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

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C.J.L.G., A JUVENILE MALE, No. 16-73801

Petitioner,

Agency No.

v. A206-838-888

JEFFERSON B. SESSIONS III,

Attorney General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 8, 2017

Pasadena, California

Filed January 29, 2018

Before: Consuelo M. Callahan and John B. Owens,

Circuit Judges, and David A. Faber,* District Judge.

Opinion by Judge Callahan;

Concurrence by Judge Owens

*

The Honorable David A. Faber, United States District Judge for the

Southern District of West Virginia, sitting by designation.

2 C.J.L.G. V. SESSIONS

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

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

C.J.L.G. V. SESSIONS 3

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.

4 C.J.L.G. V. SESSIONS

COUNSEL

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.

C.J.L.G. V. SESSIONS 5

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.

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-

1

Because removal proceedings are civil rather than criminal in nature,

aliens’ right to counsel derives from the Constitution’s Fifth Amendment

rather than the Sixth Amendment. Magallanes-Damian v. INS, 783 F.2d

931, 933 (9th Cir. 1986).

6 C.J.L.G. V. SESSIONS

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,

2

Cf. Flores v. Sessions, 862 F.3d 863, 875–76 (9th Cir. 2017) (relying

on the terms of two immigration statutes to determine the scope of an

unaccompanied alien minor’s right to a bond hearing before an

immigration judge).

C.J.L.G. V. SESSIONS 7

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.

3

C.J.’s request for judicial notice, Dkt. No. 59, is GRANTED. See

Fed. R. Evid. 201.

8 C.J.L.G. V. SESSIONS

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.

4

Maria had previously entered the United States without inspection

and was already subject to a removal order when she re-entered the

country with C.J. Maria has been placed in a separate removal

proceeding.

C.J.L.G. V. SESSIONS 9

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:

10 C.J.L.G. V. SESSIONS

“[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

5

For example, in response to the question whether C.J. has ever

caused harm or suffering to another based on a protected ground, the

application states: “THE GAN’S TOLD ME I HAVE TO KILL A

PEOPLE TO BE AND THE GAN’S.”

C.J.L.G. V. SESSIONS 11

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

12 C.J.L.G. V. SESSIONS

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

C.J.L.G. V. SESSIONS 13

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).

14 C.J.L.G. V. SESSIONS

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).

6

To be sure, aliens—regardless of status—enjoy a lesser quantum of

constitutional protection than do citizens. Diaz, 426 U.S. at 78. And not

all aliens receive the same degree of protection. Under the “entry fiction,”

an alien who—unlike C.J.—has not effected entry into the United States,

but rather seeks admission at a port of entry, lacks constitutional rights.

See Servin-Espinoza v. Ashcroft, 309 F.3d 1193, 1198 (9th Cir. 2002)

(“Our immigration law has generally treated aliens who are already on our

soil (and who are therefore deportable) more favorably than aliens who are

merely seeking admittance (and who are therefore excludable).”); Kim Ho

Ma v. Ashcroft, 257 F.3d 1095, 1107 (9th Cir. 2001) (under the “entry

fiction,” aliens “standing on the threshold of entry” are “not entitled to the

constitutional protections provided to those within the territorial

jurisdiction of the United States”); see also Zadvydas v. Davis, 533 U.S.

678, 693 (2001) (“It is well established that certain constitutional

protections available to persons inside the United States are unavailable

to aliens outside of our geographic borders.”).

C.J.L.G. V. SESSIONS 15

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

16 C.J.L.G. V. SESSIONS

“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 and, if so, whether he suffered prejudice.

B.

C.J. argues that Supreme Court and Ninth Circuit

precedent compel the determination that alien minors are

categorically entitled to court-appointed counsel at

government expense. He relies largely on our decision in Jie

Lin, where we held that the IJ “had the obligation to suspend

the [removal] hearing and give [the minor] a new opportunity

to retain competent counsel or sua sponte take steps to

procure competent counsel to represent [him].” 377 F.3d at

1033.

C.J.’s reliance on Jie Lin is misplaced. Far from deciding

that alien minors are categorically entitled to court-appointed

counsel, Jie Lin held only that an IJ should assist minors in

retaining the private counsel to which they are statutorily

entitled. See id. at 1027, 1033–34.

C.J.L.G. V. SESSIONS 17

Jie Lin involved retained counsel’s inadequate

representation of a minor. Id. at 1020. Counsel there failed

to investigate petitioner Lin’s case, largely did not prepare for

his removal hearing, and may not have even spoken with Lin

about his case. Id. at 1024–25. Unsurprisingly, counsel’s

advocacy was anything but zealous. For example, she

neglected to present (or discover) information critical to Lin’s

asylum claim—namely, that he fled China “on account of”

persecution or fear of persecution. Id. at 1026. In fact,

counsel’s performance was so wanting that we found that Lin

likely would have been better off unrepresented. Id. at 1027.

In assessing the sufficiency of Lin’s hearing, we began

with the text of the INA, which provides a “statutory right [in

removal proceedings] . . . to be ‘represented (at no expense to

the Government) . . . .’” Id. (quoting 8 U.S.C. § 1362)

(emphasis added). We explained that “due process mandates

that [an alien] is entitled to counsel of his own choice at his

own expense under terms of the [INA].” Id. (internal

quotation marks omitted; emphasis added). Once counsel is

retained, a petitioner has a legal right “to have that counsel

perform with sufficient competence.” Id.

We then proceeded to criticize the IJ for not taking steps

to secure competent counsel for Lin:

Given that minors are “entitled to trained legal

assistance so their rights may be fully

protected,” Johns v. Cnty. of San Diego,

114 F.3d 874, 877 (9th Cir. 1997) (citation

omitted), upon recognizing that New York

counsel was in no position to provide

effective assistance, as he must have, the IJ

had the obligation to suspend the hearing and

18 C.J.L.G. V. SESSIONS

give Lin a new opportunity to retain

competent counsel or sua sponte take steps to

procure competent counsel to represent Lin.

Id. at 1033. We concluded that “[a]bsent a minor’s knowing,

intelligent, and voluntary waiver of the right to counsel, the

IJ may have to take an affirmative role in securing

representation by competent counsel.” Id. at 1034.

Jie Lin stands for the unremarkable proposition that

minors are entitled to heightened protections in removal

proceedings. Both the Supreme Court and our own circuit

have recognized the psychological and mental limitations

inherent in being a minor. See In re Gault, 387 U.S. 1,

36–37, 41 (1967); Jie Lin, 377 F.3d at 1025; Johns, 114 F.3d

at 877. Children are, as a general rule, less capable of

advocating for themselves than are adults. This fact is as true

in the immigration context as any other. Thus, in Jie Lin we

appropriately considered the juvenile status of the petitioner

in admonishing the IJ for failing to do more to secure him

competent representation. See 377 F.3d at 1033.

Jie Lin does not extend to the right C.J. demands here.

First, Jie Lin is rooted firmly in the statutory right to

privately-retained counsel. See id. at 1027. C.J. ignores this

fact, insisting that we should instead focus on Jie Lin’s

language touting the value of attorney representation for

minors. To reiterate: Jie Lin did not hold that minors are

categorically entitled to court-appointed counsel at

government expense. Indeed, in offering the IJ a basket of

options to consider on remand, conspicuously absent from Jie

Lin is any suggestion that the government should foot the bill

for counsel. We observed that the IJ could have postponed

the hearing to allow “[Lin] and his relatives another

C.J.L.G. V. SESSIONS 19

opportunity to obtain competent counsel,” or that the IJ

himself could have “sua sponte take[n] steps to procure

competent counsel.” Id. at 1033. Those options fall squarely

within the four corners of the statute.

Second, Jie Lin involved retained counsel’s woefully

deficient performance. Counsel’s advocacy was so poor that

it “flirted with denial of counsel altogether.” Id. By allowing

the proceeding to go forward, the IJ effectively denied Lin his

statutory right to legal representation, which amounted to an

involuntary waiver of counsel—a clear due process violation.

Id. Lin was, in effect, a victim of his own labor: his relatives

had made “good faith efforts” to retain counsel, yet the

attorney he ultimately secured actually did him a disservice.

See id. at 1032.

C.J.’s case resembles Lin’s in that both matters involve

alien minors in removal proceedings who effectively went

legally unrepresented. But the similarities end there. Lin

retained counsel, whereas C.J. did not. And Lin was entitled

to a remedy in line with his statutory right to privately-

retained counsel, whereas C.J. seeks something beyond

Congress’ prescription.

To the extent C.J. suggests that the IJ failed to provide

even the level of assistance required by Jie Lin, that argument

is meritless. DHS provided C.J.’s mother with a list of pro

bono attorneys, and the IJ granted several continuances—over

the course of nearly a year and a half—to allow C.J.’s mother

to secure legal counsel. The IJ thus “t[ook] an affirmative

role in securing representation by competent counsel” for

C.J., which is all that Jie Lin requires. Id. at 1034.

20 C.J.L.G. V. SESSIONS

C.J.’s other cited authorities are even more attenuated.

C.J. relies on the Supreme Court’s decision in Gault, which

held—outside the immigration context—that minors in

delinquency proceedings are entitled to court-appointed

counsel at government expense where a consequence of the

proceeding is that the minor “may be committed to a state

institution.” 387 U.S. at 13. Due to the “awesome prospect

of incarceration” that could result from an adverse ruling,

“the child and his parents must be notified of the child’s right

to be represented by counsel retained by them, or if they are

unable to afford counsel, that counsel will be appointed to

represent the child.” Id. at 36–37, 41.

C.J. argues that Gault reflects a “general rule . . . that

children cannot receive fair hearings absent counsel.” He

notes that state legislatures and courts have recognized an

explicit right to counsel for minors in delinquency

proceedings, which follows from Supreme Court decisions

“adopting special protective rules for children because of

their limited capacity.”

C.J.’s attempt to bootstrap Gault into the immigration

context is unpersuasive. None of his cited authorities goes so

far as to create a right to government-funded, court-appointed

counsel for aliens illegally present in the United States.7

7

The one extra-circuit case holding that aliens may, in specific

circumstances, be entitled to court-appointed counsel was decided in the

context of lawful permanent residents (“LPRs”) who are—unlike

C.J.—lawfully present. See Aguilera-Enriquez v. INS, 516 F.2d 565, 568

n.3 (6th Cir. 1975) & id. at 574 n.6 (DeMascio, J., dissenting). And, at

any rate, the Sixth Circuit’s decision is collecting dust: In the more than

forty years since Aguilera-Enriquez was decided, we are aware of no case

from any circuit endorsing the Sixth Circuit’s broad interpretation of the

Due Process Clause for aliens in immigration proceedings.

C.J.L.G. V. SESSIONS 21

Gault, by its terms, is limited “only [to] the problems”

relating to “proceedings by which a determination is made as

to whether a juvenile is a ‘delinquent’ as a result of alleged

misconduct on his part, with the consequence that he may be

committed to a state institution.” 387 U.S. at 13. The Court

was preoccupied with the fact that non-represented juveniles

face the possibility of being incarcerated in a state

institution—which is akin to punishment for a criminal

conviction. Id. at 36–37, 41, 42. This fact was essential to

the Court’s holding. See id. at 42 (“[I]n view of the

seriousness of the charge and the potential commitment . . . .”

(emphasis added)); see also Turner v. Rogers, 564 U.S. 431,

442–43 (2011) (the “pre-eminent generalization that emerges

from this Court’s precedents on an indigent’s right to

appointed counsel is that such a right has been recognized to

exist only where the litigant may lose his physical liberty if he

loses the litigation” (emphasis added) (quoting Lassiter v.

Dep’t of Social Servs., 452 U.S. 18, 25 (1981)). Nothing in

Gault or its progeny compels the outcome that minors in civil

immigration proceedings who do not face the threat of

incarceration are categorically entitled to court-appointed

counsel. Indeed, “the [Supreme] Court has [never]

determined that due process principles of fundamental

fairness categorically require counsel in any context outside

criminal proceedings.” Turner, 564 U.S. at 454 (Thomas, J.,

dissenting). We therefore hold that it is not established law

that alien minors are categorically entitled to government-

funded, court-appointed counsel.

C.

C.J. may nonetheless be able to show that, even absent

controlling case law, the Due Process Clause implies a right

to court-appointed counsel at government expense. To

22 C.J.L.G. V. SESSIONS

determine whether a procedural due process violation

occurred, C.J. must clear two hurdles. First, he must satisfy

the three-part test set forth in Mathews v. Eldridge, 424 U.S.

319 (1976). See Landon v. Plasencia, 459 U.S. 21, 34 (1982)

(applying the Mathews framework to removal proceedings).

Under Mathews, we “determine what process is due by

balancing (1) the private interest at stake, (2) ‘the risk of an

erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional

safeguards,’ and (3) the government’s interest, including the

burdens of any additional process.” Oshodi, 729 F.3d at 894

(internal adjustment omitted; quoting Mathews, 424 U.S. at

335).

If C.J. makes it past the Mathews three-part test, then we

proceed to consider whether the rebuttable presumption

against court-appointed counsel applies. The Supreme Court

has explained that the presumption applies unless “the

indigent, if he is unsuccessful, may lose his personal

freedom.” Lassiter, 452 U.S. at 27 (emphasis added). If the

presumption does apply, then we weigh the outcome of the

Mathews test against that presumption. See id. Thus, a

litigant could clear Mathews but still fail to demonstrate a due

process right to government-funded, court-appointed counsel.

We may assume for purposes of this opinion that C.J.

qualifies as indigent. Whether he faces a loss of his “personal

freedom” is a closer question. Arguably, sending C.J. back

to a hostile environment where he has faced death threats in

the past implicates his freedom. On the other hand, Lassiter

explains that “actual imprisonment [is] the line defining the

constitutional right to appointment of counsel.” Id. at 26

(internal quotation marks omitted; emphasis added).

However, we need not and do not reach the question whether

C.J.L.G. V. SESSIONS 23

the presumption against court-appointed counsel applies here

because we conclude that C.J.’s claim does not even survive

the Mathews inquiry.

Finally, we proceed cautiously, remaining at all times

mindful of the peculiar and restricted role of the judiciary in

reviewing matters of immigration policy. Because Congress

exercises plenary control over our Nation’s immigration

system, its determinations are owed an exceedingly high level

of deference. See Mezei, 345 U.S. at 210. Indeed, deference

to Congress is particularly strong in the area of immigration

because “over no conceivable subject is the legislative power

of Congress more complete than it is over the admission of

aliens.” Fiallo, 430 U.S. at 792 (internal quotation marks

omitted). It therefore “must weigh heavily in the balance that

control over matters of immigration is a sovereign

prerogative, largely within the control of the executive and

the legislature.” Plasencia, 459 U.S. at 34. As a result, we

are chary of discerning a constitutional infirmity in Congress’

considered judgment—as reflected in the INA—unless the

matter before us is susceptible of no other determination.

1.

Turning to the first Mathews factor, we must assess the

private interest at stake. The government argues that C.J.’s

interest is low for several reasons. First, he was apprehended

within four days of crossing the border, and so, the

government contends, he has only a minimal interest in

remaining in the country. Second, because C.J. has no legal

status, he does not stand to lose an immigration benefit, and

so, the government reasons, he has less of an interest in

staying than a legally admitted alien. And third, the

government argues that the basis for C.J.’s purported

24 C.J.L.G. V. SESSIONS

interest—his fear of returning to Honduras—is not a private

interest in itself. What he really seeks is asylum, which is a

form of discretionary relief separate and apart from any

personal liberty interest.

The government’s position has substantial common sense

appeal. An alien’s private interest in remaining on U.S. soil

is logically tied to the duration of his residency here. But our

lodestar is controlling precedent, and the Supreme Court and

prior panels of this court have focused the relevant inquiry in

formal removal proceedings on the consequence of an

adverse ruling: deportation. We have made clear that “[i]n

the case of an asylum and withholding of removal applicant,

the private interest could hardly be greater. If the court errs,

the consequences for the applicant could be severe

persecution, torture, or even death.”8 Oshodi, 729 F.3d at

894. The Supreme Court has concurred in this assessment,

explaining that “[d]eportation is always a harsh measure; it is

all the more replete with danger when the alien makes a claim

that he or she will be subject to death or persecution if forced

to return to his or her home country.” INS v. Cardoza-

Fonseca, 480 U.S. 421, 449 (1987). An alien facing

deportation “stands to lose the right ‘to stay and live and

work in this land of freedom.’” Plasencia, 459 U.S. at 34

(quoting Bridges v. Wixon, 326 U.S. 135, 154 (1945)).

8

An alien’s legal status deserves limited weight in the private interest

calculus for the additional reason that Congress has provided a pathway

to legal status for those illegally present via a defensive claim for asylum,

withholding of removal, and CAT relief. See, e.g., 8 U.S.C. § 1158(a)(1)

(“Any alien who is physically present in the United States or who arrives

in the United States . . . irrespective of such alien’s status, may apply for

asylum . . . .” (emphasis added)).

C.J.L.G. V. SESSIONS 25

If C.J. is deported, he will be returned to a country where

his liberty—indeed, he alleges his very life—may be at risk.

The fact that the Maras attempted to recruit him under

duress—at gunpoint no less—before he fled provides reason

to believe that C.J. would encounter similar threats and

perhaps worse upon his return. Thus, under our precedent,

the first Mathews factor favors C.J.

2.

The second Mathews factor requires measuring the

adequacy of existing procedures and weighing the risk of

erroneous deprivation of C.J.’s rights if additional safeguards

are not provided. Oshodi, 729 F.3d at 894. C.J.’s arguments

here fall into two camps: first, that children are ill-equipped

to navigate the United States’ byzantine immigration system;

and, second, that the IJ failed to provide him with a full and

fair hearing.

C.J. insists that he cannot be assured a full and fair

hearing without legal representation. He notes that asylum

law is “extremely complex,” and has proved vexing even to

the courts of appeals, spawning “inter-circuit disagreement”

over, for example, how to make social group determinations.

A minor could not reasonably know that he must demonstrate

that the Maras targeted him based on some protected social

group status. C.J. also cites government data from 2014

showing that only 10% of unrepresented children were

permitted to remain in the United States, whereas 47% of

represented children were awarded relief in their immigration

proceedings. Finally, C.J. argues that the asymmetry of

representation between the government—which is always

represented by counsel—and an unrepresented minor renders

the proceedings inherently unfair.

26 C.J.L.G. V. SESSIONS

We accept certain of C.J.’s assertions for purposes of our

analysis. We assume that an attorney provides a level of

advocacy that cannot be supplied by any of the other classes

of persons that an alien is entitled to have accompany him in

a removal proceeding. See 8 C.F.R. § 1240.10(c). We also

assume the accuracy of his figures, which show that alien

minors represented by counsel are awarded relief at higher

rates than those who go without. But our lodestar is the due

process right to a full and fair hearing—not some conceived-

of entitlement to the skills of an attorney. See Plasencia,

459 U.S. at 34–35. Indeed, “[t]he role of the judiciary [in

immigration proceedings] is limited to determining whether

the procedures meet the essential standard of fairness under

the Due Process Clause and does not extend to imposing

procedures that merely displace congressional choices of

policy.” Id. (emphasis added). Whether alien minors can be

afforded a full and fair hearing absent court-appointed

counsel, and whether C.J. was afforded a full and fair hearing

in his particular case, therefore guides our inquiry.

Section 1229a(b)(4)(B) of the INA sets forth the statutory

full-and-fair-hearing requirement for immigration

proceedings. 8 U.S.C. § 1229a(b)(4)(B). It provides that “the

alien shall have a reasonable opportunity to examine the

evidence against the alien, to present evidence on the alien’s

own behalf, and to cross-examine witnesses presented by the

Government . . . .” Id. An IJ also has an independent

obligation to “fully and fairly develop the record.” Jacinto,

208 F.3d at 733 (internal quotation marks omitted). This

includes an “affirmative duty, imposed by statute, to develop

a clear record for appeal.” Oshodi, 729 F.3d at 900; see also

8 U.S.C. § 1229a(b)(1). This duty distinguishes immigration

proceedings from other adversarial forums where judges act

only as neutral arbiters. Instead, the IJ shares the

C.J.L.G. V. SESSIONS 27

responsibility with the applicant to “‘ascertain and evaluate

all relevant facts.’” Jacinto, 208 F.3d at 732–33 (quoting the

United Nations Handbook on Procedures & Criteria for

Determining Refugee Status: Office of the United Nations

High Commissioner for Refugees (1979)).

In the relief-from-removal context, the IJ’s duty requires

developing a factual record sufficient to determine if an

applicant satisfies the legal criteria for asylum. The IJ’s

obligation is heightened where, as here, the alien appears pro

se.

Because aliens appearing pro se often lack the

legal knowledge to navigate their way

successfully through the morass of

immigration law, and because their failure to

do so successfully might result in their

expulsion from this country, it is critical that

the IJ scrupulously and conscientiously probe

into, inquire of, and explore for all the

relevant facts.

Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (internal

quotation marks omitted). The IJ must also take special

consideration of a minor who proceeds pro se. See

Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045–46 (9th

Cir. 2007).

In C.J.’s case, the onus was almost entirely on the IJ to

develop the record. C.J.’s mother was ill-equipped to

understand the proceedings or to comprehend C.J.’s burden

in establishing eligibility for relief, and the government asked

28 C.J.L.G. V. SESSIONS

no questions. Thus, it was up to the IJ to discover any facts

that might support C.J.’s asylum claim.9

To determine whether the IJ provided a full and fair

hearing, our analysis proceeds in several steps. First, we

disaggregate the asylum standard into its constituent parts and

assess whether the IJ developed the record as to each.

Second, if the IJ adequately developed the record as to a

9

C.J. only argues that the risk of erroneous deprivation is high with

regard to his claim for asylum, noting that his “asylum claim is []

extremely complex.” He does not contend that the risk of erroneous

deprivation is high absent court-appointed counsel—or any other

additional process—with regard to his withholding and CAT claims. For

example, C.J. focuses only on the criteria necessary for a successful

asylum claim—e.g., discussing whether he was persecuted “on account

of” a protected basis in the context of asylum, and assessing whether his

asylum form provided a sufficient record to measure his eligibility for

relief. We therefore consider C.J.’s due process argument only as

concerns his asylum claim, and deem waived any argument that he was

denied due process on his withholding and CAT claims. See Brown v.

Rawson-Neal Psychiatric Hosp., 840 F.3d 1146, 1149 (9th Cir. 2016).

But even were we to expand our due process analysis to his withholding

claim, that would not change the outcome. While withholding of removal

and asylum share the same substantive requirements, withholding

“requires a higher probability of persecution.” Lanza v. Ashcroft,

389 F.3d 917, 933 (9th Cir. 2004) (internal quotation marks omitted).

Because we conclude that the IJ adequately developed the record with

regard to C.J.’s asylum claim, and because substantial evidence supports

the IJ’s determination that C.J. is not entitled to asylum relief, his

withholding claim necessarily fails. See id.

That still leaves C.J.’s CAT claim. Because the standard for CAT

relief differs from asylum and withholding, we separately address C.J.’s

argument that the record compels a finding that C.J. is entitled to CAT

relief in Part VI, infra.

C.J.L.G. V. SESSIONS 29

particular asylum factor, we consider whether the IJ’s

determination as to that factor is supported by substantial

evidence. We incorporate this inquiry into the Mathews

analysis because it is critical to determining whether C.J. was

prejudiced by any procedural deficiencies. Finally, because

the second Mathews factor requires looking both “to the

process given [C.J.] in this case, as well as the process

generally given” to alien minors in removal proceedings,

Buckingham v. Sec’y of U.S. Dep’t of Agric., 603 F.3d 1073,

1082 (9th Cir. 2010), we consider whether additional process

is required either in C.J.’s case or for alien minors as a class.

i.

An applicant qualifies for asylum—i.e., refugee status—if

he

is unable or unwilling to return to his home

country because of a well-founded fear of

future persecution on account of race,

religion, nationality, membership in a

particular social group, or political opinion.

An applicant may establish a well-founded

fear of future persecution in two ways: by

proving past persecution, or by demonstrating

that he has a subjectively genuine and

objectively reasonable fear of future

persecution.

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir.

2017) (en banc) (internal quotation marks and citations

omitted).

30 C.J.L.G. V. SESSIONS

Well-Founded Fear of Future Persecution. An

applicant for asylum must show a well-founded fear of future

persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir.

2000). “A finding of past persecution raises a regulatory

presumption of future persecution and flips the burden of

proof to the [government] to show that conditions have

changed to such a degree that the inference is invalid.” Id.

Substantial evidence supports the Board’s conclusion that

C.J. was not persecuted. We have long recognized that

“[t]hreats, standing alone . . . [do not] constitute past

persecution” unless “the threats are so menacing as to cause

significant actual suffering or harm.” Id. (internal quotation

marks omitted). Here, C.J. was never physically harmed, and

the Maras’ recruitment efforts—while appalling—did not

plainly cross the line from harassment to persecution. See

Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003)

(deeming unfulfilled threats to be harassment rather than

persecution); cf. Mashiri v. Ashcroft, 383 F.3d 1112,

1115–17, 1119–20 (9th Cir. 2004) (finding past persecution

where petitioners not only received a death threat, but where,

inter alia, one of the petitioners was injured trying to escape

a xenophobic mob, another was “violently attacked” multiple

times, and an ethnic store was firebombed).10

10

To be sure, this is a close question. C.J. was promised that he and

his family would be killed if he did not join the gang. The Board would

have acted within its discretion had it found past persecution on these

facts. See Ruano v. Ashcroft, 301 F.3d 1155, 1160–61 (9th Cir. 2002)

(finding past persecution where applicant was threatened with death and

confronted by men with guns). But because we have held in other cases

that multiple years of physical abuse does not compel a finding of past

persecution, we decline to hold otherwise here where C.J. suffered no

physical harm. See, e.g., Halim v. Holder, 590 F.3d 971, 975–76 (9th Cir.

2009); Kamla Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995).

C.J.L.G. V. SESSIONS 31

“In the absence of past persecution, [C.J.] may still be

eligible for asylum based on a well-founded fear of future

persecution. A well-founded fear ‘must be both subjectively

genuine and objectively reasonable.’” Halim v. Holder,

590 F.3d 971, 976 (9th Cir. 2009) (quoting Ahmed v. Keisler,

504 F.3d 1183, 1191 (9th Cir. 2007)). In other words, C.J.

must show that his fear is both subjectively reasonable and

“objectively well-founded.” Lim, 224 F.3d at 935 (internal

quotation marks omitted). The IJ determined that C.J. was

credible and that his fear of persecution was subjectively

reasonable. We thus focus on whether he has satisfied the

test’s objective prong.

“‘The objective requirement can be met either through the

production of specific documentary evidence or by credible

and persuasive testimony.’” Halim, 590 F.3d at 976 (quoting

Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000)). “To effect

a well-founded fear, a threat need not be statistically more

than fifty-percent likely; the Supreme Court has suggested

that even a one-tenth possibility of persecution might effect

a well-founded fear.” Lim, 224 F.3d at 934.

While we have found that mere threats do not compel a

finding of past persecution, threats alone may give rise to a

well-founded fear of future persecution because they portend

a likelihood of future physical harm. See id. at 936. “Our

court generally treats unfulfilled threats, without more, as

within that category of conduct indicative of a danger of

future persecution, rather than as past persecution itself.” Id.

(collecting cases). Curiously, the government contests only

C.J.’s claim of past persecution, and ignores his argument that

his past experiences support a reasonable fear of future

persecution.

32 C.J.L.G. V. SESSIONS

We conclude that C.J. has shown at least a “one-tenth

possibility of persecution.” Lim is instructive. That case

involved a Filipino intelligence officer, Lim, who received

death threats over the course of several years. Id. at 932–33.

He was never physically confronted, let alone attacked. Id.

at 933. The Board rejected Lim’s asylum application

because, inter alia, he suffered no physical harm during the

six-year period of death threats, and his family in the

Philippines went untouched. Id.

We granted Lim’s petition. We explained that

“[a]lthough [Lim] was never confronted nor physically

harmed, he was threatened with death, he was followed, he

appeared on a death list, and his colleagues who received

similar threats were killed.” Id. at 935. We held that a

reasonable factfinder would be compelled to find that Lim’s

fears were therefore “objectively well-founded.” Id. (internal

quotation marks omitted); cf. Halim, 590 F.3d at 977

(petitioner failed to establish a well-founded fear of

persecution where the government—his alleged

persecutors—actually saved him when he was attacked, and

where he alleged no persecution in the four years preceding

his emigration to the United States).

C.J.’s fear of persecution is even more “well-founded”

than Lim’s. Unlike Lim, who received death threats from

afar, C.J. was actually confronted by the Maras in person on

several occasions. The threats also became “more menacing”

over time, culminating in a harrowing encounter in which a

gang member put a gun to his head, and gave him a date

certain—the next day—to die if he did not join the gang.

Moreover, Lim was an adult whereas C.J. is a minor. “Age

can be a critical factor in the adjudication of asylum claims

and may bear heavily on the question of whether an applicant

C.J.L.G. V. SESSIONS 33

was persecuted or whether she holds a well-founded fear of

future persecution.” Hernandez-Ortiz, 496 F.3d at 1045

(internal quotation marks and adjustment omitted). That is

because the “harm a child fears or has suffered may be

relatively less than that of an adult and still qualify as

persecution.” Id. (internal quotation marks and adjustment

omitted). Put another way, in the case of a minor, the

persecution prong is relaxed. If an adult in Lim had a well-

founded fear of persecution where he was not even

confronted by his persecutors, it stands to reason that C.J., a

13-year-old boy at the time, has demonstrated a well-founded

fear where he endured in-person threats to his life. C.J. has

therefore demonstrated at least a “one-tenth possibility of

persecution” if he returns to Honduras. The record compels

a finding that the Board erred in concluding otherwise.

Protected Status. C.J. must still show that his fear of

future persecution is “on account of” a protected

basis—namely race, religion, nationality, membership in a

particular social group, or political opinion. Jacinto,

208 F.3d at 734 (citing 8 U.S.C. § 1101(a)(42)(A)). Thus, the

Maras’ threats must have a nexus to one of these categories.

C.J. argues that because the Maras threatened not only

himself, but also his mother, aunt, and uncles, his claim

qualifies under the social group category of family.

C.J. is correct that familial affiliation can be a recognized

social group, but simple association is not enough. See Jie

Lin, 377 F.3d at 1029. Family status is a legitimate basis for

relief where the applicant is persecuted because of his

relationship to his family members. In Jie Lin, Lin’s parents

were targeted by the Chinese government for violating its

family planning policy. Id. at 1019. The court recognized

Lin’s family as a cognizable social group because the Chinese

34 C.J.L.G. V. SESSIONS

government threatened Lin “on account of” his close ties to

his parents. Id. at 1028.11 Critically, the basis for Lin’s claim

for relief was that his parents’ actions had put him in danger.

See id. at 1021. C.J.’s case presents the inverse situation: C.J.

was not threatened “on account of” his relationship to his

mother, aunt, or uncles. Instead, the record reflects that C.J.’s

family was threatened because of C.J.’s refusal to join the

Maras.

The IJ asked C.J. a logical and sequential series of

questions to draw this conclusion. The IJ began by asking

C.J. who “was causing problems for you?” C.J. responded

that it was “the Maras.” The IJ then asked C.J.: “[W]hat kind

of problems did you have with the gang?” CJ responded:

“Well they wanted me to join the Maras and I said that I

wouldn’t. So they said they were going to beat me up, so my

mother said that we should come [to the United States].” The

IJ then asked C.J. whether the Maras “threaten[ed] to harm

any of your other family members in Honduras.” C.J.

responded that they had. The IJ followed up, asking C.J. who

the Maras had threatened, to which C.J. answered: “They said

they would kill my uncles, aunt and uncles, and my mother

and I, but we came here, so we don’t know.” Finally, the IJ

probed whether there was any other basis for protected class

status, asking C.J.’s mother again if the reason he came to the

United States was because he was “being threatened by the

gangs.” C.J.’s mother answered: “Yes.”

11

See Rodriguez v. INS, 841 F.2d 865, 871 (9th Cir. 1987) (family

constituted a cognizable social group where petitioner’s family members

were attacked for their political beliefs); see also Del Valle v. INS,

776 F.2d 1407, 1413 (9th Cir. 1985) (“evidence [] suggest[ing] that

[petitioner’s] family has been particularly affected by the conditions in

their country [] helps support [petitioner’s] claim for asylum” (internal

citations omitted)).

C.J.L.G. V. SESSIONS 35

The IJ’s inquiry was adequate. The IJ asked questions

that elicited answers establishing that C.J. was threatened

because the Maras tried to recruit him. Cf. Henriquez-Rivas

v. Holder, 707 F.3d 1081, 1092–93 (9th Cir. 2013) (en banc)

(finding that those who testify against gangs comprise a

cognizable social group, but declining to extend this

determination to individuals who simply resist gang

recruitment efforts). The Maras’ threats against him were not

derivative of any persecution against members of his family.

C.J. complains that the IJ should have asked him and Maria

additional questions to determine why the gang also

threatened his mother, aunt, and uncles, but the IJ explored

this issue to the extent necessary to reasonably conclude that

such questions were unnecessary. Even if the Maras targeted

C.J.’s family for reasons independent of their efforts to recruit

C.J., that would not change the fact that C.J. was not

threatened “on account of” his family. He was, by his own

testimony, threatened because he courageously refused the

Maras’ repeated demands to join them. The IJ therefore did

not fail to fully develop the record on the question of

protected status.

Having determined that no due process violation occurred

regarding whether C.J. has established a protected ground—a

necessary condition for granting asylum relief—the only

question is whether substantial evidence supports the Board’s

determination under our highly deferential standard of

review. For the reasons stated above, we hold that it does.

Inability or Unwillingness of the Government to Control

the Maras. C.J. must also show that the persecution he fears

is by the “government or forces the government is either

unable or unwilling to control.” Nahrvani v. Gonzales,

399 F.3d 1148, 1154 (9th Cir. 2005) (internal quotation marks

36 C.J.L.G. V. SESSIONS

omitted). C.J. testified that he did not report the Maras’

threats to the police because “they couldn’t do anything,”

adding that he was “very afraid.” The IJ concluded that

because C.J. failed to provide evidence that the police would

not have helped him had he reported the Maras, he failed to

establish that the Honduran government was unable or

unwilling to control them.

C.J. has waived any challenge to the IJ’s finding on this

point—which is an independent basis for rejecting his asylum

and withholding claims—by not challenging it on appeal to

the Board. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th

Cir. 2004) (court lacks subject matter jurisdiction to consider

claims not presented to the Board). But even were we to

consider this issue, we would find that the IJ adequately

developed the record and that her determination was based on

substantial evidence.

The IJ adequately developed the record by introducing

and considering a 2014 State Department country conditions

report on Honduras. State Department reports may provide

objective evidence of a government’s inability or

unwillingness to control private actors. See, e.g., Gomes v.

Gonzales, 429 F.3d 1264, 1267 (9th Cir. 2005). Far from

reflecting the Honduran government’s inability or

unwillingness to control gang violence, the 2014 report states

that security forces severely punish gang members.

Accordingly, because the report does not support C.J.’s

subjective statement that the police “couldn’t do anything,”

we cannot disturb the Board’s finding that C.J. has not shown

that the government is unable or unwilling to control the

Maras. See Budiono, 837 F.3d at 1046.

C.J.L.G. V. SESSIONS 37

ii.

To be sure, C.J.’s removal proceeding was not a paragon

of procedural decorum. The IJ should have more clearly

explained the standard for asylum relief, and may have

confused Maria by telling her that she could “either request

a little more time to find an attorney . . . or you can go

forward today and . . . speak on behalf of your son.” In fact,

Maria was legally entitled to both retain legal representation

and speak on behalf of C.J. See Jacinto, 208 F.3d at 729. In

Jacinto, we concluded that such defects violated the

petitioner’s right to a full and fair hearing. Id. at 729, 734;

see also Agyeman, 296 F.3d at 883 (“We have previously

emphasized the importance of explaining to an alien what

evidence will demonstrate their eligibility for relief from

deportation.”).12

Even so, C.J. fails to show that the additional process he

seeks—government-funded, court-appointed counsel—is

necessary, either in his case or for alien minors as a class.

See Buckingham, 603 F.3d at 1082 (courts must consider the

adequacy of the process provided in the context of similarly

situated litigants). As the government correctly observes, a

12

The IJ did, however, provide most of the procedural safeguards

necessary to ensure a full and fair hearing. The IJ asked C.J. questions to

determine potential avenues for relief, including adjustment of status,

withholding of removal, asylum, and derivative citizenship. The IJ also

provided an interpreter, explained the NTA in plain language, discussed

the pro bono list of attorneys provided to Maria, advised C.J. of his right

to counsel, gave Maria an asylum application to fill out, provided the

parties with a country conditions report, gave Maria an opportunity to give

a narrative statement in support of C.J., explained C.J.’s appeal rights,

and—to reiterate—granted four continuances spanning nearly a year and

a half, which afforded Maria multiple opportunities to secure counsel.

38 C.J.L.G. V. SESSIONS

less costly yet effective process already exists to safeguard

the rights of minors in formal removal proceedings: remand

to an IJ to correct any deficiencies. If an IJ fails to provide a

full and fair hearing, as is required by the INA, and this

results in prejudice, then the proportionate remedy is to grant

the petition for review with instructions to the IJ to more fully

develop the record. See, e.g., Jacinto, 208 F.3d at 735.

Indeed, the fact that Congress vested IJs with the

responsibility of investigating and developing an applicant’s

claims tilts the equities in favor of the government on the

second Mathews factor. A litigant in C.J.’s position must

show that, not only was he deprived of a full and fair hearing,

but that had the IJ performed her duty to provide one, the

Constitution would still entitle him to court-appointed

counsel.13 C.J. falls well short of accomplishing this

Herculean task because he fails to show that the process

Congress prescribed is categorically inadequate to vindicate

an alien minor’s right to due process. The second Mathews

factor favors the government.

3.

“The final Mathews factor requires [the court] to consider

the burdens [its] holding may place on the administrative

process.” Oshodi, 729 F.3d at 896. The court must assess the

“interest of the government in using the current procedures

rather than additional or different procedures,” and account

for the costs of imposing additional procedures. Plasencia,

459 U.S. at 34.

13

Implicit in the IJ’s responsibility to independently develop the

record is the obligation to account for a petitioner’s pro se status and age

in conducting a removal proceeding. See Agyeman, 296 F.3d at 877;

Hernandez-Ortiz, 496 F.3d at 1045–46.

C.J.L.G. V. SESSIONS 39

C.J. argues that because the government already pays a

lawyer to represent its interests in immigration proceedings

involving minors, providing counsel for minors is necessary

to remedy an “asymmetry of representation.” Cf. Turner,

564 U.S. at 447. C.J. also posits that the financial burden on

the government is manageable because only 6,500

unrepresented children are in removal proceedings in the

Ninth Circuit, resulting in a total cost of approximately

$17.5 million when calculated at government contractors’

estimate of $2,700 per case.

The government begs to differ. Noting that DHS

apprehended 102,264 juveniles at or near the border in FY

2016 alone, the cost of appointing counsel for all of them at

$2,700 per case (a conservative figure, according to the

government) would be a staggering $276.1 million per year.

This would consume roughly 68% of the Executive Office for

Immigration Review’s (“EOIR”) total budget. The

government also warns of potential unintended consequences

from such a mandate: juveniles that could afford attorneys

would opt for government-funded counsel instead, and

organizations offering pro bono legal services would shift

scarce resources elsewhere.

The ultimate cost of government-funded, court-appointed

counsel likely falls somewhere between C.J.’s and the

government’s estimates. C.J. surely underestimates the cost

by limiting his sample size to the Ninth Circuit. Any decision

from this court resulting in a new constitutional right for alien

minors would ricochet across the country, teeing up copycat

suits in other circuits and vastly expanding the pool of

eligible applicants. On the other hand, the government’s

assumption that all eligible minors would take advantage of

free court-appointed counsel is speculative. The government

40 C.J.L.G. V. SESSIONS

also fails to disaggregate the data to account for those minors

eligible for expedited removal—we have never held that

aliens in expedited removal proceedings enjoy a statutory

right to even privately-retained counsel.14

Even if the government’s figures are inflated in one way,

they are likely undervalued in another. Mandating free court-

appointed counsel could further strain an already

overextended immigration system. IJs would be tasked with

locating and appointing counsel, which takes time. And

government attorneys would need to expend additional

resources communicating with opposing counsel, filing

responses to motions, and preparing what would likely be a

longer administrative record—all of which come at

considerable expense. Cf. Walters v. Nat’l Ass’n of Radiation

Survivors, 473 U.S. 305, 324 (1985) (recognizing lawyers’

professional obligation to “contest with vigor all adverse

evidence and views”).

Ultimately, wherever the government’s burden falls

between the parties’ estimates, the third Mathews factor

favors the government. Requiring government-funded

counsel would significantly increase the funds expended on

immigration matters.

14

Cf. United States v. Peralta-Sanchez, 705 F. App’x 542, 544 (9th

Cir. 2017) (unpublished) (assuming without deciding that aliens in

expedited removal proceedings have a due process right to privately-

retained counsel); DHS, Designating Aliens for Expedited Removal

(Notice), 69 Fed. Reg. 48877-01, 48878–79 (Aug. 11, 2004) (recognizing

that “unaccompanied minors . . . may possess equities that weigh against

the use of expedited removal proceedings” (emphasis added)).

C.J.L.G. V. SESSIONS 41

4.

Having evaluated each Mathews factor individually as

applied to C.J.’s case, we turn next to assessing the factors

collectively. We conclude that, notwithstanding that the first

Mathews factor favors C.J., the second and third factors tip

the balance strongly in favor of the government. No matter

the strength of C.J.’s interest in not being deported (the first

factor), he has not shown a necessity for government-funded,

court-appointed counsel to safeguard his due process right to

a full and fair hearing (the second factor). Accordingly, even

were we to find that the IJ failed to provide a full and fair

hearing, and that this prejudiced C.J. (see Part III.C.5, infra),

the appropriate remedy would be to remand with instructions

to the IJ to adequately develop the record, not the

appointment of counsel at government expense.15

We hasten to note that our conclusion relies on the second

and not the third Mathews factor. C.J. has a due process right

to a full and fair hearing—a right that Congress codified and

charged IJs with enforcing. If we had concluded that, in

C.J.’s case, this right could only be vindicated by assigning

him court-appointed counsel—i.e., if we had determined that

the risk of erroneous deprivation of C.J.’s right to a full and

fair hearing absent court-appointed counsel was a virtual

certainty—then we might have been compelled to award such

relief to C.J. Under Mathews, our paramount responsibility

is to ensure that “the quantum and quality of the process”

provided “serve[s] the purpose of minimizing the risk of

error,” Greenholtz v. Inmates of Neb. Penal & Corr.

15

Because we conclude that C.J. is not entitled to court-appointed

counsel in his own proceeding, his claim that alien minors enjoy a

categorical right to court-appointed counsel necessarily fails.

42 C.J.L.G. V. SESSIONS

Complex, 442 U.S. 1, 13 (1979) (citing Mathews, 424 U.S. at

335), and so the third Mathews factor must take a back seat

to the second.

Further, and irrespective of the above observation, had the

second Mathews factor favored C.J., then the third would

likely do so, as well. The third factor considers “the interest

of the government in using the current procedures rather than

additional or different procedures.” Plasencia, 459 U.S. at

34. The government has a compelling interest in the fair and

just administration of our Nation’s immigration laws. See

Walters v. Reno, 145 F.3d 1032, 1043–44 (9th Cir. 1998). If

that interest could only be realized in a particular case

through court-appointed counsel, then the third factor would

impel its provision. Cf. Gagnon v. Scarpelli, 411 U.S. 778,

790 (1973) (“there will remain certain cases in which

fundamental fairness—the touchstone of due process—will

require that the State provide at its expense counsel for

indigent probationers or parolees”).

Finally, fundamental concerns of separation-of-powers

are at play. By requiring IJs to fulfill Congress’ direction yet

demanding no more, we balance the judiciary’s three core

obligations in our divided system of government and avoid

aggrandizing our own power. First, we act consonant with

rather than beyond the scope of Congress’ prescribed policy

in an area over which it exercises plenary control. See

Zadvydas v. Davis, 533 U.S. 678, 695 (2001); Hampton v.

Mow Sun Wong, 426 U.S. 88, 100 (1976). Second, we satisfy

our independent duty to “say what the law is” by articulating

the scope and contours of Congress’ full-and-fair-hearing

guarantee. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142,

1156 (10th Cir. 2016) (Gorsuch, J., concurring) (citing

Marbury v. Madison, 5 U.S. 137 (1803)). And third, we

C.J.L.G. V. SESSIONS 43

check any violations of individual liberty where an IJ fails to

provide the amount of process guaranteed by Congress.

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260,

268 (1954) (courts have an independent obligation to ensure

that the Board affords aliens the due process set forth in

enacted legislation and implementing regulations); see also

Fiallo, 430 U.S. at 793 n.5 (“Our cases reflect acceptance of

a limited judicial responsibility under the Constitution even

with respect to the power of Congress to regulate the

admission and exclusion of aliens[.]”). Requiring court-

appointed counsel at government expense would jettison the

first obligation without enhancing our ability to implement

the other two.

5.

In keeping with our third judicial obligation above, we

consider next whether the shortcomings in C.J.’s proceeding

violated his right to due process, and thus whether we must

remand with instructions to the IJ to conduct a full and fair

hearing. “The lack of a full and fair hearing . . . will not

alone establish a due process violation. The alien must

establish that []he suffered prejudice.” Jacinto, 208 F.3d at

734. Prejudice requires that the petitioner show “that the

outcome of the proceeding may have been affected by the

alleged violation.” Oshodi, 729 F.3d at 896 (emphasis in

original) (quoting Zolotukhin v. Gonzales, 417 F.3d 1073,

1076 (9th Cir. 2005)). Prejudice results if the IJ fails to

develop the record sufficient to determine whether the

applicant qualifies for relief from deportation. See Jacinto,

208 F.3d at 734.

We conclude that any deficiencies in C.J.’s proceeding

did not prejudice him because on the dispositive questions of

44 C.J.L.G. V. SESSIONS

protected status and whether the Honduran government is

unable or unwilling to control the Maras, the IJ adequately

developed the record.16 Notwithstanding the IJ’s failure to

explain the standard for asylum, among other shortcomings,

there exists no reasonable probability that C.J. would have

been awarded asylum relief had the IJ satisfied her

obligations.17 This is because substantial evidence supports

the Board’s determinations (i) that C.J.’s alleged persecution

was not “on account of” a protected ground, and (ii) that C.J.

failed to show that the Honduran government could not or

would not control the Maras. See Budiono, 837 F.3d at 1046.

IV.

C.J. has one arrow left in his quiver on his asserted right

to court-appointed counsel. C.J. argues that the INA’s fair

hearing provision, 8 U.S.C. § 1229a(b)(4)(B), implicitly

requires court-appointed counsel at government expense for

all alien minors because, according to him, that is the “only

way that children can be provided full and fair hearings.”

Our holding that C.J. was not prejudiced by any procedural

deficiencies in his removal proceeding defeats this argument

forthwith.

16

As already noted, C.J. waived any argument that the IJ did not fully

develop the record on the unable-or-unwilling-to-control issue.

17

See Tamayo-Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013)

(petitioner was not prejudiced by a lack of legal counsel because issuance

of a reinstatement-of-removal order was proper and, “even with skilled

legal counsel, no relief was available to Petitioner”); see also Acewicz v.

INS, 984 F.2d 1056, 1062 (9th Cir. 1993) (prejudice from lack of counsel

requires a showing that counsel could have “better marshalled specific

facts or arguments in presenting petitioner’s case for asylum or

withholding of [removal]” (internal quotation marks omitted)).

C.J.L.G. V. SESSIONS 45

C.J.’s claim also fails as a matter of statutory

interpretation. As the government correctly points out,

reading an implied right to court-appointed counsel into

§ 1229a(b)(4)(B) would create a tension with the sub-section

immediately preceding it. Section 1229a(b)(4)(A) provides

aliens with the right to counsel “at no expense to the

Government.” 8 U.S.C. § 1229a(b)(4)(A) (emphasis added).

C.J.’s proposed reading would effectively read out of the

statute the quoted phrase, thereby running afoul of the canon

of statutory construction that a court should interpret a statute

as a cohesive whole in a way that gives effect to all of its

provisions. Padash v. INS, 358 F.3d 1161, 1170–71 (9th Cir.

2004) (“[W]e must make every effort not to interpret the

provision at issue in a manner that renders other provisions of

the same statute inconsistent, meaningless or superfluous.”

(internal quotation marks and adjustments omitted)); see also

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

133 (2000) (noting the “fundamental canon of statutory

construction that the words of a statute must be read in their

context and with a view to their place in the overall statutory

scheme”). It would also violate the corollary canon that

specific statutory provisions prevail over more general ones.

In re Matter of Spanish Peaks Holdings II, LLC, 872 F.3d

892, 898 (9th Cir. 2017). Under this principle, to the extent

§ 1229a(b)(4)(B)’s full-and-fair-hearing requirement implies

a right to counsel, as C.J. argues, that implied right must fit

within the specific grant conferred by § 1229a(b)(4)(A). C.J.

seeks much more. We decline his invitation to rewrite the

INA.

V.

C.J. also asserts that his due process rights were violated

because the IJ failed to inform him of his possible eligibility

46 C.J.L.G. V. SESSIONS

for SIJ status. An IJ is required to “inform the alien of his or

her apparent eligibility to apply for any of the benefits

enumerated in this chapter and shall afford the alien an

opportunity to make [an] application during the hearing . . . .”

8 C.F.R. § 1240.11(a)(2); United States v. Lopez-Velasquez,

629 F.3d 894, 896 (9th Cir. 2010) (en banc). “Apparent

eligibility” is demonstrated “where the record, fairly

reviewed by an individual who is intimately familiar with the

immigration laws—as IJs no doubt are—raises a reasonable

possibility that the petitioner may be eligible for relief.”

Lopez-Velasquez, 629 F.3d at 896 (internal quotation marks

omitted). The IJ’s duty is triggered where the alien “‘or some

other person puts information before the judge that makes

such eligibility apparent.’” Id. at 900 (quoting Moran-

Enriquez v. INS, 884 F.2d 420, 422 (9th Cir. 1989)). Put

another way, the record must demonstrate “a factual basis for

relief.” Id. “[F]ailure to advise an alien of ‘apparent

eligibility’ to apply for relief is a due process violation.”

United States v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th

Cir. 2013).

SIJ status provides a pathway to legal permanent resident

(“LPR”) status for undocumented minors who cannot be

reunified with one or both parents because of abuse, neglect,

or abandonment. Children, like C.J., who have been

abandoned by one parent may be eligible even if the other

parent retains custody.

Gaining SIJ status is a multi-step process. The minor

must first obtain a court order from a state juvenile court.

That court must, inter alia, “declare[]” that the child is a

“dependent upon a juvenile court located in the United States

in accordance with state law governing such declarations of

dependency, while the alien was in the United States and

C.J.L.G. V. SESSIONS 47

under the jurisdiction of the court”; and find that the child is

“eligible . . . for long-term foster care.” 8 C.F.R.

§ 204.11(c)(3)–(4).

If the state court makes the requisite findings, then the

child may apply for SIJ status with the IJ. 8 U.S.C.

§ 1101(a)(27)(J). To grant SIJ status, the IJ must find that the

child’s reunification with one or both parents is not viable due

to abuse, neglect, abandonment, or a similar basis under state

law; and that it is not in the child’s best interest to be returned

to his country of nationality. Id.

If the IJ awards the child SIJ status, then the child may

apply for legal residency. But even if the juvenile receives an

SIJ designation, the IJ may refuse to grant the application for

legal residency and may still order the alien removed. See

8 U.S.C. § 1255(a).

C.J. contends that the information at his removal hearing

“raised the reasonable possibility that he may be eligible for

[SIJ status].” He suggests vaguely that the facts before the IJ

indicate that a state court would deem him dependent on the

juvenile court. Based on his and Maria’s testimony, C.J. also

asserts that the IJ knew that “there [had] been many years”

since C.J. had been in touch with his father, and that his

father had “left [Maria] a long time ago,” thereby satisfying

the requirement that he show that reunification with at least

one parent is not viable. C.J. further argues that because he

credibly testified to death threats by the Maras, a state court

would likely determine that it is not in his best interest to be

returned to Honduras. Finally, C.J. goes one step further,

asserting that access to SIJ status is only meaningful if this

court appoints him counsel to shepherd his case through the

California courts.

48 C.J.L.G. V. SESSIONS

C.J.’s arguments founder on the fact that, at the time of

his removal proceeding, he did not have a state court order

deeming him to be, inter alia, a “dependent upon [the]

juvenile court.” 8 C.F.R. § 204.11(c)(3). The IJ therefore

could not have granted him SIJ status, meaning that C.J. was

not “apparent[ly] eligib[le]” for immigration relief. Id.

§ 1240.11(a)(2). Accordingly, the IJ’s duty to inform was not

triggered. Cf. Moran-Enriquez, 884 F.2d at 423 (IJ had a

duty to inform petitioner of relief from deportation where the

petitioner’s marriage to a United States citizen made him

eligible for such relief). Contra United States v. Cabrera-

Ochoa, No. 5:15-cr-00206-BLF-1, 2016 WL 4204551, at *8

(N.D. Cal. Aug. 8, 2016).

C.J. counters that the INA requires the IJ to “inform the

alien of his or her apparent eligibility to apply for any of the

benefits enumerated in this chapter,” 8 C.F.R.

§ 1240.11(a)(2), one of which is SIJ status, see 8 U.S.C.

§ 1101(a)(27)(J); 8 C.F.R. §§ 1245.1(a), (e)(2)(vi)(B)(3). But

an alien qualified for SIJ classification is one for whom a

state court has already made certain findings necessary for an

IJ to grant SIJ status. 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R.

§ 204.11.18 Had C.J. secured the requisite state court

determinations and revealed that development in the

immigration proceeding, then the IJ would have been obliged

to inform him of his “apparent eligibility” to seek SIJ status.

18

The regulations provide that “[a]n alien is eligible for classification

as a special immigrant under [§] 101(a)(27)(J)” if the alien meets certain

criteria. Several of those criteria require that a state court have already

made certain determinations. For example, the alien must, inter alia,

“ha[ve] been declared dependent upon a juvenile court . . . in accordance

with state law governing such declarations of dependency,” and have been

“deemed eligible by the juvenile court for long-term foster care.” 8 C.F.R.

§ 204.11(c)(3)–(4) (emphasis added).

C.J.L.G. V. SESSIONS 49

But C.J. had not even initiated the state court process, and the

IJ is not required to parse the record for evidence of a

petitioner’s potential eligibility to pursue an independent state

court action. As we have previously stated, “IJs are not

expected to be clairvoyant” when it comes to informing aliens

of their options for relief.19 Moran-Enriquez, 884 F.2d at

422.

Finally, even were we to conclude (which we do not) that

an IJ must, as a general rule, advise an alien minor of

immigration relief that may be available based on

hypothetical findings by a state court, C.J.’s eligibility for SIJ

19

C.J.’s references to a non-binding statement by a DHS official and

a brief discussion of the SIJ process contained in a DHS training manual

are unavailing. C.J. notes that DHS has commented that IJs have assisted

unrepresented children in obtaining SIJ status. Specifically, former Acting

Chief IJ for Vulnerable Populations stated in a deposition in this case:

“I’m confident if [SIJ status] comes to the attention of the judge, that we

have ample tools and resources to get that through the state court process.”

For its part, the training manual describes a course on how the “SIJ

program relates to Immigration Court proceedings, including removal

proceedings.”

We accord no deference to an agency’s unofficial, non-binding

statements of policy that are unmoored from any interpretation of the

governing statute or its regulations. Cf. Auer v. Robbins, 519 U.S. 452,

462 (1997) (in certain circumstances, deference is owed an agency’s

reasonable interpretation “of [its] own regulations”); Chevron, U.S.A., Inc.

v. Natural Res. Defense Council, Inc. 467 U.S. 837, 842–43 (1984)

(deference is owed an agency’s reasonable interpretation of an ambiguous

statutory provision); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)

(granting “respect” to an agency’s official policy statement). At most, the

DHS official highlighted a practice of encouraging IJs to recognize

eligibility for SIJ status and to provide notice to aliens of the state court

process. As for the training manual, it simply offers information on the

SIJ process. That is a far cry from an agency’s official policy based on a

reasonable interpretation of the INA or its implementing regulations.

50 C.J.L.G. V. SESSIONS

status is not “apparent.” It is speculative at best that a

California court would “declare[ C.J.] dependent upon a

juvenile court.” 8 C.F.R. § 204.11(c)(3). That is because,

unlike the petitioner in Cabrera-Ochoa, who was effectively

orphaned by the “neglect” and “abandonment” of both his

parents, C.J. remains in the custody of his devoted mother.

Cf. Cabrera-Ochoa, 2016 WL 4204551, at *8–9. “Apparent

eligibility” requires something more—i.e., facts that plainly

indicate a “reasonable possibility” of eligibility for

immigration relief. Lopez-Velasquez, 629 F.3d at 896.

Instead, C.J. piles inference upon inference. He first assumes

that a state court would deem him dependent on that court

notwithstanding his mother’s continued custody of him.

Based on that assumption, he then makes another: that an IJ

would exercise her discretion to grant C.J. SIJ status even

though “reunification with 1 . . . of [C.J.’s] parents is . . .

viable.” 8 U.S.C. § 1101(a)(27)(i) (emphasis added); see also

8 C.F.R. § 204.11. Both assumptions are laden with a heavy

dose of speculation, all the more so when set against the

backdrop of C.J.’s failure to pursue the required state court

process.

For all these reasons, we hold that the IJ was not required

to inform C.J. that he might be eligible for SIJ status. Our

determination necessarily disposes of C.J.’s claimed right to

court-appointed counsel at government expense for purposes

of pursuing the requisite state court action.

VI.

Finally, C.J. seeks relief under CAT, 8 C.F.R.

§ 1208.16(c). CAT prevents the United States from removing

an alien to a country where it is more likely than not that he

will be tortured by or with the acquiescence of the

C.J.L.G. V. SESSIONS 51

government. Muradin v. Gonzales, 494 F.3d 1208, 1210 (9th

Cir. 2007); 8 C.F.R. § 1208.16(c)(2). Torture involves

intentional infliction of

severe pain or suffering, whether physical or

mental . . . for any reason based on

discrimination of any kind, when such pain or

suffering is inflicted by or at the instigation of

or with the consent or acquiescence of a

public official or other person acting in an

official capacity.

8 C.F.R. § 1208.18(a)(1). Unlike the standards for asylum

and withholding of removal, a petitioner “need not show that

he will be tortured on account of a protected ground” to

qualify for CAT relief. Muradin, 494 F.3d at 1211.

The IJ concluded that C.J.’s “fear[] of the gangs and

problems that he had with the gangs in Honduras . . . falls

short of the requirement to show a particularized threat of

torture.” The Board affirmed, and we agree.

C.J. argues that the IJ and the Board erred in denying his

CAT claim because the record “contain[s] more than

sufficient evidence to establish C.J.[]’s entitlement to

protection under CAT.” C.J. points to the fact that the Maras

put a gun to his head and the State Department report’s

discussion of gangs killing minors for resisting their

recruitment efforts.

Substantial evidence supports the Board’s conclusion.

While having a gun pointed at one’s head is no doubt deeply

traumatizing, the Board did not err in finding that it did not

amount to “severe pain or suffering.” Nor was there any

52 C.J.L.G. V. SESSIONS

showing that the Honduran government acquiesced in the act.

See 8 C.F.R. § 1208.18(a)(1). As discussed in the context of

C.J.’s asylum claim, see Part III.C.2, supra, the record does

not compel a finding that the government either turned a blind

eye to the Maras’ threats against C.J. or that it would be

unable or unwilling to control the Maras in the future. Cf.

Muradin, 494 F.3d at 1211 (granting CAT relief where the

applicant presented evidence that he was tortured by security

officers in his home country of Armenia, and where a State

Department report detailed routine beatings and torture by the

security services). We therefore deny C.J.’s petition for

review on his CAT claim.

CONCLUSION

We are mindful that our decision means that, absent a

reprieve offered by the government, C.J. will likely be

returned to a country in turmoil. We sympathize with his

personal plight, as C.J. appears to have displayed courage in

the face of serious adversity. But while “our hearts are with

[C.J.],” the law does not support his requested relief. Cf.

Dugard v. United States, 835 F.3d 915, 917 (9th Cir. 2016).

Neither Supreme Court nor circuit precedent compels the

remedy that C.J. seeks: court-appointed counsel at

government expense. And to the extent the IJ failed to

provide all the trappings of a full and fair hearing, any

shortcomings did not prejudice the outcome because the IJ

adequately developed the record on issues that are dispositive

to C.J.’s claims for relief. Attorney representation could not

have altered this reality, which forecloses C.J.’s claim to an

implied right to court-appointed counsel under the Due

Process Clause. Moreover, the INA itself neither provides for

nor implies a right to court-appointed counsel at government

expense.

C.J.L.G. V. SESSIONS 53

We further hold that the IJ was not required to advise C.J.

of a separate state court process that could ultimately form

the predicate for C.J.’s application for SIJ status with the IJ.

The IJ is only required to advise an alien of relief for which

he is “apparent[ly] eligib[le].” Because C.J.’s claimed

relief—SIJ status—depends on a state court making certain

findings before an IJ may grant him such relief—something

that has not occurred here—C.J. is not “apparent[ly]

eligib[le]” for SIJ status.

Finally, we decline to reverse the Board’s denial of C.J.’s

asylum, withholding of removal, and CAT claims, because

substantial evidence supports the Board’s determination that

he is ineligible for any such relief.

PETITION FOR REVIEW DENIED.

OWENS, Circuit Judge, concurring:

I concur in the majority opinion and its narrow scope. It

holds that the Due Process Clause does not mandate

government-funded counsel for C.J.L.G, an accompanied

minor. The opinion does not hold, or even discuss, whether

the Due Process Clause mandates counsel for unaccompanied

minors. That is a different question that could lead to a

different answer. See, e.g., Lassiter v. Dep’t of Soc. Servs.,

452 U.S. 18, 31–32 (1981) (holding that whether the Due

Process Clause requires the appointment of counsel is

considered on a case-by-case basis); J.E.F.M. v. Lynch,

837 F.3d 1026, 1039–41 (9th Cir. 2016) (McKeown, J.,

54 C.J.L.G. V. SESSIONS

joined by M. Smith, J., specially concurring) (outlining

unique challenges that unrepresented unaccompanied minors

in immigration proceedings confront).