SPARROW

Interim Decision #3237




                          MATTER OF SPARROW

           In Suspension Proceedings Under 

                       Decided by Board June 22, 1994

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

(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 

(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: 

(a)(3)
               

(a)(7)
               

(a)(10)
               

(a)(13)
ON BEHALF OF RESPONDENT:                               ON BEHALF OF SERVICE:
 Sheila Brooks-Tahir, Esquire                           Rachel A. McCarthy
  233 West Main Street                                  Assistant Regional
  Salisbury, Maryland 21801                             Counsel

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


  On January 11, 1991, the Acting General Counsel of the Immigration and Naturalization Service issued a Petition for Attorney
Discipline against the respondent pursuant to the provisions for
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                                                             Interim Decision #3237

suspension or disbarment under 

 (1991).' The
Petition for Attorney Discipline contains 11 charges against the
respondent alleging violations of 

(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 

(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 

 (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 

, 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, 

 (BIA 1975; A.G., BIA 1976).
Before discipline may be imposed in disciplinary proceedings under 

, any allegations of misconduct must be established by
evidence which is "clear, convincing, and unequivocal." 

(b)(1)(iv); see also Matter of Solomon, 

 (BIA,
A.G. 1977); Matter of Koden,, 

 (BIA 1974; A.G., BIA
1976), affd, 

 (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., 

 (11th Cir. 1986), cert. denied, 

 (1987); Matter
of Onal, 

 (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, 

 (1940); Guaranty Trust Co. v. United States,

 (1938); Utah Power & Light Co. v. United States, 

 (1911); Bostwick Irrigation District v. United States, 

 (8th Cir_ 1990); United States v. Repass, 688 F-2d 154 (2d Cir.
1982); Matter of K-, 

 (BIA 1951). In initiating
disciplinary proceedings against the respondent, the Service has
expressly alleged pursuant to 

(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 

 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 

(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 

, 641, 1001,
1621(a), and 1622; making false statements (two counts), in violation
of 

; and subornation of perjury, in violation of 

(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 

, 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 

(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 

(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 

(a)(10) by willfully making false
and material statements or representations with respect to his qualifications 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 

 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 

(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 Department 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 

(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 

(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 

(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 

(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 

(f). He maintains that this ambiguity precludes the Service from
establishing by clear, convincing, and unequivocal evidence that he
violated 

(a)(10).
   Under the provisions of 

, 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 

(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 

(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 

(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 

(0 notwithstanding, it is clear that
the Form 0-28 is designed to determine whether an individual is an
attorney within the meaning of 

(f). As an attorney who
satisfies the definition of an attorney found in 

(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 

(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, 

(7) (1964),
repealed by Act of Oct. 21, 1968, 

, 

.
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 

(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 

(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 

(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 

(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 

(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 

(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 proceedings 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 

(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 

. 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, 

 (1986); see also United States v. Beer, 

 (5th Cir.
1975). As we have observed, then definition of materiality applied in
criminal cases involving 

 is more expansive than that
typically applied in immigration proceedings involving issues of
material misrepresentation. See Matter of Martinez-Lopez, 

 (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 

 cases should be applied rather than the more restrictive
immigration definition. See Kungys v. United States, 

 (1988). We therefore adopt the definition of materiality used
for 

 cases in order to determine whether a false
statement or representation is material for the purposes of 

(a)(10). Thus, we hold that a false statement or representation
is material under 

(a)(10) if it has a tendency to
influence, or is capable of influencing, the decision of the decision-making 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 

(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 

(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 decision-making 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 

(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 

(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 

(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 

(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 

(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, 

 (3d Cir,), cert. denied,

 (1975), and cases cited therein; see also Matter of
Roberts, 

 (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 

(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 

(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.
   ORI )ER:       The respondent is suspended from the practice of law
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