J.E. F.M. V. Lynch, No. 15-35738 (9th Cir. 2016)
Annotate this CaseAppellees are immigrant minors, aged three to seventeen, who have been placed in administrative removal proceedings. The children, suing on behalf of themselves and a class, claim a due process and statutory right to appointed counsel at government expense in immigration proceedings. 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. The court concluded that 8 U.S.C. 1252(a)(5) and 1252(b)(9) channel review of all claims, including policies-and-practices challenges, through the petition for review (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. The court also concluded that the minors have not been denied all forms of meaningful judicial review. Accordingly, the district court lacks jurisdiction over the minors' claims. The court affirmed the district court's dismissal of the statutory claims and reversed the district court's determination that it has jurisdiction over the constitutional claims.
Court Description: 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. 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.
The court issued a subsequent related opinion or order on November 13, 2018.
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