KRONEGOLD

Cite as 25 I&N Dec. 157 (BIA 2010) Interim Decision #3667

Matter of Sheldon H. KRONEGOLD, Attorney

File D2007-064

Decided January 7, 2010

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) Where disciplinary proceedings are based on a final order of suspension or disbarment,

the order creates a rebuttable presumption that reciprocal disciplinary sanctions

should follow, which can be rebutted only if the attorney demonstrates by clear and

convincing evidence that the underlying disciplinary proceeding resulted in a deprivation

of due process, that there was an infirmity of proof establishing the misconduct, or that

discipline would result in a grave injustice.

(2) In determining whether to impose reciprocal discipline on an attorney who has been

suspended or disbarred by a State court, the Board of Immigration Appeals conducts

a deferential review of the proceedings that resulted in the initial discipline.

(3) Where the respondent was disbarred in New York, which precludes an attorney from

seeking reinstatement for 7 years, and he failed to rebut the presumption that reciprocal

discipline should be imposed, his suspension from practice before the Board, the

Immigration Courts, and the Department of Homeland Security for 7 years was

an appropriate sanction.

FOR RESPONDENT: Pro se

FOR EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, OFFICE OF GENERAL

COUNSEL: Scott Anderson, Deputy Disciplinary Counsel

FOR THE DEPARTMENT OF HOMELAND SECURITY: Eileen M. Connolly, Appellate

Counsel

BEFORE: Board Panel: HOLMES and HESS, Board Members; KENDALL CLARK,

Temporary Board Member.

HOLMES, Board Member:

On February 9, 2009, an Immigration Judge, acting as the Adjudicating

Official in this case, indefinitely suspended the respondent from practice

before the Board of Immigration Appeals, the Immigration Courts, and the

Department of Homeland Security (“DHS”). The respondent has filed a timely

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Cite as 25 I&N Dec. 157 (BIA 2010) Interim Decision #3667

appeal. The Disciplinary Counsel for the Executive Office for Immigration

Review (“EOIR”), which initiated this case, argues that the appeal should

be dismissed and that the respondent should be suspended from practice for

7 years. We will dismiss the respondent’s appeal and suspend him from

practice for 7 years.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent was a member of the Bar in New York and New Jersey.

On April 25, 2006, the New York Supreme Court’s Appellate Division for the

Second Judicial Department suspended the respondent from the practice of law

for 2 years, commencing on May 26, 2006. The discipline was “based upon

two charges including failure to timely file retainer and closing statements with

the Office of Court Administration and employing a non-lawyer to solicit

retainers to perform legal services.” On June 26, 2006, the court authorized

the Grievance Committee to institute and prosecute a new disciplinary

proceeding against the respondent and a correspondent. On October 20, 2006,

the court denied the respondent’s motion to reargue the April 25, 2006, order.

On or about October 4, 2006, the respondent entered a Form EOIR-28

(Notice of Entry of Appearance As Attorney or Representative Before the

Immigration Court) and represented that he was a member in good standing

of the New Jersey State Bar. He failed to divulge the suspension in New York,

checking a box indicating that he was not subject to any court order

suspending him from the practice of law. In November 2006 the respondent

filed a similar notice of appearance in another case.

On October 25, 2006, the respondent submitted an “Affidavit Of

Resignation” to the New York court. Concerning the new charges

of professional misconduct, the respondent stated, “I hereby acknowledge that

I cannot successfully defend myself on the merits” against the charges. The

respondent also acknowledged that he was aware that he could not seek

reinstatement as an attorney for 7 years. In re Leonard, 845 N.Y.S.2d 225,

226 (N.Y. App. Div. 2007) (stating that “an attorney whose name has been

stricken from the roll of attorneys may not petition for reinstatement until

expiration of seven years from the effective date of disbarment or removal”).

On March 6, 2007, the New York court disbarred the respondent. The court

considered the respondent’s acknowledgment that there were five charges

of professional misconduct pending against him, including allegations that

he aided a disbarred lawyer in the practice of law. The court also took into

account the respondent’s statements that he was represented by counsel and

that his resignation was freely given and not made under coercion or duress.

On July 24, 2007, the respondent was stricken from the roll of attorneys

in the United States District Court for the Southern District of New York. The

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court found no reason not to impose discipline reciprocal to that imposed

by the State of New York, “specifically in view of [the respondent’s] decision

not to contest the allegations in state court and in view of the representations

he made in resigning therefrom.”

On April 8, 2008, the EOIR Disciplinary Counsel petitioned for the

respondent’s immediate suspension from practice before the Board and the

Immigration Courts. The DHS then asked that the respondent be similarly

suspended from practicing before that agency. On April 15, 2008,

we suspended the respondent from practicing before the Board, the

Immigration Courts, and the DHS pending final disposition of this matter.

Reciprocal disciplinary proceedings were instituted against the respondent

in New Jersey. On April 22, 2008, the Supreme Court of New Jersey

Disciplinary Review Board adopted the findings of the New York Supreme

Court. The New Jersey Disciplinary Review Board evaluated the respondent’s

misconduct in New York to determine what discipline would be warranted had

that misconduct occurred in New Jersey. The New Jersey Disciplinary Review

Board suspended the respondent from practice for 1 year.

The Government’s Notice of Intent to Discipline brought summary

disciplinary proceedings against the respondent based on his suspension and

disbarment from the practice of law in New York. After the respondent

requested a hearing, the Chief Immigration Judge appointed an Adjudicating

Official, an Immigration Judge located in Boston. The Adjudicating Official

held a telephonic conference where he set a schedule for filing briefs and

exhibits. Neither party objected to the Adjudicating Official deciding the case

through the submission of the briefs and exhibits. The Adjudicating Official

denied the respondent’s motion to change venue. On February 9, 2009, the

Adjudicating Official indefinitely suspended the respondent from practice

before the Board, the Immigration Courts, and the DHS.

II. ANALYSIS

For the reasons discussed below, we affirm the Adjudicating Official’s

February 9, 2009, decision and suspend the respondent from practice before

the Board, the Immigration Courts, and the DHS for a period of 7 years,

effective April 15, 2008, the date of our immediate suspension order. Under

the revised regulations for professional conduct, we review the respondent’s

appeal pursuant to the standards of review set forth in 8 C.F.R. § 1003.1(d)(3)

(2010). See 8 C.F.R. § 1003.106(c) (2010) (providing that the Board has

jurisdiction to review the decision of the Adjudicating Official and conducts

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its review pursuant to 8 C.F.R. § 1003.1(d)(3)); see also Professional Conduct

for Practitioners—Rules and Procedures, and Representation and Appearances,

73 Fed. Reg. 76,914, 76,926 (Dec. 18, 2008).1 Under the regulations,

we review findings of fact to determine if they are “clearly erroneous.”

8 C.F.R. § 1003.1(d)(3)(i). We review questions of law, discretion, and

judgment and all other issues in appeals de novo. 8 C.F.R. § 1003.1(d)(3)(ii).

The respondent is subject to disciplinary sanctions because he

has been suspended and disbarred in the State of New York. See

8 C.F.R § 1003.102(e)(1) (2010) (setting forth the grounds for disciplinary

sanctions). The regulations provide for summary disciplinary proceedings

against a practitioner, like the respondent, who has been suspended

or disbarred by a State. See 8 C.F.R § 1003.103(b)(2) (2010) (referring

to proceedings based on a final order of disbarment or suspension as reciprocal

discipline). Where the EOIR Disciplinary Counsel brings proceedings based

on a final order of suspension or disbarment, such an order creates a rebuttable

presumption that reciprocal disciplinary sanctions should follow. Id.; see also

Matter of Truong, 24 I&N Dec. 52, 54 (BIA 2006); Matter of Ramos, 23 I&N

Dec. 843, 845, 847-48 (BIA 2005); Matter of Gadda, 23 I&N Dec. 645, 648

(BIA 2003), aff’d, Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004). This

presumption can be rebutted only if the attorney demonstrates by clear

and convincing evidence that the underlying disciplinary proceeding resulted

in a deprivation of due process, that there was “an infirmity of proof”

establishing the misconduct, or that discipline would result in “grave

injustice.” 8 C.F.R § 1003.103(b)(2).

The Attorney General has held that the standard for attorney suspension

before the Board “is the same as that for disbarment before the federal courts.”

Matter of Bogart, 15 I&N Dec. 552, 561 (BIA 1975; A.G., BIA 1976).

Federal courts considering reciprocal discipline cases “engage[] in a function

far different from a court seeking to impose discipline in the first instance.

Before imposing reciprocal discipline, a court need only conduct a deferential

review of the proceedings that resulted in the initial discipline imposed

to satisfy itself that the discipline was not inappropriate under one or more

of the [required] factors.” In re Kramer, 282 F.3d 721, 725 (9th Cir. 2002);

see also In re Sibley, 564 F.3d 1335, 1339-40 (D.C. Cir. 2009) (stating that

1

Because the respondent filed his Notice of Appeal after the January 20, 2009, effective date

of the revisions to the regulations regarding professional conduct, the revised regulations

apply to his case. In citing the revised regulations in this decision, we refer to the 2010 Code

of Federal Regulations, in which all regulations in effect as of January 1, 2010, will

be codified. Although they were not yet effective as of the January 1, 2009, update of the

Code of Federal Regulations, the revised regulations are available in the 2009 volume of the

Code as effective date notes.

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reciprocal discipline is appropriate unless the attorney shows that there has

been a deprivation of due process, infirmity of proof, or grave injustice, or that

the misconduct warrants a substantially different discipline); In re Oliveras

López De Victoria, 561 F.3d 1, 3–4 (1st Cir. 2009) (stating that a State court’s

substantive findings “‘ordinarily are entitled to a high degree of respect when

this court is asked to impose reciprocal discipline’” and that as a general rule,

discipline substantially similar to that imposed by the State court will

be imposed in a reciprocal proceeding (quoting In re Williams, 398 F.3d 116,

118 (1st Cir. 2005))).

We therefore follow a similar deferential approach in cases involving

reciprocal discipline. Indeed, we have imposed identical reciprocal discipline

against practitioners who have been suspended or disbarred. See, e.g., Matter

of Ramos, 23 I&N Dec. at 848 (holding that expulsion was the appropriate

sanction for an attorney who was disbarred); Matter of Gadda, 23 I&N Dec.

at 649 (same).

The Adjudicating Official took into account the respondent’s claims

concerning the New York Grievance Committee and other claimed unfairness

relating to his suspension in New York, as well as his defenses against the

second disciplinary action in New York, which resulted in disbarment. The

respondent was represented by counsel, given hearings, and had the

opportunity to appeal. “Notice and an opportunity to be heard [were] clearly

not at issue.” Matter of Truong, 24 I&N Dec. at 54. Therefore, no showing

of deprivation of due process has been made. 8 C.F.R § 1003.103(b)(2)(i).

Moreover, there is no merit in the respondent’s assertion that there was

an infirmity of proof in the second New York proceeding, where he admitted

that he could not successfully defend himself and tendered his resignation.

As the Adjudicating Official rightly concluded concerning the respondent’s

disbarment,

In view of the fact that Respondent resigned from the New York Bar in an affidavit

which asserts that he is unable to successfully defend himself in connection with the

pending disciplinary proceedings, his critique thereof cannot be material to the

defense of the charges brought by [the EOIR Disciplinary Counsel].

The EOIR Disciplinary Counsel argues that if the respondent believes that

prosecutorial misconduct caused him to resign from the New York Bar,

he should “seek to withdraw that resignation and litigate his disciplinary case

in New York.” We agree that it is not appropriate to relitigate issues

related to the merits of the State disciplinary proceedings in this forum. See

In re Williams, 398 F.3d at 119 (stating that the purpose of the hearing is not

to retry the State disciplinary proceeding); cf. Matter of Rodriguez-Ruiz,

22 I&N Dec. 1378, 1379-80 (BIA 2000) (stating that the Board cannot

“go behind” a State court order to determine whether it acted in conformity

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with State law but must instead accord “full faith and credit” to the court’s

judgments).

The respondent argued that it would be a “grave injustice” to impose

discipline reciprocal to New York because New Jersey imposed a shorter

disciplinary period. The Adjudicating Official rejected this contention and

we agree. There may be many valid reasons why one State would impose

a disciplinary period that is different from that of another State. The fact that

one State imposes a different disciplinary period does not constitute a “grave

injustice” under the regulation. See Matter of Truong, 24 I&N Dec. at 55

(suspending from practice for 7 years an attorney who was disbarred in New

York).2

The Adjudicating Official also determined that the hardship claimed by the

respondent, including financial burdens relating to his family’s medical

expenses, do not constitute “grave injustice.” We agree with the Adjudicating

Official that “hardship and the difficulties attendant to disbarment do not

equate to injustice.” If the financial hardship that accompanies suspension

from the practice of law was in itself adequate to establish grave injustice, then

almost any attorney whose livelihood was based on his legal practice could

avoid similar reciprocal discipline.

Moreover, the respondent submitted appearance forms that failed

to properly notify the Immigration Courts of his disbarment and, in so doing,

declared falsely under penalty of perjury and intentionally misled the courts.

We agree with the Adjudicating Official that such conduct is clearly

inconsistent with any claim for abatement of identical reciprocal discipline.

The respondent has submitted additional exhibits on appeal. The Board

is an appellate body and does not consider new evidence presented on appeal.

See Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984). Several of the

documents were previously available and could have been presented before the

Adjudicating Official. Cf. Matter of Coelho, 20 I&N Dec. 464, 471 n.3 (BIA

1992) (referencing the regulations relating to motions to reopen in immigration

proceedings). Other documents relate to the respondent’s claim that he should

not have been suspended from the practice of law in New York for 2 years and

therefore are not relevant. One exhibit is a March 31, 2009, order of the

United States District Court for the District of New Jersey, which temporarily

suspends the respondent from the practice of law until further order of the

court. As discussed, the proceedings before the Adjudicating Official do not

allow the respondent to relitigate the New York disciplinary proceedings.

2

Although the respondent’s suspension in New Jersey will terminate before his disbarment

in New York, an attorney must be a member of good standing of a bar and must not

be “‘under any order of any court suspending . . . him in the practice of law.’” Matter

of Rosenberg, 24 I&N Dec. 744, 746 (BIA 2009) (quoting 8 C.F.R. § 1001.1(f) (2008)).

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Therefore this order does not relate to the question before us, namely, whether

the respondent should be subject to reciprocal discipline similar to that

imposed by New York.

The respondent also argues that the Adjudicating Official improperly

denied his motion to change venue to New Jersey from Boston, where the

respondent claims to lack ties. The venue change request was correctly

denied. Under 8 C.F.R. § 1003.106(a)(2)(i), the Chief Immigration Judge

appoints an Adjudicating Official. The regulation further provides that

“[a]n Immigration Judge shall not serve as the adjudicating official in any case

involving a practitioner who regularly appears before him or her.” Id. Thus,

the regulation contemplates that the Adjudicating Official will be appointed

from outside a practitioner’s geographic location. See Executive Office for

Immigration Review; Representation and Appearances, 52 Fed. Reg. 24,980,

24,980 (July 2, 1987) (Supplementary Information) (stating that in most cases,

an Adjudicating Official will be appointed from outside the location where

a respondent practices). In any event, the Adjudicating Official gives “due

regard” to the location of a practitioner’s practice or residence, as well as the

convenience of witnesses. 8 C.F.R. § 1003.106(a)(2)(ii). Had a hearing been

necessary in this case, the Adjudicating Official would have considered the

proper location to hold such hearing. Instead, the Adjudicating Official

decided the case based on the filings of the parties after conducting

a prehearing conference by telephone. All indications are that he was a fair

adjudicator.

In sum, the appeal of the Adjudicating Official’s decision will

be dismissed, and the respondent will be suspended from practice for 7 years.3

ORDER: The respondent’s appeal is dismissed, and he is suspended from

practice before the Board of Immigration Appeals, the Immigration Courts,

and the DHS for a period of 7 years, effective April 15, 2008.

FURTHER ORDER: The respondent is instructed to maintain

compliance with the directives set forth in our prior order and to notify the

Board of any further disciplinary action against him.

FURTHER ORDER: The respondent may petition the Board for

reinstatement to practice pursuant to the requirements set forth in 8 C.F.R.

§ 1003.107(b) (2010).

FURTHER ORDER: Since the Board previously imposed an immediate

suspension order in this case, this order becomes effective immediately

pursuant to 8 C.F.R. § 1003.105(d)(2) (2010).

3

Although the Adjudicating Official indefinitely suspended the respondent from practice,

we suspend him from practice for 7 years, as requested by the EOIR Disciplinary Counsel.

This term is proper because an attorney who has been disbarred in New York may only seek

reinstatement after 7 years. See In re Leonard, 845 N.Y.S.2d at 226.

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