C.J.L.G. v. Barr

• Decision Date: 03 May 2019
• Docket Number: No. 16-73801,16-73801
• Citation: 923 F.3d 622
• Parties: C.J.L.G., A Juvenile Male, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

923 F.3d 622

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

v.William P. BARR, Attorney General, Respondent.

No. 16-73801

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc December 10, 2018 San Francisco, California

Filed May 3, 2019

HURWITZ, Circuit Judge:

A gang held 14-year-old C.J.L.G. ("CJ") at gunpoint in his native Honduras and threatened to kill his family after he rejected recruitment attempts. CJ and his mother Maria then fled their homeland and sought asylum in the United States. Although finding CJ credible, an immigration judge ("IJ") denied his request for asylum and ordered him removed. The Board of Immigration Appeals ("BIA") dismissed CJ’s appeal.

CJ petitions for review, arguing, among other things, that the IJ erred by failing to recognize he was an at-risk child potentially eligible for relief as a Special Immigrant Juvenile ("SIJ") and to so advise him. Because we conclude that the IJ erroneously failed to advise CJ about his eligibility for SIJ status, we grant the petition.

I. Background

In June 2014, CJ and Maria were apprehended in Texas after entering the country without inspection. Because Maria was the subject of a prior removal order, separate removal proceedings were instituted against CJ.

At his initial hearing before an IJ in November 2014, CJ appeared with Maria but without counsel. When the IJ informed them that she would "not appoint an attorney for [CJ]" but that they had "the right to find an attorney ... at [their] own expense," Maria said she did not "have money to pay for an attorney" but requested time to find one. Maria was unable to find counsel despite several continuances, and ultimately agreed to represent CJ herself. When Maria explained that CJ feared returning to Honduras "because of the gangs," the IJ gave her an asylum application and questioned her about her son. In response to one question, Maria stated that CJ’s father had left her long ago.

In June 2015, Maria filed the asylum application on CJ’s behalf. She also sought withholding of removal and protection under the Convention Against Torture. The IJ accepted the application and set CJ’s case for a hearing.

At that hearing, CJ testified that gang members threatened to kill him and other family members on three occasions after he rejected recruitment attempts. On the third occasion, CJ was held at gunpoint and given one day to decide whether to join the gang; he and Maria then fled Honduras. CJ testified that it had been "many years" since he had any contact with his father.

The IJ expressly found CJ credible but denied his applications for relief from removal. On appeal to the BIA, now represented by counsel, CJ contended that the IJ had erred by failing to appoint counsel or advise him about SIJ status. The BIA dismissed the appeal, concluding that, although the IJ must "inform the respondent of any apparent forms of relief from removal," CJ had not established eligibility for SIJ status. The BIA also found that it lacked jurisdiction to consider whether CJ had a constitutional right to appointed counsel.

A three-judge panel denied CJ’s petition for review. C.J.L.G. v. Sessions , 880 F.3d 1122, 1150–51 (9th Cir. 2018). The panel held that CJ had no right to appointed counsel and that the IJ did not err in failing to inform CJ about his potential ability to obtain SIJ status.¹ Id. at 1147–50.

A majority of active judges voted to grant CJ’s petition for rehearing en banc, and the panel opinion was vacated. C.J.L.G. v. Sessions , 904 F.3d 642, 642 (9th Cir. 2018).

II. Discussion

A.

An IJ is required to inform a petitioner subject to removal proceedings of "apparent eligibility to apply for any of the benefits enumerated in this chapter." 8 C.F.R. § 1240.11(a)(2). One of the benefits listed "in this chapter" is SIJ status. Id. § 1245.1(a), (e)(2)(vi)(B)(3).

Congress created SIJ status in 1990 to provide a path to lawful permanent residency for certain at-risk children. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5005–06; see Bianka M. v. Superior Court , 5 Cal.5th 1004, 236 Cal.Rptr.3d 610, 423 P.3d 334, 337–38 (2018). A child seeking SIJ protection must first obtain a state-court order declaring him dependent or placing him under the custody of a court-appointed "individual or entity." 8 U.S.C. § 1101(a)(27)(J)(i). The state court issuing the order must find that (1) "reunification with 1 or both ... parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law;" and (2) it would not be in the child’s "best interest to be returned to [his] parent’s previous country." Id. § 1101(a)(27)(J)(i)–(ii).²

After obtaining a state court order, the child must obtain the consent of the Secretary of Homeland Security to the granting of SIJ status by filing an I-360 petition with the United States Citizenship and Immigration Services ("USCIS"). See id. § 1101(a)(27)(J)(iii); 6 USCIS Policy Manual, pt. J, ch. 2(A), ch. 4(E)(1) (current as of Apr. 19, 2019). In reviewing an I-360 petition, "USCIS relies on the expertise of the juvenile court ... and does not reweigh the evidence," but may deny relief if it determines that the state court order had no reasonable factual basis or was sought "primarily or solely to obtain an immigration benefit." 6 USCIS Policy Manual, pt. J, ch. 2(D)(5); see H.R. Rep. No. 105-405, at 130 (1997) (Conf. Rep.).

If USCIS grants the petition, the child may apply for adjustment of status. 6 USCIS Policy Manual, pt. J, ch. 4(A). A "visa must be immediately available" when he applies. 8 C.F.R. § 1245.2(a)(2)(i)(A) ; see 8 U.S.C. § 1153(b)(4) (establishing quota for SIJ visas). A child who is not in removal proceedings applies to USCIS for adjustment of status, see 8 C.F.R. § 245.2(a)(1), but one in removal proceedings must seek it from the IJ, id. § 1245.2(a)(1)(i) ; 6 USCIS Policy Manual, pt. J, ch. 4(A) n.2. If the child was the subject of a removal order before obtaining SIJ status, he cannot adjust status unless the IJ also vacates the removal order. See 8 U.S.C. § 1182(a)(9)(A)(ii) (providing that a person under a removal order is inadmissible). The IJ has discretion both in deciding whether to reopen removal proceedings, see 8 C.F.R. § 1003.2(a), and in whether to grant a subsequent adjustment application, see 8 U.S.C. § 1255(a).

B.

The "apparent eligibility" standard of 8 C.F.R. § 1240.11(a)(2) is triggered whenever the facts before the IJ raise a "reasonable possibility that the petitioner may be eligible for relief." Moran-Enriquez v. INS , 884 F.2d 420, 423 (9th Cir. 1989). A failure to advise can be excused only when the petitioner’s eligibility for relief is not "plausible." See United States v. Rojas-Pedroza , 716 F.3d 1253, 1265–67 (9th Cir. 2013) (finding no prejudice from the IJ’s failure to advise about eligibility to apply for voluntary departure because it was not "plausible" IJ would grant it); United States v. Arrieta , 224 F.3d 1076, 1082–83 (9th Cir. 2000) (finding prejudice from the IJ’s advisement failure because excludability waiver under 8 U.S.C. § 1182(h) was "plausible").

The information presented during CJ’s proceedings made it reasonably possible that he could establish eligibility for SIJ status. Maria’s comment that CJ’s father left her "a long time ago," and CJ’s statement that he had no paternal contact for "many years" demonstrated that reunification with one parent might be impossible "due to ... abandonment." See 8 U.S.C. § 1101(a)(27)(J)(i). And CJ’s testimony about the death threats he received from the gang showed that returning to Honduras might not be in his "best interest." See id. § 1101(a)(27)(J)(ii). Indeed, once he became aware of his potential eligibility for SIJ status, CJ obtained the required state-court order and has now filed an I-360 petition.³

The government does not suggest that it was not reasonably possible at the time of CJ’s hearing that he could obtain SIJ status or that the IJ was not aware of the facts suggesting CJ’s eligibility for relief. Rather, it contends that SIJ status is not a form of relief from removal covered by 8 C.F.R. § 1240.11(a)(2). That argument fails. A successful SIJ application plainly can lead to relief from removal, see 6 USCIS Policy Manual, pt. J, ch. 4(A), and SIJ regulations are among those in the referenced subchapter, 8 C.F.R. § 1245.1(a), (e)(2)(vi)(B)(3).

In the alternative, the government argues that the IJ is only required to advise a juvenile of potential eligibility for SIJ relief after the child has obtained a state-court order, an approved I-360 petition from USCIS, and an immediately available visa. "We do not read the regulation so grudgingly. [It] obviously is meant to prompt the IJ to help an alien explore legal avenues of relief that might not be apparent to him or his attorney." Moran-Enriquez , 884 F.2d at 423. To adopt the government’s position here would require a minor to complete all but the final step for SIJ status—seeking adjustment of status from the IJ—before triggering the IJ’s duty to advise him of SIJ eligibility. This is a nonsensical approach. It would eviscerate the utility of advice by the IJ and substantially undermine the core purpose of the IJ’s duty to advise—to inform a minor of rights and avenues of relief of which he may not yet be aware .⁴

To be sure, CJ’s eventual ability to obtain SIJ status depended on future decisions by a state court and USCIS. But the regulation speaks of "apparent eligibility," not certain entitlement. 8 C.F.R. § 1240.11(a)(2). We have made plain that "[t]he regulations do not require ... a reviewing court to conclude that an alien would certainly qualify for relief." Bui v. INS , 76 F.3d 268, 271 (9th Cir. 1996). Thus, in Bui , we held that an IJ was required to advise Bui about potential eligibility for a waiver of excludability under 8 U.S.C. § 1182(h) even though the record did not show he could satisfy every element necessary to obtain relief. Id. To obtain the waiver, Bui had...