Ruling denying immigrant minor right to counsel conflicts with precedent

The 9th U.S. Circuit Court of Appeals recently denied a petition for review of a deportation order filed on behalf of a child who had been forced to present his asylum claim without legal representation. C.J.L.G. v. Sessions, 2018 DJDAR 973 (Jan. 29, 2018). The court explicitly rejected the right to court-appointed counsel for minors who face removal from the U.S. in immigration proceedings. It appears to be the first decision ever to hold that a child can represent themselves in any proceeding implicating significant legal rights.

This decision is erroneous -- in conflict with prior Supreme Court and 9th Circuit precedent -- and perpetuates a process that is not only flawed and inequitable, but also lacking in common sense. Unrepresented children cannot be expected to articulate their claims for protection or to adequately counter the arguments of seasoned government attorneys. This is no doubt why courts have never held that children can represent themselves in legal proceedings. That rule clearly applies to deportation cases. Indeed, immigration law has been compared in complexity to tax law, ever-evolving and difficult for even the best-trained lawyers to navigate.

Immigration court proceedings are civil and administrative in nature. Even though the U.S. Supreme Court has recognized that deportation is a "particularly severe 'penalty'" that can be the "equivalent of banishment or exile," Padilla v. Kentucky, 599 U.S. 356, 365, 373 (2009), there is no right to government-funded counsel under the Sixth Amendment in such proceedings.

While nonprofit and pro bono attorney contributions can and do, to some extent, mitigate the harshness of this rule, such resources are, of course, limited. Just over 50 percent of children currently in removal proceedings have representation. The others -- many of whom have legitimate defenses against deportation -- stand little, if any, chance against government prosecutors. They are routinely condemned to return to dangerous, at times even life-threatening, circumstances in their original countries. This not only violates due process, it betrays our duty to protect children.

In 2014, a number of groups -- including the ACLU, American Immigration Council, Northwest Immigrant Rights Project, Public Counsel and K&L Gates LLP -- joined together to file a nationwide class action on behalf of unrepresented children, arguing for a right to court-appointed counsel in immigration removal proceedings. In that case, J.E.F.M. v. Lynch, 2014 DJDAR 837 F.3d 1026 (9th Cir. 2016), the 9th Circuit said federal district courts lack jurisdiction to consider the minors' constitutional claim and their claim under the Immigration and Nationality Act. It held that both claims must be raised through the administrative and petition for review process outlined in the act, effectively halting the district court litigation in its tracks.

In response to the plaintiffs' attorneys claims that unrepresented children are unable to navigate the administration and judicial review process on their own, the 9th Circuit directed the government to provide information on any children who were going through that process to plaintiffs' counsel. The attorneys representing J.E.F.M. thereafter contacted a minor the government had identified -- apparently the only one whose removal order was still not final -- and filed with the 9th Circuit a petition for review of his removal order. His case is the one decided on Jan. 29.

The minor, C.J.L.G., requested that the 9th Circuit find that he has a statutory and constitutional right to court-appointed legal representation, which, if true, would require reversal of the removal order entered against him. C.J.L.G., who is from Honduras, had been abandoned by his father, threatened at gun point by gang members, and subsequently fled Honduras to the U.S. with his mother seeking safety. In the U.S., C.J.L.G. was placed in immigration removal proceedings and required to appear before an immigration judge, who was to determine his ability to remain in the country.

C.J.L.G. was unable to secure private, nonprofit or pro bono counsel to represent him before the immigration judge, so appeared unrepresented. The government, as in every immigration case, was represented in the proceedings by an experienced, government-funded prosecutor. The immigration judge failed to inform C.J.L.G. of his possible eligibility for a special defense against deportation available to certain children -- known as Special Immigrant Juvenile Status. The judge also denied C.J.L.G.'s request for asylum, withholding of removal, and protection under the Convention Against Torture. The judge found C.J.L.G.'s testimony credible, and agreed that he reasonably feared returning to Honduras given the threats from gang members. But the judge found that C.J.L.G. did not meet the "nexus" requirement for asylum because he had failed to establish that the gang members intended to persecute him because of his membership in a qualifying social group. Not surprisingly, without legal advice or assistance, C.J.L.G. was unable to articulate his eligibility under the complex standards governing these protections.

The immigration judge's denial of C.J.L.G.'s asylum and related claims was thereafter appealed to the Board of Immigration Appeals, in connection with which C.J.L.G. was fortunate enough to be represented by counsel. The board nevertheless rejected his claims, upholding the immigration judge's decision. C.J.L.G., through J.E.F.M. counsel, then petitioned the 9th Circuit, seeking review of the dismissal of his claims and requesting recognition of the right to court-appointed counsel for himself and other similarly-situated minor children in immigration removal proceedings.

The 9th Circuit denied C.J.L.G.'s petition last week, holding that neither the due process clause of the Fifth Amendment nor the Immigration and Nationality Act create a right to court-appointed counsel for minor children who seek protection from deportation, even when they fear return to dangerous circumstances in their home countries. The court further concluded that C.J.L.G. had received a full and fair hearing before the immigration judge, despite his lack of counsel, and that the presence of counsel would not have changed the outcome of the proceedings because C.J.L.G.'s claims for protection were properly denied.

The 9th Circuit's decision also contains several erroneous conclusions pertaining to the Special Immigrant Juvenile Status defense. "SIJ status" is obtained through a process that begins in state court and entails state court dependency or custody proceedings. The 9th Circuit's decision misunderstands this process by: (i) improperly suggesting that an immigration judge could determine a child's SIJ status, when in fact this determination must be made by U.S. Citizenship and Immigration Services, a separate federal agency; (ii) indicating that it is unlikely that a child residing with one parent could receive SIJ status, when in fact children residing with one parent are eligible under both California law and federal policy; and (iii) by stating that a dependency order is required to receive SIJ status, when the statute provides that either a dependency or custody order would be sufficient. In failing to understand the eligibility requirements and procedures for establishing SIJ status, the 9th Circuit illustrates the very point raised in C.J.L.G.'s petition -- that immigration law is complex, at times perplexing, and far too difficult for a child to navigate without a trained, specialized attorney.

Notably, in a concurring opinion, Circuit Judge John B. Owens pointed out that the court's opinion in C.J.L.G. v. Sessions does not address whether the due process clause requires court-appointed counsel for unaccompanied minors (those without a parent or legal guardian), suggesting that this question remains open and could result in a different conclusion. Sadly, however, unrepresented unaccompanied children are no more -- and probably less -- likely to be able to file appeals of their removal orders and petitions for review to the circuit courts. Thus, it may take years before that question is ever resolved, during which many more children will be unjustly deported without due process.

Lawyers for C.J.L.G. intend to seek further review of the 9th Circuit decision.

Winston & Strawn LLP represented the Immigrant Legal Resource Center as amicus in support of C.J.L.G.'s petition for review before the 9th Circuit.

Any opinions in this article are solely those of the authors and are not those of Winston & Strawn or its clients.