Opinion
No: C-O1-3885 PJH
December 7, 2001
ORDER DENYING PETITION FOR PRELIMINARY INJUNCTION
Now before the court is the petition of attorney Miguel Gadda for a preliminary injunction to compel the Board of Immigration Appeals to stay its order suspending him from practicing before the Immigration Courts, the Immigration and Naturalization Service ("INS"), and the Board of Immigration Appeals ("BIA"), and to cease publicizing the order of suspension. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby rules as follows.
INTRODUCTION
Petitioner Miguel Gadda ("Gadda") was admitted to practice in the State of California in 1975, and has practiced immigration law exclusively since being admitted. In July and August 2000, the Office of the Chief Trial Counsel of the State Bar of California filed formal charges of professional misconduct against Gadda in numerous immigration cases and one client trust account case. Gadda filed responses to the charges, and a trial followed in March 2001.
On July 30, 2001, the State Bar judge issued a written decision finding that Gadda had failed to perform legal services with competence, failed to respond to clients, failed to promptly return unearned fees, failed to return client files, engaged in an act of moral turpitude, and commingled client funds, in violation of the Rules of Professional Conduct of the State Bar of California. oting that Gadda had been disciplined in 1990 for similar conduct, and finding that the evidence before the court established a pattern of misconduct in which Gadda had intentionally, recklessly, and/or repeatedly failed to perform legal services with competence in nine separate client matters over a six-year period, the State Bar judge recommended that Gadda be disbarred and ordered pursuant to California Business Professions Code § 6007(c)(4) and State Bar Rule of Procedure 220(c) that he be transferred to involuntary inactive status. Gadda filed a request for review with the State Bar Review Department, and that matter is pending. He did not request a stay of the order of involuntary inactive enrollment.
"The board [of Governors of the State Bar] shall order the involuntary inactive enrollment of an attorney upon the filing of a recommendation of disbarment after hearing or default." Cal. Bus. Prof. Code § 6007(c)(4).
"If the [State Bar] Court recommends disbarment, it shall also include in its decision an order that the respondent be enrolled as an inactive member pursuant to Business and Professions Code 6007, subdivision (c)(4)." State Bar R. Proc. 220(c).
On September 14, 2001, the Executive Office for Immigration Review ("EOIR") filed a petition for immediate suspension of Gadda from practicing before the BIA and the Immigration Courts, pursuant to 8 C.F.R. § 3.103 (a)(1). On September 20, 2001, a similar petition was filed by the INS seeking suspension of Gadda from practice before it. On October 2, 2001, the BIA noted that the California Bar Court had recommended disbarment for Gadda and had ordered that he be placed on involuntary inactive enrollment by the State of California. The BIA granted the petition to suspend Gadda from practice, and directed him to promptly notify clients with cases pending before the BIA, the Immigration Courts, and the INS that he had been suspended from practicing before those bodies. The BIA also directed that its order be made public.
On October 3, 2001, Gadda's name was placed on the list of suspended or expelled attorneys on the BIA's website. On October 10, 2001, Gadda filed a request for reconsideration with the BIA, in which he argued that the BIA should not have entered an immediate order of suspension against him. On October 15, 2001, Gadda filed the complaint in the above-entitled action, seeking a temporary restraining order and a preliminary injunction requiring the BIA to stay its order of suspension. Gadda claims that his due process rights have been and continue to be violated because the BIA suspended him before the California Supreme Court had issued a final order of disbarment, and without first affording him the notice and hearing procedures set forth in the applicable federal regulations. Gadda maintains that he should be permitted to represent clients in immigration proceedings while the State of California disciplinary proceedings are in progress.
The court interprets this action for injunctive relief as a request for review under the judicial review provisions of the Administrative Procedures Act, 5 U.S.C. § 706. See Koden v. U.S. Dep't of Justice, 564 F.2d 232 (7th Cir. 1977).
DISCUSSION
A. Legal Standard
A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the petitioner, by a clear showing, carries the burden of persuasion. See Mazurek v. Armstronci, 520 U.S. 968, 972 (1997). The standard balances the plaintiff's likelihood of success on the merits against the relative hardship to the parties. Sun Microsystems, Inc. v. Microsoft Corn., 188 F.3d 1115, 1119 (9th Cir. 1999). A court may also issue a preliminary injunction if it determines either that the moving party is likely to succeed on the merits and a possibility of irreparable injury exists, or that the moving party raises serious questions on the merits and the balance of hardships tips sharply in the moving party's favor. j4. (citing Sega Enters. Ltd. v. Accolade. Inc., 977 F.2d 1510, 1517 (9th Cir. 1992)). This second framework does not provide two separate tests, but rather represents the extremes of the continuum of equitable discretion — the greater the relative hardship to the moving party, the less probability of success must be shown. Id. Depending on the nature of the case, the court may also consider whether the public interest favors granting the relief requested. Johnson v. Calif. State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995).
B. Petitioner's Request for Preliminary Injunction
1. Statutory and Regulatory Background The Immigration and Naturalization Act of June 27, 1952, created the Immigration and Naturalization Service within the Department of Justice, and charged the Attorney General of the United States with the administration and enforcement of the Act and all laws relating to the immigration and naturalization of aliens. See 8 U.S.C. § 1101 (a)(34), 1103. The Commissioner of the INS is appointed by the President with the advice and consent of the Senate, and is charged with the administration of the INS. 8 U.S.C. § 1103 (b). The Commissioner is also charged with all responsibilities and authority conferred on the Attorney General as may be delegated by the Attorney General or which may be prescribed by the Attorney General. Id.
Congress delegated to the Attorney General the authority to promulgate rules and regulations relating to the enforcement and administration of the Immigration and Naturalization Act. 8 U.S.C. § 1103 (a). The Attorney General has in turn delegated such authority to the BIA and the INS. Patel v. Immigration and Naturalization Service, 638 F.2d 1199, 1201 n. 1 (9th Cir. 1980); see also 8 C. F. R. §§ 2.1, 3.1. The Director of the Executive Office for Immigration Review ("EOIR") is responsible for the general supervision of the BIA and the Office of the Chief Immigration Judge in the execution of their duties. 8 C.F.R. § 3.0.
Under the provisions of 8 C.F.R. §§ 3.16 and 292.1, only certain designated individuals are authorized to represent persons before the INS, the Immigration Courts, and the BIA. The EOIR and the INS have promulgated regulations pertaining to professional conduct of "practitioners." See 8 C.F.R. § 3.101, et seq. A "practitioner" is any attorney as defined in 8 C. F. R. § 1.1(f), who does not represent the federal government, or any representative as defined in 8 U.S.C. § 1.1(j). The term "attorney" is defined as "any person who is a member in good standing of the bar of the highest court of any State, possession, territory, Commonwealth, or the District of Columbia, and is not under any order of any court suspending, enjoining, restraining, disbarring, or otherwise restricting [such person] in the practice of law." 8 U.S.C. § 1.1(f). The regulations authorize the BIA to impose disciplinary sanctions against any practitioner "if it finds it to be in the public interest to do so." 8 C.F.R. §§ 3.101 (a), 292.3(a)(1).
The grounds for which a practitioner "shall" be subject to disciplinary sanctions in the public interest are listed at 8 C.F.R. § 3.102 (but the categories listed "do not constitute the exclusive grounds for which disciplinary sanctions may be imposed"). The grounds listed include charging or receiving grossly excessive fees; bribing any person to commit an act or to refrain from committing an act in connection with any immigration proceeding; knowingly making false statements concerning any material matter relating to an immigration proceeding; soliciting professional employment through the use of runners; being subject to a final order of disbarment or suspension, or having resigned with an admission of misconduct in the jurisdiction of any state in which the practitioner is admitted to practice; knowingly making false statements in connection with his or her qualifications; engaging in frivolous behavior in any immigration proceeding; and engaging in conduct that constitutes ineffective assistance of counsel in any immigration proceeding. 8 C.F.R. § 3.102 (a),(b),(c),(d),(e),(f),(j),(k).
The regulations set forth procedures for immediate suspension and summary disciplinary proceedings. Either the Office of the General Counsel of the EOIR, see 8 C.F.R. § 3.103 (a)(1), or the Office of the General Counsel of the INS, see 8 C.F.R. § 292.3 (c)(1), may file a petition with the BIA to suspend from practice any practitioner who has been found guilty of a serious crime, or who has been "disbarred or suspended on an interim or final basis by, or who has resigned with an admission of misconduct from, the highest court of any state, possession, territory, commonwealth, or the District of Columbia, or any Federal court." 8 C.F.R. §§ 3.103(a)(1), 292.3(c)(1).
Upon the filing of a petition for immediate suspension, together with a certified copy of a court record finding that the practitioner has been found guilty of a serious crime or has been so disciplined or has so resigned, the Board shall forthwith enter an order immediately suspending the practitioner from practice before [the BIA, the Immigration Courts, and/or the INS] notwithstanding the pendency of an appeal, if any, of the underlying conviction or discipline, pending final disposition of a summary disciplinary§ proceeding as provided [in the regulations].
8 C.F.R. §§ 3.103(b), 292.3(c)(3).
In addition, the Office of the General Counsel of the EOIR or the Office of the General Counsel of the INS "shall promptly initiate summary disciplinary proceedings" against any practitioner against whom an order of immediate suspension has been entered, as described above. 8 C.F.R. §§ 3.103(b), 292.3(c)(3). Such proceedings are initiated by the issuance of a notice of intent to discipline, accompanied by a certified copy of the order or record evidencing the underlying criminal conviction or discipline.
The regulations also provide procedures for the filing of complaints with the EOIR and the INS by individuals alleging unprofessional conduct by practitioners who are authorized to practice before those bodies. 8 C.F.R. §§ 3.104, 292.3(d). Both summary proceedings and disciplinary proceedings initiated by the filing of a complaint by an individual are conducted in accordance with the procedures set forth in 8 C.F.R. §§ 3.105 and 3.106 (allowing the practitioner to file an answer and setting forth hearing and disposition).
The regulations provide further that in the case of a summary proceeding based on a final order of disbarment or suspension, or a resignation with an admission of misconduct, a certified copy of the judgment or order of discipline establishes a rebuttable presumption of the professional misconduct. Disciplinary sanctions "shall" follow in such a proceeding unless the attorney can rebut the presumption by demonstrating by "clear, unequivocal, and convincing evidence" that the underlying disciplinary proceeding constituted a deprivation of due process, that there was an extreme "infirmity of proof' establishing the attorney's misconduct, or that the imposition of discipline by the adjudicating official would result in grave injustice. 8 C.F.R. §§ 3.103(b)(2), 292.3(c)(3)(ii).
2. Analysis
Gadda seeks an order requiring the BIA to stay the order of immediate suspension until it has ruled on his motion for reconsideration or until a final order of discipline has been issued by the California Supreme Court. He argues that the BIA's issuance of the order of suspension was unlawful for two reasons. First, he claims that the provisions in the regulations regarding immediate suspension do not apply in his case because he has not been suspended or disbarred from practice in the State of California. Second, he asserts that the EOIR and the INS violated their own regulations by failing to initiate a summary disciplinary proceeding following the issuance of the order of suspension. The court finds that Gadda fails to show a likelihood of success on the merits, and that the request for a preliminary injunction must be denied on that basis.
Gadda first argues that the filing of the petition for immediate suspension in September 2001 was improper because he has not been disbarred or suspended by "the highest court" of any state, as provided by 8 C.F.R. § 3.103 (a). Under the Constitution and laws of the State of California, only the California Supreme Court has the authority to regulate the practice of law in the state. See In re Attorney Discipline Sys., 19 Cal.4th 582, 592 (1998). At the time the EOIR filed its petition, the State Bar Court had issued a written opinion recommending disbarment, but the recommendation had not become a final order of the California Supreme Court. Thus, Gadda claims, the provisions of 8 C.F.R. § 3.1 03(a)(1) do not apply in this case and the BIA acted without authority when it suspended him from practice.
The California Supreme Court has inherent power to discipline and disbar members of the California Bar. See Cal. Bus. Prof. Code § 6087; Cal. R. Ct. 951(g). The California Supreme Court has delegated to the California Bar the power to act on its behalf in disciplinary matters, subject to the court's review. Cal. Bus. Prof. Code § 6087. The Board of Governors of the State Bar established the State Bar Court to act in place of the Board of Governors in disciplinary and reinstatement proceedings. Cal. Bus. Prof. Code § 6086.5. State Bar determinations are advisory only, and the Supreme Court utilizes the State Bar Court "to conduct the preliminary investigation, hearing, and determination of complaints." Id. (citing In re Attorney Discipline Sys., 19 Cal.4th at 599-60.
Because the State Bar Court is an administrative agency affiliated with the State Bar, and as such, is also an "administrative arm" of the California Supreme Court, see Lebbos v. State Bar, 53 Cal.3d 37, 47-48 (1991), the State Bar Court "exercises none of [the Supreme Court's] inherent authority over attorney discipline," and "the judicial power in disciplinary matters remains with [the Supreme Court]." In re Rose, 22 Cal.4th 430, 442 (2000). The State Bar is limited to making recommendations to the Supreme Court, and this limitation upon the State Bar Court's authority "distinguishes it from other quasi-judicial or administrative agencies rendering initial decisions — rather than recommendations — that subsequently may be reviewed by courts of record." Id. at 439.
The State Bar Court is organized into a Hearing Department, which conducts evidentiary hearings on the merits in disciplinary matters, and the Review Department, which serves generally as the administrative appellate body within the State Bar Court. Following the hearing, the Hearing Department issues a written decision recommending whether the attorney should be disciplined. State Bar R. Proc. 220. Any disciplinary decision of the Hearing Department is fully reviewable by the Review Department at the request of the attorney or the State Bar. State Bar R. Proc. 301(a). Provisions regarding review of State Bar Court decisions recommending suspension or disbarment are found in the Business and Professions Code and the California Rules of Court. See In re Rose, 22 Cal.4th at 440-41.
At issue in this case is whether the requirement that the State Bar Board of Governors order the involuntary inactive enrollment of an attorney upon the filing of a recommendation of disbarment after a hearing or default, Cal. Bus. Prof. Code § 6007(c)(4), qualifies as order of suspension or disbarment on an interim or final basis by the highest court in the state under INS/BIA regulations. Gadda contends that it does not, and that the provisions of 8 C.F.R. § 3.103 (a)(1) therefore do not apply to permit the BIA to order him suspended from practice before the INS, the Immigration Courts, and the BIA. The court finds, however, that the practical effect of an order of involuntary inactive enrollment, see Bus. Prof. Code § 6006, is to suspend the attorney from the practice of law in the State of California on an interim basis. Acting as an arm of the California Supreme Court, the State Bar Court is required to issue such an order whenever it makes a recommendation of disbarment. The order terminates upon the Supreme Court's issuance of the final order of discipline.
Gadda does not directly challenge the lawfulness of § 6007(c)(4), although he does assert in his reply brief that because the State Bar has not provided a process under which an attorney placed on inactive enrollment under § 6007(c) can prove that he does not pose a present threat or harm to his clients or to the public, he has "no present remedy" [in California courts] from the inactive enrollment and "must therefore seek his remedies... in the Federal Courts." The California Supreme Court has noted, with regard to § 6007(c) generally, that a State Bar Court decision ordering the involuntary inactive enrollment of an attorney under exigent circumstances may take effect even before the Supreme Court has issued a final order of discipline, "but only because the order is subject to our immediate, independent review." In re Rose, 22 Cal.4th 430, 442 n. 7 (citing Conway v. State Bar, 47 Cal.3d 1107, 1120-23 (1989)). Nevertheless, at least one treatise suggests that the effect of an order of involuntary inactive enrollment under § 6007(c)(4) (in contrast to the other provisions of § 6007(c)) is that "[t]here is no opportunity for the attorney to be heard on whether the involuntary inactive enrollment is necessary to protect clients or the public while the disbarment recommendation is being considered by the Supreme Court." Vopnek, Tuft, Peck Wiener, Professional Responsibility (2000 ed.) §§ 11:1319-1320.
Gadda's claim of "no p resent remedy" suggests a challenge to the constitutionality of § 6007(c). However, were Gadda, in the present case, to raise the claim that the California scheme impermissibly prevents an attorney who has been placed on involuntary inactive enrollment pursuant to § 6007(c)(4) to seek immediate review of that order, this court would be required to abstain under the rule established by the United States Supreme Court in Younger v. Harris, 401 U.S. 37, 40-41 (1971). See Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432-37 (1982) (abstention is appropriate where state bar disciplinary hearings within the constitutionally prescribed jurisdiction of a state supreme court constitute ongoing judicial proceedings, where those proceedings implicate important state interests, and where there is an adequate opportunity in the state proceedings to raise federal constitutional challenges); see also Hirsch v. Justices of Supreme Court of Calif., 67 F.3d 708, 712-13 (9th Cir. 1995) (citing Middlesex, 457 U.S. at 432).
Because Gadda was in effect "suspended on an interim basis" by the State Bar pending the Supreme Court's action on the recommendation of disbarment, and has made no request to the State Bar or the California Supreme Court for a stay of the order, it appears to the court that the BIA was acting within the scope of its regulations when it issued its order of immediate suspension. Any court that has the power to admit attorneys to practice may also sanction them for unprofessional conduct. Standing Comm. on Discipline of United States Dist. Court v. Ross, 735 F.2d 1168, 1170 (9th Cir. 1984). An administrative agency that has general authority to prescribe its rules of procedure may also set standards for determining who may practice before it. Goldsmith v. United States Bd. of Tax Appeals, 270 U.S. 117, 121 (1926). Under the plain language of the regulations, Gadda plainly does not qualify as an "attorney" who is permitted to represent individuals before the INS, the Immigration Courts, or the BIA because he is subject to the order of a court that has restricted him in his practice of law. See Matter of Sparrow, 20 IN Dec. 920, 930 (1994). See also 8 C.F.R. §§ 1.1(f); 292.1(a)(1); 3.16(b).
Gadda maintains that the BIA's action was improper under the principles articulated by the Ninth Circuit In re Kramer, 193 F.3d 1131 (9th Cir. 1999), where the court noted that while district courts have the authority to supervise and discipline the conduct of attorneys who appear before them, including "the inherent authority to suspend or disbar lawyers," such power must be exercised within the parameters of due process. Id. at 1132 (citations omitted). The Kramer court relied on the Supreme Court's decision in Selling v. Radford, 243 U.S. 46, 50-51 (1917), which held that a federal court could impose reciprocal discipline on a member of its bar based on a state's disciplinary adjudication, if an independent review of the record reveals no deprivation of due process, sufficient proof of misconduct, and no grave injustice resulting from the imposition of such discipline. In re Kramer, 193 F.3d at 1132. Gadda contends that under this rule, the BIA's institution of summary suspension violated his due process rights because the BIA did not conduct an independent review of the State Bar court's decision, and did not provide him opportunity to be heard.
The due process clause does not require a hearing on disbarment from a federal court when the conduct complained of was the subject of a state disciplinary hearing, so long as the state hearing comported with due process. Selling, 243 U.S. at 50-51. In this case, Gadda was given notice and ample opportunity to be heard. The State Bar Court conducted an evidentiary hearing over a nine-day period, and issued a 37-page written decision. The written decision includes a thorough discussion of the facts in each of the charges brought against Gadda. The BIA determined, based on the State Bar Court's decision and the declaration of the State Bar's Assistant Chief Trial Counsel, that Gadda had been placed on inactive enrollment status by the State Bar.
Courts must give strong deference to administrative agencies' constructions of applicable regulations. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44 (1984). For purposes of this request for a preliminary injunction, the court finds that Gadda has not demonstrated a likelihood of success on the merits. In addition, while the BIA's order of suspension certainly presents a hardship for him in that it prevents him from practicing immigration law, the court finds that the public and the courts have an even stronger interest in preventing attorneys who have been found to have committed numerous violations of the rules of professional conduct from representing clients. Under California law, the State Bar Court's recommendation that an attorney be disbarred creates a presumption that the attorney's conduct poses a substantial threat of harm to the interests of the attorney's clients or to the public, such that the State Bar places the attorney on inactive status pending the final entry of the order of disbarment. Whatever hardship Gadda may suffer is of his own making, and it does not "tip the balance" in his favor when measured against the weak likelihood of success of his claim, and the strong public interest in protecting the public from inadequate legal representation.
Finally, with regard to Gadda's contention that the EOIR and the INS acted in violation of their regulations in failing to "promptly initiate summary disciplinary proceedings" following the BIA's issuance of the order suspending him from practice, the court finds that this argument is irrelevant to the question whether Gadda is likely to prevail in his claim that he was wrongfully suspended from practice before the INS, the Immigration Courts, and the BIA.
CONCLUSION
In accordance with the foregoing, the court finds that petitioner's request for a preliminary injunction must be DENIED.
The petition having been denied, and petitioner having requested no relief beyond entry of a preliminary injunction, this action is hereby DISMISSED. The clerk is ordered to close the file.
IT IS SO ORDERED.