C.J.L.G. v. Sessions, 012918 FED9, 16-73801

Docket Nº:16-73801
Opinion Judge:CALLAHAN, Circuit Judge
Party Name:C.J.L.G., a Juvenile Male, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General, Respondent.
Attorney: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 ...
Judge Panel:Before: Consuelo M. Callahan and John B. Owens, Circuit Judges, and David A. Faber, District Judge. OWENS, Circuit Judge, concurring:
Case Date:January 29, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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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

January 29, 2018

          Argued and Submitted August 8, 2017 Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-838-888

          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.

         SUMMARY[**]

         Immigration

         The panel denied C.J.L.G.'s petition for review of a Board of Immigration Appeals decision, holding that neither the Due Process Clause nor the Immigration & Nationality Act creates a categorical right to court-appointed counsel at government expense for alien minors, and concluding that the Board's denial of asylum, withholding of removal, and relief under the Convention against Torture was supported by substantial evidence.

         The panel held that it is not established law that alien minors are categorically entitled to government-funded, court-appointed counsel and, applying the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), held that C.J. had not shown a necessity for such counsel to safeguard his due process right to a full and fair hearing.

         The panel incorporated its analysis of C.J.'s asylum claim into its Mathews analysis in determining that C.J. was not prejudiced by any procedural deficiencies in his proceeding. The panel concluded that the record compelled a finding that C.J. had a well-founded fear of persecution based on threats he received from the Mara gang when he resisted their recruitment efforts, but rejected C.J.'s asylum claim because he had not established that the threats had a nexus to a protected ground, or that the government was unable or unwilling to control the Maras. The panel deemed waived any argument that he was denied due process on his withholding and CAT claims, but noted that his withholding claim would also fail.

         The panel also rejected C.J.'s argument that the INA's fair hearing provision, § 1229a(b)(4)(B), implicitly requires court-appointed counsel at government expense for all alien minors.

         The panel further held that the IJ was not required to inform C.J. that he might be eligible for Special Immigrant Juvenile status, concluding that the IJ's duty to inform aliens of "apparent eligibility" for relief was not triggered because, at the time of his removal proceeding, C.J. did not have a state court order that could have made him apparently eligible for SIJ status.

         Finally, the panel concluded that the agency's denial of CAT relief was supported by substantial evidence. The panel concluded that 1) the Board did not err in concluding that C.J.'s experience of having a member of the Maras put a gun to his head did not amount to "severe pain or suffering;" 2) there was no showing that the Honduran government acquiesced in the act; and 3) the record did not compel the conclusion that the government either turned a blind eye to the Maras' threats or that it would be unable or unwilling to control the Maras in the future.

         Concurring, Judge Owens wrote that the majority's opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors, and observed that that is a different question that could lead to a different answer.

          OPINION

          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 (1977) (emphasis added) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (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 (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 ...

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