Cite as 24 I&N Dec. 744 (BIA 2009) Interim Decision #3633
1 The Office of General Counsel for the Executive Office for Immigration Review filed a
motion requesting that we amend the November 18, 2008, order in this case and designate
it as a precedent. The motion is granted. The amended order makes editorial changes
consistent with our designation of the case as a precedent.
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Matter of James L. ROSENBERG, Attorney
File D2008-233
Decided as amended January 13, 20091
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) A claim by an attorney who is currently suspended from practice before the United
States Court of Appeals for the Ninth Circuit that he is in good standing before the
California State Bar is not a basis to set aside an order of the Board of Immigration
Appeals suspending him from practice before the Board, the Immigration Courts, and the
Department of Homeland Security.
(2) It is not in the interest of justice to set aside the Board’s immediate suspension order
where the attorney failed to object to the Ninth Circuit Appellate Commissioner’s Report
and Recommendation and is therefore not likely to prevail on the merits of the attorney
discipline case, given the heavy burden of proof under 8 C.F.R. § 1003.103(b)(2) (2008).
ON BEHALF OF RESPONDENT: Robert G. Berke, Esquire, Canoga Park, California
FOR EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, OFFICE OF GENERAL
COUNSEL: Scott Anderson, Deputy Bar Counsel
FOR THE DEPARTMENT OF HOMELAND SECURITY: Eileen M. Connolly, Appellate
Counsel
BEFORE: Board Panel: OSUNA, Chairman; HOLMES and HESS, Board Members.
HOLMES, Board Member:
On September 4, 2008, the United States Court of Appeals for the Ninth
Circuit suspended the respondent from the practice of law in that court for
1 year “for his violations of the court’s rules and orders and ethical rules,” as
set forth in the Ninth Circuit Appellate Commissioner’s Report and
Recommendation of July 2, 2008. Consequently, on September 26, 2008, the
Office of General Counsel for the Executive Office for Immigration ReviewCite as 24 I&N Dec. 744 (BIA 2009) Interim Decision #3633
745
petitioned for the respondent’s immediate suspension from practice before the
Board of Immigration Appeals and the Immigration Courts pursuant to
8 C.F.R. § 1003.103(a) (2008) (providing for the immediate suspension of
a practitioner who has been suspended by any Federal court). The Department
of Homeland Security (“DHS”) asked that the respondent be similarly
suspended from practice before that agency. On October 9, 2008, we
suspended the respondent from practicing before the Board, the Immigration
Courts, and the DHS pending the final disposition of this proceeding. The
respondent has submitted a motion requesting that we set aside that order. We
decline to reconsider our October 9, 2008, order suspending the respondent
from practice.
The July 2, 2008, Report and Recommendation of the Ninth Circuit
Appellate Commissioner found that the respondent was the attorney of
record in 19 petitions for review concerning immigration cases that were
dismissed for failure to prosecute, and that his “violation of the court’s rules
and lack of diligence interfered with the judicial process.” According to the
report, the respondent’s “conduct with respect to [removal] stay motions has
demonstrated a lack of competence that has harmed his clients.” The report
also concluded that the respondent’s practices concerning immigration briefs
demonstrated “a lack of competence that has potentially harmed his clients.”
In assessing the proper discipline, the report stated the following:
In view of the pervasive lack of competence that Rosenberg has displayed, his
conduct is subject to reprimand or suspension. Because the aggravating factors are
numerous and serious, suspension is more appropriate. Rosenberg’s avowed
dedication to helping his clients is credible as well as admirable. But Rosenberg’s
failure to appreciate or acknowledge the inadequacies of his representation of those
clients supports the conclusion that he should be suspended from practice before the
Ninth Circuit, and required to engage in comprehensive ethical and appellate practice
training as a condition for reinstatement.
The respondent contends that the immediate suspension order should be set
aside because the Ninth Circuit made no findings regarding his practice before
the Board, the Immigration Courts, or the DHS. He asserts that he is still
licensed to practice law in California, except in proceedings before the Ninth
Circuit. The respondent argues that the immediate suspension order brings
hardship upon his employees, and he notes that he has hundreds of
immigration clients.
An immediate suspension order may be set aside “[u]pon good cause
shown . . . when it appears in the interest of justice to do so.” 8 C.F.R.
§ 1003.103(a)(2). We find that the respondent has failed to show good cause
for setting aside the immediate suspension order.
As the Office of General Counsel argues, the respondent’s misconduct
before the Ninth Circuit is indeed related to his actions in immigration cases.Cite as 24 I&N Dec. 744 (BIA 2009) Interim Decision #3633
746
The Office of General Counsel also notes that because the respondent is
currently prohibited from practicing law before the Ninth Circuit, he is
not eligible to practice before the Board, the Immigration Courts, or the
DHS, regardless of his status before the California State Bar. See 8 C.F.R.
§ 1292.1(a)(1) (2008) (referencing 8 C.F.R. § 1001.1(f) (2008), which defines
an attorney as a person who is a member in good standing of a bar and “is not
under any order of any court suspending . . . him in the practice of law”).
Therefore, the respondent’s claimed good standing before the California State
Bar is not a basis for reconsidering the immediate suspension order in this
case. Moreover, as the Office of General Counsel asserts, the respondent has
failed to otherwise show reason for reconsideration of the immediate
suspension order based on claimed hardship to his law practice or his clients.
Significantly, the respondent employs three attorneys in his practice who
presumably could handle upcoming matters.
Finally, as the Office of General Counsel also argues, it is not in the interest
of justice to set aside the immediate suspension order, given the heavy burden
of proof on the respondent concerning the merits of the attorney discipline
case. See 8 C.F.R. § 1003.103(b)(2). The regulations provide for summary
disciplinary proceedings against a practitioner who, like the respondent, has
been suspended by an order of a Federal court. 8 C.F.R. § 1003.103. Such an
order creates a rebuttable presumption that disciplinary sanctions should
follow. 8 C.F.R. § 1003.103(b)(2); see also Matter of Truong, 24 I&N Dec.
52, 54 (BIA 2006). This presumption can be rebutted only upon a showing
that the underlying disciplinary proceeding resulted in a deprivation of
due process, that there was an infirmity of proof establishing the
misconduct, or that discipline would result in grave injustice. 8 C.F.R.
§ 1003.103(b)(2). As the respondent did not object to the Ninth Circuit
Appellate Commissioner’s Report and Recommendation, it is unlikely that he
can rebut the presumption set forth in the regulations.
The respondent has requested a hearing on the charges in the Notice of
Intent to Discipline. The record will be forwarded to the Office of the Chief
Immigration Judge pursuant to 8 C.F.R. § 1003.106 (2008).
ORDER: The respondent’s motion to set aside the immediate suspension
order is denied.
FURTHER ORDER: The record is forwarded to the Office of the Chief
Immigration Judge for further proceedings.