Interim Decision #3237 

MATTER OF SPARROW 

In Suspension Proceedings Under 8 C.F.R. § 292.3 

Decided by Board June 22, 1994 

(1) Because the Notice of Entry of Appearance as Attorney or Representative (Form G28) is designed to determine whether an individual is an attorney within the meaning 

of 8 C.F.R. § 1.1(1) (1994), an attorney filing this form has a duty to disclose 

disciplinary actions or other restrictions on his practice of law in the bars of courts in 

jurisdictions other than those in which he claims to be in good standing. 

(2) Where an attorney in disciplinary proceedings under 8 C.F.R. § 292.3(a)(10) (1994) 

is charged with willfully making false and material statements or representations with 

respect to his qualifications or authority to represent others in any case, his false 

statement or representation is deemed material if it has a tendency to influence, or is 

capable of influencing, the decision of the decision-making body to which it was 

addressed. 

(3) A 10-year suspension from the practice of law before the Immigration and 

Naturalization Service and the Executive Office for Immigration Review is appropri - 

ate where the respondent has a conviction which involved a conspiracy to violate 

immigration laws through a sham marriage scheme, making false statements to the 

Service, suborning perjury, and stealing government property; the respondent is under 

suspension from the practice of law in three states; the respondent misrepresented his 

qualifications or authority to represent others in immigration proceedings on Notices 

of Entry of Appearance; and the respondent did not report his conviction to the 

Executive Office for Immigration Review or state bar authorities. 

CHARGES: 8 C.F.R. § 292.3(a)(3) 

8 C.F.R. § 292.3(a)(7) 

8 C.F.R. § 292.3(a)(10) 

8 C.F.R. § 292.3(a)(13) 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Sheila Brooks-Tahir, Esquire Rachel A. McCarthy 

233 West Main Street Assistant Regional 

Salisbury, Maryland 21801 Counsel 

BY: Dunne, Acting Chairman; Heilman, Board Member, Grant, Temporary Board 

Member 

On January 11, 1991, the Acting General Counsel of the Immigration and Naturalization Service issued a Petition for Attorney 

Discipline against the respondent pursuant to the provisions for 

920 
Interim Decision #3237 

suspension or disbarment under 8 C.F.R. § 292.3 (1991).' The 

Petition for Attorney Discipline contains 11 charges against the 

respondent alleging violations of 8 C.F.R. §§ 292.3(a)(3), (7), (10), and 

(13). These charges arise from the respondent's January 10, 1983, 

conviction for involvement in sham marriage schemes designed to 

deceive the Service, the suspensions from the practice of law imposed 

by several jurisdictions as a result of the conviction, and the 

respondent's subsequent representations regarding his qualifications 

or authority to represent others. 

The Petition for Attorney Discipline was served on the respondent 

and filed with the Office of the Chief Immigration Judge in accordance 

with 8 C.F.R. § 292.3(b)(ii). The respondent filed a response to the 

Petition for Attorney Discipline. A hearing was subsequently held 

before an assistant chief immigration judge. In his decision dated 

March 13, 1992, the assistant chief immigration judge found that 

Charge VIII had not been proven and dismissed that charge. He found 

that the other charges had been proven, however, and ordered that the 

respondent be suspended from the practice of law before the Service 

and the Executive Office for Immigration Review for a period of 1 

year and 9 months, with leave to petition the court for reinstatement 

on March 12. 1993. The Service appealed from the assistant chief 

immigration judge's dismissal of Charge VIII. The respondent appealed from the assistant chief immigration judge's findings regarding 

the other charges and from the order of suspension. These appeals are 

the subject of the proceedings now before us. 2 

The regulatory grounds upon which the proceedings before us are 

based are set forth at 8 C.F.R. § 292.3 (1994), 3which currently 

provides in pertinent part: 

(a) Grounds. The Immigration Judge, Board, or Attorney General may suspend or bar 

from further practice before the Executive Office for Immigration Review or the 

Service, or may take other appropriate disciplinary action against. anattorney or 

'This petition supersedes a petition issued by the Service against the respondent in 

February 1990, as the earlier petition was not signed or dated by the General Counsel of 

the Service. 

2While the appeals were pending, the respondent submitted a motion to remand in 

order for the assistant chief immigration judge to consider documents which the 

respondent received from the Service pursuant to a Freedom of Information Act request. 

Remand for this purpose is unnecessary, as unredacted versions of these Service 

documents are already contained in the record as an exhibit, which was examined by the 

assistant chief immigration judge in camera. 

3Since the Petition for Attorney Discipline was issued against the respondent, 8 

C.F.R. 292.3 (1991) has been revised. See 57 red. Reg. 11,574 (1992). As none of the 

revisions affects any of the issues in this case or any of the grounds alleged against the 

respondent in the Petition for Attorney Discipline, we refer to the current version of 

these regulations. 

921 
Interim Decision #3237 

representative if it is found that it is in the public interest to do so. Appropriate 

disciplinary sanctions may include disbarment, suspension, reprimand or censure, or 

such other sanction as deemed appropriate. The suspension, disbarment, or 

imposition of other appropriate disciplinary action against an attorney or representative who is within one or more of the following categories shall be deemed to be in 

the public interest, for the purposes of this part, but the enumeration of the following 

categories does not constitute the exclusive grounds for discipline in the public 

interest: 

(3) Who willfully misleads, misinforms, or deceives an officer or employee of the 

Department of Justice concerning any material and, relevant fact in connection with a 

case; 

(7) Who has been temporarily suspended, and such suspension is still in effect, or 

permanently disbarred, from practice in any court, Federal, State (including the 

District of Columbia), territorial, or insular; 

(10) Who willfully made false and material statements or representations with 

respect to his qualifications or authority to represent others in any case; 

(13) Who has been convicted of a felony, or, having been convicted of any crime 

is sentenced to imprisonment for a term of more than one year 

In disciplinary proceedings under 8 C.F.R. § 292.3, which are based. 

on the suspension from the practice of law by a state court, an attorney 

is entitled to the opportunity to present contentions and evidence 

regarding any alleged fundamental procedural inadequacy of his state 

court suspension and any alleged insubstantiality of evidence supporting it. Matter of ogart, 15 I&N Dec. 552 (BIA 1975; A.G., BIA 1976). 

Before discipline may be imposed in disciplinary proceedings under 13 

C.F.R. § 292.3, any allegations of misconduct must be established by 

evidence which is "clear, convincing, and unequivocal." 8 C.F.R. 

§ 292.3(b)(1)(iv); see also Matter of Solomon, 16 I&N Dec. 388 (BIA, 

A.G. 1977); Matter of Koden,, 15 I&N Dec. 739 (BIA 1974; A.G., BIA 

1976), affd, 564 F.2d 228 (7th Cir. 1977). 

The respondent has challenged the propriety of these proceedings 

on two grounds. First, he maintains that the doctrine of laches should 

apply against the Service to prevent it from pursuing the instant 

disciplinary proceedings against him. In this regard, he argues that he 

has been prejudiced by the Service's issuance of the Petition for 

Attorney Discipline years after his 1983 conviction. He claims that in 

correspondence to him while he was in prison in California in early 

1983, the Service agreed to postpone proceedings to await and rely 

upon the outcome of California disciplinary proceedings against him. 

The respondent asserts that he has been prejudiced by the passage of 

922 
Interim Decision #3237 

time because neither he nor the Service is now able to locate any 

record of this correspondence to prove that the Service made this 

agreement. 

Laches is an affirmative defense in which the party raising the 

defense has the burden of proving that he changed his position to his 

detriment and prejudice through reliance upon the unreasonable delay 

in instituting actions against him. See AmBrit, Inc. v. Kraft, Inc., 812 

F.2d 1531 (11th Cir. 1986), cert. denied, 481 U.S. 1041 (1987); Matter 

of Onal, 18 I&N Dec. 147 (BIA 1981, 1983). 

We need not reach the issue of whether the elements of laches have 

been satisfied in this case, as the respondent has not shown that the 

equitable doctrine of laches is applicable to these proceedings. The 

cases cited by the respondent in his brief are not lathes cases, but 

instead are cases which involve the issues of speedy trial and 

preindictment delay in criminal prosecutions. He has presented no 

authority for applying laches to the disciplinary proceedings before us. 

Laches or neglect of duty on the part of officers of the Government 

generally may not be invoked against the Government when it acts to 

enforce a public right or protect a public interest. See United States v. 

Summerlin, 310 U.S. 414 (1940); Guaranty Trust Co. v. United States, 

304 U.S. 126 (1938); Utah Power & Light Co. v. United States, 243 

U.S. 389 (1911); Bostwick Irrigation District v. United States, 900 F.2d 

1285 (8th Cir_ 1990); United States v. Repass, 688 F-2d 154 (2d Cir. 

1982); Matter of K-, 4 I&N Dec. 480 (BIA 1951). In initiating 

disciplinary proceedings against the respondent, the Service has 

expressly alleged pursuant to 8 C.F.R. § 292.3(a) that it is "in the 

public interest" to do so. Moreover, the record reflects that in their 

respective attorney disciplinary proceedings, state authorities were not 

deterred by the passage of time since the respondent's 1983 conviction 

when they used that conviction as the basis for suspending or 

disbarring the respondent from the practice of law in 1988 in 

Maryland and in 1990 in New York and Rhode Island. 

The respondent's other argument against the propriety of these 

proceedings is that the Service instituted them vindictively because of 

the effectiveness of the respondent's pro Bono representation of aliens 

before the Service and the Service's disappointment over its inability 

to convince an Assistant United States Attorney to prosecute the 

respondent for alleged false statements on Notices of Entry of 

Appearance as Attorney or Representative (Form G-28) ("Notice of 

Entry of Appearance"). In support of this argument, the respondent 

submitted copies of briefs and other documents he filed on behalf of 

clients. He also refers to Service documents indicating that an 

Assistant United States Attorney was approached by the Service to 

923 
Interim Decision #3237 

review the charges against the respondent of false statements in 

Notices of Entry of Appearance but declined to prosecute. 

This argument of vindictive prosecution is without merit. The 

grounds for instituting disciplinary proceedings against the respondent 

are so amply supported by the record that we find no basis whatsoever 

for reaching out to impute an improper motive to the Service in this 

regard. The respondent has a felony conviction for multiple offenses 

involving his representation in immigration cases. This conviction 

fully justified the Service's institution of proceedings under 8 C.F.R. 

§ 292.3 to protect the "public interest." Moreover, disciplinary 

authorities in four different jurisdictions, California, Maryland, New 

York, and Rhode Island, have found the imposition of discipline on 

the respondent warranted because of this conviction, and their actions 

in turn provide additional, grounds for the Service to charge the 

respondent in disciplinary proceedings. Further, the record reflects 

that the 1989 investigation of the respondent, which led to the instant 

proceedings against him, was begun not because of any success the 

respondent may have had in representing clients before the Service, 

but because a Service employee noticed the respondent's appearance 

as counsel in several cases and questioned why he was still praCticing 

before the Service after having been convicted. In addition, its 

consultation with an Assistant. United States Attorney regarding 

possible prosecution of the respondent is indicative merely of the 

Service's exploration of its options in proceeding against the respondent. We do not consider the consultation or the subsequent institution of disciplinary proceedings against the respondent to be vindictive 

actions on the part of the Service. 

We turn now to the specific charges alleged against the respondent 

in the Petition for Attorney Discipline. The first ground for discipline 

is predicated upon the respondent's alleged violation of 8 C.F.R. 

§ 292.3(a)(13). Charge I alleges that on January 10, 1983, in the 

United States District Court for the Southern District of California, 

having been convicted of the following offenses, the respondent was 

sentenced to 2 years for each count, to be served concurrently: 

conspiracy to make false statements, suborn perjury, and steal 

government property, in violation of 18 U.S.C. §§ 371, 641, 1001, 

1621(a), and 1622; making false statements (two counts), in violation 

of 18 U.S.C. § 1001; and subornation of perjury, in violation of 18 

U.S.C. §§ 1621(a) and 1622. Charge I further alleges that at the same 

hearing, the respondent, having been convicted of theft of government 

property, in violation of 18 U.S.C. § 641, was placed on probation for 

a period of 5 years, imposition of sentence having been suspended, on 

the conditions that he obey all laws and all lawful rules and regulations 

of the probation department, and that he not engage in the practice of 

924 
Interim Decision #3237 

law until reinstated by the Supreme Court of California. It alleges that 

the probationary sentence was to be consecutive to the period of 

incarceration. Charge I is supported by the certified copy of the 

respondent's criminal judgment which is contained in the record. We 

therefore find that Charge I has been established by clear, convincing, 

and unequivocal evidence. 

Charges II, III, and IV allege violations of 8 C.F.R. § 292.3(a)(3) in 

that the respondent willfully misled, misinformed, or deceived an 

officer or employee of the Service concerning a material and relevant 

fact in connection with a case. Under Charge II, it is alleged that on or 

about July 6, 1981, the respondent filed with the Service an Immigrant 

Visa Petition (Form I-130E), on which it was claimed that. Arceli 

Bautista and Bryce Paul Bell had resided together as husband and wife 

at 1856 Madera Street, Lemon Grove, California, when the respondent 

knew that the said marriage was a sham and that the parties had never 

lived together. 

Under Charge III, it is alleged that on or about September 10, 1981, 

the respondent filed with the Service an Immigrant Visa Petition 

(Form I-I 30E), an Application for Status as Permanent Resident 

(Form I-485H), and an Affidavit of Support (Form 1-134) in which it 

was claimed that Fidel Velez Uy and Sandra Anna Antunez had 

resided together as husband and wife at 7920 Odell Place, San Diego, 

California, when the respondent knew that the said marriage was a 

sham and that the parties had never lived together. 

Charge IV alleges that on or about July 6, 1981, the respondent 

willfully procured, assisted, and suborned Bryce Paul Bell to take an 

oath in a Service matter to testify truthfully, and contrary to such oath, 

to state material matters on an Immigrant Visa Petition (Form I -130E) 

which neither the respondent nor Bryce Paul Bell believed to be true, 

to wit: that Bryce Paul Bell and Arceli Bautista resided together as 

husband and wife at 1856 Madera Street, Lemon Grove, California, 

when the marriage was a sham and Bryce Paul Bell and Arceli Bautista 

had never lived together. 

Charges II, III, and IV match Counts 3, 5, and 12 in the indictment 

in the respondent's criminal case. A certified copy of this indictment is 

contained in the record. The respondent's criminal judgment indicates 

that the respondent was found guilty of Counts 3, 5, and 12 in the 

indictment. Therefore, based on the supporting evidence of the 

indictment and the respondent's criminal judgment, we find that 

Charges II, III, and IV have been established by clear, convincing, and 

unequivocal evidence. 

Charges V and VI are predicated upon alleged violations of 8 C.F.R. 

§ 292.3(a)(7) in that the respondent has been temporarily suspended, 

and such suspension is still in effect, from practice in any court, 

975 
Interim Decision #3237 

Federal, State (including the District of Columbia), territorial, or 

insular. Under Charge V, it is alleged that on December 20, 1988, the 

Court of Appeals of Maryland indefinitely suspended the respondent 

from the practice of law, with leave to apply for reinstatement at the 

expiration of 1 year from the date of its order. Charge VI alleges that 

on September 20, 1990, the Supreme Court of Rhode Island indefinitely suspended the respondent from engaging in the practice of law 

in Rhode Island. 

Charge V is supported by the certified copy of the December 20, 

1988, order from the Court of Appeals of Maryland, reflecting that the 

respondent was suspended indefinitely from the further practice of law 

in Maryland with leave to apply for reinstatement at the expiration of 

1 year from the date of the order. The record also contains a June 26, 

1990, order from the Court of Appeals of Maryland in which the court 

denied the respondent's petition for termination of his indefinite 

suspension on the grounds that during the period of his indefinite 

suspension the respondent may have engaged in the practice of law in 

another jurisdiction in which he was not admitted to practice and in 

connection therewith made false and misleading statements. Charge 

VI is supported by a certified copy of the September 20, 1990, order of 

the Supreme Court of Rhode Island reflecting that the respondent was 

ordered suspended indefmitely from engaging in the practice of law in 

Rhode Island. In the disciplinary proceedings before us, the respondent did not raise any issues of fundamental procedural inadequacies 

or insufficiency of evidence regarding , his suspensions from the 

practice of law in. Maryland and Rhode Island. See Matter of Bogart, 

supra. We therefore find that Charges. V and VI have been established 

by clear, convincing, and unequivocal evidence. 

The remaining charges, Charges VII through XI, allege that the 

respondent violated 8 C.F.R. § 292.3(a)(10) by willfully making false 

and material statements or representations with respect to his qualifications or authority to represent others in any case. Under Charge VII, 

it is alleged that on or about April 5, 1989, in connection with three 

Petitions for Alien Relative (Form 1-130) by Eliodoro Llaucs Quitoriano filed with the Service, the respondent submitted a Notice of Entry 

of Appearance in which he alleged that he was a member in good 

standing of the Bars of the States of New York and California, 

knowing that he had not been registered with or deemed to be in good 

standing by the Bar of the State of New York since 1982. 

In support of Charge VII, the Service offered copies of the three visa 

petitions and accompanying documents filed by Eliodoro Llanes 

Quitoriano. Each packet of documents includes a Form G-28 dated 

April 5. 1989, in which the respondent indicated that he was an 

016 
Interim Decision f13237 

attorney and a member "in good standing" of the bar of the highest 

court of the States of New York and California. 

Also contained in the record is an October 11, 1989, letter to the 

Service from the State of New York Unified Court System, Office of 

Management Support, stating that in response to a letter from the 

Service, it had conducted a search of the New York State Attorney 

Registration records, maintained by that office pursuant to section 468 

of the New York Judiciary Law. 4The letter advises that the search 

indicated that the respondent was admitted to the New York. Bar in 

1973 by the Third Appellate Division of the New York Supreme Court 

but that he had failed to register as a New York attorney since 1982. 

According to the letter, the respondent would be unable to obtain a 

certificate of good standing from the Appellate Division for as long as 

his registration remained out of date. 

In addition, the Service offered a May 22, 1991, letter from Michael 

J. Novack, Clerk of the New York Supreme Court, Appellate Division, 

Third Judicial Department, informing the Service that the respondent's name was stricken from the roll of New York attorneys on May 

I, 1990, as a result of his 1983 felony conviction, and that the 

respondent will not be eligible to> apply for reinstatement until the 

expiration of at least 7 years after May 1, 1990. Enclosed with this 

letter is a copy of the court's May 1, 1990, order. The court's order 

indicates that the respondent's conviction for making a false statement 

under 18 U.S.C. § 1001 is cognizable as a felony under New York law 

for purposes of the automatic disbarment statute' and accordingly, the 

respondent ceased to be an attorney upon his conviction of this crime. 

The court's order further states that the respondent's failure to report 

his conviction to that court as required by section 90(4)(c) of the New 

York Judiciary Law also constituted misconduct which was serious. 6 

4Section 468-a of the New York Judiciary law provides that "[a]ttorneys shall register 

biennially on the dates prescribed by the chief administrator" of the courts. It further 

states, inter alia, that Injoncompliance by an attorney with the provisions of this 

section and the rules promulgated hereunder shall constitute conduct prejudicial to the 

administration of justice and shall be referred to the appropriate appellate division of 

the supreme court for disciplinary action." 

5The automatic disbarment statute is found at section 90(4)(a) of the New York 

Judiciary Law, which provides: "Any person being an attorney and counsellor-at-law 

who shall be convicted of a felony as defined in paragraph e of this subdivision, shall 

upon such conviction, cease to be an attorney and counsellor-at-law, or to be competent 

to practice law as such." 

6Section 90(4)(c) of the New York Judiciary Law provides in pertinent part: 

Whenever an attorney shall be convicted of a crime in a court of record of the United 

States or of any state, territory or district, including this state, whether by a plea of 

guilty or nob contendere or from a verdict after trial or otherwise, the attorney shall 

file, within thirty days thereafter, with the appellate division of the supreme court, the 

927 
Interim Decision #3237 

In defense of Charge VII, the respondent submitted the original of a 

certificate dated September 1, 1987, from Michael J. Novack, Clerk of 

the State of New York, Appellate Division of the Supreme Court, 

Third Judicial Department, in which it is certified that the respondent 

was admitted to practice law by that court on September 5, 1973, and 

"is currently in good standing and is registered with the Administrative Office of the Courts as required by section four hundred sixtyeight-a of the Judiciary Law." In his brief on appeal, the respondent 

concedes that he did not pay his registration dues in 1982 or afterward, 

but asserts that the nonpayment was inadvertent and that the issuance 

of the certificate of good standing in 1987 proves that his failure to 

perform this "ministerial act" did not preclude him from remaining a 

New York attorney in good standing. 

We conclude that the violation of 8 C.F.R. § 292.3(a)(10) alleged in 

Charge VII has been established by clear, convincing, and unequivocal 

evidence. We find unpersuasive the respondent's argument that the 

issuance of the certificate of good standing proves that his failure to 

register since 1982 was only the failure to perform a ministerial act and 

did not preclude him from being considered a New York attorney in 

good standing. It appears that the certificate of good standing from the 

New York Supreme. Court, Appellate Division, Third Judicial Department dated September 1, 1987, was issued in error and without 

knowledge of the respondent's failure to register, as it is rebutted by 

the October 11, 1989, letter from the Unified Court System, Office of 

Management Support, the office which maintains the registration 

records of New York attorneys. This letter states that the respondent 

was ineligible for a certificate of good standing because he had failed to 

register as a New York attorney since 1982. In addition, section 468-a 

of the. New York Judiciary Law provides that an attorney's failure to 

register biennially is a ground for referral of the attorney to the 

appropriate division of the New York Supreme Court for disciplinary 

action. 

Moreover, the May 1, 1990, court order which struck the respondent's name from the roll of New York attorneys indicates that the 

respondent was "automatically disbarred" when he received his felony 

conviction for making a false statement, and that he committed 

additional professional misconduct by failing to report his conviction 

to the court within 30 days of its imposition. Thus, in view of the 

respondent's failure to register as a New York attorney since 1982, his 

1983 conviction of a felony which made him subject to the automatic 

disbarment statute in New York, and his failure to comply with the 

record of such conviction. The failure of the attorney to so file shall be deemed 

professional misconduct .... 

928 
Interim Decision #3237 

requirement that he notify the appellate division of the New York 

Supreme Court of his conviction, we find that the respondent willfully 

made a false and material statement or representation when he 

claimed in. Notices of Entry of Appearance dated April 5, 1989, to be 

an attorney in good standing in New York. 

Under the next charge in the Petition for Attorney Discipline, 

Charge VIII, it is alleged that the respondent violated 8 C.F.R. 

§ 292.3(a)(10) when, on or -about April 5, 1989, in connection with 

three Petitions for Alien Relative (Form I-130)> filed by Elidoro Llanes 

Quitoriano with the Service, the respondent submitted Notices of 

Entry of Appearance, in which he alleged that he was a member of the 

Bars of the Slates of New York and California, willfully concealing his 

suspension from the Bar of the State of Maryland. It is further alleged 

that the respondent willfully and falsely represented that he was an 

attorney within the meaning of 8 C.F.R. § 1.1(1), knowing that he had 

been suspended from the practice of law in the State of Maryland. 

In support of Charge VIII, the Service relied on the December 20, 

1988, suspension order from the Court of Appeals of Maryland, which 

was also the basis of the allegation in Charge V, as well as the Notices 

of Entry of Appearance, which were also the bases of the allegation in 

Charge VII. In these Notices of Entry of Appearance, the respondent 

checked the block which reads as follows: 

I am an attorney and a member in good standing of the bar of the Supreme Court of 

the United States or of the highest court of the following State, territory, insular 

possession, or District of Columbia (Name of Court) and am not under a court or 

administrative agency order suspending, enjoining, restraining, disbarring, or 

otherwise restricting me in practicing law. 

On the line designated for "Name of Court," the respondent typed in 

"New York, & California." 

The assistant chief immigration judge found that the Service had 

not met its burden with regard to Charge VIII. He stated that it was 

not clear from the wording of the Form G-28 whether an attorney is 

attesting only to his good standing in the states he lists, or whether he 

is attesting that he is not under restrictions in any state. The assistant 

chief immigration judge determined that the respondent's failure to 

acknowledge the disciplinary action against him in Maryland on the 

Form G-28 did not amount to willful, misrepresentation. 

On appeal, the Service contends that the respondent made false and 

material statements when he indicated on the Notices of Entry of 

Appearance that he was not under a court or administrative order 

suspending, enjoining, restraining, disbarring, or otherwise restricting 

him in practicing law. It is argued that the Notice of Entry of 

Appearance is the mechanism by which attorneys, as defined in 8 

C.F.R. § 1.1(1) (1994), set forth the basis upon which they qualify to 

929 
Interim Decision #3237 

provide representation to individuals before the Service. The Service 

maintains that the assistant chief immigration judge improperly 

disregarded the regulatory definition of the term "attorney," set forth 

at 8 C.F.R. § 1.1(f), when he determined that the respondent did not 

have an affirmative duty to disclose on the Notice of Entry of 

Appearance his having been suspended in Maryland. 

In defense of Charge VIII, the respondent argues that ambiguity 

exists even within the definition of an attorney provided in 8 C.F.R. 

§ 1.1(f). He maintains that this ambiguity precludes the Service from 

establishing by clear, convincing, and unequivocal evidence that he 

violated 8 C.F.R. § 292.3(a)(10). 

Under the provisions of 8 C.F.R. § 292.1, only certain designated 

individuals are authorized to represent persons before the Service and 

the Executive Office for Immigration Review. Included in this 

category are attorneys, as defined in 8 C.F.R. § 1.1(f), which provides 

as follows: 

The term attorney means 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 him in the practice of law. 

We disagree with the respondent's contention on appeal that an 

ambiguity exists within the definition of an attorney provided in 8 

C.F.R. § 1.1(f). The plain language of the regulation indicates that a 

person would not satisfy the defmition of an attorney if he were 

subject to any order of any court which suspended, enjoined, 

restrained, disbarred, or otherwise restricted him in the practice of 

law, even if he were still a member in good standing in a court of 

another jurisdiction. See Matter of Bogart, supra (in which proceedings 

were pursued against an attorney solely on the basis of his suspension 

from the practice of law in California despite the fact that he 

purportedly remained an attorney in good standing in New York). Any 

ambiguity arises from the slight variation in language between 8 

C.F.R. § 1.1(f), which refers to "any order of any court," and the 

Form G-28, which refers to "a court or administrative agency order." 

(Emphasis added.) Thus, the issue before us is whether an attorney 

submitting a Form G-28, on which he claims to be an attorney in good 

standing in the bars of one or more courts, has a duty to disclose that 

he has also been suspended, enjoined, restrained, disbarred, or 

otherwise restricted in the practice of law in a court in another 

jurisdiction which he has not listed. 

We conclude that an attorney filing a Form G-28 does have a duty 

to disclose disciplinary actions or other restrictions on his practice of 

law in the bars of courts in jurisdictions other than those in which he 

claims to be in good standing. The slight variation in language between 

930 
Interim Decision #3237 

the Form G-28 and 8 C.F.R. § 1.1(0 notwithstanding, it is clear that 

the Form 0-28 is designed to determine whether an individual is an 

attorney within the meaning of 8 C.F.R. § 1.1(f). As an attorney who 

satisfies the definition of an attorney found in 8 C.F.R. § 1.1(1) is the 

only category of attorney authorized to appear in immigration 

proceedings, the Notice of Entry of Appearance form must necessarily 

apply that definition when an individual's eligibility to appear as an 

attorney in those same proceedings is being determined based on the 

form. 

In addition, we note that unlike state bars, the Board of Immigration Appeals does not have a formal application process and admission 

fee,7conduct investigations or written examinations to determine an 

applicant's fitness to practice, or send out annual registration statements for attorneys to return with updated information on bar 

admissions and disciplinary actions. Indeed, the Board does not even 

require documentary proof from an attorney of his admission to 

whatever state bar he claims to belong to. Instead, we rely entirely on 

the attorney's representations in the Notice of Entry of Appearance. 

Because an attorney is our only source of information regarding his 

own eligibility to appear as an attorney within the meaning of 8 C.F.R. 

1.1(f), we must rely on him to disclose on the Form G-28 when he in 

no longer eligible to appear in immigration proceedings, or to simply 

refrain from appearing in immigration proceedings as long as his 

ineligibility exists. 

Moreover, our interpretation of the Form 0-28 as applying the 

definition of an attorney set forth in 8 C.F.R. § 1.1(f) is supported by 

the other Notices of Entry of Appearance currently in use in 

immigration proceedings. The Form 0-28 is the Notice of Entry of 

Appearance form used for representation in proceedings before the 

Service. Different Notices of Entry of Appearance forms are used for 

representation in proceedings before an immigration judge (Form 

EOIR-28) and for representation in proceedings before the Board 

(Form EOIR-27). Both of these forms were prescribed for use 

beginning in January 1989 and are almost identical to the Form G -28 

on the front side of the forms, including the block which an attorney 

checks to indicate that he is an attorney in good standing. The reverse 

side of the Form EOIR-28 and the Form EOIR-27, however, contain 

language which is not included on the Form 0-28, which was last 

revised in 1979. This language consists of an enumeration of the 

7At one time there was a general requirement that persons who sought to practice 

before the Service submit an application, be admitted to practice, and pay a $25 fee. See 

section 281(7) of the Immigration and Nationality Act, 8 U.S.C. § 1351(7) (1964), 

repealed by Act of Oct. 21, 1968, Pub. L. No. 90-609, § 1, 82 Stat. 1199. 
Interim Decision #3237 

categories of persons entitled to serve as representatives. Among the 

categories listed is "Attorneys in the United States. An 'attorney' is 

defined in 8 C.F.R. § 1.1(f)." Thus, the Form EOIR-28 and the Form 

EOIR.27, which seek the same type of information as the Form G -28, 

expressly require that an attorney submitting the form be able to 

satisfy the definition of an attorney found in 8 C.F.R. § 1.1(f). It is 

logical to interpret the Form G-28 as imposing the same requirement. 

We therefore conclude that the respondent had a duty to disclose on 

any Form G-28 which he submitted whether he met the qualifications 

of an attorney as provided in 8 C.F.R. § 1.1(f). In other words, he was 

under an obligation to specify whether he was under any order of any 

court suspending, enjoining, restraining, disbarring, or otherwise 

restricting him in the practice of law so as to disqualify him from 

appearing in immigration proceedings. When he submitted his Form 

G-28 on April 5, 1989, with each of the three visa petitions filed by 

Elidoro Llanes Quitoriano, he only indicated that he was a member in 

good standing of the bars of the highest courts in New York and 

California. He willfully and falsely represented that he was an attorney 

within the meaning of 8 C.F.R. § 1.1(f) when he concealed that he had 

been suspended from the practice of law in Maryland in 1988. Thus, 

we find that the violation, of 8 C_RR § 292.3(a)(I 0) alleged in Charge 

VIII has been established by clear, convincing, and unequivocal 

evidence. 

Charges IX, X, and XI allege violations of 8 C.F.R. § 292.3(a)(10) 

involving the respondent's use of letterhead on which was printed the 

jurisdictions in which the respondent was purportedly admitted to 

practice. Charge IX alleges that on or about October 19, 1989, in 

connection with a case, the respondent sent to Immigration Judge 

Nejelski of the Executive Office of Immigration Review in Arlington, 

Virginia, a letter in which the respondent represented that he was 

admitted to practice in. Maryland and New York, knowing that he had 

not been registered with or deemed to be in good standing by the Bar 

of the State of New York since 1982. It is further alleged that he 

willfully and falsely represented that he was an attorney within the 

meaning of 8 C.F.R. § l(f), knowing that he had been suspended 

from the practice of law in the State of Maryland. 

Charge X alleges that on or about February 21, 1990, the 

respondent sent a letter to the Clerk of the Court, Executive Office for 

Immigration Review, Arlington, Virginia, about the same case as that 

in Charge IX, and that in the letter he made the same representations 

about being admitted to practice in Maryland and New York which 

are alleged against him in Charge IX. 

Charge XI alleges that on or about November 25, 1990, the 

respondent sent to Alberto Gonzalez, Special Assistant United States 

932 
Interim Decision #3237 

Attorney for the Northern District of California in connection with the 

matter of Talens v. Thornburg, a letter in which he represented that he 

was admitted to practice in Maryland and Rhode Island, willfully 

concealing his suspensions from the Bars of the States of Maryland and 

Rhode Island. It is further alleged that the respondent falsely 

represented that he was an attorney within the meaning of 8 C.F.R. 

§ 1.1(f), knowing that he had been suspended from the practice of law 

in the States of Maryland and Rhode Island. 

In support of Charge. IX, the Service offered a letter dated October 

19, 1989, from the respondent to> Immigration Judge Nejelsld of the 

Executive Office for Immigration Review in Arlington, Virginia, 

requesting a hearing date for his client to discuss the Service's failure 

to respond to her Freedom of Information Act request. The letter is 

typed on letterhead at the top of which is printed the respondent's 

name, addresses, telephone numbers, and the notation, "Admitted to 

Practice Maryland, Pennsylvania, New York, Rhode Island, California 

& Trust Territory of the Pacific Islands." 

For Charge X, the Service offered a letter dated February 21, 1990, 

from the respondent to the Clerk of the Court, Executive Office for 

Immigration Review, Arlington, Virginia, transmitting an asylum 

application and supporting, documents on behalf of a client, and 

informing the court of his new office mailing address. The letter is 

typed on letterhead, at the top of which is printed the respondent's 

name, addresses, telephone numbers, and the same notation about the 

jurisdictions in which he was admitted to practice as appears in the 

October 19, 1989, letter. 

In support of Charge XI, the Service offered a letter dated 

November 25, 1990, telecopied by the respondent to Alberto Gonzalez, Special Assistant United States Attorney, discussing the proceedings in Talens v. Thornburg, pending in the United States District 

Court for the Northern District of California. From the context of the 

letter, it appears that the respondent and Mr. Gonzalez were opposing 

counsel in the case. The original letter was typed on letterhead at the 

top of which is printed the respondent's name, addresses, telephone 

numbers, and the notation, "Admitted to Practice Maryland, Pennsylvania, Rhode Island, California, Trust Territory of the Pacific 

Islands." 

In defense of Charges IX, X, and XI, the respondent argues that he 

did not violate 8 C.F.R. § 292.3(a)(10) because he made no misrepresentation of a material fact. He contends that as he was not soliciting 

the business of any of the people to whom the letters in those charges 

were addressed, the representations about the bars to which he was 

admitted were not material. The respondent cites several criminal 

cases and maintains that the governing definition of materiality is 

933 
Interim Decision #3237 

• 

whether a statement has the natural tendency to influence the decision 

of the tribunal which makes the decision. He argues that since the 

matter for decision before the tribunal is the application or petition of 

the client rather than of counsel, the letterhead of counsel cannot 

possibly influence the adjudicatory process. 

In his argument that the representations at issue in Charges IX, X, 

and XI were not material, the respondent uses the definition of 

materiality applied in criminal cases involving 18 U.S.C. § 1001. In 

such cases, the test for materiality is whether the false statement has a 

tendency to influence or is capable of influencing a federal agency. 

United States v. Brantley, 786 E2d 1322 (7th Cir.), cert. denied, 477 

U.S. 908 (1986); see also United States v. Beer, 518 F.2d 168 (5th Cir. 

1975). As we have observed, then definition of materiality applied in 

criminal cases involving 18 U.S.C. § 1001 is more expansive than that 

typically applied in immigration proceedings involving issues of 

material misrepresentation. See Matter of Martinez-Lopez, 10 I&N 

Dec. 409 (BIA 1962; A.G. 1964). There is no authority defining 

materiality for the express purposes of R C.F.R. § 292.3(a)(10), 

however. Moreover, the United States Supreme Court has indicated, 

in the naturalization context, that the materiality definition used in 18 

U.S.C. § 1001 cases should be applied rather than the more restrictive 

immigration definition. See Kungys v. United States, 485 U.S. 759, 

770-72 (1988). We therefore adopt the definition of materiality used 

for 18 U.S.C. § 1001 cases in order to determine whether a false 

statement or representation is material for the purposes of 8 C.F.R. 

§ 292.3(a)(10). Thus, we hold that a false statement or representation 

is material under 8 C.F.R. § 292.3(a)(10) if it has a tendency to 

influence, or is capable of influencing, the decision of the decisionmaking body to which it was addressed. 

The issue before us with regard to> Charges IX and X is whether the 

false representations alleged in these charges were material so as to 

constitute violations of 8 C.F.R. § 292.3(a)(10). 8These representations were the respondent's indication on his letterhead that he was 

admitted to practice law in Maryland and New York when in fact he 

had been suspended from the practice of law in Maryland, and he was 

not an attorney in good standing in New York. Applying the definition 

of materiality set forth above, we must now determine whether these 

false representations had a tendency to influence, or were capable of 

influencing, the decisions of the immigration judge and the court clerk 

to whom the letters containing the false representations were addressed. We find that they did not. 

8We are satisfied that the representations were false, and on appeal the respondent has 

not contested these charges on this basis. 

934 
Interim Decision #3237 

The respondent's conduct in using letterhead that misrepresented 

the jurisdictions in which he was authorized to practice was clearly 

unethical. See, e.g., Model Rules of Professional Conduct Rules 7.1, 

7.5 (1992). Moreover, as the respondent suggests on appeal, these 

representations would have undoubtedly been material as to someone 

who was induced by them to retain the respondent to perform legal 

services. However, the only possible impact on the immigration judge 

and the court clerk, to whom the letters in Charge IX and X were 

addressed, would seem to be whether the respondent appeared to them 

to be eligible under 8 C.F.R. § 1.1(f) to> represent clients in immigration proceedings. We need not decide whether such a determination of 

the respondent's eligibility by either Executive Office for Immigration 

Review employee would be a "decision" as contemplated by the 

definition of a "material" representation as one having a tendency to 

influence, or being capable of influencing, the decision of the decisionmaking body to which it was addressed. Even if we assume that a 

determination of the respondent's eligibility by the immigration judge 

or the court clerk would constitute a decision by a decision -making 

body, we would still find that materiality has not been established here 

because the representation alleged would not have provided them with 

the information necessary to make such a determination. 

It is not clear how the respondent's representations on his letterhead 

as to the jurisdictions in which he was admitted to practice, whether 

true or false, would have alerted the immigration judge and the court 

clerk to his ineligibility under 8 C.F.R. § 1.1(f). No authority has been 

presented to show that there exists a duty to disclose disciplinary 

actions in other jurisdictions on one's letterhead similar to the duty to 

disclose which we have found applicable to a Notice of Entry of 

Appearance. Thus, even if the respondent had not made the false 

representations on his letterhead, the immigration judge and the court 

clerk would still have considered him eligible to practice under 8 

C.F.R. § 1.1(f) because there would have been no indication on the 

letterhead of any grounds for his ineligibility. Even without Maryland 

and New York on the list of jurisdictions in which the respondent was 

admitted to practice, four jurisdictions would still have remained on 

the letterhead to make it appear that the respondent did meet the 

definition of an attorney in 8 C.F.R. § 1.1(0. In other words, the 

immigration judge and the court clerk would have conducted themselves in the same way whether or not the false representation 

appeared in the letterhead; under either scenario, they would have 

assumed that the respondent was eligible under 8 C.F.R. § 1.1(f) to 

represent his client in immigration proceedings. Therefore, the Service 

has not established by clear, convincing, and unequivocal evidence 

that the false representations alleged in Charges IX and X influenced 

935 
Interim Decision #3237 

any decisions on the part of the immigration judge and the court clerk 

so as to qualify as material. We find that Charges IX and X have not 

been sustained. 

We further find that the last charge, Charge XI, also has not been 

sustained. Under Charge XI, the respondent allegedly sent a Special 

Assistant United States Attorney correspondence on printed letterhead 

reflecting that the respondent was authorized to practice law in 

Maryland and Rhode Island when he was under orders of suspension 

in those jurisdictions, thus falsely representing that he was an attorney 

within the meaning of S C.F.R. § 1.1(f). The record does not indicate 

that these false representations were material as to the Special 

Assistant United States Attorney, however; as with Charges IX and X, 

it has not been shown that the false representations alleged in Charge 

XI had a tendency to influence, or were capable of influencing, any 

decision of the person to whom the letter was addressed. 

In this regard, we note that the forum of the case about which the 

respondent was corresponding with the Special Assistant United States 

Attorney was not an immigration court, but rather was a federal 

district court, that of the Northern District of California. Whether the 

respondent was an attorney within the meaning of 8 C.F.R. § 1.1(f) 

was irrelevant to his entitlement to represent clients in a district court, 

which has its own rules regarding admission to practice and attorney 

discipline. See Matter of brams, 521 F.2d 1094 (3d Cir,), cert. denied, 

423 U.S. 1038 (1975), and cases cited therein; see also Matter of 

Roberts, 682 F.2d 105 (3d Cir. 1982). In addition, as the record 

contains no evidence about the specific procedures prescribed by the 

United States District Court for the Northern District of California for 

the admission, practice, and discipline of attorneys which were in 

effect on November 25, 1990, it has not been shown that the 

respondent was in violation of any of the court's requirements because 

of his suspensions in Maryland and Rhode Island at the time. We 

therefore find that the violation of 8 C.F.R. § 292.3(a)(10) alleged in 

Charge XI has not been established by clear, convincing, and 

unequivocal evidence_ 

Having found that the record establishes by clear, convincing, and 

unequivocal evidence that the respondent committed the violations 

alleged in Charges< I through VIII, we are of the opinion that the 

respondent should be suspended from the practice of law before the 

Service and the Executive Office for Immigration Review for a period 

of 10 years, subject to his establishing that he is no longer under 

discipline by the bars of any state courts. We recognize that the 

suspension we are imposing, is for a longer period than that set by the 

assistant chief immigration judge. In his opinion, however, the 

assistant chief immigration judge did not explain his reasons for 

936 
Interim Decision #3237 

arriving at the length of suspension which he deemed appropriate. He 

also-mane findings which differ somewhat from those which we have 

made. I loreover, we are not merely reviewing the decision of the 

assistan chief immigration judge. Instead, we are conducting a de 

novo re •riew of the record. See 8 C.F.R. § 292.3(b)(1)(vi) (stating that 

the Bor rd shall consider the record and render a decision). 

In o tr de novo review, we have considered the respondent's 

argumc t that no additional discipline is warranted in view of his prior 

suspens on from the practice of law in any jurisdiction from January 1, 

1983, u ltil April 17, 1987, under the terms of the disciplinary order 

entered by the Supreme Court of the State of California and in view of 

his succfssful completion of the suspension imposed by that court. We 

have al; o considered the respondent's claims of rehabilitation and his 

explanaion of the circumstances of his criminal offenses which he has 

offered as extenuation in briefs he submitted to the assistant chief 

immigration judge and in other disciplinary proceedings. 

Yet ve do not find that the factors argued by the respondent 

overcor le the facts underlying his conviction, which included involvement i a conspiracy to violate immigration laws, making false 

statemeats to the Service, suborning perjury, and stealing government 

propertJ. In addition, we note that the record reflects that the 

responc ent has been less than forthcoming with this Board and with 

the state bars in various jurisdictions in that he did not report his 

convict on to us, and there is, no indication that he reported his 

convict on to state bar authorities outside of California. The record 

also sh )ws that the respondent misrepresented his qualifications or 

authori y to represent others in immigration proceedings on Notices of 

Entry t f Appearance. 

Thin , we find that suspension from the practice of law before the 

Service and the Executive Office for Immigration Review is an apt 

sanctio i in this case, as the offenses for which the respondent was 

convicted and suspended from practice in various states arose out of 

his abuse of his position as a licensed attorney representing others in 

legal p oceedings. Given that his offenses involved violations of the 

inunigLition law which the Service and the Executive Office for 

Immig ation Review administer, they are particularly reprehensible 

from o it perspective and warrant a suspension from the practice of 

law be ore these agencies for a period of 10 years. Accordingly, the 

followi ig order will be entered. 

ORI )ER: The respondent is suspended from the practice of law 

before he Immigration and Naturalization Service and the Executive 

Office or Immigration Review for a period of 10 years, subject to his 

establi ling that he is no longer under discipline by the bars of any 

state c: urts. 

937