Interim Decision #3237

Interim Decision #3237

MATTER OF SPARROW

In Suspension Proceedings Under 8 C.F.R. § 292.3

Decided by Board June 22, 1994

(1) Because the Notice of Entry of Appearance as Attorney or Representative (Form G28) is designed to determine whether an individual is an attorney within the meaning

of 8 C.F.R. § 1.1(1) (1994), an attorney filing this form has a duty to disclose

disciplinary actions or other restrictions on his practice of law in the bars of courts in

jurisdictions other than those in which he claims to be in good standing.

(2) Where an attorney in disciplinary proceedings under 8 C.F.R. § 292.3(a)(10) (1994)

is charged with willfully making false and material statements or representations with

respect to his qualifications or authority to represent others in any case, his false

statement or representation is deemed material if it has a tendency to influence, or is

capable of influencing, the decision of the decision-making body to which it was

addressed.

(3) A 10-year suspension from the practice of law before the Immigration and

Naturalization Service and the Executive Office for Immigration Review is appropri

ate where the respondent has a conviction which involved a conspiracy to violate

immigration laws through a sham marriage scheme, making false statements to the

Service, suborning perjury, and stealing government property; the respondent is under

suspension from the practice of law in three states; the respondent misrepresented his

qualifications or authority to represent others in immigration proceedings on Notices

of Entry of Appearance; and the respondent did not report his conviction to the

Executive Office for Immigration Review or state bar authorities.

-

CHARGES: 8 C.F.R. § 292.3(a)(3)

8 C.F.R. § 292.3(a)(7)

8 C.F.R. § 292.3(a)(10)

8 C.F.R. § 292.3(a)(13)

ON BEHALF OF SERVICE:

Rachel A. McCarthy

Assistant Regional

Counsel

ON BEHALF OF RESPONDENT:

Sheila Brooks-Tahir, Esquire

233 West Main Street

Salisbury, Maryland 21801

BY: Dunne, Acting Chairman; Heilman, Board Member, Grant, Temporary Board

Member

On January 11, 1991, the Acting General Counsel of the Immigraand Naturalization Service issued a Petition for Attorney

Discipline against the respondent pursuant to the provisions for

tion

920

Interim Decision #3237

suspension or disbarment under 8 C.F.R. § 292.3 (1991).' The

Petition for Attorney Discipline contains 11 charges against the

respondent alleging violations of 8 C.F.R. §§ 292.3(a)(3), (7), (10), and

(13). These charges arise from the respondent's January 10, 1983,

conviction for involvement in sham marriage schemes designed to

deceive the Service, the suspensions from the practice of law imposed

by several jurisdictions as a result of the conviction, and the

respondent's subsequent representations regarding his qualifications

or authority to represent others.

The Petition for Attorney Discipline was served on the respondent

and filed with the Office of the Chief Immigration Judge in accordance

with 8 C.F.R. § 292.3(b)(ii). The respondent filed a response to the

Petition for Attorney Discipline. A hearing was subsequently held

before an assistant chief immigration judge. In his decision dated

March 13, 1992, the assistant chief immigration judge found that

Charge VIII had not been proven and dismissed that charge. He found

that the other charges had been proven, however, and ordered that the

respondent be suspended from the practice of law before the Service

and the Executive Office for Immigration Review for a period of 1

year and 9 months, with leave to petition the court for reinstatement

on March 12. 1993. The Service appealed from the assistant chief

immigration judge's dismissal of Charge VIII. The respondent appealed from the assistant chief immigration judge's findings regarding

the other charges and from the order of suspension. These appeals are

the subject of the proceedings now before us. 2

The regulatory grounds upon which the proceedings before us are

based are set forth at 8 C.F.R. § 292.3 (1994), 3 which currently

provides in pertinent part:

(a) Grounds. The Immigration Judge, Board, or Attorney General may suspend or bar

from further practice before the Executive Office for Immigration Review or the

Service, or may take other appropriate disciplinary action against. an attorney or

'This petition supersedes a petition issued by the Service against the respondent in

February 1990, as the earlier petition was not signed or dated by the General Counsel of

the Service.

2 While the appeals were pending, the respondent submitted a motion to remand in

order for the assistant chief immigration judge to consider documents which the

respondent received from the Service pursuant to a Freedom of Information Act request.

Remand for this purpose is unnecessary, as unredacted versions of these Service

documents are already contained in the record as an exhibit, which was examined by the

assistant chief immigration judge in camera.

3 Since the Petition for Attorney Discipline was issued against the respondent, 8

C.F.R. 292.3 (1991) has been revised. See 57 red. Reg. 11,574 (1992). As none of the

revisions affects any of the issues in this case or any of the grounds alleged against the

respondent in the Petition for Attorney Discipline, we refer to the current version of

these regulations.

921

Interim Decision #3237

representative if it is found that it is in the public interest to do so. Appropriate

disciplinary sanctions may include disbarment, suspension, reprimand or censure, or

such other sanction as deemed appropriate. The suspension, disbarment, or

imposition of other appropriate disciplinary action against an attorney or representative who is within one or more of the following categories shall be deemed to be in

the public interest, for the purposes of this part, but the enumeration of the following

categories does not constitute the exclusive grounds for discipline in the public

interest:

(3) Who willfully misleads, misinforms, or deceives an officer or employee of the

Department of Justice concerning any material and, relevant fact in connection with a

case;

(7) Who has been temporarily suspended, and such suspension is still in effect, or

permanently disbarred, from practice in any court, Federal, State (including the

District of Columbia), territorial, or insular;

(10) Who willfully made false and material statements or representations with

respect to his qualifications or authority to represent others in any case;

(13) Who has been convicted of a felony, or, having been convicted of any crime

is sentenced to imprisonment for a term of more than one year

In disciplinary proceedings under 8 C.F.R. § 292.3, which are based.

on the suspension from the practice of law by a state court, an attorney

is entitled to the opportunity to present contentions and evidence

regarding any alleged fundamental procedural inadequacy of his state

court suspension and any alleged insubstantiality of evidence supporting it. Matter of ogart, 15 I&N Dec. 552 (BIA 1975; A.G., BIA 1976).

Before discipline may be imposed in disciplinary proceedings under 13

C.F.R. § 292.3, any allegations of misconduct must be established by

evidence which is "clear, convincing, and unequivocal." 8 C.F.R.

§ 292.3(b)(1)(iv); see also Matter of Solomon, 16 I&N Dec. 388 (BIA,

A.G. 1977); Matter of Koden,, 15 I&N Dec. 739 (BIA 1974; A.G., BIA

1976), affd, 564 F.2d 228 (7th Cir. 1977).

The respondent has challenged the propriety of these proceedings

on two grounds. First, he maintains that the doctrine of laches should

apply against the Service to prevent it from pursuing the instant

disciplinary proceedings against him. In this regard, he argues that he

has been prejudiced by the Service's issuance of the Petition for

Attorney Discipline years after his 1983 conviction. He claims that in

correspondence to him while he was in prison in California in early

1983, the Service agreed to postpone proceedings to await and rely

upon the outcome of California disciplinary proceedings against him.

The respondent asserts that he has been prejudiced by the passage of

922

Interim Decision #3237

time because neither he nor the Service is now able to locate any

record of this correspondence to prove that the Service made this

agreement.

Laches is an affirmative defense in which the party raising the

defense has the burden of proving that he changed his position to his

detriment and prejudice through reliance upon the unreasonable delay

in instituting actions against him. See AmBrit, Inc. v. Kraft, Inc., 812

F.2d 1531 (11th Cir. 1986), cert. denied, 481 U.S. 1041 (1987); Matter

of Onal, 18 I&N Dec. 147 (BIA 1981, 1983).

We need not reach the issue of whether the elements of laches have

been satisfied in this case, as the respondent has not shown that the

equitable doctrine of laches is applicable to these proceedings. The

cases cited by the respondent in his brief are not lathes cases, but

instead are cases which involve the issues of speedy trial and

preindictment delay in criminal prosecutions. He has presented no

authority for applying laches to the disciplinary proceedings before us.

Laches or neglect of duty on the part of officers of the Government

generally may not be invoked against the Government when it acts to

enforce a public right or protect a public interest. See United States v.

Summerlin, 310 U.S. 414 (1940); Guaranty Trust Co. v. United States,

304 U.S. 126 (1938); Utah Power & Light Co. v. United States, 243

U.S. 389 (1911); Bostwick Irrigation District v. United States, 900 F.2d

1285 (8th Cir_ 1990); United States v. Repass, 688 F-2d 154 (2d Cir.

1982); Matter of K-, 4 I&N Dec. 480 (BIA 1951). In initiating

disciplinary proceedings against the respondent, the Service has

expressly alleged pursuant to 8 C.F.R. § 292.3(a) that it is "in the

public interest" to do so. Moreover, the record reflects that in their

respective attorney disciplinary proceedings, state authorities were not

deterred by the passage of time since the respondent's 1983 conviction

when they used that conviction as the basis for suspending or

disbarring the respondent from the practice of law in 1988 in

Maryland and in 1990 in New York and Rhode Island.

The respondent's other argument against the propriety of these

proceedings is that the Service instituted them vindictively because of

the effectiveness of the respondent's pro Bono representation of aliens

before the Service and the Service's disappointment over its inability

to convince an Assistant United States Attorney to prosecute the

respondent for alleged false statements on Notices of Entry of

Appearance as Attorney or Representative (Form G-28) ("Notice of

Entry of Appearance"). In support of this argument, the respondent

submitted copies of briefs and other documents he filed on behalf of

clients. He also refers to Service documents indicating that an

Assistant United States Attorney was approached by the Service to

923

Interim Decision #3237

review the charges against the respondent of false statements in

Notices of Entry of Appearance but declined to prosecute.

This argument of vindictive prosecution is without merit. The

grounds for instituting disciplinary proceedings against the respondent

are so amply supported by the record that we find no basis whatsoever

for reaching out to impute an improper motive to the Service in this

regard. The respondent has a felony conviction for multiple offenses

involving his representation in immigration cases. This conviction

fully justified the Service's institution of proceedings under 8 C.F.R.

§ 292.3 to protect the "public interest." Moreover, disciplinary

authorities in four different jurisdictions, California, Maryland, New

York, and Rhode Island, have found the imposition of discipline on

the respondent warranted because of this conviction, and their actions

in turn provide additional, grounds for the Service to charge the

respondent in disciplinary proceedings. Further, the record reflects

that the 1989 investigation of the respondent, which led to the instant

proceedings against him, was begun not because of any success the

respondent may have had in representing clients before the Service,

but because a Service employee noticed the respondent's appearance

as counsel in several cases and questioned why he was still praCticing

before the Service after having been convicted. In addition, its

consultation with an Assistant. United States Attorney regarding

possible prosecution of the respondent is indicative merely of the

Service's exploration of its options in proceeding against the respondent. We do not consider the consultation or the subsequent institution of disciplinary proceedings against the respondent to be vindictive

actions on the part of the Service.

We turn now to the specific charges alleged against the respondent

in the Petition for Attorney Discipline. The first ground for discipline

is predicated upon the respondent's alleged violation of 8 C.F.R.

§ 292.3(a)(13). Charge I alleges that on January 10, 1983, in the

United States District Court for the Southern District of California,

having been convicted of the following offenses, the respondent was

sentenced to 2 years for each count, to be served concurrently:

conspiracy to make false statements, suborn perjury, and steal

government property, in violation of 18 U.S.C. §§ 371, 641, 1001,

1621(a), and 1622; making false statements (two counts), in violation

of 18 U.S.C. § 1001; and subornation of perjury, in violation of 18

U.S.C. §§ 1621(a) and 1622. Charge I further alleges that at the same

hearing, the respondent, having been convicted of theft of government

property, in violation of 18 U.S.C. § 641, was placed on probation for

a period of 5 years, imposition of sentence having been suspended, on

the conditions that he obey all laws and all lawful rules and regulations

of the probation department, and that he not engage in the practice of

924

Interim Decision #3237

law until reinstated by the Supreme Court of California. It alleges that

the probationary sentence was to be consecutive to the period of

incarceration. Charge I is supported by the certified copy of the

respondent's criminal judgment which is contained in the record. We

therefore find that Charge I has been established by clear, convincing,

and unequivocal evidence.

Charges II, III, and IV allege violations of 8 C.F.R. § 292.3(a)(3) in

that the respondent willfully misled, misinformed, or deceived an

officer or employee of the Service concerning a material and relevant

fact in connection with a case. Under Charge II, it is alleged that on or

about July 6, 1981, the respondent filed with the Service an Immigrant

Visa Petition (Form I-130E), on which it was claimed that. Arceli

Bautista and Bryce Paul Bell had resided together as husband and wife

at 1856 Madera Street, Lemon Grove, California, when the respondent

knew that the said marriage was a sham and that the parties had never

lived together.

Under Charge III, it is alleged that on or about September 10, 1981,

the respondent filed with the Service an Immigrant Visa Petition

(Form I-I 30E), an Application for Status as Permanent Resident

(Form I-485H), and an Affidavit of Support (Form 1-134) in which it

was claimed that Fidel Velez Uy and Sandra Anna Antunez had

resided together as husband and wife at 7920 Odell Place, San Diego,

California, when the respondent knew that the said marriage was a

sham and that the parties had never lived together.

Charge IV alleges that on or about July 6, 1981, the respondent

willfully procured, assisted, and suborned Bryce Paul Bell to take an

oath in a Service matter to testify truthfully, and contrary to such oath,

to state material matters on an Immigrant Visa Petition (Form I 130E)

which neither the respondent nor Bryce Paul Bell believed to be true,

to wit: that Bryce Paul Bell and Arceli Bautista resided together as

husband and wife at 1856 Madera Street, Lemon Grove, California,

when the marriage was a sham and Bryce Paul Bell and Arceli Bautista

had never lived together.

Charges II, III, and IV match Counts 3, 5, and 12 in the indictment

in the respondent's criminal case. A certified copy of this indictment is

contained in the record. The respondent's criminal judgment indicates

that the respondent was found guilty of Counts 3, 5, and 12 in the

indictment. Therefore, based on the supporting evidence of the

indictment and the respondent's criminal judgment, we find that

-

Charges II, III, and IV have been established by clear, convincing, and

unequivocal evidence.

Charges V and VI are predicated upon alleged violations of 8 C.F.R.

§ 292.3(a)(7) in that the respondent has been temporarily suspended,

and such suspension is still in effect, from practice in any court,

975

Interim Decision #3237

Federal, State (including the District of Columbia), territorial, or

insular. Under Charge V, it is alleged that on December 20, 1988, the

Court of Appeals of Maryland indefinitely suspended the respondent

from the practice of law, with leave to apply for reinstatement at the

expiration of 1 year from the date of its order. Charge VI alleges that

on September 20, 1990, the Supreme Court of Rhode Island indefinitely suspended the respondent from engaging in the practice of law

in Rhode Island.

Charge V is supported by the certified copy of the December 20,

1988, order from the Court of Appeals of Maryland, reflecting that the

respondent was suspended indefinitely from the further practice of law

in Maryland with leave to apply for reinstatement at the expiration of

1 year from the date of the order. The record also contains a June 26,

1990, order from the Court of Appeals of Maryland in which the court

denied the respondent's petition for termination of his indefinite

suspension on the grounds that during the period of his indefinite

suspension the respondent may have engaged in the practice of law in

another jurisdiction in which he was not admitted to practice and in

connection therewith made false and misleading statements. Charge

VI is supported by a certified copy of the September 20, 1990, order of

the Supreme Court of Rhode Island reflecting that the respondent was

ordered suspended indefmitely from engaging in the practice of law in

Rhode Island. In the disciplinary proceedings before us, the respondent did not raise any issues of fundamental procedural inadequacies

or insufficiency of evidence regarding his suspensions from the

practice of law in. Maryland and Rhode Island. See Matter of Bogart,

supra. We therefore find that Charges. V and VI have been established

by clear, convincing, and unequivocal evidence.

The remaining charges, Charges VII through XI, allege that the

,

respondent violated 8 C.F.R. § 292.3(a)(10) by willfully making false

and material statements or representations with respect to his qualifi-

cations or authority to represent others in any case. Under Charge VII,

it is alleged that on or about April 5, 1989, in connection with three

Petitions for Alien Relative (Form 1-130) by Eliodoro Llaucs Quitoriano filed with the Service, the respondent submitted a Notice of Entry

of Appearance in which he alleged that he was a member in good

standing of the Bars of the States of New York and California,

knowing that he had not been registered with or deemed to be in good

standing by the Bar of the State of New York since 1982.

In support of Charge VII, the Service offered copies of the three visa

petitions and accompanying documents filed by Eliodoro Llanes

Quitoriano. Each packet of documents includes a Form G-28 dated

April 5. 1989, in which the respondent indicated that he was an

016

Interim Decision f13237

attorney and a member "in good standing" of the bar of the highest

court of the States of New York and California.

Also contained in the record is an October 11, 1989, letter to the

Service from the State of New York Unified Court System, Office of

Management Support, stating that in response to a letter from the

Service, it had conducted a search of the New York State Attorney

Registration records, maintained by that office pursuant to section 468

of the New York Judiciary Law. 4 The letter advises that the search

indicated that the respondent was admitted to the New York. Bar in

1973 by the Third Appellate Division of the New York Supreme Court

but that he had failed to register as a New York attorney since 1982.

According to the letter, the respondent would be unable to obtain a

certificate of good standing from the Appellate Division for as long as

his registration remained out of date.

In addition, the Service offered a May 22, 1991, letter from Michael

J. Novack, Clerk of the New York Supreme Court, Appellate Division,

Third Judicial Department, informing the Service that the respondent's name was stricken from the roll of New York attorneys on May

I, 1990, as a result of his 1983 felony conviction, and that the

respondent will not be eligible to> apply for reinstatement until the

expiration of at least 7 years after May 1, 1990. Enclosed with this

letter is a copy of the court's May 1, 1990, order. The court's order

indicates that the respondent's conviction for making a false statement

under 18 U.S.C. § 1001 is cognizable as a felony under New York law

for purposes of the automatic disbarment statute' and accordingly, the

respondent ceased to be an attorney upon his conviction of this crime.

The court's order further states that the respondent's failure to report

his conviction to that court as required by section 90(4)(c) of the New

York Judiciary Law also constituted misconduct which was serious. 6

4 Section 468-a of the New York Judiciary law provides that "[a]ttorneys shall register

biennially on the dates prescribed by the chief administrator" of the courts. It further

states, inter alia, that Injoncompliance by an attorney with the provisions of this

section and the rules promulgated hereunder shall constitute conduct prejudicial to the

administration of justice and shall be referred to the appropriate appellate division of

the supreme court for disciplinary action."

5 The automatic disbarment statute is found at section 90(4)(a) of the New York

Judiciary Law, which provides: "Any person being an attorney and counsellor-at-law

who shall be convicted of a felony as defined in paragraph e of this subdivision, shall

upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent

to practice law as such."

6 Section 90(4)(c) of the New York Judiciary Law provides in pertinent part:

Whenever an attorney shall be convicted of a crime in a court of record of the United

States or of any state, territory or district, including this state, whether by a plea of

guilty or nob contendere or from a verdict after trial or otherwise, the attorney shall

file, within thirty days thereafter, with the appellate division of the supreme court, the

927

Interim Decision #3237

In defense of Charge VII, the respondent submitted the original of a

certificate dated September 1, 1987, from Michael J. Novack, Clerk of

the State of New York, Appellate Division of the Supreme Court,

Third Judicial Department, in which it is certified that the respondent

was admitted to practice law by that court on September 5, 1973, and

"is currently in good standing and is registered with the Administrative Office of the Courts as required by section four hundred sixtyeight- a of the Judiciary Law." In his brief on appeal, the respondent

concedes that he did not pay his registration dues in 1982 or afterward,

but asserts that the nonpayment was inadvertent and that the issuance

of the certificate of good standing in 1987 proves that his failure to

perform this "ministerial act" did not preclude him from remaining a

New York attorney in good standing.

We conclude that the violation of 8 C.F.R. § 292.3(a)(10) alleged in

Charge VII has been established by clear, convincing, and unequivocal

evidence. We find unpersuasive the respondent's argument that the

issuance of the certificate of good standing proves that his failure to

register since 1982 was only the failure to perform a ministerial act and

did not preclude him from being considered a New York attorney in

good standing. It appears that the certificate of good standing from the

New York Supreme. Court, Appellate Division, Third Judicial Depart-

ment dated September 1, 1987, was issued in error and without

knowledge of the respondent's failure to register, as it is rebutted by

the October 11, 1989, letter from the Unified Court System, Office of

Management Support, the office which maintains the registration

records of New York attorneys. This letter states that the respondent

was ineligible for a certificate of good standing because he had failed to

register as a New York attorney since 1982. In addition, section 468 a

of the. New York Judiciary Law provides that an attorney's failure to

register biennially is a ground for referral of the attorney to the

appropriate division of the New York Supreme Court for disciplinary

action.

Moreover, the May 1, 1990, court order which struck the respondent's name from the roll of New York attorneys indicates that the

-

respondent was "automatically disbarred" when he received his felony

conviction for making a false statement, and that he committed

additional professional misconduct by failing to report his conviction

to the court within 30 days of its imposition. Thus, in view of the

respondent's failure to register as a New York attorney since 1982, his

1983 conviction of a felony which made him subject to the automatic

disbarment statute in New York, and his failure to comply with the

record of such conviction. The failure of the attorney to so file shall be deemed

professional misconduct ....

928

Interim Decision #3237

requirement that he notify the appellate division of the New York

Supreme Court of his conviction, we find that the respondent willfully

made a false and material statement or representation when he

claimed in. Notices of Entry of Appearance dated April 5, 1989, to be

an attorney in good standing in New York.

Under the next charge in the Petition for Attorney Discipline,

Charge VIII, it is alleged that the respondent violated 8 C.F.R.

§ 292.3(a)(10) when, on or -about April 5, 1989, in connection with

three Petitions for Alien Relative (Form I-130)> filed by Elidoro Llanes

Quitoriano with the Service, the respondent submitted Notices of

Entry of Appearance, in which he alleged that he was a member of the

Bars of the Slates of New York and California, willfully concealing his

suspension from the Bar of the State of Maryland. It is further alleged

that the respondent willfully and falsely represented that he was an

attorney within the meaning of 8 C.F.R. § 1.1(1), knowing that he had

been suspended from the practice of law in the State of Maryland.

In support of Charge VIII, the Service relied on the December 20,

1988, suspension order from the Court of Appeals of Maryland, which

was also the basis of the allegation in Charge V, as well as the Notices

of Entry of Appearance, which were also the bases of the allegation in

Charge VII. In these Notices of Entry of Appearance, the respondent

checked the block which reads as follows:

I am an attorney and a member in good standing of the bar of the Supreme Court of

the United States or of the highest court of the following State, territory, insular

possession, or District of Columbia (Name of Court) and am not under a court or

administrative agency order suspending, enjoining, restraining, disbarring, or

otherwise restricting me in practicing law.

On the line designated for "Name of Court," the respondent typed in

"New York, & California."

The assistant chief immigration judge found that the Service had

not met its burden with regard to Charge VIII. He stated that it was

not clear from the wording of the Form G-28 whether an attorney is

attesting only to his good standing in the states he lists, or whether he

is attesting that he is not under restrictions in any state. The assistant

chief immigration judge determined that the respondent's failure to

acknowledge the disciplinary action against him in Maryland on the

Form G-28 did not amount to willful, misrepresentation.

On appeal, the Service contends that the respondent made false and

material statements when he indicated on the Notices of Entry of

Appearance that he was not under a court or administrative order

suspending, enjoining, restraining, disbarring, or otherwise restricting

him in practicing law. It is argued that the Notice of Entry of

Appearance is the mechanism by which attorneys, as defined in 8

C.F.R. § 1.1(1) (1994), set forth the basis upon which they qualify to

929

Interim Decision #3237

provide representation to individuals before the Service. The Service

maintains that the assistant chief immigration judge improperly

disregarded the regulatory definition of the term "attorney," set forth

at 8 C.F.R. § 1.1(f), when he determined that the respondent did not

have an affirmative duty to disclose on the Notice of Entry of

Appearance his having been suspended in Maryland.

In defense of Charge VIII, the respondent argues that ambiguity

exists even within the definition of an attorney provided in 8 C.F.R.

§ 1.1(f). He maintains that this ambiguity precludes the Service from

establishing by clear, convincing, and unequivocal evidence that he

violated 8 C.F.R. § 292.3(a)(10).

Under the provisions of 8 C.F.R. § 292.1, only certain designated

individuals are authorized to represent persons before the Service and

the Executive Office for Immigration Review. Included in this

category are attorneys, as defined in 8 C.F.R. § 1.1(f), which provides

as follows:

The term attorney means any person who is a member in good standing of the bar of

the highest court of any State, possession, territory, Commonwealth, or the District

of Columbia, and is not under any order of any court suspending, enjoining,

restraining, disbarring, or otherwise restricting him in the practice of law.

We disagree with the respondent's contention on appeal that an

ambiguity exists within the definition of an attorney provided in 8

C.F.R. § 1.1(f). The plain language of the regulation indicates that a

person would not satisfy the defmition of an attorney if he were

subject to any order of any court which suspended, enjoined,

restrained, disbarred, or otherwise restricted him in the practice of

law, even if he were still a member in good standing in a court of

another jurisdiction. See Matter of Bogart, supra (in which proceedings

were pursued against an attorney solely on the basis of his suspension

from the practice of law in California despite the fact that he

purportedly remained an attorney in good standing in New York). Any

ambiguity arises from the slight variation in language between 8

C.F.R. § 1.1(f), which refers to "any order of any court," and the

Form G-28, which refers to "a court or administrative agency order."

(Emphasis added.) Thus, the issue before us is whether an attorney

submitting a Form G-28, on which he claims to be an attorney in good

standing in the bars of one or more courts, has a duty to disclose that

he has also been suspended, enjoined, restrained, disbarred, or

otherwise restricted in the practice of law in a court in another

jurisdiction which he has not listed.

We conclude that an attorney filing a Form G-28 does have a duty

to disclose disciplinary actions or other restrictions on his practice of

law in the bars of courts in jurisdictions other than those in which he

claims to be in good standing. The slight variation in language between

930

Interim Decision #3237

the Form G-28 and 8 C.F.R. § 1.1(0 notwithstanding, it is clear that

the Form 0-28 is designed to determine whether an individual is an

attorney within the meaning of 8 C.F.R. § 1.1(f). As an attorney who

satisfies the definition of an attorney found in 8 C.F.R. § 1.1(1) is the

only category of attorney authorized to appear in immigration

proceedings, the Notice of Entry of Appearance form must necessarily

apply that definition when an individual's eligibility to appear as an

attorney in those same proceedings is being determined based on the

form.

In addition, we note that unlike state bars, the Board of Immigration Appeals does not have a formal application process and admission

fee,7 conduct investigations or written examinations to determine an

applicant's fitness to practice, or send out annual registration statements for attorneys to return with updated information on bar

admissions and disciplinary actions. Indeed, the Board does not even

require documentary proof from an attorney of his admission to

whatever state bar he claims to belong to. Instead, we rely entirely on

the attorney's representations in the Notice of Entry of Appearance.

Because an attorney is our only source of information regarding his

own eligibility to appear as an attorney within the meaning of 8 C.F.R.

1.1(f), we must rely on him to disclose on the Form G-28 when he in

no longer eligible to appear in immigration proceedings, or to simply

refrain from appearing in immigration proceedings as long as his

ineligibility exists.

Moreover, our interpretation of the Form 0-28 as applying the

definition of an attorney set forth in 8 C.F.R. § 1.1(f) is supported by

the other Notices of Entry of Appearance currently in use in

immigration proceedings. The Form 0-28 is the Notice of Entry of

Appearance form used for representation in proceedings before the

Service. Different Notices of Entry of Appearance forms are used for

representation in proceedings before an immigration judge (Form

EOIR-28) and for representation in proceedings before the Board

(Form EOIR-27). Both of these forms were prescribed for use

beginning in January 1989 and are almost identical to the Form G 28

on the front side of the forms, including the block which an attorney

checks to indicate that he is an attorney in good standing. The reverse

side of the Form EOIR-28 and the Form EOIR-27, however, contain

language which is not included on the Form 0-28, which was last

revised in 1979. This language consists of an enumeration of the

-

7 At one time there was a general requirement that persons who sought to practice

before the Service submit an application, be admitted to practice, and pay a $25 fee. See

section 281(7) of the Immigration and Nationality Act, 8 U.S.C. § 1351(7) (1964),

repealed by Act of Oct. 21, 1968, Pub. L. No. 90-609, § 1, 82 Stat. 1199.

Interim Decision #3237

categories of persons entitled to serve as representatives. Among the

categories listed is "Attorneys in the United States. An 'attorney' is

defined in 8 C.F.R. § 1.1(f)." Thus, the Form EOIR-28 and the Form

EOIR.27, which seek the same type of information as the Form G 28,

expressly require that an attorney submitting the form be able to

satisfy the definition of an attorney found in 8 C.F.R. § 1.1(f). It is

logical to interpret the Form G-28 as imposing the same requirement.

We therefore conclude that the respondent had a duty to disclose on

any Form G-28 which he submitted whether he met the qualifications

of an attorney as provided in 8 C.F.R. § 1.1(f). In other words, he was

under an obligation to specify whether he was under any order of any

court suspending, enjoining, restraining, disbarring, or otherwise

restricting him in the practice of law so as to disqualify him from

appearing in immigration proceedings. When he submitted his Form

G-28 on April 5, 1989, with each of the three visa petitions filed by

Elidoro Llanes Quitoriano, he only indicated that he was a member in

good standing of the bars of the highest courts in New York and

California. He willfully and falsely represented that he was an attorney

within the meaning of 8 C.F.R. § 1.1(f) when he concealed that he had

been suspended from the practice of law in Maryland in 1988. Thus,

we find that the violation, of 8 C_RR § 292.3(a)(I 0) alleged in Charge

VIII has been established by clear, convincing, and unequivocal

evidence.

Charges IX, X, and XI allege violations of 8 C.F.R. § 292.3(a)(10)

involving the respondent's use of letterhead on which was printed the

jurisdictions in which the respondent was purportedly admitted to

practice. Charge IX alleges that on or about October 19, 1989, in

connection with a case, the respondent sent to Immigration Judge

Nejelski of the Executive Office of Immigration Review in Arlington,

Virginia, a letter in which the respondent represented that he was

admitted to practice in. Maryland and New York, knowing that he had

not been registered with or deemed to be in good standing by the Bar

of the State of New York since 1982. It is further alleged that he

willfully and falsely represented that he was an attorney within the

meaning of 8 C.F.R. § l(f), knowing that he had been suspended

from the practice of law in the State of Maryland.

Charge X alleges that on or about February 21, 1990, the

respondent sent a letter to the Clerk of the Court, Executive Office for

Immigration Review, Arlington, Virginia, about the same case as that

in Charge IX, and that in the letter he made the same representations

about being admitted to practice in Maryland and New York which

are alleged against him in Charge IX.

Charge XI alleges that on or about November 25, 1990, the

respondent sent to Alberto Gonzalez, Special Assistant United States

-

932

Interim Decision #3237

Attorney for the Northern District of California in connection with the

matter of Talens v. Thornburg, a letter in which he represented that he

was admitted to practice in Maryland and Rhode Island, willfully

concealing his suspensions from the Bars of the States of Maryland and

Rhode Island. It is further alleged that the respondent falsely

represented that he was an attorney within the meaning of 8 C.F.R.

§ 1.1(f), knowing that he had been suspended from the practice of law

in the States of Maryland and Rhode Island.

In support of Charge. IX, the Service offered a letter dated October

19, 1989, from the respondent to> Immigration Judge Nejelsld of the

Executive Office for Immigration Review in Arlington, Virginia,

requesting a hearing date for his client to discuss the Service's failure

to respond to her Freedom of Information Act request. The letter is

typed on letterhead at the top of which is printed the respondent's

name, addresses, telephone numbers, and the notation, "Admitted to

Practice Maryland, Pennsylvania, New York, Rhode Island, California

& Trust Territory of the Pacific Islands."

For Charge X, the Service offered a letter dated February 21, 1990,

from the respondent to the Clerk of the Court, Executive Office for

Immigration Review, Arlington, Virginia, transmitting an asylum

application and supporting, documents on behalf of a client, and

informing the court of his new office mailing address. The letter is

typed on letterhead, at the top of which is printed the respondent's

name, addresses, telephone numbers, and the same notation about the

jurisdictions in which he was admitted to practice as appears in the

October 19, 1989, letter.

In support of Charge XI, the Service offered a letter dated

November 25, 1990, telecopied by the respondent to Alberto Gonzalez, Special Assistant United States Attorney, discussing the proceed-

ings in Talens v. Thornburg, pending in the United States District

Court for the Northern District of California. From the context of the

letter, it appears that the respondent and Mr. Gonzalez were opposing

counsel in the case. The original letter was typed on letterhead at the

top of which is printed the respondent's name, addresses, telephone

numbers, and the notation, "Admitted to Practice Maryland, Pennsylvania, Rhode Island, California, Trust Territory of the Pacific

Islands."

In defense of Charges IX, X, and XI, the respondent argues that he

did not violate 8 C.F.R. § 292.3(a)(10) because he made no misrepresentation of a material fact. He contends that as he was not soliciting

the business of any of the people to whom the letters in those charges

were addressed, the representations about the bars to which he was

admitted were not material. The respondent cites several criminal

cases and maintains that the governing definition of materiality is

933

Interim Decision #3237

•

whether a statement has the natural tendency to influence the decision

of the tribunal which makes the decision. He argues that since the

matter for decision before the tribunal is the application or petition of

the client rather than of counsel, the letterhead of counsel cannot

possibly influence the adjudicatory process.

In his argument that the representations at issue in Charges IX, X,

and XI were not material, the respondent uses the definition of

materiality applied in criminal cases involving 18 U.S.C. § 1001. In

such cases, the test for materiality is whether the false statement has a

tendency to influence or is capable of influencing a federal agency.

United States v. Brantley, 786 E2d 1322 (7th Cir.), cert. denied, 477

U.S. 908 (1986); see also United States v. Beer, 518 F.2d 168 (5th Cir.

1975). As we have observed, then definition of materiality applied in

criminal cases involving 18 U.S.C. § 1001 is more expansive than that

typically applied in immigration proceedings involving issues of

material misrepresentation. See Matter of Martinez-Lopez, 10 I&N

Dec. 409 (BIA 1962; A.G. 1964). There is no authority defining

materiality for the express purposes of R C.F.R. § 292.3(a)(10),

however. Moreover, the United States Supreme Court has indicated,

in the naturalization context, that the materiality definition used in 18

U.S.C. § 1001 cases should be applied rather than the more restrictive

immigration definition. See Kungys v. United States, 485 U.S. 759,

770-72 (1988). We therefore adopt the definition of materiality used

for 18 U.S.C. § 1001 cases in order to determine whether a false

statement or representation is material for the purposes of 8 C.F.R.

§ 292.3(a)(10). Thus, we hold that a false statement or representation

is material under 8 C.F.R. § 292.3(a)(10) if it has a tendency to

influence, or is capable of influencing, the decision of the decisionmaking body to which it was addressed.

The issue before us with regard to> Charges IX and X is whether the

false representations alleged in these charges were material so as to

constitute violations of 8 C.F.R. § 292.3(a)(10). 8 These representations were the respondent's indication on his letterhead that he was

admitted to practice law in Maryland and New York when in fact he

had been suspended from the practice of law in Maryland, and he was

not an attorney in good standing in New York. Applying the definition

of materiality set forth above, we must now determine whether these

false representations had a tendency to influence, or were capable of

influencing, the decisions of the immigration judge and the court clerk

to whom the letters containing the false representations were addressed. We find that they did not.

8 We are satisfied that the representations were false, and on appeal the respondent has

not contested these charges on this basis.

934

Interim Decision #3237

The respondent's conduct in using letterhead that misrepresented

the jurisdictions in which he was authorized to practice was clearly

unethical. See, e.g., Model Rules of Professional Conduct Rules 7.1,

7.5 (1992). Moreover, as the respondent suggests on appeal, these

representations would have undoubtedly been material as to someone

who was induced by them to retain the respondent to perform legal

services. However, the only possible impact on the immigration judge

and the court clerk, to whom the letters in Charge IX and X were

addressed, would seem to be whether the respondent appeared to them

to be eligible under 8 C.F.R. § 1.1(f) to> represent clients in immigration proceedings. We need not decide whether such a determination of

the respondent's eligibility by either Executive Office for Immigration

Review employee would be a "decision" as contemplated by the

definition of a "material" representation as one having a tendency to

influence, or being capable of influencing, the decision of the decisionmaking body to which it was addressed. Even if we assume that a

determination of the respondent's eligibility by the immigration judge

or the court clerk would constitute a decision by a decision - making

body, we would still find that materiality has not been established here

because the representation alleged would not have provided them with

the information necessary to make such a determination.

It is not clear how the respondent's representations on his letterhead

as to the jurisdictions in which he was admitted to practice, whether

true or false, would have alerted the immigration judge and the court

clerk to his ineligibility under 8 C.F.R. § 1.1(f). No authority has been

presented to show that there exists a duty to disclose disciplinary

actions in other jurisdictions on one's letterhead similar to the duty to

disclose which we have found applicable to a Notice of Entry of

Appearance. Thus, even if the respondent had not made the false

representations on his letterhead, the immigration judge and the court

clerk would still have considered him eligible to practice under 8

C.F.R. § 1.1(f) because there would have been no indication on the

letterhead of any grounds for his ineligibility. Even without Maryland

and New York on the list of jurisdictions in which the respondent was

admitted to practice, four jurisdictions would still have remained on

the letterhead to make it appear that the respondent did meet the

definition of an attorney in 8 C.F.R. § 1.1(0. In other words, the

immigration judge and the court clerk would have conducted themselves in the same way whether or not the false representation

appeared in the letterhead; under either scenario, they would have

assumed that the respondent was eligible under 8 C.F.R. § 1.1(f) to

represent his client in immigration proceedings. Therefore, the Service

has not established by clear, convincing, and unequivocal evidence

that the false representations alleged in Charges IX and X influenced

935

Interim Decision #3237

any decisions on the part of the immigration judge and the court clerk

so as to qualify as material. We find that Charges IX and X have not

been sustained.

We further find that the last charge, Charge XI, also has not been

sustained. Under Charge XI, the respondent allegedly sent a Special

Assistant United States Attorney correspondence on printed letterhead

reflecting that the respondent was authorized to practice law in

Maryland and Rhode Island when he was under orders of suspension

in those jurisdictions, thus falsely representing that he was an attorney

within the meaning of S C.F.R. § 1.1(f). The record does not indicate

that these false representations were material as to the Special

Assistant United States Attorney, however; as with Charges IX and X,

it has not been shown that the false representations alleged in Charge

XI had a tendency to influence, or were capable of influencing, any

decision of the person to whom the letter was addressed.

In this regard, we note that the forum of the case about which the

respondent was corresponding with the Special Assistant United States

Attorney was not an immigration court, but rather was a federal

district court, that of the Northern District of California. Whether the

respondent was an attorney within the meaning of 8 C.F.R. § 1.1(f)

was irrelevant to his entitlement to represent clients in a district court,

which has its own rules regarding admission to practice and attorney

discipline. See Matter of brams, 521 F.2d 1094 (3d Cir,), cert. denied,

423 U.S. 1038 (1975), and cases cited therein; see also Matter of

Roberts, 682 F.2d 105 (3d Cir. 1982). In addition, as the record

contains no evidence about the specific procedures prescribed by the

United States District Court for the Northern District of California for

the admission, practice, and discipline of attorneys which were in

effect on November 25, 1990, it has not been shown that the

respondent was in violation of any of the court's requirements because

of his suspensions in Maryland and Rhode Island at the time. We

therefore find that the violation of 8 C.F.R. § 292.3(a)(10) alleged in

Charge XI has not been established by clear, convincing, and

unequivocal evidence_

Having found that the record establishes by clear, convincing, and

unequivocal evidence that the respondent committed the violations

alleged in Charges< I through VIII, we are of the opinion that the

respondent should be suspended from the practice of law before the

Service and the Executive Office for Immigration Review for a period

of 10 years, subject to his establishing that he is no longer under

discipline by the bars of any state courts. We recognize that the

suspension we are imposing is for a longer period than that set by the

assistant chief immigration judge. In his opinion, however, the

assistant chief immigration judge did not explain his reasons for

,

936

Interim Decision #3237

arriving at the length of suspension which he deemed appropriate. He

also-mane findings which differ somewhat from those which we have

made. I loreover, we are not merely reviewing the decision of the

assistan chief immigration judge. Instead, we are conducting a de

novo re •riew of the record. See 8 C.F.R. § 292.3(b)(1)(vi) (stating that

the Bor rd shall consider the record and render a decision).

In o tr de novo review, we have considered the respondent's

argumc t that no additional discipline is warranted in view of his prior

suspens on from the practice of law in any jurisdiction from January 1,

1983, u ltil April 17, 1987, under the terms of the disciplinary order

entered by the Supreme Court of the State of California and in view of

his succfssful completion of the suspension imposed by that court. We

have al; o considered the respondent's claims of rehabilitation and his

explanaion of the circumstances of his criminal offenses which he has

offered as extenuation in briefs he submitted to the assistant chief

immigration judge and in other disciplinary proceedings.

Yet ve do not find that the factors argued by the respondent

overcor le the facts underlying his conviction, which included involvement i a conspiracy to violate immigration laws, making false

statemeats to the Service, suborning perjury, and stealing government

propertJ. In addition, we note that the record reflects that the

responc ent has been less than forthcoming with this Board and with

the state bars in various jurisdictions in that he did not report his

convict on to us, and there is, no indication that he reported his

convict on to state bar authorities outside of California. The record

also sh )ws that the respondent misrepresented his qualifications or

authori y to represent others in immigration proceedings on Notices of

Entry t f Appearance.

Thin , we find that suspension from the practice of law before the

Service and the Executive Office for Immigration Review is an apt

sanctio i in this case, as the offenses for which the respondent was

convicted and suspended from practice in various states arose out of

his abuse of his position as a licensed attorney representing others in

legal p oceedings. Given that his offenses involved violations of the

inunigLition law which the Service and the Executive Office for

Immig ation Review administer, they are particularly reprehensible

from o it perspective and warrant a suspension from the practice of

law be ore these agencies for a period of 10 years. Accordingly, the

followi ig order will be entered.

The respondent is suspended from the practice of law

ORI )ER:

before he Immigration and Naturalization Service and the Executive

Office or Immigration Review for a period of 10 years, subject to his

establi ling that he is no longer under discipline by the bars of any

state c: urts.

937