J. E. F.M. v. Whitaker, s. 15-35738

• Citation: 908 F.3d 1157 (Mem)
• Decision Date: 13 November 2018
• Docket Number: Nos. 15-35738,15-35739,s. 15-35738
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• 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. Matthew WHITAKER, Acting Attorney General; Juan P. Osuna, Director, Executive Office for Immigration Review; Jeh Charles 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 Mathews Burwell, Secretary, Health and Human Services; Eskinder Negash, Director, Office of Refugee Resettlement, Defendants-Appellants Cross-Appellees.

908 F.3d 1157 (Mem)

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.Matthew WHITAKER, Acting Attorney General; Juan P. Osuna, Director, Executive Office for Immigration Review; Jeh Charles 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 Mathews 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.

Filed November 13, 2018

Dissent by Judge Berzon

ORDER

The panel votes to deny the petition for rehearing.

The full court has been advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

The plaintiffs in this case are a class of thousands of unrepresented children the United States seeks to expel from the country. Many arrived here after fleeing violence and persecution, and many could be eligible for asylum, Special Immigrant Juvenile Status ("SIJS"), or other protections. Some arrived accompanied by an adult; others did not. To obtain relief, they all will be required to represent themselves against trained government attorneys in adversarial proceedings involving the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq ., a code of law "second only to the Internal Revenue Code in complexity." Castro-O'Ryan v. INS , 847 F.2d 1307, 1312 (9th Cir. 1987) (quoting E. Hull, Without Justice For All 107 (1985) ).

The class of children in this case do not challenge any orders of removal or ask the district court to grant them relief from removal.¹ Instead, they maintain that they have a due process and statutory right to appointed counsel in the removal proceedings they face.

The panel did not allow the merits of their right-to-counsel claim to be heard. Instead, it shut the courthouse doors on them, broadly proclaiming that 8 U.S.C. § 1252(b)(9) strips district courts of jurisdiction to hear "any issue—whether legal or factual—arising from any removal-related activity." J.E.F.M. v. Lynch , 837 F.3d 1026, 1031 (9th Cir. 2016). According to the panel, the children's right-to-counsel claims can be raised only in individual petitions for review of final orders of removal ("PFR") to the appropriate circuit court. Id.² The issue in this case then, is not the merits of the right-to-counsel claim. The issue is only how and where such a claim may be raised.

Contrary to the panel's conclusion, the relevant statutes do allow the children to raise their right-to-counsel claim in an affirmative habeas action. That procedure, unlike appellate review of an individual removal order, provides the opportunity for full litigation of their claim, including: (1) litigation through a class action rather than by each child individually; (2) representation of the class for purposes of the right-to-counsel question by public interest organizations that lack the capacity to represent each class member individually; and (3) development of a record regarding the need for and value of attorneys that cannot be developed in individual removal proceedings. We should have reheard this case en banc to correct the panel's errors and given these children—and others potentially affected by the panel's rigid procedural ruling—their day in court.

I.

The plain language of the statute, our circuit's case law, and Supreme Court precedent all indicate that 8 U.S.C. § 1252(b)(9) bars district court review of a claim only where an order of removal has been entered and an individual seeks relief from that order. Because the immigration proceedings involving the class of children here have not reached that stage, there is no statutory barrier to allowing this case to go forward.

A.

The panel's opinion relies on 8 U.S.C. § 1252(b)(9), which provides:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

But the panel ignores that § 1252(b)(9) is a sub-provision of § 1252(b), which begins:

(b) Requirements for review of orders of removal

With respect to review of an order of removal under subsection (a)(1), the following requirements apply: ....

Section 1252(b)(9) is one of the "requirements" listed under § 1252(b). In context and as a matter of plain language, it "appl[ies]" "[w]ith respect to review of an order of removal." So § 1252(b)(9) does not apply before such an order has been entered, to a claim that does not seek review of such an order. "[W]hen deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme." King v. Burwell , ––– U.S. ––––, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (quotation marks omitted). The panel opinion entirely ignores the introductory language in § 1252(b) and so errs in interpreting § 1252(b)(9) outside its statutory context.

The provisions surrounding § 1252(b)(9) confirm that the provision applies only to challenges to final orders of removal. Like § 1252(b)(9), every other sub-provision under § 1252(b) assumes that a final order of removal has been entered. For example, § 1252(b)(1) requires a PFR to be filed "no later than 30 days after the date of the final order of removal." Section 1252(b)(2) establishes as the appropriate venue for review of a PFR the court of appeals "in which the immigration judge completed the proceedings." See also, e.g. , § 1252(b)(3) (specifying that service of a PFR must be on the officer in charge of the "district in which the final order of removal" was entered); § 1252(b)(4) (requiring review of a PFR to be "only on the administrative record on which the order of removal is based").

The Supreme Court has confirmed that the statute means exactly what it says. INS v. St. Cyr explained that § 1252(b)(9)"applies only ‘[w]ith respect to review of an order of removal under subsection (a)(1).’ " 533 U.S. 289, 313, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting 8 U.S.C. § 1252(b) ).

Congress could have written § 1252(b) to apply generally to all issues relating to actions or proceedings brought to remove an alien from the United States. Alternatively, it could have placed § 1252(b)(9) in a different part of the statute. But Congress chose instead to apply all the "requirements" specified under § 1252(b), including § 1252(b)(9), only to "review of an order of removal."

In short, § 1252(b)(9) applies only when an order of removal has been entered and the petitioner seeks review of that order. The children in this case have not been ordered removed, so they cannot be, and are not, seeking review of a removal order. Section 1252(b)(9)'s channeling directive is simply inapplicable.

In coming to the opposite conclusion, the panel reasoned that when Congress enacted § 1252(b)(9) in 1996, it adopted the expansive jurisdiction-channeling language suggested in McNary v. Haitian Refugee Ctr., Inc. , 498 U.S. 479, 494, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). J.E.F.M. , 837 F.3d at 1036. But that conclusion once again ignores the introductory language in § 1252(b) and so elides the critical difference between the language suggested in McNary and § 1252(b)(9) : In revising the statute, Congress located § 1252(b)(9) under § 1252(b), and thus limited its application to "review of an order of removal." Cf. Mace v. Skinner , 34 F.3d 854, 857, 859 (9th Cir. 1994) (holding that a statute restricting jurisdiction to review "[a]ny order ... issued by the Board" did not apply to a case that was "not based on the merits of [an] individual situation").

Nor does the Supreme Court's recent decision in Jennings v. Rodriguez , ––– U.S. ––––, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018), narrow the impact of the introductory language in § 1252(b) on § 1252(b)(9). Jennings held that § 1252(b)(9) did not bar district court review of a challenge to immigration detention. Three (of eight) justices acknowledged that the detention claims at issue in that case were not "challenging any part of the process by which their removability will be determined," but they did not hold that § 1252(b)(9) would bar such a challenge if raised. Id . at 841 (opinion of Alito, J., joined by Roberts, C.J., and Kennedy, J.). Rather, they confined their analysis of § 1252(b)(9) to "present purposes," and expressly disclaimed any "attempt to provide a comprehensive interpretation" of that provision. Id. at 840–41. Three other justices concluded that § 1252(b)(9) did not bar the detention challenges at issue because the provision "applies only ‘[w]ith respect to review of an order of removal.’ " Id . at 876 (Breyer, J., dissenting, joined by Ginsburg and Sotomayor, JJ.) ...