Herbert Campbell v. Yang, 519 U.S. 26, 31-32 1996

NOT PRECEDENTIAL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

-- 1 of 4 --

We note that 8 U.S.C. § 1251(a)(2)(B)(i) was repealed in 1996 and its authority1
transferred to 8 U.S.C. § 1227(a)(2)(B)(i)).
-2-
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

-- 2 of 4 --

-3-
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 of 4 --

We commend the excellent legal representation provided by Mr. Campbell’s pro2
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-
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

-- 4 of 4 --