RAMOS

Cite as 

 (BIA 2005)                                   Interim Decision # 3521




                     In re Anthony E. RAMOS, Attorney
                                     File D2003-016

                     Decided as amended November 15, 20051

                            U.S. Department of Justice
                      Executive Office for Immigration Review
                          Board of Immigration Appeals

(1) Under the attorney discipline regulations, a disbarment order issued against a practitioner
   by the highest court of a State creates a rebuttable presumption that disciplinary sanctions
   should follow, which can only be rebutted upon a showing that the underlying disciplinary
   proceeding resulted in a deprivation of due process, that there was an infirmity of proof
   establishing the misconduct, or that discipline would result in injustice.

(2) A practitioner who has been expelled may petition the Board of Immigration Appeals
   for reinstatement after 1 year, but such reinstatement is not automatic and the practitioner
   must qualify as an attorney or representative under the regulations.
(3) The Government is not required to show that an attorney has “appeared” before it,
   because any attorney is a “practitioner” and is therefore subject to sanctions under the
   attorney discipline regulations following disbarment.
(4) Where the respondent was disbarred by the Supreme Court of Florida as a result of his
   extensive unethical conduct, expulsion from practice before the Board, the Immigration
   Courts, and the Department of Homeland Security is an appropriate sanction.


ON BEHALF OF RESPONDENT: Pro se

FOR EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, OFFICE OF GENERAL
COUNSEL: Jennifer J. Barnes, Esquire, Falls Church, Virginia

FOR THE DEPARTMENT OF HOMELAND SECURITY: Rachel A. McCarthy,
Associate Ethics Officer

BEFORE: Board Panel: OSUNA, Acting Vice Chairman; HOLMES and HURWITZ,
        Board Members.



1
 On our own motion, we amend the July 25, 2005, order in this case. The amended order
makes editorial changes consistent with our designation of the case as a precedent.

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OSUNA, Acting Vice Chairman:

   On March 17, 2005, an Immigration Judge, acting as the adjudicating official
in this case, ordered the respondent expelled from practice before the
Immigration Courts, the Board of Immigration Appeals, and the Department of
Homeland Security (the “DHS,” formerly the Immigration and Naturalization
Service). The respondent has filed an appeal with the Board. The appeal will be
dismissed.

            I. FACTUAL AND PROCEDURAL HISTORY
   The respondent was disbarred from the practice of law by the Supreme Court
of Florida on December 18, 1997, based on the court’s approval of the
November 12, 1997, report of a referee. The referee noted that the respondent
was given numerous opportunities to respond to the Florida Bar’s complaint but
chose not to do so. According to the referee, the respondent also failed to
appear at a hearing concerning the proper sanction in the case.
   After reviewing the respondent’s numerous disciplinary violations, the
referee concluded that “reduced to its bare essence, this is a theft case. For a
period of six (6) years, respondent did not have sufficient funds in his trust
account to cover all client liabilities. At its zenith, there was a total trust
account shortage of $396,765.02.” In addition to the misappropriation of client
funds, the respondent forged his clients’ signatures on settlement drafts. In that
regard the referee stated, “As with misuse of client funds, the Supreme Court of
Florida takes a very dim view of forgery.”
   The referee also found that the respondent had failed to obey a court order
and deliberately lied to a tribunal. Furthermore, the referee noted that the
respondent “has engaged in a myriad of other unethical conduct . . . which would
warrant disbarment several times over.” Such unethical conduct included
misrepresentation to successor counsel, collecting excessive fees, and
representing a client without authority, among many other things. According to
the referee, the “respondent has brought into play almost every aggravating
factor in The Florida Standards.” The referee therefore found it appropriate to
recommend that the respondent receive “enhanced disbarment,” meaning that he
cannot apply for reinstatement in Florida for 20 years.
   Consequently, on October 21, 2004, the DHS initiated disciplinary
proceedings against the respondent with the issuance of a Notice of Intent to
Discipline and petitioned for the respondent’s immediate suspension from
practice before the DHS on October 25, 2004. See 

 (2004).
On November 4, 2004, the Office of General Counsel for the Executive Office



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for Immigration Review (“EOIR”) asked that the respondent be similarly
suspended from practice before the EOIR, including the Board and the
Immigration Courts. On December 6, 2004, we granted the Government’s
petition for immediate suspension.
   As the respondent requested a hearing on the charges in the Notice of Intent
to Discipline, the record was forwarded to the Office of the Chief Immigration
Judge under 

 (2005), which states that in attorney discipline
cases, that office shall appoint an adjudicating official (an Immigration Judge)
when an answer is filed. See 

(f) (2005); see also Matter of
Gadda, 

 (BIA 2003), aff’d, Gadda v. Ashcroft, 

 (9th Cir. 2004).
   On March 17, 2005, the Immigration Judge expelled the respondent from
practice before the Immigration Courts, the Board, and the DHS. The
Immigration Judge determined that an evidentiary hearing was not necessary, as
the respondent contested only jurisdiction, which had been established. The
Immigration Judge issued another order on March 29, 2005, in which he
declined to reconsider his final order. The respondent filed a timely appeal with
the Board on April 14, 2005, and subsequently the parties submitted briefs. See

(c) (providing that the Board has jurisdiction to review the
decision of the adjudicating official and conducts a de novo review of the
record); 

(f); see also Matter of 

.

                               II. ANALYSIS
   As alleged by the DHS in its Notice of Intent to Discipline, the respondent
has been disbarred in the State of Florida. We therefore find that there are
grounds for discipline. 

(e)(1), 1292.3(b) (2005).
   The regulations provide for summary disciplinary proceedings against a
practitioner who, like the respondent, has been disbarred by the highest court of
a State. 

(c). Where the DHS brings proceedings based on a
final order of disbarment, such an order creates a rebuttable presumption that
disciplinary sanctions should follow. 

(c)(3)(ii). Such a
presumption can only be rebutted upon a showing that the underlying
disciplinary proceeding resulted in a deprivation of due process, that there was
an infirmity of proof establishing the misconduct, or that discipline would result
in injustice. Id.; see also Matter of 

.
   The DHS correctly notes in its brief that the respondent set forth seven issues
for review in his Notice of Appeal, which were restructured into several issues
in the respondent’s brief. We also note that the respondent filed a “Reply Brief”
on June 10, 2005. We agree with the DHS that the issues raised by the
respondent lack merit.


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   First, the respondent argues that the disciplinary proceedings are unwarranted,
because he was disbarred in 1997 and he could have been reinstated by 1998 had
the DHS initiated these proceedings in 1997. The respondent refers to 

 (2005), which allows for reinstatement to practice before the
Board, the Immigration Courts, and the DHS. See also 

(f).
A practitioner who has been expelled may petition the Board for reinstatement
after 1 year. See 

(b).
   As the DHS points out, however, reinstatement is not automatic, simply upon
the passage of time. Even had the respondent been expelled from practice
before the Board, the Immigration Courts, and the DHS at an earlier date, he
would not be eligible for reinstatement because he could not qualify as an
attorney under 

(f) (2005), or as a representative under 

(j). See 

(b). As a result of the respondent’s
egregious violations of the Florida Rules, he cannot be reinstated to practice law
in Florida for 20 years, and he makes no claim that he has been readmitted to
practice law in that State. Moreover, he does not meet the definition of a
“representative” under 

(j), as he is not an accredited
representative under 

(a)(4) (2005) and does not otherwise
show that he is “entitled to represent others.”
   The respondent also argues that the penalty imposed on him by the
Immigration Judge, i.e., expulsion, was unfair, because other attorneys have not
faced such a severe sanction. The regulations provide that expulsion is one
sanction that may be applied against an attorney. See 

(a)(1)
(2005). We agree with the Immigration Judge that expulsion is an appropriate
sanction in this case. As noted above, the Supreme Court of Florida accepted
a referee’s report, which found that the respondent had misused client funds,
forged client signatures, charged excessive fees, and lied to a tribunal. As a
result, the respondent received “enhanced disbarment,” which precludes
reinstatement to the Florida Bar for 20 years. Given the Supreme Court of
Florida’s endorsement of the referee’s report finding extensive unethical
conduct committed by the respondent, it is more than appropriate that the
respondent be expelled from practice before the Board, the Immigration Courts,
and the DHS. See Matter of 

 (finding expulsion from
practice appropriate where the respondent had engaged in “egregious and
repeated acts of professional misconduct” that resulted in expulsion by the
Supreme Court of California).
   The respondent also contends that disciplinary sanctions may not be imposed
against him because he is no longer an attorney as a result of his disbarment.
The DHS counters that the respondent “seeks to render a nullity one of the most
commonly charged grounds upon which disciplinary sanctions are imposed by
adjudicating officials and the Board.” The regulations provide that disciplinary
sanctions may be applied against an attorney who has been disbarred.

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(e)(1), 1292.3(b); see also Matter of 

. Clearly, therefore, the respondent is subject to expulsion as a disbarred
attorney.
   To the extent that the respondent claims that he is not subject to sanctions
because he did not “practice” before the DHS, his argument fails, as we earlier
found in issuing an immediate suspension order on December 6, 2004. The
regulations make clear that any “practitioner” is subject to sanctions under the
attorney discipline regulation, and that any practitioner who has been disbarred
by the highest court in a State can be immediately suspended from practice. See

(a)(2), (c). A “practitioner” includes any attorney, as defined
at 

(f). See 

(a)(2). Therefore, because the
respondent is an attorney, he is subject to sanctions as a “practitioner,” and the
Government is not required to show that he has “appeared” before it.
   In any event, as we stated in our December 6, 2004, order, the DHS showed
that the respondent is the executive director of “All American Immigration
Association” and had submitted numerous G-28 forms (Notice of Entry of
Appearance as Attorney or Representative), in which he claimed to be an “agent”
for the party appearing before the DHS. Given this, the respondent clearly
“practiced” before the DHS. See 

(i) (defining “practice” as the
“act or acts of any person appearing in any case, either in person or through the
preparation or filing of any brief or other document, paper, application, or
petition on behalf of another person or client before or with the [DHS], or any
officer of the [DHS], or the Board”).
   The respondent asserts that the Immigration Judge did not give him sufficient
time to prepare his case. He also makes accusations that the Government
defrauded the Immigration Judge and Board. His arguments are without merit,
and his accusations are unfounded. On January 11, 2005, the Immigration Judge
issued an order directing the parties to present a “statement of issues to be
decided at hearing, a detailed description of any evidence that they intend to
present (including names of any witnesses and copies of any documents), and
a statement clearly establishing the relevance of each item of evidence to an
issue to be decided at hearing.” The DHS presented evidence that the
respondent has been disbarred, as well as evidence that the respondent had
practiced before the DHS after being disbarred, including appearance forms and
other documents filed by the respondent with the DHS. The respondent fails to
show that he was denied adequate time to respond to the documents filed by the
DHS, which clearly show that he “practiced” before the DHS.
   Additionally, to the extent that the respondent attempts to rebut the
presumption of professional misconduct established by his disbarment in
Florida, we note that the presumption can be rebutted only by demonstrating by
clear, unequivocal, and convincing evidence that the underlying disciplinary
proceeding resulted in a deprivation of due process, that there was an infirmity

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of proof establishing the misconduct, or that discipline would result in injustice.
See 

(c)(3)(ii); see also Matter of 

. As
we found in our December 6, 2004, immediate suspension order, the respondent
was given notice of the Florida proceedings, but he chose not to answer the
Bar’s complaint, and he later elected not to appear at a hearing concerning the
sanction. The referee’s report clearly detailed the respondent’s misconduct
leading to his disbarment. The respondent made no showing that the
proceedings in Florida were unfair, or that he required additional time to dispute
the presumption that disciplinary sanctions based on his disbarment should
follow.
   Finally, the respondent argues that the Immigration Judge erred by issuing his
decision without a hearing. The Immigration Judge correctly decided that the
respondent’s prehearing statement failed to establish that a hearing was
necessary. There are no issues of material fact that would require a hearing in
this case. As noted, a final order of disbarment creates a rebuttable presumption
of professional misconduct, which results in disciplinary sanctions unless the
presumption is rebutted. 

(c)(3)(ii). The respondent offered
nothing to suggest that the Florida proceedings were unfair and has identified no
issues that would require an evidentiary hearing. See Matter of 

.

                             III. CONCLUSION
   In sum, with agree with the DHS that clear, unequivocal, and convincing
evidence establishes that it is in the public interest to discipline the respondent,
based on the final order of disbarment issued by the Supreme Court of Florida
on December 18, 1997. We further conclude that expulsion is the appropriate
sanction.
   ORDER: The respondent’s appeal is dismissed, and he is expelled from
practice before the Board, the Immigration Courts, and the DHS.




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