11.7 - Procedure

The regulations provide the procedures for filing complaints and imposing sanctions for misconduct before the Board and the immigration courts. See 8 C.F.R. § 1003.101 et seq. The regulations also contain procedures for filing complaints regarding misconduct before DHS. 8 C.F.R. §§ 292.3; 1292.3.

(a) Initiation of Proceedings

      (1) Notice of Intent to Discipline - Disciplinary proceedings begin when the EOIR Disciplinary Counsel or the DHS Disciplinary Counsel files a Notice of Intent to Discipline with the Board and serves a copy on the practitioner and/or authorized officer of the organization. The Notice contains a statement of the charge(s) against the practitioner and/or recognized organization, a copy of the inquiry report (if any), proposed disciplinary sanctions, the procedure for filing an answer to the Notice or requesting a hearing, and the contact information for the Board. 8 C.F.R. §§ 1003.105(a), 292.3.

      (2) Petition for Immediate Suspension - When the Notice of Intent to Discipline concerns a practitioner who has either been convicted of a serious crime or is subject to suspension or disbarment by a state or federal licensing authority, the EOIR Disciplinary Counsel or the DHS Disciplinary Counsel may petition for the immediate suspension of that attorney. 8 C.F.R. §§ 1003.103(a)(1), 1292.3, 292.3(c).

Usually filed in conjunction with the Notice of Intent to Discipline, the petition for immediate suspension seeks the practitioner’s immediate suspension from practice before the Board and the immigration courts. 8 C.F.R. § 1003.103(a). DHS may ask that the practitioner be similarly suspended from practice before DHS.

The regulations direct that, upon the filing of a petition for immediate suspension, the Board will suspend the practitioner for as long as disciplinary proceedings are pending. 8 C.F.R. § 1003.103(a)(4). The regulations permit the immediate suspension to be set aside when the Board deems it in the interest of justice to do so. 8 C.F.R. § 1003.103(a)(4). The usual hardships that accompany a suspension from practice (e.g., loss of income, duty to complete pending cases) are generally not sufficient to set aside an immediate suspension order. Matter of Rosenberg, 24 I&N Dec. 744, 745 (BIA 2009).

      (3) Petition for Interim Suspension - In conjunction with the Notice of Intent to Discipline or at any time during the disciplinary proceedings, the EOIR 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).

In the petition, counsel for the government must demonstrate by a preponderance of the evidence that the accredited representative poses a substantial threat of irreparable harm. 8 C.F.R. § 1003.111(a)(3).

(b) Response

The subject of a Notice of Intent to Discipline has 30 days from the date of service to file a written answer to the Notice and to request a hearing. 8 C.F.R. § 1003.105(c)(1). An answer is deemed filed at the time it is received by the Board. See Chapter 3.1(b) (Must be “Timely”). The answer should be served on both the EOIR Disciplinary Counsel and the DHS Disciplinary Counsel. The time in which to file an answer may be extended for good cause shown through the filing of a motion no later than 3 working days before the filing deadline. 8 C.F.R. § 1003.105(c)(1).

In the answer, the practitioner who is subject to summary disciplinary proceedings 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 the proceedings, or that one of the exceptions set forth in the regulations applies. 8 C.F.R. § 1003.106(a)(1).

      (1) Timely answer - If the answer to summary disciplinary proceedings is timely and the Board determines that there is a material issue of fact in dispute or that one of the exceptions set forth in the regulations applies, the matter will be referred to the Chief Immigration Judge for appointment of an appropriate adjudicator, generally an immigration judge, to conduct a disciplinary hearing. 8 C.F.R. § 1003.106(a)(1). The answer of a practitioner or, in cases involving recognized organizations, the organization, must specifically admit or deny each of the allegations in the Notice of Intent to Discipline. Each allegation not denied is deemed admitted. 8 C.F.R. § 1003.105(c)(2).

If the practitioner or, in cases involving recognized organizations, the organization, wishes to have a hearing, the request for a hearing must be contained in the written answer. Otherwise, the opportunity to request a hearing will be deemed waived. 8 C.F.R. § 1003.105(c)(3).

Regardless of whether a hearing has been requested, the Board will refer a case to the Chief Immigration Judge for appointment of an adjudicator if the case involves a charge or charges that cannot be adjudicated under the summary disciplinary proceeding provisions. 8 C.F.R. § 1003.106(a)(1). If the practitioner fails to make a prima facie showing that there is a material issue of fact in dispute or that one of the exceptions set forth in the regulations applies, the Board shall issue a final order imposing discipline.

      (2) No answer or untimely answer - If the Board does not receive a timely answer, the failure to answer is deemed an admission of the allegations in the Notice of Intent to Discipline, and the practitioner is thereafter precluded from requesting a hearing on the matter. 8 C.F.R. § 1003.105(d). The regulations require the Board to enter a default order imposing the discipline recommended by the EOIR Disciplinary Counsel and the DHS Disciplinary Counsel, absent the presence of special considerations. 8 C.F.R. § 1003.105(d)(2).

A practitioner or the organization subject to a default order may move to set aside that order, provided that the motion is filed within 15 days of the date of service of the default order and that the practitioner’s or organization’s 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). 8 C.F.R. § 1003.105(d)(2).

(c) Hearing

If the matter is referred to the Chief Immigration Judge, the disciplinary hearings will largely be conducted in the same manner as immigration proceedings. 8 C.F.R. § 1003.106. However, the immigration judge presiding over the disciplinary proceeding will not be one before whom the practitioner regularly appears. 8 C.F.R. § 1003.106(a)(1)(i).

(d) Appeals

The regulations provide that the Board may entertain an appeal filed by a practitioner or, in cases involving a recognized organization, the organization, wishing to challenge the adjudicator’s disciplinary ruling.  8 C.F.R. § 1003.106(c).  The appeal must be received by the Board within 30 days of the oral decision or, if no oral decision was rendered, 30 days of the date of mailing of the written decision.  The proper form for filing a practitioner/organization discipline appeal is the Notice of Appeal (Form EOIR‑45), which can be downloaded from the Internet.  See Chapter 12.2(b) (Obtaining Forms), Appendix D (Forms).  This form is specific to disciplinary proceedings and is different from the Notices of Appeal in other types of proceedings.  See Appendix D (Forms).  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 Chapter 4 (Appeals of Immigration Judge Decisions).  These appeals may not be submitted electronically.

(e) Motions

As with most motions in immigration proceedings, motions should be filed with the adjudicator who has jurisdiction over the case.