J.E.F.M. v. Holder

• Decision Date: 13 April 2015
• Docket Number: C14–1026 TSZ
• Citation: 107 F.Supp.3d 1119
• Parties: J.E.F.M., et al., Plaintiffs, v. Eric H. Holder, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

107 F.Supp.3d 1119

J.E.F.M., et al., Plaintiffs,

v.Eric H. Holder, et al., Defendants.

C14–1026 TSZ

United States District Court, W.D. Washington, At Seattle.

Signed April 13, 2015

Ahilan T. Arulanantham, Carmen G. Iguina, ACLU of Southern California, Kristen Jackson, Talia Inlender, Public Counsel, Los Angeles, CA, Beth Werlin, Emily Creighton, Kristin MacLeod–Ball, Melissa Crow, American Immigration Council, Washington, DC, Cecillia Wang, Stephen B. Kang, ACLU Immigrants' Rights Project, San Francisco, CA, Glenda Melinda Aldana Madrid, Matt Adams, Northwest Immigrant Rights Project, Sarah A. Dunne, ACLU of Washington, Theodore J. Angelis, Todd L. Nunn, Heidi Craig Garcia, K & L Gates LLP, La Rond Baker, Margaret Chen, American Civil Liberties Union of Washington, Seattle, WA, for Plaintiffs.

Colin A. Kisor, Elianis N. Perez, Erez Reuveni, Joseph A. Darrow, Leon Fresco, Margaret Kuehne Taylor, Nicole N. Murley, Sarah S. Wilson, William Charles Silvis, Yamileth G. Davila, Department of Justice, Washington, DC, for Defendants.

ORDER

Thomas S. Zilly, United States District Judge

THIS MATTER comes before the Court on defendants' motion to dismiss, docket no. 80, based on lack of jurisdiction and failure to state a claim. Having considered all of the materials filed in support of, and in opposition to, the motion, and the oral arguments of counsel, the Court enters the following order.

Background

In this action, nine juveniles ranging in age from 3 to 17, on behalf of themselves and others similarly situated,¹ assert both a statutory and a constitutional claim that they are entitled to have attorneys appointed to represent them at government expense in connection with their removal proceedings.² They assert the statutory claim under § 240 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229a, and they bring the constitutional claim under the Due Process Clause of the Fifth Amendment. As to five of the nine plaintiffs, three of whom are siblings, removal proceedings are ongoing. See 2d Am. Compl. ¶¶ 13–16, 18, & 85 (docket no. 95). As to the other four plaintiffs, however, removal proceedings are not currently pending.³

Under the INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), an alien is "removable" if (i) he or she was not admitted to the United States and is "inadmissible" under 8 U.S.C. § 1182, or (ii) he or she was admitted to the United States and is "deportable" under 8 U.S.C. § 1227. See 8 U.S.C. § 1229a(e)(2). Before the enactment of IIRIRA, a distinction had been drawn between "exclusion" and "deportation" of individuals. See Dormescar v. U.S. Att'y Gen., 690 F.3d 1258, 1260 (11th Cir.2012) ; see also U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317 (1950). "Excludable" aliens, meaning those who sought but had not yet achieved admission, were treated as though they were detained at the border, even if they were physically present within the United States, Dormescar, 690 F.3d at 1260, and "excludable" aliens were entitled to fewer procedural protections than "deportable" aliens, Mariscal–Sandoval v. Ashcroft, 370 F.3d 851, 854 (9th Cir.2004). When IIRIRA became effective on April 1, 1997, see Pub.L. No. 104–208, § 309(a), 110 Stat. 3009 (1996), exclusion and deportation proceedings were merged into the broader category of "removal" proceedings. Mariscal–Sandoval, 370 F.3d at 854 n. 6.

Removal proceedings are conducted before an immigration judge, and such proceedings are "the sole and exclusive" means for determining whether an alien may be admitted to or removed from the United States. 8 U.S.C. §§ 1229a(a)(1) & (3). Pursuant to INA § 240(b), an alien in a removal proceeding may offer evidence on his or her own behalf and may review the evidence and cross-examine the witnesses presented by the Government. 8 U.S.C. § 1229a(b)(4)(B). An alien also has the statutory "privilege of being represented, at no expense to the Government, by counsel of the alien's choosing" in both "removal proceedings before an immigration judge" and "appeal proceedings before the Attorney General." 8 U.S.C. §§ 1229a(b)(4)(A) & 1362. In this case, plaintiffs contend that, because they are unable to retain counsel, for either financial or other reasons, they cannot exercise their statutory right to present evidence and cross-examine witnesses and are being denied their constitutional right to due process of law.

Discussion

Defendants move to dismiss for lack of subject-matter jurisdiction and for failure to state a claim. Defendants' motion to dismiss was filed before the Court entered its order denying plaintiffs' earlier motion for a preliminary injunction, see Order (docket no. 81), and before plaintiffs sought and were granted leave to file their Second Amended Complaint.⁴ Although jurisdiction was addressed in the Court's prior order, additional plaintiffs have now been named and the jurisdictional issues more squarely concern the right-to-counsel claim, as opposed to the continuances or stays plaintiffs sought in their motion for a preliminary injunction. The Court will therefore consider defendants' jurisdictional arguments anew.

A. Jurisdiction

Defendants assert three overlapping reasons for dismissing this action for lack of jurisdiction:⁵ (i) lack of ripeness; (ii) the jurisdiction-stripping and channeling provisions of IIRIRA, as amended by the REAL ID Act of 2005; and (iii) sovereign immunity. Defendants' arguments can be distilled into one basic premise, namely that plaintiffs can and should be required to raise their right-to-counsel claim in their removal proceedings and then seek review of the predictably unfavorable result by the Board of Immigration Appeals ("BIA") and the appropriate court of appeals.

Plaintiffs appear to view defendants' analysis as stating a form of Catch–22.⁶ Plaintiffs contend that, as children, they lack the capacity to request an attorney in the midst of a removal proceeding, to appeal to the BIA, or to petition for review by a court of appeals, and that they cannot be assisted in any of these endeavors by a lawyer without thereby forfeiting their claim to appointment of counsel. In other words, according to plaintiffs, they cannot feasibly ask for an attorney without the help of an attorney, but if they receive the help of an attorney, then they cannot ask for an attorney at government expense.

This alleged paradox presupposes cognitive limitations on the part of all alien juveniles that the Court is not ready to accept.⁷ The Court is persuaded, however, that the jurisdictional hurdles defendants seek to erect would create a different unfair result. Assuming an alien minor, acting pro se, successfully navigated the immigration labyrinth all the way to the appropriate court of appeals, he or she would arrive there without the record necessary to conduct the balancing of interests required by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), in connection with a due process right-to-counsel claim.⁸ An immigration judge, who has no authority to appoint an attorney at government expense, would have no reason to hold an evidentiary hearing or engage in the Mathews analysis. Absent an endeavor by an immigration judge to weigh the Mathews factors with regard to a right-to-counsel claim, neither the BIA nor a court of appeals would have anything to review. Meanwhile, the petitioner would likely have turned 18 while the appeal was pending, meaning that remand to develop a record would not be a viable option and the claim of a right to counsel for alien juveniles would remain unresolved. A different youth might later take up the cause and run the same gauntlet, but with probably the same result.

The Court is of the opinion that the due process question plaintiffs have raised in this case is far too important to consign it, as defendants propose, to the perhaps perpetual loop of the administrative and judicial review process. A fundamental precept of due process is that individuals have a right "to be heard ‘at a meaningful time and in a meaningful manner’ " before "being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction." Mathews, 424 U.S. at 333, 96 S.Ct. 893. Unlike some other legal doctrines, due process is "not a technical conception with a fixed content unrelated to time, place and circumstances," but rather is "flexible and calls for such procedural protections as the particular situation demands." Id. at 334, 96 S.Ct. 893 (quoting Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), and Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ). Whether plaintiffs' constitutional due process right-to-counsel claim has merit cannot yet be determined, but plaintiffs deserve, and the Court concludes that it has jurisdiction (at least with respect to juveniles currently in removal proceedings) to eventually provide an answer. With respect to plaintiffs' statutory claim, however, the Court lacks jurisdiction.

1. Ripeness

Defendants contend that plaintiffs' right-to-counsel claim is not ripe because no named plaintiff has yet, during the course of removal proceedings, requested and been refused an attorney at government expense. Defendants' argument has merit with respect to minors against whom removal proceedings have not yet been initiated. A claim "is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ " Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) ). Removal proceedings might never be commenced with respect to G.D.S. and A.E.G.E., and their claims asserting a constitutional or statutory right to the...