a minimum, "the ability to advocate a client's position at a hearing before an Immigration Judge by presenting documentary evidence and questioning witnesses, to present oral arguments before the Board, and to prepare motions and briefs for consideration by an Immigration Judge and/or [the] Board." Matter of EAC, Inc., 24 I&N Dec. 556 (BIA 2008), followed.

McHENRY, Director:

The Office of Policy, through the Office of Legal Access Programs (OLAP), currently administers the Executive Office for Immigration Review's (EOIR's) recognition and accreditation program (R&A Program). On October 16, 2019, OLAP approved the application of Bay Area Legal Services, Inc. (Applicant) for recognition under 8 C.F.R. § 1292.11. It also approved a request to extend recognition of the Applicant's principal office to various extension offices under 8 C.F.R. § 1292.15.

Page 838

Applicant also submitted a request for full accreditation for Carlos Betancourt under 8 C.F.R. § 1292.12. On October 16, 2019, OLAP disapproved the request for full accreditation for Mr. Betancourt but approved the application for partial accreditation for him. On December 16, 2019, OLAP received a request for reconsideration of the disapproval of the application for full accreditation for Mr. Betancourt pursuant to 8 C.F.R. § 1292.13(e). On February 19, 2020, OLAP denied the request for reconsideration.

On February 21, 2020, I provided notification to Applicant that I would review the denial of the reconsideration request on my own initiative pursuant to 8 C.F.R. § 1292.18(a)(2). In that notification, I further specified the following issues to be reviewed:

(1) Is the 30-day deadline for a request for reconsideration in 8 C.F.R. § 1292.13(e) (and in § 1292.16(f) and § 1292.17(d)) subject to equitable tolling? If so, what circumstances may warrant such tolling?

(2) What is the appropriate legal standard for evaluating a request for reconsideration pursuant to 8 C.F.R. § 1292.13(e) (or § 1292.16(f) or § 1292.17(d))?

(3) What is the appropriate standard of review for an administrative review conducted under 8 C.F.R. § 1292.18?

(4) Are prior precedent decisions of the Board of Immigration Appeals (the Board) in recognition and accreditation (R&A) cases binding on consideration of requests for reconsideration pursuant to 8 C.F.R. §§ 1292.13(e), 1292.16(f), or 1292.17(d) and on administrative reviews conducted under 8 C.F.R. § 1292.18?

Pursuant to 8 C.F.R. § 1292.18(b), I also notified Applicant that it could submit additional filings, including a brief, on these issues and that it could submit any additional evidence related to the denial of the request for reconsideration. Any additional filings by Applicant were due by March 13, 2020. I further invited interested members of the public to file amicus curiae briefs on the aforementioned issues.1

Page 839

Applicant did not file any additional materials or a brief. One organization filed an amicus curiae brief.

For the reasons set forth below, I affirm OLAP's denial of the request for reconsideration.2

I. BACKGROUND

"The purpose of the [R&A Program] is to provide competent and affordable immigration legal services to persons of limited means through reputable nonprofit organizations." Matter of St. Francis Cabrini Immigration Law Center, 26 I&N Dec. 445, 446 (BIA 2014). Through the R&A Program, EOIR permits qualified non-attorneys to represent aliens before the Department of Homeland Security (DHS), the immigration courts, and the Board of Immigration Appeals (the Board). Organizations recognized by EOIR may "provide representation through accredited representatives who appear on behalf of clients before the Immigration Courts, the Board, and DHS, or DHS alone." 8 C.F.R. § 1292.11(a). EOIR "may approve accreditation of an eligible individual as a representative of a recognized organization for either full or partial accreditation." Id. § 1292.12(a). "An individual who receives full accreditation may represent clients before the Immigration Courts, the Board, and DHS. An individual who receives partial accreditation may represent clients only before DHS." Id. An organization applying for accreditation for an individual must specify whether it seeks partial or full accreditation for that individual. Id. In addition to the requirements for partial accreditation, id. §§ 1292.12(a)(1)-(6), an organization seeking full accreditation "must establish that the individual also possesses skills essential for effective litigation." Id. § 1292.12(a)(6).

Page 840

The Department of Justice has maintained a formal R&A Program since at least the mid-1970s. See Representation and Appearance Before Immigration and Naturalization Appeals, 40 Fed. Reg. 23,271 (May 29, 1975). Until 2017, oversight of the Service and Board of Immigration R&A Program within EOIR lay with the Board, and the Board occasionally published decisions in R&A proceedings to provide guidance for those seeking recognition or accreditation. See, e.g., Matter of American Paralegal Academy, Inc., 19 I&N Dec. 386 (BIA 1986) (interpreting the phrase "nominal charges" for purposes of recognition under then-8 C.F.R. § 292.2(a)).

In 2015, EOIR proposed several changes to the R&A Program, including the transfer of responsibility for it from the Board to OLAP. See Recognition of Organizations and Accreditation of Non-Attorney Representatives, 80 Fed. Reg. 59,514 (Oct. 1, 2015). The rule effectuating those changes was finalized on December 19, 2016, and became effective on January 18, 2017. See Recognition of Organizations and Accreditation of Non-Attorney Representatives, 81 Fed. Reg. 92,346 (Dec. 19, 2016). The final rule contained multiple changes from the proposed rule, including the addition of a reconsideration process and a process for further administrative review by the Director. Id. at 92,357. Pursuant to the final rule, disapprovals of recognition or accreditation requests, disapprovals of requests for renewal of recognition or accreditation, and terminations of recognition or accreditation on particular bases are each subject to one request for reconsideration filed by an applicant within 30 days of the relevant decision. 8 C.F.R. §§ 1292.13(e), 1292.16(f), and 1292.17(d).3 The Director has discretionary authority to review a denial of a request for reconsideration in these three circumstances. Id. § 1292.18(a).4

As discussed further below, the changes brought about by that rule raised several procedural questions that were unanswered by the rule itself. Some of those questions have been addressed through subsequent rulemakings.

Page 841

See, e.g., Board of Immigration Appeals: Affirmance Without Opinion, Referral for Panel Review, and Publication of Decisions as Precedents, 84 Fed. Reg. 31,463, 31,469 (July 2, 2019) (adding language to 8 C.F.R. § 1292.18 to make clear that decisions in R&A proceedings may still be designated as precedential and that R&A cases may still be referred to the Attorney General for review even after the transfer of responsibility for the R&A Program from the Board to OLAP).5 Other questions remain open, particularly involving the reconsideration and administrative review processes added in the final rule. As Applicant's case presents several of these questions, the instant adjudication provides an appropriate opportunity to fill in some of the gaps left by the 2016 rulemaking and to provide guidance for future adjudications in R&A proceedings.

II. ISSUES

Applicant's request for reconsideration was subject to a 30-day deadline and appears to have been untimely filed. Therefore, the first question raised is whether there is any basis to extend that deadline and to consider Applicant's request notwithstanding its untimeliness. Additionally, although OLAP denied the request as untimely, it denied the request on the merits in the alternative. Consequently, Applicant's case also raises the question of what such a request must demonstrate in order to warrant consideration on its merits. As OLAP's decision was subject to administrative review, the case further presents the question of what standard should govern such reviews. Finally, the merits of Applicant's request appear to be controlled by a prior Board precedent. Thus, the question of the continued applicability of that precedent is also at issue in Applicant's case. Each...

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