EOIR Embroiled In Controversy On Several Fronts!

Few agencies in the U.S. Government are as publicity and conflict averse as the Executive Office for Immigraton Review (“EOIR,” pronounced “Eeyore”), a division of the U.S. Department of Justice that houses the U.S. Immigration Court system. So, officials at EOIR and their DOJ handlers must be “going bananas” (when they aren’t preoccupied with the Comey firing) about several recent news items that cast an unwelcome spotlight on the agency.

First, super-sleuth NPR reporter Beth Fertig smoked out the story of ex-con Carlos Davila (12 years in prison for first-degree manslaughter and  sexual abuse while on parole) who is using the EOIR “recognition and accreditation” program to practice law (without a license) under the guise of being a “nonprofit charitable organization.” Davila is apparently under investigation by EOIR, but continues to practice.

As a result of Beth’s story, New York Congresswoman Nydia Velázquez  has asked the House Judiciary Committee to investigate the program.

As noted in the article, the “R&A” program, allows well-qualified non-attorneys working at reputable nonprofit charitable organizations to represent migrants in Immigration Court and/or before the DHS. The R&A program fills a critically important role in providing due process in the U.S. Immigration Courts. This is particularly true today, in light of increased enforcement and very limited pro bono and “low bono” immigration attorney resources.

The Davila situation, as described by Beth, sounds like a scam to me.  Under the regulations, “accredited representatives” are supposed to be working for “recognized organizations” — nonprofits that provide legal services (usually along with other types of social services) on a largely pro bono basis.

Only “nominal fees” can be charged. But the term “nominal fees” has never been defined. We worked on it, off an on, for most of my tenure as BIA Chair in the late 1990s and never could come up with a specific definition that was acceptable to both NGOs and bar associations.

From the article, it appears to me that Davila is actually running a profit-making law firm for himself and his staff under the “shell” of a non-profit.  For example, charging someone $200 for a piece of paper that basically restates their rights under the Constitution, the INA, and the regulations seems far beyond a “nominal fee.” The research is simple, and the card itself could be printed off for a few cents a copy. So, $200 seems grossly excessive.

Also, fees of $1,000 to $3,500 for asylum applications seem to be beyond “nominal fees.”  If fact, that’s probably close to what some legitimate “low bono” law firms would charge. So, it seems like Davila is really practicing law for a living without a license, rather than providing essentially pro bono services for a charitable organization.

I agree that there should be more thorough investigation and vetting of organizations and accredited representatives by EOIR. This seems like something that should be right up Attorney General Sessions’s alley.

To my knowledge, EOIR does not currently employ any “investigators” who could be assigned to the EOIR staff working on the recognition and accreditation program. But there are tons of retired FBI agents and DHS agents out there who could be hired on a contract basis to do such investigations. Given the money that this Administration is planning to throw at immigration enforcement, finding funds for a needed “upgrade” to this program should not be a problem.

Here are link’s to Beth’s initial article and the follow-up:



The second controversial item concerns an ongoing dispute between the Federation for American Immigration Reform (“FAIR”) and the Immigration Reform Law Institute (“IRLI”) on one side and the Southern Poverty Law Center (“SPLC”)  and other immigrants’ rights groups on the other. In  2014, the SPLC and other advocacy groups requested that the BIA “strike” an amicus brief filed by FAIR and IRLI because, among other things, FAIR was a “hate group.” FAIR responded by asking EOIR to discipline the SPLC and other advocacy group attorneys involved for “unprofessional conduct.”

On March 28, 2016, the EOIR Disciplinary Counsel issued a confidential letter finding that the SPLC and related attorneys had engaged in professional misconduct. However, in lieu of formal disciplinary proceedings, the Disciplinary Counsel issued a “reminder” to the concerned attorneys “that practitioners before EOIR should be striving to be civil and professional in their interactions with each other, the public, and the Board and Immigration Courts.”

But, that was not the end of the matter. On May 8, 2017, the IRLI published the “confidential” letter of discipline on the internet, stating:

“Although the SPLC’s utter lack of ethics was thoroughly condemned by the DOJ, the agency inexplicably requested that FAIR keep their conclusions confidential. FAIR and IRLI have complied with the request for more than a year; however, in that time, the SPLC has continued and escalated its attacks on both FAIR and IRLI, likely in part in retaliation for FAIR and IRLI filing a complaint with DOJ regarding its conduct. At this time, IRLI has decided it must release the letter to defend itself and protect its charitable purposes.”

So, now, the EOIR “confidential” letter is sitting smack dab in the middle of what looks like the “Hundred Years War” between FAIR and the SPLC.  Not the kind of “stuff” that EOIR and DOJ like to be involved in!

On the plus side, perhaps in response to this situation, the BIA in 2015 changed its amicus procedures to publicly request briefing from any interested party in matters of significant importance that likely will lead to precedent decisions. Indeed, a number of such notices have been published on this blog.

Here’s a copy of the IRLI posting which contains a link to the 2014 “confidential” letter from the EOIR Disciplinary Counsel.


Stay tuned.








EOIR Hits The Airwaves with First YouTube Release — See The Blockbuster Hit “Recognition And Accreditation Programs — 2016” Starring Steven Lang and Peggy Gleason! Learn About The Recently Revised Procedures For Recognition and Accreditation!



This is “Must See TV” for all NGOs who practice, or wish to practice, before the U.S. Immigration Court and the DHS!  An impressive offering for an agency that houses the only major U.S. court system unable to implement the not-so-new technology for electronic filing!




Legal Representation Funds & Accredited Representatives — A Smarter Approach For “Sanctuary Cities?”


Nolan Rappaport writes in The Hill:

“A few days after the Chicago City Council approved Mayor Emanuel’s Legal Protection Fund, Los Angeles officials announced that they had created a legal defense fund too. With help from philanthropists, Los Angeles established a $10 million fund to provide legal assistance for the city’s undocumented immigrants who are placed in removal proceedings.

These funds are an extension of their sanctuary city status to protect undocumented immigrants.

Chicago passed such an ordinance four years ago which provides that police can only give federal immigration officers information on undocumented immigrants that have arrest warrants out on them or are convicted criminals. This only applied to Chicago.

California, Connecticut, New Mexico, and Colorado have made their entire states immigrant sanctuaries.

Point No. 4 in President-Elect Trump’s 10-Point Plan to Put America First calls for an end to sanctuary cities, which presumably will be done by threatening to withhold federal funds from cities that refuse to cooperate with his administration’s enforcement program.

Mayor Emanuel’s Legal Protect Fund may be a more effective way to protect undocumented immigrants from deportation and it should avoid that threat.

The benefit of legal representation is illustrated by TRAC statistics which show that the likelihood of success with an asylum application is much higher with representation [chart omitted].”


New York City has also done some outstanding work on providing representation to needy migrants in Immigration Court.  In the full article, Nolan also points out that EOIR’s recently revised program for non-attorney Accredited Representatives — now administered by the Office of Legal Access Programs (“OLAP”) rather than the Board of Immigration Appeals (“BIA”) — presents important opportunities for improving and expanding  pro bono representation.

Additionally, Professor Michele Pistone of Villanova Law School is developing a revolutionary “modular training program” for Accredited Representatives that could dramatically increase both the number and quality of those willing to serve nonprofit organizations in this currently underutilized capacity.

Looks like lots of creative thinking combined with effective action is going on among the members of the immigration pro bono community.  Providing and facilitating representation is is probably the most important aspect of providing due process in Immigration Court.  In stark contrast to these efforts by the non-Federal sector, the “prioritization” of cases of recently arrived families by the U.S. Department of Justice has seriously impeded due process in contravention of the mission and vision of the U.S. Immigration  Courts.