C.J.L.G. v. Sessions

• Decision Date: 29 January 2018
• Docket Number: No. 16-73801,16-73801
• Citation: 880 F.3d 1122
• Parties: C.J.L.G., A Juvenile Male, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

880 F.3d 1122

C.J.L.G., A Juvenile Male, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 16-73801

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 8, 2017 Pasadena, California

Filed January 29, 2018

Ahilan Thevanesan Arulanantham (argued), ACLU Foundation of Southern California, Los Angeles, California; Stephen Kang, ACLU Immigrants' Rights Project, San Francisco, California; Matt Adams and Glenda M. Aldana Madrid, Northwest Immigrant Rights Project, Seattle, Washington; Theodore J. Angelis and Aaron E. Millstein, K&L Gates LLP, Seattle, Washington; Kristen Jackson and Talia Inlender, Public Counsel Law Center, Los Angeles, California; Kristin Macleod-Ball, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts; Melissa Crow and Karolina Walters, American Immigration Council, Washington, D.C.; Emily Chiang, ACLU of Washington, Seattle, Washington; for Petitioner.

Kiley L. Kane (argued), Senior Litigation Counsel; Stephen J. Flynn, Assistant Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

John E. Schreiber and Nareeneh Sohbatian, Winston & Strawn LLP, Los Angeles, California, for Amicus Curiae Immigrant Legal Resource Center.

Blaine Bookey, Karen Musalo, and Eunice Lee, San Francisco, California, as and for Amicus Curiae Center for Gender & Refugee Studies.

Robert A. Brundage and Lucy Wang, Morgan Lewis & Bockius LLP, San Francisco, California; Daniel Grunfeld, Morgan Lewis & Bockius LLP, Los Angeles, California; for Amici Curiae Dr. Jennifer Woolard and Dr. Laurence Steinberg.

Before: Consuelo M. Callahan and John B. Owens, Circuit Judges, and David A. Faber,^** District Judge.

Concurrence by Judge Owens

CALLAHAN, Circuit Judge:

"The right to counsel in immigration proceedings is rooted in the Due Process Clause [of the Fifth Amendment] and codified at 8 U.S.C. § 1362 and 8 U.S.C. § 1229a(b)(4)(A) [of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101, et seq. ]."¹ Biwot v. Gonzales , 403 F.3d 1094, 1098 (9th Cir. 2005). Sections 1362 and 1229a(b)(4)(A) set forth the scope and contours of this right, providing that the alien "shall have the privilege of being represented (at no expense to the Government) by such counsel ... as [the alien] shall choose." 8 U.S.C. § 1362 ; see also 8 U.S.C. § 1229a(b)(4)(A) (substantially the same); 8 C.F.R. § 1240.10(a)(1)–(2).

We have held that a corollary of this privilege is an immigration judge's ("IJ") duty to inform an alien of his right to counsel, and to ensure that any decision to waive that right be knowing and voluntary. See, e.g. , Montes-Lopez v. Holder , 694 F.3d 1085, 1088 (9th Cir. 2012) ; Baltazar-Alcazar v. INS , 386 F.3d 940, 945 (9th Cir. 2004) ; Jie Lin v. Ashcroft , 377 F.3d 1014, 1027 (9th Cir. 2004) ; United States v. Ahumada-Aguilar , 295 F.3d 943, 947 (9th Cir. 2002). But we have been careful to limit that right to Congress' express prescription.² Ever vigilant of the judiciary's restricted role in reviewing matters of immigration policy, we have heeded the Supreme Court's admonition that the " ‘power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control. ’ " Fiallo v. Bell , 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (emphasis added) (quoting Shaughnessy v. Mezei , 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed. 956 (1953) ). Consistent with this recognition, "courts have uniformly held in this circuit and elsewhere that ... [aliens] are not entitled to have counsel appointed at government expense." United States v. Gasca-Kraft , 522 F.2d 149, 152 (9th Cir. 1975), overruled on other grounds by United States v. Mendoza-Lopez , 481 U.S. 828, 834 n.9, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (collecting cases).

Petitioner C.J.L.G. ("C.J.") asks us to upend Congress' statutory scheme by reading into the Due Process Clause and the INA itself a categorical right to court-appointed counsel at government expense for alien minors. C.J. also argues that, in his removal proceeding before the IJ, the IJ erred by failing to inform him of his possible eligibility for Special Immigrant Juvenile ("SIJ") status. Finally, C.J. insists that, on the merits, the IJ and the Board of Immigration Appeals ("Board") erred in denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").

C.J. petitions for review of the Board's determination affirming the IJ's decision, and requests a remedy in the form of court-appointed counsel at government expense for himself and all similarly situated alien minors. He seeks court-appointed counsel both for a new removal proceeding before the IJ, and for purposes of pursuing his application for SIJ status, a related but separate legal journey that begins in California state court.

Because we hold that neither the Due Process Clause nor the INA creates a categorical right to court-appointed counsel at government expense for alien minors, and because we conclude that the Board's determination on the merits is supported by substantial evidence, we deny C.J.'s petition.³

I.

A.

C.J. is a sympathetic petitioner. A native and citizen of Honduras, he repeatedly spurned the Mara gang's entreaties to join its ranks despite death threats made against him and his family. After the Maras threatened C.J. at gunpoint, C.J. and his mother, Maria, fled Honduras.

On June 21, 2014, C.J. and Maria arrived in the United States without inspection.⁴ C.J. was 13 years old at the time. The Department of Homeland Security ("DHS") apprehended C.J. and Maria four days later, and served Maria with a notice to appear ("NTA") for C.J. Maria signed the NTA on behalf of her son. DHS provided Maria with a list of organizations that provide pro bono legal services.

In September 2014, DHS placed C.J. in removal proceedings in Los Angeles based on his illegal entry into the United States. C.J. appeared for his November 25, 2014 hearing with Maria but without legal representation, as he would for each of his hearings before the IJ. The government was represented by counsel at all of the hearings. Because neither Maria nor C.J. speaks English, an interpreter was provided.

B.

At the November 2014 hearing, the IJ informed Maria that her son had "the right to have an attorney" at private expense. When Maria told the IJ that she did not have money for an attorney, the IJ told her that she had "two options": "Either we can go forward and you can speak and represent your son here today," or "I can continue your case to another day" to give Maria time to secure counsel. Maria accepted the IJ's offer to continue the case.

At the next hearing, held on January 25, 2015, Maria told the IJ that she had "looked for an attorney and they are charging me $6,500 for each one, so I could not afford that amount." The IJ then ordered a three-month continuance, but told Maria that it would be the last one, and that, if she returned without an attorney, C.J.'s case would go forward.

The third hearing was held on April 24, 2015. Because Maria had still not retained counsel, the IJ told her that she would proceed with the case and that Maria could "represent your son here today." Maria said that she understood. The IJ then told Maria and C.J. that they had the right to present documents and other evidence, and could review and object to the government's evidence. The IJ also told them that they could call witnesses and question the government's witnesses.

The IJ then went over the NTA with Maria. Maria conceded the allegation that C.J. had unlawfully entered the United States because he was not admitted or paroled. The IJ therefore found C.J. removable. The IJ then proceeded to ask Maria several questions about C.J., in the course of which Maria stated that C.J.'s father had left them "a long time ago." The IJ then asked Maria if C.J. had a "fear of returning back to Honduras because of his race or religion or nationality or political opinion or membership in a social group." Maria answered: "Yes, because of the gangs." The IJ responded: "Ma'am, I will tell you right now that most likely that is not going to be a reason for [C.J.] to remain in the United States."

The IJ then gave Maria an asylum form to complete. The IJ again told Maria that she could continue looking for an attorney to represent C.J. in his removal proceedings. When the IJ asked Maria if she had any questions, Maria said: "[T]ell me about the asylum." The IJ responded: "Well, we don't need—you mean about why the fear or what happened?" Maria replied: "Well, yes, I am fearful to have my child return to Honduras." To which the IJ said: "Okay. Well, that's what you can put in all the applications and bring that back."

Maria filed the asylum application at the next hearing, held on June 29, 2015. The application contains threadbare statements in support of C.J.'s asylum claim and much of what is written is borderline inscrutable and non-responsive.⁵ Nevertheless, after reviewing the application, the IJ stated: "Everything looks to be okay at this point, so I'm going to go ahead and accept the application." The IJ then set the case for one more hearing, and reiterated to Maria that she could still try to hire an attorney. The IJ also provided Maria with a 2014 State Department country conditions report for Honduras, which was in English.

The proceeding reconvened on February 29, 2016. C.J. was still unrepresented. The IJ asked Maria if she would be "assisting [C.J.] as you've been doing in the past," and she said that she would. The IJ then asked C.J. questions under oath regarding his background and asylum application. The IJ asked C.J. if he had had any contact with his father, and C.J. confirmed that he had not for many years. After admitting into the record C.J.'s asylum application,...