Gadda v. Ashcroft
| Decision Date | 01 April 2004 |
| Docket Number | No. 02-80014.,No. 02-15113.,02-15113.,02-80014. |
| Citation | 363 F.3d 861 |
| Parties | Miguel GADDA, Esq., Petitioner-Appellant, v. John ASHCROFT, Attorney General, U.S. Attorney General; Board of Immigration Appeals; Edward G. Kandler; Immigration Court, San Opinion Francisco; Immigration and Naturalization Service, Respondents-Appellees. In re Miguel Gadda, Esq., Admitted to the bar of the Ninth, Circuit: 23 April 1985, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Miguel D. Gadda, Esq., San Francisco, CA, pro se, for the petitioner-appellant.
Jocelyn Burton, Esq. and Robert Yeargin, Esq., Assistant United States Attorneys, San Francisco, CA, and David J. Kline, Esq. and Hugh G. Mullane, Esq., United States Department of Justice, Washington, D.C., for respondents-appellees John Ashcroft, United States Attorney General, and Board of Immigration Appeals.
Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding, D.C. No. CV-01-03885-PJH.
Before BEEZER, THOMAS, and CLIFTON, Circuit Judges.
On July 30, 2001, the California State Bar Court (the "State Bar Court") found that Miguel Gadda, Esq. repeatedly failed to perform legal services competently. It placed Gadda on involuntary inactive status and recommended that Gadda be disbarred.
This opinion and order relate to two federal proceedings resulting from the State Bar Court's recommendation. In the first, Gadda appeals an order of the United States District Court for the Northern District of California, which denies Gadda's motion to preliminarily enjoin the Board of Immigration Appeals ("BIA") decision to suspend him from practice based on his suspension by the State Bar Court. Gadda v. Ashcroft, No. 02-15113. Gadda asserts that the State Bar Court cannot affect his right to practice before the BIA. The other proceeding is a disciplinary action initiated by this court after we received notice of Gadda's suspension from practice by the State Bar Court. In re Gadda, No. 02-80014.
Gadda argues that any reciprocal discipline imposed by the BIA or by this court based on the State Bar Court's suspension order is invalid because the Supreme Court of California lacked jurisdiction to discipline him. He claims that federal law preempts the states' authority to regulate attorneys, like him, who practice only in the administration of immigration law and in the federal courts, but not in the state courts. Because both of these proceedings involve the same underlying preemption issue, we consolidate them for opinion purposes only.
We conclude that federal law does not preempt the Supreme Court of California's authority to suspend or disbar attorneys admitted to practice in California state courts. The Supreme Court of California's discipline orders may serve as the basis for reciprocal disbarment actions by both the BIA and this court.
We disbar Gadda from the practice of law before the United States Court of Appeals for the Ninth Circuit.
Gadda was admitted to the California State Bar in 1975. Thereafter, he was admitted to practice law and became a member of the bar of the United States District Court for the Northern District of California, the United States Court of Appeals for the Ninth Circuit, and the Supreme Court of the United States. He was also admitted to practice before the Board of Immigration Appeals ("BIA") and was authorized to appear for clients before the BIA and in all Immigration Courts throughout the United States.
On August 26, 2002, the Review Department of the California State Bar Court (the "Review Department") affirmed the State Bar Court's decision recommending Gadda's disbarment and placing him on involuntary inactive status. In re Gadda, 2002 WL 31012596, at *1 (Cal.Bar Ct. Aug.26, 2002). On January 22, 2003, the Supreme Court of California ordered that Gadda be disbarred from the practice of law in California, effective February 21, 2003. In re Gadda, 123 S.Ct. 2618, 156 L.Ed.2d 629 (Cal.2003).
The Review Department's opinion surveyed Gadda's history of federal immigration practice, concluding that "disbarment is warranted under the circumstances for the protection of the public, the courts, and the legal profession." In re Gadda, 2002 WL 31012596, at *1. The Review Department cited seventeen acts of misconduct extending over six years and involving eight federal immigration client matters and one client trust account matter. This misconduct included Gadda's failure to appear at scheduled court conferences and to keep clients apprised of the proceedings and relevant court dates. Five of Gadda's clients were ordered deported in absentia and at least six courts found Gadda to have provided ineffective assistance. The Review Department concluded that Gadda failed "to perform legal services competently, demonstrated indifference toward rectification of or atonement for the consequences of his misconduct, and significantly harmed clients." Id. at *32; see id. at *4-30 (discussing Gadda's misconduct). The Review Department determined that aggravating factors, including prior discipline for similar misconduct in 1990, see Gadda v. State Bar, 50 Cal.3d 344, 267 Cal.Rptr. 114, 787 P.2d 95 (1990), outweighed any mitigating factors Gadda presented. Id. at *30-33, 267 Cal.Rptr. 114, 787 P.2d 95.
We incorporate by reference that portion of the Review Board's opinion which inventories Gadda's incompetence between 1994 and 1999. Of the eight federal immigration client matters which the Review Board describes, that of the Saba family is especially egregious.
The four minor Saba children applied for political asylum. After the INS denied their application, the children retained Gadda to represent them. Gadda advised the children to withdraw their asylum claim; the Immigration Judge ("IJ") ordered that they voluntarily depart from the United States. Thereafter, the children's parents became naturalized citizens. The children were eligible for priority consideration of their application for adjustment of status to legal residency or citizenship based on their parents' naturalization. However, as a result of Gadda's neglect and incompetence, the children were deprived of an adjustment of their immigration status, and ultimately were placed in deportation proceedings.
Gadda moved for a stay of the children's deportation. In the course of a hearing on that motion, Gadda left the Saba family unrepresented before an immigration officer. Gadda also directed the children to sign a statement promising they would voluntarily depart once the stay expired. The immigration court granted the stay but the children did not depart as promised. Gadda assured the children that he was appealing the earlier BIA decision.
Because Gadda negligently allowed the time for an appeal from the BIA to this court to lapse, he was forced to seek habeas corpus relief before the district court. Gadda directed William Gardner, an attorney Gadda employed on a contract basis but did not supervise, to file the habeas petition. Before Gardner filed the habeas petition, the IJ ordered the Saba children to be deported on account of their refusal to depart voluntarily at the expiration of the stay. Gadda once again advised the children not to comply with the court's order.
Gardner subsequently filed the habeas petition and the district court ordered a hearing. The district court made a sua sponte finding of ineffective assistance by Gadda and remanded the matter to the immigration court to reopen the deportation hearing. Saba v. INS, 52 F.Supp.2d 1117, 1126 (N.D.Cal.1999). By the time the case was heard, two of the Saba children were no longer minors. Gadda has not refunded the $3,000 the Saba children paid him.
Regarding the Saba matter, the Review Department agreed with the State Bar that Gadda "recklessly and repeatedly fail[ed] to perform legal services" and "failed to refund unearned fees promptly upon termination." In re Gadda, 2002 WL 31012596, at *6-7. Specifically, the Review Department found Gadda's performance incompetent in the following ways:
(1) by leaving the children alone, unrepresented, in the middle of a hearing before an immigration officer and advising them to sign a voluntary departure form; (2) by failing to advise the Saba children to depart on or before [the deadline]; (2) by failing to [timely] move to reopen deportation proceedings ...; (4) by failing to file a petition for review with the Ninth Circuit; (5) by failing to file for adjustment of status after Mrs. Saba became a naturalized citizen ... and instead filing for adjustment of status on the children's last day to depart voluntarily, approximately three months later; and (6) by failing to supervise Gardner in filing a petition for writ of habeas corpus.
Based on the State Bar Court's order, on October 2, 2001, the BIA suspended Gadda from practice before the BIA, the Immigration Courts, and the Department of Homeland Security ("DHS"), formerly the Immigration and Naturalization Service ("INS").1 Gadda unsuccessfully sought a preliminary injunction of the BIA's action in the district court. See Gadda v. Ashcroft, 2001 WL 1602693 (Dec 7, 2001). Gadda appealed the denial of the preliminary injunction to this court. We deferred submission pending the outcome of disciplinary proceedings before the BIA. See Gadda v. Ashcroft, No. 02-15113 (9th Cir. Feb. 6, 2003) (order).
Meanwhile, the Office of General Counsel for the Executive Office for Immigration Review ("EOIR") initiated disciplinary proceedings and an adjudicatory official suspended Gadda indefinitely from practice on August 22, 2002. On July 8, 2003, the BIA dismissed Gadda's appeal and ordered him expelled from practice before...
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