Interim Decision #2722
MATTER OF DE ANDA
In Disbarment Proceedings
A-23038108
Decided by Board April 17, 1979
Approved by Attorney General June a, 1979
(I) Six-month suspension from practice before the Immigration and Naturalization
Service and the Board of Immigration Appeals ordered based on attorney's unexplained failure to appear at two successive hearings scheduled so that he could apply
for discretionary relief on behalf of his client and based on his failure to properly
discharge his duty as au attorney to his client.
(2) Attorney's unexplained failure to appear at successive scheduled hearings amounted
to "contumelious [and]... obnoxious conduct" within the meaning of 8 C.F.R.
292.2(a)(11).
(3) Failure to hold a hearing in connection with the disciplinary proceedings did not
violate attorney's procedural rights where he had full opportunity to request a
hearing, but declined to respond to the notice to show cause, and where he was given
adequate notice of the charges and evidence on which the disciplinary action was
ultimately taken.
BY: Iilhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members
BEFORE THE BOARD
(April 17, 1979)
This case is before us pursuant to the provisions of 8 C.F.R. 292.3
relating to the suspension or disbarment of attorneys and representatives of accredited organizations from practice before the Im
migration and Naturalization Service and this Board. The respondent
is an attorney admitted to practice in several courts' His practice
includes cases before the Service and the Board.
On December 18, 1978, the Regional Commissioner of the Service's
Western Regional Office commenced disbarment proceedings against
the respondent by serving him by registered mail with a copy of
' A "Notice of Appearance as Attorney or Representative" (Form G-28) in the record
before us indicates that the respondent is a member of the California State Bar and the
Federal District Bar.
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Interim Decision #2722
written charges and a notice to show cause why a motion seeking his
disbarment should not be made to this Board.
The notice letter informed the respondent of the following 30
factual allegations:
(1) that, on February 7, 1978, you filed Form G-28 as attorney of
record for [a named alien];
(2) that, on February 7, 1978, you appeared as counsel for [that
alien] in a deportation proceeding before Immigration Judge
Henry J. Scroope, Jr.;
(3) that, on February 7, 1978, you admitted all of the allegations
and the charges set forth against your client, on his behalf;
(4) that, on February 7, 1978, you made an application for suspension of deportation on behalf of your client, pursuant to section
244(a) of the Immigration and Nationality Act; z
(5) that, on February 7, 1978, you requested ten days to file an
application on your client's behalf;
(6) that, on February 7, 1978, Immigration Judge Henry J. Scroope
specifically advised you that the application and supporting
documents were required to be filed by February 17, 1978;
(7) that, on February 7, 1978, Immigration Judge Henry J. Scroope
advised you that if you railed to file the papers by February 17,
1978, he would make a decision on the record, and you indicated
that you so understood that to be the result if you failed to file
the necessary documents;
(8) that, you failed to file the application and required documents
by February 17, 1978;
(9) that, on August 30, 1978, the deportation proceeding was
recommenced before Immigration Judge Jay Segal;
(10) that, August 30, 1978, you indicated that you did not have the
application;
(11) that, you indicated on August 30, 1978, that you had all of the
material ready to file - and that you would file it that week;
(12) that, on August 30, 1978, you were given by Immigration Judge
Jay Segal until September 7, 1978, at 1:00 p.m. to submit the
application;
(13) that, on August 30, 1978, you were advised by Immigration
Judge Jay Segal that you should have all the documents and be
ready since the application would be heard at that time;
(14) that, on August 30, 1978, you indicated that you understood that
the hearing would be resumed on September 7, at 1:00 p.m., and
that if you or the respondent were not present at that time, the
The respondent indicated a desire to file an application for suspension of deportation
on behalf of his client.
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application would be denied for lack of prosecution;
(15)that, on August 30, 1978, you did not advise the Immigration
Judge of any scheduling conflict which would indicate that
September 7, 1978 was an inconvenient date, the record indicates instead that you thanked him for the new hearing date;
(16) that, on September 7, 1978, you failed to appear for the
rescheduled deportation proceeding;
(17) that, on September 7, 1978, your brother appeared with the
respondent to indicate that you were outside of the country;
(18) that, on September 7, 1978, Immigration Judge Jay Segal reset
the hearing to provide your client with one further opportunity to submit the application for suspension of deportation, to
September 18, 1978, at 1:00 p.m.;
(19) that, on September 7, 1978, your client was advised that if he
desired legal representation he should have his attorney present with him;
(20)that, on September 7, 1978, your client was advised that no
further continuances would be given to him to permit you to
appear or to file the application on his behalf and that a
decision would be made on the record;
(21) that, on September 7, 1978, a notice was hand-delivered to your
brother to be delivered to you on Form 1-293, to advise you of
the rescheduled hearing date of September 18, 1978, at 1:00
p.m.;
(22) that, at 2:00 p.m., on September 18, 1978, Immigration Judge
Jay Segal commenced the continued deportation proceeding;
(23)that, at 2:00 p.m., on September 18, 1978, your client advised
Immigration Judge Jay Segal that he did not have the application with him;
(24)that, on September 18, 1978, your client indicated that he had
spoken to you, and had been in your office until 12:00 noon on
that date;
(25) that, on September 18, 1978, at 2:00 p.m., your client indicated
that you had advised him to go from your office to the Immigration Court and to wait for you, that you were on your way over;
(26)that, on September 18, 1978, at 2:00 p.m., your client advised
Immigration Judge Jay Segal that he had called your office and
had been advised that you were on your way to the Immigration
Court;
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Interim Decision #2722
(27) that, on September 18, 1978, at 2:00 p.m., Immigration Judge
Jay Segal further adjourned the hearing for thirty minutes, to
await your appearance;
(28) that, on September 18, 1978, at 2:35 p.m., you had still failed to
appear;
(29) that, on September 18, 1978, at 2:35 p.m., the Immigration
Judge required your client to proceed with his deportation
proceedings without counsel due to your failure to appear as
scheduled;
(30) that, on September 18, 1978, Immigration Judge Jay Segal
denied your client's request for suspension of deportation for
lack of prosecution, due to your failure to file the required
application on his behalf.
The Regional Commissioner informed the respondent that he considered his actions in this case to have been "contemptuous and insulting to the Immigration Court" and of a nature that if they had taken
place in a federal or California state court could have resulted in a
contempt citation. S©o 8 C.F.R. 292.3(a)(11)_
The Regional Commissioner further informed the respondent that
he considered his repeated failure to file the suspension application
and leis failure to appear at the hearings on September 7 and
September 18, 1978, to have deprived his client of effective legal
representation. The Regional Commissioner submitted that the respondent's failure to properly discharge his duty as an attorney to his
client constituted a ground for suspension or disbarment in the public
interest.'
The respondent was advised that he had 30 days from December 18,
1978, to show cause why disbarment proceedings should not be instituted. He was also informed that after an answer was made and the
matter was at issue, he could request a hearing before a representative
of th e Regional Commissioner. If no answer was received within three
days after the expiration of the 30 days provided to respond, the
respondent was informed, any defense to the charges would be deemed
waived. Respondent was further advised that if for any reason he
needed additional time to show cause why proceedings should not be
commenced, he could request it from the Regional Counsel. A copy of
the hearing transcript in the deportation case giving rise to proceedings and copies of documents relating to that case were forwarded with
the "show cause" letter.
The respondent neither answered the "show cause" letter, nor requested additional time to do so. Accordingly, on February 20, 1979, the
' The 15 grounds for suspension or disbarment set forth in S C.F.R. 292.3(a) do not
"establish the exclusive grounds for suspension or disbarment in the public interest."
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Interim Decision #2722
record was transmitted to the Board by the Regional Commissioner
with the recommendation that the respondent be suspended from
practice before the Service and the Board for a period of 6 months. A
copy of the transmittal letter was forwarded to the respondent by
certified mail.
Under the circumstances of this case, we find that the respondent's
failure to appear at the scheduled deportation hearings on September
7, 1078, and September 18, 1978, was "contumelious [and] ... obnoxious
conduct" within the meaning of 8 C.F.R. 292.3(a)(11). The September 7,
1978 hearing was scheduled solely because of respondent's statements
of record on August 30, 1978 that he still intended to file a suspension
application on his client's behalf, that he had "all of the material ready
to file," and that he would do so "[that] week." Because of these
representations, the immigration judge withheld disposition of the
case and scheduled a further hearing even though counsel had already
failed to file the suspension application for a period of over 6 months.
The record verifies that counsel acknowledged the time and date of the
hearing and thanked the immigration judge for his action. Nonetheless, without having previously noted any scheduling conflict or requesting any postponement or rescheduling of the hearing, the respondent herein failed to appear at the time and place scheduled for
the hearing. Other than sending his brother to advise the immigration
judge that he was "out of the country," the respondent offered no
excuse or explanation for his failure to appear. No explanation to date
has been offered for this conduct.
On the second occasion, less than 2 weeks later, respondent again
failed to appear with his client at a scheduled hearing (although
clearly aware of his client's desire that he be present) without having
previously informed the immigration judge of an inability to do so or
subsequently offering any excuse for his action. At no time was the
immigration judge ever informed that it had been decided not to file
the suspension application. Moreover, based on respondent's
representation on August 30, 1978, and his client's statement on
September 18, 1978, it was clear such a decision had not been made.
Under these circumstances, we must conclude that the respondent
had the ability to appear at the two hearings that were scheduled
based on his representations regarding the filing of the suspension
application, but simply elected not to do so. We find that respondent's
unexplained conduct in this regard could have been punishable as
contempt had it occurred in judicial proceedings and that it falls
within he proscription of 8 C.F.R. 292.3(a)(11). See In re Niblack, 476
F.2d 930 (D.C. Cir. 1973); 18 U.S.C. 401; Chula v. Superior Court,
368
P.2d 107 (Cal. 1962); Lyons v. Superior Court,
278 P.2d 681 (Cal. 1955);
section 1209 of the California Civil Code of Procedure. See also In re
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Farquhar, 492 F.2d 561 (DC. Cir. 1973). The respondent's objectionable behavior in this regard clearly obstructed the orderly and timely
administration of the immigration laws.
We further find that respondent's failure to properly discharge his
duty as an attorney to his client constitutes a separate ground for
action under 8 C.F.R. 292.3. Seven months after respondent first advised an immigration judge that he intended to file a suspension
application on his client's behalf he still had neither done so nor
informed the immigration judge of a decision not to do so. As noted, he
had in fact specifically informed the immigration judge on August 30,
1978, that he still intended to file such an application and would do so
"[that] week."' Some 19 days and two hearings later, he still had taken
no action even though he had been warned on three occasions that such
inaction on his part would lead to denial of the application for lack of
prosecution. We find this unexplained inaction on respondent's part,
combined with his failure on two occasions to appear on his client's
behalf,5 to be entirely unacceptable conduct for an alien's attorney of
record and sole representative.
Having reached these conclusions, and considering respondent's
failure to offer any matters in explanation of mitigation, we find no
reason not to approve the Service's recommendation that the respondent be suspended from practice before the Immigration and Naturalization Service and this Board for a period of 6 months.
ORDER: The respondent is suspended from the practice of law
before the Immigration and Naturalization Service and before the
Board of Immigration Appeals for a period of 6 months.
FURTHER ORDER: The record is certified to the Attorney
Gerneral for final disposition, and the foregoing order is stayed pending such disposition.
BEFORE THE ATTORNEY GENERAL
(June 22, 1979)
This matter is before me pursuant to 8 C.F.R. 292.3(b), which provides for review by the Attorney General of decisions of the Board of
'The record establishes that as of the date of the immigration judge's order, the
respondent's client was still desirous of applying for suspension of deportation and that
neither he nor the respondent determined that such relief should not be pursued.
The record indicates that the respondent's non-English speaking client desired his
presence and was in ueed of his assistance. Respondent's action in failing to appear at
the September 18, 1978, hearing was particularly aggravated as the record reflects that
he had advised his client as of 1 hour before the hearing that he would be present and
that he retained the documents relating to the suspension application in his possession.
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Immigration Appeals (BIA) for suspension or disbarment of attorneys
from further practice before it and the Immigration and Naturalization Service (INS). In a decision dated April 17, 1979, the BIA recommended that the respondent, Daniel De Anda, be suspended from such
practice for 6 months. After review of the record, I approve its
decision.
I
On December 18, 1978, the Regional Commissioner of the Western
Regional Office of INS commenced disbarment proceedings against Mr.
De Anda, an attorney admitted to practice before the federal and state
courts in California whose practice includes cases before the INS and
the BIA. He was served by registered mail with a copy of written
charges against him, and with a notice to show cause why a motion
seeking his suspension or disbarment should not be presented to the
BIA.
The basis of the charges was that he had failed to appear mt
scheduled hearings to present an application for suspension of deportation on behalf of his client. On August 30, 1978, Mr. De Anda had
indicated to the immigration judge that he would have it ready within
a week; as a result, he was given until September 7, 1978, to submit the
application. De Anda was told that if he did not appear on September
7, the application would be denied for lack of prosecution. On
September 7, 1978, De Anda failed to appear for the rescheduled deportation proceeding. The hearing was rescheduled for September 18,
1978. On that date, De Anda's client appeared alone, and informed the
judge that he had just spoken with De Anda, who told him to proceed
to court to await his appearance. After a short recess, De Anda still
had not appeared, and the judge required De Anda'a client to proceed
without counsel. The request for suspension of deportation was denied.
The Regional Commissioner informed De Anda that his behavior
had been "contemptuous and insulting to the Immigration Court," and
of a nature that, had it occurred in a federal or state court in
California, would constitute a basis for a finding of contempt. Further,
he was informed that his failure to act as a representative of his client
was an additional basis for suspension from practice.
De Anda did not answer or in any way respond to the notice.' By
' Da Anda had been advised in the notice that he had 30 days to show cause why
suspension or disbarment proceedings should not be instituted against him. He was told
that he could rawest a hearing after filing an answer, and that if no answer were
received within 3 days after the expiration of the 30-day period, "any defense to the
charges shall be deemed waived." He was also informed that if he required additional
time to show cause why proceedings against him should not be commenced, he could
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memorandum dated February 20, 1979, the record in the case was
forwarded by the Regional Commissioner to the BIA, with the Commissioner's recommendation that De Anda be suspended from practice
for 6 months. A letter dated February 27, 1979, was sent to De Anda
informing him that the record of his case had been forwarded to the
Chairman of the BIA with a recommendation of suspension for 6
months.'
In view of the uncontested charges and underlying record, the BIA
found that De Anda's actions amounted to "contumelious [and] ...
obnoxious conduct" within the meaning of 8 C.F.R. 292.3(a)(11). 3 The
Board concluded that the conduct toward the immigration judge would
justify a finding of contempt both in federal and state courts, and that
the conduct toward his client constituted an additional ground for
disciplinary action.
II
Title 8 C.F.R. 292.3(a)(11) provides that suspension from practice
before the INS and BIA is an appropriate punishment for one who
"engaged in contumelious or otherwise obnoxious conduct with respect
to a case in which he acts in a representative capacity, which in the
opinion of the Board, would constitute cause for suspension or disbarment if the case was pending before a court, or which ... would constitute a contempt of court...." The failure to obey the direction of a
court to appear at a hearing is clearly conduct that would justify a
finding of contempt in federal court and in the courts of California. See
In re Niblack, 476 F.2d 930 (D.C. Cir. 1973); Chula v. Superior Court, 18
Ca. Reptr. 507,
368 P.2d 107 (1962).
In the present situation, the record supports the BIA's finding that
De Anda failed to appear at two scheduled hearings without providing
any excuse or explanation, and in circumstances indicating that he had
the ability to appear. That alone establishes, in my view, that the
determination of cause for suspension from practice should be approved. In addition, it is relevant that the scheduled hearings at which
De Anda failed to appear were called for the purpose of considering an
application to be made on behalf of his client for the suspension of
deportation. The failure of De Anda to appear and make such an
application, thus putting his client's rights directly in jeopardy,
request it from the Regional Counsel.
The record includes signed Post Office receipts confirming that the letters of
December 18, 1978, and of February 27, 1979, were received.
"Contumelious" conduct, as the Regional Commissioner explained to De Anda in the
letter of December 18, 1979, refers to behavior that is "haughtily contemptuous or
insulting."
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further supports the finding of cause for suspension "in the public
interest."
There is no indication that De Anda's procedural rights were violated because there was no hearing in this case. He had a full opportunity
for a hearing, but none was held because he never responded to the
notice to show cause. The December 18, 1978, notice provided De Anda
with adequate notification of the charges against him and of the
evidence underlying its issuance. Cf. Hess & Clark, Division of Rhodia,
.Inc_ v_ FDA, 495 F.2d 975, 989 84 (D.C. Cit.. 1974 Moreover, the issues
-
identified in the notice were the ones on the basis of which administrative action proceeded. Cf L&M Industries, Inc. v. Kenter, 458 F.2d 968,
971 (2 Cir. 1972).
Accordingly, I approve the order suspending respondent De Anda
from practice for 6 months before the INS and the BIA. The period of
suspension is to commence on the date of this decision.
' The specific grounds for suspension listed In 8 C.F.R. 292.8(a) are not the exclusive
grounds for suspension or disbarment in the public interest."
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