564 F.2d 228 (7th Cir. 1977), 77-1500, Koden v. United States Dept. of Justice

Docket Nº:77-1500.
Citation:564 F.2d 228
Party Name:Daniel M. KODEN, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, Immigration and Naturalization Service, Defendant-Appellee.
Case Date:October 27, 1977
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 228

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

Daniel M. KODEN, Plaintiff-Appellant,

v.

UNITED STATES DEPARTMENT OF JUSTICE, Immigration and

Naturalization Service, Defendant-Appellee.

No. 77-1500.

United States Court of Appeals, Seventh Circuit

October 27, 1977

Argued Sept. 30, 1977.

Page 229

Edward N. Morris, Chicago, Ill., for plaintiff-appellant.

Thomas P. Sullivan, U. S. Atty., Beverly A. Susler, Asst. U. S. Atty., Chicago, Ill., for defendant-appellee.

Before SPRECHER, BAUER and WOOD, Circuit Judges.

SPRECHER, Circuit Judge.

The primary question in this appeal involves the power of an administrative agency to bar or suspend practitioners appearing before it.

I

The plaintiff is an attorney who was admitted to the bar of the State of Missouri in 1966. In August of 1968, after having moved to Illinois, he commenced employment with a charitable organization known as the Immigrants' Service League of the Travelers Aid Society of Metropolitan Chicago. The plaintiff's principal tasks while employed by the League involved advising and representing League clients in connection with their immigration problems. In January, 1971, he resigned from his position at the League after it became known to his superiors that he was also representing aliens in his private capacity.

The plaintiff was not licensed to practice in Illinois but the regulations of the Immigration and Naturalization Service permit representation before it by "any person who is a member in good standing of the bar of the highest court of any State." 8 C.F.R. §§ 1.1(f) and 292.1(a)(1).

On July 6, 1971, the Regional Commissioner for what was then the Northwest (but is now the Northern) Regional Office of the Immigration and Naturalization Service (the Service) caused to be served on the plaintiff a complaint, entitled Notice of Proposed Disbarment Proceedings, specifying six numbered allegations of misconduct which the Service alleged as grounds for discipline, together with a Notice to Show Cause why a motion seeking his disbarment from further representation before the Service should not be made to the Board of Immigration Appeals (the Board). The plaintiff denied the charges and requested a hearing, notice of which was given to the plaintiff in writing by the Regional Commissioner under date of February 29, 1972.

A hearing was held in Chicago, Illinois, before a designated presiding officer on eight days from April 19 to May 2, 1972. On October 24, 1972, the Northwest Regional Commissioner recommended that the Board of Immigration Appeals bar the plaintiff from further representation before the Service and the Board.

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The Board of Immigration Appeals rendered its 33 page opinion on August 30, 1974, suspending the plaintiff from practicing law before the Service and Board for a period of one year. The Board sustained two of the original six charges: (1) that in violation of 8 C.F.R. § 292.3(a)(4), 1 the plaintiff wilfully misled and deceived an alien by purporting to represent her for a fee whereas in fact he did not do so and (2) that in violation of 8 C.F.R. § 292.3(a)(5), 2 the plaintiff employed a "runner" to solicit clients. The Board imposed a six-month suspension for each violation and concluded that "the proven violations are sufficiently serious to require that the two six-month periods of suspension run consecutively."

On July 22, 1976, the Deputy Attorney General affirmed the Board's findings and order on the sustained charges, ordering that the plaintiff be suspended for one year. On August 16, 1976, the Board entered the final order of suspension. The Deputy Attorney General had also remanded the case to the Board for further consideration of another charge which the Board had earlier dismissed, and the Board in turn had remanded that issue to the Regional Commissioner. On September 21, 1976, the Regional Commissioner notified the plaintiff that inasmuch as he had been ordered suspended for one year, no further action was contemplated on charges other than those already sustained and ordered that action on the remaining charges be terminated.

On August 18, 1976, the plaintiff had filed his complaint requesting that the district court "exercise its statutory power to review administrative decisions and its inherent power to control the practice of attorneys before any tribunal, administrative or judicial in this District." The district court assumed that jurisdiction was intended by the plaintiff to be based on the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. Finding no genuine issue of material fact, the court granted the defendant Service's motion for summary judgment.

The plaintiff raises three issues on appeal: (1) the Service and Board lack the authority to suspend an attorney's right to practice and represent clients before them; (2) there was insufficient evidence to sustain either of the two sustained charges; and (3) the penalty for each charge was too severe.

II

The Immigration and Nationality Act of June 27, 1952 provided for an Immigration and Naturalization Service within the Department of Justice, 8 U.S.C. § 1101(a)(34), and charged the Attorney General with the administration and enforcement of the Act and all other laws relating to the immigration and naturalization of aliens, 8 U.S.C. § 1103(a). 3 The Attorney General "shall establish such regulations . . . as he deems necessary for carrying out his authority . . . ." 8 U.S.C. § 1103.

The Commissioner of Immigration and Naturalization is appointed by the President with the advice and consent of the

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Senate and is charged with the administration of the Immigration and Naturalization Service. 8 U.S.C. § 1103(b). He is also charged with all responsibilities and authority conferred on the Attorney General as may be delegated to him by the Attorney General or which may be prescribed by the Attorney General. 8 U.S.C. § 1103(b). The Attorney General has delegated to the Commissioner certain of his powers, 8 C.F.R. § 2.1, who, in turn, has delegated certain of his powers to Regional Commissioners, 8 C.F.R. § 103.1(m). The Attorney General has also established the Board of Immigration Appeals "subject to the general supervision of the Deputy Attorney General" to hear appeals from various administrative decisions within the Service. 8 C.F.R. § 3.1(a)(1) and (b). 4

Regulations governing the activities of the Service have been promulgated and appear in 8 C.F.R., Chapter 1, Parts 1 through 499. Part 292 deals with "Representation and Appearances" and includes § 292.3, entitled "Suspension or disbarment."

Although the Part 292 regulations of the Service differ somewhat in language at the present time from the period (1969-1971) during which the plaintiff was charged with the acts leading to his suspension, the basic principles followed in permitting "Representation and Appearances" remain substantially the...

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