In Re Yung H. Hsu, a Lso Known , 451 F. App'x 37 ( 2011 )

IO-90074-am
In re Yung H. Hsu, a ls o known
a s Allen Y. Hsu
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER") .
A PARTY CITING A SUMMARY ORDER MUST SERVE A COpy OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated ter.m of the United states Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 19 th day of December, two thousand eleven.
PRESENT:
Jose A. Cabranes ,
Robert D. Sack,
Richard C. Wesley,
Circuit Judges .
In re Yung H. Hsu, 10-90074-am
also known as Allen Y. Hsu,
ORDER OF
GRIEVANCE PANEL
Attorney.
FOR ALLEN Y. HSU: Allen Y. Hsu, Esq., New York , New York.
1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
2 DECREED that Yung H. Hsu, also known as Allen Y. Hsu, is publicly
1 reprimanded for the misconduct described below and directed to
2 comply with the continuing legal education ("CLE") and co-counsel
l
3 requirements specified in this order.
4 By order filed in July 2010, this panel directed Hsu to show
5 cause why he should not be removed from the bar of this Court, or
6 subject to other disciplinary or corrective measures, based on
7 his filing of deficient briefs in six cases and the assertion by
8 a bankruptcy trustee that he had engaged in sanctionable conduct
9 in a bankruptcy proceeding. In his response to that order, Hsu
10 apologized for his poor briefing, stated that his briefing errors
11 were inadvertent, acknowledged that he needs coaching in
12 brief-writing, and explained that the alleged sanctionable
13 conduct in the bankruptcy proceeding had been committed by his
14 client without his knowledge.
15 For present purposes, we accept Hsu's explanation concerning
16 the allegation against him in the bankruptcy proceeding. We also
17 accept that Hsu recognizes the need for change in his practice
18 and is remorseful for his misconduct. However, the deficiencies
19 in his briefs concerned elementary principles of immigration law,
20 administrative exhaustion, appellate waiver, and appellate
IAlthough Hsu referred to himself as Yung H. Hsu in his
case filings in this Court, his name is recorded as Allen Y. Hsu
in both the New York State Unified Court System's Attorney
Directory and this Court's Attorney Admissions Database. In his
response to our July 2010 order, he refers to himself as "Allen
Y. Hsu [fjormerly known as Yung H. Hsu."
2
1 brief-writing. Hsu's conclusory explanation, although
2 appropriately contrite, falls far short of providing a
3 satisfactory account of, or excuse for, his many serious
4 mistakes.
5 Additionally, although our July 2010 order drew Hsu's
6 attention to the fact that he had never filed a response to the
7 Government's December 2009 motion to dismiss in Zhu Feng Zheng v.
8 Holder, 09-2786-am, Hsu neither corrected nor explained that
9 omission. The Government's motion was eventually granted in
10 August 2011, without any response having been filed. See Zhu
11 Feng Zheng, 09-2786-am, order filed Aug. 8, 2011.
12 Finally, we note that Hsu failed to comply with several
13 explicit instructions in our July 2010 order. He failed to
14 provide: (a) a declaration made under penal ty of perj ury; (b) a
15 statement of whether he has been disbarred, suspended,
16 reprimanded, or otherwise disciplined by any bar or court and, if
17 so, a copy of each document imposing such a disciplinary measure;
18 (c) a statement of whether he has ever been ordered by any court
19 or bar disciplinary authority to show cause why he should not be
20 disciplined and, if so, a copy of each such order, and any
21 response to each such order; (d) an explanation for all of the
22 conduct discussed in this order, including a discussion of
23 whether his clients were prejudiced in any way by that conduct;
24 or (e) a copy of the sanction motion that was filed in the Truong
25 case, all supporting and responding pleadings relating to that
3
1 motion, and all documents memorializing the agreement between Hsu
2 and the trustee settling the sanction claims.
3 Hsu's deficient briefing, his explanation for that briefing,
4 and the other deficiencies noted above leave us with little
5 confidence that, as things now stand, he will be able to conform
6 to expected professional norms in the future. Thus, upon due
7 consideration of the matters described above, it is hereby
8 ORDERED that Hsu is PUBLICLY REPRIMANDED for the misconduct
9 described above and DIRECTED to:
10 (a) attend, within one year of the filing date of this
11 order, CLE programs on (i) immigration law, (ii)
12 federal appellate practice, and (iii) appellate brief
13 writing. Hsu must certify his completion of the
14 required CLE programs by sworn statement filed with
15 this panel within seven days after the end of the one­
16 year period. Counsel to the Grievance Panel is
17 authorized to modify this deadline, on Hsu's motion.
18 (b) not file in this Court, for a period of two years
19 (commencing twenty-eight days from the filing date of
20 this order), any further briefs, motions or other
21 papers unless those documents are co-signed by another
22 member of this Court's bar who has entered an
23 appearance as co-counsel in the case and meets the
24 other requirements noted in the footnote appearing
25 below. 2 If Hsu is unable to comply with this directive
2 Before entering an appearance as co-counsel to Hsu in any
case, proposed co-counsel must certify, in a sworn written
submission to this panel under the present docket number, that he
or she (i) has not been disciplined by this or any other Court or
disciplinary authority in the past five years; (ii) currently is
not the subject of any such disciplinary proceedings; (iii) has
read a copy of this order; and (iv) accepts full responsibility
for all documents filed by Hsu in the case. An attorney unable
to make the certifications described in clauses (i) and (ii) of
the preceding sentence may seek a waiver of those requirements
from this panel by motion filed under this docket number.
4
1 at any point during the pendency of a case in this
2 Court, he must move to withdraw as counsel in that
3 case.
4 (c) attach a copy of this order to any future request for
5 renewal of his admission to the bar of this Court with a
6 sworn declaration detailing his full compliance with the
7 above-noted directives.
8
9 See In re Zhang, 376 Fed. Appx. 104, 108-09 (2d Cir. 2010)
10 (imposing CLE and co-counsel requirements). The preceding
11 directives are intended to be remedial and prophylactic, not
12 punitive. However, Hsu is advised that any future failure to
13 comply with any rule or order of this Court may result in
14 additional sanctions, including suspension or disbarment.
15 The text of this panel's July 2010 order is appended to, and
16 deemed part of, the present order for the following disclosure
17 purposes. Hsu must disclose this order to all clients in cases
18 currently pending in this Court and to all courts and bars of
19 which he is currently a member, and as required by any bar or
20 court rule or order. Furthermore, the Clerk of Court is directed
21 to release this order to the public by posting it on this Court's
22 web site and providing copies to members of the public in the
23 same manner as all other unpublished decisions of this Court, and
24 to serve a copy on Hsu, this Court's Committee on Admissions and
25 Grievances, the attorney disciplinary committee for the New York
26 State Appellate Division, First Department, and all other courts
27 and jurisdictions to which this Court distributes disciplinary
28 decisions in the ordinary course.
5
1
2 FOR THE COURT:
3 Catherine O'Hagan Wolfe, Clerk
4
5
6
7
8
9
10 By: Michael Zachary
11 Counsel to the Grievance Panel
12
13
14 APPENDIX
15
16 Text of July 2010 order
17
18 For the reasons that follow, Yung H. Hsu, also known as
19 Allen Y. Hsu, [footnote omitted] is ordered to show cause why
20 disciplinary or other corrective measures should not be imposed
21 on him pursuant to Federal Rules of Appellate Procedure 46(b) and
22 (c) and Second Circuit Local Rule 46.2.
23
24 A review of the six cases in this Court in which Hsu is
25 listed as an attorney of record reveals that he has a pattern of
26 poor briefing. In three cases, this Court denied the petitions
27 for review filed by Hsu on the basis that he had waived all
28 dispositive issues this Court was empowered to review. In Chang
29 Wei He v. Mukasey, Hsu's brief challenged findings made by an
30 immigration judge ("IJ") in 1998 instead of the 2008 Board of
31 Immigration Appeals ("BIA") decision denying Chang Wei He's
32 motion to reconsider - the only order this Court had authority to
33 review - causing this Court to hold that Hsu had "waived any
34 challenges that could have been raised." See 09-0159-ag, brief
35 filed Jun. 1, 2009, order filed Feb. 16, 2010, at 2. Similarly,
36 in Shu Mei Chen v. Holder, Hsu's brief failed to challenge either
37 of two dispositive bases for the BIA's denial of Shu Mei Chen's
38 motion to rescind her in absentia order of removal, and waived
39 any challenge to the BIA's denial of her motion to reopen by
40 failing to argue that country conditions in China had changed.
41 See 09-2148-ag, brief filed Sep. 11, 2009, order filed Feb. 18,
42 2010, at 3-5. Most recently, in Yan Zhang-Xiano v. Holder, the
43 Court denied the petition for review because Hsu's brief did not
44 challenge the BIA's denial of Yan Zhang-Xiano's motion to
45 reconsider, which was the only decision properly before the
46 Court. See 09-2149-ag, order filed Jun. 18, 2010, at 2-3. The
47 Court also noted that even "the portions of the brief that [were]
48 arguably responsive to the decision actually before [the Court]
49 fail[ed] to assert a meaningful legal argument appropriate for
50 [the Court's] review." Id., at 3.
6
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1 Hsu's other three cases reflect similar issues and a troubling
2 misunderstanding of basic principles of immigration law. First, in
3 Zhou Jian Ni v. Mukasey, Hsu filed the petition for review in this
4 Court, even though it was apparent that all relevant proceedings
5 had taken place in New Jersey; accordingly, in September 2008, this
6 Court granted the Government's motion for transfer of the petition
7 to the Third Circuit. See 08-3941, order filed Sep. 10, 2008. In
8 opposing the Government's transfer motion, Hsu erroneously argued
9 that "[t]ransfer of venue is merely a question of convenience," and
10 suggested that the relevant test was whether the transfer would
11 impose "undue hardship," without citation to any supporting
12 authority. Id., opposition filed Sep. 8, 2008, at 2. Second, in
13 Yu Bing Yu v. Holder, where Hsu represented Yu Bing Yu before both
14 the BIA and this Court, this Court denied the petition for review
15 filed by Hsu on the basis that his motion to the BIA for
16 reconsideration, which had been filed four years after the BIA
17 order being challenged, was "unquestionably untimely"; the Court
18 also found that, if the motion to the BIA were construed as a
19 motion to reopen, it remained meritless since Hsu "did not submit
20 any evidence of changed country conditions, or, indeed, any
21 evidence at all, in support of the motion." See 09-1763-ag, order
22 filed Sep. 25, 2009. A review of Hsu's response to the
23 Government's motion for summary affirmance of the BIA's order, and
24 his motion to "strike" the Government's motion, reveals that both
25 documents are of exceedingly poor quality, and appear to suggest,
26 inter alia, that a petitioner need not submit evidence in support
27 of a claim of changed country conditions when filing a motion to
28 reopen before the BIA. Id., motion filed Jul. 20, 2009, response
29 filed Aug. 4, 2009. See 8 C.F.R. § 1003.2(c) (1) ("A motion to
30 reopen proceedings shall state the new facts that will be proven at
31 a hearing to be held if the motion is granted and shall be
32 supported by affidavits or other evidentiary material."). Finally,
33 in Zhu Feng Zheng v. Holder, the Government filed a motion to
34 dismiss for lack of jurisdiction, because Hsu, who also had
35 represented Zhu Feng Zheng before the BIA, had filed the petition
36 for review more than six months after the BIA had issued its
37 decision, well past the statutory 30-day deadline. See 09-2786-ag,
38 motion filed Dec. 1, 2009, at 3. The motion to dismiss, which Hsu
39 did not respond to, is presently pending before this Court.
40
41 Hsu's conduct also has been questioned in a bankruptcy
42 proceeding in the Southern District of New York, where the trustee
43 for an estate moved for sanctions under 28 U.S.C. § 1927 against
44 Hsu and a debtor. See In re Truong, 2008 WL 1776227 (Bkrtcy.
45 S.D.N.Y. Apr. 14, 2008). Although Hsu settled the sanction issue
46 with the trustee, and the court's decision does not describe the
47 specific allegations against Hsu, it appears that Hsu was alleged
48 to have engaged in conduct intended to delay and disrupt the
49 trustee's administration of estate property. Id. at *1.
50
7
1 Upon due consideration of the matters described above, it is
2 hereby ORDERED that Hsu show cause, in a detailed declaration, why
3 he should not be removed from the bar of this Court, or subject to
4 other disciplinary or corrective measures, based on the conduct
5 described above. The declaration must be made under penalty of
6 perjury and filed within twenty-eight days of the filing date of
7 this order. Furthermore, the declaration must include:
8
9 (a) a complete list of all cases in this Court in which
10 he is, or was, counsel of record or performing legal
11 services for any litigant (which is to be updated with
12 any additional cases in which he begins providing legal
13 services after the filing of the initial list required by
14 this clause);
15
16 (b) a complete list of all cases currently pending in the
17 federal district and bankruptcy courts of this circuit in
18 which he is counsel of record or performing legal
19 services for any litigant (which is to be updated with
20 any additional cases in which he begins providing legal
21 services after the filing of the initial list required by
22 this clause);
23
24 (c) a complete list of all bars of which he is a member,
25 including all bar numbers and other bar identification
26 information, and a statement of whether he is in good
27 standing with each identified bar;
28
29 (d) a statement of whether he has been disbarred,
30 suspended, reprimanded, or otherwise disciplined by any
31 bar or court and, if so, a copy of each document imposing
32 such a disciplinary measure must be attached to the
33 declaration;
34
35 (e) a statement of whether, aside from any document
36 listed in response to clause (d), he has ever been
37 ordered by any court or bar disciplinary authority to
38 show cause why he should not be disciplined and, if so,
39 a copy of each such order, and any response to each such
40 order, must be attached to the declaration; and
41
42 (f) an explanation for all of the conduct discussed in
43 this order, including a discussion of whether his clients
44 were prejudiced in any way by that conduct.
45 Additionally, Hsu must provide this Court with a copy of
46 the sanction motion that was filed in the Truong case,
47 all supporting and responding pleadings relating to that
48 motion, and all documents memorializing the agreement
49 between Hsu and the trustee settling the sanction claims.
50
8
1 [additional text omitted]
2
3 FOR THE COURT :
4 Catherine O' Hagan Wolfe , Clerk
5
6 By : /s/
--------- ----------------------
Michael Zachary
7
8 Counsel to the Grievance Panel
9