C.J.L.G., a Juvenile Male v. William Barr, 923 F.3d 622

Background

CJ, a Honduran juvenile, fled death threats from gang members and entered the U.S. with his mother; he was placed in removal proceedings and proceeded largely unrepresented at initial hearings.
At his IJ hearing CJ testified credibly about gang threats and long absence of contact with his father; the IJ denied asylum/withholding/CAT and ordered removal; BIA affirmed.
CJ later obtained a California state-court order with SIJ findings and filed an I-360 with USCIS after learning of SIJ possibility post-hearing.
The regulatory question: 8 C.F.R. § 1240.11(a)(2) requires an IJ to inform a respondent of "apparent eligibility" for benefits enumerated in the chapter; SIJ is addressed elsewhere in the Code of Federal Regulations and statute.
The en banc Ninth Circuit held the IJ erred by not advising CJ of apparent eligibility for Special Immigrant Juvenile (SIJ) status because the record raised a reasonable possibility of eligibility, vacated the removal order, and remanded for a new IJ hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether IJ must advise juvenile of apparent eligibility for SIJ status under 8 C.F.R. § 1240.11(a)(2)	IJ had duty to advise because record facts (abandonment by father; gang death threats) made SIJ eligibility reasonably possible	SIJ is not a benefit within the chapter or advising is required only after state order, USCIS consent, and visa availability	Majority: IJ must advise when facts raise a reasonable possibility of SIJ eligibility; failure requires remand
Proper scope/timing of advisement (must minor already have state order / USCIS consent?)	Advisement is meant to alert minors before they complete collateral steps; requiring completion would eviscerate the advisement duty	Advisement should wait until child has state order, USCIS consent, and visa availability	Majority: Advisement can and should occur before collateral proceedings are completed; IJ may continue proceedings to allow pursuit of SIJ
Whether failure to advise was prejudicial and remedy	Prejudice because CJ later obtained state order and I-360 after learning of SIJ; remand for new hearing appropriate	No apparent eligibility at hearing time so no error requiring remand	Held: Remand, vacatur of removal order, and new IJ hearing; IJ should consider continuance in light of SIJ pursuit
Whether decision should resolve constitutional right to appointed counsel for juveniles	CJ argued juveniles need appointed counsel; some concurring judges urged recognition for certain indigent minors	Government opposed a categorical right; court declined to decide here	Majority: did not decide; concurring judges urged recognizing limited right (e.g., indigent <18 seeking asylum/withholding/CAT/SIJ)

Key Cases Cited

Moran-Enriquez v. INS, 884 F.2d 420 (9th Cir.) ("apparent eligibility" standard triggers when record raises reasonable possibility)
Bui v. INS, 76 F.3d 268 (9th Cir. 1996) (IJ must advise when record raises inference of possibility of relief; remand remedy)
United States v. Rojas-Pedroza, 716 F.3d 1253 (9th Cir. 2013) (clarifying plausibility/prejudice inquiry for advisement failures)
United States v. Lopez-Velasquez, 629 F.3d 894 (9th Cir. 2010) (duty to advise limited to apparent eligibility at time of hearing or imminent eligibility)
Jie Lin v. Ashcroft, 377 F.3d 1014 (9th Cir. 2004) (special concerns for minors: competence and need for counsel/advocacy)
Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) (due process protections for minors in removal proceedings)
Lassiter v. Dep’t of Social Servs. of Durham Cty., 452 U.S. 18 (1981) (presumption against appointed counsel in civil proceedings unless rebutted)
Turner v. Rogers, 564 U.S. 431 (2011) (factors for assessing right to counsel in civil contempt-like proceedings; quality of substitute safeguards)
In re Gault, 387 U.S. 1 (1967) (constitutional protections, including counsel, for juveniles in certain proceedings)