9th Circuit to review en banc whether minors in the US illegally are entitled to court appointed counsel

The 9th U.S. Circuit Court of Appeals has announced it will rehear en banc an immigration case testing whether minors who crossed the border illegally have a right to appointed counsel during removal proceedings.

In January, a three-judge panel of the court said the existing legal framework does not enshrine any such right, much to the dismay of ACLU attorneys who represented the petitioner.

But on Wednesday afternoon, the court's chief judge said in an order that a majority of active judges had voted to rehear the case, suggesting an interest in deciding the question differently.

On appeal, attorneys for a minor from Honduras known only as "C.J.L.G." argued to the 9th Circuit that both the Constitution and the right to a fair hearing under the Immigration & Nationality Act established that their client was entitled to a court-appointed lawyer.

In an opinion authored by Judge Consuelo M. Callahan, the court disagreed. C.J.L.G. v. Sessions, 16-73801 (9th Cir., filed Nov. 30, 2016).

"Neither the Due Process Clause nor the INA creates a categorical right to court-appointed counsel at government expense for alien minors," wrote Callahan, who described "C.J." as a "sympathetic" petitioner.

According to the court's opinion, C.J. and his mother crossed the border in search of asylum while fleeing the threat of violence from a criminal gang.

Judge John B. Owens, who sat on the original panel reviewing the case, concurred, noting that C.J. came to the United States with his mother. A different set of facts could change the outcome in a future case, he said.

"The opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors," Owens wrote. "That is a different question that could lead to a different answer."

Now, the ACLU Foundation of Southern California, which represents C.J., will have a second shot at creating precedent for the entire 9th Circuit on the question.

"We're very pleased that the court has vacated the C.J.L.G. decision," the foundation's senior counsel, Ahilan Arulanantham, said in a phone interview Wednesday. "We're hopeful that the court will reconcile both the grave injustice at issue in the case and its importance in the current legal climate."

The ACLU litigated the same issue in a different case several years ago. In 2016, the 9th Circuit dismissed the appeal on jurisdictional grounds, saying it could not address the counsel question in a class action context. J.E. F.M. v. Lynch, 837 F.3d 1026 (2016).

The foundation sought en banc review in that case, but the court has yet to weigh in on that request, Arulanantham said.