Highlights of the BIA Pleading Procedures for Summary Disciplinary Proceedings Initiated by the EOIR

An adjudicating official of the Board of Immigration Appeals (the Board) may pursue summary disciplinary proceedings against any practitioner if it finds it to be in the public interest to do so. The major milestone in this process is when the appropriate pleading seeking disciplinary sanctions is filed.

Set forth below is a discussion of the milestones relating to the initial pleading process for these matters. It is meant to be a general outline and by no means a comprehensive summary of all the law and procedure that may apply. In addition, it is not meant to be utilized as a reference for the law or procedure necessarily in existence at the time this page is being viewed.

The Nissenbaum Law Group welcomes inquiries from attorneys in need of defense counsel. In order to initiate such an inquiry, kindly contact us.

 

 

1. The Pleading Stage

 

Practitioners authorized to practice before the Board and the Immigration Courts.

Pursuant to 8 CFR § 1003.104(a)(1):

Complaints of criminal, unethical, or unprofessional conduct, or of frivolous behavior by a practitioner who is authorized to practice before the Board and the Immigration Courts shall be filed with the EOIR disciplinary counsel. Disciplinary complaints must be submitted in writing and state in detail the information that supports the basis for the complaint, including, but not limited to, the names and addresses of the complainant and the practitioner, the date(s) of the conduct or behavior, the nature of the conduct or behavior, the individuals involved, the harm or damages sustained by the complainant, and any other relevant information. Any individual may file a complaint with the EOIR disciplinary counsel using the Form EOIR-44. The EOIR disciplinary counsel shall notify DHS of any disciplinary complaint that pertains, in whole or part, to a matter before DHS.

Practitioners authorized to practice before DHS.

Pursuant to 8 CFR § 1003.104(a)(2),

Complaints of criminal, unethical, or unprofessional conduct, or frivolous behavior by a practitioner who is authorized to practice before DHS shall be filed with DHS pursuant to the procedures set forth in § 292.3(d) of this chapter.

11. Preliminary Inquiry and Possible Issuance of Notice of Intent to Discipline

 

Preliminary inquiry.

Pursuant to 8 CFR § 1003.104(b),

Upon receipt of a disciplinary complaint or on its own initiative, the EOIR disciplinary counsel will initiate a preliminary inquiry. If a complaint is filed by a client or former client, the complainant might thereby waive the attorney-client privilege and any other privilege relating to the representation to the extent necessary to conduct a preliminary inquiry and any subsequent proceedings based thereon.

If the EOIR disciplinary counsel determines that a complaint is without merit, no further action will be taken. The EOIR disciplinary counsel may, in the disciplinary counsel’s discretion, close a preliminary inquiry if the complainant fails to comply with reasonable requests for assistance, information, or documentation. The complainant and the practitioner shall be notified of any such determination in writing.

Resolution reached prior to the issuance of a Notice of Intent to Discipline.

Pursuant to 8 CFR § 1003.104(c),

The EOIR disciplinary counsel, in its discretion, may issue warning letters and admonitions, and may enter into agreements in lieu of discipline, prior to the issuance of a Notice of Intent to Discipline.

Referral of complaints of criminal conduct

Pursuant to 8 CFR § 1003.104(d),

If the EOIR disciplinary counsel receives credible information or allegations that a practitioner has engaged in criminal conduct, the EOIR disciplinary counsel shall refer the matter to DHS or the appropriate United States Attorney and, if appropriate, to the Inspector General, the Federal Bureau of Investigation, or other law enforcement agency. In such cases, in making the decision to pursue disciplinary sanctions, the EOIR disciplinary counsel shall coordinate in advance with the appropriate investigative and prosecutorial authorities within the Department to ensure that neither the disciplinary process nor criminal prosecutions are jeopardized.

111. Preliminary Inquiry and Possible Issuance of Notice of Intent to Discipline

Issuance of Notice.

Pursuant to 8 CFR § 1003.105(a),

If, upon completion of the preliminary inquiry, the EOIR disciplinary counsel determines that sufficient prima facie evidence exists to warrant charging a practitioner with professional misconduct as set forth in 1003.102 or a recognized organization with misconduct as set forth in § 1003.110, the EOIR disciplinary counsel will file with the Board and issue to the practitioner or organization that was the subject of the preliminary inquiry a Notice of Intent to Discipline.

In cases involving practitioners, service of the notice will be made upon the practitioner either by certified mail to the practitioner’s last known address, as defined in paragraph (a)(2) of this section, or by personal delivery. In cases involving recognized organizations, service of the notice will be made upon the authorized officer of the organization either by certified mail at the address of the organization or by personal delivery.

The notice shall contain a statement of the charge(s), a copy of the preliminary inquiry report, the proposed disciplinary sanctions to be imposed, the procedure for filing an answer or requesting a hearing, and the mailing address and telephone number of the Board.

In summary disciplinary proceedings brought pursuant to § 1003.103(b), a preliminary inquiry report is not required to be filed with the Notice of Intent to Discipline. If a Notice of Intent to Discipline is filed against an accredited representative, the EOIR disciplinary counsel shall send a copy of the notice to the authorized officer of the recognized organization through which the representative is accredited at the address of the organization.

For the purposes of this section, the last known address of a practitioner is the practitioner’s address as it appears in EOIR’s case management system if the practitioner is actively representing a party before EOIR on the date that the EOIR disciplinary counsel issues the Notice of Intent to Discipline. If the practitioner does not have a matter pending before EOIR on the date of the issuance of a Notice of Intent to Discipline, then the last known address for a practitioner will be as follows:

(i) Attorneys in the United States: the attorney’s address that is on record with a state jurisdiction that licensed the attorney to practice law.

(ii) Accredited representatives: the address of a recognized organization with which the accredited representative is affiliated.

(iii) Accredited officials: the address of the embassy of the foreign government that employs the accredited official.

(iv) All other practitioners: the address for the practitioner that appears in EOIR’s case management system for the most recent matter on which the practitioner represented a party.

The Department of Homeland Security (DHS) may file a Notice of Intent to Discipline with the Board in accordance with 8 CFR 292.3(e).

1v. Answer

 

Filing.

Pursuant to 8 CFR § 1003.105(c)(1),

The practitioner or, in cases involving a recognized organization, the organization, shall file a written answer to the Notice of Intent to Discipline with the Board within 30 days of the date of service of the Notice of Intent to Discipline unless, on motion to the Board, an extension of time to answer is granted for good cause. A motion for an extension of time to answer must be received by the Board no later than three (3) working days before the time to answer has expired. A copy of the answer and any such motion shall be served by the practitioner on the counsel for the government.

Contents.

Pursuant to 8 CFR § 1003.105(c)(2),

The answer shall contain a statement of facts which constitute the grounds of defense and shall specifically admit or deny each allegation set forth in the Notice of Intent to Discipline. Every allegation in the Notice of Intent to Discipline which is not denied in the answer shall be deemed to be admitted and may be considered as proved, and no further evidence in respect of such allegation need be adduced.

The practitioner or, in cases involving a recognized organization, the organization, may also state affirmatively special matters of defense and may submit supporting documents, including affidavits or statements, along with the answer.

 

Request for hearing.

Pursuant to 8 CFR § 1003.105(c)(3),

The practitioner or, in cases involving a recognized organization, the organization, shall also state in the answer whether a hearing on the matter is requested. If no such request is made, the opportunity for a hearing will be deemed waived.

v. Failure to File an Answer

 

Filing.

Pursuant to 8 CFR § 1003.105(d),

(1) Failure to file an answer within the time period prescribed in the Notice of Intent to Discipline, except where the time to answer is extended by the Board, shall constitute an admission of the allegations in the Notice of Intent to Discipline and no further evidence with respect to such allegations need be adduced.

Upon such a default by the practitioner or, in cases involving a recognized organization, the organization, the counsel for the government shall submit to the Board proof of service of the Notice of Intent to Discipline.

(2) The practitioner or the organization shall be precluded thereafter from requesting a hearing on the matter. The Board shall issue a final order adopting the proposed disciplinary sanctions in the Notice of Intent to Discipline unless to do so would foster a tendency toward inconsistent dispositions for comparable conduct or would otherwise be unwarranted or not in the interests of justice. With the exception of cases in which the Board has already imposed an immediate suspension pursuant to 1003.103 or that otherwise involve an accredited representative or recognized organization, any final order imposing discipline shall not become effective sooner than 15 days from the date of the order to provide the practitioner opportunity to comply with the terms of such order, including, but not limited to, withdrawing from any pending immigration matters and notifying immigration clients of the imposition of any sanction.

Any final order imposing discipline against an accredited representative or recognized organization shall become effective immediately. A practitioner or a recognized organization may file a motion to set aside a final order of discipline issued pursuant to this paragraph, with service of such motion on counsel for the government, provided:

(i) Such a motion is filed within 15 days of the date of service of the final order; and

(ii) The practitioner’s or the recognized organization’s failure to file an answer was due to exceptional circumstances (such as serious illness of the practitioner or death of an immediate relative of the practitioner, but not including less compelling circumstances) beyond the control of the practitioner or the recognized organization.

 

The Nissenbaum Law Group welcomes inquiries from immigration attorneys in need of defense with regard to disciplinary matters instituted either before the EOIR, BIA or DHS.

See an overview of the firm’s immigration attorney ethics practice. For an overview of the firm’s practice representing attorneys in defense of state bar ethics matters, please click the following state: New Jersey, New York, and Pennsylvania.