Matter of Sparrow
| Citation | 20 I&N Dec. 920 |
| Decision Date | 22 June 1994 |
| Docket Number | Interim Decision Number 3237 |
| Parties | MATTER OF SPARROW In Suspension Proceedings Under 8 C.F.R. § 292.3 |
| Court | U.S. DOJ Board of Immigration Appeals |
On January 11, 1991, the Acting General Counsel of the Immigration and Naturalization Service issued a Petition for Attorney Discipline against the respondent pursuant to the provisions for suspension or disbarment under 8 C.F.R. § 292.3 (1991).1 The Petition for Attorney Discipline contains 11 charges against the respondent alleging violations of 8 C.F.R. §§ 292.3(a)(3), (7), (10), and (13). These charges arise from the respondent's January 10, 1983, conviction for involvement in sham marriage schemes designed to deceive the Service, the suspensions from the practice of law imposed by several jurisdictions as a result of the conviction, and the respondent's subsequent representations regarding his qualifications or authority to represent others.
The Petition for Attorney Discipline was served on the respondent and filed with the Office of the Chief Immigration Judge in accordance with 8 C.F.R. § 292.3(b)(ii). The respondent filed a response to the Petition for Attorney Discipline. A hearing was subsequently held before an assistant chief immigration judge. In his decision dated March 13, 1992, the assistant chief immigration judge found that Charge VIII had not been proven and dismissed that charge. He found that the other charges had been proven, however, and ordered that the respondent be suspended from the practice of law before the Service and the Executive Office for Immigration Review for a period of 1 year and 9 months, with leave to petition the court for reinstatement on March 12, 1993. The Service appealed from the assistant chief immigration judge's dismissal of Charge VIII. The respondent appealed from the assistant chief immigration judge's findings regarding the other charges and from the order of suspension. These appeals are the subject of the proceedings now before us.2
The regulatory grounds upon which the proceedings before us are based are set forth at 8 C.F.R. § 292.3 (1994),3 which currently provides in pertinent part:
(a) Grounds. The Immigration Judge, Board, or Attorney General may suspend or bar from further practice before the Executive Office for Immigration Review or the Service, or may take other appropriate disciplinary action against, an attorney or representative if it is found that it is in the public interest to do so. Appropriate disciplinary sanctions may include disbarment, suspension, reprimand or censure, or such other sanction as deemed appropriate. The suspension, disbarment, or imposition of other appropriate disciplinary action against 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 purposes of this part, but the enumeration of the following categories does not constitute the exclusive grounds for discipline in the public interest:
. . . .
(3) Who willfully misleads, misinforms, or deceives an officer or employee of the Department of Justice concerning any material and relevant fact in connection with a case;
. . . .
(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;
. . . .
(10) Who willfully made false and material statements or representations with respect to his qualifications or authority to represent others in any case;
. . . .
(13) Who has been convicted of a felony, or, having been convicted of any crime is sentenced to imprisonment for a term of more than one year ....
In disciplinary proceedings under 8 C.F.R. § 292.3, which are based on the suspension from the practice of law by a state court, an attorney is entitled to the opportunity to present contentions and evidence regarding any alleged fundamental procedural inadequacy of his state court suspension and any alleged insubstantiality of evidence supporting it. Matter of Bogart, 15 I&N Dec. 552 (BIA 1975; A.G., BIA 1976). Before discipline may be imposed in disciplinary proceedings under 8 C.F.R. § 292.3, any allegations of misconduct must be established by evidence which is "clear, convincing, and unequivocal." 8 C.F.R. § 292.3(b)(1)(iv); see also Matter of Solomon, 16 I&N Dec. 388 (BIA, A.G. 1977); Matter of Koden, 15 I&N Dec. 739 (BIA 1974; A.G., BIA 1976), aff'd, 564 F.2d 228 (7th Cir. 1977).
The respondent has challenged the propriety of these proceedings on two grounds. First, he maintains that the doctrine of laches should apply against the Service to prevent it from pursuing the instant disciplinary proceedings against him. In this regard, he argues that he has been prejudiced by the Service's issuance of the Petition for Attorney Discipline years after his 1983 conviction. He claims that in correspondence to him while he was in prison in California in early 1983, the Service agreed to postpone proceedings to await and rely upon the outcome of California disciplinary proceedings against him. The respondent asserts that he has been prejudiced by the passage of time because neither he nor the Service is now able to locate any record of this correspondence to prove that the Service made this agreement.
Laches is an affirmative defense in which the party raising the defense has the burden of proving that he changed his position to his detriment and prejudice through reliance upon the unreasonable delay in instituting actions against him. See AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531 (11th Cir. 1986), cert. denied, 481 U.S. 1041 (1987); Matter of Onal, 18 I&N Dec. 147 (BIA 1981, 1983).
We need not reach the issue of whether the elements of laches have been satisfied in this case, as the respondent has not shown that the equitable doctrine of laches is applicable to these proceedings. The cases cited by the respondent in his brief are not laches cases, but instead are cases which involve the issues of speedy trial and preindictment delay in criminal prosecutions. He has presented no authority for applying laches to the disciplinary proceedings before us. Laches or neglect of duty on the part of officers of the Government generally may not be invoked against the Government when it acts to enforce a public right or protect a public interest. See United States v. Summerlin, 310 U.S. 414 (1940); Guaranty Trust Co. v. United States, 304 U.S. 126 (1938); Utah Power & Light Co. v. United States, 243 U.S. 389 (1917); Bostwick Irrigation District v. United States, 900 F.2d 1285 (8th Cir. 1990); United States v. RePass, 688 F.2d 154 (2d Cir. 1982); Matter of K----, 4 I&N Dec. 480 (BIA 1951). In initiating disciplinary proceedings against the respondent, the Service has expressly alleged pursuant to 8 C.F.R. § 292.3(a) that it is "in the public interest" to do so. Moreover, the record reflects that in their respective attorney disciplinary proceedings, state authorities were not deterred by the passage of time since the respondent's 1983 conviction when they used that conviction as the basis for suspending or disbarring the respondent from the practice of law in 1988 in Maryland and in 1990 in New York and Rhode Island.
The respondent's other argument against the propriety of these proceedings is that the Service instituted them vindictively because of the effectiveness of the respondent's pro bono representation of aliens before the Service and the Service's disappointment over its inability to convince an Assistant United States Attorney to prosecute the respondent for alleged false statements on Notices of Entry of Appearance as Attorney or Representative (Form G-28) ("Notice of Entry of Appearance"). In support of this argument, the respondent submitted copies of briefs and other documents he filed on behalf of clients. He also refers to Service documents indicating that an Assistant United States Attorney was approached by the Service to review the charges against the...
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