Weekly Blog for 5.3.19 by Merle D. Kahn, Esq. Part II
The Ninth Circuit in an en banc decision, held that the Immigration Judges (IJs) must inform child immigrants of their right to all potential forms of relief that might be available to them, including Special Immigrant Juvenile Status (SIJS). The concurrence in the case would go further and argued that all children under the age of eighteen should be entitled to court appointed counsel under the due process clause. The dissent argued that the IJs had no obligation to inform immigrant children of their possible eligibility for SIJS status as it is not a “benefit” contemplated by the regulations and there was no evidence that the petitioner in this case was eligible for the relief.
In other Ninth Circuit news, the Ninth Circuit withdrew its decisions in the Preap cases, after the Supreme Court’s decision in Nielsen v. Preap. Within the Ninth Circuit many noncitizens are now subject to mandatory detention throughout their removal proceedings. You can read the one page orders here: Preap v. McAleenan, No. 14-1632 (9th Cir. May 1, 2019); and Khoury v. Godfrey, N. 14-35482 (9th Cir. May 1, 2019). The Ninth Circuit also reiterated that they have no jurisdiction over purely discretionary immigration cases and denied the motion for rehearing en banc. Idrees v. Barr, No. 15-71573 (9th Cir. April 30, 2019). (The Ninth Circuit found they had no jurisdiction to review the BIA’s decision not to certify Mr. Idrees’s ineffective assistance of counsel claim for review under 8 C.F.R. § 1003.1(c)). I originally blogged about this case here. In BIA news, the BIA in a rare en banc decision held that a notice of hearing that gives the date and time of the hearing cures an NTA that lacks the time and date of the hearing and “stops time” for purposes of cancellation of removal. You can read my blog here. Now on to the big Ninth Circuit case of the week!
NINTH CIRCUIT
Immigration Judges Must Inform Immigrant Children of Their Potential Eligibility for Special Immigrant Juvenile Status During Proceedings
In an en banc decision, the Ninth Circuit held that Immigration Judges (IJs) must inform immigrant children in proceedings of their potential eligibility for Special Immigrant Juvenile Status (SIJS). Before we get into the case, let’s talk about SIJS. In 1990, Congress created SIJS to provide at-risk immigrant children with a path to LPR status. The original statute provided that a child must first obtain a state-court order declaring them a dependent or placing them under the custody of a court-appointed individual or entity. INA § 101(a)(27)(J)(i). To qualify for relief the state court order must find: (1) reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under law; and, (2) it would not be in the child’s best interest to be returned to their parent’s previous country. After getting the state court order, the child must file an I-360 petition with USCIS. USCIS reviews the petition and under the USCIS Policy Manual they are to rely on the expertise of the juvenile court and does not reweigh the evidence. But USCIS may deny relief if it determines that the state court order had no reasonable factual basis or was sought primarily or solely to obtain an immigration benefit. 6 USCIS Policy Manual Pt J, ch 2(D)(5). If USCIS grants the petition, then the child may apply for adjustment of status. In 2008, Congress enacted the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) making SIJS a little more generous. Under the TVPRA, the child no longer had to be placed in foster care to qualify for relief; but had to show that reunification with at least one parent was not viable. SIJS is wonderful.
FACTS
CJ is from Honduras. When CJ was fourteen years old, a gang held him at gunpoint in Honduras and threatened to kill his family after he refused to join the gang for the third time. CJ and his mother, Maria, fled to the United States. They were found in Texas after entering the country without inspection. Maria had a prior removal order, so CJ was placed in removal proceedings by himself. At the initial hearing in November 2014, CJ appeared with his mother, but did not have an attorney. Maria tried to get an attorney, but when she could not get one for her son, she represented him herself. (Honestly, it would be like me performing an appendectomy on my children; well, maybe neurosurgery – immigration law is pretty complex. And, technically, I am a doctor (though a juris doctor and not a medical doctor) but still….) Maria filed for asylum, withholding of removal and protection under the Convention Against Torture.
At the hearing CJ testified that gang members threatened to kill him and other family members of three occasions after he refused to join the gang. CJ testified that it had been “many years” since he had any contact with his father. The IJ found that CJ was credible but denied his applications for relief. CJ appealed his case to the BIA and had an attorney for the BIA appeal. On appeal the attorney argued that the IJ erred by failing to appoint counsel and by failing to advise him about SIJS eligibility. The BIA dismissed the appeal. They found that while the IJ must inform respondents about any apparent forms of relief from removal; CJ had not established eligibility for SIJS so the IJ had no obligation to inform him about the potential form of relief. The BIA also held that it lacked jurisdiction to consider whether CJ had a constitutional right to appointed counsel. A three-judge panel denied CJ’s petition for review. C.J.L.G. v. Sessions, 880 F.3d 1122 (9th Cir. 2018). The panel found that CJ had no constitutional right to court appointed counsel and that the IJ had no obligation to inform CJ about SIJS eligibility. You can read my original blog on this case here. I was pretty irate to put it mildly. The petition for rehearing en banc followed.
LEGAL ANALYSIS
The Ninth Circuit held that an IJ is required to inform an immigrant child of apparent eligibility for to apply for any of the benefits enumerated under 8 C.F.R. § 1240.11(a)(2). One of the benefits listed “in this chapter” is SIJ status. C.J.L.G. v. Barr, No. 16-73801, slip op. at *10 (9th Cir. May 3, 2019). The Ninth Circuit held that the “apparent eligibility” standard of 8 C.F.R. § 1240.11(a)(2) is triggered whenever the facts before the IJ raise a “reasonable possibility that the petitioner may be eligible for relief.” Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989). The information that CJ and his mother presented established a reasonable possibility that he was eligible for SIJS.
The government argued that SIJS does not fall under 8 C.F.R. § 1240.11(a)(2) and that even if it does, the regulation is not triggered for SIJS purposes until after the child obtains a state court order. The Ninth Circuit found that a successful SIJS application can lead to relief from removal and they cite to 6 USCIS Policy Manual, pt. J, ch. 4(A) and that the SIJ regulations are among those referenced in 8 C.F.R. § 1245.1(a), (e)(2)(vi)(B)(3). [This is your evergreen reminder to read the regs]! The Ninth Circuit found that to require the child to complete all but the final step for SIJS (i.e. everything but adjustment of status) before the IJ must inform the child about their potential eligibility for relief was ridiculous. The words they used were, “[t]his is a nonsensical approach.” C.J.L.G., slip op. at *13. “To be sure, CJ’s eventual ability to obtain SIJ status depended on future decisions by a state court and USCIS. But the regulation speaks of “apparent eligibility,” not certain entitlement.” Id., at *14.
The next question before the court is, what is the appropriate form of relief in this case? The Ninth Circuit found that when the IJ fails to provide the required advice, the appropriate course is to grant the petition for review; reverse the BIA’s dismissal of the appeal; and remand for a new hearing. The government argued that the IJ could not have granted CJ relief because he did not have a state court order. The Ninth Circuit held that the IJ should have continued the case to allow CJ time to get a state court order. The Ninth Circuit disposes of the potential conflict with the Attorney General’s recent decisions limiting the use of continuances in immigration proceedings in a footnote. I’ll quote it in full:
“The Attorney General recently stated that, in assessing a motion for a continuance, “an immigration judge will generally need an evidentiary submission by the respondent, which should include copies of relevant submissions in the collateral proceeding, supporting affidavits, and the like.” Matter of L-A-B-R-, 27 I. & N. Dec. 405, 418 (A.G. 2018). But that general rule should not prevent the IJ from granting a continuance when, as here, the child is unaware of his apparent eligibility for relief until so advised, and thereafter diligently pursues relief. See id. at 412 (approving tribunals’ use of “context-specific multifactor balancing tests, rather than attempting to craft bright-line, one-size-fits-all definitions”); see also id. at 413 (“The good-cause standard in section 1003.29 requires consideration and balancing of all relevant factors in assessing a motion for continuance to accommodate a collateral matter.”)”.
C.J.L.G., slip op. at *16 & n. 6 (emphasis added). The Ninth Circuit then cites to an unpublished BIA decision in support of its position. In re Zepeda-Padilla, 2018 WL 1897722 at *1-2 (BIA Feb. 16, 2018).
The majority did not address the issue of the right to government appointed counsel for children. In another footnote, they noted that CJ is represented by counsel, so they did not need to address his contention that appointment of counsel is constitutionally required for children. C.J.L.G., slip op. at *17 & n. 7. But that is where the concurrence comes in.
Concurrence by Judge Paez Joined by Judges Fletcher and Berzon
The concurrence agrees with the majority that the IJ has a duty to inform a child about apparent eligibility for SIJS in removal proceedings. But the concurrence would go further, and mandate court appointed counsel for all immigrant children under age eighteen as mandated by the Fifth Amendment. Judge Paez noted that while SIJS status is available for children up to the age of twenty-one, he only considered the right to counsel for indigent children under the age of eighteen because that is the age referenced in the parties’ briefs. C.J.L.G., slip op. at *18 & n. 1 (Paez, J. dissenting). I have to say as a parent of a soon to be twenty-one-year old and a soon to be eighteen-year old, those three years make a huge difference. My soon to be eighteen-year-old is a child and my soon to be twenty-one-year-old is an adult (albeit a young adult). I would urge anyone bringing this case to raise the age to twenty-one.
I found the concurrence here heartening because it is very obvious that the Ninth Circuit (at least these three judges) are monitoring what is happening in this country. In the concurrence Judge Paez repeatedly cites to Transactional Records Access Clearinghouse (TRAC) studies. For example, a 2014 TRAC study shows that in a ten-year period the United States issued removal orders for over 27,000 children without counsel.
Here is where the concurrence gets critical for our purposes as advocates. First, immigrant children in proceedings have Fifth Amendment due process rights. Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1160 (9th Cir. 2004). Second, and I did not know this, “A violation of the right to retained counsel is uniquely important, and thus we do not require a showing of prejudice to grant relief.” C.J.L.G., slip op. at *20 (Paez, J. concurring). Normally, in making a due process argument, the petitioner must establish that they have been prejudiced by the due process violation. For example, a noncitizen in removal must show prejudice when arguing ineffective assistance of counsel. But there is no need to show prejudice when arguing that denial of counsel. “This in is part because “denial of counsel more fundamentally affects the whole of a proceeding than ineffective assistance of counsel.”” Id., at *21 (Paez, J. concurring) (internal cites omitted).
The concurrence notes that in other civil contexts where children face grave consequences, they have due process rights to appointed counsel and they list a bunch of cases. I am citing a few of them, because it is interesting to note that children have been given appointed counsel in most other important civil proceedings for the past fifty years. In re Gault, 387 U.S. 1 (1967) (civil juvenile delinquency proceedings that may result in commitment); Kent v. United States, 383 U.S. 541 (1966) (civil proceedings seeking to transfer children to adult criminal courts); In re Roger S., 569 P.2d 1286 (Cal. 1977) (civil proceedings for a child’s commitment to a state hospital).
Then the concurrence gets angry. They note that at oral argument the government refused to concede it would ever be appropriate to appoint counsel for a child in removal proceedings including a two-year-old alone in court or a “baby in a basket.”
“I cannot ignore this mockery of judicial and administrative processes. There are thousands of very real children in removal proceedings without counsel. Date from August 2017 shows that four out of every ten children whose cases began in 2016 were unrepresented, where there were over 33,000 new cases – and that number rose to three out of every four children whose cases began in 2017, where there were about 19,000 new cases.”
C.J.L.G. slip op. at *23 (Paez, J. concurring). Judge Paez quotes TRAC for these numbers. He notes that many of these children are fleeing persecution.
Judge Paez analyzes the case under Mathews v. Eldridge due process test: (1) What is the private interest that will be affected by official action? (2) What is the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any of additional or substitute procedural safeguards? And, (3) What is the Government’s interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail? Mathews, 424 U.S. 319, 335 (1976). Judge Paez notes that under the Mathews test the courts look at the structural procedures that exist and those that are sought by a category of claimants, not the procedures applied in a single claimant’s case.
First, the private interest affected is the loss of a significant liberty interest. When a child may be deported, that interest is especially great. When a child is seeking asylum, withholding, or CAT relief “the private interest could hardly be greater”. C.J.L.G., slip op. at *26 (Paez, J. concurring). Well, when you put it that way…….
Second, is the risk of error and the adequacy of the challenged procedures. Here, as you may imagine, Judge Paez is incensed. Judge Paez cites TRAC again and notes that children represented by attorneys are five times more likely to secure immigration benefits than unrepresented children. Here are the numbers: “From 2005 to 2014, only 10% of unrepresented children concluded their proceedings with an order permitting them to remain in the U.S., compared to 47% of represented children.” C.J.L.G. slip op. at *26 (Paez, J. concurring). Judge Paez then cites to CJ’s own case. He was denied relief despite having a plausible asylum case, withholding case, CAT case, and SIJS case. Judge Paez then notes the complexity of immigration law by itself. “[I]t has been recognized as “second only to the Internal Revenue Code in complexity.” Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987).” C.J.L.G., slip op. at *30 (Paez, J. concurring). I have started thinking that perhaps the complexity of immigration law in and of itself, is a due process violation (but let’s leave that for another day). Second, there is an asymmetry of counsel as trained government attorneys serve as prosecutors in every removal case while the vast majority of children are unrepresented.
Judge Paez notes that the existing procedures are inadequate. Under the INA an immigrant has the privilege of being represented by counsel of their choosing at no expense to the government. INA § 240(b)(4)(A). The privilege of paying for counsel or the luck of acquiring pro bono counsel does not replace a right to counsel in removal proceedings. Second, an immigration judge does not replace an attorney in removal proceedings. The immigration judge is supposed to be a neutral fact-finder, and immigration proceedings are adversarial in nature as anyone who has ever been in an immigration court knows all too well. Moreover, the Attorney General recently vacated a BIA decision requiring a full evidentiary hearing for every asylum seeker. Matter of E-F-H-L-, 27 I.&N. Dec. 226 (A.G. 2018) vacating 26 I.&N. Dec. 319 (BIA 2014). “Given this enormous workload, the idea that every unrepresented child in removal proceedings will have a full and fair hearing at which the IJ develops the record strains credulity.” C.J.L.G., slip op. at *32 (Paez, J. concurring). Plus, immigration attorneys do a lot more than creating a record, they also investigate the factual claim and the legal bases for a claim before the hearing. Ibid. “Third, parents are not a substitute for counsel in removal proceedings.” Id., at *33. Here’s the entire argument in one paragraph:
“At bottom, the risk of error in a removal proceeding where an unrepresented child is seeking relief is high. A child faces a maze of exceedingly complex laws in a foreign country and foreign language. The proceedings are lopsided because the government is represented. And the abstract possibility of finding or affording private counsel, the record-development duty of neutral IJs, and the chance that a child will have an adult who does not understand immigration law with him, all fail as procedural safeguards.”
C.J.L.G., slip op. at *35 (Paez, J. concurring).
Judge Paez then considers the third factor of the Mathews test, the burden on the government. But he notes that it is not only a financial consideration. In fact, the government also has an interest in fair proceedings and correct decision. Ibid. He notes that the government already chooses to spend money prosecuting children in removal proceedings. For example, in CJ’s case, five different government attorneys prosecuted him in his five separate hearings. “Providing counsel would be costly to the government, but the government already chooses to undertake similar costs here. It would also lead to fairer, more accurate decisions – decisions that a broader public might view as more legitimate.” Id., at *37. Judge Paez ends his concurrence noting “[s]ending child asylum-seekers back to hostile environments where they may have experienced persecution implicates a forceful liberty interest.” Ibid.
Judge Berzon’s Concurrence
Judge Berzon entered a separate concurrence calling for the court to overturn J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) reh’g en banc denied, 908 F.3d 1157 (9th Cir. 2018). J.E.F.M. dismissed a class action lawsuit filed in district court for immigrant children. The court held that a class action lawsuit was not the appropriate vehicle to consider an individual child’s right to counsel in an immigration proceeding. Judge Berzon argues that by allowing a class action lawsuit, the Ninth Circuit would have a better record to decide whether children in removal proceedings have a right to counsel; whether the right is universal; whether it may be limited to certain categories such as age of the child or whether the child is accompanied by a parent or not.
“We are not answering any of those questions in this en banc proceeding, quite possibly because of qualms concerning fashioning the precise parameters of a right to counsel for minors in a single case. So we shut one door to the courthouse in J.E.F.M. on the promise of keeping another open, only to duck out of that door—for now—as well.”
C.J.L.G., slip op. at *39 (Berzon, J. concurring).
Dissent
Judge Callahan joined by Judge Ikuta dissented here. Judge Callahan argues that the information presented at CJ’s hearing did not create a reasonable possibility that CJ qualified for relief. Accordingly, the IJ did not have any duty to inform him about SIJS. Judge Callahan argues that SIJS is not analogous to the immigrant benefits described in Chapter V. For SIJS status, the INA requires that the child has been declared a dependent of the juvenile court and at the time of the hearing, CJ had not been declared a dependent of the court. Second, the statute requires that the child’s reunification with one or both parents is not viable due to abuse, neglect or abandonment. CJ does not meet this requirement because he has always been in the custody of his mother. The dissent seems to be ignoring the TVPRA. Finally, the DHS secretary must consent to the grant of SIJS. Judge Callahan argues that the majority’s decision overlooks the statute. And, even if, SIJS is a “benefit” contemplated by the statute, CJ had not established apparent eligibility for relief at the time of the hearing. He had not filed for relief in juvenile court. “In sum, at the time of the hearing, CJ had no apparent eligibility for benefits.” C.J.L.G., slip op. at *46 (Callahan, J. dissenting). I think the dissent in this case is important, because if this case goes to the Supreme Court, it will likely be the majority opinion.
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