Failure to Advise Free Legal Services, 3rd Circuit

Leslie v. Att’y Gen. of U.S., __F.3d__, 2010 WL 2680763 (3d Cir. July 8, 2010): The court vacated the decision of an Immigration Judge (affirmed by the Board) ordering the removal of a lawful permanent resident (“LPR”) convicted of the aggravated felony of conspiracy to possess and distribute 50 grams of “crack” cocaine, for which he was sentenced to 168 months of incarceration. The sole basis for vacating was the court’s finding that the Immigration Judge failed to advise the petitioner of the availability of free legal services, as required by 8 C.F.R. § 1240.10(a)(2). The court emphasized that an agency must comply with its own regulations “protecting a fundamental statutory or constitutional right of parties appearing before it” and that the failure to do so will invalidate the agency’s action, even where no prejudice is shown. The court found that the regulation in question falls within this category, because it protects the right to counsel in removal proceedings and derives from the due process right to a fundamentally fair hearing.