This op-ed originally appeared in the Monday, May 13, 2019 edition of the Daily Journal
For the second time in three years, the 9th U.S. Circuit
Court of Appeals avoided answering the urgent issue of whether child
respondents in immigration removal (deportation) proceedings have a due process
right to counsel at government expense. The case, C.J.L.G. v. Barr, 2019 DJDAR 3782 (May 3, 2019), involved a Honduran
adolescent who appeared in immigration court accompanied only by his mother. C.J.L.G.
sought asylum based on his fear of persecution for being a member of a
particular social group, a legal claim so complex that it regularly confounds
attorneys and judges alike. He was also apparently eligible for special immigrant
juvenile status (SIJS), but neither C.J.L.G., his mother, nor the immigration judge
raised that form of relief at his hearing, and he was ordered deported. On appeal,
C.J.L.G. argued that his hearing was unfair and that due process required that
child litigants like him be provided counsel at government expense.
C.J.L.G.’s immigration hearing was all too usual. Each year, tens of thousands of minors appear without a
lawyer in immigration proceedings, some as young as two and three years old.
Data show that, unsurprisingly, unrepresented minors are significantly more likely to be ordered deported than
represented minors. The government nevertheless insists that adversarial proceedings
against unrepresented children comport with due process.
The fully briefed right to appointed counsel claim was
presumably the reason the 9th Circuit chose to hear C.J.L.G. en banc. Yet, as it did three years ago, it avoided the issue. (In J.E.F.M. v. Lynch (2016), the 9th Circuit
held in the context of a class action that there was no jurisdiction over a
constitutional right to counsel claim raised by minor respondents.) Instead, the
court ordered a new hearing because the immigration judge failed to inform
C.J.L.G. of his apparent eligibility for SIJS. It then dropped a footnote to
explain that because C.J.L.G. has since secured counsel, and will be
represented on remand before the Immigration Court, it need not address the
constitutional right to appointed counsel claim.
The
9th Circuit’s decision is certainly a victory for C.J.L.G. and other pro se children who may be eligible for
SIJS. The court found error in his proceedings, and he now has an opportunity,
aided by counsel, to fully present his case for relief. But to avoid the right
to appointed counsel issue (again) is, in practice, to decide it. And it is to
decide it in a way that necessarily leaves thousands of child litigants, who either
cannot afford a lawyer or who have not lucked into pro bono counsel, to defend
themselves against trained government prosecutors in proceedings that involve a
notoriously complex area of law.
Strikingly, C.J.L.G.'s case demonstrates exactly why child
respondents need lawyers to ensure the fairness of their proceedings. Recall
that the 9th Circuit found that the immigration judge failed to inform C.J.L.G.
of a possible form of relief as he was required to do. Neither the presence of
a friendly adult nor the immigration judge’s duty to develop the record were
sufficient safeguards. If C.J.L.G. had not secured counsel after he was ordered
deported, the error in his case would have never come to light. He would
have been just another child deported after an unfair hearing. Nevertheless, because of C.J.L.G.’s fortune in securing
a lawyer, thousands of children who do not share his good luck will continue to
go without a lawyer in proceedings that are just as likely as his to be unfair.
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