    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
------------------------------------- --- -   -   -   -




      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

