United States Court of Appeals for the Ninth Circuit
Nos. 15-35738; 15-35739; D.C. No. 2:14-cv-01026-TSZ
20 September 2016
8, U.S. Code §§ 1252(b)(9) and 1252(a)(5)
Immigration and Nationality Act
A group of children, aged 3 to 17, were at various stages of the deportation process. None of the children was able to afford legal counsel or retain pro bono counsel for the proceedings. The children brought this claim against, among others, the US Attorney General, arguing that they had a statutory right under the Immigration and Nationality Act to have a lawyer appointed at the government’s expense during their removal proceedings.
The children argued that requiring a minor, who may not understand English, to raise a right-to-counsel claim pursuant to the statutory procedure under 8 USC §§ 1252(b)(9) and 1252(a)(5) (the “PFR Process”) violated the Immigration and Nationality Act by depriving them of “a full and fair opportunity to identify defenses or seek relief for which they qualify”. The complex PFR Process requires a relevant minor without counsel to: (i) appear before immigration judges without lawyers; (ii) petition an immigration judge for an attorney; (iii) appeal the denial of such petition to the Board of Immigration Appeals; and (iv) file a petition for review of a final removal order with a federal appellate court in order to make a right-to-counsel claim.
The children asked the Court to hold that lower federal courts had jurisdiction to consider whether children have a right to attorneys in immigration court proceedings, allowing them to bypass the PFR Process.
Issue and resolution:
Access to justice, immigration and deportation. The Court rejected the appeal and held that the children could not “bypass the immigration courts and proceed directly to district court”, but must “exhaust [the PFR Process] before they can access the federal courts”.
The Court was sympathetic to the children’s plight, but concluded that 8 USC §§ 1252(b)(9) and 1252(a)(5) were clear in requiring any right-to-counsel claims arising from removal proceedings to be raised through the PFR Process. The Court found that the children would not be denied meaningful judicial review status, as each stage of the PFR Process was recorded and transcribed. The Court also found that immigration judges were specially trained and had a duty to explain each stage of the PFR Process to immigrants appearing before them, to ask questions which would elicit information about possible avenues of relief, and to inform immigrants of any ability to apply for relief from removal and the right to appeal removal orders. Unrepresented minors were also afforded additional protections, such as the presence of a friend of the court. Finally, the children’s argument that it was essentially impossible for a child involved in immigration proceedings to have their right-to-counsel claim heard before a federal court was undermined by the case of Guzman-Heredia v Gonzales, in which a fourteen-year-old boy had his right-to-counsel claim heard by a federal court after following the PFR Process.
The Court’s decision has been viewed as a setback for children involved in immigration proceedings; however, commentators have noted that, although the judges found against the children in the instant case, they were not dismissing the claims’ merits. The judges, in concurring opinions, highlighted the plight of unrepresented children in immigration proceedings and underscored that urgent action to address this crisis must be taken by the executive and Congress, but that the solutions were necessarily political and therefore fell outside the purview of the courts.
Link to full judgement: