8.7 - Disciplinary Proceedings

              (i) The underlying disciplinary proceeding was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process;

              (ii) There was such an infirmity of proof establishing the attorney's professional misconduct as to give rise to the clear conviction that the adjudicating official could not, consistent with his or her duty, accept as final the conclusion on that subject; or

              (iii) The imposition of discipline by the adjudicating official would result in grave injustice.

     (2) Answer – The answer must make a prima facie showing to the Board that there is a material issue of fact in dispute with regard to the basis for summary disciplinary proceedings, or with one or more of the exceptions set forth in section (d)(1)(B)(i)-(iii) above.

If the practitioner files a timely answer (see section (e)(3)(A) below) and the Board determines that there is a material issue of fact in dispute with regard to the basis for summary disciplinary proceedings, or with one or more of the exceptions set forth in section (d)(1)(B)(i)-(iii), then the Board shall refer the case to the Chief Immigration Judge for the appointment of an adjudicating official.  If the practitioner fails to make such a prima facie showing, the Board shall retain jurisdiction over the case and issue a final order.  

(e) Non-Summary Disciplinary Proceedings

      (1) Notice of Intent to Discipline - Upon completion of the preliminary inquiry, if the EOIR disciplinary counsel determines that sufficient prima facie evidence of a rule violation exists, the EOIR disciplinary counsel and the DHS disciplinary counsel file a NID with the Board.  

         (A) Service – 

              (i) In cases involving practitioners, service of the NID is made upon the practitioner either by certified mail to the practitioner's last known address or by personal delivery.  

              (ii) In cases involving recognized organizations, service of the NID is made upon the authorized officer of the organization either by certified mail at the address of the organization or by personal delivery.  

          (B) Contents - The NID shall contain a statement of the charge(s), a copy of the preliminary inquiry report, the proposed disciplinary sanctions to be imposed, the procedure for filing an answer or requesting a hearing, and the mailing address and telephone number of the Board.  

              (i) If a NID is filed against an accredited representative, the EOIR disciplinary counsel shall send a copy of the notice to the authorized officer of the recognized organization through which the representative is accredited at the address of the organization.

      (2) Petition for Interim Suspension - In certain circumstances, the EOIR disciplinary counsel and the DHS disciplinary counsel may petition for an interim suspension from practice of an accredited representative before the Board and the immigration courts.   8 C.F.R. § 1003.111(a).   The petition must demonstrate by a preponderance of the evidence that the accredited representative poses a substantial threat of irreparable harm to clients or prospective clients.   See 8 C.F.R. § 1003.111(a)(3).

      (3) Answer -

         (A) Timing - A practitioner or recognized organization subject to a NID must file a written answer with the Board and serve a copy on the EOIR disciplinary counsel and the DHS disciplinary counsel within 30 days from the date of service.  8 C.F.R. § 1003.105(c)(1).  The answer is deemed filed when it is received by the Board.  The time in which to file an answer may be extended for good cause shown through the filing of a motion no later than three working days before the filing deadline.  8 C.F.R. § 1003.105(c)(1).

          (B) Contents - In the answer, the practitioner, or, in cases involving recognized organizations, the organization, must admit or deny each allegation in the NID.   Each allegation not expressly denied is deemed admitted.  In addition, the answer must state whether the practitioner or recognized organization requests a hearing.  If a hearing is not requested, the opportunity to request a hearing is deemed waived.   8 C.F.R. § 1003.105(c)(2).

        (C) No answer or untimely answer – The failure to file a timely answer constitutes an admission of the allegations in the NID, and the practitioner is thereafter precluded from requesting a hearing on the matter.  8 C.F.R. § 1003.105(d).  The Board issues a final order adopting the disciplinary sanctions proposed in the NID, absent the presence of special considerations.  8 C.F.R. § 1003.105(d)(2).

                (A) A practitioner or recognized organization may move to set aside a default order within 15 days of the date of service of the default order.  The practitioner or recognized organization must show that the failure to answer was due to exceptional circumstances beyond the control of the practitioner or recognized organization (e.g., the practitioner serious illness, death of an immediate relative, but not including less compelling circumstances).  8 C.F.R. § 1003.105(d)(2).

      (4) Adjudication - Except as described in subsection (X) below, if a practitioner, or, in cases involving recognized organizations, the organization, files a timely answer, the Board refers the matter to the Chief Immigration Judge for appointment of an Immigration Judge or Administrative Law Judge who will act as the adjudicating official in the disciplinary proceedings.  An Immigration Judge cannot adjudicate a matter in which he or she filed the complaint or which involves a practitioner who regularly appears in front of that Immigration Judge. 

            (A) Adjudication without hearing — If the practitioner or recognized organization files a timely answer without a request for a hearing, the adjudicating official provides the parties with the opportunity to file briefs and evidence to support or refute any of the charges or affirmative defenses, and the matter is adjudicated without a hearing.

            (B) Adjudication with hearing — If the practitioner or recognized organization files a timely answer with a request for a hearing, a hearing is conducted as described in subsections (i) through (v), below.  In general, disciplinary hearings are conducted in the same manner as immigration court proceedings, as appropriate.  8 C.F.R. § 1003.106(a)(1)(v).

                    (i) Timing and location — The time and place of the hearing is designated with due regard to all relevant factors, including the location of the practitioner’s practice or residence or, in the case of a recognized organization, the location of the recognized organization, and the convenience of witnesses.  The practitioner or the recognized organization is afforded adequate time to prepare the case in advance of the hearing.

                    (ii) Representation — The practitioner or, in cases involving recognized organizations, the organization, may be represented by a practitioner at no expense to the government.

                    (iii) Pre-hearing conferences — Pre-hearing conferences may be held to narrow issues, obtain stipulations between the parties, exchange information voluntarily, or otherwise simplify and organize the proceeding.

                    (iv) Timing of submissions — Deadlines for filings in disciplinary proceedings are as follows, unless otherwise specified by the adjudicating official.  Filings must be submitted at least thirty (30) days in advance of the hearing.  Responses to filings that were submitted in advance of a hearing must be filed within fifteen (15) days after the original filing.

                    (v) Conduct of hearing — At the hearing, each party has a reasonable opportunity to present evidence and witnesses, to examine and object to the other party’s evidence, and to cross-examine the other party’s witnesses.

           (C) Decision — In rendering a decision, the adjudicating official considers the complaint, the preliminary inquiry report, the NID, the practitioner’s, or in cases involving recognized organizations, the organization’s, answer, pleadings, briefs, evidence, any supporting documents, and any other materials.

           (D) Sanctions authorized — A broad range of sanctions are authorized.  Practitioners may be suspended or disbarred from practice before the Board, the immigration courts, and DHS, or subject to public or private censure.  8 C.F.R. § 1003.101(a).  Recognized organizations may have their recognition revoked or terminated, or they may be subject to such other sanctions as deemed appropriate.  8 C.F.R. § 1003.110.

      (5) Appeal — The decision of the adjudicating official may be appealed to the Board.  A party wishing to appeal must file a Notice of Appeal from a Decision of an Adjudicating Official in a Practitioner Disciplinary Case (Form EOIR-45).  See Chapter 3 (Forms).  Form EOIR-45 must be received by the Board no later than thirty (30) calendar days after the adjudicating official renders an oral decision or mails a written decision.  The parties must comply with all standard provisions (non ECAS-related) for filing appeals with the Board.  8 C.F.R. § 1003.106(c).  The filing fee for an appeal is listed on EOIR's website.  See 8 C.F.R. § 1003.8(a).  The fee for an appeal is paid to EOIR through the EOIR Payment Portal. See Part III, Chapter 3 (Appeals of Immigration Judge Decisions).

Parties should note that, on appeal, the Board may increase the sanction imposed by the adjudicating official.  See Matter of Gadda, 23 I&N Dec. 645 (BIA 2003).

(f) Where to File Documents

Documents in disciplinary proceedings should be filed as described below.

      (1)  Matters before the Board of Immigration Appeals - When disciplinary proceedings are pending before the Board, documents should be filed with the Board.  For the Board’s mailing address, parties should consult Part III of this manual, which is available on the EOIR website.  

      (2) Matters before an Adjudicating Official - When disciplinary proceedings are pending before an adjudicating official, documents should be sent to:

United States Department of Justice 
Executive Office for Immigration Review 
Office of the Chief Immigration Judge 
4825 Mark Center Drive, Suite 100 
Alexandria, VA 22311