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 American Civil Liberties Union 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.
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.
Generally, federal courts do not have jurisdiction over deportation proceedings. Individuals facing deportation may not petition federal courts for review of their deportation orders until the administrative process managed by the immigration courts and the Immigration and Naturalization Service (INS) is completed. Only when all appeals have been exhausted may an undocumented immigrant turn to the federal courts by filing a Petition For Review (PFR). Hearing PFRs is the exclusive province of federal appeals courts. What’s more, federal law channels all legal and factual questions into the PFR process.
The district court determined it had jurisdiction over the due process claim, since it concerned “a procedure or policy collateral [emphasis added] to the substance of removal proceedings.” The government challenged that determination. The district court also determined it had no jurisdiction over the statutory claim, a filing challenged by the minors.
The 9th Circuit was left to decide whether the district court had jurisdiction over the due process and statutory claims. A three-judge panel unanimously affirmed the lower court as to the statutory claim and reversed as to the constitutional claim. Judge M. Margaret McKeown wrote the opinion for the court. (RELATED: SCOTUS To Decide Whether The Undocumented May Apply For Bond)
The panel said the Immigration and Nationality Act 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 writes:
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 class proceedings. Rather, these claims are bound up in and an inextricable part of the administrative process.
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.
Those provisions, the court said, 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.”
The court also rejected an argument from the minors that the PFR process precludes all forms of meaningful judicial review. The minors argued that their right-to-counsel claims will never be heard through a PFR. Therefore, the court should read § 1252(b)(9) as not covering these claims. The argument emanates from McNary v. Haitian Refugee Center, in which the U.S. Supreme Court ruled that a district court could hear constitutional and statutory claims arising from the Special Agricultural Workers (SAW) amnesty program, because SAW proceedings did not maintain an administrative record thorough enough for review.
The 9th Circuit found several problems with this argument. In the first place, they point out the McNary case concerned statutory interpretation of a completely different statute. Additionally, in McNary, the court was dealing with constitutional pattern and practice not captured by the statute at issue, and that the concerns occasioned by the SAW program were not in play in this case.
McKeown acknowledged the case’s difficult fact posture, noting the following in a concurrence:
I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings. 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.
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