Unaccompanied children facing deportation not entitled to a lawyer, 9th Circuit rules

Unaccompanied children facing deportation do not have a right to government-appointed counsel under U.S. immigration law or the U.S. Constitution, a 9th U.S. Circuit Court of Appeals panel ruled.

Attorneys for the petitioner argued that children could not properly represent themselves in immigration court and that they required government-appointed lawyers to satisfy the Due Process Clause of the U.S. Constitution and the right to a fair hearing under immigration law.

The panel, in a decision written by Judge Consuelo M. Callahan, wrote that neither created an explicit right to counsel. The 9th Circuit could not go against Congress’ wishes by granting rights that did not exist in law, Callahan wrote.

“Petitioner C.J.L.G. (“C.J.”) asks us to upend Congress’ statutory scheme by reading into the Due Process Clause and the INA itself a categorical right to court-appointed counsel at government expense for alien minors,” Callahan wrote. C.J.L.G. v. Sessions, 2018 DJDAR 973.

“Neither the Due Process Clause nor the INA creates a categorical right to court-appointed counsel at government expense for alien minors,” the opinion stated.

Ahilan Arulanantham, the advocacy and legal director of the ACLU of Southern California and the lawyer who argued the case for the minor, strongly disagreed with the ruling.

“It defies common sense to believe that the child can get a fair hearing when litigating any deportation case against a trained prosecutor,” Arulanantham said.

The fact that the neither the Immigration and Nationality Act nor the Constitution provided an explicit right to counsel does not settle the matter, Arulanantham said. Courts have broadly interpreted the immigration laws in the past, including in a case where a federal court found there was a right to appointed counsel for people with serious mental disorders, he said. Franco v. Holder 10-CV2211, (C.D. Cal., filed March 26, 2010).

“The analogy is obvious,” he said. “What they have in common is an inability to meaningfully represent themselves in removal proceedings.”

The decision denies the petitioner’s request for review of a Board of Immigrations Appeals decision that he deported after failing to qualify for asylum while representing himself in deportation proceedings.

The panel agreed with the Board of Immigration Appeals finding that the plaintiff had a well-founded fear of persecution as required by asylum law based on threats he and his family received from the Mara gang in his native Honduras. It also agreed that the Board of Immigration Appeals had rightly rejected his claim because he did not established that the threats were based on his being part of a social group protected under asylum law or that Honduran authorities were unable or unwilling to control the gang.

“The judge never asked him why the gangs are threatening him and motivation is central to asylum analysis,” Arulanantham said. “That omission is striking and it shows why you need counsel to bring out the relevant testimony on that subject.”

9th Circuit Judge John B. Owens and U.S. District Judge David A. Faber of the Southern District of West Virginia, sitting by designation, concurred.

“The court has to bend over backwards to try to duck the issue,” said Matt Adams, the legal director of the Northwest Immigrant Rights Project and one of the petitoner’s attorneys. “It is true that the statutory language is not explicit that [minors] are entitled to appointed counsel, but they are entitled to a fair hearing. At least for kids, that requires appointed counsel.”

Adams said the case came to their attention as a result of a similar case where a 9th Circuit panel ruled it did not have jurisdiction to decide the issue as a class action but would rule on cases individually.

He said he intends to appeal.

“We’re not in a position to let this decision sit,” he said. “There’s way too much at stake for our client and for the basic dignity and decency of our justice system.”

The U.S. Department of Justice did not respond to emailed requests for comment by press time.