Perez v. Barr

• Decision Date: 27 April 2020
• Docket Number: No. 16-71918,16-71918
• Citation: 957 F.3d 958
• Parties: Victor Manuel PEREZ, aka Victor Perez, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

957 F.3d 958

Victor Manuel PEREZ, aka Victor Perez, Petitioner,

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

No. 16-71918

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 14, 2019

Vacated October 7, 2019

Resubmitted April 20, 2020 Pasadena, California

Filed April 27, 2020

Veronica Barba (argued), Lucas & Barba LLP, Los Angeles, California, for Petitioner.

Scott Grant Stewart (argued), Rosanne M. Perry and Rachel Browning, Trial Attorneys; Kohsei Ugumori, Senior Litigation Counsel; Emily Ann Radford, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Stephen Kang, ACLU Foundation Immigrants’ Rights Project, San Francisco, California; Ahilan T. Arulanantham and Jessica Karp Bansal, ACLU of Southern California, Los Angeles, California; for Amici Curiae ACLU Immigrants’ Rights Project and ACLU of Southern California.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX6-901

Before: Consuelo M. Callahan and Andrew D. Hurwitz, Circuit Judges, and Edward R. Korman,^* District Judge.^**

CALLAHAN, Circuit Judge:

Victor Manuel Perez, a native and citizen of Mexico, petitions for review of a final removal order of the Board of Immigration Appeals (BIA) denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). In the agency proceedings, an immigration judge (IJ) deemed Perez mentally incompetent to proceed pro se and provided a Qualified Representative (QR) in the form of legal counsel to represent Perez in his removal hearing and appeal to the BIA. Perez then asked this court to appoint him compensated counsel to represent him in connection with his petition for review from the BIA’s order. We in turn appointed pro bono counsel for Perez. The issue for decision is whether we can and should order the government to compensate appointed counsel for her services in representing Perez before this court. Because Perez and his amici curiae identify no authority allowing us to order the government to do so, we deny the request for compensation.

I.

The Department of Homeland Security (DHS) initiated removal proceedings against Perez in 2013. At Perez’s first appearance, the IJ ordered a competency inquiry. DHS later filed a Notification Pursuant to the Notice Criteria in the Franco-Gonzales Class Action¹ based on evidence of Perez’s mental health diagnoses. In March 2014, the IJ found that Perez was not competent to represent himself and appointed government-contracted legal counsel to be Perez’s QR in the removal proceedings.² With counsel’s assistance, Perez applied for asylum, withholding of removal, and CAT relief. After the IJ issued a written decision denying Perez’s applications for relief, Perez timely appealed to the BIA with the assistance of his QR. The BIA adopted and affirmed the IJ’s decision and dismissed Perez’s appeal.

Perez, with the assistance of his QR, then filed a pro se petition for review and a motion to proceed in forma pauperis before this court. His counsel also filed a motion to be appointed under the federal habeas statute, 28 U.S.C. § 2241, or the Criminal Justice Act (CJA), 18 U.S.C. § 3006A(a)(2)(B), to represent Perez in this petition for review. A motions panel of our court granted Perez’s motion to proceed in forma pauperis but denied counsel’s motion for statutory appointment. However, concluding that our review would benefit from the appointment of pro bono counsel, the panel asked Perez’s counsel whether she would accept appointment under the Ninth Circuit’s pro bono program; if not, the panel stated, other pro bono counsel would be appointed. Perez’s counsel accepted the pro bono appointment but requested that the denial of her motion be without prejudice to arguing before the merits panel that Perez was entitled to compensated counsel. The panel granted the request.

II.

Perez and amici argue that we have authority under the federal habeas statute, the All Writs Act, and the CJA, as informed by the Suspension Clause, to appoint and compensate counsel for mentally incompetent petitioners in petitions for review under 8 U.S.C. § 1252(a). According to Perez, because the Suspension Clause requires petitions for review under the REAL ID Act to serve as the functional equivalent of habeas petitions, we can and should exercise our authority to appoint him government-compensated counsel under the Criminal Justice Act and other provisions of federal law that allow us to do so in certain habeas petitions. These claims raise questions of law that we address de novo. See Montes-Lopez v. Gonzales , 486 F.3d 1163, 1165 (9th Cir. 2007).

A.

The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. 1, § 9, cl. 2. The Clause "ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that is itself the surest safeguard of liberty" and "protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer to account." Boumediene v. Bush , 553 U.S. 723, 745, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (citations omitted). Congress may not "eliminate the writ without running afoul of the Suspension Clause" unless it "provides ‘a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention.’ " Singh v. Mukasey , 533 F.3d 1103, 1106 (9th Cir. 2008) (quoting Swain v. Pressley , 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977) ). The Suspension Clause’s guarantee applies to the immigration context; the Supreme Court has held that "some ‘judicial intervention in deportation cases’ is unquestionably ‘required by the Constitution.’ " I.N.S. v. St. Cyr , 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (quoting Heikkila v. Barber , 345 U.S. 229, 235, 73 S.Ct. 603, 97 L.Ed. 972 (1953) ).

There are "few precedents addressing what features an adequate substitute for habeas corpus must contain," and Boumediene declined "to offer a comprehensive summary of the requisites for an adequate substitute for habeas corpus." 553 U.S. at 772, 779, 128 S.Ct. 2229. Boumediene , however, did highlight two "easily identified attributes of any constitutionally adequate habeas corpus proceeding." Id. at 779, 128 S.Ct. 2229. First, "the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law." Id. (quoting St. Cyr , 533 U.S. at 302, 121 S.Ct. 2271 ). Second, "the habeas court must have the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy and is not the appropriate one in every case in which the writ is granted." Id.

After Congress enacted prohibitions on judicial review of removal orders in the 1996 amendments to the Immigration and Nationality Act, the Supreme Court concluded that the Act did not repeal federal habeas jurisdiction given the "serious Suspension Clause issue" that would arise "if we were to accept the INS’ submission that the 1996 statutes have withdrawn [the power of habeas review] from federal judges and provided no adequate substitute for its exercise." St. Cyr , 533 U.S. at 305, 121 S.Ct. 2271. " St. Cyr left instructions for both Congress and the lower courts, with a view to conform with the requirements of the Suspension Clause: Congress was required to provide adequate and effective review for all aliens subject to removal" and courts "are required to interpret congressional enactments restricting the right to review consistent with the mandates of the Suspension Clause." Ramadan v. Gonzales , 479 F.3d 646, 653 (9th Cir. 2007) (per curiam).

In response, Congress enacted the REAL ID Act of 2005, which eliminated habeas corpus jurisdiction over final orders of removal, making petitions for review before the courts of appeal "the sole and exclusive means for judicial review" of such orders. 8 U.S.C. § 1252(a)(5). We have held the REAL ID Act does not violate the Suspension Clause because a petition for review under § 1252(a)(5) is "an adequate substitute for habeas proceedings." Puri v. Gonzales , 464 F.3d 1038, 1041 (9th Cir. 2006). We explained that "if a substitute remedy provides the same scope of review as a habeas remedy, it is adequate and effective." Id . at 1042 (citing Swain , 430 U.S. at 381–82, 97 S.Ct. 1224 ).

Perez and his amici suggest that the Suspension Clause requires more in his case: the appointment of government-compensated counsel. First, they argue that because petitions for review are substitutes for habeas proceedings, they must also provide the same procedural protections available in traditional habeas actions, including the appointment of government-compensated counsel for petitioners in appropriate cases. Second, they contend that because the Suspension Clause requires a "meaningful opportunity" to challenge detention orders, this court must have the authority to appoint compensated counsel to ensure Perez receives that opportunity.

We agree that a petition for review, in order to serve as an acceptable habeas substitute, must provide the petitioner "a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law." Boumediene , 553 U.S. at 779, 128 S.Ct. 2229 (quoting St. Cyr , 533 U.S. at 302, 121 S.Ct. 2271 ). We assume that there may be cases in which a mentally incompetent petitioner requires the assistance of counsel to seek meaningful review of a removal order and that appointment of counsel may be necessary in such cases. Bu...