Ninth Circuit twice dodges question of right to counsel for kids in immigration cases
05/02/2019, Litigation, Immigration
Update: Full Ninth Circuit dodges right to counsel issue in C.J.L.G., but concurrence would have supported right to counsel in part
After granting rehearing, the full Ninth Circuit ruled that C.J.L.G. prevailed on the merits of his immigration claim, then held that "Because CJ will be represented by counsel in future administrative proceedings, we need not address his contention that appointment of counsel is constitutionally required ... If a new order of removal is entered, these issues (including any claim based on denial of counsel remaining after new proceedings before the IJ) can be addressed in a future petition for review."
Three of the judges concurred, stating they would reached the question of whether children have a right to counsel in immigration cases and "hold that it does, for indigent children under age 18 who are seeking asylum, withholding of removal, CAT, or another form of relief for which they may be eligible, such as SIJ status."
Update: Ninth Circuit panel rules against right to counsel in C.J.L.G., but full Ninth Circuit decides to rehear case
A 3-member panel of the 9th Circuit ruled against C.J.L.G., but the full 9th Circuit has vacated the opinion and set the case for an en banc hearing.
Update: Ninth Circuit dismisses F.L.B.
A panel of the 9th Circuit dismissed F.L.B. on procedural grounds (not relating to the merits of the right to counsel claims), although a separate concurrence describes at length the disturbing trend of children representing themselves in immigration proceedings. It is anticipated that the plaintiffs will seek re-hearing from the full 9th Circuit en banc. The dismissal of the case was covered by Politico, the Huffington Post, the ABA Journal, NPR, and the Seattle Times.
A class action filed in federal court, F.L.B. v. Lynch, seeks a constitutional right to counsel for all immigrant children in deportation proceedings. The suit was filed by The American Civil Liberties Union, American Immigration Council (AIC), Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP.
In April 2015, the federal court denied the government's motion to dismiss the case. The court observed that immigration cases fall outside the U.S. Supreme Court's decision in Turner v. Rogers because "The removal proceedings at issue in this case pit juveniles against the full force of the federal government -- the government initiates the proceedings, it is represented in them, and its discretion in executing removal orders is insulated from judicial review." The court also said that "courts have repeatedly recognized '[w]ith only a small degree of hyperbole' that the immigration laws are 'second only to the Internal Revenue Code in complexity'" and that removal 'might be the same or worse than incarceration for some minor aliens." Then in April 2016, the court tentatively certified a class (indigent children under 18 in deportation proceedings in the 9th Circuit who could be eligible for asylum). The Seattle Times covered the class action decision.
On June 24, 2016, the court certified a class of indigent children under 18 in deportation proceedings in the 9th Circuit who could be eligible for asylum, relief under the Convention Against Torture, or have a colorable claim for citizenship.
In 2016, a new case, C.J.L.G. v. Sessions, re-raised the right to counsel for children in immigration removal proceedings. While brought on behalf of one child, it acts as a test case for the larger issue. The case was argued before the 9th Circuit in August 2017.
The case has received extensive news coverage. A Washington Post story discussing the case has gotten significant play because one of the government’s experts ("Jack H. Weil, a longtime immigration judge who is responsible for training other judges") testified that "3- and 4-year-olds can learn immigration law well enough to represent themselves in court." A NY Times editorial entitled "Migrant Children Deserve a Voice" responded to this absurd assertion and supported a right to counsel for all children in these proceedings, while also mentioning the Senator Reid bill that is pending (the Fair Day In Court For Kids Act). And the Attorneys General of California and Washington, Human Rights Watch, former federal immigration judges, and a coalition of immigrant advocacy groups have filed amicus briefs in support of the right to counsel for children in immigration cases. Notably, Hillary Clinton said in TIME Magazine that "what I've called for is counsel for every child so that no child has to face any kind of process without someone who speaks and advocates for that child, so that the right decision hopefully can be made", and made similar statements during one of the Democratic primary debates.
Read more about the case (including media coverage and links to the oral arugment and complaint) in our comprehensive bibliography, or watch the oral argument. You can also read more about immigrant children issues generally in our comprehensive bibliography.
The NCCRC contributed to an amicus brief in the CJLG case filed by law professors.