This is Weekend Circuit, a weekly review of the serious and the silly in federal appeals courts in the last week.
9th Circuit: Children Must Face Deportation Alone
Children in deportation proceedings may not petition immigration judges or district courts for legal representation, a three judge panel of the 9th U.S. Circuit Court of Appeals ruled Tuesday.
The class-action lawsuit was filed against the U.S. government by the ACLU on behalf of several minors who are currently facing deportation. None of the children can afford lawyers in private practice and have failed to retain pro bono counsel for the proceedings. The suit was brought after a deluge of unaccompanied minors arrived at the U.S. border from countries throughout Central America in 2014. (RELATED: Federal Court: Kids Must Face Deportation Proceedings Alone)
The children claim a due process and statutory right to appointed counsel in immigration proceedings, a service the U.S. government currently does not provide. They claim that, as children, they lack the intellectual capacity of adults but are forced to appear, without aid, in complex judicial proceedings against federal lawyers.
The panel said the Immigration and Nationality Act (INA) provides judicial review exclusively through the PFR process. Though an individual could bring a claim “independent or ancillary” to removal proceedings, a request for counsel must be brought by way of a PFR, as two provisions of the INA restrict review of PFRs to the federal appeals courts only after the administrative process concludes
The court further reasoned that Congress unambiguously streamlined the judicial review process when it adopted additional provisions restricting review of a final removal order to the appeals courts in 1996.
4th Circuit OKs Christian Prayer Before Government Meetings
The 4th U.S. Circuit Court of Appeals sanctioned the observance of a prayer before county commission meetings Monday, in a 2-1 decision which may not be long for the law books.
The ACLU helped organize a challenge to Rowan County, N.C.’s practice of convening county commission meetings in prayer. The prayer, led by members of the commission, was often explicitly Christian in nature.
The majority opinion drew heavily from the U.S. Supreme Court’s ruling in Town of Greece v. Galloway, in which the Court sanctioned prayer before legislative meetings because of the unique status the practice enjoys in American history, provided said prayer did not disparage other denominations and did not proselytize. Assessing Rowan County’s observance by this test, the court wrote:
“The record in this case reflects that the Board’s prayer practice did not stray across this constitutional line of proselytization or disparagement…The content of the commissioners’ prayers largely encompassed universal themes, such as giving thanks and requesting divine guidance in deliberations. References to exclusively Christian concepts typically consisted of the closing line, such as “In Jesus’ name. Amen.” Such prayer comes nowhere near the realm of prayer that is out of bounds under the standards announced in Town of Greece.”
The decision is likely to be reviewed by the 4th Circuit en banc, or in full, as the 4th Circuit has become a solidly liberal appeals court during the Obama administration.
5th Circuit Blocks Nonprofit From Printing Gun, Pending Trial
The 5th U.S. Circuit Court of Appeals declined to allow a nonprofit called Defense Distributed to continue posting files of firearms components which may be printed by an individual with a 3D printer, pending a trial to evaluate the case on the merits.
The U.S. Department of State blocked Defense Distributed from posting the components online, arguing that because they could be accessed and printed by a foreign nation, the nonprofit is, in effect, exporting weapons in violation of munitions exports laws. Though the files were removed by the organization, they are still available on the so-called dark web.
The group then submitted a commodity jurisdiction request, a petition to the State Department to clarify whether an item is covered by the U.S. Munitions List, and therefore subject to restrictions. State did not issue a finding, prompting Defense Distributed to claim that the ban constituted a prior restraint on free speech. Prior restraint refers to any restriction on speech before it occurs.
Pending a trial on the merits, Defense Distributed petitioned to repost the files online. A 5th Circuit panel denied the request 2-1, finding that the balance of harm in the case favored the State Department — that is, the harm which the U.S. government would suffer should unsavory foreign nationals attain the weapons Defense Distributed provides outweighs the harm which would be done to the organization. The court writes:
“Ordinarily, of course, the protection of constitutional rights would be the highest public interest at issue in a case. That is not necessarily true here, however, because the State Department has asserted a very strong public interest in national defense and national security. Indeed, the State Department’s stated interest in preventing foreign nationals—including all manner of enemies of this country—from obtaining technical data on how to produce weapons and weapon parts is not merely tangentially related to national defense and national security; it lies squarely within that interest.”
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