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C.J.L.G. v. Barr

United States Court of Appeals, Ninth Circuit

May 3, 2019

C.J.L.G., A Juvenile Male, Petitioner,
v.
William P. Barr, Attorney General, Respondent.

          Argued and Submitted En Banc December 10, 2018 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-838-888

          Ahilan 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; for Petitioner.

          Scott 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.

          Anne Dutton, Eunice Lee, Karen Musalo, and Blaine Bookey, Center for Gender & Refugee Studies, San Francisco, California, for Amicus Curiae Center for Gender & Refugee Studies.

          Robert 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.

          Lee Brand and Harrison "Buzz" Frahn, Simpson Thacher & Bartlett LLP, Palo Alto, California, for Amici Curiae Former Federal Immigration Judges.

          David 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.

          Eric 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, Circuit Judges.

         SUMMARY[*]

         Immigration

         Granting 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.

         SIJ 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.

         The en 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.

         The en 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 best interest.

         The en 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.

         The en 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.

         Finally, 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 required.

         Concurring, 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.

         Concurring 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 now-as well.

         Dissenting, 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 the hearing.

         Accordingly, 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.

          OPINION

          HURWITZ, CIRCUIT JUDGE:

         A gang 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.

         CJ 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.

         I. Background

         In June 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.

         At his 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.

         In June 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.

         At that 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.

         The IJ 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 counsel.

         A 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.[1] 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).

         II. Discussion

         A.

         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." 8 C.F.R.§ 1240.11(a)(2). One of the benefits listed "in this chapter" is SIJ status. Id. § 1245.1(a), (e)(2)(vi)(B)(3).

         Congress 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. § 1101(a)(27)(J)(i)- (ii).[2]

         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"). 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. Rep.).

         If 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).

         B.

         The "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) was "plausible").

         The 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.[3]

         The 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), (e)(2)(vi)(B)(3).

         In the 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 ...


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