suspending from practice for 7 years an attorney who was disbarred in New York
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- suspending from practice for 7 years an attorney who was disbarred in New York
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The opinion
Cite as 24 I&N Dec. 52 (BIA 2006) Interim Decision #3547
In re Mac TRUONG, Attorney
File D2004-015
Decided as amended November 16, 20061
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Under the attorney discipline regulations, a disbarment order issued against a
practitioner creates a rebuttable presumption of professional misconduct, which can only
be rebutted by a showing 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.
(2) Where the respondent was disbarred by the highest court of the State of New York,
based in large part on his misconduct in a State court action, and where none of the
exceptions to discipline are applicable, suspension from practice before the Board of
Immigration Appeals, the Immigration Courts, and the Department of Homeland Security
for 7 years is an appropriate sanction.
ON BEHALF OF RESPONDENT: Pro se
FOR EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, OFFICE OF GENERAL
COUNSEL: Jennifer J. Barnes, Esquire, Falls Church, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Eileen M. Connolly, Appellate
Counsel
BEFORE: Board Panel: HURWITZ, Acting Vice Chairman; HOLMES and GRANT,
Board Members.
HURWITZ, Acting Vice Chairman:
On March 30, 2006, an Assistant Chief Immigration Judge, acting as the
adjudicating official in this case, ordered the respondent suspended from
practice before the Immigration Courts, the Board of Immigration Appeals,
and the Department of Homeland Security (“DHS”) for a period of 7 years,
1
The Office of General Counsel for the Executive Office for Immigration Review filed a
motion requesting that we amend our August 16, 2006, order in this case and designate it
as a precedent. The motion is granted. The amended order makes editorial changes
consistent with our designation of this case as a precedent.
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Cite as 24 I&N Dec. 52 (BIA 2006) Interim Decision #3547
commencing on August 11, 2005. The respondent appealed from that
decision.2 The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
Disciplinary proceedings were instituted against the respondent in New
York, based in large part on his professional misconduct in a landlord-tenant
dispute in which he was found to have offered a forged lease into evidence
and given false testimony in support of that evidence. See Broadwhite
Assocs. v. Truong, 740 N.Y.S.2d 882 (N.Y. App. Div. 2002). The respondent
unsuccessfully challenged the finding of professional misconduct in several
fora, including Federal district courts in New York and New Jersey, a
bankruptcy court, the Appellate Division of the New York Supreme
Court, and the United States Court of Appeals for the Third Circuit. On
December 2, 2003, the New York Supreme Court, Appellate Division, First
Judicial Department, suspended the respondent from the practice of law.
Matter of Truong, 768 N.Y.S.2d 450 (N.Y. App. Div. 2003). Consequently,
on February 9, 2004, the Office of General Counsel for the Executive Office
for Immigration Review petitioned for the respondent’s immediate suspension
from practice before the Immigration Courts and the Board of Immigration
Appeals. On February 11, 2004, the DHS asked that the respondent be
similarly suspended from practice before that agency. On March 19, 2004, we
suspended the respondent from practicing before the Immigration Courts, the
Board, and the DHS pending final disposition of this proceeding. We
declined to reconsider this order on April 27, 2004.
On August 11, 2005, the New York Supreme Court, Appellate Division,
First Judicial Department, disbarred the respondent from the practice of law.
In Re Truong, 800 N.Y.S.2d 12 (N.Y. App. Div. 2005). An attempted appeal
of this order was dismissed as untimely on February 16, 2006. In Re Truong,
6 N.Y.3d 799 (N.Y. 2006).
On September 19, 2005, the Office of General Counsel filed a Notice of
Intent to Discipline, seeking the respondent’s suspension from practice before
the Immigration Courts and the Board for 7 years. On September 21, 2005,
the DHS requested that this same sanction be applied to bar the respondent’s
practice before that agency.
Because the respondent requested a hearing on the charges in the Notice of
Intent to Discipline, the record was forwarded to the Office of the Chief
Immigration Judge pursuant to 8 C.F.R. § 1003.106(a)(1)(i) (2005), which
states that in attorney discipline cases, that office shall appoint an adjudicating
official when an answer is filed. See also Matter of Ramos, 23 I&N
2
The respondent also filed a “Notice of Cross-Motion To Reconsider, Renew And/Or
Vacate Decision/Order” on September 26, 2006, following our initial order of August 16,
2006. We denied that motion in a decision dated September 26, 2006.
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Cite as 24 I&N Dec. 52 (BIA 2006) Interim Decision #3547
Dec. 843, 845 (BIA 2005); Matter of Gadda, 23 I&N Dec. 645, 646-47
(BIA 2003), aff’d, Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004).
On March 30, 2006, the Assistant Chief Immigration Judge suspended the
respondent from practice before the Immigration Courts, the Board, and the
DHS for a period of 7 years. The respondent filed a timely appeal on
April 12, 2006. See 8 C.F.R. § 1003.106(c) (2006) (providing that the Board
has jurisdiction to review the decision of the adjudicating official and
conducts a de novo review of the record); see also Matter of Ramos, supra,
at 845; Matter of Gadda, supra, at 647.
II. ANALYSIS
As alleged by the Office of General Counsel, the respondent has been
disbarred by the highest court of the State of New York. We therefore find
that there are grounds for discipline. 8 C.F.R. §§ 1003.102(e)(1), 1292.3(b),
(c)(1) (2006).
Where the Office of General Counsel brings proceedings based on a final
order of disbarment, such an order creates a rebuttable presumption of
professional misconduct from which disciplinary sanctions should follow.
8 C.F.R. § 1003.103(b)(2) (2006); see also Matter of Ramos, supra, at 845,
847-48; Matter of Gadda, supra, at 648. Such a presumption can only be
rebutted by a showing 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), 1292.3(c)(3)(ii); see also Matter of Ramos,
supra, at 847-48.
We agree with the Assistant Chief Immigration Judge’s findings that none
of the above exceptions apply in this case and that disciplinary sanctions are
appropriate because the presumption of professional misconduct has not been
rebutted. First, the respondent did not establish that the “underlying
disciplinary proceeding was so lacking in notice or opportunity to be heard as
to constitute a deprivation of due process.” 8 C.F.R. § 1003.103(b)(2)(i). As
discussed above and as found by the Assistant Chief Immigration Judge, the
respondent has challenged the underlying ruling in Broadwhite Assocs. v.
Truong, supra, as well as the resulting disciplinary action, before multiple
State and Federal courts. Notice and opportunity to be heard are clearly not
at issue.
Next, the respondent did not show that there was “such an infirmity of
proof establishing the attorney’s professional misconduct as to give rise
to the clear conviction that the adjudicating official could not, consistent
with his . . . duty, accept as final the conclusion on that subject.”
8 C.F.R. § 1003.103(b)(2)(ii). The State court findings in Broadwhite
Assocs. v. Truong, supra, are final, and numerous courts have declined to
nullify the order in that case.
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Cite as 24 I&N Dec. 52 (BIA 2006) Interim Decision #3547
Finally, the respondent made no showing that the “imposition of
discipline by the adjudicating official would result in grave injustice.”
8 C.F.R. § 1003.103(b)(2)(iii). Given the respondent’s extensive unsuccessful
litigation of the initial misconduct findings and his disbarment, we cannot find
that the imposition of comparable discipline in these proceedings would be
unjust.
In sum, we agree that the respondent failed to show that any of the
exceptions to discipline listed in 8 C.F.R. § 1003.103(b)(2) are applicable.
Discipline was therefore properly ordered based on the final order of
disbarment issued by the highest court of the State of New York on
August 11, 2005. We further concur that suspension from practice for 7 years
is an appropriate sanction.
ORDER: The appeal is dismissed.
FURTHER ORDER: The respondent is suspended from practice before
the Immigration Courts, the Board of Immigration Appeals, and the
Department of Homeland Security for a period of 7 years, effective
August 11, 2005.
55