Saturday, December 08, 2007

Campbell (not precedential): Motion To Terminate Granted In Case Against Vietnam War Veteran

Campbell v. Mukasey, No. 05-3163 (3d Cir. Dec. 5, 2007) (not precedential) held that a motion to terminate should be granted if then-INS violated its Operations Instructions when it started a deportation case against someone who had served in the armed forces.

They started the case using an Order to Show Cause in January 1997. That the time, an INS Operations Instruction 242.1(18) (1997) required first obtaining approval to issue an Order to Shaw Cause to someone who served in the armed forces only after getting permission from the Assistant Commissioner Border Patrol or Investigations. INS did not do that so it is clear that the case must be terminated. Internal policy guidelines created by agencies often constrain an agency's use of discretion. See INS v. Yang, 519 U.S. 26, 31-32 (1996).

What is disappointing is that the IJ and BIA ignored this obvious argument when they heard of it. Good thing Congress has not blocked federal court review of IJ and BIA decisions -- otherwise, the poor guy would have been deported based on an obviously defective proceeding!


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