Immigration judges must advise children of relief options

On May 3, the 9th U.S. Circuit Court of Appeals granted a child's petition for review and vacated his deportation order in C.J.L.G. v. Barr, 2019 DJDAR 3782. The court concluded that the immigration judge erroneously failed to advise the child in immigration court removal proceedings about the child's eligibility for special immigration juvenile status (SIJS). The court did not address the child's contention that government-appointed counsel for children in immigration proceedings is required by the Constitution.

C.J.L.G., an indigent child 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 removal proceedings and required to appear before an immigration judge. C.J.L.G. could not afford to hire a lawyer, so he appeared pro se against a trained government prosecutor -- with only his mother at his side. Among other errors, the immigration judge failed to inform C.J.L.G. of his potential eligibility for SIJS, which is a special defense against deportation available to certain children. C.J.L.G. tried to seek asylum, but the immigration judge denied C.J.L.G.'s claim and issued a removal order. C.J.L.G., now with counsel, appealed to the Board of Immigration Appeals. The board rejected his claims, upholding the immigration judge's decision. C.J.L.G. then petitioned the 9th Circuit to review his case. On Jan. 29, 2018, the 9th Circuit denied C.J.L.G.'s petition in C.J.L.G. v. Sessions, 2018 DJDAR 973. C.J.L.G. filed a petition for rehearing en banc. A majority of judges voted to grant his petition and vacated the panel's order. In C.J.L.G. v. Barr, C.J.L.G. requested that the 9th Circuit find that he has a statutory and constitutional right to court-appointed legal representation, and presented issues regarding his underlying claims for substantive immigration relief, including the failure of the immigration judge to advise him of his eligibility for SIJS. The 9th Circuit's decision issued earlier this month found that the immigration judge erred in failing to advise C.J.L.G. about his eligibility for SIJS; the court remanded the case. (During the pendency of his case, once C.J.L.G. became aware of his eligibility for SIJS, he received a SIJS state court order and filed his SIJS petition with United States Citizenship and Immigration Services with the assistance of pro bono counsel.)

SIJS provides a path to lawful permanent residency for children for whom a state court has found that they cannot be reunified with one or both parents because of abuse, neglect, or abandonment and that it is not in their best interest to be returned to their country of origin. SIJS is obtained through a process that begins in state court and entails state court dependency or custody proceedings, which are independent of immigration court proceedings. Once a SIJS state court order is obtained, a child may then apply for SIJS classification with the United States Citizenship and Immigration Services. Once granted SIJS, a child may become eligible to apply for lawful permanent residency -- otherwise known as a "green card" -- and start on a path to U.S. citizenship.

In C.J.L.G.'s case, the immigration judge had posed questions during C.J.L.G.'s hearings which resulted in the immigration judge receiving factual information demonstrating that C.J.L.G. may have qualified for SIJS. For example, C.J.L.G. and his mother had indicated they had not had contact with C.J.L.G.'s father for many years and that C.J.L.G. had received death threats from gang members in Honduras. However, the immigration judge failed to acknowledge the relevance of these facts to SIJS -- a fatal flaw, as immigration judges have an undisputed duty to inform immigrants before them of any apparent eligibility for relief. The immigration judge erroneously failed to inform C.J.L.G. that this avenue for immigration relief existed and ignored C.J.L.G.'s apparent eligibility for SIJS. The immigration judge instead issued a removal order, ordering C.J.L.G. to be removed from the U.S. She placed C.J.L.G. in a position where his only path to continue purusing relief from deportation consisted of filing an appeal and then a petition for review to remedy this error.

In C.J.L.G. v. Barr, the 9th Circuit held that when an immigration judge becomes aware of facts which indicate a reasonable possibility that a child has apparent eligibility for SIJS, the immigration judge must advise the child of his potential SIJS eligibility. The court reiterated that the role of an immigration judge is to advise individuals in removal proceedings. This role includes advising a child of relief of which the child may not be aware. The 9th Circuit, in finding that the immigration judge had a duty to instruct the child regarding his apparent eligibility for SIJS, has signaled to immigration judges that they must be aware of this important form of relief and bring it to children's attention, rather than ignoring it or presuming their duty to advise is triggered only after a child has started the SIJS process in state court.

In C.J.L.G.'s case, if he had been informed of his apparent eligibility, he would have had the opportunity to explore SIJS prior to being ordered removed by an immigration judge. Had he secured counsel and sought SIJS, he would not have been subject to a removal order as a result. Moving forward, in similar cases, when immigration judges advise children of their apparent eligibility for SIJS, more children will have crucial information regarding potential immigration relief. These children will not early in their cases be erroneously ordered removed to countries where it may not be in their best interest to return, but will instead have the opportunity to seek assistance to take the necessary steps to secure SIJS. This will most significantly impact the many children who -- following this court's decision -- continue to navigate immigration removal proceedings pro se and who would not be aware of such relief but for being informed by an immigration judge.

Furthermore, in this decision, the 9th Circuit has signaled if a child is informed of his apparent eligibility for SIJS relief, immigration judges should not be prevented from granting continuances to allow the child to pursue SIJS. This is significant, as immigration judges are under increasing pressure to move cases along and off their dockets -- no matter the consequences for due process. If immigration judges provide information to children who present apparent eligibility for SIJS and grant continuances to allow these children to pursue SIJS, more children may be protected from erroneous removal from the United States.

While this ruling is a significant decision that will impact many children who appear in immigration removal proceedings in the 9th Circuit, the decision, disappointingly so, fails to address the related and important issue of the right to government-appointed counsel for children in removal proceedings. Though an immigration judge's identification of apparent SIJS eligibility is critical, without counsel these children cannot meaningfully access this unique protection Congress created for them. As a result, the decision does not engage the more crucial issue in this case -- whether children have a constitutional right to appointed counsel in immigration removal proceedings to ensure that the proceedings against them are fair, including the opportunity to seek SIJS or any other relevant protection from removal.

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

Any opinions in this article are not those of Winston & Strawn LLP or its clients. The opinions in this article are the author(s)' opinions only.