10.7 - Disciplinary Proceedings

(a) In General — Disciplinary proceedings take place in certain instances where a complaint against a practitioner or recognized organization is filed with the Executive Office for Immigration Review disciplinary counsel, or a practitioner or recognized organization self-reports.  See Chapters 10.5 (Filing a Complaint), 10.6 (Duty to Report).  See generally 8 C.F.R. §§ 1003.101-109.

In some cases, practitioners are subject to summary disciplinary proceedings, which involve distinct procedures as described in subsection (g), below.

In general, disciplinary hearings are conducted in the same manner as immigration court proceedings, as appropriate.  8 C.F.R. § 1003.106(a)(2)(v).

(b) Preliminary Investigation — When a complaint against a practitioner or recognized organization is filed, or a practitioner or recognized organization self-reports, the Executive Office for Immigration Review disciplinary counsel conducts a preliminary investigation.  Upon concluding the investigation, the EOIR disciplinary counsel may elect to:

• take no further action;
• issue a warning letter or informal admonition to the practitioner;
• enter into an agreement in lieu of discipline; or
• initiate disciplinary proceedings by filing a Notice of Intent to Discipline (NID) with the Board of Immigration Appeals and serving a copy on the practitioner or recognized organization.

(c) Notice of Intent to Discipline — Except as described in subsection (g), below, the Notice of Intent to Discipline (NID) contains the charge(s), the preliminary inquiry report, proposed disciplinary sanctions, instructions for filing an answer and requesting a hearing, and the mailing address and telephone number of the Board of Immigration Appeals.

          (1) Petition for Immediate Suspension — In certain circumstances, the Executive Office for Immigration Review disciplinary counsel files a petition with the Board of Immigration Appeals to immediately suspend the practitioner from practicing before the immigration courts and the Board.  These circumstances include a conviction of a serious crime, disbarment or suspension from practicing law, or resignation while disciplinary proceedings are pending.  Practitioners subject to a petition for immediate suspension are placed in summary disciplinary proceedings, as described in subsection (g), below.

The Board may set aside such a suspension upon good cause shown, if doing so is in the interest of justice.  The hardships that typically accompany suspension from practice, such as loss of income and inability to complete pending cases, are usually insufficient to set aside a suspension order.

          (2) DHS motion to join in disciplinary proceedings — The Department of Homeland Security (DHS) may file a motion to join in the disciplinary proceedings.  If the motion is granted, any suspension or disbarment from practice before the immigration courts and the Board of Immigration Appeals will also apply to practice before DHS.

          (3) Petition for Interim Suspension — In certain circumstances, the Executive Office for Immigration Review 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)(1).  DHS may ask that the accredited representative be similarly suspended from practice before DHS.  8 C.F.R. § 1003.111(a)(2).

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).

(d) Answer — A practitioner or recognized organization subject to a Notice of Intent to Discipline (NID) has 30 days from the date of service to file a written answer with the Board of Immigration Appeals and serve a copy on the counsel for the government.  See Chapter 3.2 (Service on the Opposing Party).  The answer is deemed filed when it is received by the Board.

          (1) 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).

          (2) Motion for extension of time to answer — The deadline for filing an answer may be extended for good cause shown, pursuant to a written motion filed with the Board of Immigration Appeals no later than 3 working days before the deadline.  The motion should be filed with a cover page labeled “MOTION FOR EXTENSION OF TIME TO ANSWER” and comply with the requirements for filing.  For information on the requirements for filing with the Board, parties should consult the Board of Immigration Appeals Practice Manual, which is available at the EOIR website.

          (3) Default order — If the practitioner or, in cases involving recognized organizations, the organization, does not file a timely answer, the Board of Immigration Appeals issues a default order imposing the discipline proposed in the NID, unless special considerations are present.  8 C.F.R. § 1003.105(d)(2).

          (4) Motion to set aside default order — A practitioner or, in cases involving recognized organizations, the organization, subject to a default order may file a written motion with the Board of Immigration Appeals to set aside a default order.  The motion to set aside a default order must be filed within 15 days of service of the default order.  8 C.F.R. § 1003.105(d)(2).  The motion should be filed with a cover page labeled “MOTION TO SET ASIDE DEFAULT ORDER” and comply with the requirements for filing.  For information on the requirements for filing with the Board, parties should consult the Board of Immigration Appeals Practice Manual.

The motion must show that the failure to file a timely answer was caused by exceptional circumstances beyond the control the practitioner or recognized organization, such as the serious illness or the death of an immediate relative, but not including less compelling circumstances.  8 C.F.R. § 1003.105(d)(2).

          (e) Adjudication — Except as described in subsection (g) below, if a practitioner, or, in cases involving recognized organizations, the organization, files a timely answer, the matter is referred to 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 they filed the complaint or which involves a practitioner who regularly appears in front of that immigration judge.

          (1) 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.

          (2) 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 (A) through (E), below.

(A) 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.

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

(C) 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.

(D) 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.

(E) 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.

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

          (4) Sanctions authorized — A broad range of sanctions are authorized, including disbarment from immigration practice, suspension from immigration practice, and public or private censure.  8 C.F.R. § 1003.101(a).

          The Executive Office for Immigration Review is also authorized to impose sanctions against a recognized organization, including revocation, termination, and 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 of Immigration Appeals.  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 11.2 (Obtaining Blank Forms), Appendix D (Forms).  The Form EOIR-45 is specific to disciplinary proceedings.  The Form EOIR-45 must be received by the Board no later than 30 calendar days after the adjudicating official renders an oral decision or mails a written decision.  The parties must comply with all of the other standard provisions (non ECAS-related) for filing appeals with the Board.  8 C.F.R. § 1003.106(c).  See Board of Immigration Appeals Practice Manual, Chapter 4 (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) Board of Immigration Appeals — When disciplinary proceedings are pending before the Board of Immigration Appeals, documents should be filed with the Board.  For the Board’s mailing address, parties should consult the Board of Immigration Appeals Practice Manual, which is available on the EOIR website.  Examples of when to file documents with the Board include:

• after the filing of a Notice of Intent to Discipline, but before an adjudicating official is appointed to the case
• after a default order has been entered
• after an appeal has been filed

          (2) Adjudication — 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
5107 Leesburg Pike, Suite 2400
Falls Church, VA 22041
Attn: Chief Clerk of the Immigration Court

(g) Summary Disciplinary Proceedings — Summary disciplinary proceedings are held in cases where a petition for immediate suspension has been filed.  See (c)(1), above.  A preliminary inquiry report is not required to be filed with the Notice of Intent to Discipline (NID) in summary disciplinary proceedings.

          These proceedings are conducted as described above, except that for the case to be referred to an adjudicating official, the practitioner must demonstrate in the answer to the NID that there is a material issue of fact in dispute or that certain special considerations are present.  If the practitioner’s answer meets this requirement, disciplinary proceedings are held as described in subsections (d) through (f), above.  If the practitioner fails to meet this requirement, the Board issues an order imposing discipline.  For additional information, see 8 C.F.R. §§ 1003.103(b), 1003.106(a).