EOIR Proposes New Authority to Fine Lawyers, Witnesses, and Immigrants in Court

Immigration judges could soon gain new powers to fine lawyers, witnesses, and immigrants for contemptuous conduct in court under a detailed rule proposed by the Executive Office for Immigration Review (EOIR) to implement a long-standing authority in federal immigration law.

Published in the Federal Register, the notice of proposed rulemaking would allow civil monetary penalties ranging from $1,000 to $3,500 for specific types of misconduct that delay, disrupt, or obstruct removal proceedings. The proposed framework includes mandatory warnings, written findings, a separate contempt record, an appellate process, and internal oversight. Public comments are due Sept. 28 and must be submitted electronically through Regulations.gov.

Statutory Authority Long on the Books

Congress first gave immigration judges statutory contempt authority in 1996 when it enacted section 240(b)(1) of the Immigration and Nationality Act (INA) as part of the Illegal Immigration Reform and Immigrant Responsibility Act. That provision authorizes immigration judges, under regulations prescribed by the Attorney General, to sanction contemptuous actions or inactions through civil money penalties. However, it required the Department of Justice (DOJ) to formally define and delineate that authority by rule.

In 2006, then-Attorney General Alberto Gonzales directed EOIR to draft a rule establishing a “strictly defined and clearly delineated authority” to impose civil penalties for contempt, arguing that judges should have the necessary tools to control their courtrooms and protect the adjudicatory system from fraud and abuse. Despite that directive and existing practitioner discipline rules, immigration judges have never received direct sanctioning power. Consequently, they remain limited to filing disciplinary complaints against attorneys and accredited representatives just as any member of the public would.

The proposed rule relies on INA section 103(g), as amended by the Homeland Security Act, which preserves the Attorney General’s authority to issue regulations and review immigration determinations. It also draws upon INA section 240(b)(1), which explicitly authorizes civil penalties for contemptuous conduct in immigration court.

Backlog and Administration Priorities

EOIR frames the proposal as both an implementation of congressional intent and a necessary response to practical pressures in the nation’s immigration courts. Citing a backlog of more than 3.5 million pending cases, the agency called it “imperative” to give judges every tool available—including the authority to impose civil monetary penalties—to control court proceedings and address conduct that prevents efficient case completion.

The Department of Justice also linked the rule to broader administration goals, pointing to a presidential memorandum on preventing abuses of the legal system and federal court proceedings. The agency described the contempt authority as consistent with ongoing efforts to combat fraud and abuse within the legal system. According to the rule’s preamble, the regulation intends to promote the fair, efficient, and consistent adjudication of immigration proceedings while upholding the dignity and authority of immigration courts.

Who Could Be Fined—and Who Is Exempt

The proposed rule would not give judges blanket power to fine anyone appearing in court. Instead, it identifies three distinct categories of “covered individuals” subject to potential penalties.

First, the rule applies to attorneys and representatives defined in EOIR regulations who have filed a Form EOIR-28 to enter an appearance, or a Form EOIR-61 to enter a limited appearance for document assistance. Second, it includes noncitizens who are respondents in removal proceedings. Third, it covers witnesses testifying in immigration court, whether appearing in person, by telephone, or via video in internet-based hearings.

At the same time, the rule explicitly exempts certain government actors. Immigration judges could not impose civil penalties on attorneys representing the federal government, nor on witnesses who are current federal employees or contractors acting in their official capacity. The Department of Justice noted that government attorneys are already subject to oversight by the Department of Homeland Security’s Office of Inspector General and DHS attorney discipline procedures. Federal ethics regulations similarly place responsibility for disciplining federal employees on their respective employing agencies. Contemptuous conduct by federal personnel testifying in an official capacity is therefore better addressed by their employing agency rather than through EOIR civil penalties.

What Conduct Would Trigger Penalties

EOIR proposes an exclusive list of five conduct types that could trigger sanctions, emphasizing that both actions and failures to act qualify if they meaningfully interfere with adjudication.

Immigration judges could initiate penalty proceedings only after making a prima facie determination that a covered individual engaged in one or more specified behaviors, and that the conduct delayed, disrupted, or obstructed the adjudicatory process.

The first category includes repeated failures by attorneys or representatives to appear—or to appear on time—for scheduled hearings or prehearing conferences without good cause. The second covers repeated failures by any covered individual to comply with orders to timely file pleadings, applications, prehearing statements, or evidentiary submissions. The third addresses disorderly or abusive behavior and language in or around the courtroom, as well as abusive language in written court filings.

The fourth category covers knowingly or recklessly making a false statement of material fact or law, or offering false evidence. For attorneys, this includes failing to take appropriate remedial measures after learning that prior statements or evidence were false. The fifth category applies to willfully misleading, misinforming, threatening, or deceiving any person—including case parties, officers, or DOJ employees—about a matter relevant to the case.

The preamble clarifies that abusive language includes statements impugning the court’s integrity, unfairly maligning a judge’s competence or impartiality, defaming individuals, or inappropriately accosting anyone in court.

To guard against penalties for minor or unavoidable lapses, EOIR specified that “repeated failure” targets persistent, sustained misconduct causing actual prejudice. Judges are instructed to consider mitigating factors—such as proper notice, remote technology glitches, emergency medical issues, and severe weather disruptions—when assessing good cause. However, the DOJ noted that attorneys and representatives should not regularly encounter external circumstances justifying repeated, inexcusable delays.

Warnings and Due Process Steps

The draft rule is structured to make civil penalties a last resort. Describing contempt fines as an “extraordinary sanction,” it instructs immigration judges to exhaust other available means before initiating penalty proceedings. For example, judges retain existing remedies such as deeming missed filings waived, admitting unopposed evidence, or referring practitioners to EOIR disciplinary counsel.

Before initiating the penalty process, an immigration judge must issue a clear and specific warning. The warning must describe the specific conduct at issue, explain why it falls under contempt regulations, advise that continuing the behavior could trigger civil fines, and notify the individual of their right to respond orally on the record or in writing within 10 days.

If the individual is present when the conduct occurs, the judge must deliver an oral warning on the record and later memorialize it in writing; if the individual is absent, the warning must be issued in writing. In either scenario, a written warning or memorialization must be served in person or sent to the individual’s registered physical or email address and retained in the official record.

Warnings remain effective for one year across all cases. A warning issued in a case that is subsequently transferred to another immigration court still supports penalties if the conduct recurs. Similarly, a warning regarding abusive language applies to any further abusive language in any proceeding for full a year. If a civil penalty has already been imposed, that prior order functions as a formal warning for any similar misconduct occurring within the following year.

Only if the covered individual persists in the same contemptuous behavior after receiving a warning may the judge make a finding on the record and proceed with the civil penalty process.

Notice of Intent and Contempt Record

The formal process begins when an immigration judge serves a Notice of Intent to Impose Civil Money Penalty, known as a CMP Notice. The notice must be served by mail, personal service, or electronically via a practitioner’s eRegistry email address.

The CMP Notice must identify the individual by name and address, provide a detailed factual description of the conduct, set out specific contempt charges under the regulation, explain how the conduct obstructed proceedings, outline prior warnings, and state the proposed penalty amount according to the established schedule.

Additionally, the notice outlines the next procedural steps. It informs the individual that the matter is being referred to the Chief Immigration Judge for a decision, advises them of a 30-day window to file a written response, notes the option to request a single seven-day extension for good cause, and highlights their right to legal representation at no expense to the government.

To respond, the individual must submit a written statement containing their identifying details, position on the charges, and supporting documentary evidence. Represented individuals must have their counsel file an EOIR-28 appearance form directly with the Chief Immigration Judge.

Upon issuing a CMP Notice, the court must create a separate “contempt Record of Proceeding” completely distinct from the underlying immigration case file. This record contains the statements and documents that sparked the allegation, prior warnings, responses, the CMP Notice, and all related filings. Oral warnings or statements given on the record must be transcribed, while unrecorded statements must be summarized in writing by the judge.

Decision by the Chief Immigration Judge

Under the proposed framework, trial-level immigration judges would not impose the fines themselves. Once a CMP Notice is served and the response period expires, jurisdiction shifts exclusively to the Chief Immigration Judge, who must issue a written decision based solely on the contempt record. The Chief Immigration Judge may designate a permanent Deputy Chief Immigration Judge to decide cases, subject to conflict-of-interest rules. If the Chief Immigration Judge originally initiated the CMP Notice, the EOIR Director must appoint an independent senior adjudicator to decide the matter.

To impose a penalty, the deciding official must conclude by clear and convincing evidence that four elements have been met: the individual is covered under the rule, the alleged conduct actually occurred, the behavior falls within one of the five regulatory categories, and the immigration judge properly provided required warnings and served the notice.

If these criteria are met, the decision will specify the penalty amount within the regulatory range and provide payment instructions. The order must also notify the individual of their right to appeal to the Board of Immigration Appeals (BIA) within 10 days.

Conversely, if the evidence is insufficient, or if the proceeding involves a noncitizen respondent who was removed or departed the country before a decision was reached, the Chief Immigration Judge must dismiss the notice with prejudice. Such dismissals are final and non-appealable.

Final orders are served using EOIR’s standard methods. If no appeal is filed, the Chief Immigration Judge’s decision becomes the final agency action. If an appeal is filed, the obligation to pay the fine is automatically stayed pending a decision by the Board.

Penalty Amounts and Factors

Rather than leaving fine amounts entirely to judicial discretion, the proposed rule establishes a fixed penalty schedule based on an individual’s prior contempt history.

For a first contempt order, the fine ranges from $1,000 to $1,500. A second order carries a fine between $1,500 and $2,500, while any subsequent order triggers a fine ranging from $2,500 to $3,500.

When proposing or imposing penalties, officials must consider several non-exclusive factors, including the administrative delays or costs caused by the conduct, the egregiousness and pervasiveness of the behavior, the likely deterrent effect, and any prior offenses. Neither the Chief Immigration Judge nor the Board may increase a fine beyond the amount originally proposed in the CMP Notice.

The Department of Justice noted that while it considered case-by-case discretion similar to federal court civil contempt, a fixed schedule better promotes consistency across all immigration courts. The department plans to review penalty amounts periodically and adjust them for inflation under the Federal Civil Monetary Penalties Inflation Adjustment Act.

Appeals and New EOIR Form

Individuals ordered to pay civil fines can appeal to the Board of Immigration Appeals by filing a new Form EOIR-86, Notice of Appeal of a Civil Money Penalty for Contempt. The appeal must be submitted within 10 days of the decision, accompanied by a $675 filing fee or a fee waiver request.

A copy of the appeal must be served simultaneously on EOIR’s General Counsel or designated Disciplinary Counsel, who will represent the agency. The Board will set a 20-day simultaneous briefing schedule, with final decisions rendered within 35 days of filing.

The Board may affirm, modify, or vacate the penalty with prejudice, but it cannot remand the case for further proceedings or increase the penalty amount. If the penalty was imposed on a noncitizen who leaves the country before the appeal is decided, the Board must vacate the order. The Board’s ruling serves as the final agency decision, and filing an appeal automatically pauses the payment deadline.

The proposal also updates standard appearance forms EOIR-27 and EOIR-28, allowing practitioners to enter appearances in contempt proceedings before the Chief Immigration Judge or the Board.

Payment, Enforcement, and Practitioner Discipline

Fines must be paid within 30 days of a final agency decision. If no appeal is filed, the clock starts when the Chief Immigration Judge’s order becomes final. If appealed, the deadline runs from the Board’s final ruling or from a federal court order upholding the sanction.

Unpaid penalties may be collected under general federal debt collection rules. For legal practitioners, the rule introduces a strict enforcement mechanism tied directly to EOIR disciplinary procedures.

If an attorney or accredited representative fails to pay within 30 days, EOIR Disciplinary Counsel will issue a notice warning that it intends to petition the Board for immediate suspension unless the penalty and a $50 late fee are paid within 15 days. If the deadline passes without proof of payment, Disciplinary Counsel must file a suspension petition, and the Board may immediately suspend the practitioner from practicing before immigration courts and the BIA.

Suspension orders may be publicly posted at EOIR offices, though suspended practitioners can petition for reinstatement once the penalty and late fees are paid in full. The rule also clarifies that contemptuous conduct may serve as evidence of “contumelious or otherwise obnoxious conduct” under broader disciplinary rules, establishing a separate ground for discipline if an attorney repeatedly fails to pay ordered fines.

Oversight and Complaint Channels

The proposal incorporates several layers of administrative oversight. An immigration judge’s exercise of contempt powers is subject to direct supervision by the Chief Immigration Judge, who must conduct periodic reviews. After consulting the EOIR Director, the Chief Immigration Judge may suspend a judge’s contempt authority for up to 30 days if the power is misused or improperly applied. The EOIR Director holds reciprocal authority to suspend the Chief Immigration Judge’s contempt powers under similar circumstances.

To address potential judicial misconduct, the rule updates EOIR’s regulations regarding adjudicator discipline. It clarifies that formal complaints against immigration judges, appellate judges, and administrative law judges can be submitted to the judge’s supervisor, EOIR’s Judicial Conduct and Professionalism Unit, or the DOJ Office of Professional Responsibility. The department noted that this clarification aligns with existing guidance requiring EOIR to maintain a clear complaint process alongside the Office of Professional Responsibility and the Office of the Inspector General.