Matter of Koden
| Decision Date | 16 August 1976 |
| Docket Number | A-18919327,Interim Decision Number 2516 |
| Citation | 15 I&N Dec. 739 |
| Parties | MATTER OF KODEN In Disbarment Proceedings Under 8 CFR 292.3 |
| Court | U.S. DOJ Board of Immigration Appeals |
(2) There is no constitutional impediment to the Service disciplining an attorney who practices before it. Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) provides ample statutory authority to promulgate regulations implementing section 292 of the Act so as to provide appropriate regulations for institution of disciplinary proceedings against members of the agency's bar for unethical conduct. An administrative body may regulate, supervise, and discipline those who practice before it in the same manner as may a court.
(3) Where the charges allege the willful commission of acts respondent should have known were wrong, and where those charges were properly brought against respondent, section 558(c) of the Administrative Procedure Act (5 U.S.C. 558(c)) does not shield respondent from responsibility for any of the alleged acts of misconduct regardless of whether he had actual knowledge that the acts were proscribed by 8 CFR 292.3(a).
(4) Any acts of misconduct in disbarment proceedings brought under 8 CFR 292.3 must be established by evidence that is clear, convincing and unequivocal before discipline may be imposed.
(5) Depending on its probative value, circumstantial evidence alone may be sufficient to prove a charge in disbarment cases.
(6) Hearsay evidence is admissible in a disciplinary proceeding. Its admissibility is not so much predicated on administrative expertise as on the ability of an administrative tribunal properly to discern the probative force of all the evidence before it. It is proper for an administrative adjudicator to admit any relevant evidence, and then accord appropriate weight to that evidence after the record has been made.
(7) Where respondent was afforded ample opportunity to cross examine witnesses against him, the evidence was fully disclosed, and he was not denied a reasonable opportunity to defend on the charges levied in the complaint, denial of certain discovery motions, while perhaps unconvenient to respondent, was not prejudicial to him.
(8) The allegation that respondent wilfully misled and deceived an alien by purporting to represent her for a $550 fee when in fact he did not do so, in violation of 8 CFR 292.3(a)(4), is substantiated by clear, convincing and unequivocal evidence and discipline may be imposed upon respondent for that violation.
(9) Where the alleged "runner" Angulo, was unavailable at the time of the hearing, it was proper for the Board to draw inferences from the testimony of Witness Perez concerning her dealings with Angulo and conclude that a relationship of an unethical nature existed between Angulo and Respondent. The Perez testimony was not hearsay (see Rule 801(c) of the Federal Rules of Evidence) inasmuch as Angulo's assertion is not offered to prove the truth of the matter asserted but was offered for the inference to be drawn from the fact that the offer to engage in the client referral scheme was made at all. Under the circumstances the charge that respondent violated 8 CFR 292.3(a)(5) by employing a "runner" to solicit clients was properly sustained, and discipline may be imposed upon respondent for that violation.
(10) Order entered suspending respondent from practicing before the Service and Board for a period of one year based on six months suspension for each offense.
(August 16, 1976)
In our decision dated August 30, 1974, we ordered the suspension of the respondent from the practice of law before the Immigration and Naturalization Service and before us for a period of one year. We further, ordered that the record be certified to the Attorney General for final disposition, and stayed the suspension order pending such disposition. On November 22, 1974, we denied the respondent's petition for reconsideration of our decision of August 30, 1974. On the same date, the record was transmitted for review to the Attorney General pursuant to 8 CFR 292.3(b).
On July 22, 1976, the Deputy Attorney General1 ordered the suspension of the respondent as an attorney before the Service and this Board for the period of one year from the date of our service on him of the Deputy Attorney General's decision (a copy of that decision was mailed to respondent's counsel on July 29, 1976). The Deputy Attorney General further ordered that the proceeding be remanded to us for further consideration consistent with his opinion of the charge that respondent violated 8 CFR 292.3(a)(1).
The Deputy Attorney General affirmed our findings that the respondent in violation of 8 CFR 292.3(a)(4), willfully misled and deceived an alien by purporting to represent her for a fee whereas in fact he did not do so; and that the respondent, in violation of 8 CFR 292.3(a)(5), unethically solicited practice by entering into a client referral arrangement with one Mr. Angulo, and thereby placing Mr. Angulo in a position which encouraged him to solicit clients for the respondent for monetary compensation in furtherance of that arrangement.
With respect to the charge that respondent violated 8 CFR 292.3(a)(1),2 we concluded that the term "accredited representative" did not extend to an individual who qualifies as an "attorney" within the meaning of 8 CFR 1.1(f). Accordingly, we held that the respondent, who qualifies as an "attorney", was not properly charged with a breach of ethics by the first allegation in the complaint. By his decision of July 22, 1976, the Deputy Attorney General interpreted the term "accredited representative" to include any person who has been "accredited" as a representative of a recognized organization whether he is an attorney or not. The Deputy Attorney General pointed out that as to the charge that the respondent violated 8 CFR 292.3(a)(1), the crucial question is not whether the respondent was an attorney, but whether he was "accredited" by this Board as his organization's representative. We note, as did the Deputy Attorney General, that the record of this case does not indicate whether the respondent has been accredited. Further, we recently conducted an examination of our records and are unable to find that the respondent was accredited by us.
In accordance with the decision of the Deputy Attorney General (a copy is attached hereto), we shall suspend the respondent from practice before the Service and this Board for the period of one year, effective from the date of this order. Further, we shall remand the record to the Regional Commissioner for appropriate proceedings to ascertain whether the respondent was in fact accredited as a representative of a recognized organization under Part 292 of the Code of Federal Regulations.
ORDER*: The respondent is suspended from practice before the Immigration and Naturalization Service and the Board of Immigration Appeals for the period of one year, effective from the date of this order.
Further order: The record is remanded for further proceedings in accordance with the above opinion.
(July 22, 1976)
This matter is before me for review pursuant to section 292.3(b) of Title 8 of the Code of Federal Regulations relating to the suspension or disbarment of attorneys and representative of accredited organizations from practice before the Immigration and Naturalization Service and the Board of Immigration Appeals.* Respondent is an attorney and was employed by the Travelers Aid Society of Metropolitan Chicago incorporating the Immigrants' Service League (hereafter referred to as the League). He was employed by the League to advise and represent its clients in connection with their immigration problems.
The Service commenced a proceeding under 8 CFR § 292.3(a) seeking the disbarment of respondent on a number of the grounds specified therein. After an evidentiary hearing before a representative of the appropriate regional commissioner of the Service, the commissioner forwarded the record to the Board, as required by the regulations, with the recommendation that respondent should be disbarred. The Board, by majority vote, sustained two of the changes and rejected the others; it ordered respondent's suspension from practice for a period of one year. Under the regulations, a suspension or disbarment order must be referred to the Attorney General for final determination.
Respondent, who was represented by counsel, raised a number of objections, some relating to the Board's constitutional and statutory authority to conduct the proceedings, others of a procedural nature, and still others of an evidentiary nature. The Board, in a comprehensive opinion, rejected the constitutional, statutory, and procedural objections, and I conclude that it acted correctly.
It is appropriate at the outset to consider one charge rejected by the Board.1 This charge alleged violation by the respondent of § 292.3(a)(1), which authorizes the suspension or disbarment in the public interest of an attorney who charges or receives grossly excessive fees and of an "accredited representative" who "charges or receives either directly or indirectly any fee or...
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