C.J.L.G., a Juvenile Male v. Jefferson Sessions
880 F.3d 1122
9th Cir.2018Background
- C.J., a Honduran minor (arrived age 13), and his mother entered without inspection; DHS placed him in removal proceedings and he proceeded pro se through multiple IJ hearings.
- The IJ repeatedly informed C.J. of his right to privately retained counsel, granted continuances, provided a pro bono list, an interpreter, and a country report; C.J. never obtained private counsel before the IJ.
- C.J. sought asylum, withholding, and CAT relief based on gang recruitment threats (including a gun-at-head incident) and also later pursued SIJ-related arguments.
- The IJ found C.J. credible and subjectively fearful but denied asylum/withholding/CAT for lack of objective risk, protected-ground nexus, and government inability/unwillingness to control gangs.
- The Board affirmed on the merits and rejected C.J.’s due-process claim for court-appointed counsel and failure-to-notice SIJ eligibility; C.J. petitioned for review seeking a categorical right to appointed counsel and other relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Due Process or INA requires court-appointed counsel for alien minors | C.J.: minors need government-funded counsel; Jie Lin and Gault support heightened protections | Gov.: Congress grants only right to choose private counsel at alien's expense; appointment would rewrite INA and impose heavy burdens | No categorical right; Mathews test applied; balance favors government; remand (not appointed counsel) is adequate remedy |
| Whether IJ failed to provide full and fair hearing (record development) | C.J.: pro se minor was disadvantaged; IJ should have developed record more and appointed counsel | Gov.: IJ provided continuances, pro bono list, interpreter, asked questions, and developed record on dispositive issues | No prejudicial due process violation; IJ adequately developed record on protected-ground and government-control issues |
| Whether IJ had duty to inform of apparent SIJ eligibility | C.J.: facts raised reasonable possibility of SIJ and IJ should advise; also seeks counsel to pursue state court process | Gov.: SIJ requires prior state-court findings; C.J. had none so no apparent eligibility triggered | IJ not required to advise; SIJ eligibility was speculative and not "apparent" |
| Merits of asylum/withholding/CAT claims | C.J.: threats and in-person confrontation with gun support well-founded fear and possible persecution/CAT | Gov.: threats insufficient as past persecution; record lacks nexus to protected ground and evidence gov't unable/unwilling to control gangs; not torture-level harm | Board's denial affirmed: substantial evidence supports refusal of asylum/withholding/CAT (though court found error in Board’s past-persecution conclusion as to objective fear, dispositive grounds remained) |
Key Cases Cited
- Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) (recognizing right to counsel in immigration proceedings derived from Due Process and INA)
- Jie Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004) (IJ must assist minors in securing competent privately retained counsel and may suspend hearing when representation is ineffective)
- Montes-Lopez v. Holder, 694 F.3d 1085 (9th Cir. 2012) (denial of statutory right to privately-retained counsel may excuse prejudice requirement)
- Oshodi v. Holder, 729 F.3d 883 (9th Cir. 2013) (en banc) (defining full-and-fair-hearing rights and IJ’s duty to develop the record)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (three-factor due-process balancing test applied to determine required procedures)
- Lassiter v. Dep’t of Social Servs., 452 U.S. 18 (U.S. 1981) (presumption against appointed counsel unless loss of personal freedom is at stake)
- Fiallo v. Bell, 430 U.S. 787 (U.S. 1977) (immigration is a plenary power largely immune from judicial policymaking)
- Lim v. INS, 224 F.3d 929 (9th Cir. 2000) (threats can support an objectively reasonable fear of future persecution)