Defending Immigration Attorneys Accused of Ethics Violations Before the Executive Office for Immigration Review (EOIR) and Board of Immigration Appeals (BIA)

Immigration attorneys have a unique set of attorney discipline requirements and procedures that do not always apply to attorneys practicing in other areas of the law. The Executive Office for Immigration Review (“EOIR”) has promulgated regulations for this purpose entitled “Professional Conduct for Practitioners.” Importantly, they have applicability to those immigration attorneys who practice before the Board of Immigration Appeals (“BIA”).

These disciplinary regulations and procedures are similar to the American Bar Association’s Rules of Professional Conduct. This can engender confusion, insofar as an immigration attorney practicing in a particular state is governed by that state’s Rules of Professional Conduct for certain activities in their legal practice and the EOIR’s regulations concerning professional conduct for others.

Frequently Asked Questions About the Federal Regulations That Apply to Attorney Discipline in the Immigrations Courts

The following are frequently asked questions regarding the substance and procedure applicable to attorney discipline in the immigration courts.

 1. What are the grounds for disciplining attorneys under the EOIR’s regulations?

The EOIR regulations set forth in 8 C.F.R. § 1003.102 list twenty-three (23) grounds for alleging that an attorney violated their ethical obligations in the context of practicing immigration law. They are as follows: [1]

EOIR’s Grounds for Disciplining Attorneys and Accredited Representatives (8 C.F.R. § 1003.102)

1. Charging a grossly excessive fee;

2. Engaging in bribery or coercion; Office of Communications and Legislatives Affairs Page 2 of 10

3. Knowingly or with reckless disregard making a false statement or willfully misleading, misinforming, threatening, or deceiving any person;

4. Soliciting professional employment;

5. Is subject to a final order of disbarment or suspension, or has resigned, while a disciplinary investigation or proceeding is pending;

6. Knowingly or with reckless disregard making a false or misleading communication about qualifications or services (e.g., practitioners must be recognized as certified specialists in immigration law in order to refer to themselves as such);

7. Engaging in rude, insulting, or obnoxious conduct that would constitute contempt of court;

8. Having been convicted in any state or federal court of a serious crime;

9. Knowingly or with reckless disregard falsely certifying a copy of a document as being true and complete;

10. Engaging in frivolous behavior;

11. Engaging in conduct that constitutes ineffective assistance of counsel as found by an immigration judge, the BIA, or a federal court;

12. Repeatedly failing to appear for scheduled pre-hearing conferences or hearings in a timely manner without good cause;

13. Assisting a person other than a practitioner to practice law;

14. Engaging in conduct that is prejudicial to the administration of justice;

15. Failing to provide competent representation to a client;

16. Failing to consult with a client concerning the objectives of the representation or abide by decisions of the client concerning how to achieve those objectives;

17. Failing to act with reasonable diligence and promptness;

18. Failing to maintain communication with a client;

19. Failing to disclose to an adjudicator controlling legal authority known to the practitioner that is directly adverse to the position of the client if not disclosed by opposing counsel; Office

20. Repeatedly failing to submit a signed and completed Notice of Entry of Appearance on the appropriate form in compliance with the applicable rules and regulations;

21. Repeatedly drafting notices, motions, or briefs that contain boilerplate language that evidences a failure to competently and diligently represent the client;

22. Accredited representative acting outside the scope of approve authority; and

23. Repeatedly failing to sign any pleading, application, motion, petition, brief, or other document that is prepared, drafted, or filed with EOIR.

[1] The references to the law and procedure relating to the ethical guidelines incumbent upon the immigration bar in these FAQs are accurate as of November of 2024. It is important that attorneys and others update any aspect of this discussion that applies to them and not rely upon it as legal advice.

 2. Is there a difference between disciplinary investigations that are done by the EOIR’s immigration courts and the BIA versus the Department of Homeland Security (DHS)?

According to the Fact Sheet issued by the U.S. Department of Justice Executive Office for Immigration Review, complaints that are filed with the EOIR and BIA are handled differently than those filed with the Department of Homeland Security. While they each involve a two-step process of investigation to determine (1) if there is merit to the complaint, followed by (2) formal disciplinary proceedings, in the words of the Fact Sheet, DHS will typically take up such matters when they relate to “immigration benefit issues such as affirmative asylum, adjustment of status, and visa petitions.” The primary source for this can be found at 8 CFR § 292.3.

 3. Are there procedures to short-cut the process so that a disciplinary matter that is not dismissed likewise does not proceed to a formal hearing?

There are such procedures. Under the right circumstances complaints can be informally resolved through a confidential warning letter, informal admonition or an agreement in lieu of discipline. Obviously, these procedures are more likely to be utilized when the disciplinary infraction is minor and there is little or no history of an ethics violation.

 4. Are there any tax liens encumbering the business assets?

Tax returns are confidential documents that are generally not subject to complete disclosure in the course of the due diligence period of a business sale. However, while the business’ tax documents —for example, the K-1 state corporate business tax filing—may be subject to review during the due diligence period, the buyer also needs to have a search done of the tax liens to which the assets of the business may be subject. That is why it is important for the buyer’s accountant to work with their attorney to have the appropriate searches conducted and analyze the results.

5. What is the quantum of discipline range available under the federal system of immigration attorney discipline?

Under 8 CFR 1003.101, once a decision is made to impose a formal disciplinary sanction, the quantum of discipline will generally be chosen from one of four categories:

1. permanent disbarment from practice before the Board of Immigration Appeals, Immigration Courts and/or DHS;

2. immediate suspension from practice before the Board of Immigration Appeals, Immigration Courts and/or DHS;

3. Public or private censure; or

4. Such other disciplinary sanctions as the adjudicating official or the Board of Immigration Appeals deems appropriate.

 6. May a disciplinary disposition be appealed?

Yes, generally the decision of the adjudicating official can be appealed within thirty (30) days to the Board of Immigration Appeals.

The Nissenbaum Law Group can Provide Legal Counsel for Ethics Matters

In sum, as should be evident from the above FAQs, the process of attorney discipline applicable to the Board of Immigration Appeals, Immigration Courts and/or DHS is both familiar (because it is based upon the ABA’s Rules of Professional Conduct) and distinguishable (because it is a system of enforcement through federal regulation of an administrative process).

The Nissenbaum Law Group has a robust attorney ethics defense practice in New York, New Jersey and Pennsylvania. Its practice before the EOIR, BIA and/or DHS is an adjunct to that foundation. The firm welcomes inquiries from attorneys who the subject of any such matters.