Immigrant kids won’t automatically get lawyers, 9th Circuit rules

Immigrant children facing deportation will not automatically be given immigration lawyers after 9th U.S. Circuit Court of Appeals judges voted not to rehear the case.

The decision was announced along with a dissent by four judges, who argued against a previous 9th Circuit decision that a district court did not have jurisdiction to review the case. J.E.F.M. v. Whitaker, 2018 DJDAR 10872 (9th Cir. 2018).

The decision was a setback for immigration advocates seeking review by a full panel of judges although a similar case will be heard by an en banc court on the merits next month.

Judge Marsha S. Berzon wrote the dissent and was joined by Judges Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez and Mary H. Murguia.

The applicable statute, 9th Circuit case law, and U.S. Supreme Court precedent indicated district courts are barred from review of a claim only when a deportation order has been made and the person is seeking relief from that order, Berzon wrote.

"Because the immigration proceedings involving the class of children here have not reached that stage, there is no statutory barrier to allowing this case to go forward," Berzon wrote.

According to the panel decision from September 2016, the children's right-to-counsel claims can be raised only in the case of individual petitions for review of final orders of deportation. That panel was composed of Judges Andrew J. Kleinfeld, M. Margaret McKeown and Milan D. Smith Jr.

"The panel did not allow the merits of their right-to-counsel claim to be heard. Instead, it shut the courthouse doors on them," Berzon wrote.

The class of children had already been certified by a district judge in Seattle and discovery had begun when the U.S. Department of Justice appealed the case.

The Department of Justice declined to comment on the order.

The order is a significant roadblock because, without representation, most children would never be able to bring their case to the court for review, according to Matt Adams, legal director of the Northwest Immigrant Rights Project and who represented the class.

"Without representation, they can't make an administrative appeal, and they can't file a petition for review," Adams said.

He stressed the case had not gotten to the merits and was still about what the procedure should be for children without lawyers facing deportation.

"At least hundreds and perhaps thousands of children will never have the opportunity to present their claim for appointed counsel as a result of this ruling," said Ahilan Arulanantham, senior counsel at the ACLU of Southern California who also represented the class.

A separate case on behalf on a single child in deportation will be heard en banc at the 9th Circuit in December and could result in children in the 9th Circuit being granted lawyers, Adams said. C.J.L.G. v. Whitaker, 2018 DJDAR 9572.

He said it was difficult to determine how the en banc court might rule in that case given Tuesday's order.

"I don't think we can really read the tea leaves from this to guess what the court is going to do in C.J.L.G.," Adams said.

"We don't know the makeup of the en banc panel that's been selected," he added. "But more importantly, it could be there's many judges out there that think on the merits this is an important issue but that Congress has tied our hands and so the only way to address it is on a petition for review, not on a class action."

Arguments are set for Dec. 10.