                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-5-2007

Campbell v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3163




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                                                           NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                       No. 05-3163
                                       __________

                               HERBERT CAMPBELL,
                                              Petitioner,

                                           vs.

                 ATTORNEY GENERAL OF THE UNITED STATES
                                          Respondent.
                              __________

              Petition for Review from the Board of Immigration Appeals
                                (BIA No. A30-085-159)

            Initially Docketed as an Appeal from N.J. D.C. No. 03-cv-05721
                     Prior to the Enactment of the Real ID Act of 2005
                                        __________

                             Argued on November 28, 2007
                                     __________

               Before: BARRY, FUENTES and GARTH, Circuit Judges.

                          (Opinion Filed: December 5, 2007)

John W. Boyle, Esq. (Argued)
Matthew R. Divelbiss, Esq.
Jones Day
500 Grant Street, Suite 3100
Pittsburgh, Pennsylvania 15219-2502

Christopher J. Christie
Peter G. O’Malley (Argued)
Office of the United States Attorney
970 Broad Street
Newark, New Jersey 07102

                                          __________

                                           OPINION
                                          __________

GARTH, Circuit Judge:

       Because we write only for the parties, we recite only those facts relevant to this

petition.

       Petitioner Herbert Campbell (“Campbell”) is a native and citizen of Jamaica who

arrived in the United States in 1973. Campbell went on to serve in the United States

Army during the Vietnam War. After being honorably discharged, Campbell was

convicted for various narcotics violations, all of which involved the illegal possession

and/or sale of marijuana. Based on these convictions, the Immigration and

Naturalization Service (“INS”) sought his removal in January 1997 under 8 U.S.C. §

1251(a)(2)(B)(i), which allowed for the removal of aliens convicted of controlled

substance offenses.1

       The INS instituted removal proceedings against Campbell by issuing an Order to

Show Cause on January 27, 1997. At the time it issued the order, an INS Operations

Instruction (“O.I.”) 242.1(18) (1997) required that, in cases involving former members of

the United States Armed Forces, no Order to Show Cause shall be issued “unless prior


       1
         We note that 8 U.S.C. § 1251(a)(2)(B)(i) was repealed in 1996 and its authority
transferred to 8 U.S.C. § 1227(a)(2)(B)(i)).

                                               -2-
approval for such action has been received from the Assistant Commissioner Border

Patrol or Investigations.” (italics added)

       After an Immigration Judge ordered Campbell removed to Jamaica, he appealed to

the Board of Immigration Appeals (“BIA”) and argued that the INS never received the

approval required under O.I. 242.1(18) before issuing the Order to Show Cause.

Therefore, he argued that no authority existed for the proceedings brought against him.

       The BIA did not address this argument and instead affirmed the IJ’s order of

removal, which denied Campbell’s applications for asylum, withholding of removal, and

protection under the Convention Against Torture. After a number of procedural

difficulties, none of which is relevant to Campbell’s current petition for review,

Campbell filed a pro se petition before the United States District Court, which was

transferred to us under the REAL ID Act, 8 U.S.C. § 1252(a)(5).

       Campbell initially raised various issues in his pro se petition before us which his

pro bono counsel withdrew at oral argument. The one issue remaining before us now is

whether the Order to Show Cause seeking his removal was void because the INS failed

to receive the necessary prior approval under O.I. 242.1(18). Before hearing argument

on this issue, we wrote to counsel inquiring whether any such prior approval was ever

sought and received. Counsel for the Government responded that “there is no record that

the Regional Commissioner reviewed or approved the issuance of the Order to Show

Cause to the petitioner before it was issued.”


                                             -3-
       Internal policy guidelines, such as O.I. 242.1(18), created by agencies, often

constrain an agency’s use of discretion. See INS v. Yang, 519 U.S. 26, 31-32 (1996);

Morton v. Ruiz, 415 U.S. 199, 235 (1974); Moret v. Karn, 746 F.2d 989, 992 (3d Cir.

1984); Pasquini v. Morris, 700 F.2d 658, 662 (11th Cir. 1983); Nicholas v. INS, 590 F.2d

802, 807 (9th Cir. 1979). The O.I. at issue here, however, did not place limitations on the

INS’s discretion: it created a necessary and essential requirement of approval by the

designated commissioner before an Order to Show Cause could be issued seeking the

deportation of a veteran.

       Because the Government presented no evidence of any such prior approval, and

indeed conceded that no record of approval of the Order to Show Cause existed, we will

vacate the BIA’s final order of removal and remand to the BIA to further remand to the

Immigration Judge with instructions to dismiss the removal proceedings instituted

against Campbell as void.2




       2
        We commend the excellent legal representation provided by Mr. Campbell’s pro
bono counsel, John W. Boyle and Matthew R. Divelbiss of the Jones Day law firm in
Pittsburgh, Pennsylvania. Messrs. Boyle and Divelbiss are a credit to the bar, and the
Court’s outcome today reflects their selfless commitment of time, effort and
resourcefulness to Mr. Campbell’s cause.

                                            -4-
