Friend of the Court

DM 22-06

Issued: May 5, 2022

Effective: Immediately

FRIEND OF THE COURT

PURPOSE:

Provide updated guidance on utilizing the Friend of the

Court model in removal proceedings before the immigration

courts; rescind and cancel Policy Memorandum 20-05.

OWNER:

David L. Neal, Director

AUTHORITY:

8 C.F.R. § 1003.0(b)

CANCELLATION:

Policy Memorandum 20-05

I. Introduction

The Executive Office for Immigration Review (EOIR) supports systems and tools that assist the

immigration courts with effective and efficient case management. The Friend of the Court model

is a valuable tool, assisting pro se respondents in navigating the complex immigration court

system, and thereby creating greater efficiency and fairness by helping respondents to better

understand court proceedings. Immigration courts have already used the Friend of the Court model

successfully to assist with dockets involving unaccompanied children and family groups.

Given the benefits that this model provides the immigration courts and those who appear before

them, the agency welcomes and encourages the participation of Friends of the Court in all types

of immigration court proceedings involving unrepresented respondents. Accordingly, Immigration

Judges and court staff are urged to accommodate and facilitate Friends of the Court within the

scope described by this memorandum and in accordance with applicable law and other agency

guidance. This Director’s Memorandum (DM) cancels and replaces Policy Memorandum (PM)

20-05, Legal Advocacy by Non-Representatives in Immigration Court (Nov. 21, 2019), in order to

provide updated guidance on the Friend of the Court model.

See Memorandum from Brian O’Leary, Chief Immigration Judge, The Friend of the Court Model for

Unaccompanied Minors in Immigration Proceedings (Sept. 10, 2014) (O’Leary Memorandum). This memorandum

stressed the special attention warranted in unaccompanied children’s cases, given the particular vulnerability of child

respondents.

PM 20-05 rescinded the O’Leary Memorandum previously referenced. Although this memo rescinds PM 20-05, it

does not reinstate the O’Leary Memorandum. Rather, this DM provides guidance consistent with the O’Leary

Memorandum and applies to all unrepresented respondents.

II. Definition of the Friend of the Court

A Friend of the Court is defined as an individual or organization that participates in an immigration

court proceeding in order to facilitate the flow of information in the courtroom. The role of a Friend

of the Court is to increase pro se respondents’ understanding of the proceedings, as well as their

rights and obligations, to the greatest extent possible. See generally 4 Am. Jur. 2d, Amicus Curiae,

§ 1. A Friend of the Court, however, is neither a party nor a representative of a party in the

proceeding. See generally 4 Am. Jur. 2d, Amicus Curiae, § 5.

As described more fully below, the Friend of the Court may call attention to law or facts that may

be helpful to the court and is permitted to provide information to the Immigration Judge.

However, because the Friend of the Court is not a representative of a party in proceedings, the

Friend of the Court cannot submit any filings in a case, including but not limited to, applications,

appeals, pleadings, or motions.

III. Facilitating Friends of the Court

Assistant Chief Immigration Judges (ACIJs) and Court Administrators should encourage and

advance court practices that facilitate the assistance of Friends of the Court. Relatedly, the Chief

Immigration Judge should designate a Regional Deputy Chief Immigration Judge who will be

responsible for coordinating the immigration courts’ practices with respect to Friends of the Court.

ACIJs should also consult with EOIR’s Legal Access Programs (LAP) to strengthen the agency’s

legal access efforts and better coordinate the agency’s support of the Friend of the Court model.

ACIJs are also encouraged to consult with one another, individually or collectively, to share best

practices, lessons learned, and insights into facilitating this participation. Further, the Office of the

Chief Immigration Judge (OCIJ) should periodically compile the best practices, lessons learned,

and insights on facilitating this participation, and transmit that information to EOIR’s LAP, which

may benefit from the on-the-ground experiences of Immigration Judges and court personnel.

IV. Role Served by the Friend of the Court

While the immigration court has discretion to determine the scope of assistance provided by a

Friend of the Court, the following examples are ways in which a Friend of the Court can

appropriately assist the court and increase the respondent’s comprehension of and participation in

their own proceedings.

A. Help with courtroom mechanics. Examples of how a Friend of the Court can assist

the immigration court include:

See Skolnick v. State, 388 N.E.2d 1156 (Ind. App. 1979); Keenan v. Bd. of Chosen Freeholders, 255 A.2d 786

(N.J. Super. Ct. App. Div. 1969); Kline v. Weaver, 348 S.W.2d 379 (Tex. Civ. App. 1961).

Nothing in the memo is intended to restrict a pro se respondent from filing a document with which a Friend of the

Court has assisted them, where the Friend of the Court is acting as an associate of a non-profit organization who

self-identifies and discloses their assistance on the pro se filing. See

Nw. Immigrant Rts. Project. v. Sessions, 17-

cv-00716 (W.D. Wash. July, 27, 2017)

1. Provide courtroom orientation. A Friend of the Court can help the court identify the

respondent in the courtroom, guide the respondent around the courtroom, sit with

the respondent during proceedings, assist the respondent in receiving paperwork,

and assist the respondent in identifying documents requested by the Immigration

Judge.

2. Facilitate communication. Although the Immigration Judge remains responsible for

explaining courtroom procedures and the respondent’s rights in immigration

proceedings, the Friend of the Court can reinforce this information, seek

clarification from the Immigration Judge at the respondent’s request, or alert the

Immigration Judge if the Friend of the Court learns or believes that the respondent

does not understand.

3. Help explain courtroom functions and procedures in the courtroom. The Friend of

the Court can explain the roles of various actors in the courtroom, including the

interpreter and Government counsel.

B. Communicate helpful information pertinent to the respondent’s case. The Friend

of the Court aids the court by bringing attention to information relevant to the status of

the respondent’s case without compromising the integrity of the adjudication. Some

illustrations of how a Friend of the Court can help in this regard:

1. Information regarding a child’s reunification or an adult’s release plan. In detained

cases, the Immigration Judge may need information regarding a child’s possible

reunification with family members or others. This information can assist the

Immigration Judge to determine what steps to take in the case (e.g., whether and

for how long a continuance is warranted). The Friend of the Court can provide the

court with information regarding the party with whom the child is seeking

reunification and how long the process is expected to take. Similarly, the

Immigration Judge may need information regarding a detained adult’s possible

release plan and intentions after release from detention to determine next steps in

the case.

2. Information regarding efforts to secure representation. The Friend of the Court can

update the court regarding the status of any pro bono placement for the respondent’s

case. This information can also aid the court in making decisions about when the

case can fairly proceed.

3. Information regarding communication. The Friend of the Court can communicate

to the court any special needs that the respondent may have with respect to the

proceedings. For example, the Friend of the Court can inform the court when the

judge might consider another language or dialect for interpretation to ensure or

enhance the respondent’s understanding of the proceedings.

C. Communicate information regarding competency. The Friend of the Court can

also bring any mental health concerns to the court’s attention, or alert the court to

particularly sensitive or discrete issues related to that specific respondent.

addition, the Friend of the Court might suggest safeguards and/or other effective ways

to adapt the proceeding in ways that may help a respondent with special

circumstances, such as a child, an individual with special needs, or a member of a

vulnerable group.

D. Provide basic assistance with certain forms. For example:

1. Change of Address Form. The Friend of the Court can assist the respondent in

filling out the Change of Address form (Form EOIR-33/IC). The responsibility of

filing the form with the immigration court rests on the respondent, but the Friend

of the Court can help ensure that the form is filled out completely and is properly

submitted to the court and the Department of Homeland Security in a timely

manner.

2. Other Forms. As appropriate, based on form instructions and applicable law and

regulation, and consistent with such rules related to preparer attestations, the Friend

of the Court could assist respondents with preparation of certain other forms

pertinent to immigration proceedings.

E. Facilitate attendance at hearings. Some examples of how a Friend of the Court can

assist the immigration court include:

1. Reinforce the Immigration Judge’s order or statement regarding future hearings.

The Friend of the Court can help the respondent’s understanding of the

Immigration Judge’s order or statement regarding the need to return to court for

future hearings and can reinforce the Immigration Judge’s advisals regarding the

potential consequences for failing to appear. The Friend of the Court could also

seek clarification from the Immigration Judge at the request of the respondent, or

alert the Immigration Judge if the Friend of the Court learns or believes that the

respondent does not understand. The Friend of the Court also might request that

the Immigration Judge restate or reinforce the importance of the respondent’s

appearing at future hearings.

Regardless of the presence of a Friend of the Court, if the Immigration Judge determines there are indicia of

incompetency, the Immigration Judge must conduct a further inquiry to determine whether the respondent is

competent for purposes of immigration proceedings and shall evaluate and apply appropriate safeguards if the

respondent lacks sufficient competency to proceed. See Matter of M-A-M-, 25 I&N Dec. 474, 481-84 (BIA 2011)

(stating that Immigration Judges may accept evidence related to a respondent’s mental health or competency from

third parties); see also Franco-Gonzales v. Holder, CV 10-02211, Partial Judgment and Permanent Injunction (C.D.

Cal. Apr. 23, 2013); Franco-Gonzales v. Holder, CV 10-02211, Order Further Implementing This Court’s

Permanent Injunction (C.D. Cal. Oct. 29, 2014) (requiring safeguards and protections for detained unrepresented

class members in California, Arizona or Washington, who have been identified either pursuant to a bona fide doubt

finding by an Immigration Judge or by the Department of Homeland Security as having a serious mental disorder or

condition that may render them incompetent to represent themselves); EOIR’s Chief Immigration Judge policy dated

April 22, 2013, entitled “Nationwide Policy to Provide Enhanced Procedural Protections to Unrepresented Detained

Aliens with Serious Mental Disorders or Conditions” (“Nationwide Policy”).

2. Provide logistical support with regard to future hearings. Where appropriate, the

Friend of the Court can explain to the respondent (or the respondent’s custodian or

adult caregiver, where applicable) the options for transportation to the court and

the requirements for entering the court building. The Friend of the Court could

provide reminders to the respondent about their upcoming hearing and what

documents to bring. The Friend of the Court could also provide general

information to the respondent regarding how to obtain documents that the court

has requested.

F. Serve as a liaison. Where appropriate, a Friend of the Court can help connect the

respondent with available community resources, including referral to pro bono legal

and social service providers. The Friend of the Court can also serve as a liaison between

the respondent and Government agencies (e.g., assisting the respondent in obtaining

general information regarding asylum and adjustment of status procedures before the

U.S. Citizenship and Immigration Services).

V. Immigration Court Flexibilities

A. Courtroom Practices. Immigration Judges are strongly encouraged to be flexible,

particularly in the scheduling of hearings in which a Friend of the Court may wish to

participate. Where practicable and appropriate, Immigration Judges should give

Friends of the Court priority scheduling at master calendar hearings when requested,

as well as consider creating a “friend of the court docket” for a particular time of the

week or month to accommodate and foster the participation of Friends of the Court.

B. Participation by Remote Technology. Immigration Judges should be flexible when a

Friend of the Court seeks to participate via remote technology, such as by telephone or

through video teleconference. As respondents are often detained in locations that are

not readily accessible, remote technology facilitated by the immigration court can be

an important means for a Friend of the Court to communicate with the respondent.

Where EOIR video teleconferencing is available in conjunction with a scheduled

hearing and the request to use the equipment is reasonable, courts should allow the use

of EOIR video teleconferencing equipment to communicate with the respondents, as

long as the use of video teleconferencing by Friends of the Court does not disrupt

essential court operations.

VI. Friend of the Court Considerations

The following practices are essential to the successful application and utilization of the Friend of

the Court model.

A. Clarity on the Friend of the Court’s Role.

1. Explanation to the respondent. The Immigration Judge should clearly explain to

the respondent (or the respondent’s custodian or adult caregiver, where

applicable) that the Friend of the Court is an independent advisor to the court, not

the respondent’s attorney, and that the Friend of the Court is there to provide

information to the court at that day’s hearing. The Immigration Judge should

ensure that the record is clear that the respondent is not represented and that the

Friend of the Court is participating in the hearing in this limited capacity. The

Immigration Judge should take particular care when explaining the Friend of the

Court’s role and the party’s representation status to children, adults of limited

competence, and other vulnerable groups. To the extent possible, the Immigration

Judge should establish for the record that the respondent understands that the

Friend of the Court is not her or his attorney.

2. Special considerations for representatives. Attorneys who are present as Friends

of the Court should note the ethical obligations that may apply to implied

attorney-client relationships and take steps to avoid such an implication. See

Professional Ethics Committee for the State Bar of Texas, Op. No. 628 (May

2013) (an attorney who intends to appear as Friend of the Court in fact creates an

attorney-client relationship by implication “if the lawyer knows a person

reasonably expects him to provide legal services but does nothing to correct that

misapprehension.”). This ethical obligation underscores the importance of

expressly articulating on the record and making clear for the respondent the role

and limitations of a Friend of the Court.

B. Representation. The Friend of the Court is without authority to accept or concede

service, admit factual allegations, enter pleadings, request a removal order or relief

from removal, or seek or waive appeal on behalf of the respondent.

C. Pro Bono Representation. While the Friend of the Court has a useful role to play in

assisting the court and enhancing a respondent’s comprehension of proceedings, the

Friend of the Court is not intended to be a substitute for a legal representative.

Immigration Judges and Court Administrators are still encouraged to allow time for

respondents to obtain counsel and to facilitate pro bono representation. See DM 22-01,

Encouraging and Facilitating Pro Bono Legal Services (October 22, 2021).

VII. Conclusion

The Friend of the Court model is a useful tool for immigration courts. This model is all the more

beneficial in cases involving unaccompanied children, adults with competency issues, and other

particularly vulnerable groups. Serving as an aide to the court, the Friend of the Court can facilitate

greater efficiency in the adjudication of cases and enhance the respondent’s understanding of their

proceedings. While there are clear boundaries to the Friend of the Court model, Immigration

Judges should encourage participation of Friends of the Court in the hearings before them when

no legal representation is present.

Only an individual who has entered an appearance on the respondent’s behalf on the appropriate designated form

may perform these functions. A Friend of the Court, by definition, has not entered an appearance on the

respondent’s behalf, and, thus, lacks such authority. See 8 C.F.R. § 1292.4(a).

The examples used in this memorandum are by no means exhaustive, but are intended to provide

a clear indication of the value of a Friend of the Court to both immigration courts and respondents,

and to provide best practices that can be applied when the Friend of the Court model is applied.

This DM is not intended to, does not, and may not be relied upon to create any right or benefit,

substantive or procedural, enforceable at law or in equity by any party against the United States,

its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Please contact your supervisor if you have any questions regarding this DM.

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