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C.J.L.G. v. Sessions

United States Court of Appeals, Ninth Circuit

January 29, 2018

C.J.L.G., a Juvenile Male, Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General, Respondent.

          Argued and Submitted August 8, 2017 Pasadena, California

         On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A206-838-888

          Ahilan Thevanesan Arulanantham (argued), ACLU Foundation of Southern California, Los Angeles, California; Stephen Kang, ACLU Immigrants' Rights Project, San Francisco, California; Matt Adams and Glenda M. Aldana Madrid, Northwest Immigrant Rights Project, Seattle, Washington; Theodore J. Angelis and Aaron E. Millstein, K&L Gates LLP, Seattle, Washington; Kristen Jackson and Talia Inlender, Public Counsel Law Center, Los Angeles, California; Kristin Macleod-Ball, National Immigration Project of the National Lawyers Guild, Boston, Massachusetts; Melissa Crow and Karolina Walters, American Immigration Council, Washington, D.C.; Emily Chiang, ACLU of Washington, Seattle, Washington; for Petitioner.

          Kiley L. Kane (argued), Senior Litigation Counsel; Stephen J. Flynn, Assistant Director; Chad A. Readler, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          John E. Schreiber and Nareeneh Sohbatian, Winston & Strawn LLP, Los Angeles, California, for Amicus Curiae Immigrant Legal Resource Center.

          Blaine Bookey, Karen Musalo, and Eunice Lee, San Francisco, California, as and for Amicus Curiae Center for Gender & Refugee Studies.

          Robert A. Brundage and Lucy Wang, Morgan Lewis & Bockius LLP, San Francisco, California; Daniel Grunfeld, Morgan Lewis & Bockius LLP, Los Angeles, California; for Amici Curiae Dr. Jennifer Woolard and Dr. Laurence Steinberg.

          Before: Consuelo M. Callahan and John B. Owens, Circuit Judges, and David A. Faber, [*] District Judge.

         SUMMARY[**]

         Immigration

         The panel denied C.J.L.G.'s petition for review of a Board of Immigration Appeals decision, holding that neither the Due Process Clause nor the Immigration & Nationality Act creates a categorical right to court-appointed counsel at government expense for alien minors, and concluding that the Board's denial of asylum, withholding of removal, and relief under the Convention against Torture was supported by substantial evidence.

         The panel held that it is not established law that alien minors are categorically entitled to government-funded, court-appointed counsel and, applying the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), held that C.J. had not shown a necessity for such counsel to safeguard his due process right to a full and fair hearing.

         The panel incorporated its analysis of C.J.'s asylum claim into its Mathews analysis in determining that C.J. was not prejudiced by any procedural deficiencies in his proceeding. The panel concluded that the record compelled a finding that C.J. had a well-founded fear of persecution based on threats he received from the Mara gang when he resisted their recruitment efforts, but rejected C.J.'s asylum claim because he had not established that the threats had a nexus to a protected ground, or that the government was unable or unwilling to control the Maras. The panel deemed waived any argument that he was denied due process on his withholding and CAT claims, but noted that his withholding claim would also fail.

         The panel also rejected C.J.'s argument that the INA's fair hearing provision, § 1229a(b)(4)(B), implicitly requires court-appointed counsel at government expense for all alien minors.

         The panel further held that the IJ was not required to inform C.J. that he might be eligible for Special Immigrant Juvenile status, concluding that the IJ's duty to inform aliens of "apparent eligibility" for relief was not triggered because, at the time of his removal proceeding, C.J. did not have a state court order that could have made him apparently eligible for SIJ status.

         Finally, the panel concluded that the agency's denial of CAT relief was supported by substantial evidence. The panel concluded that 1) the Board did not err in concluding that C.J.'s experience of having a member of the Maras put a gun to his head did not amount to "severe pain or suffering;" 2) there was no showing that the Honduran government acquiesced in the act; and 3) the record did not compel the conclusion that the government either turned a blind eye to the Maras' threats or that it would be unable or unwilling to control the Maras in the future.

         Concurring, Judge Owens wrote that the majority's opinion does not hold, or even discuss, whether the Due Process Clause mandates counsel for unaccompanied minors, and observed that that is a different question that could lead to a different answer.

          OPINION

          CALLAHAN, Circuit Judge

         "The right to counsel in immigration proceedings is rooted in the Due Process Clause [of the Fifth Amendment] and codified at 8 U.S.C. § 1362 and 8 U.S.C. § 1229a(b)(4)(A) [of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101, et seq.]."[1] Biwot v. Gonzales, 403 F.3d 1094, 1098 (9th Cir. 2005). Sections 1362 and 1229a(b)(4)(A) set forth the scope and contours of this right, providing that the alien "shall have the privilege of being represented (at no expense to the Government) by such counsel . . . as [the alien] shall choose." 8 U.S.C. § 1362; see also 8 U.S.C. § 1229a(b)(4)(A) (substantially the same); 8 C.F.R. § 1240.10(a)(1)-(2).

         We have held that a corollary of this privilege is an immigration judge's ("IJ") duty to inform an alien of his right to counsel, and to ensure that any decision to waive that right be knowing and voluntary. See, e.g., Montes-Lopez v. Holder, 694 F.3d 1085, 1088 (9th Cir. 2012); Baltazar-Alcazar v. INS, 386 F.3d 940, 945 (9th Cir. 2004); Jie Lin v. Ashcroft, 377 F.3d 1014, 1027 (9th Cir. 2004); United States v. Ahumada-Aguilar, 295 F.3d 943, 947 (9th Cir. 2002). But we have been careful to limit that right to Congress' express prescription.[2] Ever vigilant of the judiciary's restricted role in reviewing matters of immigration policy, we have heeded the Supreme Court's admonition that the "'power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.'" Fiallo v. Bell, 430 U.S. 787, 792 (1977) (emphasis added) (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210 (1953)). Consistent with this recognition, "courts have uniformly held in this circuit and elsewhere that . . . [aliens] are not entitled to have counsel appointed at government expense." United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir. 1975), overruled on other grounds by United States v. Mendoza-Lopez, 481 U.S. 828, 834 n.9 (1987) (collecting cases).

         Petitioner C.J.L.G. ("C.J.") asks us to upend Congress' statutory scheme by reading into the Due Process Clause and the INA itself a categorical right to court-appointed counsel at government expense for alien minors. C.J. also argues that, in his removal proceeding before the IJ, the IJ erred by failing to inform him of his possible eligibility for Special Immigrant Juvenile ("SIJ") status. Finally, C.J. insists that, on the merits, the IJ and the Board of Immigration Appeals ("Board") erred in denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").

         C.J. petitions for review of the Board's determination affirming the IJ's decision, and requests a remedy in the form of court-appointed counsel at government expense for himself and all similarly situated alien minors. He seeks court-appointed counsel both for a new removal proceeding before the IJ, and for purposes of pursuing his application for SIJ status, a related but separate legal journey that begins in California state court.

         Because we hold that neither the Due Process Clause nor the INA creates a categorical right to court-appointed counsel at government expense for alien minors, and because we conclude that the Board's determination on the merits is supported by substantial evidence, we deny C.J.'s petition.[3]

         I.

         A.

         C.J. is a sympathetic petitioner. A native and citizen of Honduras, he repeatedly spurned the Mara gang's entreaties to join its ranks despite death threats made against him and his family. After the Maras threatened C.J. at gunpoint, C.J. and his mother, Maria, fled Honduras.

          On June 21, 2014, C.J. and Maria arrived in the United States without inspection.[4] C.J. was 13 years old at the time. The Department of Homeland Security ("DHS") apprehended C.J. and Maria four days later, and served Maria with a notice to appear ("NTA") for C.J. Maria signed the NTA on behalf of her son. DHS provided Maria with a list of organizations that provide pro bono legal services.

         In September 2014, DHS placed C.J. in removal proceedings in Los Angeles based on his illegal entry into the United States. C.J. appeared for his November 25, 2014 hearing with Maria but without legal representation, as he would for each of his hearings before the IJ. The government was represented by counsel at all of the hearings. Because neither Maria nor C.J. speaks English, an interpreter was provided.

         B.

         At the November 2014 hearing, the IJ informed Maria that her son had "the right to have an attorney" at private expense. When Maria told the IJ that she did not have money for an attorney, the IJ told her that she had "two options": "Either we can go forward and you can speak and represent your son here today, " or "I can continue your case to another day" to give Maria time to secure counsel. Maria accepted the IJ's offer to continue the case.

          At the next hearing, held on January 25, 2015, Maria told the IJ that she had "looked for an attorney and they are charging me $6, 500 for each one, so I could not afford that amount." The IJ then ordered a three-month continuance, but told Maria that it would be the last one, and that, if she returned without an attorney, C.J.'s case would go forward.

         The third hearing was held on April 24, 2015. Because Maria had still not retained counsel, the IJ told her that she would proceed with the case and that Maria could "represent your son here today." Maria said that she understood. The IJ then told Maria and C.J. that they had the right to present documents and other evidence, and could review and object to the government's evidence. The IJ also told them that they could call witnesses and question the government's witnesses.

         The IJ then went over the NTA with Maria. Maria conceded the allegation that C.J. had unlawfully entered the United States because he was not admitted or paroled. The IJ therefore found C.J. removable. The IJ then proceeded to ask Maria several questions about C.J., in the course of which Maria stated that C.J.'s father had left them "a long time ago." The IJ then asked Maria if C.J. had a "fear of returning back to Honduras because of his race or religion or nationality or political opinion or membership in a social group." Maria answered: "Yes, because of the gangs." The IJ responded: "Ma'am, I will tell you right now that most likely that is not going to be a reason for [C.J.] to remain in the United States."

         The IJ then gave Maria an asylum form to complete. The IJ again told Maria that she could continue looking for an attorney to represent C.J. in his removal proceedings. When the IJ asked Maria if she had any questions, Maria said:

"[T]ell me about the asylum." The IJ responded: "Well, we don't need-you mean about why the fear or what happened?" Maria replied: "Well, yes, I am fearful to have my child return to Honduras." To which the IJ said: "Okay. Well, that's what you can put in all the applications and bring that back."

         Maria filed the asylum application at the next hearing, held on June 29, 2015. The application contains threadbare statements in support of C.J.'s asylum claim and much of what is written is borderline inscrutable and non-responsive.[5]Nevertheless, after reviewing the application, the IJ stated: "Everything looks to be okay at this point, so I'm going to go ahead and accept the application." The IJ then set the case for one more hearing, and reiterated to Maria that she could still try to hire an attorney. The IJ also provided Maria with a 2014 State Department country conditions report for Honduras, which was in English.

         The proceeding reconvened on February 29, 2016. C.J. was still unrepresented. The IJ asked Maria if she would be "assisting [C.J.] as you've been doing in the past, " and she said that she would. The IJ then asked C.J. questions under oath regarding his background and asylum application. The IJ asked C.J. if he had had any contact with his father, and C.J. confirmed that he had not for many years. After admitting into the record C.J.'s asylum application, his birth certificate, and the country report, the IJ asked C.J. about his fear of returning to Honduras. C.J. testified that the Mara gang had approached him three times in an effort to recruit him. Each time he refused, and the Maras threatened to kill him if he did not join. C.J. was not physically harmed, but during the third confrontation a gang member put a gun to C.J.'s head and gave him one day to decide whether to join. This escalation was apparently prompted by the gang's discovery that C.J. had told his mother about its recruitment efforts. The Maras also threatened to kill C.J.'s mother, aunt, and uncles. C.J. and his mother fled Honduras that same day. C.J. testified that he was afraid to return to Honduras "[b]ecause if I arrive there [the Mara gang] will kill me."

         The IJ then asked C.J.-who was 13 years old when he left Honduras-whether he had "tr[ied] to live anywhere else in Honduras, " to which C.J. responded: "No." The IJ also asked C.J. if he had asked the police for help, to which he replied: "No, they couldn't do anything." When pressed, C.J. stated that he was "very afraid."

         The DHS attorney did not ask C.J. any questions or call any witnesses. The IJ then asked Maria if there was "anything that you want to tell me regarding your son and why you're fearful if he returns back to Honduras or anything else you believe he didn't tell me." Maria replied: "No, that's all. I-I'm very afraid to go back. I don't-I'm afraid that something will happen to my child." The IJ then said: "And is that why you came to the United States, because [C.J.] was being threatened by the gangs?" Maria replied: "Yes."

         C.

         The IJ issued a written denial of C.J.'s application for asylum, withholding of removal, and CAT relief. The IJ found C.J. to be credible, and determined that his fear of returning to Honduras was subjectively reasonable. But she held that C.J. lacked an objectively reasonable basis for asylum relief. First, C.J. failed to show that he had suffered harm tantamount to persecution. Second, C.J. did not show "credible, direct and specific evidence . . . that would support an objectionably [sic] reasonable fear of [future] persecution should he return to Honduras." Third, C.J. had not established membership on the basis of a protected ground. And fourth, C.J. failed to show that the government was unable or unwilling to control the Maras. Because C.J. could not establish eligibility for asylum, the IJ concluded that his withholding of removal claim-which sets a higher standard for showing persecution than asylum-necessarily failed. The IJ also rejected C.J.'s CAT claim on the ground that "[C.J.] has failed to meet his burden in showing that there is anyone in Honduras that would seek to torture him, but [sic] certainly no one with the acquiescence of the Honduran government."

         C.J. filed an appeal with the Board and retained counsel. He argued that the IJ erred in denying relief. He also argued that the IJ conducted a procedurally defective hearing that violated his due process rights. Specifically, he asserted that the IJ (i) failed to advise him of available forms of relief, in particular SIJ status; (ii) failed to develop the record; and (iii) erred in not appointing counsel for him.

         On November 1, 2016, the Board dismissed the appeal in a decision that affirmed the IJ's analysis and conclusion. The Board held that the Maras' threats did not rise to the level of persecution, that C.J. lacked a well-founded fear of future persecution, and that C.J. was not a member of a cognizable social group that could confer protected status for purposes of asylum and withholding relief. The Board denied C.J.'s CAT claim as unsupported.

         The Board also rejected C.J.'s due process arguments. It held that the IJ had conducted a "fair" hearing and "objectively considered [C.J.'s] testimony and the documentary evidence in the record." It further found that the IJ did not err in failing to advise C.J. of possible SIJ status because C.J. had not-by the time of the appeal-"established . . . that he is eligible for other forms of relief." Finally, the Board rejected C.J.'s appointed counsel claim, holding that the INA and relevant regulations "do not require that counsel ever be appointed at government expense in removal proceedings." C.J. timely filed a petition for review in this court.

         II.

         We have jurisdiction to review the Board's final order of removal under 8 U.S.C. § 1252(a)(1). We review de novo C.J.'s legal claims that he was denied a right to court-appointed counsel at government expense, that the IJ failed to conduct a full and fair hearing, and that the IJ erred in not informing C.J. of possible SIJ status. Jie Lin, 377 F.3d at 1023; see also Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1096 (9th Cir. 2004) (applying de novo review to both "purely legal questions" and "due process challenges"). We review factual findings for substantial evidence. Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016). Factual findings "should be upheld unless the evidence compels a contrary result." Id. (internal quotation marks omitted). Where, as here, the "Board issues its own decision but relies in part on the [IJ's] reasoning, we review both decisions." Id. (internal quotation marks and adjustment omitted).

          III.

         A.

         "[A]lien minors in [removal] proceedings are 'entitled to the [F]ifth [A]mendment guaranty of due process.'" Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1160 (9th Cir. 2004) (quoting Larita-Martinez v. INS, 220 F.3d 1092, 1095 (9th Cir. 2000)) (internal quotation marks omitted). That is because "'the private liberty interests involved in [removal] proceedings are indisputably substantial.'" Id. (internal adjustment omitted) (quoting Dillingham v. INS, 267 F.3d 996, 1010 (9th Cir. 2001)). The due process protections afforded aliens present in the United States-including alien minors-are the same regardless of whether the alien is here lawfully or unlawfully.[6] Mathews v. Diaz, 426 U.S. 67, 77 (1976).

          Alien minors' due process rights include (i) the right to counsel "at no expense to the Government, " Montes-Lopez, 694 F.3d at 1088-89; 8 U.S.C. § 1362; 8 C.F.R. § 1240.10(a)(1); (ii) the right to competent representation by such counsel, Baltazar-Alcazar, 386 F.3d at 944; Jie Lin, 377 F.3d at 1027; (iii) the right to a hearing before an IJ on the merits of an application for relief from deportation, 8 U.S.C. § 1226(a); (iv) the right to a translator, 8 C.F.R. § 1240.44; (v) the right that an adult who takes custody of an alien minor be served notice of a removal hearing, Flores-Chavez, 362 F.3d at 1157; see also 8 C.F.R. §§ 236.2(a), 1236.3; and, more generally, (vi) the right to a "full and fair hearing, " which includes the "opportunity to present evidence and testimony on one's behalf, " cross-examine witnesses, and examine and object to adverse evidence, Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (en banc); Jacinto v. INS, 208 F.3d 725, 727 (9th Cir. 2000); see also 8 U.S.C. § 1229a(b); 8 C.F.R. § 1240.10(a). All of these rights are reflected in the INA and the INA's implementing regulations.

         Violation of an alien minor's due process rights does not automatically require reversal. In most cases, the petitioner must also show prejudice. See Jacinto, 208 F.3d at 728. "Prejudice occurs when the rights of the alien have been transgressed in such a way as is likely to impact the results of the proceedings." Id. We have recognized one exception to this general rule. A petitioner need not show prejudice where he was denied his statutory right to privately-retained counsel. Montes-Lopez, 694 F.3d at 1092. In Montes-Lopez, we reasoned that the wholesale denial of counsel differs from other due process violations due to the combination of two factors. First, such a claim is anchored in an express statutory guarantee to a right to counsel. Id. Second, denial of counsel differs from other statutory violations because it "fundamentally affects the whole of a proceeding, " meaning it is "impractical for courts to determine whether prejudice accompanied a particular denial of counsel." Id.

         C.J. seeks a determination that he is entitled to court-appointed counsel at government expense-a privilege that Congress has not conferred. Thus, consistent with the prevailing rule that a litigant must show prejudice to vindicate a due process violation, C.J. must show both that his constitutional rights were violated for lack of court-appointed counsel and that this prejudiced the outcome of his removal proceeding.

         With the table set, we turn to assessing whether C.J.'s lack of court-appointed counsel violated his right to due process ...


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