[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR292.3]

[Page 688-693]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
      CHAPTER I--DEPARTMENT OF HOMELAND SECURITY (IMMIGRATION AND 
                             NATURALIZATION)
 
PART 292_REPRESENTATION AND APPEARANCES--Table of Contents
 
Sec.  292.3  Professional conduct for practitioners--Rules and procedures.

    (a) General provisions--(1) Authority to sanction. An adjudicating 
official or the Board of Immigration Appeals (the Board) may impose 
disciplinary sanctions against any practitioner if it finds it to be in 
the public interest to do so. It will be in the public interest to 
impose disciplinary sanctions against a practitioner who is authorized 
to practice before the Service when such person has engaged in criminal, 
unethical, or unprofessional conduct, or in frivolous behavior, as set 
forth in Sec.  3.102 of this chapter. In accordance with the 
disciplinary proceedings set forth in part 3 of this chapter, an 
adjudicating official or the Board may impose any of the following 
disciplinary sanctions:
    (i) Expulsion, which is permanent, from practice before the Board 
and the Immigration Courts or the Service, or before all three 
authorities;
    (ii) Suspension, including immediate suspension, from practice 
before the Board and the Immigration Courts or the Service, or before 
all three authorities;
    (iii) Public or private censure; or
    (iv) Such other disciplinary sanctions as the adjudicating official 
or the Board deems appropriate.
    (2) Persons subject to sanctions. Persons subject to sanctions 
include any practitioner. A practitioner is any attorney as defined in 
Sec.  1.1(f) of this chapter who does not represent the federal 
government, or any representative as defined in Sec.  1.1(j) of this 
chapter. Attorneys employed by the Department of Justice shall be 
subject to discipline pursuant to paragraph (i) of this section.
    (b) Grounds of discipline as set forth in Sec.  3.102 of this 
chapter. It is deemed to be in the public interest for the adjudicating 
official or the Board to impose disciplinary sanctions as described in 
paragraph (a)(1) of this section against any practitioner who falls 
within one or more of the categories enumerated

[[Page 689]]

in Sec.  3.102 of this chapter, with the exception of paragraphs (k) and 
(l) of that section, but these categories do not constitute the 
exclusive grounds for which disciplinary sanctions may be imposed in the 
public interest. Nothing in this regulation should be read to denigrate 
the practitioner's duty to represent zealously his or her client within 
the bounds of the law.
    (c) Immediate suspension and summary disciplinary proceedings; duty 
of practitioner to notify the Service of conviction or discipline--(1) 
Petition. The Office of the General Counsel of the Service shall 
petition the Board to suspend immediately from practice before the 
Service any practitioner who has been found guilty of, or pleaded guilty 
or nolo contendere to, a serious crime, as defined in Sec.  3.102(h) of 
this chapter, or who has been disbarred or suspended on an interim or 
final basis by, or 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. A copy of the petition 
shall be forwarded to the Office of the General Counsel of EOIR, which 
may submit a written request to the Board that entry of any order 
immediately suspending a practitioner before the Service also apply to 
the practitioner's authority to practice before the Board or the 
Immigration Courts. Proof of service on the practitioner of EOIR's 
request to broaden the scope of any immediate suspension must be filed 
with the Board.
    (2) Immediate suspension. Upon the filing of a petition for 
immediate suspension by the Office of the General Counsel of the 
Service, together with a certified copy of a court record finding that a 
practitioner has been so 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 Service 
and/or the Board and Immigration Courts, notwithstanding the pendency of 
an appeal, if any, of the underlying conviction or discipline, pending 
final disposition of a summary proceeding, as provided in paragraph 
(c)(3) of this section. Such immediate suspension will continue until 
imposition of a final administrative decision. Upon good cause shown, 
the Board may set aside such order of immediate suspension when it 
appears in the interest of justice to do so. If a final administrative 
decision includes the imposition of a period of suspension, time spent 
by the practitioner under immediate suspension pursuant to this 
paragraph may be credited toward the period of suspension imposed under 
the final administrative decision.
    (3) Summary disciplinary proceedings. The Office of the General 
Counsel of the Service shall promptly initiate summary disciplinary 
proceedings against any practitioner described in paragraph (c)(1) of 
this section. Summary proceedings shall be initiated by the issuance of 
a Notice of Intent to Discipline, accompanied by a certified copy of the 
order, judgment and/or record evidencing the underlying criminal 
conviction or discipline. Summary proceedings shall be conducted in 
accordance with the provisions set forth in Sec. Sec.  3.105 and 3.106 
of this chapter. Any such proceeding shall not be concluded until all 
direct appeals from an underlying criminal conviction have been 
completed.
    (i) In matters concerning criminal convictions, a certified copy of 
the court record, docket entry, or plea shall be conclusive evidence of 
the commission of that crime in any summary disciplinary hearing based 
thereon.
    (ii) In the case of a summary proceeding based upon a final order of 
disbarment or suspension, or a resignation with an admission of 
misconduct, (i.e., reciprocal discipline), a certified copy of a 
judgment or order of discipline shall establish 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:
    (A) The underlying disciplinary proceeding was so lacking in notice 
or opportunity to be heard as to constitute a deprivation of due 
process;
    (B) There was such an infirmity of proof establishing the 
practitioner's professional misconduct as to give rise

[[Page 690]]

to the clear conviction that the adjudicating official could not, 
consistent with his or her duty, accept as final the conclusion on that 
subject; or
    (C) The imposition of discipline by the adjudicating official would 
result in grave injustice.
    (4) Duty of practitioner to notify the Service of conviction or 
discipline. Any practitioner who has been found guilty of, or pleaded 
guilty or nolo contendere to, a serious crime, as defined in Sec.  
3.102(h) of this chapter, or who has been disbarred or suspended 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 by any Federal court, must notify the Office of the General 
Counsel of the Service of any such conviction or disciplinary action 
within 30 days of the issuance of the initial order, even if an appeal 
of the conviction or discipline is pending. Failure to do so may result 
in immediate suspension as set forth in paragraph (c)(1) of this 
section. This duty to notify applies only to convictions for serious 
crimes or to orders imposing discipline for professional misconduct 
entered on or after July 27, 2000.
    (d) Filing of complaints; preliminary inquiries; resolutions; 
referral of complaints--(1) Filing of complaints--(i) Misconduct 
occurring before Service. Complaints of criminal, unethical, or 
unprofessional conduct, or of frivolous behavior before the Service by a 
practitioner shall be filed with the Office of the General Counsel of 
the Service. Disciplinary complaints must be submitted in writing and 
must state in detail the information that supports the basis for the 
complaint, including, but not limited to, the names and addresses of the 
complainant and the practitioner, the date(s) of the conduct or 
behavior, the nature of the conduct or behavior, the individuals 
involved, the harm or damages sustained by the complainant, and any 
other relevant information. Any individual may file a complaint with the 
Office of the General Counsel of the Service. The Office of the General 
Counsel of the Service shall notify the Office of the General Counsel of 
EOIR of any disciplinary complaint that pertains, in whole or in part, 
to a matter before the Board or the Immigration Courts.
    (ii) Misconduct occurring before the Board and the Immigration 
Courts. Complaints of criminal, unethical, or unprofessional conduct, or 
of frivolous behavior before the Board and the Immigration Courts by a 
practitioner shall be filed with the Office of the General Counsel of 
EOIR pursuant to the procedures set forth in Sec.  3.104(a) of this 
chapter.
    (2) Preliminary inquiry. Upon receipt of a disciplinary complaint or 
on its own initiative, the Office of the General Counsel of the Service 
will initiate a preliminary inquiry. If a complaint is filed by a client 
or former client, the complainant thereby waives the attorney-client 
privilege and any other applicable privilege, to the extent necessary to 
conduct a preliminary inquiry and any subsequent proceeding based 
thereon. If the Office of the General Counsel of the Service determines 
that a complaint is without merit, no further action will be taken. The 
Office of the General Counsel of the Service may, in its discretion, 
close a preliminary inquiry if the complainant fails to comply with 
reasonable requests for assistance, information, or documentation. The 
complainant and the practitioner shall be notified of any such 
determination in writing.
    (3) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. The Office of the General Counsel of the Service, in its 
discretion, may issue warning letters and admonitions, and may enter 
into agreements in lieu of discipline, prior to the issuance of a Notice 
of Intent to Discipline.
    (4) Referral of complaints of criminal conduct. If the Office of the 
General Counsel of the Service receives credible information or 
allegations that a practitioner has engaged in criminal conduct, the 
Office of the General Counsel of the Service shall refer the matter to 
the Inspector General and, if appropriate, to the Federal Bureau of 
Investigation. In such cases, in making the decision to pursue 
disciplinary sanctions, the Office of the General Counsel of the Service 
shall coordinate in advance with the appropriate investigative and 
prosecutorial authorities

[[Page 691]]

within the Department to ensure that neither the disciplinary process 
nor criminal prosecutions are jeopardized.
    (e) Notice of Intent to Discipline--(1) Issuance of Notice to 
practitioner. If, upon completion of the preliminary inquiry, the Office 
of the General Counsel of the Service determines that sufficient prima 
facie evidence exists to warrant charging a practitioner with 
professional misconduct as set forth in Sec.  3.102 of this chapter, it 
will issue a Notice of Intent to Discipline to the practitioner named in 
the complaint. This notice will be served upon the practitioner by 
personal service as defined in Sec.  103.5a of this chapter. Such notice 
shall contain a statement of the charge(s), a copy of the preliminary 
inquiry report, the proposed disciplinary sanctions to be imposed, the 
procedure for filing an answer or requesting a hearing, and the mailing 
address and telephone number of the Board.
    (2) Copy of Notice to EOIR; reciprocity of disciplinary sanctions. A 
copy of the Notice of Intent to Discipline shall be forwarded to the 
Office of the General Counsel of EOIR. The Office of the General Counsel 
of EOIR may submit a written request to the Board or the adjudicating 
official requesting that any discipline imposed upon a practitioner 
which restricts his or her authority to practice before the Service also 
apply to the practitioner's authority to practice before the Board and 
the Immigration Courts. Proof of service on the practitioner of any 
request to broaden the scope of the proposed discipline must be filed 
with the adjudicating official.
    (3) Answer--(i) Filing. The practitioner shall file a written answer 
to the Notice of Intent to Discipline with the Board as provided in 
Sec.  3.105(c) of this chapter.
    (ii) Failure to file an answer. Failure to file an answer within the 
time period prescribed in the Notice of Intent to Discipline, except 
where the time to answer is extended by the Board, shall constitute an 
admission of the allegations in the Notice of Intent to Discipline and 
no further evidence with respect to such allegations need be adduced. 
Upon such a default by the practitioner, the Office of the General 
Counsel of the Service shall submit to the Board proof of personal 
service of the Notice of Intent to Discipline. The practitioner shall be 
precluded thereafter from requesting a hearing on the matter. The Board 
shall adopt the recommended disciplinary sanctions in the Notice of 
Intent to Discipline and issue a final order as provided in Sec.  
3.105(d) of this chapter. A practitioner may file a motion to set aside 
a final order of discipline issued pursuant to this paragraph, with 
service of such motion on the Office of the General Counsel of the 
Service, provided:
    (A) Such a motion is filed within 15 days of service of the final 
order; and
    (B) His or her failure to file an answer was due to exceptional 
circumstances (such as serious illness of the practitioner or death of 
an immediate relative of the practitioner, but not including less 
compelling circumstances) beyond the control of the practitioner.
    (f) Hearing and disposition; appeal; reinstatement proceedings. Upon 
the filing of an answer, the matter shall be heard and decided according 
to the procedures set forth in Sec.  3.106(a), (b), and (c) of this 
chapter. The Office of the General Counsel of the Service shall 
represent the government. Reinstatement proceedings shall be conducted 
according to the procedures set forth in Sec.  3.107 of this chapter.
    (g) Referral. In addition to, or in lieu of, initiating disciplinary 
proceedings against a practitioner, the Office of the General Counsel of 
the Service may notify any appropriate Federal and/or state disciplinary 
or regulatory authority of any complaint filed against a practitioner. 
Any final administrative decision imposing sanctions against a 
practitioner (other than a private censure) shall be reported to any 
such disciplinary or regulatory authority in every jurisdiction where 
the disciplined practitioner is admitted or otherwise authorized to 
practice. In addition, the Office of the General Counsel of the Service 
shall transmit notice of all public discipline imposed under this rule 
to the National Lawyer Regulatory Data Bank maintained by the American 
Bar Association.

[[Page 692]]

    (h) Confidentiality--(1) Complaints and preliminary inquiries. 
Except as otherwise provided by law or regulation, information 
concerning complaints or preliminary inquiries is confidential. A 
practitioner whose conduct is the subject of a complaint or preliminary 
inquiry, however, may waive confidentiality, except that the Office of 
the General Counsel of the Service may decline to permit a waiver of 
confidentiality if it is determined that an ongoing preliminary inquiry 
may be substantially prejudiced by a public disclosure before the filing 
of a Notice of Intent to Discipline.
    (i) Disclosure of information for the purpose of protecting the 
public. The Office of the General Counsel of the Service may disclose 
information concerning a complaint or preliminary inquiry for the 
protection of the public when the necessity for disclosing information 
outweighs the necessity for preserving confidentiality in circumstances 
including, but not limited to, the following:
    (A) A practitioner has caused, or is likely to cause, harm to 
client(s), the public, or the administration of justice, such that the 
public or specific individuals should be advised of the nature of the 
allegations. If disclosure of information is made pursuant to this 
paragraph, the Office of the General Counsel of the Service may define 
the scope of information disseminated and may limit the disclosure of 
information to specified individuals or entities;
    (B) A practitioner has committed criminal acts or is under 
investigation by law enforcement authorities;
    (C) A practitioner is under investigation by a disciplinary or 
regulatory authority, or has committed acts or made omissions that may 
reasonably result in investigation by such an authority;
    (D) A practitioner is the subject of multiple disciplinary 
complaints and the Office of the General Counsel of the Service has 
determined not to pursue all of the complaints. The Office of the 
General Counsel of the Service may inform complainants whose allegations 
have not been pursued of the status of any other preliminary inquiries 
or the manner in which any other complaint(s) against the practitioner 
have been resolved.
    (ii) Disclosure of information for the purpose of conducting a 
preliminary inquiry. The Office of the General Counsel of the Service, 
in the exercise of discretion, may disclose documents and information 
concerning complaints and preliminary inquiries to the following 
individuals or entities:
    (A) To witnesses or potential witnesses in conjunction with a 
complaint or preliminary inquiry;
    (B) To other governmental agencies responsible for the enforcement 
of civil or criminal laws;
    (C) To agencies and other jurisdictions responsible for conducting 
disciplinary investigations or proceedings;
    (D) To the complainant or a lawful designee; and
    (E) To the practitioner who is the subject of the complaint or 
preliminary inquiry or the practitioner's counsel of record.
    (2) Resolutions reached prior to the issuance of a Notice of Intent 
to Discipline. Resolutions, such as warning letters, admonitions, and 
agreements in lieu of discipline, reached prior to the issuance of a 
Notice of Intent to Discipline, will remain confidential. However, such 
resolutions may become part of the public record if the practitioner 
becomes subject to a subsequent Notice of Intent to Discipline.
    (3) Notices of Intent to Discipline and action subsequent thereto. 
Notices of Intent to Discipline and any action that takes place 
subsequent to their issuance, except for the imposition of private 
censures, may be disclosed to the public, except that private censures 
may become part of the public record if introduced as evidence of a 
prior record of discipline in any subsequent disciplinary proceeding. 
Settlement agreements reached after the issuance of a Notice of Intent 
to Discipline may be disclosed to the public upon final approval by the 
adjudicating official or the Board. Disciplinary hearings are open to 
the public, except as noted in Sec.  3.106(a)(v) of this chapter.
    (i) Discipline of government attorneys. Complaints regarding the 
conduct or behavior of Department attorneys, Immigration Judges, or 
Board Members shall be directed to the Office of Professional 
Responsibility, United States

[[Page 693]]

Department of Justice. If disciplinary action is warranted, it shall be 
administered pursuant to the Department's attorney discipline 
procedures.

[65 FR 39531, June 27, 2000]