Immigration Practitioner Discipline Rules8 CFR § 292.3 Professional conduct for practitioners—Rules and procedures.The pro...
1997                                         March 21, 2012§ 292.3 Discipline of attorneys and                 § 292.3 Pro...
and relevant fact in connection with a case;       the exclusive grounds for which disciplinary   (4) Who willfully deceiv...
final disposition of the case or upon demand,       upon receipt of a certified copy of the order,or willfully and without...
and accredited representatives—(i)                   including, but not limited to, the names andInvestigation of charges....
cross-examine witnesses presented by the              of Intent to Discipline. Service of this noticeService. The Service ...
24, 1969; 36 FR 11903, June 23, 1971; 52 FR   Intent to Discipline shall be forwarded to the24981, July 2, 1987; 57 FR 115...
provided by law or regulation or as authorized      by this regulation, information concerning      complaints or prelimin...
against the practitioner have been resolved.      (ii) Disclosure of information for the purpose      of conducting a prel...
1003.106(a)(v).                                                 (i) Discipline of government attorneys.                   ...
Upcoming SlideShare
Loading in …5
×

Immigration Practitioner Discipline Rules

969 views

Published on

Published in: Education
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
969
On SlideShare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
3
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

Immigration Practitioner Discipline Rules

  1. 1. Immigration Practitioner Discipline Rules8 CFR § 292.3 Professional conduct for practitioners—Rules and procedures.The promulgation history of the 1997-2000 versions reads: [23 FR 2672, Apr. 23, 1958, as amended at 23 FR 9124, Nov. 26, 1958; 34 FR 12213, July 24, 1969; 36 FR 11903, June 23, 1971; 52 FR 24981, July 2, 1987; 57 FR 11574, Apr. 6, 1992; 60 FR 34090, June 30, 1995]The 2001-2010 versions show: [65 FR 39531, June 27, 2000]The 2011 version shows: [75 FR 5228, Feb. 2, 2010]There is no posted 2012 version but today’s e-cfr (March 21, 2012) shows it as: [75 FR 5228, Feb. 2, 2010, as amended at 76 FR 53797, Aug. 29, 2011]The sister regulation which split off when DHS was created and split INS awayfrom DOJ was created a whole new chapter for EOIR. That newer sister regulationreads in its entirety, simply as:§ 1292.3 Professional conduct for practitioners—Rules and procedures. Attorneys and representatives practicing before the Board, the Immigration Courts, or DHS are subject to the imposition of disciplinary sanctions as provided in 8 CFR part 1003, subpart G, §1003.101 et seq. See also 8 CFR 292.3 (pertaining to practice before DHS). [77 FR 2015, Jan. 13, 2012]Section 292.3 has been a long time and has gone through changes. The sisterregulation at § 1292.3 mimicked it cousin until recently. The earliest available andthe most current versions of § 292.3 are displayed below side-by-side. Page 1 of 10
  2. 2. 1997 March 21, 2012§ 292.3 Discipline of attorneys and § 292.3 Professional conduct forrepresentatives. (DOJ included INS & BIA) practitioners—Rules and procedures. (DHS) (a) Grounds. The Immigration Judge, Board, (a) General provisions. (1) Authority toor Attorney General may suspend or bar from sanction. An adjudicating official or the Boardfurther practice before the Executive Office for of Immigration Appeals (Board) may imposeImmigration Review or the Service, or may disciplinary sanctions against any practitionertake other appropriate disciplinary action if it finds it to be in the public interest to do so.against, an attorney or representative if it is It will be in the public interest to imposefound that it is in the public interest to do so. disciplinary sanctions against a practitionerAppropriate disciplinary sanctions may include who is authorized to practice before DHS whendisbarment, suspension, reprimand or censure, such person has engaged in criminal, unethical,or such other sanction as deemed appropriate. or unprofessional conduct, or in frivolousThe suspension, disbarment, or imposition of behavior, as set forth in 8 CFR 1003.102. Inother appropriate disciplinary action against an accordance with the disciplinaryattorney or representative who is within one or proceedings set forth in 8 CFR part 1003, anmore of the following categories shall be adjudicating official or the Board may imposedeemed to be in the public interest, for the any of the following disciplinary sanctions:purposes of this part, but the enumeration of (i) Expulsion which is permanent, fromthe following categories does not constitute the practice before the Board and the Immigrationexclusive grounds for discipline in the public Courts, or DHS, or before all three authorities;interest: (ii) Suspension, including immediate (1) Who charges or receives, either directly suspension, from practice before the Board andor indirectly, any fee or compensation for the Immigration Courts, or DHS, or before allservices which may be deemed to be grossly three authorities;excessive in relation to the services performed, (iii) Public or private censure; oror who, being an accredited representative of (iv) Such other disciplinary sanctions as thean organization recognized under § 1.1(j) of adjudicating official or the Board deemsthis chapter, charges or receives either directly appropriate.or indirectly any fee or compensation for (2) Persons subject to sanctions. Personsservices rendered to any person, except that an subject to sanctions include any practitioner. Aaccredited representative of such an practitioner is any attorney as defined in 8 CFRorganization may be regularly compensated by 1.2 who does not represent the federalthe organization of which he is an accredited government, or any representative as defined inrepresentative; 8 CFR 1.2. Attorneys employed by DHS will (2) Who, with intent to defraud or deceive, be subject to discipline pursuant to paragraphbribes, attempts to bribe, coerces, or attempts (i) of this section.to coerce, by any means whatsoever, anyperson, including a party to a case, or an (b) Grounds of discipline. It is deemed to be inofficer or employee of the Service or Board, to the public interest for the adjudicating officialcommit an act or to refrain from performing an or the Board to impose disciplinary sanctionsact in connection with any case; as described in paragraph (a)(1) of this section (3) Who willfully misleads, misinforms, or against any practitioner who falls within one ordeceives an officer or employee of the more of the categories enumerated in 8 CFRDepartment of Justice concerning any material 1003.102. These categories do not constitute Page 2 of 10
  3. 3. and relevant fact in connection with a case; the exclusive grounds for which disciplinary (4) Who willfully deceives, misleads, or sanctions may be imposed in the publicthreatens any party to a case concerning any interest. Nothing in this regulation should bematter relating to the case; read to denigrate the practitioners duty to (5) Who solicits practice in any unethical or represent zealously his or her client within theunprofessional manner, including but not bounds of the law.limited to, the use of runners. (6) Who represents, as an associate, any (c) Immediate suspension and summaryperson who, known to him, solicits practice in disciplinary proceedings; duty of practitionerany unethical or unprofessional manner, to notify DHS of conviction or discipline. (1)including, but not limited to, the use of Immediate suspension proceedings. Immediaterunners, or advertising his availability to suspension proceedings will be conducted inhandle immigration, naturalization, or accordance with the provisions set forth in 8nationality matters; CFR 1003.103. DHS shall file a petition with (7) Who has been temporarily suspended, the Board to suspend immediately fromand such suspension is still in effect, or practice before DHS any practitioner who haspermanently disbarred, from practice in any been found guilty of, or pleaded guilty or nolocourt, Federal, State (including the District of contendere to, a serious crime, as defined in 8Columbia), territorial, or insular; CFR 1003.102(h), any practitioner who has (8) Who is temporarily suspended, and such been suspended or disbarred by, or while asuspension is still in effect, or permanently disciplinary investigation or proceeding isdisbarred, from practice in a representative pending has resigned from, the highest court ofcapacity before any executive department, any State, possession, territory, orboard, commission, or other governmental Commonwealth of the United States, or theunit, Federal, State (including the District of District of Columbia, or any Federal court; orColumbia), territorial, or insular; who has been placed on an interim suspension (9) Who, by use of his name, personal pending a final resolution of the underlyingappearance, or any device, aids and abets any disciplinary matter.person to practice during the period of his (2) Copies and proof of service. A copy of thesuspension or disbarment, such suspension or petition will be forwarded to EOIR, which maydisbarment being known to him; submit a written request to the Board that entry (10) Who willfully made false and material of any order immediately suspending astatements or representations with respect to practitioner before DHS also apply to thehis qualifications or authority to represent practitioners authority to practice before theothers in any case; Board and the Immigration Courts. Proof of (11) Who engages in contumelious or service on the practitioner of EOIRs request tootherwise obnoxious conduct with respect to a broaden the scope of any immediatecase in which he acts in a representative suspension must be filed with the Board.capacity, which in the opinion of the Board, (3) Summary disciplinary proceedings.would constitute cause for suspension or Summary disciplinary proceedings will bedisbarment if the case was pending before a conducted in accordance with the provisionscourt, or which, in such a judicial proceeding, set forth in 8 CFR 1003.103. DHS shallwould constitute a contempt of court; promptly initiate summary disciplinary (12) Who, having been furnished with a proceedings against any practitioner describedcopy of any portion of the record in a case, in paragraph (c)(1) of this section by thewillfully fails to surrender such copy upon issuance of a Notice of Intent to Discipline, Page 3 of 10
  4. 4. final disposition of the case or upon demand, upon receipt of a certified copy of the order,or willfully and without authorization makes judgment, and/or record evidencing theand retains a copy of the material furnished; underlying criminal conviction, discipline, or (13) Who has been convicted of a felony, or, resignation, and accompanied by a certifiedhaving been convicted of any crime is copy of such document. Delays in initiation ofsentenced to imprisonment for a term of more summary disciplinary proceedings under thisthan one year; or section will not impact an immediate (14) Who has falsely certified a copy of a suspension imposed pursuant to paragraphdocument as being a true and complete copy of (c)(1) of this section. Any such proceeding willan original. not be concluded until all direct appeals from (15) Who has engaged in frivolous behavior an underlying criminal conviction have beenin a proceeding before an Immigration Judge, completed.the Board of Immigration Appeals, or any (4) Duty of practitioner to notify DHS ofother administrative appellate body under title conviction or discipline. Within 30 days of theII of the Immigration and Nationality Act. issuance of the initial order, even if an appeal (i) An attorney or representative engages in of the conviction or discipline is pending, offrivolous behavior when he or she knows or any conviction or discipline for professionalreasonably should have known that his or her misconduct entered on or after July 27, 2000, aactions lack an arguable basis in law or in fact, practitioner must notify DHS disciplinaryor are taken for an improper purpose, such as counsel if the practitioner has been: Foundto cause unnecessary delay. Actions that, if guilty of, or pleaded guilty or nolo contenderetaken improperly, may be subject to discipline to, a serious crime, as defined in 8 CFRinclude, but are not limited to, the making of 1003.102(h); suspended or disbarred by, oran argument on any factual or legal question, while a disciplinary investigation orthe submission of an application for proceeding is pending has resigned from, thediscretionary relief, the filing of a motion, or highest court of any State, possession, territory,the filing of an appeal. The signature of an or Commonwealth of the United States, or theattorney or an accredited representative on any District of Columbia, or any Federal court; orfiling, application, motion, appeal, brief, or placed on an interim suspension pending aother paper constitutes certification by the final resolution of the underlying disciplinarysigner that the signer has read the filing, matter. Failure to notify DHS disciplinaryapplication, motion, appeal, brief, or other counsel as required may result in immediatepaper, and that, to the best of the signers suspension as set forth in paragraph (c)(1) ofknowledge, information, and belief, formed this section.after reasonable inquiry, the document is wellgrounded in fact, is warranted by existing law (d) Filing of complaints of misconductor by a good faith argument for the extension, occurring before DHS; preliminary inquiry;modification, or reversal of existing law, and is resolutions; referral of complaints. (1) Filingnot interposed for any improper purpose; of complaints of misconduct occurring before (ii) The imposition of disciplinary action for DHS. Complaints of criminal, unethical, orfrivolous behavior under this section in no way unprofessional conduct, or of frivolouslimits the Boards authority summarily to behavior by a practitioner before DHS must bedismissal an appeal pursuant to 8 CFR filed with the DHS disciplinary counsel.3.1(d)(1-a). Disciplinary complaints must be submitted in writing and must state in detail the information (b) Procedure—(1) Non-Service attorneys that supports the basis for the complaint, Page 4 of 10
  5. 5. and accredited representatives—(i) including, but not limited to, the names andInvestigation of charges. Complaints regarding addresses of the complainant and thethe conduct of attorneys and representatives practitioner, the date(s) of the conduct orpracticing before the Service or the Executive behavior, the nature of the conduct or behavior,Office for Immigration Review pursuant to 8 the individuals involved, the harm or damagesCFR 292.1 shall be investigated by the Service. sustained by the complainant, and any other (ii) Service and filing of charges. If an relevant information. The DHS disciplinaryinvestigation establishes, to the satisfaction of counsel will notify EOIR disciplinary counselthe Service, that disciplinary proceedings of any disciplinary complaint that pertains, inshould be instituted, the General Counsel of whole or in part, to a matter before the Boardthe Service shall cause a copy of written or the Immigration Courts.charges to be served upon the (2) Preliminary inquiry. Upon receipt of aattorney/representative either by personal disciplinary complaint or on its own initiative,service or by registered mail. The General the DHS disciplinary counsel will initiate aCounsel shall also file the written charges with preliminary inquiry. If a complaint is filed by athe Office of the Chief Immigration Judge client or former client, the complainant therebyimmediately after service of the charges upon waives the attorney-client privilege and anythe attorney/representative. other applicable privilege, to the extent (iii) Service and filing of answer. The necessary to conduct a preliminary inquiry andattorney/representative shall answer the any subsequent proceeding based thereon. Ifcharges, in writing, within thirty (30) days after the DHS disciplinary counsel determines that athe date of service, and shall file the answer complaint is without merit, no further actionwith the Office of the Chief Immigration will be taken. The DHS disciplinary counselJudge. Failure of the attorney/representative to may, in his or her discretion, close aanswer the written charges in a timely manner preliminary inquiry if the complainant fails toshall constitute an admission that the facts and comply with reasonable requests for assistance,legal statements in the written charges are information, or documentation. Thecorrect. The attorney/representative shall also complainant and the practitioner will beserve a copy of the answer on the General notified of any such determination in writing.Counsel. Proof of service on the opposing (3) Resolutions reached prior to the issuanceparty must be included with all documents of a Notice of Intent to Discipline. The DHSfiled. disciplinary counsel may, in his or her (iv) Hearing. The Chief Immigration Judge discretion, issue warning letters andshall designate an Immigration Judge to hold a admonitions, and may enter into agreements inhearing and render a decision in the matter. lieu of discipline, prior to the issuance of aThe designated Immigration Judge shall notify Notice of Intent to Discipline.the attorney/representative and the Service asto the time and the place of the hearing. At the (e) Notice of Intent to Discipline. (1) Issuancehearing, the attorney/representative may be of Notice to Practitioner. If, upon completionrepresented by an attorney at no expense to the of the preliminary inquiry, the DHSGovernment and the Service shall be disciplinary counsel determines that sufficientrepresented by an attorney. At the hearing, the prima facie evidence exists to warrant chargingattorney/representative shall have a reasonable a practitioner with professional misconduct asopportunity to examine and object to the set forth in 8 CFR 1003.102, it will file withevidence presented by the Service, to present the Board and issue to the practitioner who wasevidence on his or her own behalf, and to the subject of the preliminary inquiry a Notice Page 5 of 10
  6. 6. cross-examine witnesses presented by the of Intent to Discipline. Service of this noticeService. The Service shall bear the burden of will be made upon the practitioner by eitherproving the grounds for disciplinary action by certified mail to his or her last known address,clear, convincing, and unequivocal evidence. as defined in paragraph (e)(2) of this section,The record of the hearing shall conform to the or by personal delivery. Such notice shallrequirements of 8 CFR 242.15. contain a statement of the charge(s), a copy of (v) Decision. The Immigration Judge shall the preliminary inquiry report, the proposedconsider the record and render a decision in the disciplinary sanctions to be imposed, thecase, including that the evidence presented procedure for filing an answer or requesting adoes not sufficiently prove grounds for hearing, and the mailing address and telephonedisciplinary action or that disciplinary action is number of the Board. In summary disciplinaryjustified. If the Immigration Judge finds that proceedings brought pursuant to §292.3(c), athe evidence presented does sufficiently prove preliminary inquiry report is not required to begrounds for disciplinary action, the appropriate filed with the Notice of Intent to Discipline.sanction shall be ordered. If the Immigration Notice of Intent to Discipline proceedings willJudge orders a suspension, the Immigration be conducted in accordance with the provisionsJudge shall set an amount of time for the set forth in 8 CFR 1003.105 and 1003.106.suspension. (2) Practitioners address. For the purposes of (vi) Appeal. Either party may appeal the this section, the last known address of adecision of the Immigration Judge to the practitioner is the practitioners address as itBoard. The appeal must be filed within ten (10) appears in DHS records if the practitioner isdays from the date of the decision, if oral, or actively representing an applicant or petitionerthirteen (13) days from the date of mailing of before DHS on the date the DHS disciplinarythe decision, if written. The appeal must be counsel issues the Notice of Intent tofiled with the Immigration Court holding the Discipline. If the practitioner does not have ahearing. If an appeal is not filed in a timely matter pending before DHS on the date of themanner, or if the appeal is waived, the decision issuance of a Notice of Intent to Discipline,of the Immigration Judge is final. If a case is then the last known address for a practitionerappealed in a timely manner, the Board shall will be as follows:consider the record and render a decision. (i) Attorneys in the United States: TheReceipt of briefs and the hearing of oral attorneys address that is on record with a stateargument shall be at the discretion of the jurisdiction that licensed the attorney toBoard. The Boards decision shall be final practice law.except when a case is certified to the Attorney (ii) Accredited representatives: The address ofGeneral pursuant to 8 CFR 3.1(h). a recognized organization with which the (2) Service attorneys. Complaints regarding accredited representative is affiliated.the frivolous behavior of Service attorneys (iii) Accredited officials: The address of thewithin the scope of § 292.3(a)(15) shall be embassy of the foreign government thatdirected to, and investigated by, the Office of employs the accredited official.Professional Responsibility of the Department (iv) All other practitioners: The address for theof Justice. If disciplinary action is warranted, it practitioner that appears in DHS records for theshall be administered pursuant to the attorney application or petition proceeding in which thedisciplinary procedures of the Department of DHS official permitted the practitioner toJustice. appear. [23 FR 2672, Apr. 23, 1958, as amended at (3) Copy of Notice to EOIR; reciprocity of23 FR 9124, Nov. 26, 1958; 34 FR 12213, July disciplinary sanctions. A copy of the Notice of Page 6 of 10
  7. 7. 24, 1969; 36 FR 11903, June 23, 1971; 52 FR Intent to Discipline shall be forwarded to the24981, July 2, 1987; 57 FR 11574, Apr. 6, EOIR disciplinary counsel. Under Department1992; 60 FR 34090, June 30, 1995] of Justice regulations in 8 CFR chapter V, the EOIR disciplinary counsel may submit a written request to the Board or the adjudicating official requesting that any discipline imposed upon a practitioner which restricts his or her authority to practice before DHS also apply to the practitioners authority to practice before the Board and the Immigration Courts. Proof of service on the practitioner of any request to broaden the scope of the proposed discipline must be filed with the Board or the adjudicating official. (4) Answer. The practitioner shall file a written answer or a written request for a hearing to the Notice of Intent to Discipline in accordance with 8 CFR 1003.105. If a practitioner fails to file a timely answer, proceedings will be conducted according to 8 CFR 1003.105. (f) Right to be heard and disposition; decision; appeal; and reinstatement after expulsion or suspension. Upon the filing of an answer, the matter shall be heard, decided, and appeals filed according to the procedures set forth in 8 CFR 1003.106. Reinstatement proceedings after expulsion or suspension shall be conducted according to the procedures set forth in 8 CFR 1003.107. (g) Referral. In addition to, or in lieu of, initiating disciplinary proceedings against a practitioner, the DHS disciplinary counsel may notify any appropriate Federal and/or state disciplinary or regulatory authority of any complaint filed against a practitioner. Any final administrative decision imposing sanctions against a practitioner (other than a private censure) will be reported to any such disciplinary or regulatory authority in every jurisdiction where the disciplined practitioner is admitted or otherwise authorized to practice. (h) Confidentiality. (1) Complaints and preliminary inquiries. Except as otherwise Page 7 of 10
  8. 8. provided by law or regulation or as authorized by this regulation, information concerning complaints or preliminary inquiries is confidential. A practitioner whose conduct is the subject of a complaint or preliminary inquiry, however, may waive confidentiality, except that the DHS disciplinary counsel may decline to permit a waiver of confidentiality if it is determined that an ongoing preliminary inquiry may be substantially prejudiced by a public disclosure before the filing of a Notice of Intent to Discipline. (i) Disclosure of information for the purpose of protecting the public. The DHS disciplinary counsel may disclose information concerning a complaint or preliminary inquiry for the protection of the public when the necessity for disclosing information outweighs the necessity for preserving confidentiality in circumstances including, but not limited to, the following: (A) A practitioner has caused, or is likely to cause, harm to client(s), the public, or the administration of justice, such that the public or specific individuals should be advised of the nature of the allegations. If disclosure of information is made pursuant to this paragraph, the DHS disciplinary counsel may define the scope of information disseminated and may limit the disclosure of information to specified individuals or entities; (B) A practitioner has committed criminal acts or is under investigation by law enforcement authorities; (C) A practitioner is under investigation by a disciplinary or regulatory authority, or has committed acts or made omissions that may reasonably result in investigation by such an authority; (D) A practitioner is the subject of multiple disciplinary complaints and the DHS disciplinary counsel has determined not to pursue all of the complaints. The DHS disciplinary counsel may inform complainants whose allegations have not been pursued of the status of any other preliminary inquiries or the manner in which any other complaint(s)Page 8 of 10
  9. 9. against the practitioner have been resolved. (ii) Disclosure of information for the purpose of conducting a preliminary inquiry. The DHS disciplinary counsel may, in his or her discretion, disclose documents and information concerning complaints and preliminary inquiries to the following individuals or entities: (A) To witnesses or potential witnesses in conjunction with a complaint or preliminary inquiry; (B) To other governmental agencies responsible for the enforcement of civil or criminal laws; (C) To agencies and other jurisdictions responsible for conducting disciplinary investigations or proceedings; (D) To the complainant or a lawful designee; and (E) To the practitioner who is the subject of the complaint or preliminary inquiry or the practitioners counsel of record. (2) Resolutions reached prior to the issuance of a Notice of Intent to Discipline. Resolutions, such as warning letters, admonitions, and agreements in lieu of discipline, reached prior to the issuance of a Notice of Intent to Discipline, will remain confidential. However, such resolutions may become part of the public record if the practitioner becomes subject to a subsequent Notice of Intent to Discipline. (3) Notices of Intent to Discipline and action subsequent thereto. Notices of Intent to Discipline and any action that takes place subsequent to their issuance, except for the imposition of private censures, may be disclosed to the public, except that private censures may become part of the public record if introduced as evidence of a prior record of discipline in any subsequent disciplinary proceeding. Settlement agreements reached after the issuance of a Notice of Intent to Discipline may be disclosed to the public upon final approval by the adjudicating official or the Board. Disciplinary hearings are open to the public, except as noted in 8 CFRPage 9 of 10
  10. 10. 1003.106(a)(v). (i) Discipline of government attorneys. Complaints regarding the conduct or behavior of DHS attorneys shall be directed to the Office of the Inspector General, DHS. If disciplinary action is warranted, it will be administered pursuant to the Departments attorney discipline procedures. [75 FR 5228, Feb. 2, 2010, as amended at 76 FR 53797, Aug. 29, 2011]The current e-cfr version of the EOIR Practitioner Discipline Rule 1 is muchbigger:Subpart G--PROFESSIONAL CONDUCT FOR PRACTITIONERS--RULES ANDPROCEDURES §1003.101 General provisions. §1003.102 Grounds. Immediate suspension and summary disciplinary §1003.103 proceedings; duty of practitioner to notify EOIR of conviction or discipline. Filing of complaints; preliminary inquiries; §1003.104 resolutions; referral of complaints. §1003.105 Notice of Intent to Discipline. §1003.106 Right to be heard and disposition. §1003.107 Reinstatement after disbarment or suspension. §1003.108 Confidentiality. §1003.109 Discipline of government attorneys.1 See: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=8adb12ca6e5273a17fd720f2afe57601&tpl=/ecfrbrowse/Title08/8cfr1003_main_02.tpl Page 10 of 10

×