J. F.M. v. Matthew Whitaker
908 F.3d 1157
9th Cir.2018Background
- Plaintiffs: a certified class of thousands of unrepresented minors in Ninth Circuit removal proceedings who claim a categorical due-process and statutory right to appointed counsel.
- Plaintiffs seek declaratory and injunctive relief (affirmative habeas/class action) to require appointment of counsel for indigent children in removal proceedings; they do not seek review of any final orders of removal.
- The panel dismissed the action for lack of district-court jurisdiction, reading 8 U.S.C. § 1252(b)(9) and § 1252(a)(5) to channel all removal-related claims to petitions for review of final removal orders.
- Defendants (federal officials) argued that § 1252’s channeling provisions strip district courts of jurisdiction over these claims and that PFR is the sole route for judicial review.
- Judge Berzon (dissent from denial of rehearing en banc) argued the statutes and precedent confine § 1252(b)(9) to review of final orders of removal and that the panel’s reading forecloses meaningful review of categorical constitutional/statutory claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(b)(9)/§1252(a)(5) strip district courts of jurisdiction over an affirmative, classwide right-to-counsel claim before any final removal order | §1252(b)(9) applies only to review of final removal orders; therefore district court has jurisdiction to hear a pre-order, categorical habeas/class action | §1252’s jurisdiction-channeling language bars district-court habeas and makes PFR the exclusive remedy for any claim arising from removal proceedings | Panel denied rehearing; Court (per dissent) concluded §1252(b)(9) applies only to challenges to final removal orders and that the panel’s broad reading improperly blocks meaningful review |
| Whether plaintiffs may pursue a classwide, affirmative habeas action challenging removal procedures (requesting systemic relief) | Classwide affirmative habeas is necessary to develop a record and obtain meaningful, efficient review unavailable via individual PFRs | Relief must be pursued through individual PFRs; classwide actions circumvent statutory scheme | Dissent: class action should be permitted because PFR-only route would often bar meaningful review; panel stood by its jurisdictional dismissal |
| Whether Supreme Court and Ninth Circuit precedent (St. Cyr, Nadarajah, Singh, McNary) permit district-court review of non-final removal claims | Precedent (St. Cyr, Nadarajah, Singh, McNary) supports that §1252(b)(9) only strips review of final removal orders and preserves district-court habeas for non-final orders | Government reads precedents as supporting broad channeling of any removal-related claim to PFR | Dissent: precedents support plaintiffs; panel’s contrary reading conflicts with those decisions |
| Whether interpreting §1252 broadly would produce a practical denial of judicial review, violating interpretive presumptions | A broad reading would deny meaningful judicial review for most minors (procedural and record-development obstacles); statutes should be read to preserve meaningful review | The statutory text permits channeling to PFR; practical concerns are for Congress/Executive to address | Dissent: presumption favoring judicial review (McNary/Bowen) counsels against an interpretation that yields practical foreclosure of review; panel did not adequately account for this presumption |
Key Cases Cited
- INS v. St. Cyr, 533 U.S. 289 (2001) (interpreting §1252(b)(9) as applying with respect to review of final orders of removal)
- McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991) (jurisdiction-channeling provisions should not foreclose meaningful judicial review of generic constitutional claims)
- Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006) (§1252(b)(9) does not bar district-court habeas for claims not involving final orders of removal)
- Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) (both §§1252(a)(5) and (b)(9) apply only to claims seeking review of removal orders)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (plural opinions limit §1252(b)(9) application in the detention context and caution against comprehensive interpretation beyond presented claims)
- Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012) (articulated ‘inextricably linked’/remedy-focused test for when claims must be raised via PFR)
- Dent v. Holder, 627 F.3d 365 (9th Cir. 2010) (PFR review is generally limited to the administrative record)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (due-process balancing requires assessing probable value of procedural safeguards)