J. F.M. v. Loretta Lynch , 837 F.3d 1026 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. E. F.M., a minor, by and Nos. 15-35738
through his Next Friend, Bob 15-35739
Ekblad; J. F.M., a minor, by and
through his Next Friend Bob D.C. No.
Ekblad; D. G. F.M., a minor, by 2:14-cv-01026-TSZ
and through her Next Friend,
Bob Ekblad; F. L.B., a minor, by
and through his Next Friend, OPINION
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
2 J.E. F.M. V. LYNCH
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.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted July 7, 2016
Seattle, Washington
Filed September 20, 2016
Before: Andrew J. Kleinfeld, M. Margaret McKeown,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge McKeown;
Concurrence by Judge McKeown;
Concurrence by Judge Kleinfeld
J.E. F.M. V. LYNCH 3
SUMMARY*
Immigration
The panel affirmed in part and reversed in part the district
court’s jurisdictional determinations in a class action brought
by indigent minor immigrants alleging that they have due
process and statutory rights to appointed counsel at
government expense in immigration proceedings.
The panel affirmed the district court's dismissal for lack
of jurisdiction of the minors' statutory claims for
court-appointed counsel. The panel held that because the
right-to-counsel claims “arise from" removal proceedings,
they must be raised through the administrative petition for
review process pursuant to 8 U.S.C. §§ 1252(b)(9) and
1252(a)(5).
The panel reversed the district court's determination that
it had jurisdiction over the minors’ constitutional claims. The
panel held that the district court erred in finding that an
exception to the Immigration and Nationality Act’s exclusive
review process provided jurisdiction over the due process
right-to-counsel claims. The panel held that the district court
incorrectly found that the claims challenged a policy or
practice collateral to the substance of removal proceedings,
and that because an Immigration Judge was unlikely to
conduct the requisite due process balancing the administrative
record would not provide meaningful judicial review.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 J.E. F.M. V. LYNCH
Specially concurring, Judge McKeown, joined by Judge
M. Smith, wrote to highlight the plight of unrepresented
children in immigration proceedings, and to underscore that
the Executive and Congress have the power to address this
crisis without judicial intervention.
Specially concurring, Judge Kleinfeld agreed that it is
unlikely that children or even adults can protect all their
rights in deportation proceedings without a lawyer. Judge
Kleinfeld wrote that solving the representation problem is a
highly controversial political matter, and that advocating for
a particular reform is unnecessary and better left to the
political process.
COUNSEL
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; for Plaintiffs-Appellees/Cross-
Appellants.
J.E. F.M. V. LYNCH 5
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,
6 J.E. F.M. V. LYNCH
Columbia Law School, New York, New York; for Amicus
Curiae Human Rights Watch.
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
J.E. F.M. V. LYNCH 7
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
1
Immigration proceedings are civil, not criminal, in nature. Thus, the
right-to-counsel claims invoke the Fifth Amendment’s due process
requirement, not the Sixth Amendment’s right-to-counsel provision, which
is reserved for criminal proceedings.
2
This appeal was taken from the district court’s order dismissing the
second amended complaint, which was brought on behalf of all minors
without counsel. The district court denied the government’s motion to stay
the proceedings pending resolution of the interlocutory appeal. After the
briefs were filed in this case, the minors filed a third amended complaint,
redefined the proposed class to include an indigency limitation, and
dismissed some of the named plaintiffs. None of this activity affects our
analysis.
8 J.E. F.M. V. LYNCH
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)).
J.E. F.M. V. LYNCH 9
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 (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.
10 J.E. F.M. V. LYNCH
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 constitutional
and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States
. . . shall be available only in judicial review of a final order
. . . .”
Section 1252(b)(9) is, as the First Circuit noted,
“breathtaking” in scope and “vise-like” in grip and therefore
swallows up virtually all claims that are tied to removal
proceedings. See Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir.
2007). Taken together, § 1252(a)(5) and § 1252(b)(9) mean
that any issue—whether legal or factual—arising from any
removal-related activity can be reviewed only through the
PFR process. See Viloria v. Lynch, 808 F.3d 764, 767 (9th
Cir. 2015) (“It is well established that this court’s jurisdiction
over removal proceedings is limited to review of final orders
of removal.”); cf. Bibiano v. Lynch, — F.3d —, 2016 WL
4409351, at *5 (9th Cir. 2016) (holding that 8 U.S.C.
§ 1252(b)(2)’s venue provision is not jurisdictional, but
contrasting the venue statute with other statutes in the INA
that use the terms “judicial review” or “jurisdiction”).
3
Section 1252(b)(9) encompasses both the statutory and
constitutional claims, which the parties acknowledge stand or fall together.
J.E. F.M. V. LYNCH 11
Although §§ 1252(a)(5) and 1252(b)(9) might seem
draconian at first glance, they have two mechanisms that
ensure immigrants receive their “day in court.” Singh v.
Gonzales, 499 F.3d 969, 979 (9th Cir. 2007). First, while
these sections limit how immigrants can challenge their
removal proceedings, they are not jurisdiction-stripping
statutes that, by their terms, foreclose all judicial review of
agency actions. Instead, the provisions channel judicial
review over final orders of removal to the courts of appeals.
See Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2132 (2012)
(explaining that heightened scrutiny is not appropriate where
Congress channels judicial review of constitutional questions
to a particular court but does not deny all judicial review of
those questions). The Supreme Court has thus characterized
§ 1252(b)(9) as a “‘zipper’ clause,”4 Reno v. Am.-Arab Anti-
Discrimination Comm. (AAADC), 525 U.S. 471, 483 (1999),
explaining that the statute’s purpose “is to consolidate
‘judicial review’ of immigration proceedings into one action
in the court of appeals[.]” INS v. St. Cyr, 533 U.S. 289, 313
& n.37 (2001).
Second, and equally importantly, § 1252(b)(9) has built-in
limits. By channeling only those questions “arising from any
action taken or proceeding brought to remove an alien,” the
statute excludes from the PFR process any claim that does not
arise from removal proceedings. Accordingly, claims that are
independent of or collateral to the removal process do not fall
4
“The term ‘zipper clause’ comes from labor law, where it refers to
a provision in a collective bargaining agreement that prohibits further
collective bargaining during the term of the agreement or, more generally,
that limits the agreement of the parties to the four corners of the contract.”
Gerald L. Neuman, Jurisdiction and the Rule of Law After the 1996
Immigration Act, 113 Harv. L. Rev. 1963, 1984–85 (2000).
12 J.E. F.M. V. LYNCH
within the scope of § 1252(b)(9). See Torres-Tristan v.
Holder, 656 F.3d 653, 658 (7th Cir. 2011) (“Ancillary
determinations made outside the context of a removal
proceeding, however, are not subject to direct review.”);
Aguilar, 510 F.3d at 11 (reading “arising from” “to exclude
claims that are independent of, or wholly collateral to, the
removal process”); see also City of Rialto, 581 F.3d at 874
(recognizing that McNary allowed the petitioners to challenge
a policy that was collateral to their substantive eligibility for
relief).
Thus, we have distinguished between claims that “arise
from” removal proceedings under § 1252(b)(9)—which must
be channeled through the PFR process—and claims that are
collateral to, or independent of, the removal process. See
Aguilar, 510 F.3d at 11; Nadarajah v. Gonzales, 443 F.3d
1069, 1075–76 (9th Cir. 2006); Singh, 499 F.3d at 979. For
example, in Nadarajah v. Gonzales, we held that an
immigrant could challenge his five-year administrative
detention by filing a petition for a writ of habeas corpus in
district court, notwithstanding § 1252(b)(9). 443 F.3d at
1075–76. Nadarajah had “prevailed at every administrative
level of review,” had been granted asylum, and had “never
been charged with any crime,” yet was being held in
detention “without any established timeline for a decision on
when he may be released from detention.” Id. at 1071, 1075.
We explained that § 1252(b)(9) “does not apply to federal
habeas corpus provisions that do not involve final orders of
removal.” Id. at 1075. Because “Nadarajah ha[d] prevailed
at every administrative level” and been granted asylum, his
petition did not involve a final order of removal, and
§ 1252(b)(9) did not channel jurisdiction to the courts of
appeals. Id. at 1076.
 J.E. F.M. V. LYNCH 13
Similarly, in the unique situation in Singh v. Gonzales, we
recognized that the district court had jurisdiction over the
petitioner’s ineffective-assistance-of-counsel claim that arose
after his attorney failed to file a timely PFR. 499 F.3d at 980.
We noted that Singh’s claim could not have been raised
before the agency because it arose after a final order of
removal was entered and, absent habeas review, Singh would
have had no legal avenue to obtain judicial review of this
claim. We therefore concluded that his petition did not
challenge a final order of removal under § 1252(b)(9). Id. at
979. We did not, however, allow Singh to raise a different
ineffective assistance of counsel claim that arose before a
final order of removal entered and that could and should have
been brought before the agency. Id. at 974; cf. Skurtu v.
Mukasey, 552 F.3d 651, 658 (8th Cir. 2008) (distinguishing
Singh and holding that a right-to-counsel claim must be
brought through the PFR process because the claim is a
“direct result of the removal proceedings”).
In contrast, in Martinez v. Napolitano, we held in the
context of a district court challenge under the Administrative
Procedure Act that “[w]hen a claim by an alien, however it is
framed, challenges the procedure and substance of an agency
determination that is ‘inextricably linked’ to the order of
removal, it is prohibited by section 1252(a)(5).” 704 F.3d
620, 623 (9th Cir. 2012).
In light of §§ 1252(b)(9) and 1252(a)(5) and our
precedent, the children’s right-to-counsel claims must be
raised through the PFR process because they “arise from”
removal proceedings. The counsel claims are not
independent or ancillary to the removal proceedings. Rather,
these claims are bound up in and an inextricable part of the
administrative process. The First Circuit was the first court
14 J.E. F.M. V. LYNCH
to consider whether a right-to-counsel claim falls outside the
scope of § 1252(b)(9). The court unequivocally said no.
Thus, we agree with the court’s analysis in Aguilar that, “[b]y
any realistic measure, the alien’s right to counsel is part and
parcel of the removal proceeding itself. . . . [A]n alien’s right
to counsel possesses a direct link to, and is inextricably
intertwined with, the administrative process that Congress so
painstakingly fashioned.” Aguilar, 510 F.3d at 13.
Right-to-counsel claims are routinely raised in petitions
for review filed with a federal court of appeals. See, e.g.,
Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008)
(holding that the petitioner did not knowingly and voluntarily
waive the right to counsel); Zepeda-Melendez v. INS, 741
F.2d 285, 289 (9th Cir. 1984) (holding that the INS’s
deportation of an immigrant without notice to counsel
violated the immigrant’s statutory right to counsel). In part,
this is because immigration judges have an obligation to ask
whether a petitioner wants counsel: “Although [immigration
judges] may not be required to undertake Herculean efforts to
afford the right to counsel, at a minimum they must inquire
whether the petitioner wishes counsel, determine a reasonable
period for obtaining counsel, and assess whether any waiver
of counsel is knowing and voluntary.” Biwot v. Gonzales,
403 F.3d 1094, 1100 (9th Cir. 2005). An immigration judge’s
failure to inquire into whether the petitioner wants (or can
knowingly waive) counsel is grounds for reversal. See id. As
we discuss below, special protections are provided to minors
who are unrepresented. See infra at pp. 21–22.
The legislative history of the INA, as well as amendments
to § 1252(b)(9), confirm that Congress intended to channel all
claims arising from removal proceedings, including right-to-
counsel claims, to the federal courts of appeals and bypass the
J.E. F.M. V. LYNCH 15
district courts. Consolidation of the review process for
immigration orders of removal began in 1961, when Congress
amended the INA to channel immigrants’ challenges to their
removal proceedings to the courts of appeals via the PFR.5
H.R. Rep. No. 87-1086, at 22 (1961), as reprinted in 1961
U.S.C.C.A.N. 2950, 2966; see also Magana-Pizano v. INS,
152 F.3d 1213, 1220 (9th Cir. 1998) (recognizing 1961
changes to INA), vacated on other grounds, 526 U.S. 1001
(1999) (mem.). The change was intended to “create a single,
separate, statutory form of judicial review of administrative
orders for the [removal] of aliens from the United States” and
to shorten the time frame for judicial review of deportation
orders by “eliminat[ing] . . . a suit in a District Court.” H.R.
Rep. No. 109-72, at 172 (2005) (Conf. Rep.), reprinted in
2005 U.S.C.C.A.N. 240, 297–301 (citations omitted).
Congress continued to streamline judicial review of
immigration proceedings in 1996, when it enacted the Illegal
Immigration Reform and Immigrant Responsibility Act
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3546 (1996).
IIRIRA “repealed the old judicial-review scheme . . . and
instituted a new (and significantly more restrictive) one in
5
The text of the 1961 statute differs from the text of §§ 1252(a)(5)
and 1252(b)(9). It reads: “[The petition for review process] shall apply to,
and shall be the exclusive procedure for, the judicial review of all final
orders of deportation . . . made against aliens within the United States
pursuant to administrative proceedings . . . .” 8 U.S.C. § 1105a(a) (1964).
As we explained in Magana-Pizano, the statute was subject to various
“interim measures” from 1961 to 1996. 152 F.3d at 1220. In 1996,
Congress repealed § 1105a(a) and enacted § 1252(b)(9). AAADC,
525 U.S. at 475. It enacted § 1252(a)(5) in 2005 as part of the REAL ID
Act. Singh, 499 F.3d at 977. In each of these amendments, Congress has
consistently sought to channel judicial review of immigration proceedings
through the PFR process.
16 J.E. F.M. V. LYNCH
8 U.S.C. § 1252.” AAADC, 525 U.S. at 475. The new
judicial review provisions were designed to make perfectly
clear “that only courts of appeals—and not district
courts—could review a final removal order,” that “review of
a final removal order is the only mechanism for reviewing
any issue raised in a removal proceeding,” and that the statute
was “intended to preclude all district court review of any
issue raised in a removal proceeding.”6 H.R. Rep. No. 109-
72, at 173.
When it enacted § 1252(b)(9) in 1996, Congress was
legislating against the backdrop of recent Supreme Court law.
In 1991, in McNary v. Haitian Refugee Center, the Court
offered a blueprint for how Congress could draft a
jurisdiction-channeling statute that would cover not only
individual challenges to agency decisions, but also broader
challenges to agency policies and practices. A group of
immigrants, who applied unsuccessfully for amnesty under
the special agricultural workers (SAW) program (or thought
they would be unsuccessful in the future), filed an action in
district court, alleging injuries caused by “unlawful practices
6
In the REAL ID ACT of 2005, Congress amended § 1252(b)(9) to
clarify that federal courts lack habeas jurisdiction over orders of removal.
The statute now contains an additional sentence on habeas jurisdiction, but
the operative jurisdiction-channeling language has not changed from 1996.
The 2005 amendment provides that: “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.”
8 U.S.C. § 1252(b)(9). Congress amended the statute in response to St.
Cyr, in which the Supreme Court held that the pre-2005 version of
§ 1252(b)(9) did not clearly strip the courts of habeas jurisdiction over
immigrants who had committed crimes. See H.R. Rep. No. 109-72, at
173.
J.E. F.M. V. LYNCH 17
and policies adopted by the INS in its administration of the
SAW program.” 498 U.S. at 487. The Court held that, under
the governing statute, the district court had jurisdiction to
hear a challenge to INS practices and policies because the
statute channeled only individual—not wider policy—claims
through the PFR process.7
Of significance to our analysis, the Court explained that
Congress could have crafted language to channel challenges
to agency policies through the PFR process if it had chosen
to do so:
[H]ad Congress intended the limited review
provisions of § 210(e) . . . to encompass
challenges to INS procedures and practices, it
could easily have used broader statutory
language. Congress could, for example, have
. . . channel[ed] into the Reform Act’s special
review procedures “all causes . . . arising
under any of the provisions” of the
legalization program. It moreover could have
. . . referr[ed] to review “on all questions of
law and fact” under the SAW legalization
program.
Id. at 494 (citations omitted).
In McNary, the Court did everything but write the future
statute and so it makes sense to presume that Congress was
aware of this precedent when it amended the INA in 1996.
7
The operative language in the statute at issue in McNary provided
that “judicial review of a determination respecting an application for
adjustment of status” must be brought through a PFR. Id. at 486, 491.
18 J.E. F.M. V. LYNCH
See United States v. Wells, 519 U.S. 482, 495 (1997) (“[W]e
presume that Congress expects its statutes to be read in
conformity with [the Supreme Court’s] precedents. . . .”).
With this presumption in mind, we note that § 1252(b)(9)
neatly tracks the policy and practice jurisdiction-channeling
language suggested in McNary: the amended section channels
review of “all questions of law and fact” to the courts of
appeals for all claims “arising from any action taken or
proceeding brought to remove an alien from the United
States.” 8 U.S.C. § 1252(b)(9). Thus, the legislative history
and chronology of amendments to § 1252(b)(9) confirm the
plain meaning of the statute. We conclude that §§ 1252(a)(5)
and 1252(b)(9) channel review of all claims, including
policies-and-practices challenges, through the PFR process
whenever they “arise from” removal proceedings. Because
the children’s right-to-counsel claims arise from their
removal proceedings, they can only raise those claims
through the PFR process. Aguilar, 510 F.3d at 13.
II. The Minors Have Not Been Denied All Forms of
Meaningful Judicial Review.
The minors do not seriously dispute that the plain text of
§ 1252(b)(9) prohibits them from filing a complaint in federal
district court. Instead, they attempt to get around the statute
by claiming that they have been (or will be) denied
meaningful judicial review in light of their juvenile status. In
other words, they argue that § 1252(b)(9), as applied in this
context, creates a Catch-22 that effectively bars all judicial
review of their claims.
The argument goes as follows: Minors who obtain
counsel in their immigration proceedings will be unable to
raise right-to-counsel claims because they have no such
J.E. F.M. V. LYNCH 19
claim. As a practical matter, children who lack counsel will
be unable to reach federal court to raise a right-to-counsel
claim because they are subject to the same exhaustion
requirements and filing deadlines that apply to adults. Even
if an unrepresented child were able to navigate the PFR
process, the child would still be deprived of meaningful
judicial review, because the record on appeal would be
insufficient to sustain review. Because, according to the
minors, their right-to-counsel claims will never see the light
of day through the PFR process, the panel should construe
§ 1252(b)(9) as not covering these claims.
The assertion that the minors will be denied meaningful
judicial review stems from dicta in McNary. In McNary, the
Court noted that the SAW regime imposed several practical
impediments to judicial review. Most importantly, SAW
procedures “d[id] not allow applicants to assemble adequate
records” for review.8 498 U.S. at 496. Agency interviews
were neither recorded nor transcribed, and SAW applicants
had “inadequate opportunity” to present evidence and
witnesses on their own behalf. Id. Because the
administrative record was minimal, the courts of appeals
“[had] no complete or meaningful basis upon which to review
application determinations.” Id. As a result, if the workers
were “not allowed to pursue their claims in the District Court,
[they] would not as a practical matter be able to obtain
meaningful judicial review of their application denials or of
8
The Court cited two other aspects of the SAW program that were
problematic but are not pertinent here: first, under the statute, judicial
review was available only if immigrants voluntarily surrendered
themselves for deportation after being denied relief, and second, the
plaintiffs “adduced a substantial amount of evidence, most of which would
have been irrelevant in the processing of a particular individual
application.” 498 U.S. at 496–97.
20 J.E. F.M. V. LYNCH
their objections to INS procedures.” Id. Citing the “well-
settled presumption favoring interpretations of statutes that
allow judicial review of administrative action,” the Court
concluded that it is “most unlikely that Congress intended to
foreclose all forms of meaningful judicial review.” Id.
The difficulty with the minors’ argument is that McNary
was, at its core, a statutory interpretation case involving a
completely different statute.9 See Shalala v. Ill. Council on
Long Term Care, Inc., 529 U.S. 1, 14 (2000) (declining to
apply McNary because it “turned on the different language of
that different statute,” and noting that “the Court suggested
that statutory language similar to the language at issue
here—any claim ‘arising under’ . . . —would have led it to a
different legal conclusion”). The point in McNary was that
Congress used language (“a determination respecting an
application” for SAW status) that did not encompass the
constitutional pattern and practice claims urged by the
workers. As a consequence, their claims fell outside of the
narrow channeling provisions of the statute.
9
Because this case turns on the interpretation of the statute, the
district court’s reliance on cases involving different statutes is misplaced.
See Proyecto San Pablo v. INS, 189 F.3d 1130 (9th Cir. 1999) (holding
that the district court had jurisdiction to hear challenges to agency policies
under a statute that read “[t]here shall be judicial review of a [denial of an
application for adjustment of status by the agency] only in the judicial
review of an order of deportation,” 8 U.S.C. § 1255a(f)(4)(A)); and Ortiz
v. Meissner, 179 F.3d 718 (9th Cir. 1999) (holding that the district court
had jurisdiction to hear policies and practices challenge under 8 U.S.C.
§§ 1255a(f) and 1160(e), which provided that “[t]here shall be judicial
review of such a denial only in the judicial review of an order of exclusion
or deportation[.]”). Neither case involved the zipper clause of
§ 1252(b)(9) or the “arising from” language. Both Proyecto and Ortiz
analyzed McNary only in the context of the Immigration Reform and
Control Act.
J.E. F.M. V. LYNCH 21
In providing two alternative formulations of channeling
language, the Court more than foreshadowed what language
would be “expansive” enough to remove district court
jurisdiction. Thus, the Court’s note to Congress laid out the
language necessary to limit “challenges to INS procedures
and practices.” McNary, 498 U.S. at 494. McNary does not
provide an avenue for litigants to circumvent an unambiguous
statute.
We would be naive if we did not acknowledge that having
an unrepresented minor in immigration proceedings poses an
extremely difficult situation. But we are not convinced that
agency removal proceedings raise the same concerns that
were present in the SAW proceedings. Unlike the SAW
program, removal hearings are recorded and transcribed and
provide a basis for meaningful judicial review. Immigration
judges are both trained and required to probe the record and
to ask questions to elicit information about possible avenues
of relief. See 8 U.S.C. § 1229a(b)(1) (detailing immigration
judges’ obligation to “administer oaths, receive evidence, and
interrogate, examine, and cross-examine the alien and any
witnesses”). Immigration judges must “adequately explain
the hearing procedures to the alien,” Agyeman v. INS,
296 F.3d 871, 877 (9th Cir. 2002), and where immigrants
proceed pro se, the judges have a duty to “fully develop the
record.” Id. (quoting Jacinto v. INS, 208 F.3d 725, 733–34
(9th Cir. 2000)). They are also required to inform immigrants
of any ability to apply for relief from removal and the right to
appeal removal orders. See United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004).
Unrepresented minors receive additional special
protections in removal proceedings. Unless the child is
accompanied by “an attorney or legal representative, a near
22 J.E. F.M. V. LYNCH
relative, legal guardian, or friend,” the immigration judge
cannot accept the child’s admission of removability. 8 C.F.R.
§ 1240.10(c). Immigration judges also must ensure that any
waiver of the right to counsel is knowing and voluntary; on
review, we can “indulge every reasonable presumption
against waiver,” United States v. Cisneros-Rodriguez,
813 F.3d 748, 756 (9th Cir. 2015) (citation omitted), and
when the petitioner is a minor, we factor “the minor’s age,
intelligence, education, information, information, and
understanding and ability to comprehend” into our analysis.
Jie Lin v. Ashcroft, 377 F.3d 1014, 1033 (9th Cir. 2004).
Further, recognizing “a growing need for support systems the
courts can use to effectively and efficiently manage the cases
of unaccompanied minors,” in 2014, the Office of the Chief
Immigration Judge provided guidelines for “The Friend of the
Court Model for Unaccompanied Minors in Immigration
Proceedings.” Although the friend of the court does not act
as a representative, the friend’s assistance role can be critical
in monitoring the proceedings. These protections distinguish
removal proceedings from the SAW program, and the
concerns highlighted by McNary are not in play.
At argument, counsel for the children claimed that it was
essentially impossible to get the right-to-counsel claim before
a federal court. This assertion is belied by the fact that the
minors’ counsel has previously raised a right-to-counsel
claim through the PFR process. See Guzman-Heredia v.
Gonzales, No. 04-72769 (9th Cir.). In Guzman-Heredia, the
petitioner was a fourteen-year-old boy who was placed in
removal proceedings. He explained to the immigration judge
“that he had been unable to find an attorney to represent him
and requested that the Immigration Judge appoint an attorney
for him.” The judge denied the request, stating that he could
not “give people a free lawyer.” The immigration judge then
J.E. F.M. V. LYNCH 23
ordered the petitioner removed, and the Board of Immigration
Appeals affirmed. At this stage, the petitioner obtained pro
bono counsel, who argued in a PFR that:
Petitioner’s Fifth Amendment right to due
process was violated when the Immigration
Judge refused to appoint an attorney to
represent him in removal proceedings.
Because Petitioner is an unaccompanied child
of 14 years of age, he is of limited cognitive
abilities and lacks understanding of legal
process. Due to the seriousness of the
proceedings against him and the importance
of the interest at stake, namely immigration
proceedings in which the government seeks to
remove Petitioner from his family, home and
school in the United States, the Constitution
compels that Petitioner have been afforded the
protection of appointed counsel at public
expense.
Id. Although the case ultimately settled, Guzman-Heredia
lays rest to the contention that right-to-counsel claims will
never surface through the PFR process.
The reality is that current counsel for the minors are in a
unique position to bring multiple test cases on the counsel
issue.10 The claim in this suit is that indigent minors are
10
Following discussion at oral argument, to facilitate a test case,
through December 2016 the government is providing the children’s
counsel with notice of any minor without counsel that the government is
aware of ordered removed by an immigration judge following a merits
hearing. To take the government at its word that it is willing to cooperate
24 J.E. F.M. V. LYNCH
entitled to government-provided counsel as a matter of
constitutional and statutory right. For accompanied minors,
a parent could make the claim or, for unaccompanied minors,
a next friend could help them do so.11 Even better, the IJ and
the government could acknowledge that absent a knowing
and voluntary waiver, a minor proceeding without counsel
has de facto requested a right to court-appointed counsel.
Under any of these scenarios, a right-to-counsel claim is
teed up for appellate review. It is true that at present neither
the immigration judge nor the Board of Immigration Appeals
has authority to order court-appointed counsel. But the
question at hand is a legal one involving constitutional rights.
Even if not raised in the proceedings below, the court of
appeals has authority to consider the issue because it falls
within the narrow exception for “constitutional challenges
that are not within the competence of administrative agencies
to decide” and for arguments that are “so entirely foreclosed
. . . that no remedies [are] available as of right” from the
agency.12 Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004) (first quotation); Alvarado v. Holder, 759 F.3d 1121,
with counsel, the government should continue such notice.
11
The Friend of the Court Model for Unaccompanied Minors can
provide an avenue for counsel to play a role in individual proceedings.
For example, one of the children’s counsel appeared as a friend in an
individual immigration proceeding in July 2016 and stated that although
he did not represent the child, “for whatever value it has in the record that
[the minor] does I know want appointed counsel.” See Attachment to
Government’s Letter to the Court, dated August 18, 2016.
12
Under the statute, immigrants in removal proceedings have “the
privilege of being represented, at no expense to the Government, by
counsel of the alien’s choosing.” 8 U.S.C. § 1229a(b)(4)(A). Agency
regulations recognize the same privilege. 8 C.F.R. § 238.1(b)(2).
J.E. F.M. V. LYNCH 25
1128 (9th Cir. 2014) (second quotation; quotation marks and
citation omitted, first alteration in original); see also, e.g.,
Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per
curiam) (recognizing exception to exhaustion requirement for
constitutional challenges to agency procedures and the statute
the agency administers).
We recognize that a class remedy arguably might be more
efficient than requiring each applicant to file a PFR, but that
is not a ground for ignoring the jurisdictional statute. Indeed,
should a court determine that the statute barring payment for
counsel does not mean what it says—a position taken by the
minors—that statute would be “infirm across the circuit and
in every case.” Naranjo-Aguilera v. INS, 30 F.3d 1106, 1114
(9th Cir. 1994). We also recognize that there are limited—
and already more than stretched—pro bono resources
available to help unaccompanied minors navigate the removal
process. But these considerations cannot overcome a clear
statutory prescription against district court review. Relief is
through review in the court of appeals or executive or
congressional action.
In sum, the minors’ claim that they are entitled to court-
appointed counsel “arises from” their removal proceedings
and §§ 1252(a)(5) and 1252(b)(9) provide petitions for review
of a removal order as the exclusive avenue for judicial
review. The district court lacks jurisdiction over the minors’
claims.13
13
Because the district court lacks jurisdiction, we do not reach the
other issues the minors raise on cross-appeal.
26 J.E. F.M. V. LYNCH
AFFIRMED as to the statutory claim; REVERSED as
to the constitutional claim. The parties shall each bear
their own costs on appeal.
McKEOWN, Circuit Judge, with whom M. SMITH, Circuit
Judge, joins, specially concurring:
Jurisdictional rulings have an anodyne character that may
suggest insensitivity to the plight of the parties, particularly
in a case involving immigrant children whose treatment,
according to former Attorney General Eric Holder, raises
serious policy and moral questions.1 But we must heed the
Supreme Court’s admonition that “[f]ederal courts are courts
of limited jurisdiction. They possess only that power
authorized by Constitution and statute, which is not to be
expanded by judicial decree.” Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
We did not reach the merits here because we hewed to the
statute channeling federal court jurisdiction. That said, I
cannot let the occasion pass without highlighting the plight of
unrepresented children who find themselves in immigration
proceedings. While I do not take a position on the merits of
the children’s constitutional and statutory claims, I write to
underscore that the Executive and Congress have the power
to address this crisis without judicial intervention. What is
missing here? Money and resolve—political solutions that
fall outside the purview of the courts.
1
Attorney General Eric Holder, Remarks at the Hispanic National Bar
Association 39th Annual Convention (Sept. 12, 2014), available at
https://www.justice.gov/opa/speech/remarks-attorney-general-eric-holder-
hispanic-national-bar-association-39th-annual.
J.E. F.M. V. LYNCH 27
In fiscal year 2014, more than 60,000 unaccompanied
minors made their way to the United States,2 prompting the
Department of Homeland Security to declare a crisis at our
southern border.3 Although the numbers dropped in fiscal
year 2015, the surge has now reappeared. According to the
Pew Research Center, “[t]he number of apprehensions of
unaccompanied children shot up by 78%” during the first six
months of fiscal year 2016.4 Indeed, earlier “some Members
of Congress as well as the Administration characterized the
issue as a humanitarian crisis.”5 The border crisis created
what has been called a “perfect storm” in immigration courts,
as children wend their way from border crossings to
immigration proceedings.6 The storm has battered
immigration “courtrooms crowded with young defendants but
2
William Kandel, Unaccompanied Alien Children: An Overview,
Congressional Research Service, 1 (May 11, 2016), available at
https://fas.org/sgp/crs/homesec/R43599.pdf.
3
Julia Preston, U.S. Setting Up Emergency Shelter in Texas as Youths
Cross Border Alone, N.Y. Times, May 16, 2014, available at
http://www.nytimes.com/2014/05/17/us/us-sets-up-crisis-shelter-as-
children-flow-across-border-alone.html?_r=0.
4
Jens Krogstad, U.S. Border Apprehensions of Families and
Unaccompanied Children Jump Dramatically, Pew Research Center, May
4, 2016, available at http://www.pewresearch.org/fact-tank/2016/05/04/u-
s-border-apprehensions-of-families-and-unaccompanied-children-jump-
dramatically/.
5
See Kandel, supra note 2, at 1.
6
ABA Commission on Immigration, A Humanitarian Call to Action:
Unaccompanied Children in Removal Proceedings Present a Critical
Need for Legal Representation, 1 (June 3, 2015), available at
http://www.americanbar.org/content/dam/aba/administrative/immigrati
on/UACSstatement.authcheckdam.pdf (internal quotation marks omitted).
28 J.E. F.M. V. LYNCH
lacking lawyers and judges to handle the sheer volume of
cases.”7
The net result is that thousands of children8 are left to
thread their way alone through the labyrinthine maze of
immigration laws, which, without hyperbole, “have been
termed second only to the Internal Revenue Code in
complexity.” Castro-O’Ryan v. INS, 847 F.2d 1307, 1312
(9th Cir. 1987) (internal quotation marks omitted); see also
Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004)
(emphasizing the complexity of immigration laws and noting
that lawyers may be the only ones capable of navigating
through it). This reality prompted the Chief Immigration
Judge to acknowledge that “[t]he demands placed on the
[immigration] courts are increasing due to the unprecedented
numbers of unaccompanied minors being placed in
immigration proceedings. As a result there is a growing need
for support systems the [immigration] courts can use to
effectively and efficiently manage the cases of
unaccompanied minors.”9
7
Liz Robbins, Immigration Crisis Shifts from Border to Courts,
N.Y. Times, Aug. 23, 2015, available at http://www.nytimes.com/
2015/08/24/nyregion/border-crisis-shifts-as-undocumented-childrens-
cases-overwhelm-courts.html.
8
According to the Transactional Records Access Clearinghouse at
Syracuse University, between 2011 and 2014, the number of juvenile
cases in immigration courts leaped from 6,425 in 2011 to 59,394 in 2014.
As of September 2015, children in more than 32,700 pending immigration
cases were unrepresented.
9
Memorandum from the Executive Office for Immigration Review,
The Friend of the Court Model for Unaccompanied Minors in Immigration
Proceedings (Sept. 10, 2014).
J.E. F.M. V. LYNCH 29
Given the onslaught of cases involving unaccompanied
minors, there is only so much even the most dedicated and
judicious immigration judges (and, on appeal, members of the
Board of Immigration Appeals) can do. See Amicus Curiae
Brief of Former Federal Immigration Judges at 7.
Immigration judges are constrained by “extremely limited
time and resources.” Id. at 4. Indeed, those judges may
sometimes hear as many as 50 to 70 petitions in a three-to-
four hour period, id., leaving scant time to delve deeply into
the particular circumstances of a child’s case.
In light of all this, it is no surprise that then-Attorney
General Holder took the position in 2014 that “[t]hough these
children may not have a Constitutional right to a lawyer, we
have policy reasons and a moral obligation to ensure the
presence of counsel.”10 But Congress has clearly—and
repeatedly—indicated that these policy and moral concerns
may not be addressed in the district court. Rather, these
issues come initially within the Executive’s purview as part
of the administrative removal process, with review available
in the Courts of Appeals through the petition for review
process.11 See Maj. Op. at 14–17.
To its credit, the Executive has taken some steps within
this process to address the difficulties confronting
unaccompanied and unrepresented minors. Through the
10
See supra note 1.
11
As discussed in the majority opinion, under the current statutory
scheme, Congress has recognized the “privilege of being represented, at
no expense to the Government, by counsel.” 8 U.S.C. § 1229a(b)(4)(A).
Implementing regulations enacted by the Executive recognize the same
limited privilege. See 8 C.F.R. § 238.1(b)(2).
30 J.E. F.M. V. LYNCH
Justice AmeriCorps program, the government awarded $1.8
million to support living allowances for 100 legal fellows
who will represent children in removal proceedings.12 The
government has also partnered with the United States
Conference of Catholic Bishops and the United States
Committee for Refugees and Immigrants to provide legal
representation to unaccompanied children.13 The Executive
Office for Immigration Review offers legal orientations for
custodians of unaccompanied children in removal
proceedings and it launched a pilot program to provide legal
services to unaccompanied minors.14
Yet these programs, while laudable, are a drop in the
bucket in relation to the magnitude of the problem—tens of
thousands of children will remain unrepresented. A
meritorious application for asylum, refuge, withholding of
removal or other relief may fall through the cracks, despite
the best efforts of immigration agencies and the best interests
of the child. Additional policy and funding initiatives aimed
at securing representation for minors are important to ensure
12
See Press Release, Department of Justice, Justice Department and
CNCS Announce $1.8 Million in Grants to Enhance Immigration Court
Proceedings and Provide Assistance to Unaccompanied Children (Sept.
12, 2014), available at https://www.justice.gov/opa/pr/justice-department-
and-cncs-announce-18-million-grants-enhance-immigration-court-
proceedings.
13
See Announcement of Award of Two Single-Source Program
Expansion Supplement Grants To Support Legal Services to Refugees
Under the Unaccompanied Alien Children’s Program, 79 Fed. Reg.
62,159–01 (Oct. 16, 2014).
14
See Press Release, Department of Justice, EOIR Expands Legal
Orientation Program Sites (Oct. 22, 2014), available at
https://www.justice.gov/eoir/pr/eoir-expands-legal-orientation-programs.
J.E. F.M. V. LYNCH 31
the smooth functioning of our immigration system and the
fair and proper application of our immigration laws.
Eventually, an appeal asserting a right to government-
funded counsel will find its way from the immigration courts
to a Court of Appeals through the petition for review process.
It would be both inappropriate and premature to comment on
the legal merits of such a claim. But, no matter the ultimate
outcome of such an appeal, Congress and the Executive
should not simply wait for a judicial determination before
taking up the “policy reasons and . . . moral obligation” to
respond to the dilemma of the thousands of children left to
serve as their own advocates in the immigration courts in the
meantime. The stakes are too high. To give meaning to
“Equal Justice Under Law,” the tag line engraved on the U.S.
Supreme Court building, to ensure the fair and effective
administration of our immigration system, and to protect the
interests of children who must struggle through that system,
the problem demands action now.
KLEINFELD, Senior Circuit Judge, specially concurring:
I agree with my colleagues that a child (or for that matter,
an adult) is unlikely to be able to protect all his rights in a
deportation proceeding unless he has a lawyer. Many
advocacy groups are deeply involved in immigration issues,
including the ones who provided counsel in this one, and
because the solution to the representation problem is a highly
controversial political matter, I think our own advocacy of
some particular reform measure is unnecessary and the matter
is better left to the political process.