and Submitted August 8, 2017 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A206-838-888
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.
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.
E. Schreiber and Nareeneh Sohbatian, Winston & Strawn
LLP, Los Angeles, California, for Amicus Curiae Immigrant
Legal Resource Center.
Bookey, Karen Musalo, and Eunice Lee, San Francisco,
California, as and for Amicus Curiae Center for Gender &
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.
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
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.
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.
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.
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.
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.
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.
CALLAHAN, Circuit Judge
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.]." 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).
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. 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).
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
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.
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
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.
June 21, 2014, C.J. and Maria arrived in the United States
without inspection. 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.
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.
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.
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
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
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."
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."
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.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.
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."
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
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:
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."
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.
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.
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.
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).
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. Mathews v. Diaz, 426 U.S. 67,
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
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
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.
the table set, we turn to assessing whether C.J.'s lack
of court-appointed counsel violated his right to due process