J.E.F.M. v. Lynch

• Decision Date: 20 September 2016
• Docket Number: 15–35739,Nos. 15–35738,s. 15–35738
• Citation: 837 F.3d 1026
• Parties: J.E.F.M., a minor, by and through his Next Friend, Bob Ekblad; J. F.M., a minor, by and through his Next Friend Bob Ekblad; D.G. F.M., a minor, by and through her Next Friend, Bob Ekblad; F. L.B., a minor, by and through his Next Friend, Casey Trupin; G. D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J.E. V.G.; A.E. G.E.; G.J. C.P., Plaintiffs–Appellees/Cross–Appellants, v. Loretta E. Lynch, Attorney General; Juan P. Osuna, Director, Executive Office for Immigration Review ; Jeh Johnson, Secretary, Homeland Security; Thomas S. Winkowski, Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement; Nathalie R. Asher, Field Office Director, ICE ERO ; Kenneth Hamilton, AAFOD, ERO; Sylvia M. Burwell, Secretary, Health and Human Services; Eskinder Negash, Director, Office of Refugee Resettlement, Defendants–Appellants Cross–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

837 F.3d 1026

J.E.F.M., a minor, by and through his Next Friend, Bob Ekblad; J. F.M., a minor, by and through his Next Friend Bob Ekblad; D.G. F.M., a minor, by and through her Next Friend, Bob Ekblad; F. L.B., a minor, by and through his Next Friend, Casey Trupin; G. D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J.E. V.G.; A.E. G.E.; G.J. C.P., Plaintiffs–Appellees/Cross–Appellants,

v.Loretta E. Lynch, Attorney General; Juan P. Osuna, Director, Executive Office for Immigration Review ; Jeh Johnson, Secretary, Homeland Security; Thomas S. Winkowski, Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement; Nathalie R. Asher, Field Office Director, ICE ERO ; Kenneth Hamilton, AAFOD, ERO; Sylvia M. Burwell, Secretary, Health and Human Services; Eskinder Negash, Director, Office of Refugee Resettlement, Defendants–Appellants Cross–Appellees.

Nos. 15–35738

15–35739

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 7, 2016, Seattle, Washington

Filed September 20, 2016

Erez Reuveni (argued), Senior Litigation Counsel; Leon Fresco, Deputy Assistant Attorney General; Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants–Appellants/Cross–Appellees.

Ahilan Thevanesan Arulanantham (argued), ACLU Immigrants' Rights Project, ACLU of Southern California, Los Angeles, California; Heidi Craig Garcia, Todd Nunn, and Theodore J. Angelis, K&L Gates LLP, Seattle, Washington; Glenda M. Aldana Madrid and Matt Adams, Northwest Immigrant Rights Project, Seattle, Washington; Cecillia Wang and Stephen Kang, ACLU Immigrants' Rights Project, San Francisco, California; Melissa Crow, American Immigration Council, Washington, DC; Talia Inlender, Kristen Jackson, and Charanya Krishnaswami, Public Counsel, Los Angeles, California; Carmen Iguina, ACLU of Southern California, Los Angeles, California, for Plaintiffs–Appellees/Cross–Appellants.

Marsha Chien, Assistant Attorney General; Colleen Melody, Civil Rights Unit Chief; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; Kamala D. Harris, Attorney General; Office of the Attorney General, Sacramento, California; for Amici Curiae States of Washington and California.

Charles G. Wentworth, The Law Office of Lofgren & Wentworth P.C., Glen Ellyn, Illinois; Charles Roth, National Immigrant Justice Center, Chicago, Illinois; for Amici Curiae National Immigrant Justice Center; American Immigration Lawyers Association; Ayuda; Capital Area Immigrants' Rights Coalition; Catholic Legal Immigration Network, Inc.; Community Legal Services in East Palo Alto; Diocesan Migrant & Refugee Services, Inc.; First Focus; Florence Immigrant and Refugee Rights Project; Hebrew Immigrant Aid Society—Pennsylvania; Human Rights Initiative of

North Texas; Immigrant Defenders Law Center; Immigrant Law Center of Minnesota; National Immigration Law Center; National Justice for Our Neighbors; Pangea Legal Services; Pennsylvania Immigrant Resource Center; Puentes: Advocacy, Counseling & Education; Refugee and Immigrant Center for Education and Legal Services; the Advocates for Human Rights; Unlocal, Inc.; and U.S. Committee for Immigrants and Refugees.

Paul W. Rodney, Holly E. Sterrett, and R. Reeves Anderson, Arnold & Porter LLP, Denver, Colorado; Sally L. Pei, Arnold & Porter LLP, Washington, D.C.; for Amici Curiae Former Federal Immigration Judges.

Elisa S. Solomon, Covington & Burling LLP, New York, New York; Risa E. Kaufman, Human Rights Institute, Columbia Law School, New York, New York; for Amicus Curiae Human Rights Watch.

Before: Andrew J. Kleinfeld, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.

Concurrence by Judge McKeown ;

Concurrence by Judge Kleinfeld

OPINION

McKEOWN, Circuit Judge:

This interlocutory appeal requires us to answer a single question: does a district court have jurisdiction over a claim that indigent minor immigrants without counsel have a right to government-appointed counsel in removal proceedings? Our answer to this jurisdictional query is no. We underscore that we address only the jurisdictional issue, not the merits of the claims. Congress has clearly provided that all claims—whether statutory or constitutional—that “aris[e] from” immigration removal proceedings can only be brought through the petition for review process in the federal courts of appeals. 8 U.S.C. §§ 1252(a)(5) & (b)(9). Despite the gravity of their claims, the minors cannot bypass the immigration courts and proceed directly to district court. Instead, they must exhaust the administrative process before they can access the federal courts.

BACKGROUND

The appellees (collectively the “minors” or “children”) are immigrant minors, aged three to seventeen, who have been placed in administrative removal proceedings. The children are at various stages of the removal process: some are waiting to have their first removal hearing, some have already had a hearing, and some have been ordered removed in absentia. None of the children can afford an attorney, and each has tried and failed to obtain pro bono counsel for removal proceedings.

The children, suing on behalf of themselves and a class, claim a due process¹ and statutory right to appointed counsel at government expense in immigration proceedings.² They claim that, as minors, they “lack the intellectual and emotional capacity of adults,” yet are “force[d] ... to appear unrepresented in complex, adversarial court proceedings against trained [government] attorneys.” According to the complaint, this lack of representation “ensure[s] that [they and] thousands of children [are] deprived of a full and fair opportunity to identify defenses or seek relief for which they qualify” in immigration court.

The children acknowledge that, generally, an immigrant who has been placed in removal proceedings can challenge those proceedings only after exhausting administrative remedies and filing a petition for review (PFR) in a federal court of appeals. But they argue that this case falls outside the general rule because, in light of the complex nature of removal proceedings and the appeals process, minors cannot effectively raise right-to-counsel claims through the PFR process. As a result, they conclude, they would be denied meaningful judicial review of their right-to-counsel claims if the district court lacked jurisdiction to hear the case.

The government moved to dismiss the complaint on multiple grounds, including ripeness (because in some cases the removal proceedings had not commenced and in others they had not concluded at the time the complaint was filed) and jurisdiction (because the Immigration and Nationality Act (INA) channels judicial review of claims arising out of removal proceedings through the PFR process. 8 U.S.C. §§ 1252(a)(5) & (b)(9) ). The district court granted the government's motion in part and denied it in part. As to ripeness, the court dismissed for lack of jurisdiction the named parties “against whom removal proceedings have not yet been initiated,” reasoning that “[r]emoval proceedings might never be commenced.” The other children's claims were ripe because the agency did not have authority to appoint counsel or to declare a statute barring government-funded counsel unconstitutional, and “[e]xhaustion is not required to make a claim ripe when the agency lacks authority to grant relief.”

The district court then turned to the government's jurisdictional challenge. The court recognized that the INA's judicial review mechanism, 8 U.S.C. §§ 1252(a)(5) and 1252(b)(9), “is broad in scope” and was “designed to consolidate and channel review of all legal and factual questions that arise from the removal of an alien into the administrative process, with judicial review of those decisions vested exclusively in the courts of appeal.” (quoting Aguilar v. ICE , 510 F.3d 1, 9 (1st Cir. 2007) (emphasis in original)).

Despite the statutory strictures, the district court identified an exception to the INA's exclusive review process and concluded that it had jurisdiction over the minors' due process right-to-counsel claims. Citing McNary v. Haitian Refugee Center, Inc. , 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), and City of Rialto v. West Coast Loading Corporation , 581 F.3d 865 (9th Cir. 2009), the court explained that the due process claims challenged a procedure or policy collateral to the substance of removal proceedings and, in light of the fact that “an immigration judge is unlikely to conduct the requisite [due process] balancing, the administrative record would be insufficient to provide a basis for meaningful judicial review.” Conversely, the district court held that it lacked jurisdiction over the statutory right-to-counsel claims, in part because “the [constitutional] balancing standard does not apply and ... concerns about the adequacy of the administrative record are not warranted.”

The government filed this interlocutory appeal, challenging the district court's determination that it had jurisdiction over the constitutional claims. The minors cross-appealed, disputing, among other issues, the district court's dismissal of the statutory claims.

ANALYSIS

I. The Immigration and Nationality Act Provides Exclusive Judicial Review through the Petition for Review Process.

This appeal turns on our interpretation of two provisions of the INA, so we begin with the statute.³ The section titled “Exclusive means of review,” 8 U.S.C. § 1252(a)(5), prescribes the vehicle for judicial review: “[A] petition for review ... shall be the sole and exclusive means for judicial review of an order of removal ....” Lest there be any question about the scope of judicial review, § 1252(b)(9) mandates that “[j]udicial review of all questions of law and fact, including interpretation and application of...