Leslie v. Attorney Gen. Of The United States

• Citation: 611 F.3d 171
• Decision Date: 08 July 2010
• Docket Number: No. 08-3180.,08-3180.
• Parties: Neville Sylvester LESLIE, Petitionerv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

611 F.3d 171

Neville Sylvester LESLIE, Petitionerv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 08-3180.

United States Court of Appeals, Third Circuit.

Argued March 10, 2010.

Filed July 8, 2010.

COPYRIGHT MATERIAL OMITTED

Caroline Brown, Sara B. Cames, (Argued), Covington and Burling, Washington, D.C., Attorneys for Petitioner.

Michael F. Hertz, Acting Assistant Attorney General, Civil Division, William C. Peachey, Assistant Director, Office of Immigration Litigation, Jem C. Sponzo, (Argued), U.S. Department of Justice, Office of Immigration Litigation, Washington D.C., Attorneys for Respondent.

Before AMBRO, SMITH and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Neville Sylvester Leslie petitions for review of a final order of removal of the Board of Immigration Appeals (“Board”), arguing that the Immigration Judge's (“IJ”) failure to advise him of the availability of free legal services, as required under 8 C.F.R. § 1240.10(a)(2)-(3), entitles him to a new removal hearing under United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). Leslie additionally argues that his statutory and due process rights were violated by a deficient Notice to Appear for the removal hearing. For the reasons that follow, we will grant the petition for review, vacate the Board's decision, and remand for a new hearing.

I.

On October 2, 1998, Leslie, a native and citizen of Jamaica and a lawful permanent resident of the United States, pled guilty to the felony offense of conspiracy to possess and distribute 50 grams or more of “crack” cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and was sentenced to 168 months' incarceration. While serving his sentence, Leslie was issued a Notice to Appear by the Department of Homeland Security (“Department”), charging him with being subject to removal under subsections 237(a)(2)(A)(iii) (aggravated felony conviction) and 237(a)(2)(B)(i) (controlled substance conviction) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii) & 1227(a)(2)(B)(i). The notice was sent on February 21, 2008, but did not include the time or date of the hearing. (App.131.) The notice referred to a “list of qualified attorneys and organizations who may be available to represent you at no cost,” which was to be provided with the notice. Although a checkmark appeared beside the box that read “Attached is a list of organizations and attorneys which provide free legal services,” the list does not appear in the administrative record. (App.132.)

The record contains a second notice, dated April 8, 2008. It states the date, time, and place of Leslie's removal hearing, but was delivered to “York ICE-Clinton” in York, Pennsylvania. (App.129.) The “Legal Services List” box is not checked. (App.129.) On April 8, 2008, Leslie was serving his criminal sentence at Clinton County Prison in McElhattan, Pennsylvania. According to Leslie, he was transported by U.S. Immigration and Customs Enforcement officers from Clinton County Prison to York County Prison on April 15 or 16, 2008. (App. 118; Pet'r Br. 7.) Leslie appeared before an IJ at York County Prison on April 16, 2008.¹ When the IJ inquired if Leslie was seeking an attorney, he replied, “I don't have the money, Sir.” (App.115.) The IJ did not explain the availability of free legal resources, nor did he ascertain whether Leslie had received the “Legal Services List.” The IJ ordered Leslie removed as an alien convicted of an aggravated felony. (App.111-113.)

Leslie timely appealed to the Board, which issued a decision on July 11, 2008, dismissing his appeal. (App.13-14.) Leslie filed a petition for review in our Court on July 21, 2008, and filed a motion to stay his removal on July 24, 2008. On August 14, 2008, this Court granted his request for a stay of removal and appointed him counsel.

II.

The Government's sole argument is that we lack jurisdiction to review Leslie's petition under INA section 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C).² We disagree. Although 8 U.S.C. § 1252(a)(2)(C) limits our jurisdiction over final decisions ordering removal based on the commission of an aggravated felony or a controlled substance offense, we retain jurisdiction over constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D); see also Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005). Leslie mounts a two-pronged attack on his removal hearing. He argues first that his Notice to Appear was deficient under 8 U.S.C. § 1229(a)(1)(G)(i), thereby denying him a meaningful opportunity to be heard. He argues next that the IJ's failure to inform him of the availability of free legal services, in violation of 8 C.F.R. § 1240.10(a)(2)-(3), deprived him both of his constitutional right to due process and his statutory right to counsel under 8 U.S.C. § 1362. Leslie's appeal presents both a question of law-whether an IJ's failure to comply with 8 C.F.R. § 1240.10(a)(2)-(3) is grounds for a new removal hearing under the Accardi doctrine, and a colorable constitutional claim-whether his removal order is invalid for insufficient notice under the Due Process Clause and 8 U.S.C. § 1229(a)(1)(G)(i). We have jurisdiction over both claims pursuant to 8 U.S.C. § 1252(a)(2)(D), and we review both issues de novo, Patel v. Ashcroft, 294 F.3d 465, 467 (3d Cir.2002) (superseded by statute on other grounds).

III.

A.

We first address Leslie's contention that his removal order is invalid because the IJ failed to comply with regulations promulgated by the Attorney General to protect his right to counsel. In particular, Leslie contends that the IJ violated 8 C.F.R. § 1240.10(a)(2)-(3), which directs that “[i]n a removal proceeding, the immigration judge shall” “[a]dvise the respondent of the availability of free legal services provided by organizations and attorneys ... located in the district where the removal hearing is being held” and shall “[a]scertain that the respondent has received a list of such programs[.]” Although allegations of due process violations must ordinarily be accompanied by “an initial showing of substantial prejudice,” Khan v. Att'y Gen., 448 F.3d 226, 236 (3d Cir.2006) (citation and quotation marks omitted), Leslie contends that these procedural rights are protected by the Fifth Amendment and that, under Accardi, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, he need not show prejudice to invalidate his removal order. It is undisputed that the IJ violated 8 C.F.R. § 1240.10(a)(2)-(3) when he failed to advise Leslie of the availability of free legal services and neglected to confirm Leslie's receipt of the list of these programs.³ We must now decide whether the violation of this regulation entitles Leslie to a new removal hearing without a showing of prejudice.

B.

We begin with the long-settled principle that rules promulgated by a federal agency that regulate the rights and interests of others are controlling upon the agency. Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 422, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942). This doctrine was first applied in an immigration case in Accardi, where the Supreme Court vacated a removal order of the Board because the procedures leading to the order did not conform to the applicable regulations. Accardi, 347 U.S. at 268, 74 S.Ct. 499. The Board, appointed by the Attorney General, operated under regulations promulgated by the Attorney General that provided, in part, that the Board “shall exercise such discretion and power conferred upon the Attorney General by law.” Id. at 266, 74 S.Ct. 499 (quoting applicable regulations). The petitioner alleged that the Attorney General had circulated a list of “unsavory characters,” including Accardi, who the Board then summarily removed without exercise of its discretion. The Supreme Court held that as long as the regulation granting the Board broad discretion remained operative, the Attorney General could not sidestep the Board or dictate its decision in any manner. Id. at 266-267, 74 S.Ct. 499. Without requiring the petitioner to show prejudice, the Accardi Court reversed, holding that Accardi was entitled to a new hearing before the Board if he could prove his allegations in the district court. See id. at 268, 74 S.Ct. 499.

After Accardi, the Court continued to require agencies to comply with their promulgated regulations, without requiring petitioners to make a showing of prejudice. In Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), the Court invalidated a Foreign Service Officer's national security discharge because the Department of State failed to comply with regulations granting procedural safeguards. Acknowledging that the Secretary of State was not required to adopt the regulations in question, the Court nonetheless held that, “having done so he could not, so long as the Regulations remained unchanged, proceed without regard to them.” Id. at 388, 77 S.Ct. 1152. There was no discussion of prejudice to the terminated employee. Id. at 389, 77 S.Ct. 1152. Two years later, in Vitarelli v. Seaton, 359 U.S. 535, 539-540, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959), the Court demanded that the Department of the Interior adhere to its employee-discharge procedures when terminating an employee on loyalty grounds, even though the Secretary could have dismissed the employee summarily on non-loyalty grounds. The Court ordered the petitioner reinstated without a showing of prejudice. Id. at 546, 79 S.Ct. 968. Then, in Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963), the Court held that the failure of a House Committee to comply with its own rule-requiring the Committee to consider harm to the witness's reputation when deciding whether to hold an executive session-excused the witness's refusal to answer questions. Id. at 123-124, 83 S.Ct. 1828. With no discussion of prejudice, nor showing of prejudice apparent on the record, the Court held that the Committee's failure...