FAQs Relating to Investigations of Immigration Attorneys by the Disciplinary Counsel for the Department of Homeland Security (DHS)

The Disciplinary Counsel or the Department of Homeland Security (DHS) has jurisdiction to investigate allegations of unethical conduct by immigration attorneys. This can be done either following the receipt of a disciplinary complaint or based upon the conclusion by DHS that it is appropriate to investigate the attorney for potential ethics violations.

Frequently Asked Questions About the Process of Investigation and Complaint Regarding Unethical Attorney Conduct Interposed by the Disciplinary Counsel for DHS.

Set forth below are some highlights of the frequently asked questions that may come up in this regard.

1. What is the regulatory basis for an attorney ethics investigation initiated by DHS regarding immigration practice?

Under 8 C.F.R. Section 292.3, DHS is authorized to initiate a complaint and/or preliminary inquiry.

 11. Is the attorney disciplinary process confidential?

The process is confidential. However, there are certain exceptions which are set forth in 8 C.F.R. Section 292.3(h) and (i) as follows:

(h) Confidentiality—(1) Complaints and preliminary inquiries. Except as otherwise provided by law or regulation or as authorized by this regulation, information concerning complaints or preliminary inquiries is confidential. A practitioner whose conduct is the subject of a complaint or preliminary inquiry, however, may waive confidentiality, except that the DHS disciplinary counsel may decline to permit a waiver of confidentiality if it is determined that an ongoing preliminary inquiry may be substantially prejudiced by a public disclosure before the filing of a Notice of Intent to Discipline.

(i) Disclosure of information for the purpose of protecting the public. The DHS disciplinary counsel may disclose information concerning a complaint or preliminary inquiry for the protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality in circumstances including, but not limited to, the following:

(A) A practitioner has caused, or is likely to cause, harm to client(s), the public, or the administration of justice, such that the public or specific individuals should be advised of the nature of the allegations. If disclosure of information is made pursuant to this paragraph, the DHS disciplinary counsel may define the scope of information disseminated and may limit the disclosure of information to specified individuals or entities;

(B) A practitioner has committed criminal acts or is under investigation by law enforcement authorities;

(C) A practitioner is under investigation by a disciplinary or regulatory authority, or has committed acts or made omissions that may reasonably result in investigation by such an authority;

(D) A practitioner is the subject of multiple disciplinary complaints and the DHS disciplinary counsel has determined not to pursue all of the complaints. The DHS disciplinary counsel may inform complainants whose allegations have not been pursued of the status of any other preliminary inquiries or the manner in which any other complaint(s) against the practitioner have been resolved.

 111. What is the procedure for informing the attorney of the specific allegations being made against them?

The attorney is generally provided with a summary of the allegations against them so that they have the capacity to interpose any defenses or other explanations. The authority under which such  disclosure is made is contained in 8 C.F.R. Section 292.3(h)(ii)(E) which states

(ii) Disclosure of information for the purpose of conducting a preliminary inquiry. The DHS disciplinary counsel may, in his or her discretion, disclose documents and information concerning complaints and preliminary inquiries to the following individuals or entities… .

(E) To the practitioner who is the subject of the complaint or preliminary inquiry or the practitioner’s counsel of record.

 IV. What is the particular regime of attorney ethics rules that apply in the immigration context?

The attorney ethics rules that apply in the immigration context are located at 8 C.F.R. Section 1003.102. See a detailed overview of these rules.

V. What is the process by which the attorney who is the subject of the inquiry can utilize counsel of record to defend them?

The attorney who is responding to the allegations of unethical conduct is encouraged to hire their own counsel. This can be done by filing Form G-28 (Notice of Entry of Appearance) with the DHS Office of the Chief Counsel.

VI. Where is the response to the initial inquiry sent?

The response to the initial inquiry is general sent via email to DisciplinaryCounsel@uscis.dhs.gov within thirty days of the respondent receiving the written notice that they are the subject of an investigation. They are required to indicate the jurisdiction in which they are or have been licensed to practice law, presumably to allow the disciplinary counsel to advise the attorney ethics enforcement offices of those corresponding state-level jurisdictions when appropriate.

VII. Can DHS seek to impose a summary suspension on a provisional basis during the pendency of the investigation?

Yes, DHS can seek a summary suspension of an attorney who has not been determined to have violated their ethical obligations. In other words, it can be imposed provisionally during an earlier stage, such as the investigatory one.

The procedures for this are located in 8 C.F.R. Section 1003.103(a) which states in part

§ 1003.103 Immediate suspension and summary disciplinary proceedings; duty of practitioner to notify EOIR of conviction or discipline.

(a) Immediate Suspension —

(1) Petition.  The EOIR disciplinary counsel shall file a petition with the Board to suspend immediately from practice before the Board and the Immigration Courts any practitioner who has been found guilty of, or pleaded guilty or nolo contendere to, a serious crime, as defined in § 1003.102(h), or any practitioner who has been suspended or disbarred by, or while a disciplinary investigation or proceeding is pending has resigned from, the highest court of any State, possession, territory, or Commonwealth of the United States, or the District of Columbia, or any Federal court, or who has been placed on an interim suspension pending a final resolution of the underlying disciplinary matter.

(2) DHS petition. DHS may file a petition with the Board to suspend immediately from practice before DHS any practitioner described in paragraph (a)(1) of this section. See 8 CFR 292.3(c).

The Nissenbaum Law Group has an attorney ethics defense team of attorneys and paralegals who are available to handle matters before the Office of Disciplinary Counsel, EOIR, BIA and/or DHS. They serve as an adjunct to the ethics defense team’s tri-state defense practice centered in New Jersey, New York and Pennsylvania for reciprocal discipline.  The firm welcomes inquiries from attorneys who are the subject of any such matters.