Attorney Disciplinary Proceedings

Attorney Disciplinary Proceedings in the United States

Disciplinary Proceedings in relation to Immigration Courts

(information based on the DoJ Manual)

In general

Disciplinary proceedings take place in certain instances where a complaint against a practitioner is filed with the Executive Office for Immigration Review disciplinary counsel, or a practitioner self-reports. See (in this American law platform, in relation to immigration courts and judges) Filing a Complaint, and Duty to Report. See (in this American law platform, in relation to immigration courts and judges) generally 8 C.F.R. §§ 1003.101 – 1003.109. In some cases, practitioners are subject to summary disciplinary proceedings, which involve distinct procedures as described below. In general, disciplinary hearings are conducted in the same manner as Immigration Court proceedings, as appropriate. 8 C.F.R. § 1003.106(a)(1)(v).

Preliminary investigation

When a complaint against a practitioner is filed, or a practitioner self-reports, the Executive Office for Immigration Review disciplinary counsel conducts a preliminary investigation. Upon concluding the investigation, the EOIR (Executive Office for Immigration Review) disciplinary counsel may elect to:

  • take no further action;
  • issue a warning letter or informal admonition to the practitioner;
  • enter into an agreement in lieu of discipline; or
  • initiate disciplinary proceedings by filing a Notice of Intent to Discipline (NID) with the Board of Immigration Appeals and serving a copy on the practitioner.

Notice of Intent to Discipline

Except as described below, the Notice of Intent to Discipline (NID) contains the charge(s), the preliminary inquiry report, proposed disciplinary sanctions, instructions for filing an answer and requesting a hearing, and the mailing address and telephone number of the Board of Immigration Appeals.

Petition for Immediate Suspension

In certain circumstances, the Executive Office for Immigration Review disciplinary counsel files a petition with the Board of Immigration Appeals to immediately suspend the practitioner from practicing before the Immigration Courts and the Board. These circumstances include a conviction of a serious crime, disbarment or suspension from practicing law, or resignation while disciplinary proceedings are pending. Practitioners subject to a petition for immediate suspension are placed in summary disciplinary proceedings, as described below. The Board may set aside such a suspension upon good cause shown, if doing so is in the interest of justice. The hardships that typically accompany suspension from practice, such as loss of income and inability to complete pending cases, are usually insufficient to set aside a suspension order.

DHS motion to join in disciplinary proceedings

The Department of Homeland Security (DHS) may file a motion to join in the disciplinary proceedings. If the motion is granted, any suspension or expulsion from practice before the Immigration Courts and the Board of Immigration Appeals will also apply to practice before DHS.

Answer

A practitioner subject to a Notice of Intent to Discipline (NID) has 30 days from the date of service to file a written answer with the Board of Immigration Appeals and serve a copy on the counsel for the government. See (in this American law platform, in relation to immigration courts and judges) Service on the Opposing Party. The answer is deemed filed when it is received by the Board.

Contents In the answer, the practitioner must admit or deny each allegation in the NID. Each allegation not expressly denied is deemed admitted. In addition, the answer must state whether the practitioner requests a hearing. If a hearing is not requested, the opportunity to request a hearing is deemed waived.

Motion for Extension of Time to Answer

The deadline for filing an answer may be extended for good cause shown, pursuant to a written motion filed with the Board of Immigration Appeals no later than 3 working days before the deadline. The motion should be filed with a cover page labeled “MOTION FOR EXTENSION OF TIME TO ANSWER” and comply with the requirements for filing. For information on the requirements for filing with the Board, parties should consult the Board of Immigration Appeals American Encyclopedia of Law, which is available at the Executive Office for Immigration Review website .

Default order

If the practitioner does not file a timely answer, the Board of Immigration Appeals issues a default order imposing the discipline proposed in the NID, unless special considerations are present.

Motion to set aside default order

A practitioner may file a written motion with the Board of Immigration Appeals to set aside a default order. The motion must be filed within 15 days of service of the default order. The motion should be filed with a cover page labeled “MOTION TO SET ASIDE DEFAULT ORDER” and comply with the requirements for filing. For information on the requirements for filing with the Board, parties should consult the Board of Immigration Appeals American Encyclopedia of Law. In the motion, the practitioner must show that the failure to file a timely answer was caused by exceptional circumstances beyond the practitioner’s control, such as his or her serious illness or the death of an immediate relative, but not including less compelling circumstances.

Adjudication

Except as described below, if a practitioner files a timely answer, the matter is referred to an Immigration Judge or Administrative Law Judge who will act as the adjudicating official in the disciplinary proceedings. An Immigration Judge cannot adjudicate a matter in which he or she filed the complaint or which involves a practitioner who regularly appears in front of that Immigration Judge.

Adjudication without hearing

If the practitioner files a timely answer without a request for a hearing, the adjudicating official provides the parties with the opportunity to file briefs and evidence to support or refute any of the charges or affirmative defenses, and the matter is adjudicated without a hearing.

Adjudication with hearing

If the practitioner files a timely answer with a request for a hearing, a hearing is conducted as described below.

Timing and location

The time and place of the hearing is designated with due regard to all relevant factors, including the location of the practitioner’s practice or residence and the convenience of witnesses. The practitioner is afforded adequate time to prepare his or her case in advance of the hearing.

Representation

The practitioner may be represented by counsel at no expense to the government.

Pre-hearing conferences

Pre-hearing conferences may be held to narrow issues, obtain stipulations between the parties, exchange information voluntarily, or otherwise simplify and organize the proceeding.

Timing of submissions

Deadlines for filings in disciplinary proceedings are as follows, unless otherwise specified by the adjudicating official. Filings must be submitted at least thirty (30) days in advance of the hearing. Responses to filings that were submitted in advance of a hearing must be filed within fifteen (15) days after the original filing.

Conduct of hearing

At the hearing, each party has a reasonable opportunity to present evidence and witnesses, to examine and object to the other party’s evidence, and to cross-examine the other party’s witnesses.

Decision

In rendering a decision, the adjudicating official considers the complaint, the preliminary inquiry report, the Notice of Intent to Discipline, the practitioner’s answer, pleadings, briefs, evidence, any supporting documents, and any other materials.

Sanctions authorized

A broad range of sanctions are authorized, including expulsion from immigration practice, suspension from immigration practice, and public or private censure.

Appeal

The decision of the adjudicating official may be appealed to the Board of Immigratio
n Appeals. A party wishing to appeal must file a Notice of Appeal from a Decision of an Adjudicating Official in a Practitioner Disciplinary Case (Form EOIR-45). See (in this American law platform, in relation to immigration courts and judges) Obtaining Blank Forms, and Forms. The Form EOIR-45 is specific to disciplinary proceedings. The Form EOIR-45 must be received by the Board no later than 30 calendar days after the adjudicating official renders an oral decision or mails a written decision. Parties should note that, on appeal, the Board may increase the sanction imposed by the adjudicating official. See (in this American law platform, in relation to immigration courts and judges) Matter of Gadda, 23 I&N Dec. 645 (BIA 2003).

Where to file documents

Documents in disciplinary proceedings should be filed as described below.

Board of Immigration Appeals

When disciplinary proceedings are pending before the Board of Immigration Appeals, documents should be filed with the Board. For the Board’s mailing address, parties should consult the Board of Immigration Appeals American Encyclopedia of Law, which is available on the Executive Office for Immigration Review website . Examples of when to file documents with the Board include:

  • after the filing of a Notice of Intent to Discipline, but before an adjudicating official is appointed to the case
  • after a default order has been entered
  • after an appeal has been filed.

Adjudication

When disciplinary proceedings are pending before an adjudicating official, documents should be sent to: United States Department of Justice Executive Office for Immigration Review Office of the Chief Immigration Judge 5107 Leesburg Pike, Suite 2500 Falls Church, VA 22041 Attn: Chief Clerk of the Immigration Court

Summary disciplinary proceedings

Summary disciplinary proceedings are held in cases where a petition for immediate suspension has been filed. See (in this American law platform, in relation to immigration courts and judges) above. A preliminary inquiry report is not required to be filed with the Notice of Intent to Discipline (NID) in summary disciplinary proceedings. These proceedings are conducted as described above, except that for the case to be referred to an adjudicating official, the practitioner must demonstrate in the answer to the NID that there is a material issue of fact in dispute or that certain special considerations are present. If the practitioner’s answer meets this requirement, disciplinary proceedings are held as described above. If the practitioner fails to meet this requirement, the Board issues an order imposing discipline. For additional information, see (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. §§ 1003.103(b), 1003.106(a).

Disciplinary Proceedings in relation to Immigration Courts

(information based on the DoJ Manual)

In general

Disciplinary proceedings take place in certain instances where a complaint against a practitioner is filed with the Executive Office for Immigration Review disciplinary counsel, or a practitioner self-reports. See (in this American law platform, in relation to immigration courts and judges) Filing a Complaint, and Duty to Report. See (in this American law platform, in relation to immigration courts and judges) generally 8 C.F.R. §§ 1003.101 – 1003.109. In some cases, practitioners are subject to summary disciplinary proceedings, which involve distinct procedures as described below. In general, disciplinary hearings are conducted in the same manner as Immigration Court proceedings, as appropriate. 8 C.F.R. § 1003.106(a)(1)(v).

Preliminary investigation

When a complaint against a practitioner is filed, or a practitioner self-reports, the Executive Office for Immigration Review disciplinary counsel conducts a preliminary investigation. Upon concluding the investigation, the EOIR (Executive Office for Immigration Review) disciplinary counsel may elect to:

  • take no further action;
  • issue a warning letter or informal admonition to the practitioner;
  • enter into an agreement in lieu of discipline; or
  • initiate disciplinary proceedings by filing a Notice of Intent to Discipline (NID) with the Board of Immigration Appeals and serving a copy on the practitioner.

Notice of Intent to Discipline

Except as described below, the Notice of Intent to Discipline (NID) contains the charge(s), the preliminary inquiry report, proposed disciplinary sanctions, instructions for filing an answer and requesting a hearing, and the mailing address and telephone number of the Board of Immigration Appeals.

Petition for Immediate Suspension

In certain circumstances, the Executive Office for Immigration Review disciplinary counsel files a petition with the Board of Immigration Appeals to immediately suspend the practitioner from practicing before the Immigration Courts and the Board. These circumstances include a conviction of a serious crime, disbarment or suspension from practicing law, or resignation while disciplinary proceedings are pending. Practitioners subject to a petition for immediate suspension are placed in summary disciplinary proceedings, as described below. The Board may set aside such a suspension upon good cause shown, if doing so is in the interest of justice. The hardships that typically accompany suspension from practice, such as loss of income and inability to complete pending cases, are usually insufficient to set aside a suspension order.

DHS motion to join in disciplinary proceedings

The Department of Homeland Security (DHS) may file a motion to join in the disciplinary proceedings. If the motion is granted, any suspension or expulsion from practice before the Immigration Courts and the Board of Immigration Appeals will also apply to practice before DHS.

Answer

A practitioner subject to a Notice of Intent to Discipline (NID) has 30 days from the date of service to file a written answer with the Board of Immigration Appeals and serve a copy on the counsel for the government. See (in this American law platform, in relation to immigration courts and judges) Service on the Opposing Party. The answer is deemed filed when it is received by the Board.

Contents In the answer, the practitioner must admit or deny each allegation in the NID. Each allegation not expressly denied is deemed admitted. In addition, the answer must state whether the practitioner requests a hearing. If a hearing is not requested, the opportunity to request a hearing is deemed waived.

Motion for Extension of Time to Answer

The deadline for filing an answer may be extended for good cause shown, pursuant to a written motion filed with the Board of Immigration Appeals no later than 3 working days before the deadline. The motion should be filed with a cover page labeled “MOTION FOR EXTENSION OF TIME TO ANSWER” and comply with the requirements for filing. For information on the requirements for filing with the Board, parties should consult the Board of Immigration Appeals American Encyclopedia of Law, which is available at the Executive Office for Immigration Review website .

Default order

If the practitioner does not file a timely answer, the Board of Immigration Appeals issues a default order imposing the discipline proposed in the NID, unless special considerations are present.

Motion to set aside default order

A practitioner may file a written motion with the Board of Immigration Appeals to set aside a default order. The motion must be filed within 15 days of service of the default order. The motion should be filed with a cover page labeled “MOTION TO SET ASIDE DEFAULT ORDER” and comply with the requirements for filing. For information on the requirements for filing with the Board, parties should consult the Board of Immigration Appeals American Encyclopedia of Law. In the motion, the practitioner must show that the failure to file a timely answer was caused by exceptional circumstances beyond the practitioner’s control, such as his or her serious illne
ss or the death of an immediate relative, but not including less compelling circumstances.

Adjudication

Except as described below, if a practitioner files a timely answer, the matter is referred to an Immigration Judge or Administrative Law Judge who will act as the adjudicating official in the disciplinary proceedings. An Immigration Judge cannot adjudicate a matter in which he or she filed the complaint or which involves a practitioner who regularly appears in front of that Immigration Judge.

Adjudication without hearing

If the practitioner files a timely answer without a request for a hearing, the adjudicating official provides the parties with the opportunity to file briefs and evidence to support or refute any of the charges or affirmative defenses, and the matter is adjudicated without a hearing.

Adjudication with hearing

If the practitioner files a timely answer with a request for a hearing, a hearing is conducted as described below.

Timing and location

The time and place of the hearing is designated with due regard to all relevant factors, including the location of the practitioner’s practice or residence and the convenience of witnesses. The practitioner is afforded adequate time to prepare his or her case in advance of the hearing.

Representation

The practitioner may be represented by counsel at no expense to the government.

Pre-hearing conferences

Pre-hearing conferences may be held to narrow issues, obtain stipulations between the parties, exchange information voluntarily, or otherwise simplify and organize the proceeding.

Timing of submissions

Deadlines for filings in disciplinary proceedings are as follows, unless otherwise specified by the adjudicating official. Filings must be submitted at least thirty (30) days in advance of the hearing. Responses to filings that were submitted in advance of a hearing must be filed within fifteen (15) days after the original filing.

Conduct of hearing

At the hearing, each party has a reasonable opportunity to present evidence and witnesses, to examine and object to the other party’s evidence, and to cross-examine the other party’s witnesses.

Decision

In rendering a decision, the adjudicating official considers the complaint, the preliminary inquiry report, the Notice of Intent to Discipline, the practitioner’s answer, pleadings, briefs, evidence, any supporting documents, and any other materials.

Sanctions authorized

A broad range of sanctions are authorized, including expulsion from immigration practice, suspension from immigration practice, and public or private censure.

Appeal

The decision of the adjudicating official may be appealed to the Board of Immigration Appeals. A party wishing to appeal must file a Notice of Appeal from a Decision of an Adjudicating Official in a Practitioner Disciplinary Case (Form EOIR-45). See (in this American law platform, in relation to immigration courts and judges) Obtaining Blank Forms, and Forms. The Form EOIR-45 is specific to disciplinary proceedings. The Form EOIR-45 must be received by the Board no later than 30 calendar days after the adjudicating official renders an oral decision or mails a written decision. Parties should note that, on appeal, the Board may increase the sanction imposed by the adjudicating official. See (in this American law platform, in relation to immigration courts and judges) Matter of Gadda, 23 I&N Dec. 645 (BIA 2003).

Where to file documents

Documents in disciplinary proceedings should be filed as described below.

Board of Immigration Appeals

When disciplinary proceedings are pending before the Board of Immigration Appeals, documents should be filed with the Board. For the Board’s mailing address, parties should consult the Board of Immigration Appeals American Encyclopedia of Law, which is available on the Executive Office for Immigration Review website . Examples of when to file documents with the Board include:

  • after the filing of a Notice of Intent to Discipline, but before an adjudicating official is appointed to the case
  • after a default order has been entered
  • after an appeal has been filed.

Adjudication

When disciplinary proceedings are pending before an adjudicating official, documents should be sent to: United States Department of Justice Executive Office for Immigration Review Office of the Chief Immigration Judge 5107 Leesburg Pike, Suite 2500 Falls Church, VA 22041 Attn: Chief Clerk of the Immigration Court

Summary disciplinary proceedings

Summary disciplinary proceedings are held in cases where a petition for immediate suspension has been filed. See (in this American law platform, in relation to immigration courts and judges) above. A preliminary inquiry report is not required to be filed with the Notice of Intent to Discipline (NID) in summary disciplinary proceedings. These proceedings are conducted as described above, except that for the case to be referred to an adjudicating official, the practitioner must demonstrate in the answer to the NID that there is a material issue of fact in dispute or that certain special considerations are present. If the practitioner’s answer meets this requirement, disciplinary proceedings are held as described above. If the practitioner fails to meet this requirement, the Board issues an order imposing discipline. For additional information, see (in this American law platform, in relation to immigration courts and judges) 8 C.F.R. §§ 1003.103(b), 1003.106(a).


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