C.J.L.G., a Juvenile Male v. Jefferson Sessions

Fоods, it consider must prejudiced Whole reasonableness Whole extent rep- on ERF’s affirmative

Foods’ reliance finding it reaches a before

resentations

acquiescence. own costs. bear its party shall Each ‘ in part;

AFFIRMED VACATED instructions.

part; and REMANDED with Male, Petitioner,

C.J.L.G., A Juvenile Attorney III, B. SESSIONS

Jefferson

General, Respondent.

No. 16-73801 Appeals, States Court

Ninth Circuit. d August

Argued an Submitted Pasadena, California January

Filed (ar-

Ahílan Thevanesan Arulanantham gued), ACLU Foundation Cal- Southern ifornia, California; Angeles, Los Stephen Kang, Immigrants’ Rights ACLU Project, Francisco, California; San Matt Adams Madrid, and Glenda M. Northwest Aldana Seattle, Immigrant Rights Project, Wash- ington; Angelis J. E. and Aaron Theodore Millstein, LLP, Seattle, K&L Gates Wash- ington; Kristen Jackson and Inlen- Talia der, Center, Counsel Public Law Los An- California; Macleod-Ball, geles, . Kristin Immigration- Project National Na- of .the Guild, Boston, tional Lawyers Massachu- setts; Walters, Melissa Crow and Karolina Council, Immigration American Washing- ton, D.C.; Chiang, Emily ACLU of Wash- Seattle, ington, Washington; for Petitioner. Kiley (argued), Litiga- L. Kane Senior Counsel; tion Stephen J. Assistant Flynn, Director; Readier, Chad A. Assis- Acting General; Attorney Immigra- tant Office of Division, tion Civil Litigation, United 1128 1229a(b)(4)(A) (substantially § Justice, Washington, U.S.C. Department

States 1240.10(a)(l)-(2). same); § D.C.; 8 C.F.R. Respondent. Sohba- (cid:127)John E. and Nareeneh Schreiber corollary of have held that We a. LLP, tian, Angeles, Los & Strawn judge’s Winston privilege this is an California, Immigrant for Amicus (“IJ”) Curiae right inform an alien of his duty to Center. Legal Resource to ensure that decision and right knowing and volun to waive Musalo, Eun- Bookey, Karen and Blaine Holder, See, Montes-Lopez tary. e.g., v. Francisco, California, Lee, as and ice San (9th 1085, 2012); Cir. Balta 694 F.3d 1088 & Curiae Center Gender Amicus (9th INS, 940, 945 zar-Alcazar v. 386 F.3d Refugee Studies. 2004); Ashcroft, Cir. Jie Lin 377 F.3d Wang, Brundage Lucy Á. Robert 2004); 1014, (9th Cir. United States LLP, Bockius Fran- Morgan & San Lewis 943, Ahumada-Aguilar, 295 F.3d Grunfeld, California; cisco, Morgan Daniel (9th 2002). But we have bеen careful Cir. LLP, Angeles, Los Cali- Lewis & Bockius right Congress’ express limit fornia; Dr. for Amici Curiae Jennifer Woo- vigilant judicia of the prescription.2 Ever Steinberg. Dr. Laurence lard reviewing ry’s restricted role matters immigration policy, we have heeded the CALLAHAN CONSUELO M. Before: Supreme admonition that Court’s OWENS, Judges, B. Circuit and JOHN “‘power expel aliens [is] exclude FABER,** Judge. A. District and DAVID sovereign fundamental attribute exercised by Judge Owens Concurrence political departments the Government’s ” judicial control’ largely immune from OPINION 787, 792, Bell, Fiallo v. 430 U.S. 97 S.Ct. CALLAHAN, 1473, (1977) Judge: (emphasis Circuit add L.Ed.2d ed) Mezei, Shaughnessy v. (quoting immigra “The counsel 625, S.Ct. 97 L.Ed. 956 in the Pro proceedings tion is rooted Due (1953)). recognition, Consistent with Clause the Fifth [of Amendment] cess uniformly in this “courts held circuit have § at 8 U.S.C. 1362 and 8 U.S.C. codified ... are not [aliens] and elsewhere that 1229a(b)(4)(A) § Immigration [of appointed gov entitled (“INA”), Nationality §§ Act 8 U.S.C. expense.” United States v. Gas ernment Gonzales, Biwot v. seq.].”1 et 1975), ca-Kraft, 522 F.2d Sections grounds by other overruled on 1229a(b)(4)(A) forth scope set and and 828, Mendoza-Lopez, v. 481 U.S. States right, providing this- that the contours of 2148, n.9, 95 L.Ed.2d 772 107 S.Ct. being privilege alien “shall have the cases). (1987) (collecting (at expense no represented the Govern (“C.J.”) ment) ... Petitioner C.J.L.G. asks us by alien] such counsel as [the 1362; Congress’ statutory by § scheme upend shall 8 U.S.C. see also 8 choose.” ** A, INS, Faber, Magallanes-Damian David States The Honorable ment. Judge for the District Southern District sitting designation. Virginia, West Sessions, 875-76 Flores Cf. proceedings (relying 1. Because removal are civil rath- on the terms two nature, right scope er criminal than aliens’ statutes determine right unaccompanied аlien minor’s derives the Constitution’s Fifth of an hearing immigration judge). bond before Amendment rather the Sixth Amend- than 21, 2014, into Due Process and On June reading Clause C.J. and Maria ar- categorical right INA to court- itself in the inspec- United States rived without expense appointed government counsel at years C.J. was 13 tion.4 old the time. that, in argues for alien minors. C.J. also Department of Security Homeland IJ, proceeding his before the removal (“DHS”) apprehended four C.J. Maria by failing to inform him erred of his later, days and served Maria with a notice possible eligibility Special for Immigrant (“NTA”) appear signed for C.J. Maria (“SIJ”) Finally, Juvenile status. C.J. insists NTA pro- on behalf of her son.' DHS that, merits, on the the IJ and the Board Maria- organizations vided with a list of (“Board”) Immigration Appeals erred provide pro bono legal services. asylum, his denying withholding claims for In September placed DHS C.J. removal, and relief under Conven- proceedings Angeles removal in Los baséd (“CAT”). Against tion Torture entry on illegal his into the United States. petitions C.J. for of the review Board’s 25,' appeared for his November decision, determination IJ’s affirming the hearing' legal rep- but without Maria remedy form of requests in the resentation, would, as he each his court-appointed government counsel at ex- hearings before the IJ. The pense similarly for himself and all situated represented by was counsel at all of the court-appointed alien minors. He seeks hearings. nor Because neither Maria proceeding counsel both new speaks English, interpreter provid- ah IJ, purposes pursuing before the and for ed. status, a application for SIJ related but separate legal begins in journey that Cali- B. state court. fornia hearing, At the November hold that neither the Due Because we Maria that son right informed her had “the Process Clause nor the INA creates a attorney” expense. have an at private categorical court-appointed coun- When Maria told the IJ that she did not mi- government expense sel at for alien money attorney, for an nors, the IJ told and because we conclude options”:'“Either on is her that she Board’s determination the merits had “two we evidence, supported by substantial we go speak you can forward and can deny petition.3 your today,” or “I represent son here can your day” give continue case another

I. time to Maria ac- secure counsel. Maria the IJ’s offer to continue the cepted case. A. hearing, January At held the next sympathetic petitioner. A C.J. is a native told the IJ that she had Maria Honduras, repeatedly and citizen they for an attorney “looked are spurned the Mara entreaties to gang’s join $6,500 one, I charging me so could each despite its ranks death threats made not afford that IJ then or- amount.” The against family. him and the Mar- After continuance, dered a three-month but told gunpoint, as threatened C.J. at C.J. and mother, Maria, one, that it last his Honduras. Maria be the and fled would notice, request judicial subject 3. C when re-en- J.’s Dkt. No. a removal order she 59, is R. Evid. 201. country GRANTED. See Fed. with Maria has been tered the CJ. separate placed рroceeding. ain previously had entered the Maria United already inspection without States and was Well, you put can in all that, attorney, “Okay. an that’s what if returned without she bring that go applications and back.” forward. C.J.’s case would asylum application hearing April on Maria filed the at the was held The third on June 2015. The hearing, not next held Maria had still retained Because1 contains threadbare statements application IJ her that she told asylum claim much support that Maria CJ.’s and proceed case and could your today.” son here Maria of what is written is borderline “represent inscrutable Nevertheless, non-responsive.5 The IJ then after said that told and she understood. Q. that they reviewing application, and J. had .to Maria stated: evidence, present “Everything okay point, other and looks be documents govern object and to the going go accept could I’m review so ahead and evidence. The IJ also told them ment’s then set application.” The'IJ the case they question could call witnesses and hearing, more to Maria one reiterated government’s witnesses. attorney. try she could still hire provided Maria with a 2014 The IJ also went NTA.with The IJ over the then Department country conditions re- State allegation that conceded the Maria. Maria Honduras, English. port which was unlawfully entered the had United he or was not admitted States because on proceeding February The reconvened C.J. re- paroled. The IJ therefore found unrepresented. still The 2016. C.J. was The IJ to ask movable. then proсeeded if “assisting asked Maria she would be IJ C.Ji, questions about in the Maria several you’ve doing past,” been [C.J.] of which Maria stated that C.J.’s course The then and she said she would. IJ long ago.” left them “a time father had regarding questions asked C.J. under oath The then Maria C.J. had a IJ asked asylum background application. his returning to Honduras be- “fear of back if he con- The IJ asked C.J. had had religion nationality or of his race or cause father, tact with and C.J. confirmed political membership or or in a opinion many years. not for had After ‘“Yes, group.” answered: be- social Maria admitting asylum into the record C.J.’s responded: gangs.” cause of the certificate, application, his birth and the “Ma’am, you right I now that most will tell country the IJ asked C.J. about report, going to a reason for likely not returning testi- fear Honduras. C.J. in the States.” remain [C.J.] gang approached fied that the Mara had him three times an effort to recruit him. gave asylum Maria an The IJ then form refused, Each time he and the Maras again told complete. The IJ Maria looking join. for an to kill him if attorney threatened he did she could continue harmed, proceed- physically during in his removal but represent C.J. was ings. gang put Maria if she the third confrontation member the IJ asked had When' any questions, gave day said: me about him gun “[T]ell Maria C.J.’s head one “Well, join. responded: whether to This escalation asylum.” The IJ we decide why prompted by need—you apparently gang’s about the fear don’t mean “Well, replied: discovery or Maria that C.J. had told his mother happened?” what my I its recruitment efforts. The yes, am fearful to child return about Maras mother, aunt, to kill To which the IJ said: also threatened Honduras.” response question application example, in to the states: “THE GAN’S TOLD 5. For ME I HAVETO KILL A PEOPLE TO BE AND has ever caused harm suffer- whether C.J. ground, ing protected GAN’S.” to another based THE asylum, and uncles. C.J. his mother Hon- for eligibility and fled the IJ that concluded day. that same that he withholding duras C.J. testified of removal claim—which to was afraid return to Honduras higher “[be- ‍‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​​‌​‌‌‌​​​​‌‌‌​‌​​​​​​​​‍sets a standard for showing perse- gang] if I cause arrive there Mara will [the cution than asylum—necessarily failed. kill me.” rejected The IJ also C.J.’s CAT claim on ground that to meet “[C.J.] has failed

The IJ then asked C.J.—who was 13 showing anyone burden in that there is years he old when left Honduras—whether in that Honduras to torture seek anywhere. he had “tr[ied] live else in him, [sic] but no Honduras,” certainly with the one responded: C.J. “No.” which acquiescence of the govern- Honduran if The IJ he also asked had asked the C.J. ment.” police “No, for help, replied: he which

they anything.” pressed, couldn’t do When appeal C.J. filed an with the Board and “very C.J. stated that he was afraid.” argued retained counsel. He that IJ

The not in attorney any DHS ask C.J. erred -denying argued did relief. He also questions that or call witnesses. The procedurally IJ defec- conducted if then asked there “anything Maria tive hearing was that his due violated that to tell me you regarding your want rights. Specifically, he that IJ asserted why you’re son and (i) fearful he returns to advise him of failed available forms or anything you back Honduras else (ii) relief, particular status; SIJ failed replied: believe hе tell me.” Maria didn’t record; (iii) develop the and in not erred “No, all., that’s very go I—I’m afraid appointing counsel for him. I something back. don’t—I’m afraid that 1, 2016, On the Board dis- November happen will child.” The IJ my then said: appeal missed a decision that af- why you “And is that to the came IJ’s analysis firmed the áñd conclusion. States, being threat- [C.J.] that The Board held the Maras’ threats gangs?” Maria replied: ened “Yes.” not rise to persecution, did the level of that C.J. lacked well-founded fear of future C. persecution, that and C.J. was not a mem- The IJ issued a written denial C.J.’s cognizable group ber of a social that could application asylum, withholding of re- purposes confer status for protected moval, and CAT relief. The IJ found C.J. asylum withholding relief. Board credible, to be that his determined unsupported. denied CAT claim as C.J.’s returning subjec- fear of to Honduras was rejected pro- The Board also C.J.’s due tively reasonable. But she held that C.J. arguments. It cess held the IJ had objectively lacked an reasonable basis hearing “objectively “fair” conducted a First, asylum relief. C.J. failed show testimony and the docu- [C.J.’s] considered harm had suffered tantamount mentary evidence in record.” It further Second, not persecution. C.J. did show failing err did found not. “credible, specific direct ... evidence possible SIJ advise C.J. status because support objectionably that would [sic] noi>-;by appeal— C.J. had the time persecution reasonable fear [future] ... is’eligible that he oth- “established Third, should he return to Honduras.” C.J. Finally, er forms relief.” the Board re- not had membership established claim, jected appointed hold- protected counsel fourth, ground. basis And ing regulations the INA and relevant failed show or unwilling require ap- was unable to control ever be “do pointed government expense Maras. Because could establish 1132 2004) (9th Larita-Mar (quoting 1160 Cir. timely petition filed a

proceedings.” 1092, (9th INS, 1095 Cir. tinez v. 220 F.3d in this court. for review omitted). (internal 2000)) quotation marks “ II. private liberty ‘the inter That is because are proceedings in [removal] ests involved jurisdiction review We have ” (internal Id. ad indisputably substantial.’ final order removal under 8 Board’s omitted) justment (quoting Dillingham v. 1252(a)(1). de novo § We review U.S.C. 2001)). 996, (9th INS, F.3d 1010 Cir. 267 claims that he was denied legal CiJ.’s protections afforded govern process at The due' court-appointed counsel right to in the United present to conduct aliens States—in that the IJ failed expense, ment hearing, the same re cluding fair alien minors—are a full and informing possible alien is here law gardless C.J. of SIJ of whether the erred in not 1023; Diaz, Lin, see also v. 426 unlawfully.6 377 F.3d at Mathews fully status. Jie 1094, 77, 1883, Ashcroft, 67, v. 378 96 48 L.Ed.2d 478 Alvarez-Garcia S.Ct. 2004) (9th (applying (1976). de novo Cir. legal questions” and “purely to both review process rights due Alien minors’ fac challenges”). We review process “due (i) to counsel “at no ex right include Bu for substantial findings tual evidence. Government,” Montes-Lopez, pense 1042, (9th Lynch, 837 F.3d diono v. 1362; 1088-89; § 8 U.S.C. F.3d at findings up Factual “should be Cir. (ii) 1240.10(a)(1); right § C.F.R. compels a con the evidence held unless representation such competent (internal marks quotation Id. trary result.” 944; Baltazar-Alcazar, Lin, at 386 F.3d Jie omitted). Where, here, is the “Board 1027; (iii) right at hear 377 F.3d part on decision but relies sues its own appli on of an ing bеfore an IJ the merits reasoning, we review both deci the [IJ’s] deportation, cation for relief from 8 U.S.C. (internal quotation marks and sions.” Id. translator, (iv) 1226(a); right § to a omitted). adjustment 1240.44; (v) right § that an C.F.R. custody of an alien minor who takes adult III. hearing, notice of a removal be served A. Flores-Chavez, 1157; see also 8 362 F.3d 1236.3; and, 236.2(a), gen §§ more C.F.R. pro minors in “[A]lien [removal] (vi) fair erally, right to a “full and ceedings [F]ifth are ‘entitled' “opportunity hearing,” which includes guaranty process.’” of due [A]mendment 1150, testimony present on one’s Ashcroft, v. 362 F.3d evidence Flores-Chavez (and excludable).”); sure, aliens—regardless Kim of status— who are therefore To be 1095, enjoy quantum pro Ashcroft, lesser constitutional Ho Ma v. 257 F.3d Diaz, fiction,” (under 426 U.S. at 2001) tection than do citizens. "entry aliens the- And not all aliens receive the 96 S.Ct. 1883. entry” "standing the threshold of are "not protection. "entry degree of Under the same pro protections constitutional entitled to the C.J,—has fiction,” an alien who—unlike jurisdic vided to within the territorial those States, entry rath into the United but effected States”); Zadvydas see also tion the United entry, port er seeks at a lacks admission Davis, 121 S.Ct. 533 U.S. Servin-Espinoza rights. constitutional (2001) ("It well estab 150 L.Ed.2d Ashcroft, protections constitutional lished that certain ("Our immigration generally law has treated persons inside the United States available to (and already on our soil who aliens who are geo aliens outside of our are unavailable to favorably deportable) more than are therefore borders.”). graphic merely seeking who are admittance aliens witnesses, behalf,” ex cross-exаmine violated his to due evidence, and, so, object amine and to adverse Osh prejudice. suffered Holder, odi v. 729 F.3d B. 2013) (en banc); INS, Jacinto v. 2000); see also 8 U.S.C. argues Supreme Court and 1229a(b); 1240.10(a).

§ § All of C.F.R. Ninth precedent Circuit compel the deter- rights these are reflected in the INA and mination that alien minors categorical- are implementing regulations. INA’s ly entitled to court-appointed counsel at government expense. largely He relies on of an Violation alien minor’s due Lin, our decision Jie where we held that rights process automatically does not re obligation the IJ “had the to suspend the quire cases, In petition reversal. most hearing give [removal] [the a minor] Jacinto, er also prejudice. must show See opportunity new competent retain coun- “Prejudice 208 F.3d at 728. occurs when sponte sel or sua steps take to procure rights been alien have trans competent represent counsel to [him].” 377 gressed in way likely a to impact such F.3d at 1033. proceedings.” results Id. We on C.J.’s reliance Jie Lin is misplaced. recognized exception have one this gen Far from deciding that minors alien are petitioner eral rule. A prej need show categorically entitled to court-appointed his statutory udice where he was denied Jie Lin held that an IJ right privately-retained counsel. in retaining should assist minors the pri Montes-Lopez, 694 at 1092. F.3d In vate to which they counsel statutorily are Montes-Lopez, we reasoned that 1027, 1033-34. entitled. See id. at wholesale denial counsel from differs process other duе violations due Jie Lin involved retained counsel’s inad- First, combination of two factors. such a equate representation of a Id. minor. at claim is express statutory anchored investigate 1020. Counsel there failed to Second, guarantee right to a to counsel. Id. petitioner case, largely pre- Lin’s did not denial counsel statu differs other pare hearing, may for his removal tory “fundamentally violations because it spoken have even with Lin about his case. affects the of proceeding,” whole mean Id. at 1024-25. Unsurprisingly, counsel’s ing it is “impractical for courts deter advocacy anything but zealous. For prejudice mine whether accompanied (or example, neglected present she dis- particular denial counsel.” Id. cover) asylum information critical Lin’s claim—namely, that he fled China “on ac-

C.J. seeks a determination that he is count of’ persecution persecu- or fear court-appointed gov- entitled counsel at fact, tion. at In perform- expense—a privilege ernment Con- Id. counsel’s Thus, gress wanting has not ance was so consistent we found that conferred. prevailing likely with the Lin off un- litigant rule that a would have been better prejudice represented. show Id. must to vindicate a at 1027. due violation, process C.J. must show both that sufficiency In of Lin’s assessing rights his constitutional were violated hearing, we with the text of began court-appointed lack of counsel and that INA, provides “statutory right which [in prejudiced the outcome of his removal proceedings] ... to be ‘represent- prоceeding. expense no ed to the Govern- {at set, )....’” assessing § the table (quoting With we turn to ment Id. 8 U.S.C. added). whether C.J.’s lack of court-appointed (emphasis explained We that “due competent representation. to secure him is entitled [an alien] mandates at his own own choice counsel of Id. [INA].” terms expense under right not extend Lin does Jie omitted; (internal marks quotation empha- First, is rooted Jie Lin here. demands retained, added). Once counsel sis firmly statutory privately- the' right “to legal petitioner has a ig See id. at retained counsel. 1027. C.J. compe-, perform sufficient fact, insisting that we should nores this tence.” Id. touting language focus Jie Lin’s instead IJ for to criticize the proceeded thenWe representation for attorney the value competent coun- taking steps to secure hold To Lin minors. reiterate: Jie did : sel- Lin: to categorically entitled minors' are to are “entitled that minors Given government at ex court-appointed counsel rights their so legal assistance trained Indeed; offering in the IJ a basket pense. Cnty. fully protected,” Johns may be remand, conspicu options to on consider Diego, 114 F.3d of San 1997) (citation ously any sugges from Lin is Jie absent omitted), upon recogniz government the foot the tion that should in no counsel ing that New York was the IJ bill for'counsel. observed that We assistance, effective position provide to hearing the to postponed could allow have as,he have, obli must IJ.had opportuni his another relatives “[Lin] give hearing and gation suspend to counsel,” competent to or that ty obtain compe opportunity to retain Lin a new f sponte the IJ himsel could have “sua steps to sponte take tent counsel sua steps coun procure to competent take[n] competent represent to procure counsel options square Id. fall sel.” at 1033. Those Lin. ly within the four corners of the statute. a at concluded “[a]bsent Id. 1033. We Second, coun- Jie Lin involved retained voluntary knowing, intelligent, minor’s woefully performance. Coun- sel’s deficient counsel, may to right of the waiver IJ advocacy poor so it sel’s was “flirted securing role in to take an have affirmative altogether.” By Id. with of counsel denial counsel,” competent Id. representation by forward, go allowing proceeding at 1034. statutory effectively IJ denied his Lin the unremarkable Jie Lin stands for right legal representation, which are that minors entitled proposition involuntary amounted waiver an pro in heightened protections removal Id. counsel—a clear due violation. Supreme Both our ceedings. Court and effect, was, Lin a of his own victim psycholog recognized own -circuit “good faith labor: his had made relatives inherent in be ical mental limitations counsel, attorney yet efforts” retain Gault, ing a minor. re See In actually him a ultimately he secured did 36-37, 41, 18 L.Ed.2d 527 87 S.Ct. 1032. at disservice. id. Lin, 1025; Johns, (1967); at Jie are, general as a C.J.’s case resembles Lin’s that both 114 F.3d at 877. Children ,of rule, advocating for them matters alien minors capable involve less proceedings effectively legally This is as true who went selves than are adults. fact unrepresented. But the similarities end in the context as other. immigration counsel, Lin Thus, in there. whereas appropriately Lin we consid retained Jie remedy petitioner ,was not. entitled a status of the And Lin juvenile did ered privately- admonishing failing statutory more in line to do with “adopting protective some- special whereas C.J. seeks retained for chil- rules Congress’ thing beyond prescription... dren of their capacity.” limited suggests extent that the IJ To the attempt to bootstrap C.J.’s Gault provide even the assis failed level into the context is unpersua Lin, required by argument Jie tance of his ‍‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​​‌​‌‌‌​​​​‌‌‌​‌​​​​​​​​‍goes sive. None cited authorities so provided DHS C.J.’s mother is meritless. fight far to create as a of pro attorneys, a list bono and the with funded, court-appointed' for aliens granted several continuances—over the illegally in the present United States.7 nearly year course half—to Gault, terms, by “only its limited [to] counsel. legal allow C.J.’s mother secure problems” relating “proceedings affirmative, thus role in The IJ “t[ook] which a made determination as to _ securing competent representation, by juvenile ‘delinquent’ is a C.J., Lin is all that Jie counsel” which alleged part, result misconduct requires. Id. consequence may be com other cited even authorities are mitted to U.S. at a state institution.” 387 more C.J. relies on the attenuated. Su preoccu The Court 87 S.Ct. Gault, Court’s in which preme decision pied that fact non-represented with the the immigration held—outside context— juveniles being face the incar possibility proceedings minors are delinquenсy that in is in state cerated a- institution—which gov court-appointed to at entitled counsel to for a criminal conviction. punishment akin expense consequence ernment where a 41, 42, 36-37, 87 I S.Ct. 1428. d. at the is proceeding “may minor be the the fact to Court’s hold This essential to a U.S. committed state institution.” 387 (“[I]n 42, ing. 87 1428 view See id. S.Ct. at 13, to at 87 S.Ct. 1428. Due the “awesome charge of the the seriousness prospect of that could incarceration” result (emphasis commitment....” potential an child and his ruling, from adverse “the added)); Rogers, also Turner v. 564 see parents be of the child’s must notified 442-43, 2507, 431, 131 180 S.Ct. U.S. right to re represented by be counsel (2011) (the “pre-eminent gen 452 L.Ed.2d them, they or if are unable tained emerges from this Court’s eralization that be ap afford that counsel will ap indigent’s precedents right on an at 36 pointed represent Id. child.” a right is such has pointed counsel 41, -37, 87 1428. S.Ct. recognized been exist where litigant physical liberty lose may argues “gener- that Gault reflects added) litigation” (emphasis loses the ... al cannot receive fair rule children Servs., Dep’t (quoting Lassiter v. Social He hearings absent counsel.” cautiously, Finally, proceed we 321, (1982) 21 the (applying 74 L.Ed.2d pecu remaining all times of the at mindful proceed Mathews framework in judiciary of liar and restricted role the Mathews, ings). Under we “determine immigration policy. of reviewing matters (1) balancing the what is due plenary con Congress exercises Because stake, (2) of at ‘the risk an private interest system, immigration our Nation’s trol over deprivation erroneous of such interest exceedingly are owеd an its determinations used, through procedures and the the Mezei, 345 high of deference. See level value, any, if of safe probable additional Indeed, 210, defer at 73 S.Ct. 625. U.S. (3) interest, guards,’ government’s and the in Congress particularly strong ence is of including the burdens additional no immigration area of because “over (internal Oshodi, at process.” 894 legislative power subject conceivable is the Mathews, omitted; 424 adjustment quoting than it is over Congress complete more 335, U.S. at 96 S.Ct. Fiallo, of aliens.” 430 U.S. the admission past it three- If C.J. the Mathews makes (internal 792, quotation 1473 at 97 S.Ct. test, part proceed to consider then we omitted). weigh “must It therefore marks presumption rebuttable heavily in that control over the balance court-appointed applies. against sovereign pre is immigration matters Supreme explained Court has that the The control rogative, largely within the indigent, presumption applies unless “the Plasencia, legislature.” executive and the unsuccessful, personal his may if is lose he result, 459 at 103 S.Ct. 321. As a U.S. Lassiter, at 101 U.S. freedom.” discerning constitutional chary of added). we are If (emphasis the pre- S.Ct. 2153 judg- in weigh infirmity Congress’ considered sumption apply, then we does assessment, in ment—as reflected the INA—unless the explaining “[djeportation susceptible us is of no always matter before is a- measure; other harsh it is all the determination. replete danger more with- when the alien a claim makes will he she be sub ject to persecution death or if forced to

Turning to the first Mathews fac his return to or her home country.” INS tor, private wе at must assess interest Cardoza-Fonseca, 421, 449, 480 U.S. government argues stake. The that C.J.’s (1987). S.Ct. An L.Ed.2d alien First, is low interest for several reasons. facing deportation “stands to lose the apprehended days he within four stay ‘to and live and work this land of ” border, so, crossing govern and Plasencia, freedom.’ U.S. contends, ment he has minimal in Wixon, S.Ct. (quoting Bridges Second, remaining country. terest 135, 154, 65 S.Ct. 89 L.Ed. 2103 status, no legal has he does (1945)). benefit, not stand to lose is deported, If C.J. he bewill returned reasons, so, government has he country to a' liberty—indeed, where his he staying legally less of an than a interest alleges very life—may at risk. The third, alien. admitted And fact attempted Maras to recruit argues that the basis purported for C.J.’s him under gunpoint duress—at no less— of returning interest—his fear to Hondu provides he fled before reason believe a private interest in itself. ras—is encounter, that C.J. would similar threats asylum, seeks is which really What Thus, perhaps upon worse return. discretionary form separate relief .precedent, our under the first Mathews apart any personal liberty interest. factor favors government’s position has substan- tial appeal. pri- common sense An alien’s in remaining vate interest on U.S. soil is The second Mathews factor re logically tied to the of his duration residen- quires measuring adequacy existing cy But controlling here. our lodestar procedures weighing the risk erro precedent, and the Court and Supreme deprivation rights of C.J.’s addi neous prior panels focused the court Oshodi, safeguarcjs provided. tional are inquiry pro- relevant in formal removal arguments 729 F.3d at 894. C.J.’s here fall on ceedings consequence the of an adverse first, camps: into ill- two' children are ]that deportation. ruling: have made clear We equipped navigate to the United States’ asylum the of an and “[i]n case with- and, byzantine immigration system; sec of holding applicant, the private ond, provide to him with failed hardly greater. could be If interest the fair hearing. full errs, consequences appli- court the for the C.J, torture, cant insists that he cannot be assured a persecution, could severe Oshodi, or even death.”8 hearing legal repre- 729 F.3d at 894. full fair without Supreme The Court has in this He asylum concurred notes that’ law is sentation. -1158(a)(1) legal e.g., § 8. An alien’s ("Any status deserves limited 8 U.S.C. alien who is weight private in the interest calculus for the physically present in or who the United States Congress provided reason that additional has irrespective arrives the United States ... pathway legal illegally- to status for those status, may asy- alien’s apply such for present asylum, via a claim for lum, defensive added)). (emphasis ...” removal, See, withholding of and CAT relief. 1229a(b)(4)(B) of the INA proved has vex- Section “extremely complex,” and statutory appeals, spawning sets forth the full-and-fair-hear ing even to the courts immigration-proceed over, ing requirement for for ex- disagreement” “inter-circuit 1229a(b)(4)(B). provides § It ings. group social determi- 8 U.S.C. how make ample, to alien shall have a reasonably that “the reasonable minor could not nations. A examine the evidence opportunity that he demonstrate know must alien, present prо- against the evidence based on some targeted Maras him behalf, own cross-exam status. G.J. also cites the alien’s social group tected- - presented by showing ine witnesses Govern government data indepen ...” Id. An IJ also has an children were ment. unrepresented 10% of .States, “fully fairly develop obligation to in the dent permitted remain (in Jacinto, 208 children were F.3d at 733 represented the record.” 47% whereas omitted). in quotation marks This immigration pro- ternal relief their awarded imposed by argues duty, as- “affirmative ceedings. Finally, C.J. .the cludes an statute, ap develop for ymmetry of between a clear record representation Oshodi, 900; see also always represented peal.” is government—which 1229a(b)(1). duty § unrepresented -This distin minor by counsel—and an U.S.C. immigration proceedings from oth proceedings inherently guishes unfair. renders act judges forums er adversarial where accept We certain C.J.’s asser Instead, only as arbiters. neutral analysis.' tions for 'as purposes of We our responsibility applicant with the shares the attorney provides sume that level of all evaluate relevant “‘ascertain and any of advocacy that cannot be supplied ” Jacinto, (quot facts.’ F.3d at 732-33 persons that an is other classes alien Nations on Pro ing the United Handbook accompany him in entitled a re Determining Criteria cedures & Refu proceeding. moval See 8 C.F.R. Office of the gee Status: United Nations 1240.10(c). § accuracy assume the alsoWe (1979)). High Refugees Commissioner figures, of his mi show alien which context, the In the relief-from-removal represented by nors counsel are awarded duty requires developing a rec- IJ’s factual go higher relief at rates' than those who if an applicant sufficient determine ord pro without. our lodestar is the due But legal asylum. criteria satisfies hearing—not cess a full and fair where, heightened obligation IJ’s to the skills entitlement some conceived-of here, appears pro the alien se. Plasencia, attorney. of an U.S. at appearing pro se often aliens Because Indeed, 34-35, role S.Ct. “[t]he legal knowledge navigate lack immigration proceedings] judiciary [in way successfully through mo- their determining pro limited to law, and because rass the essential standard cedures meet successfully so might their do failure Due Clause under Process. fairness expulsion in from this their coun- result to imposing proce not extend and does try, scrupulously it critical that the IJ is merely displace congressional dures into, probe conscientiously inquire and added). (emphasis Id. policy.” of choices of, explore for all the relevant r and facts. alien minors can a Whethe afforded (9th INS, v. 296 F.3d hearing court-appoint absent 877 Agyeman full and fair 2002) (internal quotation marks omit- whether C.J. was afforded Cir. ed and ted). special in The IJ must take consid- hearing particular his also fair full a and case, proceeds pro of a minor who se. guides inquiry. our eration therefore Gonzales, (9th Agric., v. 2010), Hernandez-Ortiz F.3d F.3d Cir. 1042, 1045-46 (9th 2007). Cir. we consider whether process additional is required either in C.J.’s or for case alien’ case, C.J.’s al the onus was In minors as a class. entirely develop on IJ to most record, C.J.’s mother ill-equipped i. proceedings to compre understand the or C.J.’s in eligibili hend burden establishing applicant qualifies An asy for relief, ty for and no lum—i.e., asked refugee status—if he it, was, Thus, questions. up to the IJ to is or unwilling unable return his any might discover facts that support country home because a well-founded asylum C.J.’s claim.9 persecution fear of future on account of race, To determine religion, whether the provided a nationality, membership hearing, full and fair analysis proceeds our in particular a social group, political First, steps. disaggregate several we opinion. An applicant may a establish asylum into parts standard its constituent fear persecution well-founded of future and assess whether developed the IJ ways: by proving past two persecu- Second,- record as each. the IJ ade- tion, byor demonstrating that has he a quately developed par- as to the record a genuine subjectively objectively rea- factor, asylum ticular we consider whethér sonable fear persecution. future the IJ’s determination as to that factor is Sessions, Bringas-Rodriguez v. supported by substantial evidence. We in- (9th 2017) (en banc) (inter- Cir. corporate this into inquiry the Mathews omitted). quotation nal marks and citations analysis it because is critical to determin- Fear of Well-Founded Future ing prejudiced by whether C.J. was any Persecution, applicant An- asylum for procedural Finally, deficiencies. must show a well-founded fear future the second Mathews factor requires look- persecution. INS, See Lim v. ing “to F.3d process given both in this [C.J.] - 2000). case, finding “A as process generally giv- well as the past persecution to alien proceed- regulatory presump en” minors raises ings, Buckingham Sec’y Dep’t persecution tion of flips the future only argues C.J. that the risk of erroneous expand even were we our But claim, deprivation high regard analysis process withholding to his claim due to his asylum, noting change "asylum that his would not While claim is outcome. withholding asylum extremely complex.” of removal He does share [] not contend requirements, withholding same substantive deprivation high that the risk erroneous higher "requires probability persecu court-appointed absent counsel—or other Ashcroft, tion.” process—with Lanza regard additional his with Cir, 2004) (internal quotation marks holding example, and CAT claims. For omitted). we Because conclude that only on necessary focuses the criteria for a adequately developed regard record with asylum claim—e.g,, discussing successful claim, asylum C.J.’s and because substan persecuted whether was “on of" a account supports tial evidence the IJ’s determination protected asylum, basis in the context of relief, asylum that C.J. is not entitled to assessing asylum provided whether his form withholding necessarily claim fails. See id. eligibility sufficient record to measure his C,J..’s pro We therefore relief. consider due That still leaves C.J.’s CAT Because .claim. argument only cess asylum asy- concerns his relief standard: CAT differs from claim, any argument withholding, and deem separately lum and we waived address withholding argument he was due compels denied -that the record is,entitled finding and CAT claims. See Brown v. Rawson-Neal to CAT relief 1146, VI, (9th Psychiatric Hosp., 840 F.3d Part infra. thus focus subjectively reasonable. We to was [government] to the proof of

burden ob- has satisfied the test’s changed to such on have conditions show that Id. prong. invalid.” jective that the inference is degree a supports evidence Substantial can requirement objective “‘The perse not that C.J. was conclusion Board’s of through production met either be long recognized that have cuted. We documentary byor credi specific evidence ... con “[t]hreats, standing [do not] alone Halim, testimony.’” persuasive ble and unless “the persecution” past stitute INS, Ladha v. (quoting 590 F.3d signifi to cause menacing so are threats 2000)). 889, (9th “To Cir. 215 F.3d (inter Id. suffering or harm.” cant actual fear, a threat need effect a well-founded omitted). Here, C.J. marks quotation nal statistically fifty-percent more than not be -harmed, and the physically was never suggested Supreme Court has likely; the appall recruitment efforts—while Maras’ possibility perse of a orie-tenth even plainly not cross the line ing—did fear.” might cution effect a well-founded Hoxha v. persecution. harassment Lim, 224 at 934. F.3d (9th 1179, Cir. F.3d Ashcroft, 319 found mere While we have 2003) (deeming threats to unfulfilled finding past a of compel threats do not than persecution); rather harassment cf. may give alone rise persecution, threats 1112, 1115- Ashcroft, 383 F.3d Mashiri v. persecution fear of future a well-founded 2004) (9th (finding past 17, Cir. 1119-20 of they a likelihood future portend re petitioners persecution where court physical harm. See id. at “Our threat, where, inter but a ceived death threats, without generally treats injured unfulfilled alia, petitioners of was one more, conduct category as- within mob, escape xenophobic a anoth trying to danger persecu of future times, indicative multiple “violently attacked” er was tion, it past persecution than as firebombed).10 rather an ethnic store was (cid:127)and cases). Curiously, the (collecting Id. self.” past persecu the absence “In claim of only C.J.’s contests asylum tion, may eligible for still be [C.J.] ignores argument past persecution, of future fear on a well-founded based reason past experiences support fear ‘must be A persecution. well-founded persecution. fear of future able objectively subjectively genuine and both ” at least conclude that C.J. has shown We Holder, 590 F.3d reasonable.’ Halim persecution.” possibility a “one-tenth 2009) (9th Ahmed v. (quoting Cir. case Lim is instructive. involved That (9th Keisler, Cir. 504 F.3d officer, Lim, re- intelligence who Filipino words, 2007)). In C.J. must show other threats over the course ceived death subjectively reason both that his fear is Lim, Id. at 932-33. He was never years; several “objectively well-founded.” able and confronted, alone attacked. (internal physically let quotation marks at 935 224 F.3d C.J; asy- rejected at 933. The Board omitted). was Id. Lim’s. The IJ determined alia, because, inter he suf- persecution application lum fear credible and his. guns). sure, But be question. men with close and confronted To be multi family held in other cases that would be cause we promised that he and his compel a years physical join gang. ple abuse does The Board killed if he did not hold finding past persecution, we decline to had it have acted within its discretion physi no here where C.J. suffered past persecution on these facts. See otherwise found Holder, See, e.g., 590 F.3d Halim v. Ashcroft, 1160-61 cal harm. Ruano n . (9th 2009); Kamla Prasad v. (finding past persecution 975-76 Cir INS, applicant with death where was threatened (internal physical during six-year no harm qualify fered still persecution.” Id. threats, family period quotation omitted). of death and his adjustment marks and Philippines way, minor, went untouched. Id. Put another in the case of a persecution prong relaxed. If an granted petition. Lim’s ex- We We adult in Lim a had well-founded fear of plained “[although never was [Lim] persecution where he was not even con harmed, nor physically confronted he was by persecutors, fronted his it stands to death, followed, threatened he was C.J., reason 13-year-old a boy at the list, appeared on a death and his col- time, has demonstrated a well-founded leagues who received similar were threats he, fear where endured in-person threats killed.” Id. at 935. reason- We held a his life. C.J. has therefore at demonstrated able compelled factfinder would be to find least a possibility “one-tenth of persecu that Lim’s “objective- fears were therefore tion” he returns to The rec Honduras. (internal ly quotation Id. well-founded.” compels ord finding a that the Board erred omitted); Halim, marks at F.3d cf. in concluding otherwise. (petitioner failed estаblish a well-found- Protected persecution govern- ed fear of where the Status. C.J. must still show alleged persecutors—actually ment—his that his fear of persecution future is “on attacked, him saved when he of’ protected was account a basis—namely race, alleged persecution where he no religion, nationality, membership in a years four his preceding emigration particular to the group, political opin social or States). Jacinto, (citing ion. at 734 208 F.3d 1101(a)(42)(A)).Thus, § U.S.C. the Maras’ of persecution C.J.’s fear is even threats must have nexus to one of a these than more “well-founded” Lim’s. Unlike categories. argues that because the Lim, afar, who received death threats himself, Maras threatened but actually by C.J. was Maras confronted mother, aunt, uncles, also his his claim in person on several occasions. The threats qualifies under group category the social time, menacing” also became “more over family. culminating harrowing encounter in gang put gun which a member to his C.J. is correct familial affilia head, him gave recognized a date tion can group, certain—the be a social but day—to join simple next die if he enough. did association is not See Jie Moreover, Lin, gang. Lim an Family was adult where 377 F.3d at status is a “Age legitimate appli as C.J. is a minor. can be a critical basis relief where the adjudication persecuted factor in asylum claims cant is because his relation heavily Lin, may question ship family on the bear members. In Jie applicant persecuted by or parents targeted whether Lin’s the Chi were she violating family holds well-founded fear nese its Hernandez-Ortiz, persecution.” planning policy. future Id. The court (internal quotation at 1045 recognized family cognizable marks and Lin’s as a omitted). adjustment group govern is because the social Chinese That “harm a may child fears has suffered be ment Lin “on account of’ his threatened relatively less than of an Id. parents. adult and close ties at 1028.11 INS, ("evidence Rodriguez sug- 11. See 841 F.2d [] 1987) (family cogniza- gesting] [petitioner’s] family been has constituted petitioner’s family particularly group ble social where affected the conditions in their political country helps [petitioner's] support members were attacked for their be- claim [] liefs); INS, (internal omitted)). asylum” see also Del Valle v. citations against family. C.J. com- claim for members his Critically, Lin’s the for basis put him that the IJ have parents’ plains his actions had should asked relief was that 1021. CJ.’s case to deter- danger. questions See id. at Maria him and additional not C.J. was his presents why gang the inverse situation: also mine threatened the relationship uncles, of’ mother, aunt, his “on account but IJ ‍‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​​‌​‌‌‌​​​​‌‌‌​‌​​​​​​​​‍ex- threatened the and Instead, aunt, mother, or the uncles. necessary his plored to this issue the extent to to family C.J.’s was reflects record that reasonably questions conclude such that join 's to refusal C.J. threatened because tar- unnecessary. the Maras were Even if the Maras. indepen- geted family CJ.’s for reasons C.J., to dent of their efforts recruit that logical sequen-

The asked C.J. and IJ not the fact C.J. was change would that to this conclu- questiоns draw tial series family. not “on of’ account who threatened began by asking C.J. IJ sion. The was, by testimony,.threatened He his own you?” for C.J. re- problems causing “was courageously the because he Mar.- Thé IJ refused it “the that was Maras.” sponded join The IJ repeated as’ to them. problems kind of demands “[W]hat then asked C.J.: respond- fully develop not fail to the gang?” therefore did you have the CJ did join Mar- they protected me to the on the status. question record ed: “Well wanted they said I that I wouldn’t. So said and Having no that due determined so going to me they up, beat were my( regarding violation occurred whether C.J. the [to that should mother said we come protected ground—a has established IJ then C.J. States].”-The asked necessary asylum granting condition harm to the “threatened] Maras relief—the whether sub- question Hon- family other members in any your the de- supports stantial evidence Board’s responded The they that had. C.J. duras.” highly our under deferential termination Maras up, asking C.J. who IJ followed For standard review. stated reasons C.J, threatened, to answered: which had above, it we hold that does. uncles, aunt they my kill “They would said Inability Unwillingness of or I, we uncles, mother but my and to Control the Government Maras. C.J. Finally, the here, came know.” we don’t so persecution also he must that show any other probed whether there -was IJ- by “government fears is or forces status, asking protected class basis unwilling or unable either came again if the he C.J.’s mother reason Gonzales, 399 Nahrvani F.3d control.” he because was the United States was 2005) (internal (9th quota Cir. “being gangs.” threatened omitted). tiоn marks C.J. testified that he mother answered: “Yes.” report not threats did Maras’ adequate. IJ inquiry The IJ’s was anything,” police “they because do couldn’t questions elicited answers es- asked adding “very he The IJ was afraid.” tablishing be- C.J. threatened pro concluded failed him. the Maras recruit cause tried Cf. not police evidence would vide Holder, Henriquez-Rivas v. helped reported him the Mar- had 2013) banc) (en (finding 1092-93 as, the Hondu he failed establish against gangs testify who com- that those- unwilling government wa,s ran unable prise cognizable group, social but declin- them. control ing to extend determination individ- C.J, challenge to IJ’s any has simply gang who waived resist recruitment uals efforts). finding indepen- against point—which is him on this The Maras’ threats rejecting asylum persecution basis were derivative dent

H43 withholding your fact, claims—by challenging it son.” In Maria was legally enti legal representation tled both retain appeal to the Board. See Barron speak on Jacinto, behalf Ashcroft, 358 F.3d Jacinto, In at 729. we concluded that (court subject jurisdiction lacks matter such petitioner’s defects violated presented consider claims not to the to a fair full and hearing. 734; Id. Board). even But were we consider this (“We see also Agyeman, 296 F.3d at 883 issue, adequately we that the find previously have emphasized the impor developed the record that her and determi of explaining tance to an alien evi what on nation was based substantial evidence. dence will demonstrate their eligibility for adequately IJ developed The record the from relief deportation.”).12 by introducing considering and a 2014 sо, Even to C.J. fails show that Department country State conditions re- the process additional he seeks—govern port Department on State Honduras. re-: ment-funded, court-appointed counsel—is ports provide objective may of a evidence necessary, either in or his case for alien government’s inability unwillingness or to minors as Buckingham, class. See, private e.g., control actors. Gomes v. (courts F.3d at 1082 must consider the Gonzales, 429 F.3d adequacy of the process provided in the reflecting Far the Honduran context of similarly litigants). situated As government’s inability unwillingness or to government the observes, correctly a less violence, gang report control the 2014 yet costly process already effective exists safeguard security states that of minors punish forces severely rights formal proceedings: remand an IJ gang Accordingly, members. because the correct an deficiencies. If fails report support subjective does C.J.’s provide hearing, a full and fair as is re police statement any- that the “couldn’t do quired INA, by the this results thing,” we cannot disturb the Board’s find- prejudice, then proportionate remedy ing has not gov- that C.J. shown that the is grant petition review with ernment is or unwilling unable to control fully develop instructions to IJ to more Budiono, the Maras. See F.3d at 1046. See, Jacinto, e.g., the record. Indeed, Congress 735. the fact that vested ii. IJs with responsibility investigating of sure, To be proceeding CJ.’s removal applicant’s and developing an claims tilts paragon procedural was not a of decorum. equities government favor- of the on The clearly explained IJ should have more litigant second Mathews A factor. relief, for asylum standard may position that, C.J.’s must show telling confused Maria her that deprived was he of a fair hearing, full and she “either could request little more'time performed duty but had the IJ her an attorney you find ... go can one, provide the Constitution still would today speak ... forward behalf entitle him to court-appointed counsel.13 did, however, out, provide 12. asylum application The IJ provided most of the an to fill parties gave procedural safeguards country report, necessary conditions to ensure a give opportunity Maria an a narrative state- hearing. ques- full fair The IJ asked- C.J. C.J., support explained ment in ap- relief, potential tions to determine avenues for peal rights, reiterate—granted and—to four status, including withholding, adjustment of spanning nearly year continuances and a removal, asylum, citizenship. and derivative half, multiple opportu- which afforded Maria provided explained interpreter, The IJ also an nities to secure counsel. plain language, pro the NTA in discussed the Maria, attorneys provided bono list ad- Implicit responsibility in the IJ’s to inde- the¡record right gave pendently vised C.J. obligation develop Maria year. This staggering per million accomplishing short $276.1 C.J. falls well roughly consume 68% the Execu- fails to show would because he task Herculean Immigration Review’s tive Office Congress prescribed (“EOIR”) budget. The total inadequate vindicate categorically unintended conse- potential also warns process. to due The minor’s alien juveniles a mandate: quences from such govern factor favors the Mathews second attorneys opt that could afford ment. instead, and government-funded offering pro legal bono ser- organizations shift scarce resources else- final re vices would “The Mathews factor where. quires to consider the burdens [the court] holding may place on the administra [its] government- cost of ultimate The Oshodi, process.” 729 F.3d at 896. tive funded, likely falls court-appointed counsel gov court must assess the “interest of govern C.J.’s and the somewhere between using procedures in the current ernment surely ment’s underesti estimates. proce or different

rather than additional limiting sample size by mates the cost dures,” of impos and account for the costs Any to the Ninth Circuit. decision Plasencia, ing procedures. 459 additional resulting in a new constitutional this court 34, 103 at S.Ct. 321. U.S. for minors would ricochet right alien argues govern because country, teeing up copycat suits across the already pays lawyer represent a vastly ment expanding in circuits other and in immigration proceedings its interests pool eligible applicants. On the other minors, providing for mi involving hand, government’s assumption “asymme necessary remedy advantage nors is eligible all minors would take Turner, 564 try representation.” court-appointed speculative. counsel is free Cf. 447, 131 posits also disaggregate at S.Ct. 2507. C.J. U.S. The also fails government govern financial eligi burden to account those minors the data 6,500 only manageable ment expedited removal—we have never ble pro in children are removal unrepresented expedited pro in held that aliens removal Circuit, resulting in in statutory the Ninth ceedings ceedings enjoy right a to even million approximately cost of a total counsel.14 privately-retained $17.5 government at contrac when calculated government’s figures are Even $2,700 per case. tors’ estimate way, they likely are under- one inflated Noting government begs Mandating to differ. court- in another. free valued 102,264 juveniles strain an apprehended appointed counsel could further that DHS alone, system. in FY 2016 already at or near the border overextended locating counsel for all of them tasked with and appointing cost of IJs would be (a counsel, takes time. And $2,700 figure, appointing case conservative which per at attorneys to ex- a would need government) would be according to expedited proceedings have a due petitioner’s pro removal se status to account for counsel); conducting right privately-retained age proceeding. a removal 877; Hernandez-Ortiz, DHS, Expedited Designating Agyeman, Aliens Remov- 296 (Notice), 48877-01, Reg. 48878-79 496 F.3d at 1045-46. Fed. al 69 11, 2004) (Aug. (recognizing that "unaccom- Peralta-Sanchez, may possess equities panied ... minors States v. Cf. 542, against expedited weigh the use of (unpub- Fed.Appx. added)). lished) proceedings" (emphasis (assuming deciding without that aliens pend communicating resources that Congress additional charged codified and IJs opposing filing responses to with with If enforcing. that, we had concluded motions, preparing likely what case, right C.J.’s could be longer administrative record—all court-appoint vindicated him assigning expense. which come at considerable counsel—i.e., ed if we had determined that Cf. v. Nat’l Ass’n Radiation Sur Walters deprivation risk erroneous of C.J.’s vivors, 473 U.S. 105 S.Ct. full fair hearing absent (1985) (recognizing law L.Ed.2d court-appointed counsel was á Virtual cer yers’ professional obligation to “contest tainty—then might we have been com vigor all adverse evidence and pelled to such award to C.J. relief Under views”). Mathews, paramount our responsibility is Ultimately, government’s wherever the quantum ensure that “the quality falls parties’ burden esti- between provided the process” pur “serve[s] mates, the factor third Mathews favors the pose error,” of minimizing the risk of s government. Requiring government-fund- Greenholtz v. Neb. Penal & Inmate of significantly ed counsel would increase the 1, 13, Complex, Corr. S.Ct. expended funds on immigration matters. (1979) (citing 60 L.Ed.2d 668 Math ews, 893), U.S. at S.Ct. and so third Mathews factor must take back Having evaluated each Mathews factor seat to the second. case, individually applied we Further, irrespective of the assessing turn next to the factors collecr observation, the second had Math above that, tively. notwithstanding We conclude C.J., ews then the favored third factor C.J., factor the first Mathews favors so, likely do The third factor well. would tip the second and third factors the bal- government of “the interest the considers strongly in government. ance favor of the in using procedures the rather current No strength matter the C.J.’s interest in procedures.” than оr additional different (the factor), being deported not first Plasencia, 34, 459 U.S. at 103 S.Ct. 321. necessity government- has not shown a government compelling has a interest funded, court-appointed counsel safe- in just fair and the administration our guard process right to his due a full and v. Walters Nation’s laws. (the factor). hearing According- fair second (9th Reno, 1032, 145 F.3d 1043-44 Cir. ly, were we to the IJ even failed find be real If interest could provide hearing, a full and fair (see III.C.5, particular through in a ized case court- prejudiced Part in- fra), appointed factor remedy would be to then the third appropriate remand with instructions the IJ impel provision. Gagnon ade- its Cf. record, quately develop ap- not the 778, 1756, 790, 411 Scarpelli, U.S. 93 S.Ct. pointment government at counsel ex- (1973) (“there 656 36 will L.Ed.2d remain pense.15 cases which fundamental fair certain process—will ness—the touchstone of due

We hasten to note that our conclusion that the its require provide State at ex relies on the second and the third pense indigent probationers Mathews factor. counsel process has due right hearing—a full fair right parolees”). right categorical court-appointed

15. Because we conclude that C.J. not enti- court-appointed tled to counsel in his own necessarily fails. proceeding, enjoy his claim that alien minors 1146 ability implement our separa enhancing without

Finally, concerns fundamental play. By the other two. are at requiring tion-of-powers yet de Congress’ direction IJs fulfill 5. more, judicia we balance manding .no obligations in our divided ry’s, core three keeрing judicial In with our third aggran and avoid system of above, next obligation we consider whether First, power. act conso dizing our we own shortcomings proceeding vio-- C.J.’s beyond scope than nant rather process, to due and thus lated policy in an area Congress’, prescribed instructions we remand with must control. See plenary it exercises which over hearing. to conduct a full and fair 678, Davis, 695, 121 533 U.S. Zadvydas v. hearing of a full and fair ... will “The lack (2001); 2491, 150 Hamp L.Ed.2d 653 S.Ct. process a due violation. establish not-alone 88, 100, 96 U.S. Wong, ton v. Mow Sun 426 [ must establish that suffered ]he The alien (1976). Second, 1895, S.Ct. L.Ed.2d Jacinto, Preju 208 F.3d prejudice.” at duty “say independent our satisfy we s petitioner require dice show by articulating scope is” what the law proceeding may “that the outcome Congress’ and contours full-and-fair- alleged viola have been affected hearing guarantee. See Gutierrez-Brizuela Oshodi, (emphasis tion.” F.3d at 896 1142, 834 F.3d Lynch, Gonzales, (quoting Zolotukhin v. original) 2016) (Gorsuch, J., concurring) (citing 2005)). Prej (1 Cranch) Madison, 5 Marbury v. U.S. develop results IJ fails udice (1803)). third; And 2 L.Ed. we record sufficient to determine whether liberty any check violations of individual qualifies deporta applicant relief fails to provide an IJ the amount of where Jacinto, 208 tion. See by Congress. guaranteed conclude deficiencies We Shaughnessy, ex Accardi v. States rel. him proceeding prejudice did 74 S.Ct. L.Ed. dispositive questions on the (1954) (courts independent obli protected status and whether the Hondu gation to affords ensure that the Board or government unwilling is to ran unable forth in aliens the set enacted due Maras, adequately contrоl the de legislation implementing regulations); veloped Notwithstanding the record.16 the Fiallo, n.5, see 430 at also 97 793 explain to the IJ’s failure standard (“Our acceptance cases reflect S.Ct. 1473 shortcomings, asylum, among other there judicial responsibility of a under limited probability no exists reasonable that C.J. to respect Constitution even with asylum relief been awarded . would power Congress regulate the admis This aliens[.]”). obligations.17 the IJ satisfied her had Requiring sion exclusion of supports evidence government ex is because substantial court-appointed counsel at (i) that the Board’s C.J.’s pense jettison obligation first determinations would and, noted, legal any proper "even argu with skilled already CJ. waived 16. As counsel, fully no relief was develop available the IJ did Petition ment INS, er”); unable-or-unwilling-to-control 984 see also F.2d on the record Acewicz 1993) (9th (prejudice from 1062 Cir. lack issue. showing requires a counsel counsel could Holder, argu specific facts or Tamayo-Tamayo v. have "better marshalled 725 F.3d (9th asy presenting petitioner's case for (petitioner was not ments Cir. (internal withholding legal prejudiced by [removal]” lum or counsel a lack omitted)). quotation order marks of a reinstatement-of-removal issuance alleged persecution was “on account tion that the words a statute must be (ii) protected ground, of’ a in their read context and with a view that.CJ. failed, to govern- place show that the Honduran their in the statutory overall scheme”). not or ment could not control would It would also the corol violate Budiono, Maras. See 837 F.3d lary at specific canon that statutory provi prevail general sions over more In re ones. IV. Spanish II, Matter Peaks Holdings LLC, quiv C.J. has left in one arrow 872 F.3d er on his right court-appointed asserted this principle, Under to the extent argues 1229a(b)(4)(B)’s counsel. C.J. § the INA’s fair full-and-fair-hearing re hearing provision, quirement U.S.C. implies right § 1229a(b)(4)(B), implicitly requires court- argues, implied right must fit ’ appointed counsel at expense specific grant by within conferred because, for all alien according 1229a(b)(4)(A). § minors C.J. seeks much more. him, that is “only way that children We decline his invitation to rewrite the provided can full be and fair hearings.” ÍNA. holding

Our that C.J. was not prejudiced V. by any procedural deficiencies his re proceeding argument moval defeats this C.J. also asserts that his due forthwith. process rights were violated because the IJ possible failed inform of his him C.J.’s also fails as claim a.mat eligibility for required SIJ status. An of statutory interpretation. ter gov As the apparent “inform alien her out, correctly points reading ernment an (cid:127)eligibility to apply of the benefits implied right court-appointed in this chapter enumerated af and shall 1229a(b)(4)(B) § into would create a ten make, opportunity ford alien an [an] immediately sion with pre the sub-section application during ‍‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​​‌​‌‌‌​​​​‌‌‌​‌​​​​​​​​‍hearing....” 1229a(b)(4)(A) ceding provides it. Section § 1240.11(a)(2); C.F.R. States v. aliens with the counsel “at no Lopez-Velasquez, expense to the Government.” U.S.C. 2010) (en banc). “Apparent eligibility” 1229a(b)(4)(A) added). ,§ (emphasis s record, i fairly demonstrated “where proposed effectively reading reаd intimately who reviewed individual out of the quoted phrase, statute the with the laws—as IJs familiar thereby running of the afoul canon stat no doubt are—raises reasonable possibil utory construction that court in should ity petitioner may eligible terpret a statute as a cohesive whole Lopez-Velasquez, relief.” way gives provi effect to of its all (internal omitted). quotation marks INS, 1161, sions. Padash v. 358 F.3d “ duty triggered ‘or (9th IJ’s is where the (“[W]e alien Cir. every 1170-71 must make person puts some other before information not interpret effort provision the judge eligibility, ap a the makes such provi issue in manner that renders other ” Id. at 900 inconsistent, parent.’ (quoting Moran-Enri sions the same statute INS, (internal 422 quez v. meaningless superfluous.” quo or 1989)). way, omitted)); Put another the must adjustments tation marks and record “a factual for relief.” Id. see also basis FDA Brown & demonstrate Williamson ,to 120, 133, 120 ‘apparent an Corp., advise alien of Tobacco 529 U.S. “[F]ailure S.Ct. (2000) (noting pro for relief is a eligibility’ L.Ed.2d 121 due the apply statutory Rojas- canon of violation.” “fundamental construc United States cess many years” knew that “there been Pedroza, [had] 2013). fa- in touch with his had been since C.J. ther, [Maria] that his father had “left legal pathway a provides status SIl thereby satisfying the long ago,” a time (“LPR”) for un- status resident permanent requirement that he show reunifica- be reuni- minors who cannot documented parent is not viable. tion at least one parents or both because with one fied Children, he credi- abuse, argues further or abandonment. C.J. neglect, by Maras, one C.J., have abandoned bly who been threats the like testified death if the other may eligible be even parent likely that it court determine state custody. retains parent to be returned to is not in his best interest fur- Finally, goes step one Honduras. multi-step pro- is a Gaining status SIJ ther, asserting that status is access SIJ obtain a minor must first court cess. The appoints if court him juvenile only meaningful That court. order from state alia, must, through that the shepherd ]” court inter his case the “declare! juvenile court “dependent upon child is' a courts. California States accordance located the United arguments founder on the governing such declarations

with state law pro that, at removal fact the time alien was dependency, while jurisdiction ceeding, not have a state court and under he did United States court”; “eligi- be, alia, that the child and find deeming him to inter order long-term ... for foster care.” 8 C.F.R. ble court.” 8 “dependent upon juvenile [the] (cid:127) (3)—(4). 204.11(c) § 204.11(c)(3). § The IJ therefore C.F.R. status, granted not him SIJ could requisite If the court makes the state “apparently] meaning that C.J. was may apply for SIJ findings, then the child for relief. Id. eligible]” IJ. 8 U.S.C. status with status, 1240.11(a)(2). 110Í(a)(27)(J). duty § grant Accordingly, § To SIJ the IJ’s that the child’s reunification triggered. IJ must find to inform was not Moran- Cf. parents is not viable due with one or both (IJ Enriquez, duty F.2d at 423 had a abuse, abandonment, or a simi- neglect, deporta petitioner to inform relief law; that it state lar‘basis under marriage to a petitioner’s tion where best interest be returned the child’s eligible him for citizen made United States country nationality. Id. relief). States v. Ca Contra United such brera-Ochoa, 5:15-cr-00206-BLF-1, status, No. If the IJ awards the child SIJ (N.D. may apply legal residen- Aug. then the child at *8 Cal. WL an juvenile'receives But SIJ cy. even

designation, hiay grant IJ refuse the INA re C.J. counters legal residency may

application of his quires the to “inform the alien order the alien removed. See U.S.C. still eligibility apply 1255(a). apparent her § chapter,” in this enumerated the benefits contends that the information at his 1240.11(a)(2), § of which is C.F.R. one SIJ hearing “raised reasonable 1101(a)(27)(J); status, § see 8 U.S.C. may eligible for possibility that he [SIJ (e)(2)(vi)(B)(3).'But 1245.1(a), §§ C.F.R. vaguely that suggests He status].” classification is one qualified alien SIJ that a state facts before IJ indicate already made a court has whom state him dependent deem on the court would findings necessary for an IJ certain juvenile court. on his and Maria’s Based 1101(a)(27)(J); § grant 8 testimony, also asserts that status. U.S.C. C.J. SIJ

1149 juvenile § a upon 8 C.F.R. 204.11.18Had C.J. secured the court.” C.F.R. 8 204.11(c)(3). because, § That is unlike requisite court state determinations Cabrera-Ochoa, petitioner who was ef development immigra- revealed that fectively orphaned by “neglect” proceeding, tion then the IJ have parents, “abandonment” of both C.J. obliged “appar- been to inform of his him custody remains in the of his devoted eligibility” to seek ent SIJ status. But C.J. Cabrera-Ochoa, mother. 2016 WL Cf. pro- had not even initiated the state court 4204551, at “Apparent eligibility” *8-9. re cess, not required parse and the IJ is more—i.e., quires something facts that of a petitioner’s the record evidence plainly indicate a possibility” “reasonable eligibility to an potential pursue indepen- eligibility for immigration Lopez- relief. previ- dent state action. As we have court Instead, Velasquez, 629 F.3d at 896. stated, ously expected “IJs are not to be piles upon inference first inference. He clairvoyant” informing it when comes that a court assumes state would deem options aliens of their for relief.19 Moran- him on dependent that court notwithstand Enriquez, 884 at 422. ing custody his mother’s continued him. (which Finally, even were we to conclude Based on assumption, that he then makes not) must, general we do that an IJ as a another: IJ would exercise her an. rule, advise an alien minor of grant discretion to C.J. SIJ status even may hypo- relief that be available based on though “reunification with ... of [C.J.’s] court, findings by thetical a state parents ... viable.” 8 U.S.C. eligibility “apparent.” for SIJ status is not 1101(a)(27)(i) § added); (emphasis see also It is speculative § at best that a California assumptions C.F.R. 204.11. Both are dependent speculation, court would with a all heavy “declare[ C.J.] laden dose regulations provide proceedings, including pro- "[a]n alien Court eligible special ceedings.” for classification as a immi- 101(a)(27)(J)” grant alien [§ ] under agency’s We accord no deference to an un criteria, meets certain Several of those crite- official, non-binding policy statements of require already ria a state court have any interpretation are of the unmoored example, made For certain determinations. governing regulations. statute or its Auer v. Cf. must, alia, "halve] the alien been de- inter Robbins, 452, 462, 117 S.Ct. juvenile dependent upon ... clared a court (1997) (in certain circum L.Ed.2d governing accordance with state law such stances, agency's deference is an rea owed dependency,” and have been declarations of regula interpretation sonable "of own [its] juvenile long- eligible by "deemed court for tions”); Chevron, U.S.A., v. Natural Res. Inc. 204.11(c)(3)—(4) § term foster care.” 8 C.F.R. Council, 842-43, Inc. 467 U.S. Defense added), (emphasis (defer (1984) S.Ct. L.Ed.2d agency’s interpre ence is owed an reasonable non-binding 19. C.J.’s references to a state- ambiguous statutory provision); tation of an by a DHS a brief ment official and discussion Co., 134, 140, & 323 U.S. Skidmore Swift of the SIJ in DHS train- contained (1944) (granting 89 L.Ed. 124 "re S.Ct. ing unavailing. killing re- gangs of minors backdrop the for against more so set discussion when the n pursue required GJi’s failure sisting the their recruitment efforts. process. court state supports the evidence Substantial reasons,’ that the For all these we hold gun having conclusion. a Board’s While required to' inform that he IJ not C.J. was deeply no pointed one’s head is doubt at Our deter- might eligible SIJ status. traumatizing, err in the Board did not necessarily disposes C.J.’s mination it hot finding that amount “severe did court-appointed counsel at claimed any suffering.” or was there Nor pain expense purposes pur- government showing government the Honduran suing requisite the state action. court See 8 C.F.R. in acquiesced the act. 1208.18(a)(1). § in As the context discussed VI. claim, III.C.2, see Part asylum of CJ.’s under Finally, seeks relief C.J. supra, compel the not a record does find 1208.16(c). § CAT, prevents CAT 8 C.F.R. government ing that the turned either removing an alien the United States against eye the Maras’ blind threats likely-than it is more -a-country where unwilling or it or C.J. be unable by or not he will be tortured with the the in the control Maras future. Cf. Muradin government. of the acquiescence Muradin, (granting F.3d at 1211 CAT Gonzales, 494 F.3d .applicant presented the evi relief where 2007); 1208.16(c)(2). § in 8 C.F.R. Torture by security tortured dence that infliction of volves intentional Armenia, country officers his home suffering, physi or pain severe de Department report a State where ,.for reason cal mental based any or by beatings torture tailed routine kind, when such discrimination services). security deny We therefore suffering or pain by or inflicted at petition for on his CAT claim. review or the consent or instigation of with public of a official other acquiescence CONCLUSION acting capacity. in an person official are that our decision means We mindful 1208.18(a)(1). § Unlike stan 8 C.F.R. that, reprieve gov absent offered asylum withholding re dards C,J. ernment, likely will be returned to a moval, petitioner riot show that he “need sympathize his protected on account of a turmoil. We with country will be tortured C.J, Mura relief. ground” to for CAT qualify personal plight, as to have appears din, 494 F.3d at courage displayed face of serious adversity. But “our hearts with while are “fear[] IJ concluded that C.J.’s [C'.J.],” re support law does he had gangs problems that- Dugard quested short of relief. gangs' ..falls Honduras Cf. States, requirement particularized to show a ,of affirmed, threat torture.” The Board Supreme prece nor Neither circuit Court agree. and we compels remedy seeks: dent court-appointed ex argues the IJ and the Board pense. And to the extent failed in denying erred CAT claim because provide trappings all the a full and fair than the record more sufficient “contain[s] hearing, any shortcomings preju did entitlement evidence establish C.J.[]’s adequate dice outcome because points to protection under CAT.” C.J. gun ly on issues that are put developed to his the record the fact the Maras Department report’s dispositive to Attor State C.J.’s claims for relief. head and the representation ney represented could not have altered unaccompanied minors im reality, to migration confront). which forecloses CJ.’s proceedings claim implied right court-appointed an counsel Moreover, the Due Process Clause.

under provides INA itself neither for nor

implies court-appointed counsel government expense.

We further hold IJ was not required to separate advise C.J. of a state America, UNITED STATES of court could form ultimately Plaintiff-Appellee, predicate application for C.J.’s for SIJ IJ. The IJ status required v. advise an alien relief for which he is RODRIGUEZ, Lidia Defendant- eligible].” “apparent[ly] Because C.J.’s Appellant. status—depends relief—SIJ claimed No. 16-10017 making findings

state court certain before may an IJ him grant such relief—some- Court of States Appeals, not thing that has occurred here—C.J. is Ninth Circuit. eligible]” not “apparently] for SIJ status. Argued 12, September and Submitted Finally, we decline reverse Francisco, San California asylum, Board’s denial withhold- removal, claims, ing of and CAT January Filed supports substantial evidence the Board’s ineligible

determination that he is

such relief. FOR

PETITION DENIED. REVIEW

OWENS, Judge, Circuit concurring:

I concur in majority opinion its scope. It Pro

narrow holds the Due

cess government- Clause does mandate C.J.L.G., accompa

funded hold,

nied The opinion minor. does discuss,

even whether the Due Process unaccompa

Clause mandates counsel for minors. question

nied That different See,

that could lead to different answer.

e.g., Servs., Dep’t Lassiter Soc. 31-32, 101 S.Ct. 68 L.Ed.2d (1981) (holding that the Due requires

Process Clause appointment case-by-case counsel is on a considered Lynch,

basis); J.E.F.M. J„ (McKeowh,

1039-41

joined Smith, J., by M. specially concur

ring) (outlining unique challenges that un notes 18, 25, 101 S.Ct. L.Ed.2d legislatures recog- state and courts (1981))), in Nothing Gault or right prog for mi- its explicit counsel nized in eny compels in fol- outcome minors proceedings, which delinquency nors Supreme immigration proceedings from not lows Court decisions civil who do rate, holding collecting The one extra-circuit case the Sixth Circuit’s decision ‍‌‌‌​‌‌​‌​‌‌‌‌​​‌‌‌​‌​​​​​​‌​‌‌‌​​​​‌‌‌​‌​​​​​​​​‍circumstances, may, specific aliens in enti years forty Aguil In more dust: than .since court-appointed decided, tled to counsel was decided era-Enriquez was no we aware are permanent context lawful residents any endorsing Sixth case circuit C'LPRs’’) C.J.—lawfully who are—unlike interpretation Circuit's broad of the Pro Due INS, present. Aguilera-Enriquez v. See for aliens in pro cess Clause 568 n.3 & at 574 id. ceedings. J., And, (DeMascio, dissenting). at n.6 any against that of the Mathews test of incarceration cate outcome threat are face the Thus, court-appointed litigant coun could id. gorically presumption. entitled See Indeed, has Court [Supreme] “the sel. but still fail to demonstrate clear Mathews process prin that due determined [never] right government-funded, process a due categorically of fundamental fairness ciples court-appointed counsel. context outside counsel require of this may purposes assume We Turner, 564 U.S. proceedings.” criminal indigent. qualifies as opinion that C.J. J., (Thomas, dissent S.Ct. “personal a loss of his he faces Whether it is hold that not estab ing). therefore We question. Arguably, closer freedom” categori are that alien minors lished law to a hostile environment sending C.J. back cally government-funded, court- entitled threats he has faced death where appointed counsel. the other past implicates his freedom. On hand, that “actual im- explains Lassiter C. defining con- the line prisonment [is] may nonetheless be able of coun- right appointment stitutional that, controlling case even absent show (internal 26, 101 Id. at S.Ct. sel.” law, implies the Due Process Clause added). omitted; emphasis marks quotation court-appointed govern counsel at However, not and do reach we need To whether a expense. ment determine presumption question occurred, violation procedural due court-appointed applies against First, he must C.J. must clear two hurdles. claim we conclude that C.J.’s here because satisfy three-part test set forth inqui- the Mathews does even survive Eldridge, Mathews v. 424 U.S. (1976). ry. Lan S.Ct. 47 L.Ed.2d Plasencia, 21, 34, 103 don v. 459 U.S. S.Ct.

Notes

manual notes are agency’s policy spect” state official DHS has commented that IJs have assisted ment). most, highlighted DHS At official unrepresented obtaining children in SIJ sta- recognize eligi practice encouraging IJs to Specifically, Acting tus. Chief IJ for former bility provide for SIJ notice to status and Populations deposition Vulnerable stated process. As for the aliens of the state court status] in this case: "I’m confident if [SIJ manual, training simply it offers information judge, comes to the attention that we cry process. from an on the SIJ That is far ample get tools and resources to agency's policy on a reasonable through official based process.” part, For its the state court implementing training interpretation of the INA or its manual describes a course Immigration regulations. program how the “SIJ relates

Case Details

Case Name: C.J.L.G., a Juvenile Male v. Jefferson Sessions

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 29, 2018

Citation: 880 F.3d 1122

Docket Number: 16-73801

Court Abbreviation: 9th Cir.