C.J.L.G., a Juvenile Male v. William Barr

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C.J.L.G., A JUVENILE MALE, No. 16-73801
Petitioner,
Agency No.
v. A206-838-888
WILLIAM P. BARR, Attorney General,
Respondent. OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted En Banc December 10, 2018
San Francisco, California
Filed May 3, 2019
Before: Sidney R. Thomas, Chief Judge, and Susan P.
Graber, M. Margaret McKeown, William A. Fletcher,
Richard A. Paez, Marsha S. Berzon, Johnnie B. Rawlinson,
Consuelo M. Callahan, Sandra S. Ikuta, Jacqueline H.
Nguyen and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz;
Concurrence by Judge Paez;
Concurrence by Judge Berzon;
Dissent by Judge Callahan
2 C.J.L.G. V. BARR
SUMMARY *
Immigration
Granting C.J.L.G.’s petition for review of a Board of
Immigration Appeals’ decision, the en banc court concluded
that the Immigration Judge who ordered C.J. removed erred
by failing to advise him about his apparent eligibility for
Special Immigrant Juvenile (“SIJ”) status, and remanded.
SIJ status provides a path to lawful permanent residency
for at-risk children and requires a child to obtain a state-court
order declaring him dependent or placing him under the
custody of a court-appointed individual or entity. The state
court must find that (1) “reunification with 1 or both . . .
parents is not viable due to abuse, neglect, abandonment, or
a similar basis found under State law;” and (2) it would not
be in the child’s “best interest to be returned to [his] parent’s
previous country.” 8 U.S.C. § 1101(a)(27)(J). After
obtaining a state court order, the child must obtain the
consent of the Secretary of Homeland Security to the
granting of SIJ status by filing an I-360 petition with the
United States Citizenship and Immigration Services
(“USCIS”). If USCIS grants the petition, the child may
apply for adjustment of status, and a visa must be
immediately available when he applies.
The en banc court noted that, under 8 C.F.R.
§ 1240.11(a)(2), an IJ is required to inform a petitioner
subject to removal proceedings of “apparent eligibility to
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
C.J.L.G. V. BARR 3
apply for any of the benefits enumerated in this chapter,” and
observed that this court’s case law provides that the
“apparent eligibility” standard is triggered whenever the
facts before the IJ raise a reasonable possibility that the
petitioner may be eligible for relief.
The en banc court concluded that the information
presented during CJ’s proceedings made it reasonably
possible that he could establish eligibility for SIJ status. In
this respect, the en banc court concluded that (1) his
mother’s comment that CJ’s father left her a long time ago
and CJ’s statement that he had had no paternal contact for
many years demonstrated that reunification with one parent
might be impossible due to abandonment; and (2) the death
threats CJ received from a gang in Honduras when he was
14 years old showed that returning to that country might not
be in his best interest.
The en banc court rejected the government’s contention
that SIJ status is not a form of relief covered by the “apparent
eligibility” standard of 8 C.F.R. § 1240.11(a)(2), explaining
that a successful SIJ application plainly can lead to relief
from removal and that the SIJ regulations are among those
in the referenced subchapter. The en banc court also rejected
the government’s contention that an IJ is only required to
advise a juvenile of potential eligibility for SIJ relief after
the child has obtained a state court order, an approved I-360
petition from USCIS, and an immediately available visa.
The en banc court concluded that this approach would
eviscerate the utility of advice by the IJ and substantially
undermine the core purpose of the IJ’s duty to advise—to
inform a minor of rights and avenues of relief of which he
may not yet be aware.
4 C.J.L.G. V. BARR
The en banc court also observed that, although the IJ
could not have granted CJ relief from removal at the time of
the hearing, she could have continued the proceedings to
allow him to apply for SIJ status. Noting that any eventual
decision to grant or deny a continuance is within the
discretion of the IJ, the en banc court stated that the IJ should
exercise that decision in light of CJ’s apparent eligibility for
SIJ status and may now also consider how far CJ has
proceeded in the SIJ process. Therefore, the en banc court
granted the petition for review, vacated the removal order,
and remanded for a new hearing before the IJ.
Finally, noting that CJ will be represented by counsel in
future administrative proceedings, the en banc court stated
that it need not address his contention that appointment of
counsel for minors in removal proceedings is
constitutionally required.
Concurring, Judge Paez wrote separately because he
disagreed with the majority’s decision to remain silent on the
issue of a child’s right to counsel in immigration removal
proceedings. Judge Paez would reach the fundamental
question raised in this proceeding: whether the Fifth
Amendment’s guaranty of due process entitles children to
appointed counsel in immigration proceedings. He would
hold that it does, for indigent children under age 18 who are
seeking asylum, withholding of removal, relief under the
Convention Against Torture, or another form of relief for
which they may be eligible, such as SIJ status.
Concurring in part and concurring in the judgment,
Judge Berzon wrote to note that consideration of the right to
counsel question for minors in removal proceedings has been
unnecessarily hindered by this court’s decisions in J.E.F.M.
v. Lynch, 837 F.3d 1026 (9th Cir. 2016), reh’g en banc
C.J.L.G. V. BARR 5
denied, 908 F.3d 1157 (9th Cir. 2018) (Berzon, J., dissenting
from denial of rehearing en banc), which held that the right
to counsel question must be considered in a petition for
review from an individual child’s removal proceedings, and
not through a class action filed in the district court. Judge
Berzon wrote that a more developed factual record than is
available here would have given the court more information
on which to decide whether minors in removal proceedings
have a right to counsel and whether that right is universal or
may be limited to certain categories of cases. Judge Berzon
wrote that the court was 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. Accordingly,
Judge Berzon observed that the court 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.
Dissenting, Judge Callahan, joined by Judge Ikuta, wrote
that she must dissent because the majority required more of
the IJ than was required or appropriate. Judge Callahan
would hold that the information presented at CJ’s hearing
before the IJ did not create a reasonable possibility that CJ
qualified for relief. In this respect, Judge Callahan wrote that
this court has explained that an IJ is required to inform an
alien only of his “apparent eligibility” at the time of the
hearing.
Accordingly, Judge Callahan concluded that, even
assuming that SIJ status is a “benefit” contemplated by this
regulation, there was no such “apparent eligibility” at the
time of CJ’s hearing: CJ had not commenced any
proceeding in a juvenile court, nor demonstrated any need or
reason to do so. Nor was there any evidence indicating
whether the Secretary of Homeland Security would consent
6 C.J.L.G. V. BARR
to an application by CJ, or that a visa was immediately
available.
COUNSEL
Ahilan T. Arulanantham (argued), ACLU Foundation of
Southern California, Los Angeles, California; Aaron E.
Millstein and Theodore J. Angelis, K&L Gates LLP, Seattle,
Washington; Glenda M. Aldana Madrid and Matt Adams,
Northwest Immigrant Rights Project, Seattle, Washington;
Stephen Kang, ACLU Immigrants’ Rights Project, San
Francisco, California; for Petitioner.
Scott G. Stewart (argued) and W. Manning Evans, Senior
Litigation Counsel; John W. Blakeley, Assistant Director;
Joseph H. Hunt, Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.
Nareeneh Sohbatian and John E. Schreiber, Winston &
Strawn LLP, Los Angeles, California; Jonathan S.
Goldstein, Winston & Strawn LLP, San Francisco,
California; for Amicus Curiae Immigrant Legal Resource
Center.
Anne Dutton, Eunice Lee, Karen Musalo, and Blaine
Bookey, Center for Gender & Refugee Studies, San
Francisco, California, for Amicus Curiae Center for Gender
& Refugee Studies.
Robert A. Brundage and Lucy Wang, Morgan Lewis &
Bockius LLP, San Francisco, California; Daniel Grunfeld,
Morgan Lewis & Bockius LLP, Los Angeles, California; for
C.J.L.G. V. BARR 7
Amici Curiae Dr. Jennifer Woolard and Dr. Laurence
Steinberg.
Lee Brand and Harrison “Buzz” Frahn, Simpson Thacher &
Bartlett LLP, Palo Alto, California, for Amici Curiae Former
Federal Immigration Judges.
David W. Schecter and Brian A. Procel, Miller Barondess
LLP, Los Angeles, California, for Amici Curiae Professor
Kevin Lapp, Associate Professor of Law, Loyola Law
School, et al.
Eric Tuttle, Munger Tolles & Olson LLP, Los Angeles,
California; Jonathan Meltzer, Munger Tolles & Olson LLP,
Washington, D.C.; for Amici Curiae Constitutional Law and
Procedure Scholars Judith Resnick and Brian Soucek.
8 C.J.L.G. V. BARR
OPINION
HURWITZ, Circuit Judge:
A gang held 14-year-old C.J.L.G. (“CJ”) at gunpoint in
his native Honduras and threatened to kill his family after he
rejected recruitment attempts. CJ and his mother Maria then
fled their homeland and sought asylum in the United States.
Although finding CJ credible, an immigration judge (“IJ”)
denied his request for asylum and ordered him removed.
The Board of Immigration Appeals (“BIA”) dismissed CJ’s
appeal.
CJ petitions for review, arguing, among other things, that
the IJ erred by failing to recognize he was an at-risk child
potentially eligible for relief as a Special Immigrant Juvenile
(“SIJ”) and to so advise him. Because we conclude that the
IJ erroneously failed to advise CJ about his eligibility for SIJ
status, we grant the petition.
I. Background
In June 2014, CJ and Maria were apprehended in Texas
after entering the country without inspection. Because
Maria was the subject of a prior removal order, separate
removal proceedings were instituted against CJ.
At his initial hearing before an IJ in November 2014, CJ
appeared with Maria but without counsel. When the IJ
informed them that she would “not appoint an attorney for
[CJ]” but that they had “the right to find an attorney . . . at
[their] own expense,” Maria said she did not “have money to
pay for an attorney” but requested time to find one. Maria
was unable to find counsel despite several continuances, and
ultimately agreed to represent CJ herself. When Maria
explained that CJ feared returning to Honduras “because of
C.J.L.G. V. BARR 9
the gangs,” the IJ gave her an asylum application and
questioned her about her son. In response to one question,
Maria stated that CJ’s father had left her long ago.
In June 2015, Maria filed the asylum application on CJ’s
behalf. She also sought withholding of removal and
protection under the Convention Against Torture. The IJ
accepted the application and set CJ’s case for a hearing.
At that hearing, CJ testified that gang members
threatened to kill him and other family members on three
occasions after he rejected recruitment attempts. On the
third occasion, CJ was held at gunpoint and given one day to
decide whether to join the gang; he and Maria then fled
Honduras. CJ testified that it had been “many years” since
he had any contact with his father.
The IJ expressly found CJ credible but denied his
applications for relief from removal. On appeal to the BIA,
now represented by counsel, CJ contended that the IJ had
erred by failing to appoint counsel or advise him about SIJ
status. The BIA dismissed the appeal, concluding that,
although the IJ must “inform the respondent of any apparent
forms of relief from removal,” CJ had not established
eligibility for SIJ status. The BIA also found 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, 1150–51 (9th Cir.
2018). The panel held that CJ had no right to appointed
counsel and that the IJ did not err in failing to inform CJ
10 C.J.L.G. V. BARR
about his potential ability to obtain SIJ status. 1 Id. at 1147–
50. A majority of active judges voted to grant CJ’s petition
for rehearing en banc, and the panel opinion was vacated.
C.J.L.G. v. Sessions, 904 F.3d 642, 642 (9th Cir. 2018).
II. Discussion
A.
An IJ is required to inform a petitioner subject to removal
proceedings of “apparent eligibility to apply for any of the
benefits enumerated in this chapter.” 8 C.F.R.
§ 1240.11(a)(2). One of the benefits listed “in this chapter”
is SIJ status. Id. § 1245.1(a), (e)(2)(vi)(B)(3).
Congress created SIJ status in 1990 to provide a path to
lawful permanent residency for certain at-risk children.
Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.
4978, 5005–06; see Bianka M. v. Superior Court, 423 P.3d
334, 337–38 (Cal. 2018). A child seeking SIJ protection
must first obtain a state-court order declaring him dependent
or placing him under the custody of a court-appointed
“individual or entity.” 8 U.S.C. § 1101(a)(27)(J)(i). The
state court issuing the order must find that (1) “reunification
with 1 or both . . . parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law;” and
(2) it would not be in the child’s “best interest to be returned
1
Judge Owens concurred, noting that the opinion “does not hold, or
even discuss, whether the Due Process Clause mandates counsel for
unaccompanied minors.” 880 F.3d at 1151 (Owens, J., concurring)
(citing J.E.F.M. v. Lynch, 837 F.3d 1026, 1039–41 (9th Cir. 2016)
(McKeown, J., joined by M. Smith, J., specially concurring)).
C.J.L.G. V. BARR 11
to [his] parent’s previous country.” Id. § 1101(a)(27)(J)(i)–
(ii). 2
After obtaining a state court order, the child must obtain
the consent of the Secretary of Homeland Security to the
granting of SIJ status by filing an I-360 petition with the
United States Citizenship and Immigration Services
(“USCIS”). See id. § 1101(a)(27)(J)(iii); 6 USCIS Policy
Manual, pt. J, ch. 2(A), ch. 4(E)(1) (current as of Apr. 19,
2019). In reviewing an I-360 petition, “USCIS relies on the
expertise of the juvenile court . . . and does not reweigh the
evidence,” but 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); see H.R. Rep.
No. 105-405, at 130 (1997) (Conf. Rep.).
If USCIS grants the petition, the child may apply for
adjustment of status. 6 USCIS Policy Manual, pt. J,
ch. 4(A). A “visa must be immediately available” when he
applies. 8 C.F.R. § 1245.2(a)(2)(i)(A); see 8 U.S.C.
§ 1153(b)(4) (establishing quota for SIJ visas). A child who
is not in removal proceedings applies to USCIS for
adjustment of status, see 8 C.F.R. § 245.2(a)(1), but one in
removal proceedings must seek it from the IJ, id.
§ 1245.2(a)(1)(i); 6 USCIS Policy Manual, pt. J, ch. 4(A)
n.2. If the child was the subject of a removal order before
2
The dissent accurately notes that, at the time of his IJ hearing, CJ
was with his mother and not adjudicated a dependent. Before 2008,
regulations required the state court to find the minor eligible for foster
placement before SIJ status could be awarded. 8 C.F.R. § 204.11(c)(4)–
(5). But in that year, Congress replaced the foster placement requirement
with the requirement that reunification with at least one parent be not
viable. See William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044, 5079.
12 C.J.L.G. V. BARR
obtaining SIJ status, he cannot adjust status unless the IJ also
vacates the removal order. See 8 U.S.C. § 1182(a)(9)(A)(ii)
(providing that a person under a removal order is
inadmissible). The IJ has discretion both in deciding
whether to reopen removal proceedings, see 8 C.F.R.
§ 1003.2(a), and in whether to grant a subsequent adjustment
application, see 8 U.S.C. § 1255(a).
B.
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). A failure to advise can be excused only
when the petitioner’s eligibility for relief is not “plausible.”
See United States v. Rojas-Pedroza, 716 F.3d 1253, 1265–
67 (9th Cir. 2013) (finding no prejudice from the IJ’s failure
to advise about eligibility to apply for voluntary departure
because it was not “plausible” IJ would grant it); United
States v. Arrieta, 224 F.3d 1076, 1082–83 (9th Cir. 2000)
(finding prejudice from the IJ’s advisement failure because
excludability waiver under 8 U.S.C. § 1182(h) was
“plausible”).
The information presented during CJ’s proceedings
made it reasonably possible that he could establish eligibility
for SIJ status. Maria’s comment that CJ’s father left her “a
long time ago,” and CJ’s statement that he had no paternal
contact for “many years” demonstrated that reunification
with one parent might be impossible “due to . . .
abandonment.” See 8 U.S.C. § 1101(a)(27)(J)(i). And CJ’s
testimony about the death threats he received from the gang
showed that returning to Honduras might not be in his “best
interest.” See id. § 1101(a)(27)(J)(ii). Indeed, once he
became aware of his potential eligibility for SIJ status, CJ
C.J.L.G. V. BARR 13
obtained the required state-court order and has now filed an
I-360 petition. 3
The government does not suggest that it was not
reasonably possible at the time of CJ’s hearing that he could
obtain SIJ status or that the IJ was not aware of the facts
suggesting CJ’s eligibility for relief. Rather, it contends that
SIJ status is not a form of relief from removal covered by
8 C.F.R. § 1240.11(a)(2). That argument fails. A successful
SIJ application plainly can lead to relief from removal, see
6 USCIS Policy Manual, pt. J, ch. 4(A), and SIJ regulations
are among those in the referenced subchapter, 8 C.F.R.
§ 1245.1(a), (e)(2)(vi)(B)(3).
In the alternative, the government argues that the IJ is
only required to advise a juvenile of potential eligibility for
SIJ relief after the child has obtained a state-court order, an
approved I-360 petition from USCIS, and an immediately
available visa. “We do not read the regulation so grudgingly.
[It] obviously is meant to prompt the IJ to help an alien
explore legal avenues of relief that might not be apparent to
him or his attorney.” Moran-Enriquez, 884 F.2d at 423. To
adopt the government’s position here would require a minor
to complete all but the final step for SIJ status—seeking
adjustment of status from the IJ—before triggering the IJ’s
duty to advise him of SIJ eligibility. This is a nonsensical
approach. It would eviscerate the utility of advice by the IJ
and substantially undermine the core purpose of the IJ’s duty
3
We GRANT CJ’s motion for judicial notice of the state-court
order, but DENY his other requests for judicial notice (Dkt. 133).
14 C.J.L.G. V. BARR
to advise—to inform a minor of rights and avenues of relief
of which he may not yet be aware. 4
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. 8 C.F.R. § 1240.11(a)(2). We have
made plain that “[t]he regulations do not require . . . a
reviewing court to conclude that an alien would certainly
qualify for relief.” Bui v. INS, 76 F.3d 268, 271 (9th Cir.
1996). Thus, in Bui, we held that an IJ was required to advise
Bui about potential eligibility for a waiver of excludability
under 8 U.S.C. § 1182(h) even though the record did not
show he could satisfy every element necessary to obtain
relief. Id. To obtain the waiver, Bui had to show he had a
U.S. citizen or permanent resident relative, and that the
relative would suffer extreme hardship were Bui deported.
Id. And, to adjust his status, Bui needed both the waiver and
an immediately available visa approved by USCIS. Id. at
270–71 (citing 8 U.S.C. §§ 1182(h), 1255(a)). Although the
record contained no evidence of hardship and the
government argued that no visa would be available, the IJ
nonetheless had a duty to advise because the record “raised
an inference of the existence of relatives and the possibility
of relief.” Id. at 271. Indeed, we had previously explained
that the advisement duty “[b]y definition” involves
situations where, as here, the petitioner does not “make a
complete showing of eligibility.” Moran-Enriquez,
4
We are mindful that the duty to advise minors about SIJ status
“places a significant burden on already overburdened Immigration
Judges.” Moran-Enriquez, 884 F.2d at 423. But, “it is a burden clearly
contemplated by the regulation promulgated by the Attorney General”
and the statute passed by Congress. Id.
C.J.L.G. V. BARR 15
884 F.2d at 423; see also Arrieta, 224 F.3d at 1082–83
(holding that failure to advise was prejudicial because,
“although the evidence produced by Mr. Arrieta does not
guarantee that he would have been granted [the] waiver, it
provides the ‘something more’ that makes it plausible that
he would have received one”). 5
C.
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 petitioner’s] appeal of the
IJ’s failure to inform him of this relief, and remand for a new
[ ] hearing.” Bui, 76 F.3d at 271; see also Moran-Enriquez,
884 F.2d at 423 (ordering remand). The government argues
that we should not do so here because the IJ could not have
granted the state court order, the I-360 petition, or a visa
during the removal proceedings that are the subject of this
petition for review. But that was precisely the situation in
Bui and Moran-Enriquez. See Bui, 76 F.3d at 271
(remanding even though Bui might not be able to obtain a
visa); Moran-Enriquez, 884 F.2d at 422–23 (same).
More importantly, although the IJ could not have granted
CJ relief from removal at the time of the hearing, she could
5
We have suggested that advisement may not be required if a
petitioner would be eligible for relief only after a change in the law or a
change in his personal circumstances. See, e.g., United States v. Lopez-
Velasquez, 629 F.3d 894, 901 (9th Cir. 2010) (en banc) (noting that
Lopez could obtain relief “only with a change in law and the passage of
eight months”); United States v. Moriel-Luna, 585 F.3d 1191, 1198 n.2
(9th Cir. 2009) (noting that Moriel-Luna “needed not only time but also
to either marry his U.S.-citizen girlfriend or to have his parents
successfully petition for citizenship”). This is not such a case.
16 C.J.L.G. V. BARR
have continued the proceedings to allow him to apply for SIJ
status. Indeed, the BIA recently held that an IJ should do so
when the child is “actively pursuing” the state-court order. 6
See In re Zepeda-Padilla, 2018 WL 1897722, at *1–2
(B.I.A. Feb. 16, 2018) (unpublished). The record makes
plain that, once CJ was informed of eligibility for that status,
he vigorously—and successfully—pursued the required
order. And, had the IJ granted a continuance while CJ
navigated the SIJ process, he would not currently be subject
to a removal order. Because that order was entered, CJ’s
road to relief has become more difficult; even if he obtains
SIJ status, he can apply for relief only if his removal
proceedings are reopened. See 8 U.S.C. § 1182(a)(9)(A)(ii);
Bonilla v. Lynch, 840 F.3d 575, 589 (9th Cir. 2016)
(explaining that reopening vacates the removal order).
To be sure, any eventual “decision to grant or deny the
continuance is within ‘the sound discretion of the judge.’”
Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009)
(quoting Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247
(9th Cir. 2008) (per curiam)). But the IJ should exercise that
6
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. V. BARR 17
discretion in light of CJ’s apparent eligibility for SIJ status,
something overlooked at the time of his hearing, and may
now also consider how far he has proceeded in the process.
We therefore grant the petition for review, vacate the
removal order, and remand for a new hearing before the IJ. 7
PETITION GRANTED.
PAEZ, Circuit Judge, joined by FLETCHER and BERZON,
Circuit Judges, concurring:
I concur in the majority’s opinion—as far as it goes. I
agree that the Immigration Judge (“IJ”) had a duty to advise
CJ of his apparent eligibility for Special Immigrant Juvenile
(“SIJ”) relief. I write separately because I disagree with the
majority’s decision to remain silent on the issue of a child’s
right to counsel in immigration removal proceedings. As the
majority acknowledges, CJ’s asylum, withholding of
removal, and Convention Against Torture (“CAT”) claims
may come back to this court. I would reach the fundamental
question raised in this proceeding: whether the Fifth
Amendment’s guaranty of due process entitles children to
7
Because CJ will be represented by counsel in future administrative
proceedings, we need not address his contention that appointment of
counsel is constitutionally required. Because we have vacated the order
of removal, we also do not address the denial of CJ’s asylum,
withholding of removal, and CAT claims. If a new order of removal is
entered, these issues (including any claim based on denial of counsel
remaining after new proceedings before the IJ) can be addressed in a
future petition for review. See Singh v. Gonzales, 499 F.3d 969, 975 (9th
Cir. 2007) (holding that the court was not barred from reviewing a claim
on a successive petition for review where “[t]here has never been a final
judgment on the merits with respect” to that claim).
18 C.J.L.G. V. BARR
appointed counsel in immigration proceedings. I would hold
that it does, for indigent children under age 18 who are
seeking asylum, withholding of removal, CAT, or another
form of relief for which they may be eligible, such as SIJ
status. 1
I.
The majority states that because CJ now has counsel, we
need not address his argument that appointed counsel is
constitutionally required for indigent children in removal
proceedings. That was the critical issue raised in the petition
for rehearing en banc. In J.E.F.M. v. Lynch, we stated that
the only proper way for immigrant children to pursue their
right to counsel claims was by exhausting the administrative
process of their removal orders and then seeking review in
federal court. 837 F.3d 1026, 1038 (9th Cir. 2016).
“Following discussion at oral argument, to facilitate a test
case,” the government provided counsel in J.E.F.M. with
“notice of any minor without counsel that the government is
aware of ordered removed by an immigration judge
following a merits hearing.” Id. at 1037 n.10. We described
such a case as one where “a right-to-counsel claim [would
be] teed up for appellate review.” Id. at 1038. Now, we have
1
I consider the right to counsel for indigent children under age 18
because that is the age referenced in the parties’ briefs. See Petitioner’s
Opening Brief at 24 n.9 (“This country’s legal systems use the age of 18
more consistently than any other when marking the boundary between
childhood and adulthood.”); Respondent’s Answering Brief at 38
(interpreting CJ’s argument to be for children under 18 to receive the
right to counsel). I recognize, however, that immigration law applies age
21 as the boundary between eligibility for SIJ status or asylum status as
the “derivative” of a parent’s successful asylum application. See, e.g., 8
U.S.C. § 1101(b)(1), Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1159
(9th Cir. 2004).
C.J.L.G. V. BARR 19
that case, and the majority inexplicably punts the question
yet again.
Such cases are extremely difficult to bring, and I am
aware of only one other in this circuit. See id. at 1037.
About fifteen years ago, in Guzman-Heredia v. Gonzales,
No. 04-72769 (9th Cir.), a child appeared pro se and was
ordered removed. J.E.F.M., 837 F.3d at 1037. Pro bono
counsel raised the issue of the child’s right to counsel before
the Board of Immigration Appeals (“BIA”), but the case
ultimately settled. Id. Since then, thousands of
unrepresented children have been ordered removed.
Transactional Records Access Clearinghouse,
Representation for Unaccompanied Children in
Immigration Court (Nov. 25, 2014),
http://trac.syr.edu/immigration/reports/371/_(tracking over
27,000 children without counsel ordered removed in a ten-
year span). 2 Until CJ’s case arose through the J.E.F.M.
discovery process, only one other child seeking appointed
counsel had made it to this court of appeals. Because of
children’s lack of understanding of the immigration and
appellate systems, as well as their youthful emotional and
intellectual maturity levels, this is unsurprising.
2
Transactional Records Access Clearinghouse (“TRAC”), a
nonpartisan multi-year project affiliated with Syracuse University,
reviews and presents data based on information from the government.
Transactional Records Access Clearinghouse, About the Project,
https://trac.syr.edu/immigration/about.html (last visited Feb. 27, 2019).
The data reflects fiscal years, rather than calendar years. See, e.g.,
Transactional Records Access Clearinghouse, Children: Amid a
Growing Court Backlog Many Still Unrepresented (Sept. 28, 2017),
https://trac.syr.edu/immigration/reports/482/.
20 C.J.L.G. V. BARR
II.
Immigrant children “in deportation proceedings are
entitled to the fifth amendment guaranty of due process.”
Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1160 (9th Cir.
2004) (internal quotation omitted). This has been true “[f]or
over one hundred years.” Id. at 1161 (citing Yamataya v.
Fisher, 189 U.S. 86 (1903)). Indeed, “every individual in
removal proceedings is entitled to a full and fair hearing.”
Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (en
banc) (citing Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir.
2000)); see also 8 U.S.C. § 1229a(b)(4)(B). Due process
rights persist regardless of whether the immigrant entered
unlawfully, Zadvydas v. Davis, 533 U.S. 678, 693 (2001),
was apprehended soon after entry, United States v. Raya-
Vaca, 771 F.3d 1195, 1202–03 (9th Cir. 2014), or has
conceded removability and then seeks relief, see, e.g.,
Morgan v. Mukasey, 529 F.3d 1202, 1205, 1211 (9th Cir.
2008).
A violation of the right to retained counsel is uniquely
important, and thus we do not require a showing of prejudice
to grant relief. Generally, immigrants must show prejudice
when they argue a due process violation. See Tamayo-
Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013). But
“an individual who is wrongly denied the assistance of
counsel at the merits hearing need not show prejudice” at all.
Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir.
2018) (citations omitted) (contrasting removal, i.e. merits,
hearings from other interactions an immigrant may have
with government agents); see, e.g., Montes-Lopez v. Holder,
694 F.3d 1085, 1090 (9th Cir. 2012) (holding there was no
need to show prejudice where an IJ denied an immigrant his
right to counsel by failing to grant a continuance due to the
absence of his retained counsel); cf. Acewicz v. I.N.S.,
C.J.L.G. V. BARR 21
984 F.2d 1056, 1062 (9th Cir. 1993) (recognizing that
infringements of the right to counsel are prejudicial where
counsel “could have better marshalled specific facts or
arguments in presenting the petitioner’s case for asylum or
withholding of deportation” (citation omitted)). This is in
part because “denial of counsel more fundamentally affects
the whole of a proceeding than ineffective assistance of
counsel.” Montes-Lopez, 694 F.3d at 1092 (noting that “the
absence of counsel can change an alien’s strategic decisions,
prevent him or her from making potentially-meritorious
legal arguments, and limit the evidence the alien is able to
include in the record”). 3
“The importance of counsel, particularly in asylum cases
where the law is complex and developing, can neither be
overemphasized nor ignored.” Reyes-Palacios v. I.N.S.,
836 F.2d 1154, 1155 (9th Cir. 1988). For immigrant
children, that is especially true. In Jie Lin v. Ashcroft, we
held that a child was denied effective assistance of counsel,
in violation of due process, by counsel’s inept performance.
377 F.3d 1014, 1034 (9th Cir. 2004). There, the counsel’s
“lack of preparation prevented her from researching and
presenting basic legal arguments fundamental to the asylum
3
Other circuits have reached the same conclusion. See Leslie v.
Attorney Gen., 611 F.3d 171, 174–75 (3d Cir. 2010) (holding there was
no need to show prejudice where IJ failed to inform immigrant of the
availability of free legal services); Montilla v. I.N.S., 926 F.2d 162, 169
(2d Cir. 1991) (declining to add a prejudice requirement where an IJ
failed to notify an immigrant of his right to counsel and to provide him
with a list of free legal services); Castaneda-Delgado v. I.N.S., 525 F.2d
1295, 1300–01 (7th Cir. 1975) (rejecting the government’s argument that
immigrants must show prejudice when they had been given a
continuance of less than 48 hours after being informed of the right to
obtain counsel); Cheung v. I.N.S., 418 F.2d 460, 464 (D.C. Cir. 1969)
(holding there was no need to show prejudice when immigrant was given
inadequate time to consider retaining counsel).
22 C.J.L.G. V. BARR
claim” and “her lack of investigation left her unable to
present critical facts to support Lin’s claim.” Id. at 1024; see
also id. at 1024–27. CJ’s case poses the question: If an
attorney’s failure to investigate and research her child
client’s case can be a Fifth Amendment violation, id. at
1024, then how can a child without any counsel have a
proceeding that comports with due process?
In other civil contexts where children face grave
consequences, courts and legislatures have already answered
this question: children have due process rights to appointed
counsel. See, e.g., In re Gault, 387 U.S. 1, 36–37 (1967)
(civil juvenile delinquency proceedings that may result in
commitment); Kent v. United States, 383 U.S. 541, 561
(1966) (civil proceedings seeking to transfer children to
adult criminal courts); In re Roger S., 569 P.2d 1286, 1296
(Cal. 1977) (civil proceedings for a child’s commitment to
state hospital); see also Cal. Welf. & Inst. Code § 366.26(f)
(child’s right to counsel in hearing terminating parental
rights); Tex. Fam. Code Ann. § 107.012 (same).
Despite these background principles, at oral argument,
the government refused to concede it would ever be
appropriate to appoint counsel in order to have a
“full and fair” deportation proceeding, including if a
hypothetical two-year-old child were alone in court.
Recording of Oral Argument at 29:41–32:47, C.J.L.G. v.
Barr, No. 16-73801 (9th Cir. Dec. 10, 2018),
https://www.ca9.uscourts.gov/media/view_video.php?pk_v
id=0000014799 (responding negatively to inquiries about
right to appointed counsel for a three-year-old, a two-year-
old, and a baby in a basket).
C.J.L.G. V. BARR 23
I cannot ignore this mockery of judicial and
administrative processes. There are thousands of very real
children in removal proceedings without counsel. Data 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. Transactional Records
Access Clearinghouse, Children: Amid a Growing Court
Backlog Many Still Unrepresented (Sept. 28, 2017),
https://trac.syr.edu/immigration/reports/482/. Many of them
are fleeing persecution. CJ is fleeing threats from gangs, and
his case demonstrates a child’s need for counsel in removal
proceedings so that the proceedings may be constitutionally
“full and fair,” especially where the child’s proceedings are
made even more complex by virtue of the child’s potential
eligibility for relief through SIJ status or asylum. Oshodi,
729 F.3d at 889.
III.
Where due process interests are at stake in a child’s
removal proceedings, this court looks to the familiar test
formulated in Mathews v. Eldridge, 424 U.S. 319, 335
(1976). See Flores-Chavez, 362 F.3d at 1160. The Mathews
test recognizes three factors:
First, the private interest that will be affected
by the official action; second, 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 finally,
the Government’s interest, including the
function involved and the fiscal and
administrative burdens that the additional or
24 C.J.L.G. V. BARR
substitute procedural requirement would
entail.
424 U.S. at 335.
When determining whether there is a right to counsel in
civil proceedings, like here, the court must “set [the] net
weight” of those three factors “against the presumption that
there is a right to appointed counsel only where the indigent,
if he is unsuccessful, may lose his personal freedom.”
Lassiter v. Dep’t of Social Servs. of Durham Cty., 452 U.S.
18, 27 (1981). The Lassiter presumption is rebuttable. Id.
at 31.
Turner v. Rogers, 564 U.S. 431, 446–48 (2011) further
clarified the Mathews test for assessing whether due process
requires counsel in civil proceedings. First, courts should
look to whether the critical question at issue in the cases is
straightforward. Id. (noting that the question of a
defendant’s indigence in a contempt proceeding is
straightforward). Second, courts should consider whether
there is an asymmetry of counsel. Id. at 446–47. Where one
side is represented, it “could make the proceedings less fair
overall, increasing the risk” of an erroneous decision. Id.
at 447. Third, courts should look to the substitute procedural
safeguards, such as adequate notice and a fair opportunity to
present one’s case. Id. at 447–48.
The test established in Mathews, elaborated upon in
Lassiter and Turner, and applied in many other cases,
requires courts to look at structural procedures that exist and
those that are sought by a category of claimants—not the
procedures applied in a single claimant’s case. For example,
when addressing the three factors in Mathews, the Court
focused on the general social security disability benefit
recipient. In assessing the private interest, the Court used
C.J.L.G. V. BARR 25
terms such as “a recipient” or “a [disabled] worker” and
considered the average delay in payment of benefits.
Mathews, 424 U.S. at 340–42; see also Turner, 564 U.S. at
446–49 (examining, generally “an indigent’s right to paid
counsel” in a contempt proceeding for failing to pay child
support). In Flores-Chavez, we applied the Mathews test to
determine whether notice of a child’s removal proceedings
must be provided to the adult with custody of the child.
362 F.3d at 1161. Under the first and third factors, we
looked only at immigrant children generally, not the
particular child’s interests. Id. at 1161–62. Under the
second factor, we treated Flores’s case as “demonstrat[ive],”
but we did not limit ourselves to Flores’s facts. Id. at 1161.
I analyze the Mathews factors, with consideration of the
Lassiter presumption and Turner factors, to assess the right
to counsel for children under age 18 in removal proceedings,
and I treat CJ’s particular case as “demonstrative.”
A.
First, the private interest affected is “the loss of a
significant liberty interest.” Flores-Chavez, 362 F.3d
at 1161. Courts have long recognized that “deportation is a
penalty—at times a most serious one.” Bridges v. Wixon,
326 U.S. 135, 154 (1945); see also id. at 164 (Murphy, J.,
concurring) (“The impact of deportation upon the life of an
alien is often as great if not greater than the imposition of a
criminal sentence.”).
When a child may be deported, the interest is especially
great. See Jie Lin, 377 F.3d at 1033 (accounting for a
“minor’s age, intelligence, education, information, and
understanding and ability to comprehend” in removal
proceedings). For an immigrant seeking asylum,
withholding of removal, or CAT protection, the liberty
26 C.J.L.G. V. BARR
interest is greater still. Oshodi, 729 F.3d at 894 (noting, “the
private interest could hardly be greater”). The impact of
deportation could be persecution, including potential police
beatings, torture, and sexual assault as in Oshodi, id. at 886,
harm to a child and his family for failure to comply with a
coercive government practice, as alleged in Jie Lin, 377 F.3d
at 1021, or gun violence at the hands of gang members as in
CJ’s case.
A child in removal proceedings, especially a child with
a claim for asylum, withholding of removal, or CAT relief,
has a significant liberty interest. The first Mathews factor
weighs in favor of CJ.
B.
The second factor in Mathews is the risk of error and
adequacy of the challenged procedures.
Risk of Error
At the outset, the risk of error for children without
counsel is high. Pro se children in immigration proceedings
fare far worse than represented children. With counsel,
children are nearly five times more likely to secure
immigration benefits. 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. 4 Transactional Records
Access Clearinghouse, New Data on Unaccompanied
Children in Immigration Court, Table 5 (July 15, 2014),
http://trac.syr.edu/immigration/reports/359/. The disparity
4
Courts have looked to statistics in recognizing a right to counsel in
the past. See In re Gault, 387 U.S. at 22.
C.J.L.G. V. BARR 27
in outcomes for represented and unrepresented children was
growing before the present administration. From 2012–
2014, only 15% of unaccompanied children without an
attorney were able to legally remain in the U.S., compared
to 73% who had an attorney. Transactional Records Access
Clearinghouse, Representation for Unaccompanied
Children in Immigration Court (Nov. 25, 2014),
http://trac.syr.edu/immigration/reports/371/.
CJ’s own case serves as an example. He was denied
relief despite having plausible asylum, withholding of
removal, and CAT claims that counsel could have
developed, in addition to seeking a continuance to pursue SIJ
status, as the majority explains. To start, with respect to his
asylum, withholding of removal, and CAT claims, CJ has a
strong argument that he suffered past persecution because he
was threatened multiple times, including once with a pistol
pointed at his head. See Ruano v. Ashcroft, 301 F.3d 1155,
1160 (9th Cir. 2002) (finding past persecution where
immigrant was “closely confronted” by men he knew to be
armed). That the threats were perpetrated by gang members
does not foreclose the possibility of immigration relief. See
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir.
2013) (holding that witnesses who testify against gang
members may constitute a particular social group). CJ’s
hearing testimony, which the IJ found credible, was brief.
With a more fully developed record, it could become clearer
whether the persecution was based on a protected status. See
Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir.
2009) (noting that “simply asking the alien whether he has
‘anything to add in support of his claim’” is insufficient
record development (quoting Colmenar, 210 F.3d at 972)).
28 C.J.L.G. V. BARR
As amici, former IJs insist that the statistical data is not
random, and the presence of counsel results in the different
outcomes:
In amici’s experience, only counsel can
provide the time, commitment, and expertise
to develop a child’s case such that a full and
fair hearing consistently takes place. And as
amici observed every day from the bench, all
else being equal, professional representation
is the single largest factor in whether a minor
successfully navigates the immigration court
process.
Amicus Curiae Brief of Former Federal Immigration Judges
at 12.
And this makes sense. “A child’s age is far more than a
chronological fact.” J.D.B. v. North Carolina, 564 U.S. 261,
272 (2011) (quotation omitted) (holding that a child’s age
informs the Miranda custody analysis). A psychological
study in the criminal context demonstrates that children,
compared to adults, have less of an understanding of court
procedures, their own rights, and the risks of their current
circumstances, as well as less of an ability to reason about
relevant information. Amicus Brief of Dr. Jennifer Woolard
and Dr. Laurence Steinberg at 9 (citing T. Grisso et al.,
Juveniles’ competence to stand trial: A comparison of
adolescents’ and adults’ capacities as trial defendants,
27 Law and Human Behavior 333–63 (2003)). Participants
ages 15 and younger in such a study performed comparably
to “adults who are found incompetent to stand trial.” Id.
“The child requires the guiding hand of counsel at every step
in the proceedings against him.” In re Gault, 387 U.S. at 36
(quotation omitted).
C.J.L.G. V. BARR 29
Moreover, the law already recognizes that children
require more procedural protections than adults in
immigration proceedings. 5 The regulatory framework
“contemplates that no minor alien under age eighteen should
be presumed responsible for understanding his rights and
responsibilities in preparing for and appearing at final
immigration proceedings.” Flores-Chavez, 362 F.3d at
1157. For instance, service on a child, without also serving
the adult who has custody of the child, is not proper. Id. IJs
“shall not accept an admission of removability from an
unrepresented respondent who is incompetent or under the
age of 18 and is not accompanied by an attorney or legal
representative, a near relative, legal guardian, or friend.”
8 C.F.R. § 1240.10(c). Providing children with counsel in
removal proceedings is the next logical step.
Turner Factors
The Turner factors highlight the importance of counsel
to deportation proceedings for children.
First, immigration law is exceedingly complex; it has
been recognized as “second only to the Internal Revenue
Code in complexity.” Castro-O’Ryan v. I.N.S., 847 F.2d
1307, 1312 (9th Cir. 1987) (quotation omitted); see also
Dep’t of Justice, Immigration Court Practice Manual
5
The government points out that the Supreme Court has found
unrepresented children capable of waiving their rights in other contexts.
Reno v. Flores, 507 U.S. 292, 309 (1993) (waiving right to a custody
hearing before an IJ); Fare v. Michael C., 442 U.S. 707, 724–27 (1979)
(waiving right against self-incrimination in criminal cases). However,
when analyzing a waiver of the right to counsel in a removal hearing,
this court factors “the minor’s age, intelligence, education, information,
and understanding and ability to comprehend” into its analysis. Jie Lin,
377 F.3d at 1033.
30 C.J.L.G. V. BARR
(2018), https://www.justice.gov/eoir/page/file/1084851/
download (underscoring the complexity of pro se
representation in immigration proceedings by taking nearly
thirty pages to explain immigration court filings and nearly
forty pages to explain a hearing before an IJ, while still not
serving “in any way, [as a] substitute for a careful study of
the pertinent laws and regulations”). Asylum and
withholding claims that involve proving persecution on
account of a particular social group are complicated for
lawyers and courts, let alone children. See Reyes-Palacios,
836 F.2d at 1155 (“The importance of counsel, particularly
in asylum cases where the law is complex and developing,
can neither be overemphasized nor ignored.”). Second, there
is an asymmetry of counsel, as trained government attorneys
serve as prosecutors in every removal case. See Turner,
564 U.S. at 447 (recognizing that an “asymmetry of
representation” can “alter significantly the nature of the
proceeding” (quotation omitted)). Third, as explained
below, substitute procedural safeguards, such as the right to
retain private counsel, the IJ’s duty to develop the record,
and the presence of a parent, are inadequate.
Existing Procedures
Under existing procedures, an immigrant has “the
privilege” of being represented by counsel of his choosing,
at no expense to the government. 8 U.S.C.
§ 1229a(b)(4)(A). An IJ must explain hearing procedures
and, where the immigrant is pro se, “fully develop the
record.” Agyeman v. I.N.S., 296 F.3d 871, 877 (9th Cir.
2002) (quoting Jacinto v. I.N.S., 208 F.3d 725, 733–34 (9th
Cir. 2000)). The IJ must also “inform immigrants of any
ability to apply for relief from removal and the right to
appeal removal orders.” J.E.F.M., 837 F.3d at 1036–37
(citation omitted). And, in CJ’s case, he was not alone
C.J.L.G. V. BARR 31
because he had his mother’s assistance. These procedures
are a start, but they are not enough.
First, the privilege of paying for counsel or luck of
acquiring pro bono counsel is not a substitute for a right to
counsel in removal proceedings. Immigrants in removal
proceedings have a right to retain counsel, and the IJ must
advise immigrants of this right and the availability of pro
bono legal services. 8 C.F.R. § 1240.10(a). But the ability
to pay for counsel is little solace to an indigent child.
The list of pro bono attorneys the IJ provides cannot fill
the need for counsel. Between 2005 and 2014, IJs issued
decisions in almost 30,000 cases where children did not
have counsel. Transactional Records Access Clearinghouse,
New Data on Unaccompanied Children in Immigration
Court, Table 5 (July 15, 2014), http://trac.syr.edu/
immigration/reports/359/. CJ’s experience bore this
problem out; his mother Maria indicated she tried to find
counsel to no avail. 6 See Amicus Curiae Brief of Former
Federal Immigration Judges at 19 (former IJ amici noting
that CJ was in a “better” position than most children to
obtain pro bono counsel and was still unable to do so).
Second, an IJ is not a substitute for counsel in removal
proceedings. IJs are tasked with ensuring a modicum of due
process in immigration proceedings in various ways, such as
by developing the record themselves or by granting
continuances for counsel to develop the record. These
6
That CJ was able to obtain appellate counsel is inapposite.
Appellate counsel cannot develop the record in immigration
proceedings. See 8 C.F.R. § 1003.1(d)(3)(iv). A reviewing court cannot
conduct factfinding outside of the administrative record. Fisher v. I.N.S.,
79 F.3d 955, 963 (9th Cir. 1996). An inadequate record may lead to the
expulsion of children from this country who could otherwise have
obtained relief with a more robust record.
32 C.J.L.G. V. BARR
safeguards have never been a substitute for counsel and
recent developments in immigration law have undermined
them further.
IJs are “neutral fact-finder[s].” Reyes-Melendez v. INS,
342 F.3d 1001, 1008 (9th Cir. 2003). But immigration
“proceedings are adversarial in nature.” Jacinto, 208 F.3d at
733. While IJs “are obligated to fully develop the record”
where an immigrant appears without counsel, id. at 734, the
IJ cannot be a child’s advocate, 5 C.F.R. § 2635.101(b)(8).
An IJ is ethically bound to “act impartially and not give
preferential treatment to any . . . individual.” Id. Moreover,
the volume of cases on an IJ’s docket severely limits the
IJ’s capacity to develop the record. The former
Attorney General asked each IJ to complete “at least 700
cases a year.” Jeff Sessions, Attorney General, Remarks to
the Executive Office for Immigration Review Legal
Training Program in Washington, D.C. (June 11, 2018)
(remarks available at https://www.justice.gov/opa/
speech/attorney-general-sessions-delivers-remarks-executive-
office-immigration-review-legal). Recently, by vacating a
BIA decision that required a full evidentiary hearing for an
asylum-seeker, the Attorney General signaled to IJs that they
need not develop the record beyond merely asking whether
information in the asylum application is true and correct.
Matter of E-F-H-L-, 27 I. & N. Dec. 226 (A.G. 2018),
vacating 26 I. & N. Dec. 319 (BIA 2014); but see Lacsina
Pangilinan, 568 F.3d at 709. Given this enormous
workload, the idea that every unrepresented child in
immigration proceedings will have a full and fair hearing at
which the IJ develops the record strains credulity. Nor is
record development at a hearing the only role of an attorney.
See Jie Lin, 377 F.3d at 1024–25 (discussing how an
effective attorney would investigate factual and legal bases
for a claim before the hearing).
C.J.L.G. V. BARR 33
Third, parents are not a substitute for counsel in removal
proceedings. “It goes without saying that it is not in the
interest of minors or incompetents that they be represented
by non-attorneys. Where they have claims that require
adjudication, they are entitled to trained legal assistance so
their rights may be fully protected.” Johns v. Cty. of San
Diego, 114 F.3d 874, 876–77 (9th Cir. 1997) (quoting Osei-
Afriyie v. Medical College, 937 F.2d 876, 882–83 (3d. Cir.
1991) (refusing to allow a parent to bring an action on behalf
of his child without retaining a lawyer)); see also Franco-
Gonzales v. Holder, 828 F. Supp. 2d 1133, 1147 (C.D. Cal.
2011) (holding that the father of a mentally incompetent
immigration detainee could not serve as his representative at
a custody hearing because he “lacks adequate knowledge,
information, and experience in immigration law and
procedure.” (internal quotation omitted)). 7
7
The government argues that parents are helpful in court
proceedings. Acknowledging parents’ lack of knowledge of
immigration law here, however, does not conflict with other situations
where parents could be helpful to the proceedings. See e.g., Heller v.
Doe, 509 U.S. 312, 331 (1993) (recognizing that parents have
information valuable to the court in commitment proceedings for
mentally disabled people). Nor does acknowledging that parents may
not be knowledgeable of immigration law contradict cases cited by the
government concerning the rights of parents to make decisions about the
care and custody of their children. Troxel v. Granville, 530 U.S. 57, 66
(2000) (recognizing the right of a parent to make choices about certain
individuals’ visitation to her children); United States v. Casasola,
670 F.3d 1023, 1029 (9th Cir. 2012) (noting that parents may make
decisions about naturalizing their child). It also is bizarre to argue that a
parent representative serves the best interests of her child in a case like
CJ’s where the parent did not choose to represent her child, but was
forced to by indigence and did so only after expressing a desire for
counsel for her child.
34 C.J.L.G. V. BARR
Categorically, not all children in immigration court will
be with a parent, but CJ’s case demonstrates how even a
well-meaning parent cannot act as a lawyer. 8 Maria did not
understand all of the IJ’s instructions or questions. She
submitted an asylum application replete with errors and
garbled language. And she neither asked CJ questions to
develop the record, nor submitted any evidence other than
CJ’s birth certificate. The IJ never gave CJ the opportunity
to waive his right to counsel or weigh in on whether he
wanted Maria to represent him. See Jie Lin, 377 F.3d
at 1032–33 (looking for record evidence that the child in
deportation proceedings “knowingly and intelligently
waived his Fifth Amendment right to counsel, particularly in
light of the added protections he is due as a minor”). Further,
it is possible that the presence of a parent could diminish the
fairness of a hearing under circumstances where the child
was less willing to share critical information in the presence
of his parent, such as if the child faced persecution on the
basis of a sexual orientation that was contrary to his parent’s
8
Where a child accompanies a parent seeking refugee or asylee
status, they usually may apply for legal status together. In such
a situation, the child seeks “derivative” status of the parent. See
Dep’t of Homeland Sec’y, Form I-589 Instructions (2017); U.S.
Citizenship and Immigration Servs., Obtaining Derivative Refugee or
Asylee Status for Children, https://my.uscis.gov/exploremyoptions/
obtain_refugee_asylum_status_for_children (last updated Jan. 28,
2019). That was not the case here; CJ was not a derivative of his
mother’s asylum application. CJ was in a separate asylum proceeding
and filed his own application, with the help of his mother and possibly a
notario. See American Bar Ass’n, About Notario Fraud (July 19, 2018),
https://www.americanbar.org/groups/public_services/immigration/proje
cts_initiatives/fight-notario-fraud/about_notario_fraud/. I do not
consider the right to counsel for children who are eligible to apply for
asylum as the derivative of a parent or relative.
C.J.L.G. V. BARR 35
religious beliefs. See Amicus Curiae Brief of Former
Federal Immigration Judges at 17–18.
The presence of a parent at a child’s immigration
proceedings does not overcome the asymmetry of counsel
problem and is not an adequate substitute safeguard. See
Turner, 564 U.S. at 446–47.
***
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.
The third Mathews factor requires consideration of the
burdens that requiring government-funded counsel for
indigent children may place on the administrative process.
“[C]onserving scarce fiscal and administrative resources is a
factor that must be weighed,” but “[f]inancial cost alone is
not a controlling weight in determining whether due process
requires a particular procedural safeguard prior to some
administrative decision.” Mathews, 424 U.S. at 348. The
government also has an interest in fair proceedings and
correct decisions. Lassiter, 452 U.S. at 27–28; Flores-
Chavez, 362 F.3d at 1162 (recognizing that it is a “great
benefit” to the government to have children attend their
removal proceedings rather than be ordered removed in
absentia).
36 C.J.L.G. V. BARR
Undoubtedly, providing counsel to immigrant children at
government expense would be costly. Notably, the
government already chooses to spend money on attorneys to
prosecute children in removal proceedings. An attorney
representing the government was present at all five of CJ’s
hearings in immigration court—and an earlier hearing for
which the IJ had not provided CJ notice. At each hearing,
there was a different government attorney. In other words,
the government has chosen to spend money on multiple
attorneys learning the case file of and prosecuting one
immigrant child. Further still, the government continued to
pour resources into arguing that CJ has no right to counsel in
a BIA appeal, argument before a three-judge panel of this
court, and argument before this en banc court, which, at the
end of the day, corrects a due process violation that may have
been prevented had CJ been provided counsel in
immigration court in the first instance.
Providing counsel would be costly to the government,
but the government already chooses to undertake similar
costs here. 9 It would also lead to fairer, more accurate
9
In addition to funding government prosecutors in removal
proceedings, the federal government also chooses to fund attorneys for
some immigrants in some proceedings. For example, the National
Qualified Representative Program provides representation to
unrepresented and detained mentally incompetent individuals and the
Baltimore Representation Initiative for Unaccompanied Children “funds
direct representation in immigration proceedings at the Baltimore
Immigration Court for unaccompanied children under age 16 and whose
cases are not joined with an adult’s (regardless of the child’s eligibility
for immigration relief).” Department of Justice, Federal Agency
Resources (Oct. 24, 2018), https://www.justice.gov/olp/federal-agency-
resources (describing federal grant programs “and other Federal
resources”). In J.E.F.M., we recognized projects “the Executive ha[d]
taken” to confront the lack of legal representation for children including
awarding $1.8 million to 100 legal fellows to represent children in
C.J.L.G. V. BARR 37
decisions—decisions that a broader public might view as
more legitimate. The third factor in the Mathews test
therefore points both directions. To the extent this factor
favors the government, it cannot balance the scales weighed
down with children’s liberty interests and a high risk of
error.
D.
Finally, the outcome of the Mathews analysis must be
weighed against a presumption that the right to appointed
counsel is only afforded to individuals whose “physical
liberty” is at risk if they lose. Lassiter, 452 U.S. at 26–27.
Here, that outcome, especially given the strength of the first
and second factors, overcomes the Lassiter presumption.
Sending child asylum-seekers back to hostile
environments where they may have experienced persecution
implicates a forceful liberty interest. In CJ’s case, for
example, his physical liberty is at risk—not because of
incarceration—but because of the death threat and other
threats of violence made against him. CJ credibly testified
that gang members pointed a pistol to his forehead, said he
had one day to decide whether to join them, and that if he
told his mother—as he evidently did before fleeing with
her—they would kill him.
Moreover, the disparity of outcomes between children
who are represented and those who are not represents an
unconscionable risk of error. As diligent as IJs are, they
cannot be the children’s advocates and, as former IJs have
removal proceedings through the Justice AmeriCorps program. 837 F.3d
at 1040–41 (citation omitted).
38 C.J.L.G. V. BARR
said, there is no substitute for counsel. See Amicus Curiae
Brief of Former Federal Immigration Judges at 12, 16.
IV.
Children do not need to be “left to thread their way alone
through the labyrinthine maze of immigration laws.”
J.E.F.M., 837 F.3d at 1040 (McKeown, J., specially
concurring). In fact, due process prohibits this reality. I
would recognize a due process right to counsel for indigent
children in removal proceedings. Based on the record
presented, I would limit the class of indigent children under
18 who are required appointed counsel to those who are
seeking asylum, withholding of removal, CAT, or another
form of relief for which they are apparently eligible, such as
SIJ status. As the Supreme Court said when recognizing a
right to appointed counsel for children in another context,
“[u]nder our Constitution, the condition of being a boy does
not justify a kangaroo court.” In re Gault, 387 U.S. at 28.
BERZON, Circuit Judge, concurring in part and concurring
in the judgment:
I concur in the majority’s opinion and also join Judge
Paez’s excellent concurrence in full. I wish only to note,
once again, that consideration of the right to counsel
question for minors in removal proceedings has been
unnecessarily hindered by this court’s decisions in an earlier
case. See 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)
(Berzon, J., dissenting from denial of rehearing en banc).
J.E.F.M. held, erroneously in my view, that the right to
counsel question must be considered in a petition for review
C.J.L.G. V. BARR 39
from an individual child’s removal proceedings, such as this
one, and not through a class action filed in the district court.
837 F.3d at 1038. But as this case amply demonstrates, a
more developed factual record than is available here—where
C.J. had no counsel in his removal proceedings and where
the Immigration Judge and the Board of Immigration
Appeals had no jurisdiction over the constitutional due
process question, see Padilla-Padilla v. Gonzales, 463 F.3d
972, 977 (9th Cir. 2006)—would have given us more
information on which to decide whether minors in removal
proceedings have a right to counsel. Such a record would
also have aided in deciding whether that right is universal or,
as Judge Paez suggests, may be limited to certain categories
of cases, based on such criteria as the claims raised, the age
of the child, or whether the child is accompanied 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.
CALLAHAN, Circuit Judge, joined by IKUTA, Circuit
Judge, dissenting:
The majority commendably decides this appeal on a
narrow issue. Unfortunately, it requires more of the
Immigration Judge (IJ) than is required or appropriate, and
accordingly, I must dissent.
As noted by the majority, an IJ is required to inform an
alien seeking relief from removal of his “apparent eligibility
40 C.J.L.G. V. BARR
to apply for any benefits enumerated in this chapter.”
8 C.F.R. § 1240.11(a)(2). The majority then concludes that
because the “information presented during CJ’s proceedings
made it reasonably plausible that he could establish
eligibility for SIJ status,” Maj. Op. at 12, the IJ failed to
provide “the required advice,” and the appropriate remedy is
to grant the petition for review, reverse the BIA’s dismissal
of the appeal, and remand for a new hearing. See Maj Op. at
15. The asserted remedy flows from the premise, but the
premise is a step too far. I would hold that the information
presented at CJ’s hearing before the IJ did not create a
reasonable possibility that CJ qualified for relief.
An IJ “shall inform the alien of his or her apparent
eligibility to apply for any of the benefits enumerated in this
chapter and shall afford the alien an opportunity to make
application during the hearing, in accordance with the
provisions of § 1240.8(d).” 8 C.F.R. § 1240.11(a)(2). 1 We
1
It is far from clear that “SIJ status” (which the majority uses to
refer to the criteria required for an alien to be deemed a “special
immigrant” under 8 C.F.R. § 204.11 and U.S.C. § 1101(a)(27)(J)),
constitutes one “of the benefits enumerated in this chapter” for purposes
of 8 C.F.R. § 1240.11(a)(2). The regulation at issue, 8 C.F.R. § 1240.11,
is contained in Chapter V, “Executive Office for Immigration Review,”
which establishes a number of immigration benefits, including asylum,
withholding of removal, adjustment of status, and temporary protected
status. However, the regulatory section that explains special immigrant
status, 8 C.F.R. § 204.11, is contained in Chapter I, Department of
Homeland Security. In other words, special immigrant status is not a
benefit of the chapter at issue in § 1240.11(a)(2).
Moreover, special immigrant status is not analogous to the
immigration benefits described in Chapter V. Each of those benefits are
forms of relief from removal. By contrast, a determination that an alien
qualifies for special immigrant status provides no relief itself. Rather,
the alien who qualifies for SIJ status can then seek relief from removal
C.J.L.G. V. BARR 41
have held that this is a mandatory duty: “if an IJ fails to
advise an alien of an avenue of relief potentially available to
him, we will remand for consideration of the alien’s
eligibility for that relief.” Moran-Enriquez v. INS, 884 F.2d
420, 423 (9th Cir. 1989); United States v. Hernandez,
163 F.3d 559, 563 (9th Cir. 1998) (holding that “[t]his
provision is mandatory”). However,
IJs are not expected to be clairvoyant; the
record before them must fairly raise the issue:
“‘Until the [alien] himself or some other
person puts information before the judge that
makes such eligibility “apparent,” this duty
does not come into play.’” Bu Roe v. INS,
771 F.2d 1328, 1334 (9th Cir.1985) (quoting
United States v. Barraza-Leon, 575 F.2d 218,
222 (9th Cir. 1978)).
Moran-Enriquez, 884 F.2d at 423. Moreover, as we have
explained, “an IJ’s duty is limited to informing an alien of a
reasonable possibility that the alien is eligible for relief at
the time of the hearing,” or, in some narrow circumstances,
where the alien may become eligible imminently. United
States v. Lopez-Velasquez, 629 F.3d 894, 895 (9th Cir.
2010).
The majority assumes that § 1240.11(a)(2) applies to SIJ
status and then asserts that a failure to advise about SIJ status
can only be excused when the petitioner’s eligibility is not
by applying for adjustment of status. 8 U.S.C. 1255(a). The alien can
obtain relief only if “the alien is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence, and an
immigrant visa is immediately available to him at the time his application
is filed.”
42 C.J.L.G. V. BARR
“plausible.” They then opine that “Maria’s comment that
CJ’s father left her ‘a long time ago,’ and CJ’s statement that
he had no paternal contact for ‘many years’ demonstrated
that reunification with one parent might be impossible ‘due
to . . . abandonment.’” Maj. Op. at 12. Perhaps reunification
with CJ’s father was extremely unlikely, but that was not the
issue before the IJ.
Reasonableness or plausibility should be considered in a
particular context. 2 The applicable statute, 8 U.S.C.
1101(a)(27)(J)(i), sets forth three requirements that CJ
cannot reasonably or plausibly meet. First, the statute
requires that the petitioner “has been declared dependent on
a juvenile court located in the United States or whom such a
court has legally committed to, or placed under the custody
2
The majority’s invocation of the term “plausible” from our opinion
in United States v. Rojas-Pedroza, 716 F.3d 1253, 1265–67 (9th Cir.
2013), should not be read as an expansion of the “reasonable possibility”
standard set forth in Moran-Enriquez, 884 F.3d at 423. In Rojas-
Pedroza, we explained that the standard for relief due to an IJ’s failure
to inform a petitioner of apparent eligibility for relief has two steps: first,
is the petitioner’s eligibility of relief “apparent”; and second, was the
petitioner prejudiced by the failure? Rojas-Pedroza, 716 F.3d 1262–63.
We reiterated our prior statement that “apparent eligibility” means
“where the record, fairly reviewed by an individual who is intimately
familiar with the immigration laws—as IJs no doubt are—raises a
reasonable possibility that the petitioner may be eligible for relief.” Id.
(quoting United States v. Lopez-Velasquez, 629 F.3d at 897).
Recognizing some ambiguity as to whether Rojas “had apparent
eligibility for relief,” we focused on the second component: prejudice.
In the context of whether Rojas had established a plausible case for
discretionary relief by the IJ, we concluded in light of his immigration
record and prior convictions he had “failed to carry his burden of
establishing plausible grounds for relief.” Rojas-Pedroza, 716 F.3d
at 1266–67. Thus, nothing in Rojas-Pedroza suggests that a petitioner
does not have to show a “reasonable possibility” that he is apparently
eligible for relief.
C.J.L.G. V. BARR 43
of, an agency or department of a State, or an individual or
entity appointed by a State or juvenile court located in the
United States.” Id. (emphasis added). Here, at the time of
his immigration hearing, CJ had not been declared a
dependent by any court in the United States or placed in
custody by any court. Indeed, he had not even commenced
any such proceeding in any court.
Second, the statute, requires that the juvenile’s
“reunification with 1 or both of the immigrant’s parents is
not viable due to abuse, neglect, abandonment, or a similar
basis found under State law.” 8 U.S.C. § 1101(a)(27)(J)(i).
If this statute is read to require a showing that reunification
with neither parent is viable, then there was no possibility of
CJ meeting the requirement. He has always been in his
mother’s custody and care. If the statute is read to require
only a showing that reunification with one of two parents is
not viable, then CJ could meet this requirement. However,
he still could not have shown that any court had declared him
a dependent.
Third, the statute requires that “the Secretary of
Homeland Security consents to the grant of special
immigrant juvenile status.” Id. § 1101(a)(27)(J). Although
neither the statute nor the regulations provides much
guidance on what is required for consent, the USCIS has
promulgated a policy manual, which provides that before
consenting, USCIS must review the juvenile court order to
conclude that the request for SIJ classification is bona fide.
See USCIS Policy Manual, vol. 6, pt. J, ch. 2, D.5. (May 23,
2018); 76 Fed. Reg. 54978, 54985 (Sept. 6, 2011). The
USCIS will not give its consent if the juvenile court order
was sought primarily or solely to obtain an immigration
benefit. See USCIS Policy Manual, vol. 6, pt. J, ch. 2, D.5.
Here, the record indicates that the alien’s mother would seek
44 C.J.L.G. V. BARR
to have CJ placed under her custody solely for the purpose
of seeking SIJ status and adjustment of status to avoid
deportation.
The majority’s application of the reasonable or plausible
standard overlooks the statute’s three requirements. First,
the majority overlooks the requirement that to be eligible for
SIJ status, a state court must have declared the applicant a
dependent, and thus imposes an unreasonable burden on IJs.
The majority tasks the IJ with predicting not whether it is
plausible that were CJ to apply to a state court he might
obtain relief, but whether it was “reasonably possible at the
time of CJ’s hearing that he could obtain SIJ status.” Maj.
Op. at 13. But this would require that IJs have an intimate
knowledge of state law. Moreover, in CJ’s case—aside from
immigration proceedings—there was no apparent need or
reason for CJ to invoke any state’s dependency proceedings
as he was at all times in his mother’s custody and care. 3
Indeed, at the time of CJ’s hearing before the IJ it was
not clear whether California courts would consider a child’s
request for SIJ findings. It was not until 2018 that the
California Supreme Court clarified that “a conclusion that a
proceeding is primarily motivated by a desire to secure SIJ
3
The fact that CJ has subsequently obtained a state-court order and
has filed a petition with the United States Citizenship and Immigration
Services speaks well of his attorneys. But his success does not change
the fact that when CJ appeared before the IJ with his mother, there was
no reasonable possibility, under the controlling legislation, that he was
eligible for immigration relief.
C.J.L.G. V. BARR 45
findings is not a ground for declining to issue the findings.”
Bianka M. v. Superior Court, 5 Cal. 5th 1004, 1025 (2018). 4
The majority also overlooks the consent requirement.
The state court’s dependency determination is not
controlling. Even after obtaining such an order, the alien
must file a petition with the USCIS, and the Secretary of
Homeland Security must consent to the grant of special
immigrant juvenile status. As noted above, it is far from
clear that the Secretary would give such consent.
Finally, the majority overlooks the fact that even after
obtaining such consent, the alien must then seek relief from
removal by applying for adjustment of status. 8 U.S.C.
§ 1255(a). The alien is not eligible for such relief unless “an
immigrant visa is immediately available to [the petitioner] at
the time his application is filed.” The record does not show
that an immigrant visa is available to CJ. And even then, the
IJ must determine whether to grant relief as a matter of
discretion. See id.
In sum, the IJ was required to inform CJ only of his
“apparent eligibility to apply for any benefits enumerated in
this chapter,” 8 C.F.R. § 1240.11(a)(2), “at the time of the
hearing.” Lopez-Velasquez, 629 F.3d at 895. Even assuming
that SIJ status is a “benefit” contemplated by this regulation,
there was no such “apparent eligibility” at the time of the
hearing here. CJ had not commenced any proceeding in a
juvenile court, nor demonstrated any need or reason to do so.
Nor was there any evidence indicating whether the Secretary
4
The California Supreme Court further noted that “the Legislature
in 2016 amended Code of Civil Procedure section 155 to make clear that
a court must issue findings relevant to SIJ status, if factually supported,
regardless of its assessment of the child’s perceived motivations in
invoking the court’s jurisdiction.” Id. at 1024.
46 C.J.L.G. V. BARR
of Homeland Security would consent to an application by
CJ, or that a visa was immediately available. In sum, at the
time of the hearing, CJ had no apparent eligibility for
benefits.
The majority’s empathy for CJ is understandable, but
does not, in my mind, justify defining “apparent eligibility”
so broadly as to require IJs to advise petitioners of potential
avenues of relief for which they are not yet (and may never
be) statutorily eligible. Accordingly, I dissent.