Interim Decision #2722 

MATTER OF DE ANDA 

In Disbarment Proceedings 

A-23038108 

Decided by Board April 17, 1979 

Approved by Attorney General June a, 1979 

(I) Six-month suspension from practice before the Immigration and Naturalization 

Service and the Board of Immigration Appeals ordered based on attorney's unexplained failure to appear at two successive hearings scheduled so that he could apply 

for discretionary relief on behalf of his client and based on his failure to properly 

discharge his duty as au attorney to his client. 

(2) Attorney's unexplained failure to appear at successive scheduled hearings amounted 

to "contumelious [and]... obnoxious conduct" within the meaning of 8 C.F.R. 

292.2(a)(11). 

(3) Failure to hold a hearing in connection with the disciplinary proceedings did not 

violate attorney's procedural rights where he had full opportunity to request a 

hearing, but declined to respond to the notice to show cause, and where he was given 

adequate notice of the charges and evidence on which the disciplinary action was 

ultimately taken. 

BY: Iilhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

BEFORE THE BOARD 

(April 17, 1979) 

This case is before us pursuant to the provisions of 8 C.F.R. 292.3 

relating to the suspension or disbarment of attorneys and representatives of accredited organizations from practice before the Im 

migration and Naturalization Service and this Board. The respondent 

is an attorney admitted to practice in several courts' His practice 

includes cases before the Service and the Board. 

On December 18, 1978, the Regional Commissioner of the Service's 

Western Regional Office commenced disbarment proceedings against 

the respondent by serving him by registered mail with a copy of 

' A "Notice of Appearance as Attorney or Representative" (Form G-28) in the record 

before us indicates that the respondent is a member of the California State Bar and the 

Federal District Bar. 

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Interim Decision #2722 

written charges and a notice to show cause why a motion seeking his 

disbarment should not be made to this Board. 

The notice letter informed the respondent of the following 30 

factual allegations: 

(1) that, on February 7, 1978, you filed Form G-28 as attorney of 

record for [a named alien]; 

(2) that, on February 7, 1978, you appeared as counsel for [that 

alien] in a deportation proceeding before Immigration Judge 

Henry J. Scroope, Jr.; 

(3) that, on February 7, 1978, you admitted all of the allegations 

and the charges set forth against your client, on his behalf; 

(4) that, on February 7, 1978, you made an application for suspension of deportation on behalf of your client, pursuant to section 

244(a) of the Immigration and Nationality Act; z 

(5) that, on February 7, 1978, you requested ten days to file an 

application on your client's behalf; 

(6) that, on February 7, 1978, Immigration Judge Henry J. Scroope 

specifically advised you that the application and supporting 

documents were required to be filed by February 17, 1978; 

(7) that, on February 7, 1978, Immigration Judge Henry J. Scroope 

advised you that if you railed to file the papers by February 17, 

1978, he would make a decision on the record, and you indicated 

that you so understood that to be the result if you failed to file 

the necessary documents; 

(8) that, you failed to file the application and required documents 

by February 17, 1978; 

(9) that, on August 30, 1978, the deportation proceeding was 

recommenced before Immigration Judge Jay Segal; 

(10) that, August 30, 1978, you indicated that you did not have the 

application; 

(11) that, you indicated on August 30, 1978, that you had all of the 

material ready to file - and that you would file it that week; 

(12) that, on August 30, 1978, you were given by Immigration Judge 

Jay Segal until September 7, 1978, at 1:00 p.m. to submit the 

application; 

(13) that, on August 30, 1978, you were advised by Immigration 

Judge Jay Segal that you should have all the documents and be 

ready since the application would be heard at that time; 

(14) that, on August 30, 1978, you indicated that you understood that 

the hearing would be resumed on September 7, at 1:00 p.m., and 

that if you or the respondent were not present at that time, the 

The respondent indicated a desire to file an application for suspension of deportation 

on behalf of his client. 

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Interim Decision #2722 

application would be denied for lack of prosecution; 

(15) that, on August 30, 1978, you did not advise the Immigration 

Judge of any scheduling conflict which would indicate that 

September 7, 1978 was an inconvenient date, the record indicates instead that you thanked him for the new hearing date; 

(16) that, on September 7, 1978, you failed to appear for the 

rescheduled deportation proceeding; 

(17) that, on September 7, 1978, your brother appeared with the 

respondent to indicate that you were outside of the country; 

(18) that, on September 7, 1978, Immigration Judge Jay Segal reset 

the hearing to provide your client with one further opportunity to submit the application for suspension of deportation, to 

September 18, 1978, at 1:00 p.m.; 

(19) that, on September 7, 1978, your client was advised that if he 

desired legal representation he should have his attorney present with him; 

(20) that, on September 7, 1978, your client was advised that no 

further continuances would be given to him to permit you to 

appear or to file the application on his behalf and that a 

decision would be made on the record; 

(21) that, on September 7, 1978, a notice was hand-delivered to your 

brother to be delivered to you on Form 1-293, to advise you of 

the rescheduled hearing date of September 18, 1978, at 1:00 

p.m.; 

(22) that, at 2:00 p.m., on September 18, 1978, Immigration Judge 

Jay Segal commenced the continued deportation proceeding; 

(23) that, at 2:00 p.m., on September 18, 1978, your client advised 

Immigration Judge Jay Segal that he did not have the application with him; 

(24) that, on September 18, 1978, your client indicated that he had 

spoken to you, and had been in your office until 12:00 noon on 

that date; 

(25) that, on September 18, 1978, at 2:00 p.m., your client indicated 

that you had advised him to go from your office to the Immigration Court and to wait for you, that you were on your way over; 

(26) that, on September 18, 1978, at 2:00 p.m., your client advised 

Immigration Judge Jay Segal that he had called your office and 

had been advised that you were on your way to the Immigration 

Court; 

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Interim Decision #2722 

(27) that, on September 18, 1978, at 2:00 p.m., Immigration Judge 

Jay Segal further adjourned the hearing for thirty minutes, to 

await your appearance; 

(28) that, on September 18, 1978, at 2:35 p.m., you had still failed to 

appear; 

(29) that, on September 18, 1978, at 2:35 p.m., the Immigration 

Judge required your client to proceed with his deportation 

proceedings without counsel due to your failure to appear as 

scheduled; 

(30) that, on September 18, 1978, Immigration Judge Jay Segal 

denied your client's request for suspension of deportation for 

lack of prosecution, due to your failure to file the required 

application on his behalf. 

The Regional Commissioner informed the respondent that he considered his actions in this case to have been "contemptuous and insulting to the Immigration Court" and of a nature that if they had taken 

place in a federal or California state court could have resulted in a 

contempt citation. S©o 8 C.F.R. 292.3(a)(11)_ 

The Regional Commissioner further informed the respondent that 

he considered his repeated failure to file the suspension application 

and leis failure to appear at the hearings on September 7 and 

September 18, 1978, to have deprived his client of effective legal 

representation. The Regional Commissioner submitted that the respondent's failure to properly discharge his duty as an attorney to his 

client constituted a ground for suspension or disbarment in the public 

interest.' 

The respondent was advised that he had 30 days from December 18, 

1978, to show cause why disbarment proceedings should not be instituted. He was also informed that after an answer was made and the 

matter was at issue, he could request a hearing before a representative 

of th e Regional Commissioner. If no answer was received within three 

days after the expiration of the 30 days provided to respond, the 

respondent was informed, any defense to the charges would be deemed 

waived. Respondent was further advised that if for any reason he 

needed additional time to show cause why proceedings should not be 

commenced, he could request it from the Regional Counsel. A copy of 

the hearing transcript in the deportation case giving rise to proceedings and copies of documents relating to that case were forwarded with 

the "show cause" letter. 

The respondent neither answered the "show cause" letter, nor requested additional time to do so. Accordingly, on February 20, 1979, the 

' The 15 grounds for suspension or disbarment set forth in S C.F.R. 292.3(a) do not 

"establish the exclusive grounds for suspension or disbarment in the public interest." 

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Interim Decision #2722 

record was transmitted to the Board by the Regional Commissioner 

with the recommendation that the respondent be suspended from 

practice before the Service and the Board for a period of 6 months. A 

copy of the transmittal letter was forwarded to the respondent by 

certified mail. 

Under the circumstances of this case, we find that the respondent's 

failure to appear at the scheduled deportation hearings on September 

7, 1078, and September 18, 1978, was "contumelious [and] ... obnoxious 

conduct" within the meaning of 8 C.F.R. 292.3(a)(11). The September 7, 

1978 hearing was scheduled solely because of respondent's statements 

of record on August 30, 1978 that he still intended to file a suspension 

application on his client's behalf, that he had "all of the material ready 

to file," and that he would do so "[that] week." Because of these 

representations, the immigration judge withheld disposition of the 

case and scheduled a further hearing even though counsel had already 

failed to file the suspension application for a period of over 6 months. 

The record verifies that counsel acknowledged the time and date of the 

hearing and thanked the immigration judge for his action. Nonetheless, without having previously noted any scheduling conflict or requesting any postponement or rescheduling of the hearing, the respondent herein failed to appear at the time and place scheduled for 

the hearing. Other than sending his brother to advise the immigration 

judge that he was "out of the country," the respondent offered no 

excuse or explanation for his failure to appear. No explanation to date 

has been offered for this conduct. 

On the second occasion, less than 2 weeks later, respondent again 

failed to appear with his client at a scheduled hearing (although 

clearly aware of his client's desire that he be present) without having 

previously informed the immigration judge of an inability to do so or 

subsequently offering any excuse for his action. At no time was the 

immigration judge ever informed that it had been decided not to file 

the suspension application. Moreover, based on respondent's 

representation on August 30, 1978, and his client's statement on 

September 18, 1978, it was clear such a decision had not been made. 

Under these circumstances, we must conclude that the respondent 

had the ability to appear at the two hearings that were scheduled 

based on his representations regarding the filing of the suspension 

application, but simply elected not to do so. We find that respondent's 

unexplained conduct in this regard could have been punishable as 

contempt had it occurred in judicial proceedings and that it falls 

within he proscription of 8 C.F.R. 292.3(a)(11). See In re Niblack, 476 

F.2d 930 (D.C. Cir. 1973); 18 U.S.C. 401; Chula v. Superior Court, 368 

P.2d 107 (Cal. 1962); Lyons v. Superior Court, 278 P.2d 681 (Cal. 1955); 

section 1209 of the California Civil Code of Procedure. See also In re 

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Farquhar, 492 F.2d 561 (DC. Cir. 1973). The respondent's objectionable behavior in this regard clearly obstructed the orderly and timely 

administration of the immigration laws. 

We further find that respondent's failure to properly discharge his 

duty as an attorney to his client constitutes a separate ground for 

action under 8 C.F.R. 292.3. Seven months after respondent first advised an immigration judge that he intended to file a suspension 

application on his client's behalf he still had neither done so nor 

informed the immigration judge of a decision not to do so. As noted, he 

had in fact specifically informed the immigration judge on August 30, 

1978, that he still intended to file such an application and would do so 

"[that] week."' Some 19 days and two hearings later, he still had taken 

no action even though he had been warned on three occasions that such 

inaction on his part would lead to denial of the application for lack of 

prosecution. We find this unexplained inaction on respondent's part, 

combined with his failure on two occasions to appear on his client's 

behalf,5to be entirely unacceptable conduct for an alien's attorney of 

record and sole representative. 

Having reached these conclusions, and considering respondent's 

failure to offer any matters in explanation of mitigation, we find no 

reason not to approve the Service's recommendation that the respondent be suspended from practice before the Immigration and Naturalization Service and this Board for a period of 6 months. 

ORDER: The respondent is suspended from the practice of law 

before the Immigration and Naturalization Service and before the 

Board of Immigration Appeals for a period of 6 months. 

FURTHER ORDER: The record is certified to the Attorney 

Gerneral for final disposition, and the foregoing order is stayed pending such disposition. 

BEFORE THE ATTORNEY GENERAL 

(June 22, 1979) 

This matter is before me pursuant to 8 C.F.R. 292.3(b), which provides for review by the Attorney General of decisions of the Board of 

'The record establishes that as of the date of the immigration judge's order, the 

respondent's client was still desirous of applying for suspension of deportation and that 

neither he nor the respondent determined that such relief should not be pursued. 

The record indicates that the respondent's non-English speaking client desired his 

presence and was in ueed of his assistance. Respondent's action in failing to appear at 

the September 18, 1978, hearing was particularly aggravated as the record reflects that 

he had advised his client as of 1 hour before the hearing that he would be present and 

that he retained the documents relating to the suspension application in his possession. 

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Immigration Appeals (BIA) for suspension or disbarment of attorneys 

from further practice before it and the Immigration and Naturalization Service (INS). In a decision dated April 17, 1979, the BIA recommended that the respondent, Daniel De Anda, be suspended from such 

practice for 6 months. After review of the record, I approve its 

decision. 

I 

On December 18, 1978, the Regional Commissioner of the Western 

Regional Office of INS commenced disbarment proceedings against Mr. 

De Anda, an attorney admitted to practice before the federal and state 

courts in California whose practice includes cases before the INS and 

the BIA. He was served by registered mail with a copy of written 

charges against him, and with a notice to show cause why a motion 

seeking his suspension or disbarment should not be presented to the 

BIA. 

The basis of the charges was that he had failed to appear mt 

scheduled hearings to present an application for suspension of deportation on behalf of his client. On August 30, 1978, Mr. De Anda had 

indicated to the immigration judge that he would have it ready within 

a week; as a result, he was given until September 7, 1978, to submit the 

application. De Anda was told that if he did not appear on September 

7, the application would be denied for lack of prosecution. On 

September 7, 1978, De Anda failed to appear for the rescheduled deportation proceeding. The hearing was rescheduled for September 18, 

1978. On that date, De Anda's client appeared alone, and informed the 

judge that he had just spoken with De Anda, who told him to proceed 

to court to await his appearance. After a short recess, De Anda still 

had not appeared, and the judge required De Anda'a client to proceed 

without counsel. The request for suspension of deportation was denied. 

The Regional Commissioner informed De Anda that his behavior 

had been "contemptuous and insulting to the Immigration Court," and 

of a nature that, had it occurred in a federal or state court in 

California, would constitute a basis for a finding of contempt. Further, 

he was informed that his failure to act as a representative of his client 

was an additional basis for suspension from practice. 

De Anda did not answer or in any way respond to the notice.' By 

' Da Anda had been advised in the notice that he had 30 days to show cause why 

suspension or disbarment proceedings should not be instituted against him. He was told 

that he could rawest a hearing after filing an answer, and that if no answer were 

received within 3 days after the expiration of the 30-day period, "any defense to the 

charges shall be deemed waived." He was also informed that if he required additional 

time to show cause why proceedings against him should not be commenced, he could 

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memorandum dated February 20, 1979, the record in the case was 

forwarded by the Regional Commissioner to the BIA, with the Commissioner's recommendation that De Anda be suspended from practice 

for 6 months. A letter dated February 27, 1979, was sent to De Anda 

informing him that the record of his case had been forwarded to the 

Chairman of the BIA with a recommendation of suspension for 6 

months.' 

In view of the uncontested charges and underlying record, the BIA 

found that De Anda's actions amounted to "contumelious [and] ... 

obnoxious conduct" within the meaning of 8 C.F.R. 292.3(a)(11). 3The 

Board concluded that the conduct toward the immigration judge would 

justify a finding of contempt both in federal and state courts, and that 

the conduct toward his client constituted an additional ground for 

disciplinary action. 

II 

Title 8 C.F.R. 292.3(a)(11) provides that suspension from practice 

before the INS and BIA is an appropriate punishment for one who 

"engaged in contumelious or otherwise obnoxious conduct with respect 

to a case in which he acts in a representative capacity, which in the 

opinion of the Board, would constitute cause for suspension or disbarment if the case was pending before a court, or which ... would constitute a contempt of court...." The failure to obey the direction of a 

court to appear at a hearing is clearly conduct that would justify a 

finding of contempt in federal court and in the courts of California. See 

In re Niblack, 476 F.2d 930 (D.C. Cir. 1973); Chula v. Superior Court, 18 

Ca. Reptr. 507, 368 P.2d 107 (1962). 

In the present situation, the record supports the BIA's finding that 

De Anda failed to appear at two scheduled hearings without providing 

any excuse or explanation, and in circumstances indicating that he had 

the ability to appear. That alone establishes, in my view, that the 

determination of cause for suspension from practice should be approved. In addition, it is relevant that the scheduled hearings at which 

De Anda failed to appear were called for the purpose of considering an 

application to be made on behalf of his client for the suspension of 

deportation. The failure of De Anda to appear and make such an 

application, thus putting his client's rights directly in jeopardy, 

request it from the Regional Counsel. 

The record includes signed Post Office receipts confirming that the letters of 

December 18, 1978, and of February 27, 1979, were received. 

"Contumelious" conduct, as the Regional Commissioner explained to De Anda in the 

letter of December 18, 1979, refers to behavior that is "haughtily contemptuous or 

insulting." 

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further supports the finding of cause for suspension "in the public 

interest." 

There is no indication that De Anda's procedural rights were violated because there was no hearing in this case. He had a full opportunity 

for a hearing, but none was held because he never responded to the 

notice to show cause. The December 18, 1978, notice provided De Anda 

with adequate notification of the charges against him and of the 

evidence underlying its issuance. Cf. Hess & Clark, Division of Rhodia, 

.Inc_ v_ FDA, 495 F.2d 975, 989-84 (D.C. Cit.. 1974 Moreover, the issues 

identified in the notice were the ones on the basis of which administrative action proceeded. Cf L&M Industries, Inc. v. Kenter, 458 F.2d 968, 

971 (2 Cir. 1972). 

Accordingly, I approve the order suspending respondent De Anda 

from practice for 6 months before the INS and the BIA. The period of 

suspension is to commence on the date of this decision. 

' The specific grounds for suspension listed In 8 C.F.R. 292.8(a) are not the exclusive 

grounds for suspension or disbarment in the public interest." 

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