and Submitted En Banc December 10, 2018 San Francisco,
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A206-838-888
T. Arulanantham (argued), ACLU Foundation of Southern
California, Los Angeles, California; Aaron E. Millstein and
Theodore J. Angelis, K&L Gates LLP, Seattle, Washington;
Glenda M. Aldana Madrid and Matt Adams, Northwest Immigrant
Rights Project, Seattle, Washington; Stephen Kang, ACLU
Immigrants' Rights Project, San Francisco, California;
G. Stewart (argued) and W. Manning Evans, Senior Litigation
Counsel; John W. Blakeley, Assistant Director; Joseph H.
Hunt, Assistant Attorney General; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
Nareeneh Sohbatian and John E. Schreiber, Winston &
Strawn LLP, Los Angeles, California; Jonathan S. Goldstein,
Winston & Strawn LLP, San Francisco, California; for
Amicus Curiae Immigrant Legal Resource Center.
Dutton, Eunice Lee, Karen Musalo, and Blaine Bookey, Center
for Gender & Refugee Studies, San Francisco, California,
for Amicus Curiae Center for Gender & Refugee Studies.
A. Brundage and Lucy Wang, Morgan Lewis & Bockius LLP,
San Francisco, California; Daniel Grunfeld, Morgan Lewis
& Bockius LLP, Los Angeles, California; for Amici Curiae
Dr. Jennifer Woolard and Dr. Laurence Steinberg.
Brand and Harrison "Buzz" Frahn, Simpson Thacher
& Bartlett LLP, Palo Alto, California, for Amici Curiae
Former Federal Immigration Judges.
W. Schecter and Brian A. Procel, Miller Barondess LLP, Los
Angeles, California, for Amici Curiae Professor Kevin Lapp,
Associate Professor of Law, Loyola Law School, et al.
Tuttle, Munger Tolles & Olson LLP, Los Angeles,
California; Jonathan Meltzer, Munger Tolles & Olson LLP,
Washington, D.C.; for Amici Curiae Constitutional Law and
Procedure Scholars Judith Resnick and Brian Soucek.
Before: Sidney R. Thomas, Chief Judge, and Susan P. Graber,
M. Margaret McKeown, William A. Fletcher, Richard A. Paez,
Marsha S. Berzon, Johnnie B. Rawlinson, Consuelo M. Callahan,
Sandra S. Ikuta, Jacqueline H. Nguyen and Andrew D. Hurwitz,
C.J.L.G.'s petition for review of a Board of Immigration
Appeals' decision, the en banc court concluded that the
Immigration Judge who ordered C.J. removed erred by failing
to advise him about his apparent eligibility for Special
Immigrant Juvenile ("SIJ") status, and remanded.
status provides a path to lawful permanent residency for
at-risk children and requires a child to obtain a state-court
order declaring him dependent or placing him under the
custody of a court-appointed individual or entity. The state
court 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." 8
U.S.C. § 1101(a)(27)(J). 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"). If USCIS grants the
petition, the child may apply for adjustment of status, and a
visa must be immediately available when he applies.
banc court noted that, under 8 C.F.R. § 1240.11(a)(2),
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," and observed
that this court's case law provides that the
"apparent eligibility" standard is triggered
whenever the facts before the IJ raise a reasonable
possibility that the petitioner may be eligible for relief.
banc court concluded that the information presented during
CJ's proceedings made it reasonably possible that he
could establish eligibility for SIJ status. In this respect,
the en banc court concluded that (1) his mother's comment
that CJ's father left her a long time ago and CJ's
statement that he had had no paternal contact for many years
demonstrated that reunification with one parent might be
impossible due to abandonment; and (2) the death threats CJ
received from a gang in Honduras when he was 14 years old
showed that returning to that country might not be in his
banc court rejected the government's contention that SIJ
status is not a form of relief covered by the "apparent
eligibility" standard of 8 C.F.R. § 1240.11(a)(2),
explaining that a successful SIJ application plainly can lead
to relief from removal and that the SIJ regulations are among
those in the referenced subchapter. The en banc court also
rejected the government's contention that an 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. The en banc court concluded that
this approach 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.
banc court also observed that, although the IJ could not have
granted CJ relief from removal at the time of the hearing,
she could have continued the proceedings to allow him to
apply for SIJ status. Noting that any eventual decision to
grant or deny a continuance is within the discretion of the
IJ, the en banc court stated that the IJ should exercise that
decision in light of CJ's apparent eligibility for SIJ
status and may now also consider how far CJ has proceeded in
the SIJ process. Therefore, the en banc court granted the
petition for review, vacated the removal order, and remanded
for a new hearing before the IJ.
noting that CJ will be represented by counsel in future
administrative proceedings, the en banc court stated that it
need not address his contention that appointment of counsel
for minors in removal proceedings is constitutionally
Judge Paez wrote separately because he disagreed with the
majority's decision to remain silent on the issue of a
child's right to counsel in immigration removal
proceedings. Judge Paez would reach the fundamental question
raised in this proceeding: whether the Fifth Amendment's
guaranty of due process entitles children to appointed
counsel in immigration proceedings. He would hold that it
does, for indigent children under age 18 who are seeking
asylum, withholding of removal, relief under the Convention
Against Torture, or another form of relief for which they may
be eligible, such as SIJ status.
in part and concurring in the judgment, Judge Berzon wrote to
note that consideration of the right to counsel question for
minors in removal proceedings has been unnecessarily hindered
by this court's decisions in J.E.F.M. v. Lynch,
837 F.3d 1026 (9th Cir. 2016), reh'g en banc
denied, 908 F.3d 1157 (9th Cir. 2018) (Berzon, J.,
dissenting from denial of rehearing en banc), which held that
the right to counsel question must be considered in a
petition for review from an individual child's removal
proceedings, and not through a class action filed in the
district court. Judge Berzon wrote that a more developed
factual record than is available here would have given the
court more information on which to decide whether minors in
removal proceedings have a right to counsel and whether that
right is universal or may be limited to certain categories of
cases. Judge Berzon wrote that the court was not answering
any of those questions in this en banc proceeding, quite
possibly because of qualms concerning fashioning the precise
parameters of a right to counsel for minors in a single case.
Accordingly, Judge Berzon observed that the court shut one
door to the courthouse in J.E.F.M. on the promise of
keeping another open, only to duck out of that door-for
Judge Callahan, joined by Judge Ikuta, wrote that she must
dissent because the majority required more of the IJ than was
required or appropriate. Judge Callahan would hold that the
information presented at CJ's hearing before the IJ did
not create a reasonable possibility that CJ qualified for
relief. In this respect, Judge Callahan wrote that this court
has explained that an IJ is required to inform an alien only
of his "apparent eligibility" at the time of
Judge Callahan concluded that, even assuming that SIJ status
is a "benefit" contemplated by this regulation,
there was no such "apparent eligibility" at the
time of CJ's hearing: CJ had not commenced any proceeding
in a juvenile court, nor demonstrated any need or reason to
do so. Nor was there any evidence indicating whether the
Secretary of Homeland Security would consent to an
application by CJ, or that a visa was immediately available.
HURWITZ, CIRCUIT JUDGE:
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.
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.
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.
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.
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.
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.
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
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. 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).
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),
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, 423 P.3d 334,
337-38 (Cal. 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. §
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.
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).
"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)
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.
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),
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 ...