Cite as 25 I&N Dec. 157 (BIA 2010) Interim Decision #3667
157
Matter of Sheldon H. KRONEGOLD, Attorney
File D2007-064
Decided January 7, 2010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Where disciplinary proceedings are based on a final order of suspension or disbarment,
the order creates a rebuttable presumption that reciprocal disciplinary sanctions
should follow, which can be rebutted only if the attorney demonstrates by clear and
convincing evidence that the underlying disciplinary proceeding resulted in a deprivation
of due process, that there was an infirmity of proof establishing the misconduct, or that
discipline would result in a grave injustice.
(2) In determining whether to impose reciprocal discipline on an attorney who has been
suspended or disbarred by a State court, the Board of Immigration Appeals conducts
a deferential review of the proceedings that resulted in the initial discipline.
(3) Where the respondent was disbarred in New York, which precludes an attorney from
seeking reinstatement for 7 years, and he failed to rebut the presumption that reciprocal
discipline should be imposed, his suspension from practice before the Board, the
Immigration Courts, and the Department of Homeland Security for 7 years was
an appropriate sanction.
FOR RESPONDENT: Pro se
FOR EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, OFFICE OF GENERAL
COUNSEL: Scott Anderson, Deputy Disciplinary Counsel
FOR THE DEPARTMENT OF HOMELAND SECURITY: Eileen M. Connolly, Appellate
Counsel
BEFORE: Board Panel: HOLMES and HESS, Board Members; KENDALL CLARK,
Temporary Board Member.
HOLMES, Board Member:
On February 9, 2009, an Immigration Judge, acting as the Adjudicating
Official in this case, indefinitely suspended the respondent from practice
before the Board of Immigration Appeals, the Immigration Courts, and the
Department of Homeland Security (“DHS”). The respondent has filed a timelyCite as 25 I&N Dec. 157 (BIA 2010) Interim Decision #3667
158
appeal. The Disciplinary Counsel for the Executive Office for Immigration
Review (“EOIR”), which initiated this case, argues that the appeal should
be dismissed and that the respondent should be suspended from practice for
7 years. We will dismiss the respondent’s appeal and suspend him from
practice for 7 years.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent was a member of the Bar in New York and New Jersey.
On April 25, 2006, the New York Supreme Court’s Appellate Division for the
Second Judicial Department suspended the respondent from the practice of law
for 2 years, commencing on May 26, 2006. The discipline was “based upon
two charges including failure to timely file retainer and closing statements with
the Office of Court Administration and employing a non-lawyer to solicit
retainers to perform legal services.” On June 26, 2006, the court authorized
the Grievance Committee to institute and prosecute a new disciplinary
proceeding against the respondent and a correspondent. On October 20, 2006,
the court denied the respondent’s motion to reargue the April 25, 2006, order.
On or about October 4, 2006, the respondent entered a Form EOIR-28
(Notice of Entry of Appearance As Attorney or Representative Before the
Immigration Court) and represented that he was a member in good standing
of the New Jersey State Bar. He failed to divulge the suspension in New York,
checking a box indicating that he was not subject to any court order
suspending him from the practice of law. In November 2006 the respondent
filed a similar notice of appearance in another case.
On October 25, 2006, the respondent submitted an “Affidavit Of
Resignation” to the New York court. Concerning the new charges
of professional misconduct, the respondent stated, “I hereby acknowledge that
I cannot successfully defend myself on the merits” against the charges. The
respondent also acknowledged that he was aware that he could not seek
reinstatement as an attorney for 7 years. In re Leonard, 845 N.Y.S.2d 225,
226 (N.Y. App. Div. 2007) (stating that “an attorney whose name has been
stricken from the roll of attorneys may not petition for reinstatement until
expiration of seven years from the effective date of disbarment or removal”).
On March 6, 2007, the New York court disbarred the respondent. The court
considered the respondent’s acknowledgment that there were five charges
of professional misconduct pending against him, including allegations that
he aided a disbarred lawyer in the practice of law. The court also took into
account the respondent’s statements that he was represented by counsel and
that his resignation was freely given and not made under coercion or duress.
On July 24, 2007, the respondent was stricken from the roll of attorneys
in the United States District Court for the Southern District of New York. TheCite as 25 I&N Dec. 157 (BIA 2010) Interim Decision #3667
159
court found no reason not to impose discipline reciprocal to that imposed
by the State of New York, “specifically in view of [the respondent’s] decision
not to contest the allegations in state court and in view of the representations
he made in resigning therefrom.”
On April 8, 2008, the EOIR Disciplinary Counsel petitioned for the
respondent’s immediate suspension from practice before the Board and the
Immigration Courts. The DHS then asked that the respondent be similarly
suspended from practicing before that agency. On April 15, 2008,
we suspended the respondent from practicing before the Board, the
Immigration Courts, and the DHS pending final disposition of this matter.
Reciprocal disciplinary proceedings were instituted against the respondent
in New Jersey. On April 22, 2008, the Supreme Court of New Jersey
Disciplinary Review Board adopted the findings of the New York Supreme
Court. The New Jersey Disciplinary Review Board evaluated the respondent’s
misconduct in New York to determine what discipline would be warranted had
that misconduct occurred in New Jersey. The New Jersey Disciplinary Review
Board suspended the respondent from practice for 1 year.
The Government’s Notice of Intent to Discipline brought summary
disciplinary proceedings against the respondent based on his suspension and
disbarment from the practice of law in New York. After the respondent
requested a hearing, the Chief Immigration Judge appointed an Adjudicating
Official, an Immigration Judge located in Boston. The Adjudicating Official
held a telephonic conference where he set a schedule for filing briefs and
exhibits. Neither party objected to the Adjudicating Official deciding the case
through the submission of the briefs and exhibits. The Adjudicating Official
denied the respondent’s motion to change venue. On February 9, 2009, the
Adjudicating Official indefinitely suspended the respondent from practice
before the Board, the Immigration Courts, and the DHS.
II. ANALYSIS
For the reasons discussed below, we affirm the Adjudicating Official’s
February 9, 2009, decision and suspend the respondent from practice before
the Board, the Immigration Courts, and the DHS for a period of 7 years,
effective April 15, 2008, the date of our immediate suspension order. Under
the revised regulations for professional conduct, we review the respondent’s
appeal pursuant to the standards of review set forth in 8 C.F.R. § 1003.1(d)(3)
(2010). See 8 C.F.R. § 1003.106(c) (2010) (providing that the Board has
jurisdiction to review the decision of the Adjudicating Official and conductsCite as 25 I&N Dec. 157 (BIA 2010) Interim Decision #3667
1 Because the respondent filed his Notice of Appeal after the January 20, 2009, effective date
of the revisions to the regulations regarding professional conduct, the revised regulations
apply to his case. In citing the revised regulations in this decision, we refer to the 2010 Code
of Federal Regulations, in which all regulations in effect as of January 1, 2010, will
be codified. Although they were not yet effective as of the January 1, 2009, update of the
Code of Federal Regulations, the revised regulations are available in the 2009 volume of the
Code as effective date notes.
160
its review pursuant to 8 C.F.R. § 1003.1(d)(3)); see also Professional Conduct
for Practitioners—Rules and Procedures, and Representation and Appearances,
73 Fed. Reg. 76,914, 76,926 (Dec. 18, 2008).1
Under the regulations,
we review findings of fact to determine if they are “clearly erroneous.”
8 C.F.R. § 1003.1(d)(3)(i). We review questions of law, discretion, and
judgment and all other issues in appeals de novo. 8 C.F.R. § 1003.1(d)(3)(ii).
The respondent is subject to disciplinary sanctions because he
has been suspended and disbarred in the State of New York. See
8 C.F.R § 1003.102(e)(1) (2010) (setting forth the grounds for disciplinary
sanctions). The regulations provide for summary disciplinary proceedings
against a practitioner, like the respondent, who has been suspended
or disbarred by a State. See 8 C.F.R § 1003.103(b)(2) (2010) (referring
to proceedings based on a final order of disbarment or suspension as reciprocal
discipline). Where the EOIR Disciplinary Counsel brings proceedings based
on a final order of suspension or disbarment, such an order creates a rebuttable
presumption that reciprocal disciplinary sanctions should follow. Id.; see also
Matter of Truong, 24 I&N Dec. 52, 54 (BIA 2006); Matter of Ramos, 23 I&N
Dec. 843, 845, 847-48 (BIA 2005); Matter of Gadda, 23 I&N Dec. 645, 648
(BIA 2003), aff’d, Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004). This
presumption can be rebutted only if the attorney demonstrates by clear
and convincing evidence that the underlying disciplinary proceeding resulted
in a deprivation of due process, that there was “an infirmity of proof”
establishing the misconduct, or that discipline would result in “grave
injustice.” 8 C.F.R § 1003.103(b)(2).
The Attorney General has held that the standard for attorney suspension
before the Board “is the same as that for disbarment before the federal courts.”
Matter of Bogart, 15 I&N Dec. 552, 561 (BIA 1975; A.G., BIA 1976).
Federal courts considering reciprocal discipline cases “engage[] in a function
far different from a court seeking to impose discipline in the first instance.
Before imposing reciprocal discipline, a court need only conduct a deferential
review of the proceedings that resulted in the initial discipline imposed
to satisfy itself that the discipline was not inappropriate under one or more
of the [required] factors.” In re Kramer, 282 F.3d 721, 725 (9th Cir. 2002);
see also In re Sibley, 564 F.3d 1335, 1339-40 (D.C. Cir. 2009) (stating thatCite as 25 I&N Dec. 157 (BIA 2010) Interim Decision #3667
161
reciprocal discipline is appropriate unless the attorney shows that there has
been a deprivation of due process, infirmity of proof, or grave injustice, or that
the misconduct warrants a substantially different discipline); In re Oliveras
López De Victoria, 561 F.3d 1, 3–4 (1st Cir. 2009) (stating that a State court’s
substantive findings “‘ordinarily are entitled to a high degree of respect when
this court is asked to impose reciprocal discipline’” and that as a general rule,
discipline substantially similar to that imposed by the State court will
be imposed in a reciprocal proceeding (quoting In re Williams, 398 F.3d 116,
118 (1st Cir. 2005))).
We therefore follow a similar deferential approach in cases involving
reciprocal discipline. Indeed, we have imposed identical reciprocal discipline
against practitioners who have been suspended or disbarred. See, e.g., Matter
of Ramos, 23 I&N Dec. at 848 (holding that expulsion was the appropriate
sanction for an attorney who was disbarred); Matter of Gadda, 23 I&N Dec.
at 649 (same).
The Adjudicating Official took into account the respondent’s claims
concerning the New York Grievance Committee and other claimed unfairness
relating to his suspension in New York, as well as his defenses against the
second disciplinary action in New York, which resulted in disbarment. The
respondent was represented by counsel, given hearings, and had the
opportunity to appeal. “Notice and an opportunity to be heard [were] clearly
not at issue.” Matter of Truong, 24 I&N Dec. at 54. Therefore, no showing
of deprivation of due process has been made. 8 C.F.R § 1003.103(b)(2)(i).
Moreover, there is no merit in the respondent’s assertion that there was
an infirmity of proof in the second New York proceeding, where he admitted
that he could not successfully defend himself and tendered his resignation.
As the Adjudicating Official rightly concluded concerning the respondent’s
disbarment,
In view of the fact that Respondent resigned from the New York Bar in an affidavit
which asserts that he is unable to successfully defend himself in connection with the
pending disciplinary proceedings, his critique thereof cannot be material to the
defense of the charges brought by [the EOIR Disciplinary Counsel].
The EOIR Disciplinary Counsel argues that if the respondent believes that
prosecutorial misconduct caused him to resign from the New York Bar,
he should “seek to withdraw that resignation and litigate his disciplinary case
in New York.” We agree that it is not appropriate to relitigate issues
related to the merits of the State disciplinary proceedings in this forum. See
In re Williams, 398 F.3d at 119 (stating that the purpose of the hearing is not
to retry the State disciplinary proceeding); cf. Matter of Rodriguez-Ruiz,
22 I&N Dec. 1378, 1379-80 (BIA 2000) (stating that the Board cannot
“go behind” a State court order to determine whether it acted in conformityCite as 25 I&N Dec. 157 (BIA 2010) Interim Decision #3667
2 Although the respondent’s suspension in New Jersey will terminate before his disbarment
in New York, an attorney must be a member of good standing of a bar and must not
be “‘under any order of any court suspending . . . him in the practice of law.’” Matter
of Rosenberg, 24 I&N Dec. 744, 746 (BIA 2009) (quoting 8 C.F.R. § 1001.1(f) (2008)).
162
with State law but must instead accord “full faith and credit” to the court’s
judgments).
The respondent argued that it would be a “grave injustice” to impose
discipline reciprocal to New York because New Jersey imposed a shorter
disciplinary period. The Adjudicating Official rejected this contention and
we agree. There may be many valid reasons why one State would impose
a disciplinary period that is different from that of another State. The fact that
one State imposes a different disciplinary period does not constitute a “grave
injustice” under the regulation. See Matter of Truong, 24 I&N Dec. at 55
(suspending from practice for 7 years an attorney who was disbarred in New
York).2
The Adjudicating Official also determined that the hardship claimed by the
respondent, including financial burdens relating to his family’s medical
expenses, do not constitute “grave injustice.” We agree with the Adjudicating
Official that “hardship and the difficulties attendant to disbarment do not
equate to injustice.” If the financial hardship that accompanies suspension
from the practice of law was in itself adequate to establish grave injustice, then
almost any attorney whose livelihood was based on his legal practice could
avoid similar reciprocal discipline.
Moreover, the respondent submitted appearance forms that failed
to properly notify the Immigration Courts of his disbarment and, in so doing,
declared falsely under penalty of perjury and intentionally misled the courts.
We agree with the Adjudicating Official that such conduct is clearly
inconsistent with any claim for abatement of identical reciprocal discipline.
The respondent has submitted additional exhibits on appeal. The Board
is an appellate body and does not consider new evidence presented on appeal.
See Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984). Several of the
documents were previously available and could have been presented before the
Adjudicating Official. Cf. Matter of Coelho, 20 I&N Dec. 464, 471 n.3 (BIA
1992) (referencing the regulations relating to motions to reopen in immigration
proceedings). Other documents relate to the respondent’s claim that he should
not have been suspended from the practice of law in New York for 2 years and
therefore are not relevant. One exhibit is a March 31, 2009, order of the
United States District Court for the District of New Jersey, which temporarily
suspends the respondent from the practice of law until further order of the
court. As discussed, the proceedings before the Adjudicating Official do not
allow the respondent to relitigate the New York disciplinary proceedings.Cite as 25 I&N Dec. 157 (BIA 2010) Interim Decision #3667
3 Although the Adjudicating Official indefinitely suspended the respondent from practice,
we suspend him from practice for 7 years, as requested by the EOIR Disciplinary Counsel.
This term is proper because an attorney who has been disbarred in New York may only seek
reinstatement after 7 years. See In re Leonard, 845 N.Y.S.2d at 226.
163
Therefore this order does not relate to the question before us, namely, whether
the respondent should be subject to reciprocal discipline similar to that
imposed by New York.
The respondent also argues that the Adjudicating Official improperly
denied his motion to change venue to New Jersey from Boston, where the
respondent claims to lack ties. The venue change request was correctly
denied. Under 8 C.F.R. § 1003.106(a)(2)(i), the Chief Immigration Judge
appoints an Adjudicating Official. The regulation further provides that
“[a]n Immigration Judge shall not serve as the adjudicating official in any case
involving a practitioner who regularly appears before him or her.” Id. Thus,
the regulation contemplates that the Adjudicating Official will be appointed
from outside a practitioner’s geographic location. See Executive Office for
Immigration Review; Representation and Appearances, 52 Fed. Reg. 24,980,
24,980 (July 2, 1987) (Supplementary Information) (stating that in most cases,
an Adjudicating Official will be appointed from outside the location where
a respondent practices). In any event, the Adjudicating Official gives “due
regard” to the location of a practitioner’s practice or residence, as well as the
convenience of witnesses. 8 C.F.R. § 1003.106(a)(2)(ii). Had a hearing been
necessary in this case, the Adjudicating Official would have considered the
proper location to hold such hearing. Instead, the Adjudicating Official
decided the case based on the filings of the parties after conducting
a prehearing conference by telephone. All indications are that he was a fair
adjudicator.
In sum, the appeal of the Adjudicating Official’s decision will
be dismissed, and the respondent will be suspended from practice for 7 years.3
ORDER: The respondent’s appeal is dismissed, and he is suspended from
practice before the Board of Immigration Appeals, the Immigration Courts,
and the DHS for a period of 7 years, effective April 15, 2008.
FURTHER ORDER: The respondent is instructed to maintain
compliance with the directives set forth in our prior order and to notify the
Board of any further disciplinary action against him.
FURTHER ORDER: The respondent may petition the Board for
reinstatement to practice pursuant to the requirements set forth in 8 C.F.R.
§ 1003.107(b) (2010).
FURTHER ORDER: Since the Board previously imposed an immediate
suspension order in this case, this order becomes effective immediately
pursuant to 8 C.F.R. § 1003.105(d)(2) (2010).