November 01, 2016

Federal District Court Lacked Jurisdiction in Right to Counsel Claim

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

J.E. F.M .v. Lynch, 2016 WL 5030344 (9th Cir.).

Indigent minor immigrants must first use the administrative process described in the Immigration and Nationality Act (INA) before they are able to access federal courts. Therefore, a district court does not have jurisdiction to review a right to counsel argument without the claim first going through immigration court. 

This case was brought to the district court by several children, ages three to 17, who were at various stages of the removal process. None of the children could afford a lawyer and had tried, but failed, to get a pro bono attorney for removal proceedings, which were administrative in nature.

The children argued they “lack the intellectual and emotional capacity of adults” but must appear in these removal proceedings without lawyers. As a result, they – and thousands of other children – do not receive a full and fair opportunity for relief. The children recognized the statute requires them to first use all administrative remedies, then file a petition for review (PFR) in a federal court of appeals. However, they argued they cannot first exhaust their administrative remedies without counsel’s assistance, and if they have the assistance of counsel, they then cannot seek a remedy based on the right to counsel, which therefore denies them all forms of meaningful judicial review. 

Without addressing the merits, the Ninth Circuit held the district court lacked jurisdiction to decide on minor immigrant children’s right to counsel. The court first analyzed the INA’s provision of “exclusive means of review,” which identifies a PFR as the exclusive means for judicial review of an order of removal. 8 U.S.C. § 1252(a)(5). A PFR can only be filed after administrative remedies have been completed. The court combined that language with 8 U.S.C. § 1252(b)(9), which requires “judicial review of all questions of law and fact, including interpretation and application of constitutional statutory provisions, arising from an action taken or proceedings brought to remove an alien from the United States…shall be available only in judicial review of a final order….”  

The court believes the language of both these sections requires any issue arising from any removal-related activity be reviewed only through the PFR process. The PFR process requires using administrative remedies before accessing federal courts of appeal, therefore bypassing district courts. The court said Congress intended that this process encompass all claims arising from removal proceedings. The Ninth Circuit decided the children’s claim in this case does arise from a removal proceeding and therefore must use the PFR process. The children’s claim arises from a removal proceeding because it is not independent or separate, but rather the claim is tied directly to the removal proceedings. 

The court then analyzed the children’s argument that they had been denied all forms of meaningful judicial review and found they were not. It found unrepresented minors receive special protections in removal hearings, including a judge’s ability to accept a child’s admission of removability, requirement of a knowing and voluntary waiver of counsel, “The Friend of the Court Model” providing minors an adult to assist them, and required factors such as the minor’s age, education, intelligence, and ability to comprehend. The Ninth Circuit considered these special protections together with Congress’ unambiguous statute to conclude the children were not denied full judicial review. 

A concurring opinion emphasized that unrepresented, indigent, minor immigrants are a real concern within the system, outlining statistics and calls for reform in this area.