Matter of Bogart, Interim Decision Number 2465

• Decision Date: 15 January 1976
• Docket Number: A-17179568,Interim Decision Number 2465
• Parties: MATTER OF BOGART In Disbarment Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

15 I&N Dec. 552

MATTER OF BOGART

In Disbarment Proceedings

Interim Decision Number 2465

A-17179568

Board of Immigration Appeals.

Decided by Board June 12, 1975 and January 21, 1976

Decided by Attorney General January 15, 1976

(1) The standard for suspension from practice before the Board and the Service is the same as that for disbarment before the federal courts.

(2) In light of the discretionary character of suspension from practice under 8 CFR 292.3(a), where suspension, as in the instant case, is predicated on 8 CFR 292.3(a)(7), the procedure established by 8 CFR 292.3(b), to allow respondent to show cause why he should not be suspended or disbarred, must provide the opportunity to do more than contest whether the respondent's name appears on a state suspension order. It must also include the opportunity to show that the state order was based on an invalid procedure or patently inadequate evidence, or that for some other grave reason the normal presumption established by 8 CFR 292.3(a)(7) should not govern.

(3) Since respondent in the instant case was denied the opportunity to present contentions and evidence going to alleged fundamental procedural inadequacy of his state court suspension and alleged insubstantiality of evidence supporting it, the suspension order of the Board is reversed and the case is remanded for further proceedings.

CHARGE: 8 CFR 292.3(a)(7)

ON BEHALF OF RESPONDENT: Pro se.

BEFORE THE BOARD

(June 12, 1975)

This case is before us pursuant to the provisions of 8 CFR 292.3(b). The respondent is an attorney who was admitted to the bar of the State of New York in 1961, and to the bar of the State of California in 1962. On March 30, 1966 the Supreme Court of the State of California entered the following order pertaining to the respondent:

Peter D. Bogart, having been convicted of violating sections 470 and 487 of the Penal Code, offenses involving moral turpitude, and an appeal having been taken, it is ordered, pursuant to section 6102 of The State Bar Act,¹ that he be suspended from the practice of law in this state until further order of this court.²

On October 31, 1968, the Service commenced disbarment proceedings against the respondent under 8 CFR 292.3 with the issuance of a notice to show cause. Thereafter, on June 29, 1969, the Service terminated those proceedings on the ground that they were unnecessary, because the respondent was no longer within the definition of an "attorney" qualified to practice before the Service and this Board as that term is defined in 8 CFR 1.1(f).³

The respondent proceeded to challenge the Service's action in court. In a decision rendered August 31, 1971, the Ninth Circuit Court of Appeals held that:

... We believe Bogart has a constitutional right to a hearing before the agency before being denied the right to further practice before the agency, department regulations to the contrary notwithstanding.⁴

In response to the Ninth Circuit's ruling, the respondent was served with a new notice requiring him to show cause why his suspension or disbarment from practice before the Service and the Board would not be in the public interest pursuant to 8 CFR 292.3(a)(7) (Ex. 1). This notice also informed the respondent of his right to request a hearing before a representative of the Regional Commissioner of the Service. The respondent answered denying the allegations contained in the notice to show cause and requesting a hearing.

A hearing commenced on February 15, 1972, before a presiding officer duly designated by the Regional Commissioner. After several adjournments to allow the respondent to attempt to retain counsel and to prepare his defense, the hearing was concluded on October 3, 1972.

At the hearing, the Service introduced the order of the California Supreme Court suspending the respondent from the practice of law in the State of California (Ex. 5). Upon conclusion of the hearing, the presiding officer entered a recommendation, dated January 24, 1973, that the respondent be suspended from practice as an attorney before the Service and the Board during such time as he shall continue to be suspended from the practice of law in the State of California. The presiding officer's recommendation was adopted by the Regional Commissioner, and the record was forwarded to us for further action pursuant to 8 CFR 292.3(b).

The portion of 8 CFR under which the Service seeks the respondent's suspension provides:

§ 292.3 Suspension or disbarment.

(a) Grounds. The Board, with the approval of the Attorney General, may suspend or bar from further practice an attorney or representative if it shall find that it is in the public interest to do so. The suspension or disbarment of 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 purpose of this part, ...:

* * * * *

(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.

The Service based its entire case on the order suspending the respondent from the practice of law in California.

The respondent has attempted in these proceedings to collaterally attack the validity of the order of the California Supreme Court suspending him from practice, and also to collaterally attack the validity of the criminal convictions underlying the California Supreme Court's order. We agree with the presiding officer that this is not the proper forum for such an attack.

Under 8 CFR 292.3(a)(7), our inquiry is limited to a determination of whether an order of suspension or disbarment has been entered against the respondent by any of the specified courts, and whether such order is still in effect. The respondent has conceded that he is the person named in the order of the California Supreme Court, and he has not shown that the California Supreme Court lacked the authority to enter such an order or that the order is no longer in effect. While the decision of the Ninth Circuit in Bogart v. Carter, 445 F.2d 321 (C.A. 9, 1971), required the granting of a hearing to the respondent, nothing in that decision required the scope of the hearing to go beyond the proof required to discipline the respondent under the applicable regulations.

Without conceding that there is any necessity for us to consider any information other than the order of the California Supreme Court suspending the respondent from the practice of law, we note that subsequent to the hearing before the presiding officer, the Supreme Court of California entered an order permanently disbarring the respondent from the practice of law in California. In re Bogart, 9 Cal.3d 743, 511 P.2d 1167, 108 Cal.Rptr. 815 (1973), appeal dismissed, Bogart v. State Bar of California, 415 U.S. 903 (1974).

In the course of that opinion, the California Supreme Court considered and rejected the respondent's contentions that there were procedural defects in the disciplinary proceedings conducted by the State Bar of California. The court noted that the respondent received at least four hearings from the State Bar on the issue of discipline, that the proceedings were fair, and that the respondent was afforded the assistance of counsel, full discovery, and additional time in which to fully present his claims. The court also noted that it had rejected seven attempts by the respondent to have his suspension set aside, and that the respondent had been denied relief by the United States Supreme Court on three occasions.⁵ Moreover, we note that the convictions that formed the basis for the respondent's suspension by the California Supreme Court were affirmed on appeal. People v. Bogart, 7 Cal.App.3d 257, 86 Cal.Rptr. 737 (1970).

The respondent claims that 8 CFR 292.3(a)(7) is unconstitutional because it denies him a due process hearing on the merits of the charges upon which the state court suspension was predicated. The short answer to this contention is that we are bound by the regulations promulgated under the Immigration and Nationality Act. Matter of Bilbao-Bastida, 11 I. & N. Dec. 615 (BIA 1966), aff'd Bilbao-Bastida v. INS, 409 F.2d 820 (1969), cert. dismissed, 396 U.S. 802 (1969); Matter of Tzimas, 10 I. & N. Dec. 101 (BIA 1962). This is not the proper forum for a determination of the constitutionality of the regulations. Cf. Matter of Swissair "Flight #164," Interim Decision No. 2324 (BIA 1974); Matter of Santana, 13 I. & N. Dec. 362 (BIA 1969); Matter of L----, 4 I. & N. Dec. 556 (BIA 1951).

The respondent claims that he cannot be suspended or disbarred from practice before us because he is still a member in good standing of the bar of the State of New York.⁶ He argues that the language of 5 U.S.C. 500(b) precludes the Service or the Board from preventing his practice in administrative immigration proceedings as long as he is a member in good standing of the bar of the highest court of any state.⁷ This contention is without merit. It is clearly stated in 5 U.S.C. 500(d)(2) that this section does not "limit the discipline, including disbarment, of individuals who appear in a representative capacity before an agency."

We have concluded that the respondent's suspension from practice before the Service and this Board would be in the public interest under 8 CFR 292.3(a)(7). Although we have referred to the respondent's apparent permanent disbarment by the Supreme Court of California, In re Bogart, supra, our decision to suspend is based solely on the order of suspension introduced at the hearing before the presiding officer.

ORDER: The respondent is suspended from practice as an attorney before the Immigration and Naturalization Service and before the Board of Immigration Appeals during such time as he is prohibited from the practice of law in the courts of the State of California.

Further order: The record is certified to the Attorney General for final...