Victor Perez v. William Barr, 957 F.3d 958

Background

Victor Manuel Perez, a Mexican national, faced removal proceedings beginning in 2013 and applied for asylum, withholding of removal, and CAT protection.
An IJ found Perez mentally incompetent and, under EOIR’s National Qualified Representative Program and related Franco‑Gonzales litigation, appointed government‑contracted counsel as a Qualified Representative (QR) for his immigration proceedings and BIA appeal.
The IJ denied relief; the BIA affirmed. Perez then filed a petition for review in the Ninth Circuit.
Perez sought appointment of compensated counsel for his petition for review (invoking 28 U.S.C. § 2241, the All Writs Act, and the CJA); the motions panel denied statutory appointment but appointed pro bono counsel and left open the compensation argument.
The central legal question was whether the court can and should order the government to compensate court‑appointed counsel for a mentally incompetent petitioner prosecuting a petition for review under the REAL ID Act.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Suspension Clause requires government‑paid counsel for REAL ID Act petitions for review	Perez: because petitions for review are habeas substitutes, Suspension Clause requires the same procedural protections, including compensated counsel when needed	Government: Suspension Clause does not mandate paid counsel; pro bono appointment suffices	Court: No; Suspension Clause does not require payment so long as competent pro bono counsel is available
Whether the All Writs Act authorizes ordering government to pay appointed counsel	Perez: All Writs Act permits courts to fashion procedures needed for meaningful review, including compensation	Government: All Writs Act cannot override appropriations/separation‑of‑powers; cannot be used to compel expenditures absent statute	Court: No; All Writs Act allows appointment but not compelled public compensation absent statutory authorization
Whether federal habeas statutes (§§ 2241, 2243) authorize paid counsel for petitions for review	Perez: § 2243 and related habeas law support counsel appointment and compensation	Government: REAL ID Act removed habeas jurisdiction; § 2241/2243 don’t govern § 1252 petitions	Court: No; habeas statutes don’t apply to § 1252 petitions for review under REAL ID Act
Whether the Criminal Justice Act authorizes compensated counsel for petitions for review	Perez: CJA § 3006A can be applied by analogy to secure paid counsel for meaningful review	Government: CJA was enacted for criminal cases and covers specific habeas statutes; REAL ID Act excludes § 1252 review	Court: No; CJA does not extend to § 1252 petitions for review and thus does not authorize payment

Key Cases Cited

Boumediene v. Bush, 553 U.S. 723 (2008) (explains Suspension Clause protections and attributes of an adequate habeas substitute)
INS v. St. Cyr, 533 U.S. 289 (2001) (REAL ID/habeas context and requirement that substitutes provide adequate review)
Puri v. Gonzales, 464 F.3d 1038 (9th Cir. 2006) (held petition for review under § 1252 can be an adequate substitute for habeas)
Harris v. Nelson, 394 U.S. 286 (1969) (All Writs Act purpose to give courts instruments to perform duties)
Ex Parte Peterson, 253 U.S. 300 (1920) (recognizes inherent judicial power to appoint persons to aid courts)
Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34 (1985) (All Writs Act cannot enlarge jurisdiction and is residual)
Clinton v. Goldsmith, 526 U.S. 529 (1999) (limits on All Writs Act where statute controls)
United States v. 30.64 Acres of Land, 795 F.2d 796 (9th Cir. 1986) (distinguishes appointment as pro bono vs. compelled representation)
United States v. Dillon, 346 F.2d 633 (9th Cir. 1965) (court‑appointed habeas counsel not entitled to Fifth Amendment compensation; compensation is legislative matter)
Thuraissigiam v. U.S. Dep’t of Homeland Security, 917 F.3d 1097 (9th Cir. 2019) (distinguishes Suspension Clause and due process rights in immigration context)