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Leslie v. Attorney General of the United States

July 8, 2010

NEVILLE SYLVESTER LESLIE, PETITIONER
v.
ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



Petition for Review of an Order of the Board of Immigration Appeals BIA No. A41-329-237 Immigration Judge: Walter A. Durling.

The opinion of the court was delivered by: Aldisert, Circuit Judge.

PRECEDENTIAL

Argued March 10, 2010

Before: AMBRO, SMITH and ALDISERT, Circuit Judges.

OPINION OF THE COURT

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 (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, Pennsylania. 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.*fn1 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).*fn2 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.

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