J.E. F.M., a minor, by and through his Next Friend, Bob Ekblad; J. F.M., a minor, by and through his Next Friend Bob Ekblad; D.G. F.M., a minor, by and through her Next Friend, Bob Ekblad; F. L.B., a minor, by and through his Next Friend, Casey Trupin; G. D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J.E. V.G.; A.E. G.E.; G.J. C.P., Plaintiffs-Appellees/Cross-Appellants, v. Loretta E. LYNCH, Attorney General; Juan P. Osuna, Director, Executive Office for Immigration Review; Jeh Johnson, Secretary, Homeland Security; Thomas S. Winkowski, Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement; Nathalie R. Asher, Field Office Director, ICE ERO; Kenneth Hamilton, AAFOD, ERO; Sylvia M. Burwell, Secretary, Health and Human Services; Eskinder Negash, Director, Office of Refugee Resettlement, Defendants-Appellants Cross-Appellees.
Nos. 15-35738, 15-35739
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 7, 2016, Seattle, Washington. Filed September 20, 2016
837 F.3d 1026
IV.
In conclusion, the district court erred in concluding that the officers lacked reasonable suspicion to detain Williams; lacked probable cause to arrest Williams; unlawfully performed a search incident to arrest; and lacked probable cause to conduct a warrantless search of Williams vehicle. We therefore reverse and remand for proceedings consistent with this opinion.
REVERSED and REMANDED.
Ahilan Thevanesan Arulanantham (argued), ACLU Immigrants’ Rights Project, ACLU of Southern California, Los Angeles, California; Heidi Craig Garcia, Todd Nunn, and Theodore J. Angelis, K&L Gates LLP, Seattle, Washington; Glenda M. Aldana Madrid and Matt Adams, Northwest Immigrant Rights Project, Seattle, Washington; Cecillia Wang and Stephen Kang, ACLU Immigrants’ Rights Project, San Francisco, California; Melissa Crow, American Immigration Council, Washington, DC; Talia Inlender, Kristen Jackson, and Charanya Krishnaswami, Public Counsel, Los Angeles, California; Carmen Iguina, ACLU of Southern California, Los Angeles, California, for Plaintiffs-Appellees/Cross-Appellants.
Marsha Chien, Assistant Attorney General; Colleen Melody, Civil Rights Unit Chief; Robert W. Ferguson, Attorney General; Office of the Attorney General, Seattle, Washington; Kamala D. Harris, Attorney General; Office of the Attorney General, Sacramento, California; for Amici Curiae States of Washington and California.
Charles G. Wentworth, The Law Office of Lofgren & Wentworth P.C., Glen Ellyn, Illinois; Charles Roth, National Immigrant Justice Center, Chicago, Illinois; for Amici Curiae National Immigrant Justice Center; American Immigration Lawyers Association; Ayuda; Capital Area Immigrants’ Rights Coalition; Catholic Legal Immigration Network, Inc.; Community Legal Services in East Palo Alto; Diocesan Migrant & Refugee Services, Inc.; First Focus; Florence Immigrant and Refugee Rights Project; Hebrew Immigrant Aid Society-Pennsylvania; Human Rights Initiative of
Paul W. Rodney, Holly E. Sterrett, and R. Reeves Anderson, Arnold & Porter LLP, Denver, Colorado; Sally L. Pei, Arnold & Porter LLP, Washington, D.C.; for Amici Curiae Former Federal Immigration Judges.
Elisa S. Solomon, Covington & Burling LLP, New York, New York; Risa E. Kaufman, Human Rights Institute, Columbia Law School, New York, New York; for Amicus Curiae Human Rights Watch.
Before: ANDREW J. KLEINFELD, M. MARGARET McKEOWN, and MILAN D. SMITH, Jr., Circuit Judges.
Concurrence by Judge McKEOWN;
Concurrence by Judge KLEINFELD
OPINION
McKEOWN, Circuit Judge:
This interlocutory appeal requires us to answer a single question: does a district court have jurisdiction over a claim that indigent minor immigrants without counsel have a right to government-appointed counsel in removal proceedings? Our answer to this jurisdictional query is no. We underscore that we address only the jurisdictional issue, not the merits of the claims. Congress has clearly provided that all claims—whether statutory or constitutional—that “aris[e] from” immigration removal proceedings can only be brought through the petition for review process in the federal courts of appeals.
BACKGROUND
The appellees (collectively the “minors” or “children“) are immigrant minors, aged three to seventeen, who have been placed in administrative removal proceedings. The children are at various stages of the removal process: some are waiting to have their first removal hearing, some have already had a hearing, and some have been ordered removed in absentia. None of the children can afford an attorney, and each has tried and failed to obtain pro bono counsel for removal proceedings.
The children, suing on behalf of themselves and a class, claim a due process1 and statutory right to appointed counsel at government expense in immigration proceedings.2 They claim that, as minors, they “lack the intellectual and emotional capacity of adults,” yet are “force[d]
The children acknowledge that, generally, an immigrant who has been placed in removal proceedings can challenge those proceedings only after exhausting administrative remedies and filing a petition for review (PFR) in a federal court of appeals. But they argue that this case falls outside the general rule because, in light of the complex nature of removal proceedings and the appeals process, minors cannot effectively raise right-to-counsel claims through the PFR process. As a result, they conclude, they would be denied meaningful judicial review of their right-to-counsel claims if the district court lacked jurisdiction to hear the case.
The government moved to dismiss the complaint on multiple grounds, including ripeness (because in some cases the removal proceedings had not commenced and in others they had not concluded at the time the complaint was filed) and jurisdiction (because the Immigration and Nationality Act (INA) channels judicial review of claims arising out of removal proceedings through the PFR process.
The district court then turned to the government‘s jurisdictional challenge. The court recognized that the INA‘s judicial review mechanism,
Despite the statutory strictures, the district court identified an exception to the INA‘s exclusive review process and concluded that it had jurisdiction over the minors’ due process right-to-counsel claims. Citing McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), and City of Rialto v. West Coast Loading Corporation, 581 F.3d 865 (9th Cir. 2009), the court explained that the due process claims challenged a procedure or policy collateral to the substance of removal proceedings and, in light of the fact that “an immigration judge is unlikely to conduct the requisite [due process] balancing, the administrative record would be insufficient to provide a basis for meaningful judicial review.” Conversely, the district court held that it lacked jurisdiction over the statutory right-to-counsel claims, in part because “the [constitutional] balancing standard does not apply and ... concerns about the adequacy of the administrative record are not warranted.”
The government filed this interlocutory appeal, challenging the district court‘s determination that it had jurisdiction over the constitutional claims. The minors
ANALYSIS
I. The Immigration and Nationality Act Provides Exclusive Judicial Review through the Petition for Review Process.
This appeal turns on our interpretation of two provisions of the INA, so we begin with the statute.3 The section titled “Exclusive means of review,”
Section 1252(b)(9) is, as the First Circuit noted, “breathtaking” in scope and “vise-like” in grip and therefore swallows up virtually all claims that are tied to removal proceedings. See Aguilar, 510 F.3d at 9. Taken together,
Although
Second, and equally importantly,
Thus, we have distinguished between claims that “arise from” removal proceedings under
Similarly, in the unique situation in Singh v. Gonzales, we recognized that the district court had jurisdiction over the petitioner‘s ineffective-assistance-of-counsel claim that arose after his attorney failed to file a timely PFR. 499 F.3d at 980. We noted that Singh‘s claim could not have been raised before the agency because it arose after a final order of removal was entered and, absent habeas review, Singh would have had no legal avenue to obtain judicial review of this claim. We therefore concluded that his petition did not challenge a final order of removal under
In contrast, in Martinez v. Napolitano, we held in the context of a district court challenge under the Administrative Procedure Act that “[w]hen a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal, it is prohibited by section 1252(a)(5).” 704 F.3d 620, 623 (9th Cir. 2012).
In light of
Right-to-counsel claims are routinely raised in petitions for review filed with a federal court of appeals. See, e.g., Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008) (holding that the petitioner did not knowingly and voluntarily waive the right to counsel); Zepeda-Melendez v. INS, 741 F.2d 285, 289 (9th Cir. 1984) (holding that the INS‘s deportation of an immigrant without notice to counsel violated the immigrant‘s statutory right to counsel). In part, this is because immigration judges have an obligation to ask whether a petitioner wants counsel: “Although [immigration judges] may not be required to undertake Herculean efforts to afford the right to counsel, at a minimum they must inquire whether the petitioner wishes counsel, determine a reasonable period for obtaining counsel, and assess whether any waiver of counsel is knowing and voluntary.” Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir. 2005). An immigration judge‘s failure to inquire into whether the petitioner wants (or can knowingly waive) counsel is grounds for reversal. See id. As we discuss below, special protections are provided to minors who are unrepresented. See infra at pp. 1036-37.
The legislative history of the INA, as well as amendments to
Congress continued to streamline judicial review of immigration proceedings in 1996, when it enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3546 (1996). IIRIRA “repealed the old judicial-review scheme ... and instituted a new (and significantly more restrictive) one in
When it enacted
Of significance to our analysis, the Court explained that Congress could have crafted language to channel challenges to agency policies through the PFR process if it had chosen to do so:
[H]ad Congress intended the limited review provisions of § 210(e) ... to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Congress could, for example, have ... channel[ed] into the Reform Act‘s special review procedures “all causes ... arising under any of the provisions” of the legalization program. It moreover could have ... referr[ed] to review “on all questions of law and fact” under the SAW legalization program.
Id. at 494 (citations omitted).
In McNary, the Court did everything but write the future statute and so it
II. The Minors Have Not Been Denied All Forms of Meaningful Judicial Review.
The minors do not seriously dispute that the plain text of
The argument goes as follows: Minors who obtain counsel in their immigration proceedings will be unable to raise right-to-counsel claims because they have no such claim. As a practical matter, children who lack counsel will be unable to reach federal court to raise a right-to-counsel claim because they are subject to the same exhaustion requirements and filing deadlines that apply to adults. Even if an unrepresented child were able to navigate the PFR process, the child would still be deprived of meaningful judicial review, because the record on appeal would be insufficient to sustain review. Because, according to the minors, their right-to-counsel claims will never see the light of day through the PFR process, the panel should construe
The assertion that the minors will be denied meaningful judicial review stems from dicta in McNary. In McNary, the Court noted that the SAW regime imposed several practical impediments to judicial review. Most importantly, SAW procedures “d[id] not allow applicants to assemble adequate records” for review.8 498 U.S. at 496. Agency interviews were neither recorded nor transcribed, and SAW applicants had “inadequate opportunity” to present evidence and witnesses on their own behalf. Id. Because the administrative record was minimal, the courts of appeals “[had] no complete or meaningful basis upon which to review application determinations.” Id. As a result, if the work-
The difficulty with the minors’ argument is that McNary was, at its core, a statutory interpretation case involving a completely different statute.9 See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 14 (2000) (declining to apply McNary because it “turned on the different language of that different statute,” and noting that “the Court suggested that statutory language similar to the language at issue here—any claim ‘arising under’ ...—would have led it to a different legal conclusion“). The point in McNary was that Congress used language (“a determination respecting an application” for SAW status) that did not encompass the constitutional pattern and practice claims urged by the workers. As a consequence, their claims fell outside of the narrow channeling provisions of the statute.
In providing two alternative formulations of channeling language, the Court more than foreshadowed what language would be “expansive” enough to remove district court jurisdiction. Thus, the Court‘s note to Congress laid out the language necessary to limit “challenges to INS procedures and practices.” McNary, 498 U.S. at 494. McNary does not provide an avenue for litigants to circumvent an unambiguous statute.
We would be naive if we did not acknowledge that having an unrepresented minor in immigration proceedings poses an extremely difficult situation. But we are not convinced that agency removal proceedings raise the same concerns that were present in the SAW proceedings. Unlike the SAW program, removal hearings are recorded and transcribed and provide a basis for meaningful judicial review. Immigration judges are both trained and required to probe the record and to ask questions to elicit information about possible avenues of relief. See
Unrepresented minors receive additional special protections in removal proceedings. Unless the child is accompanied by “an attorney or legal representative, a near relative, legal guardian, or friend,” the immigration judge cannot accept the child‘s admission of removability.
At argument, counsel for the children claimed that it was essentially impossible to get the right-to-counsel claim before a federal court. This assertion is belied by the fact that the minors’ counsel has previ-
Petitioner‘s Fifth Amendment right to due process was violated when the Immigration Judge refused to appoint an attorney to represent him in removal proceedings. Because Petitioner is an unaccompanied child of 14 years of age, he is of limited cognitive abilities and lacks understanding of legal process. Due to the seriousness of the proceedings against him and the importance of the interest at stake, namely immigration proceedings in which the government seeks to remove Petitioner from his family, home and school in the United States, the Constitution compels that Petitioner have been afforded the protection of appointed counsel at public expense.
Id. Although the case ultimately settled, Guzman-Heredia lays rest to the contention that right-to-counsel claims will never surface through the PFR process.
The reality is that current counsel for the minors are in a unique position to bring multiple test cases on the counsel issue.10 The claim in this suit is that indi-
Under any of these scenarios, a right-to-counsel claim is teed up for appellate review. It is true that at present neither the immigration judge nor the Board of Immigration Appeals has authority to order court-appointed counsel. But the question at hand is a legal one involving constitutional rights. Even if not raised in the proceedings below, the court of appeals has authority to consider the issue because it falls within the narrow exception for “constitutional challenges that are not within the competence of administrative agencies to decide” and for arguments that are “so entirely foreclosed ... that no remedies [are] available as of right” from the agency.12 Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (first quotation); Alvarado v. Holder, 759 F.3d 1121, 1128 (9th Cir. 2014) (second quotation; quotation marks and citation omitted, first alteration in original); see also, e.g., Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) (recognizing exception to exhaustion requirement for constitutional challenges to agency procedures and the statute the agency administers).
We recognize that a class remedy arguably might be more efficient than requiring each applicant to file a PFR, but that is not a ground for ignoring the jurisdictional statute. Indeed, should a court determine that the statute barring payment for counsel does not mean what it says—a position taken by the minors—that statute would be “infirm across the circuit and in every case.” Naranjo-Aguilera v. INS, 30 F.3d 1106, 1114 (9th Cir. 1994). We also recognize that there are limited—and already more than stretched—pro bono resources available to help unaccompanied minors navigate the removal process. But these considerations cannot overcome a clear statutory prescription against district court review. Relief is through review in the court of appeals or executive or congressional action.
In sum, the minors’ claim that they are entitled to court-appointed counsel “arises from” their removal proceedings and
McKEOWN, Circuit Judge, with whom M. SMITH, Circuit Judge, joins, specially concurring:
Jurisdictional rulings have an anodyne character that may suggest insensitivity to the plight of the parties, particularly in a case involving immigrant children whose treatment, according to former Attorney General Eric Holder, raises serious policy and moral questions.1 But we must heed the Supreme Court‘s admonition that “[f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted). We did not reach the merits here because we hewed to the statute channeling federal court jurisdiction. That said, I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings.
While I do not take a position on the merits of the children‘s constitutional and statutory claims, I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. What is missing here? Money and resolve—political solutions that fall outside the purview of the courts.
In fiscal year 2014, more than 60,000 unaccompanied minors made their way to the United States,2 prompting the Department of Homeland Security to declare a crisis at our southern border.3 Although the numbers dropped in fiscal year 2015, the surge has now reappeared. According to the Pew Research Center, “[t]he number of apprehensions of unaccompanied children shot up by 78%” during the first six months of fiscal year 2016.4 Indeed, earlier “some Members of Congress as well as the Administration characterized the issue as a humanitarian crisis.”5 The border crisis created what has been called a “perfect storm” in immigration courts, as children wend their way from border crossings to immigration proceedings.6 The storm has battered immigration “courtrooms crowded with young defendants but lacking lawyers and judges to handle the sheer volume of cases.”7
Given the onslaught of cases involving unaccompanied minors, there is only so much even the most dedicated and judicious immigration judges (and, on appeal, members of the Board of Immigration Appeals) can do. See Amicus Curiae Brief of Former Federal Immigration Judges at 7. Immigration judges are constrained by “extremely limited time and resources.” Id. at 4. Indeed, those judges may sometimes hear as many as 50 to 70 petitions in a three-to-four hour period, id. leaving scant time to delve deeply into the particular circumstances of a child‘s case.
In light of all this, it is no surprise that then-Attorney General Holder took the position in 2014 that “[t]hough these children may not have a Constitutional right to a lawyer, we have policy reasons and a moral obligation to ensure the presence of counsel.”10 But Congress has clearly—and repeatedly—indicated that these policy and moral concerns may not be addressed in the district court. Rather, these issues come initially within the Executive‘s purview as part of the administrative removal process, with review available in the Courts of Appeals through the petition for review process.11 See Maj. Op. at 1033-35.
To its credit, the Executive has taken some steps within this process to address the difficulties confronting unaccompanied and unrepresented minors. Through the Justice AmeriCorps program, the government awarded $1.8 million to support living allowances for 100 legal fellows who will represent children in removal proceedings.12 The government has also partnered with the United States Conference of Catholic Bishops and the United States Committee for Refugees and Immigrants to provide legal representation to unac-
Yet these programs, while laudable, are a drop in the bucket in relation to the magnitude of the problem—tens of thousands of children will remain unrepresented. A meritorious application for asylum, refuge, withholding of removal or other relief may fall through the cracks, despite the best efforts of immigration agencies and the best interests of the child. Additional policy and funding initiatives aimed at securing representation for minors are important to ensure the smooth functioning of our immigration system and the fair and proper application of our immigration laws.
Eventually, an appeal asserting a right to government-funded counsel will find its way from the immigration courts to a Court of Appeals through the petition for review process. It would be both inappropriate and premature to comment on the legal merits of such a claim. But, no matter the ultimate outcome of such an appeal, Congress and the Executive should not simply wait for a judicial determination before taking up the “policy reasons and ... moral obligation” to respond to the dilemma of the thousands of children left to serve as their own advocates in the immigration courts in the meantime. The stakes are too high. To give meaning to “Equal Justice Under Law,” the tag line engraved on the U.S. Supreme Court building, to ensure the fair and effective administration of our immigration system, and to protect the interests of children who must struggle through that system, the problem demands action now.
KLEINFELD, Senior Circuit Judge, specially concurring:
I agree with my colleagues that a child (or for that matter, an adult) is unlikely to be able to protect all his rights in a deportation proceeding unless he has a lawyer. Many advocacy groups are deeply involved in immigration issues, including the ones who provided counsel in this one, and because the solution to the representation problem is a highly controversial political matter, I think our own advocacy of some particular reform measure is unnecessary and the matter is better left to the political process.
ANDREW J. KLEINFELD
SENIOR CIRCUIT JUDGE