Vietnam veteran granted asylum in novel immigration case
Client(s) Vietnam veteran/legal permanent resident in deportation proceedings
In January 2007, as part of a pro bono program Jones Day participates in with the Third Circuit, the firm agreed to represent a Vietnam veteran, a legal permanent resident of the United States who emigrated from Jamaica to the United States in 1972, in his ten year struggle to challenge deportation proceedings instituted against him by the Immigration and Naturalization Service. Our client, a legal permanent resident, had been placed in deportation proceedings in January 1997 through the issuance of an Order to Show Cause by the Immigration and Naturalization Service. Our client was pro se for much of the ten years he spent challenging his deportation. Among other challenges made by him, he asserted that his deportation violated the INS's internal Operations Instructions. In cases involving the deportation of former members of the United States military, the INS's Operations Instructions provided that no Order to Show Cause could be issued against a veteran without the prior approval of the Assistant Commissioner of the INS. Our client alleged that no such approval was ever obtained, and therefore the Order to Show Cause should not have been issued against him. Despite raising this issue repeatedly during his ten year odyssey - in INS hearings, on appeal to the Board of Immigration Appeals, and in appeals to the United States District Court of New Jersey, and the Third Circuit - neither the Board of Immigration Appeals, nor the INS, ever bothered to address this claim. Instead, the BIA rejected his applications for asylum, withholding of removal, and protection under the Convention Against Torture, and ordered him deported to Jamaica, his country of origin.
In its January 2007 Order appointing Jones Day as counsel for our client, the Third Circuit requested briefing on whether it could enforce the Operations Instruction against the INS, and if so, whether our client, who had already been ordered removed by the Board of Immigration Appeals, was entitled to relief for this violation. This case presented a novel issue of law, as the Third Circuit never had considered whether internal policy guidelines, such as the internal Operations Instructions of the INS, were enforceable. Of the other circuit courts to address this precise issue, only the Eighth and Ninth Circuits had found INS Operations Instructions enforceable, and only under limited circumstances. Following oral argument, the Court ruled that this Operations Instruction was enforceable and that Mr. C was entitled to relief. The Court found that because the Operations Instruction at issue curtailed the INS's discretion in issuing an Order to Show cause against members of the military such as our client, the Order to Show Cause never should have been issued. The Court, therefore, vacated the Board of Immigration Appeal's final order of removal and directed the BIA to remand the case to the Immigration Judge "with instructions to dismiss the removal proceedings instituted against [our client] as void."
The Court commended Jones Day: "We commend the excellent legal representation provided by Mr. C's pro bono counsel, John W. Boyle and Matthew R. Divelbiss of the Jones Day law firm in Pittsburgh, Pa. 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. C's cause."
