This appeal presents one central issue for review: to what degree must an immigration 164*164 judge comply with INS regulations designed to safeguard an alien's right to counsel, even when those regulations may be more stringent than required by the due process clause of the Fifth Amendment. The constitution guarantees only those "minimal historic safeguards" which persons are entitled to receive, summarized under the Fifth Amendment as due process of law. See McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819 (1943) (Frankfurter, J.).
Judge Miner's dissent begins on page 170
The notion of fair play animating that amendment precludes an agency from promulgating a regulation affecting individual liberty or interest, which the rule-maker may then with impunity ignore or disregard as it sees fit. The INS may not fairly administer the immigration laws on the notion that on some occasions its rules are made to be broken. Because in our view the immigration judge did not adhere strictly to the INS regulations in this case, we grant the petition for review and remand the matter to the INS for a new hearing.
Miner '56, Roger J., "Montilla v. INS, 926 F. 2d 162 - Court of Appeals, 2nd Circuit 1991" (1991). Circuit Court Opinions. 309.