In Re: Yung H. Hsu ( 2012 )

10-90074-am
In Re: Yung H. Hsu
l O- 90 0 74 -a
I n re Yun g H. Hsu , a l so kn o wn
a s Al l en Y. Hs u
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 term 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 6 th day of January, two thousand twelve.
PRESENT:
Jose A. Cabranes,
Ro b e rt D. Sack,
Richard C. Wesley,
Circuit Judges.
In re Yun g H. Hs u, 10-90074-am
a l so kn o wn as Allen Y. Hsu,
AMENDED ORDER OF
GRIEVANCE PANEL 1
Att o rne y .
FOR AL LEN Y. HSU: All e n Y. Hs u, Es q., New York , New York .
I Th e a me ndment is lim i t e d t o th e i n se rti o n of th is foo tn o te
a nd foo tn o t e 4, a nd th e r en umb e r ing of th e o th e r foo tn o t es .
1
2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
3 DECREED that Yung H. Hsu, also known as Allen Y. Hsu, is publicly
4 reprimanded for the misconduct described below and directed to
5 comply with the continuing legal education ("CLE") and co-counsel
6 requirements specified in this order.2
7 By order filed ln July 2010, this panel directed Hsu to show
8 cause why he should not be removed from the bar of this Court, or
9 subject to other disciplinary or corrective measures, based on
10 his filing of deficient briefs in six cases and the assertion by
11 a bankruptcy trustee that he had engaged in sanctionable conduct
12 in a bankruptcy proceeding. In his response to that order, Hsu
13 apologized for his poor briefing, stated that his briefing errors
14 were inadvertent, acknowledged that he needs coaching in
15 brief-writing, and explained that the alleged sanctionable
16 conduct in the bankruptcy proceeding had been committed by his
17 client without his knowledge.
18 For present purposes, we accept Hsu's explanation concerning
19 the allegation against him in the bankruptcy proceeding. We also
20 accept that Hsu recognizes the need for change in his practice
2 Although 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 [f]ormerly known as Yung H. Hsu."
2
1 and is remorseful for his misconduct. However, the deficiencies
2 in his briefs concerned elementary principles of immigration law,
3 administrative exhaustion, appellate waiver, and appellate
4 brief-writing. Hsu's conclusory explanation, although
5 appropriately contrite, falls far short of providing a
6 satisfactory account of, or excuse for, his many serious
7 mistakes.
8 Additionally, although our July 2010 order drew Hsu's
9 attention to the fact that he had never filed a response to the
10 Government's De cember 2009 motion to dismiss in Zhu Feng Zheng v.
11 Holder, 09-2786-am, Hsu neither corrected nor explained that
12 omission. The Government's motion was eventually granted in
13 August 2011, without any response having been filed. See Zhu
14 Feng Zheng, 09-2786-am, order filed Aug. 8, 2011.
15 Finally, we note that Hsu failed to comply with several
16 explicit instructions in our July 2010 order. He failed to
17 provide: (a) a declarat ion made under penalty of perj ury; (b) a
18 statement of whether he has been disbarred, suspended,
19 reprimanded, or otherwise disciplined by any bar or court and, if
20 so, a copy of each document imposing such a disciplinary measure;
21 (c) a statement of whether he has ever been ordered by any court
22 or bar disciplinary authority to show cause why he should not be
23 disciplined and, if so, a copy of each such order, and any
24 response to each such order; (d) an explanation for all of the
25 conduct discussed in this order, including a discussion of
3
1 whether his clients were prejudiced in any way by that conduct;
2 or (e) a copy of the sanction motion that was filed in the Truong
3 case, all supporting and responding pleadings relating to that
4 motion, and all documents memorializing the agreement between Hsu
5 and the trustee settling the sanction claims.
6 Hsu's deficient briefing, his explanation for that briefing,
7 and the other deficiencies noted above leave us with little
8 confidence that, as things now stand, he will be able to conform
9 to expected professional norms in the future. Thus, upon due
10 consideration of the matters described above, it is hereby
11 ORDERED that Hsu is PUBLICLY REPRIMANDED for the misconduct
12 described above and DIRECTED to:
13 (a) attend, within one year of the filing date of this
14 order, CLE programs on (i) immigration law, (ii)
15 federal appellate practice, and (iii) appellate brief
16 writing. Hsu must certify his completion of the
17 required CLE programs by sworn statement filed with
18 this panel within seven days after the end of the one­
19 year period. Counsel to the Grievance Panel is
20 authorized to modify this deadline, on Hsu's motion.
21 (b) not file in this Court, for a period of two years
22 (commencing twenty-eight days from the filing date of
23 this order), any further briefs, motions or other
24 papers unless those documents are co-signed by another
25 member of this Court's bar who has entered an
26 appearance as co-counsel in the case and meets the
27 other requirements noted in the footnote appearing
28 below.3 If Hsu is unable to comply with this directive
3 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
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
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.
5
1 Grievances, the attorney disciplinary committee for the New York
2 State Appellate Division, First Department, and all other courts
3 and jurisdictions to which this Court distributes disciplinary
4 decisions in the ordinary course. 4
5
6 FOR THE COURT:
7 Catherine O'Hagan Wolfe, Clerk
8
9
10
11
12
13 By: Michael Zachary
14 Counsel to t h e Grievance Panel
15
16
17 APPENDIX
18
19 Text of July 2010 order
20
21 For the reasons that follow, Yung H. Hsu, also known as
22 Allen Y. Hsu, [footnote omitted] is ordered to show cause why
23 disciplinary or other corrective measures should not be imposed
24 on him pursuant to Federal Rules of Appellate Procedure 46(b) and
25 (c) and Second Circuit Local Rule 46.2.
26
27 A review of the six cases in this Court in which Hsu is
28 listed as an attorney of record reveals that he has a pattern of
29 poor briefing. In three cases, this Court denied the petitions
30 for review filed by Hsu on the basis that he had waived all
31 dispositive issues this Court was empowered to review. In Chang
32 Wei He v. Mukasey, Hsu's brief challenged findings made by an
33 immigration judge ("IJ") in 1998 instead of the 2008 Board of
34 Immigration Appeals ("BIA") decision denying Chang Wei He's
35 motion to reconsider - the only order this Court had authority to
36 review - causing this Court to hold that Hsu had "waived any
4 Counsel to this panel is authorized to provide, upon
request, documents from the record of this proceeding to other
attorney disciplinary authorities. While we request that all
such documents remain confidential to the extent circumstances
allow, we leave to the discretion of those disciplinary
authorities the decision of whether specific documents, or
portions of documents, should be made available to any person or
the public.
6
1 challenges that could have been raised. u See 09-0159-ag, brief
2 filed Jun. 1, 2009, order filed Feb. 16, 2010, at 2. Similarly,
3 in Shu Mei Chen v. Holder, Hsu' s brief failed to challenge either
4 of two dispositive bases for the BIA's denial of Shu Mei Chen's
5 motion to rescind her in absentia order of removal, and waived
6 any challenge to the BIA's denial of her motion to reopen by
7 failing to argue that country conditions in China had changed.
8 See 09-2148-ag, brief filed Sep. 11, 2009, order filed Feb. 18,
9 2010, at 3-5. Most recently, in Yan Zhang-Xiano v. Holder, the
10 Court denied the petition for review because Hsu's brief did not
11 challenge the BIA's denial of Yan Zhang-Xiano's motion to
12 reconsider, which was the only decision properly before the
13 Court. See 09-2149-ag, order filed Jun. 18, 2010, at 2-3. The
14 Court also noted that even "the portions of t h e brief that [were]
15 arguably responsive to the decision actually before [the Court]
16 fail[ed] to assert a meaningful legal argument appropriate for
17 [the Court's] review. u Id., at 3.
18
19 Hsu's other three cases reflect similar issues and a troubling
20 misunderstanding of basic principles of immigration law. First, in
21 Zhou Jian Ni v. Mukasey, Hsu filed the petition for review in this
22 Court, even though it was apparent that all relevant proceedings
23 had taken place in New Jersey; accordingly, in September 2008, this
24 Court granted the Government's motion for transfer of the petition
25 to the Third Circuit. See 08-3941, order filed Sep. 10, 2008. In
26 opposing the Government's transfer motion, Hsu erroneously argued
27 that "[t]ransfer of venue is merely a question of convenience,u and
28 suggested that the relevant test was whether the transfer would
29 impose "undue hardship,u without citation to any supporting
30 auth o rity. Id., opposition filed Sep. 8, 2008, at 2. Second, in
31 Yu Bing Yu v. Holder, where Hsu represented Yu Bing Yu before both
32 the BIA and this Court, this Court denied the petition for review
33 filed by Hsu on the basis that his motion to the BIA for
34 re c onsiderati o n, which had been filed four years after the BIA
35 order being challenged, was "unquestionably untimelyU; the Court
36 also found that, if the motion to the BIA were construed as a
37 motion to reopen, it remained meritless since Hsu "did not submit
38 any evidence o f changed country conditions, or, indeed, any
39 evidence at al l , in support of the motion. u See 09-1763-ag, order
40 filed Sep. 25, 2009. A review of Hsu's response to the
41 Go vernment's motion for summary affirmance of the BIA's order, and
42 his motion to "strike u the Government's motion, reveals that both
43 documents are of exceedingly poor quality, and appear to suggest,
44 inter alia, that a petitioner need not submit evidence in support
45 of a claim of changed country conditions when filing a motion to
46 reopen before the BIA. Id., motion filed Jul. 20, 2009, response
47 filed Aug. 4, 2009. See 8 C.F.R. § 1003.2(c) (1) ("A motion to
48 reopen proceedings shall state the new facts that will be proven at
49 a hearing to be held if the motion is granted and shall be
7
1 supported by affidavits or other evidentiary materiaL") . Finally ,
2 in Zhu Feng Zheng v . Holder , the Government filed a motion to
3 dismiss for lack of jurisdiction , because Hsu, who also had
4 represented Zhu Feng Zheng before the BlA , had filed the petition
5 for review more than six months after the BlA had issued its
6 decision , well past the statutory 30 - day deadline. See 09 - 2786 - ag ,
7 motion filed Dec . 1 , 2009 , at 3 . The motion to dismiss , which Hsu
8 did not respond to, is presently pending before this Court .
9
10 Hsu ' s conduct also has been questioned in a bankruptcy
11 proceeding in the Southern District of New York , where the trustee
12 for an estate moved for sanctions under 28 U. S.C . § 1927 against
13 Hsu and a debtor . See In re Truong, 2008 WL 1776227 (Bkrtcy.
14 S.D . N.Y. Apr . 14 , 2008) . Although Hsu settled the sanction issue
15 with the trustee, and the court ' s decision does not describe the
16 specific allegations against Hsu , it appears that Hsu was alleged
17 to have engaged in conduct intended to delay and disrupt the
18 trustee's administration of estate property . Id . at *1 .
19
20 Upon due consideration of the matters described above, it is
21 hereby ORDERED that Hsu show cause, in a detailed declaration, why
22 he should not be removed from the bar of this Court , or subject to
23 other disciplinary or corrective measures , based on the conduct
24 described above . The declaration must be made under penalty of
25 perjury and filed within twenty - eight days of the filing date of
26 this order . Furthermore , the declaration must include :
27
28 (a) a complete list of all cases in this Court in which
29 he is, or was , counsel of record or performing legal
30 services for any litigant (which is to be updated with
31 any additional cases in which he begins providing legal
32 services after the filing of the initial list required by
33 this clause) ;
34
35 (b) a complete list of all cases currently pending in the
36 federal district and bankruptcy courts of this circuit in
37 which he is counsel of record or performing legal
38 services for any litigant (which is to be updated with
39 any additional cases in which he begins providing legal
40 services after the filing of the initial list required by
41 this clause);
42
43 (c) a complete list of all bars of which he is a member,
44 including all bar numbers and other bar identification
45 information , and a statement of whether he is in good
46 standing with each identified bar ;
47
48 (d) a statement of whether he has been disbarred,
49 suspended , reprimanded, or otherwise disciplined by any
50 bar or court and , if so, a copy of each document imposing
8
1 such a disciplinary measure must be attached to the
2 declaration;
3
4 (e) a statement of whether, aside from any document
5 listed in response to clause (d), he has ever been
6 ordered by any court or bar disciplinary authority to
7 show cause why he should not be disciplined and, if so,
8 a copy of each such order, and any response to each such
9 order, must be attached to the declaration; and
10
11 (f) an explanation for all of the conduct discussed in
12 this order, including a discussion of whether his clients
13 were prejudiced in any way by that conduct.
14 Additionally, Hsu must provide this Court with a copy of
15 the sanction motion that was filed in the Truong case,
16 all supporting and responding pleadings relating to that
17 motion, and all documents memorializing the agreement
18 between Hsu and the trustee settling the sanction claims.
19
20 [additional text omitted]
21
22 FOR THE COURT:
23 Catherine O'Hagan Wolfe, Clerk
24
25 By:
--``~-
/s/ -~-------------------
26 Michael Zachary
27 Counsel to the Grievance Panel
9