C.J.L.G., a Juvenile Male v. William Barr

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

WILLIAM P. BARR, Attorney General,

Respondent. OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted En Banc December 10, 2018

San Francisco, California

Filed May 3, 2019

Before: Sidney R. Thomas, Chief Judge, and Susan P.

Graber, M. Margaret McKeown, William A. Fletcher,

Richard A. Paez, Marsha S. Berzon, Johnnie B. Rawlinson,

Consuelo M. Callahan, Sandra S. Ikuta, Jacqueline H.

Nguyen and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz;

Concurrence by Judge Paez;

Concurrence by Judge Berzon;

Dissent by Judge Callahan

2 C.J.L.G. V. BARR

SUMMARY *

Immigration

Granting C.J.L.G.’s petition for review of a Board of

Immigration Appeals’ decision, the en banc court concluded

that the Immigration Judge who ordered C.J. removed erred

by failing to advise him about his apparent eligibility for

Special Immigrant Juvenile (“SIJ”) status, and remanded.

SIJ status provides a path to lawful permanent residency

for at-risk children and requires a child to obtain a state-court

order declaring him dependent or placing him under the

custody of a court-appointed individual or entity. The state

court must find that (1) “reunification with 1 or both . . .

parents is not viable due to abuse, neglect, abandonment, or

a similar basis found under State law;” and (2) it would not

be in the child’s “best interest to be returned to [his] parent’s

previous country.” 8 U.S.C. § 1101(a)(27)(J). After

obtaining a state court order, the child must obtain the

consent of the Secretary of Homeland Security to the

granting of SIJ status by filing an I-360 petition with the

United States Citizenship and Immigration Services

(“USCIS”). If USCIS grants the petition, the child may

apply for adjustment of status, and a visa must be

immediately available when he applies.

The en banc court noted that, under 8 C.F.R.

§ 1240.11(a)(2), an IJ is required to inform a petitioner

subject to removal proceedings of “apparent eligibility to

*

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. BARR 3

apply for any of the benefits enumerated in this chapter,” and

observed that this court’s case law provides that the

“apparent eligibility” standard is triggered whenever the

facts before the IJ raise a reasonable possibility that the

petitioner may be eligible for relief.

The en banc court concluded that the information

presented during CJ’s proceedings made it reasonably

possible that he could establish eligibility for SIJ status. In

this respect, the en banc court concluded that (1) his

mother’s comment that CJ’s father left her a long time ago

and CJ’s statement that he had had no paternal contact for

many years demonstrated that reunification with one parent

might be impossible due to abandonment; and (2) the death

threats CJ received from a gang in Honduras when he was

14 years old showed that returning to that country might not

be in his best interest.

The en banc court rejected the government’s contention

that SIJ status is not a form of relief covered by the “apparent

eligibility” standard of 8 C.F.R. § 1240.11(a)(2), explaining

that a successful SIJ application plainly can lead to relief

from removal and that the SIJ regulations are among those

in the referenced subchapter. The en banc court also rejected

the government’s contention that an IJ is only required to

advise a juvenile of potential eligibility for SIJ relief after

the child has obtained a state court order, an approved I-360

petition from USCIS, and an immediately available visa.

The en banc court concluded that this approach would

eviscerate the utility of advice by the IJ and substantially

undermine the core purpose of the IJ’s duty to advise—to

inform a minor of rights and avenues of relief of which he

may not yet be aware.

4 C.J.L.G. V. BARR

The en banc court also observed that, although the IJ

could not have granted CJ relief from removal at the time of

the hearing, she could have continued the proceedings to

allow him to apply for SIJ status. Noting that any eventual

decision to grant or deny a continuance is within the

discretion of the IJ, the en banc court stated that the IJ should

exercise that decision in light of CJ’s apparent eligibility for

SIJ status and may now also consider how far CJ has

proceeded in the SIJ process. Therefore, the en banc court

granted the petition for review, vacated the removal order,

and remanded for a new hearing before the IJ.

Finally, noting that CJ will be represented by counsel in

future administrative proceedings, the en banc court stated

that it need not address his contention that appointment of

counsel for minors in removal proceedings is

constitutionally required.

Concurring, Judge Paez wrote separately because he

disagreed with the majority’s decision to remain silent on the

issue of a child’s right to counsel in immigration removal

proceedings. Judge Paez would reach the fundamental

question raised in this proceeding: whether the Fifth

Amendment’s guaranty of due process entitles children to

appointed counsel in immigration proceedings. He would

hold that it does, for indigent children under age 18 who are

seeking asylum, withholding of removal, relief under the

Convention Against Torture, or another form of relief for

which they may be eligible, such as SIJ status.

Concurring in part and concurring in the judgment,

Judge Berzon wrote to note that consideration of the right to

counsel question for minors in removal proceedings has been

unnecessarily hindered by this court’s decisions in J.E.F.M.

v. Lynch, 837 F.3d 1026 (9th Cir. 2016), reh’g en banc

C.J.L.G. V. BARR 5

denied, 908 F.3d 1157 (9th Cir. 2018) (Berzon, J., dissenting

from denial of rehearing en banc), which held that the right

to counsel question must be considered in a petition for

review from an individual child’s removal proceedings, and

not through a class action filed in the district court. Judge

Berzon wrote that a more developed factual record than is

available here would have given the court more information

on which to decide whether minors in removal proceedings

have a right to counsel and whether that right is universal or

may be limited to certain categories of cases. Judge Berzon

wrote that the court was not answering any of those

questions in this en banc proceeding, quite possibly because

of qualms concerning fashioning the precise parameters of a

right to counsel for minors in a single case. Accordingly,

Judge Berzon observed that the court shut one door to the

courthouse in J.E.F.M. on the promise of keeping another

open, only to duck out of that door—for now—as well.

Dissenting, Judge Callahan, joined by Judge Ikuta, wrote

that she must dissent because the majority required more of

the IJ than was required or appropriate. Judge Callahan

would hold that the information presented at CJ’s hearing

before the IJ did not create a reasonable possibility that CJ

qualified for relief. In this respect, Judge Callahan wrote that

this court has explained that an IJ is required to inform an

alien only of his “apparent eligibility” at the time of the

hearing.

Accordingly, Judge Callahan concluded that, even

assuming that SIJ status is a “benefit” contemplated by this

regulation, there was no such “apparent eligibility” at the

time of CJ’s hearing: CJ had not commenced any

proceeding in a juvenile court, nor demonstrated any need or

reason to do so. Nor was there any evidence indicating

whether the Secretary of Homeland Security would consent

6 C.J.L.G. V. BARR

to an application by CJ, or that a visa was immediately

available.

COUNSEL

Ahilan T. Arulanantham (argued), ACLU Foundation of

Southern California, Los Angeles, California; Aaron E.

Millstein and Theodore J. Angelis, K&L Gates LLP, Seattle,

Washington; Glenda M. Aldana Madrid and Matt Adams,

Northwest Immigrant Rights Project, Seattle, Washington;

Stephen Kang, ACLU Immigrants’ Rights Project, San

Francisco, California; for Petitioner.

Scott G. Stewart (argued) and W. Manning Evans, Senior

Litigation Counsel; John W. Blakeley, Assistant Director;

Joseph H. Hunt, Assistant Attorney General; Office of

Immigration Litigation, Civil Division, United States

Department of Justice, Washington, D.C.; for Respondent.

Nareeneh Sohbatian and John E. Schreiber, Winston &

Strawn LLP, Los Angeles, California; Jonathan S.

Goldstein, Winston & Strawn LLP, San Francisco,

California; for Amicus Curiae Immigrant Legal Resource

Center.

Anne Dutton, Eunice Lee, Karen Musalo, and Blaine

Bookey, Center for Gender & Refugee Studies, San

Francisco, California, for Amicus Curiae Center for Gender

& Refugee Studies.

Robert A. Brundage and Lucy Wang, Morgan Lewis &

Bockius LLP, San Francisco, California; Daniel Grunfeld,

Morgan Lewis & Bockius LLP, Los Angeles, California; for

C.J.L.G. V. BARR 7

Amici Curiae Dr. Jennifer Woolard and Dr. Laurence

Steinberg.

Lee Brand and Harrison “Buzz” Frahn, Simpson Thacher &

Bartlett LLP, Palo Alto, California, for Amici Curiae Former

Federal Immigration Judges.

David W. Schecter and Brian A. Procel, Miller Barondess

LLP, Los Angeles, California, for Amici Curiae Professor

Kevin Lapp, Associate Professor of Law, Loyola Law

School, et al.

Eric Tuttle, Munger Tolles & Olson LLP, Los Angeles,

California; Jonathan Meltzer, Munger Tolles & Olson LLP,

Washington, D.C.; for Amici Curiae Constitutional Law and

Procedure Scholars Judith Resnick and Brian Soucek.

8 C.J.L.G. V. BARR

OPINION

HURWITZ, Circuit Judge:

A gang held 14-year-old C.J.L.G. (“CJ”) at gunpoint in

his native Honduras and threatened to kill his family after he

rejected recruitment attempts. CJ and his mother Maria then

fled their homeland and sought asylum in the United States.

Although finding CJ credible, an immigration judge (“IJ”)

denied his request for asylum and ordered him removed.

The Board of Immigration Appeals (“BIA”) dismissed CJ’s

appeal.

CJ petitions for review, arguing, among other things, that

the IJ erred by failing to recognize he was an at-risk child

potentially eligible for relief as a Special Immigrant Juvenile

(“SIJ”) and to so advise him. Because we conclude that the

IJ erroneously failed to advise CJ about his eligibility for SIJ

status, we grant the petition.

I. Background

In June 2014, CJ and Maria were apprehended in Texas

after entering the country without inspection. Because

Maria was the subject of a prior removal order, separate

removal proceedings were instituted against CJ.

At his initial hearing before an IJ in November 2014, CJ

appeared with Maria but without counsel. When the IJ

informed them that she would “not appoint an attorney for

[CJ]” but that they had “the right to find an attorney . . . at

[their] own expense,” Maria said she did not “have money to

pay for an attorney” but requested time to find one. Maria

was unable to find counsel despite several continuances, and

ultimately agreed to represent CJ herself. When Maria

explained that CJ feared returning to Honduras “because of

C.J.L.G. V. BARR 9

the gangs,” the IJ gave her an asylum application and

questioned her about her son. In response to one question,

Maria stated that CJ’s father had left her long ago.

In June 2015, Maria filed the asylum application on CJ’s

behalf. She also sought withholding of removal and

protection under the Convention Against Torture. The IJ

accepted the application and set CJ’s case for a hearing.

At that hearing, CJ testified that gang members

threatened to kill him and other family members on three

occasions after he rejected recruitment attempts. On the

third occasion, CJ was held at gunpoint and given one day to

decide whether to join the gang; he and Maria then fled

Honduras. CJ testified that it had been “many years” since

he had any contact with his father.

The IJ expressly found CJ credible but denied his

applications for relief from removal. On appeal to the BIA,

now represented by counsel, CJ contended that the IJ had

erred by failing to appoint counsel or advise him about SIJ

status. The BIA dismissed the appeal, concluding that,

although the IJ must “inform the respondent of any apparent

forms of relief from removal,” CJ had not established

eligibility for SIJ status. The BIA also found that it lacked

jurisdiction to consider whether CJ had a constitutional right

to appointed counsel.

A three-judge panel denied CJ’s petition for review.

C.J.L.G. v. Sessions, 880 F.3d 1122, 1150–51 (9th Cir.

2018). The panel held that CJ had no right to appointed

counsel and that the IJ did not err in failing to inform CJ

10 C.J.L.G. V. BARR

about his potential ability to obtain SIJ status. 1 Id. at 1147–

50. A majority of active judges voted to grant CJ’s petition

for rehearing en banc, and the panel opinion was vacated.

C.J.L.G. v. Sessions, 904 F.3d 642, 642 (9th Cir. 2018).

II. Discussion

A.

An IJ is required to inform a petitioner subject to removal

proceedings of “apparent eligibility to apply for any of the

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

§ 1240.11(a)(2). One of the benefits listed “in this chapter”

is SIJ status. Id. § 1245.1(a), (e)(2)(vi)(B)(3).

Congress created SIJ status in 1990 to provide a path to

lawful permanent residency for certain at-risk children.

Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat.

4978, 5005–06; see Bianka M. v. Superior Court, 423 P.3d

334, 337–38 (Cal. 2018). A child seeking SIJ protection

must first obtain a state-court order declaring him dependent

or placing him under the custody of a court-appointed

“individual or entity.” 8 U.S.C. § 1101(a)(27)(J)(i). The

state court issuing the order must find that (1) “reunification

with 1 or both . . . parents is not viable due to abuse, neglect,

abandonment, or a similar basis found under State law;” and

(2) it would not be in the child’s “best interest to be returned

1

Judge Owens concurred, noting that the opinion “does not hold, or

even discuss, whether the Due Process Clause mandates counsel for

unaccompanied minors.” 880 F.3d at 1151 (Owens, J., concurring)

(citing J.E.F.M. v. Lynch, 837 F.3d 1026, 1039–41 (9th Cir. 2016)

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

C.J.L.G. V. BARR 11

to [his] parent’s previous country.” Id. § 1101(a)(27)(J)(i)–

(ii). 2

After obtaining a state court order, the child must obtain

the consent of the Secretary of Homeland Security to the

granting of SIJ status by filing an I-360 petition with the

United States Citizenship and Immigration Services

(“USCIS”). See id. § 1101(a)(27)(J)(iii); 6 USCIS Policy

Manual, pt. J, ch. 2(A), ch. 4(E)(1) (current as of Apr. 19,

2019). In reviewing an I-360 petition, “USCIS relies on the

expertise of the juvenile court . . . and does not reweigh the

evidence,” but may deny relief if it determines that the state

court order had no reasonable factual basis or was sought

“primarily or solely to obtain an immigration benefit.”

6 USCIS Policy Manual, pt. J, ch. 2(D)(5); see H.R. Rep.

No. 105-405, at 130 (1997) (Conf. Rep.).

If USCIS grants the petition, the child may apply for

adjustment of status. 6 USCIS Policy Manual, pt. J,

ch. 4(A). A “visa must be immediately available” when he

applies. 8 C.F.R. § 1245.2(a)(2)(i)(A); see 8 U.S.C.

§ 1153(b)(4) (establishing quota for SIJ visas). A child who

is not in removal proceedings applies to USCIS for

adjustment of status, see 8 C.F.R. § 245.2(a)(1), but one in

removal proceedings must seek it from the IJ, id.

§ 1245.2(a)(1)(i); 6 USCIS Policy Manual, pt. J, ch. 4(A)

n.2. If the child was the subject of a removal order before

2

The dissent accurately notes that, at the time of his IJ hearing, CJ

was with his mother and not adjudicated a dependent. Before 2008,

regulations required the state court to find the minor eligible for foster

placement before SIJ status could be awarded. 8 C.F.R. § 204.11(c)(4)–

(5). But in that year, Congress replaced the foster placement requirement

with the requirement that reunification with at least one parent be not

viable. See William Wilberforce Trafficking Victims Protection

Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044, 5079.

12 C.J.L.G. V. BARR

obtaining SIJ status, he cannot adjust status unless the IJ also

vacates the removal order. See 8 U.S.C. § 1182(a)(9)(A)(ii)

(providing that a person under a removal order is

inadmissible). The IJ has discretion both in deciding

whether to reopen removal proceedings, see 8 C.F.R.

§ 1003.2(a), and in whether to grant a subsequent adjustment

application, see 8 U.S.C. § 1255(a).

B.

The “apparent eligibility” standard of 8 C.F.R.

§ 1240.11(a)(2) is triggered whenever the facts before the IJ

raise a “reasonable possibility that the petitioner may be

eligible for relief.” Moran-Enriquez v. INS, 884 F.2d 420,

423 (9th Cir. 1989). A failure to advise can be excused only

when the petitioner’s eligibility for relief is not “plausible.”

See United States v. Rojas-Pedroza, 716 F.3d 1253, 1265–

67 (9th Cir. 2013) (finding no prejudice from the IJ’s failure

to advise about eligibility to apply for voluntary departure

because it was not “plausible” IJ would grant it); United

States v. Arrieta, 224 F.3d 1076, 1082–83 (9th Cir. 2000)

(finding prejudice from the IJ’s advisement failure because

excludability waiver under 8 U.S.C. § 1182(h) was

“plausible”).

The information presented during CJ’s proceedings

made it reasonably possible that he could establish eligibility

for SIJ status. Maria’s comment that CJ’s father left her “a

long time ago,” and CJ’s statement that he had no paternal

contact for “many years” demonstrated that reunification

with one parent might be impossible “due to . . .

abandonment.” See 8 U.S.C. § 1101(a)(27)(J)(i). And CJ’s

testimony about the death threats he received from the gang

showed that returning to Honduras might not be in his “best

interest.” See id. § 1101(a)(27)(J)(ii). Indeed, once he

became aware of his potential eligibility for SIJ status, CJ

C.J.L.G. V. BARR 13

obtained the required state-court order and has now filed an

I-360 petition. 3

The government does not suggest that it was not

reasonably possible at the time of CJ’s hearing that he could

obtain SIJ status or that the IJ was not aware of the facts

suggesting CJ’s eligibility for relief. Rather, it contends that

SIJ status is not a form of relief from removal covered by

8 C.F.R. § 1240.11(a)(2). That argument fails. A successful

SIJ application plainly can lead to relief from removal, see

6 USCIS Policy Manual, pt. J, ch. 4(A), and SIJ regulations

are among those in the referenced subchapter, 8 C.F.R.

§ 1245.1(a), (e)(2)(vi)(B)(3).

In the alternative, the government argues that the IJ is

only required to advise a juvenile of potential eligibility for

SIJ relief after the child has obtained a state-court order, an

approved I-360 petition from USCIS, and an immediately

available visa. “We do not read the regulation so grudgingly.

[It] obviously is meant to prompt the IJ to help an alien

explore legal avenues of relief that might not be apparent to

him or his attorney.” Moran-Enriquez, 884 F.2d at 423. To

adopt the government’s position here would require a minor

to complete all but the final step for SIJ status—seeking

adjustment of status from the IJ—before triggering the IJ’s

duty to advise him of SIJ eligibility. This is a nonsensical

approach. It would eviscerate the utility of advice by the IJ

and substantially undermine the core purpose of the IJ’s duty

3

We GRANT CJ’s motion for judicial notice of the state-court

order, but DENY his other requests for judicial notice (Dkt. 133).

14 C.J.L.G. V. BARR

to advise—to inform a minor of rights and avenues of relief

of which he may not yet be aware. 4

To be sure, CJ’s eventual ability to obtain SIJ status

depended on future decisions by a state court and USCIS.

But the regulation speaks of “apparent eligibility,” not

certain entitlement. 8 C.F.R. § 1240.11(a)(2). We have

made plain that “[t]he regulations do not require . . . a

reviewing court to conclude that an alien would certainly

qualify for relief.” Bui v. INS, 76 F.3d 268, 271 (9th Cir.

1996). Thus, in Bui, we held that an IJ was required to advise

Bui about potential eligibility for a waiver of excludability

under 8 U.S.C. § 1182(h) even though the record did not

show he could satisfy every element necessary to obtain

relief. Id. To obtain the waiver, Bui had to show he had a

U.S. citizen or permanent resident relative, and that the

relative would suffer extreme hardship were Bui deported.

Id. And, to adjust his status, Bui needed both the waiver and

an immediately available visa approved by USCIS. Id. at

270–71 (citing 8 U.S.C. §§ 1182(h), 1255(a)). Although the

record contained no evidence of hardship and the

government argued that no visa would be available, the IJ

nonetheless had a duty to advise because the record “raised

an inference of the existence of relatives and the possibility

of relief.” Id. at 271. Indeed, we had previously explained

that the advisement duty “[b]y definition” involves

situations where, as here, the petitioner does not “make a

complete showing of eligibility.” Moran-Enriquez,

4

We are mindful that the duty to advise minors about SIJ status

“places a significant burden on already overburdened Immigration

Judges.” Moran-Enriquez, 884 F.2d at 423. But, “it is a burden clearly

contemplated by the regulation promulgated by the Attorney General”

and the statute passed by Congress. Id.

C.J.L.G. V. BARR 15

884 F.2d at 423; see also Arrieta, 224 F.3d at 1082–83

(holding that failure to advise was prejudicial because,

“although the evidence produced by Mr. Arrieta does not

guarantee that he would have been granted [the] waiver, it

provides the ‘something more’ that makes it plausible that

he would have received one”). 5

C.

When the IJ fails to provide the required advice, the

appropriate course is to “grant the petition for review,

reverse the BIA’s dismissal of [the petitioner’s] appeal of the

IJ’s failure to inform him of this relief, and remand for a new

[ ] hearing.” Bui, 76 F.3d at 271; see also Moran-Enriquez,

884 F.2d at 423 (ordering remand). The government argues

that we should not do so here because the IJ could not have

granted the state court order, the I-360 petition, or a visa

during the removal proceedings that are the subject of this

petition for review. But that was precisely the situation in

Bui and Moran-Enriquez. See Bui, 76 F.3d at 271

(remanding even though Bui might not be able to obtain a

visa); Moran-Enriquez, 884 F.2d at 422–23 (same).

More importantly, although the IJ could not have granted

CJ relief from removal at the time of the hearing, she could

5

We have suggested that advisement may not be required if a

petitioner would be eligible for relief only after a change in the law or a

change in his personal circumstances. See, e.g., United States v. Lopez-

Velasquez, 629 F.3d 894, 901 (9th Cir. 2010) (en banc) (noting that

Lopez could obtain relief “only with a change in law and the passage of

eight months”); United States v. Moriel-Luna, 585 F.3d 1191, 1198 n.2

(9th Cir. 2009) (noting that Moriel-Luna “needed not only time but also

to either marry his U.S.-citizen girlfriend or to have his parents

successfully petition for citizenship”). This is not such a case.

16 C.J.L.G. V. BARR

have continued the proceedings to allow him to apply for SIJ

status. Indeed, the BIA recently held that an IJ should do so

when the child is “actively pursuing” the state-court order. 6

See In re Zepeda-Padilla, 2018 WL 1897722, at *1–2

(B.I.A. Feb. 16, 2018) (unpublished). The record makes

plain that, once CJ was informed of eligibility for that status,

he vigorously—and successfully—pursued the required

order. And, had the IJ granted a continuance while CJ

navigated the SIJ process, he would not currently be subject

to a removal order. Because that order was entered, CJ’s

road to relief has become more difficult; even if he obtains

SIJ status, he can apply for relief only if his removal

proceedings are reopened. See 8 U.S.C. § 1182(a)(9)(A)(ii);

Bonilla v. Lynch, 840 F.3d 575, 589 (9th Cir. 2016)

(explaining that reopening vacates the removal order).

To be sure, any eventual “decision to grant or deny the

continuance is within ‘the sound discretion of the judge.’”

Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009)

(quoting Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247

(9th Cir. 2008) (per curiam)). But the IJ should exercise that

6

The Attorney General recently stated that, in assessing a motion

for a continuance, “an immigration judge will generally need an

evidentiary submission by the respondent, which should include copies

of relevant submissions in the collateral proceeding, supporting

affidavits, and the like.” Matter of L-A-B-R-, 27 I. & N. Dec. 405, 418

(A.G. 2018). But that general rule should not prevent the IJ from

granting a continuance when, as here, the child is unaware of his apparent

eligibility for relief until so advised, and thereafter diligently pursues

relief. See id. at 412 (approving tribunals’ use of “context-specific

multifactor balancing tests, rather than attempting to craft bright-line,

one-size-fits-all definitions”); see also id. at 413 (“The good-cause

standard in section 1003.29 requires consideration and balancing of all

relevant factors in assessing a motion for continuance to accommodate a

collateral matter.”).

C.J.L.G. V. BARR 17

discretion in light of CJ’s apparent eligibility for SIJ status,

something overlooked at the time of his hearing, and may

now also consider how far he has proceeded in the process.

We therefore grant the petition for review, vacate the

removal order, and remand for a new hearing before the IJ. 7

PETITION GRANTED.

PAEZ, Circuit Judge, joined by FLETCHER and BERZON,

Circuit Judges, concurring:

I concur in the majority’s opinion—as far as it goes. I

agree that the Immigration Judge (“IJ”) had a duty to advise

CJ of his apparent eligibility for Special Immigrant Juvenile

(“SIJ”) relief. I write separately because I disagree with the

majority’s decision to remain silent on the issue of a child’s

right to counsel in immigration removal proceedings. As the

majority acknowledges, CJ’s asylum, withholding of

removal, and Convention Against Torture (“CAT”) claims

may come back to this court. I would reach the fundamental

question raised in this proceeding: whether the Fifth

Amendment’s guaranty of due process entitles children to

7

Because CJ will be represented by counsel in future administrative

proceedings, we need not address his contention that appointment of

counsel is constitutionally required. Because we have vacated the order

of removal, we also do not address the denial of CJ’s asylum,

withholding of removal, and CAT claims. If a new order of removal is

entered, these issues (including any claim based on denial of counsel

remaining after new proceedings before the IJ) can be addressed in a

future petition for review. See Singh v. Gonzales, 499 F.3d 969, 975 (9th

Cir. 2007) (holding that the court was not barred from reviewing a claim

on a successive petition for review where “[t]here has never been a final

judgment on the merits with respect” to that claim).

18 C.J.L.G. V. BARR

appointed counsel in immigration proceedings. I would hold

that it does, for indigent children under age 18 who are

seeking asylum, withholding of removal, CAT, or another

form of relief for which they may be eligible, such as SIJ

status. 1

I.

The majority states that because CJ now has counsel, we

need not address his argument that appointed counsel is

constitutionally required for indigent children in removal

proceedings. That was the critical issue raised in the petition

for rehearing en banc. In J.E.F.M. v. Lynch, we stated that

the only proper way for immigrant children to pursue their

right to counsel claims was by exhausting the administrative

process of their removal orders and then seeking review in

federal court. 837 F.3d 1026, 1038 (9th Cir. 2016).

“Following discussion at oral argument, to facilitate a test

case,” the government provided counsel in J.E.F.M. with

“notice of any minor without counsel that the government is

aware of ordered removed by an immigration judge

following a merits hearing.” Id. at 1037 n.10. We described

such a case as one where “a right-to-counsel claim [would

be] teed up for appellate review.” Id. at 1038. Now, we have

1

I consider the right to counsel for indigent children under age 18

because that is the age referenced in the parties’ briefs. See Petitioner’s

Opening Brief at 24 n.9 (“This country’s legal systems use the age of 18

more consistently than any other when marking the boundary between

childhood and adulthood.”); Respondent’s Answering Brief at 38

(interpreting CJ’s argument to be for children under 18 to receive the

right to counsel). I recognize, however, that immigration law applies age

21 as the boundary between eligibility for SIJ status or asylum status as

the “derivative” of a parent’s successful asylum application. See, e.g., 8

U.S.C. § 1101(b)(1), Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1159

(9th Cir. 2004).

C.J.L.G. V. BARR 19

that case, and the majority inexplicably punts the question

yet again.

Such cases are extremely difficult to bring, and I am

aware of only one other in this circuit. See id. at 1037.

About fifteen years ago, in Guzman-Heredia v. Gonzales,

No. 04-72769 (9th Cir.), a child appeared pro se and was

ordered removed. J.E.F.M., 837 F.3d at 1037. Pro bono

counsel raised the issue of the child’s right to counsel before

the Board of Immigration Appeals (“BIA”), but the case

ultimately settled. Id. Since then, thousands of

unrepresented children have been ordered removed.

Transactional Records Access Clearinghouse,

Representation for Unaccompanied Children in

Immigration Court (Nov. 25, 2014),

http://trac.syr.edu/immigration/reports/371/_(tracking over

27,000 children without counsel ordered removed in a ten-

year span). 2 Until CJ’s case arose through the J.E.F.M.

discovery process, only one other child seeking appointed

counsel had made it to this court of appeals. Because of

children’s lack of understanding of the immigration and

appellate systems, as well as their youthful emotional and

intellectual maturity levels, this is unsurprising.

2

Transactional Records Access Clearinghouse (“TRAC”), a

nonpartisan multi-year project affiliated with Syracuse University,

reviews and presents data based on information from the government.

Transactional Records Access Clearinghouse, About the Project,

https://trac.syr.edu/immigration/about.html (last visited Feb. 27, 2019).

The data reflects fiscal years, rather than calendar years. See, e.g.,

Transactional Records Access Clearinghouse, Children: Amid a

Growing Court Backlog Many Still Unrepresented (Sept. 28, 2017),

https://trac.syr.edu/immigration/reports/482/.

20 C.J.L.G. V. BARR

II.

Immigrant children “in deportation proceedings are

entitled to the fifth amendment guaranty of due process.”

Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1160 (9th Cir.

2004) (internal quotation omitted). This has been true “[f]or

over one hundred years.” Id. at 1161 (citing Yamataya v.

Fisher, 189 U.S. 86 (1903)). Indeed, “every individual in

removal proceedings is entitled to a full and fair hearing.”

Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (en

banc) (citing Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir.

2000)); see also 8 U.S.C. § 1229a(b)(4)(B). Due process

rights persist regardless of whether the immigrant entered

unlawfully, Zadvydas v. Davis, 533 U.S. 678, 693 (2001),

was apprehended soon after entry, United States v. Raya-

Vaca, 771 F.3d 1195, 1202–03 (9th Cir. 2014), or has

conceded removability and then seeks relief, see, e.g.,

Morgan v. Mukasey, 529 F.3d 1202, 1205, 1211 (9th Cir.

2008).

A violation of the right to retained counsel is uniquely

important, and thus we do not require a showing of prejudice

to grant relief. Generally, immigrants must show prejudice

when they argue a due process violation. See Tamayo-

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

“an individual who is wrongly denied the assistance of

counsel at the merits hearing need not show prejudice” at all.

Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir.

2018) (citations omitted) (contrasting removal, i.e. merits,

hearings from other interactions an immigrant may have

with government agents); see, e.g., Montes-Lopez v. Holder,

694 F.3d 1085, 1090 (9th Cir. 2012) (holding there was no

need to show prejudice where an IJ denied an immigrant his

right to counsel by failing to grant a continuance due to the

absence of his retained counsel); cf. Acewicz v. I.N.S.,

C.J.L.G. V. BARR 21

984 F.2d 1056, 1062 (9th Cir. 1993) (recognizing that

infringements of the right to counsel are prejudicial where

counsel “could have better marshalled specific facts or

arguments in presenting the petitioner’s case for asylum or

withholding of deportation” (citation omitted)). This is in

part because “denial of counsel more fundamentally affects

the whole of a proceeding than ineffective assistance of

counsel.” Montes-Lopez, 694 F.3d at 1092 (noting that “the

absence of counsel can change an alien’s strategic decisions,

prevent him or her from making potentially-meritorious

legal arguments, and limit the evidence the alien is able to

include in the record”). 3

“The importance of counsel, particularly in asylum cases

where the law is complex and developing, can neither be

overemphasized nor ignored.” Reyes-Palacios v. I.N.S.,

836 F.2d 1154, 1155 (9th Cir. 1988). For immigrant

children, that is especially true. In Jie Lin v. Ashcroft, we

held that a child was denied effective assistance of counsel,

in violation of due process, by counsel’s inept performance.

377 F.3d 1014, 1034 (9th Cir. 2004). There, the counsel’s

“lack of preparation prevented her from researching and

presenting basic legal arguments fundamental to the asylum

3

Other circuits have reached the same conclusion. See Leslie v.

Attorney Gen., 611 F.3d 171, 174–75 (3d Cir. 2010) (holding there was

no need to show prejudice where IJ failed to inform immigrant of the

availability of free legal services); Montilla v. I.N.S., 926 F.2d 162, 169

(2d Cir. 1991) (declining to add a prejudice requirement where an IJ

failed to notify an immigrant of his right to counsel and to provide him

with a list of free legal services); Castaneda-Delgado v. I.N.S., 525 F.2d

1295, 1300–01 (7th Cir. 1975) (rejecting the government’s argument that

immigrants must show prejudice when they had been given a

continuance of less than 48 hours after being informed of the right to

obtain counsel); Cheung v. I.N.S., 418 F.2d 460, 464 (D.C. Cir. 1969)

(holding there was no need to show prejudice when immigrant was given

inadequate time to consider retaining counsel).

22 C.J.L.G. V. BARR

claim” and “her lack of investigation left her unable to

present critical facts to support Lin’s claim.” Id. at 1024; see

also id. at 1024–27. CJ’s case poses the question: If an

attorney’s failure to investigate and research her child

client’s case can be a Fifth Amendment violation, id. at

1024, then how can a child without any counsel have a

proceeding that comports with due process?

In other civil contexts where children face grave

consequences, courts and legislatures have already answered

this question: children have due process rights to appointed

counsel. See, e.g., In re Gault, 387 U.S. 1, 36–37 (1967)

(civil juvenile delinquency proceedings that may result in

commitment); Kent v. United States, 383 U.S. 541, 561

(1966) (civil proceedings seeking to transfer children to

adult criminal courts); In re Roger S., 569 P.2d 1286, 1296

(Cal. 1977) (civil proceedings for a child’s commitment to

state hospital); see also Cal. Welf. & Inst. Code § 366.26(f)

(child’s right to counsel in hearing terminating parental

rights); Tex. Fam. Code Ann. § 107.012 (same).

Despite these background principles, at oral argument,

the government refused to concede it would ever be

appropriate to appoint counsel in order to have a

“full and fair” deportation proceeding, including if a

hypothetical two-year-old child were alone in court.

Recording of Oral Argument at 29:41–32:47, C.J.L.G. v.

Barr, No. 16-73801 (9th Cir. Dec. 10, 2018),

https://www.ca9.uscourts.gov/media/view_video.php?pk_v

id=0000014799 (responding negatively to inquiries about

right to appointed counsel for a three-year-old, a two-year-

old, and a baby in a basket).

C.J.L.G. V. BARR 23

I cannot ignore this mockery of judicial and

administrative processes. There are thousands of very real

children in removal proceedings without counsel. Data from

August 2017 shows that four out of every ten children whose

cases began in 2016 were unrepresented, where there were

over 33,000 new cases—and that number rose to three out of

every four children whose cases began in 2017, where

there were about 19,000 new cases. Transactional Records

Access Clearinghouse, Children: Amid a Growing Court

Backlog Many Still Unrepresented (Sept. 28, 2017),

https://trac.syr.edu/immigration/reports/482/. Many of them

are fleeing persecution. CJ is fleeing threats from gangs, and

his case demonstrates a child’s need for counsel in removal

proceedings so that the proceedings may be constitutionally

“full and fair,” especially where the child’s proceedings are

made even more complex by virtue of the child’s potential

eligibility for relief through SIJ status or asylum. Oshodi,

729 F.3d at 889.

III.

Where due process interests are at stake in a child’s

removal proceedings, this court looks to the familiar test

formulated in Mathews v. Eldridge, 424 U.S. 319, 335

(1976). See Flores-Chavez, 362 F.3d at 1160. The Mathews

test recognizes three factors:

First, the private interest that will be affected

by the official action; second, the risk of an

erroneous deprivation of such interest

through the procedures used, and the

probable value, if any, of additional or

substitute procedural safeguards; and finally,

the Government’s interest, including the

function involved and the fiscal and

administrative burdens that the additional or

24 C.J.L.G. V. BARR

substitute procedural requirement would

entail.

424 U.S. at 335.

When determining whether there is a right to counsel in

civil proceedings, like here, the court must “set [the] net

weight” of those three factors “against the presumption that

there is a right to appointed counsel only where the indigent,

if he is unsuccessful, may lose his personal freedom.”

Lassiter v. Dep’t of Social Servs. of Durham Cty., 452 U.S.

18, 27 (1981). The Lassiter presumption is rebuttable. Id.

at 31.

Turner v. Rogers, 564 U.S. 431, 446–48 (2011) further

clarified the Mathews test for assessing whether due process

requires counsel in civil proceedings. First, courts should

look to whether the critical question at issue in the cases is

straightforward. Id. (noting that the question of a

defendant’s indigence in a contempt proceeding is

straightforward). Second, courts should consider whether

there is an asymmetry of counsel. Id. at 446–47. Where one

side is represented, it “could make the proceedings less fair

overall, increasing the risk” of an erroneous decision. Id.

at 447. Third, courts should look to the substitute procedural

safeguards, such as adequate notice and a fair opportunity to

present one’s case. Id. at 447–48.

The test established in Mathews, elaborated upon in

Lassiter and Turner, and applied in many other cases,

requires courts to look at structural procedures that exist and

those that are sought by a category of claimants—not the

procedures applied in a single claimant’s case. For example,

when addressing the three factors in Mathews, the Court

focused on the general social security disability benefit

recipient. In assessing the private interest, the Court used

C.J.L.G. V. BARR 25

terms such as “a recipient” or “a [disabled] worker” and

considered the average delay in payment of benefits.

Mathews, 424 U.S. at 340–42; see also Turner, 564 U.S. at

446–49 (examining, generally “an indigent’s right to paid

counsel” in a contempt proceeding for failing to pay child

support). In Flores-Chavez, we applied the Mathews test to

determine whether notice of a child’s removal proceedings

must be provided to the adult with custody of the child.

362 F.3d at 1161. Under the first and third factors, we

looked only at immigrant children generally, not the

particular child’s interests. Id. at 1161–62. Under the

second factor, we treated Flores’s case as “demonstrat[ive],”

but we did not limit ourselves to Flores’s facts. Id. at 1161.

I analyze the Mathews factors, with consideration of the

Lassiter presumption and Turner factors, to assess the right

to counsel for children under age 18 in removal proceedings,

and I treat CJ’s particular case as “demonstrative.”

A.

First, the private interest affected is “the loss of a

significant liberty interest.” Flores-Chavez, 362 F.3d

at 1161. Courts have long recognized that “deportation is a

penalty—at times a most serious one.” Bridges v. Wixon,

326 U.S. 135, 154 (1945); see also id. at 164 (Murphy, J.,

concurring) (“The impact of deportation upon the life of an

alien is often as great if not greater than the imposition of a

criminal sentence.”).

When a child may be deported, the interest is especially

great. See Jie Lin, 377 F.3d at 1033 (accounting for a

“minor’s age, intelligence, education, information, and

understanding and ability to comprehend” in removal

proceedings). For an immigrant seeking asylum,

withholding of removal, or CAT protection, the liberty

26 C.J.L.G. V. BARR

interest is greater still. Oshodi, 729 F.3d at 894 (noting, “the

private interest could hardly be greater”). The impact of

deportation could be persecution, including potential police

beatings, torture, and sexual assault as in Oshodi, id. at 886,

harm to a child and his family for failure to comply with a

coercive government practice, as alleged in Jie Lin, 377 F.3d

at 1021, or gun violence at the hands of gang members as in

CJ’s case.

A child in removal proceedings, especially a child with

a claim for asylum, withholding of removal, or CAT relief,

has a significant liberty interest. The first Mathews factor

weighs in favor of CJ.

B.

The second factor in Mathews is the risk of error and

adequacy of the challenged procedures.

Risk of Error

At the outset, the risk of error for children without

counsel is high. Pro se children in immigration proceedings

fare far worse than represented children. With counsel,

children are nearly five times more likely to secure

immigration benefits. From 2005 to 2014, only 10% of

unrepresented children concluded their proceedings with an

order permitting them to remain in the U.S., compared to

47% of represented children. 4 Transactional Records

Access Clearinghouse, New Data on Unaccompanied

Children in Immigration Court, Table 5 (July 15, 2014),

http://trac.syr.edu/immigration/reports/359/. The disparity

4

Courts have looked to statistics in recognizing a right to counsel in

the past. See In re Gault, 387 U.S. at 22.

C.J.L.G. V. BARR 27

in outcomes for represented and unrepresented children was

growing before the present administration. From 2012–

2014, only 15% of unaccompanied children without an

attorney were able to legally remain in the U.S., compared

to 73% who had an attorney. Transactional Records Access

Clearinghouse, Representation for Unaccompanied

Children in Immigration Court (Nov. 25, 2014),

http://trac.syr.edu/immigration/reports/371/.

CJ’s own case serves as an example. He was denied

relief despite having plausible asylum, withholding of

removal, and CAT claims that counsel could have

developed, in addition to seeking a continuance to pursue SIJ

status, as the majority explains. To start, with respect to his

asylum, withholding of removal, and CAT claims, CJ has a

strong argument that he suffered past persecution because he

was threatened multiple times, including once with a pistol

pointed at his head. See Ruano v. Ashcroft, 301 F.3d 1155,

1160 (9th Cir. 2002) (finding past persecution where

immigrant was “closely confronted” by men he knew to be

armed). That the threats were perpetrated by gang members

does not foreclose the possibility of immigration relief. See

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir.

2013) (holding that witnesses who testify against gang

members may constitute a particular social group). CJ’s

hearing testimony, which the IJ found credible, was brief.

With a more fully developed record, it could become clearer

whether the persecution was based on a protected status. See

Lacsina Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir.

2009) (noting that “simply asking the alien whether he has

‘anything to add in support of his claim’” is insufficient

record development (quoting Colmenar, 210 F.3d at 972)).

28 C.J.L.G. V. BARR

As amici, former IJs insist that the statistical data is not

random, and the presence of counsel results in the different

outcomes:

In amici’s experience, only counsel can

provide the time, commitment, and expertise

to develop a child’s case such that a full and

fair hearing consistently takes place. And as

amici observed every day from the bench, all

else being equal, professional representation

is the single largest factor in whether a minor

successfully navigates the immigration court

process.

Amicus Curiae Brief of Former Federal Immigration Judges

at 12.

And this makes sense. “A child’s age is far more than a

chronological fact.” J.D.B. v. North Carolina, 564 U.S. 261,

272 (2011) (quotation omitted) (holding that a child’s age

informs the Miranda custody analysis). A psychological

study in the criminal context demonstrates that children,

compared to adults, have less of an understanding of court

procedures, their own rights, and the risks of their current

circumstances, as well as less of an ability to reason about

relevant information. Amicus Brief of Dr. Jennifer Woolard

and Dr. Laurence Steinberg at 9 (citing T. Grisso et al.,

Juveniles’ competence to stand trial: A comparison of

adolescents’ and adults’ capacities as trial defendants,

27 Law and Human Behavior 333–63 (2003)). Participants

ages 15 and younger in such a study performed comparably

to “adults who are found incompetent to stand trial.” Id.

“The child requires the guiding hand of counsel at every step

in the proceedings against him.” In re Gault, 387 U.S. at 36

(quotation omitted).

C.J.L.G. V. BARR 29

Moreover, the law already recognizes that children

require more procedural protections than adults in

immigration proceedings. 5 The regulatory framework

“contemplates that no minor alien under age eighteen should

be presumed responsible for understanding his rights and

responsibilities in preparing for and appearing at final

immigration proceedings.” Flores-Chavez, 362 F.3d at

1157. For instance, service on a child, without also serving

the adult who has custody of the child, is not proper. Id. IJs

“shall not accept an admission of removability from an

unrepresented respondent who is incompetent or under the

age of 18 and is not accompanied by an attorney or legal

representative, a near relative, legal guardian, or friend.”

8 C.F.R. § 1240.10(c). Providing children with counsel in

removal proceedings is the next logical step.

Turner Factors

The Turner factors highlight the importance of counsel

to deportation proceedings for children.

First, immigration law is exceedingly complex; it has

been recognized as “second only to the Internal Revenue

Code in complexity.” Castro-O’Ryan v. I.N.S., 847 F.2d

1307, 1312 (9th Cir. 1987) (quotation omitted); see also

Dep’t of Justice, Immigration Court Practice Manual

5

The government points out that the Supreme Court has found

unrepresented children capable of waiving their rights in other contexts.

Reno v. Flores, 507 U.S. 292, 309 (1993) (waiving right to a custody

hearing before an IJ); Fare v. Michael C., 442 U.S. 707, 724–27 (1979)

(waiving right against self-incrimination in criminal cases). However,

when analyzing a waiver of the right to counsel in a removal hearing,

this court factors “the minor’s age, intelligence, education, information,

and understanding and ability to comprehend” into its analysis. Jie Lin,

377 F.3d at 1033.

30 C.J.L.G. V. BARR

(2018), https://www.justice.gov/eoir/page/file/1084851/

download (underscoring the complexity of pro se

representation in immigration proceedings by taking nearly

thirty pages to explain immigration court filings and nearly

forty pages to explain a hearing before an IJ, while still not

serving “in any way, [as a] substitute for a careful study of

the pertinent laws and regulations”). Asylum and

withholding claims that involve proving persecution on

account of a particular social group are complicated for

lawyers and courts, let alone children. See Reyes-Palacios,

836 F.2d at 1155 (“The importance of counsel, particularly

in asylum cases where the law is complex and developing,

can neither be overemphasized nor ignored.”). Second, there

is an asymmetry of counsel, as trained government attorneys

serve as prosecutors in every removal case. See Turner,

564 U.S. at 447 (recognizing that an “asymmetry of

representation” can “alter significantly the nature of the

proceeding” (quotation omitted)). Third, as explained

below, substitute procedural safeguards, such as the right to

retain private counsel, the IJ’s duty to develop the record,

and the presence of a parent, are inadequate.

Existing Procedures

Under existing procedures, an immigrant has “the

privilege” of being represented by counsel of his choosing,

at no expense to the government. 8 U.S.C.

§ 1229a(b)(4)(A). An IJ must explain hearing procedures

and, where the immigrant is pro se, “fully develop the

record.” Agyeman v. I.N.S., 296 F.3d 871, 877 (9th Cir.

2002) (quoting Jacinto v. I.N.S., 208 F.3d 725, 733–34 (9th

Cir. 2000)). The IJ must also “inform immigrants of any

ability to apply for relief from removal and the right to

appeal removal orders.” J.E.F.M., 837 F.3d at 1036–37

(citation omitted). And, in CJ’s case, he was not alone

C.J.L.G. V. BARR 31

because he had his mother’s assistance. These procedures

are a start, but they are not enough.

First, the privilege of paying for counsel or luck of

acquiring pro bono counsel is not a substitute for a right to

counsel in removal proceedings. Immigrants in removal

proceedings have a right to retain counsel, and the IJ must

advise immigrants of this right and the availability of pro

bono legal services. 8 C.F.R. § 1240.10(a). But the ability

to pay for counsel is little solace to an indigent child.

The list of pro bono attorneys the IJ provides cannot fill

the need for counsel. Between 2005 and 2014, IJs issued

decisions in almost 30,000 cases where children did not

have counsel. Transactional Records Access Clearinghouse,

New Data on Unaccompanied Children in Immigration

Court, Table 5 (July 15, 2014), http://trac.syr.edu/

immigration/reports/359/. CJ’s experience bore this

problem out; his mother Maria indicated she tried to find

counsel to no avail. 6 See Amicus Curiae Brief of Former

Federal Immigration Judges at 19 (former IJ amici noting

that CJ was in a “better” position than most children to

obtain pro bono counsel and was still unable to do so).

Second, an IJ is not a substitute for counsel in removal

proceedings. IJs are tasked with ensuring a modicum of due

process in immigration proceedings in various ways, such as

by developing the record themselves or by granting

continuances for counsel to develop the record. These

6

That CJ was able to obtain appellate counsel is inapposite.

Appellate counsel cannot develop the record in immigration

proceedings. See 8 C.F.R. § 1003.1(d)(3)(iv). A reviewing court cannot

conduct factfinding outside of the administrative record. Fisher v. I.N.S.,

79 F.3d 955, 963 (9th Cir. 1996). An inadequate record may lead to the

expulsion of children from this country who could otherwise have

obtained relief with a more robust record.

32 C.J.L.G. V. BARR

safeguards have never been a substitute for counsel and

recent developments in immigration law have undermined

them further.

IJs are “neutral fact-finder[s].” Reyes-Melendez v. INS,

342 F.3d 1001, 1008 (9th Cir. 2003). But immigration

“proceedings are adversarial in nature.” Jacinto, 208 F.3d at

733. While IJs “are obligated to fully develop the record”

where an immigrant appears without counsel, id. at 734, the

IJ cannot be a child’s advocate, 5 C.F.R. § 2635.101(b)(8).

An IJ is ethically bound to “act impartially and not give

preferential treatment to any . . . individual.” Id. Moreover,

the volume of cases on an IJ’s docket severely limits the

IJ’s capacity to develop the record. The former

Attorney General asked each IJ to complete “at least 700

cases a year.” Jeff Sessions, Attorney General, Remarks to

the Executive Office for Immigration Review Legal

Training Program in Washington, D.C. (June 11, 2018)

(remarks available at https://www.justice.gov/opa/

speech/attorney-general-sessions-delivers-remarks-executive-

office-immigration-review-legal). Recently, by vacating a

BIA decision that required a full evidentiary hearing for an

asylum-seeker, the Attorney General signaled to IJs that they

need not develop the record beyond merely asking whether

information in the asylum application is true and correct.

Matter of E-F-H-L-, 27 I. & N. Dec. 226 (A.G. 2018),

vacating 26 I. & N. Dec. 319 (BIA 2014); but see Lacsina

Pangilinan, 568 F.3d at 709. Given this enormous

workload, the idea that every unrepresented child in

immigration proceedings will have a full and fair hearing at

which the IJ develops the record strains credulity. Nor is

record development at a hearing the only role of an attorney.

See Jie Lin, 377 F.3d at 1024–25 (discussing how an

effective attorney would investigate factual and legal bases

for a claim before the hearing).

C.J.L.G. V. BARR 33

Third, parents are not a substitute for counsel in removal

proceedings. “It goes without saying that it is not in the

interest of minors or incompetents that they be represented

by non-attorneys. Where they have claims that require

adjudication, they are entitled to trained legal assistance so

their rights may be fully protected.” Johns v. Cty. of San

Diego, 114 F.3d 874, 876–77 (9th Cir. 1997) (quoting Osei-

Afriyie v. Medical College, 937 F.2d 876, 882–83 (3d. Cir.

1991) (refusing to allow a parent to bring an action on behalf

of his child without retaining a lawyer)); see also Franco-

Gonzales v. Holder, 828 F. Supp. 2d 1133, 1147 (C.D. Cal.

2011) (holding that the father of a mentally incompetent

immigration detainee could not serve as his representative at

a custody hearing because he “lacks adequate knowledge,

information, and experience in immigration law and

procedure.” (internal quotation omitted)). 7

7

The government argues that parents are helpful in court

proceedings. Acknowledging parents’ lack of knowledge of

immigration law here, however, does not conflict with other situations

where parents could be helpful to the proceedings. See e.g., Heller v.

Doe, 509 U.S. 312, 331 (1993) (recognizing that parents have

information valuable to the court in commitment proceedings for

mentally disabled people). Nor does acknowledging that parents may

not be knowledgeable of immigration law contradict cases cited by the

government concerning the rights of parents to make decisions about the

care and custody of their children. Troxel v. Granville, 530 U.S. 57, 66

(2000) (recognizing the right of a parent to make choices about certain

individuals’ visitation to her children); United States v. Casasola,

670 F.3d 1023, 1029 (9th Cir. 2012) (noting that parents may make

decisions about naturalizing their child). It also is bizarre to argue that a

parent representative serves the best interests of her child in a case like

CJ’s where the parent did not choose to represent her child, but was

forced to by indigence and did so only after expressing a desire for

counsel for her child.

34 C.J.L.G. V. BARR

Categorically, not all children in immigration court will

be with a parent, but CJ’s case demonstrates how even a

well-meaning parent cannot act as a lawyer. 8 Maria did not

understand all of the IJ’s instructions or questions. She

submitted an asylum application replete with errors and

garbled language. And she neither asked CJ questions to

develop the record, nor submitted any evidence other than

CJ’s birth certificate. The IJ never gave CJ the opportunity

to waive his right to counsel or weigh in on whether he

wanted Maria to represent him. See Jie Lin, 377 F.3d

at 1032–33 (looking for record evidence that the child in

deportation proceedings “knowingly and intelligently

waived his Fifth Amendment right to counsel, particularly in

light of the added protections he is due as a minor”). Further,

it is possible that the presence of a parent could diminish the

fairness of a hearing under circumstances where the child

was less willing to share critical information in the presence

of his parent, such as if the child faced persecution on the

basis of a sexual orientation that was contrary to his parent’s

8

Where a child accompanies a parent seeking refugee or asylee

status, they usually may apply for legal status together. In such

a situation, the child seeks “derivative” status of the parent. See

Dep’t of Homeland Sec’y, Form I-589 Instructions (2017); U.S.

Citizenship and Immigration Servs., Obtaining Derivative Refugee or

Asylee Status for Children, https://my.uscis.gov/exploremyoptions/

obtain_refugee_asylum_status_for_children (last updated Jan. 28,

2019). That was not the case here; CJ was not a derivative of his

mother’s asylum application. CJ was in a separate asylum proceeding

and filed his own application, with the help of his mother and possibly a

notario. See American Bar Ass’n, About Notario Fraud (July 19, 2018),

https://www.americanbar.org/groups/public_services/immigration/proje

cts_initiatives/fight-notario-fraud/about_notario_fraud/. I do not

consider the right to counsel for children who are eligible to apply for

asylum as the derivative of a parent or relative.

C.J.L.G. V. BARR 35

religious beliefs. See Amicus Curiae Brief of Former

Federal Immigration Judges at 17–18.

The presence of a parent at a child’s immigration

proceedings does not overcome the asymmetry of counsel

problem and is not an adequate substitute safeguard. See

Turner, 564 U.S. at 446–47.

***

At bottom, the risk of error in a removal proceeding

where an unrepresented child is seeking relief is high. A

child faces a maze of exceedingly complex laws in a foreign

country and foreign language. The proceedings are lopsided

because the government is represented. And the abstract

possibility of finding or affording private counsel, the

record-development duty of neutral IJs, and the chance that

a child will have an adult who does not understand

immigration law with him, all fail as procedural safeguards.

C.

The third Mathews factor requires consideration of the

burdens that requiring government-funded counsel for

indigent children may place on the administrative process.

“[C]onserving scarce fiscal and administrative resources is a

factor that must be weighed,” but “[f]inancial cost alone is

not a controlling weight in determining whether due process

requires a particular procedural safeguard prior to some

administrative decision.” Mathews, 424 U.S. at 348. The

government also has an interest in fair proceedings and

correct decisions. Lassiter, 452 U.S. at 27–28; Flores-

Chavez, 362 F.3d at 1162 (recognizing that it is a “great

benefit” to the government to have children attend their

removal proceedings rather than be ordered removed in

absentia).

36 C.J.L.G. V. BARR

Undoubtedly, providing counsel to immigrant children at

government expense would be costly. Notably, the

government already chooses to spend money on attorneys to

prosecute children in removal proceedings. An attorney

representing the government was present at all five of CJ’s

hearings in immigration court—and an earlier hearing for

which the IJ had not provided CJ notice. At each hearing,

there was a different government attorney. In other words,

the government has chosen to spend money on multiple

attorneys learning the case file of and prosecuting one

immigrant child. Further still, the government continued to

pour resources into arguing that CJ has no right to counsel in

a BIA appeal, argument before a three-judge panel of this

court, and argument before this en banc court, which, at the

end of the day, corrects a due process violation that may have

been prevented had CJ been provided counsel in

immigration court in the first instance.

Providing counsel would be costly to the government,

but the government already chooses to undertake similar

costs here. 9 It would also lead to fairer, more accurate

9

In addition to funding government prosecutors in removal

proceedings, the federal government also chooses to fund attorneys for

some immigrants in some proceedings. For example, the National

Qualified Representative Program provides representation to

unrepresented and detained mentally incompetent individuals and the

Baltimore Representation Initiative for Unaccompanied Children “funds

direct representation in immigration proceedings at the Baltimore

Immigration Court for unaccompanied children under age 16 and whose

cases are not joined with an adult’s (regardless of the child’s eligibility

for immigration relief).” Department of Justice, Federal Agency

Resources (Oct. 24, 2018), https://www.justice.gov/olp/federal-agency-

resources (describing federal grant programs “and other Federal

resources”). In J.E.F.M., we recognized projects “the Executive ha[d]

taken” to confront the lack of legal representation for children including

awarding $1.8 million to 100 legal fellows to represent children in

C.J.L.G. V. BARR 37

decisions—decisions that a broader public might view as

more legitimate. The third factor in the Mathews test

therefore points both directions. To the extent this factor

favors the government, it cannot balance the scales weighed

down with children’s liberty interests and a high risk of

error.

D.

Finally, the outcome of the Mathews analysis must be

weighed against a presumption that the right to appointed

counsel is only afforded to individuals whose “physical

liberty” is at risk if they lose. Lassiter, 452 U.S. at 26–27.

Here, that outcome, especially given the strength of the first

and second factors, overcomes the Lassiter presumption.

Sending child asylum-seekers back to hostile

environments where they may have experienced persecution

implicates a forceful liberty interest. In CJ’s case, for

example, his physical liberty is at risk—not because of

incarceration—but because of the death threat and other

threats of violence made against him. CJ credibly testified

that gang members pointed a pistol to his forehead, said he

had one day to decide whether to join them, and that if he

told his mother—as he evidently did before fleeing with

her—they would kill him.

Moreover, the disparity of outcomes between children

who are represented and those who are not represents an

unconscionable risk of error. As diligent as IJs are, they

cannot be the children’s advocates and, as former IJs have

removal proceedings through the Justice AmeriCorps program. 837 F.3d

at 1040–41 (citation omitted).

38 C.J.L.G. V. BARR

said, there is no substitute for counsel. See Amicus Curiae

Brief of Former Federal Immigration Judges at 12, 16.

IV.

Children do not need to be “left to thread their way alone

through the labyrinthine maze of immigration laws.”

J.E.F.M., 837 F.3d at 1040 (McKeown, J., specially

concurring). In fact, due process prohibits this reality. I

would recognize a due process right to counsel for indigent

children in removal proceedings. Based on the record

presented, I would limit the class of indigent children under

18 who are required appointed counsel to those who are

seeking asylum, withholding of removal, CAT, or another

form of relief for which they are apparently eligible, such as

SIJ status. As the Supreme Court said when recognizing a

right to appointed counsel for children in another context,

“[u]nder our Constitution, the condition of being a boy does

not justify a kangaroo court.” In re Gault, 387 U.S. at 28.

BERZON, Circuit Judge, concurring in part and concurring

in the judgment:

I concur in the majority’s opinion and also join Judge

Paez’s excellent concurrence in full. I wish only to note,

once again, that consideration of the right to counsel

question for minors in removal proceedings has been

unnecessarily hindered by this court’s decisions in an earlier

case. See J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016),

reh’g en banc denied, 908 F.3d 1157 (9th Cir. 2018)

(Berzon, J., dissenting from denial of rehearing en banc).

J.E.F.M. held, erroneously in my view, that the right to

counsel question must be considered in a petition for review

C.J.L.G. V. BARR 39

from an individual child’s removal proceedings, such as this

one, and not through a class action filed in the district court.

837 F.3d at 1038. But as this case amply demonstrates, a

more developed factual record than is available here—where

C.J. had no counsel in his removal proceedings and where

the Immigration Judge and the Board of Immigration

Appeals had no jurisdiction over the constitutional due

process question, see Padilla-Padilla v. Gonzales, 463 F.3d

972, 977 (9th Cir. 2006)—would have given us more

information on which to decide whether minors in removal

proceedings have a right to counsel. Such a record would

also have aided in deciding whether that right is universal or,

as Judge Paez suggests, may be limited to certain categories

of cases, based on such criteria as the claims raised, the age

of the child, or whether the child is accompanied or not.

We are not answering any of those questions in this en

banc proceeding, quite possibly because of qualms

concerning fashioning the precise parameters of a right to

counsel for minors in a single case. So we shut one door to

the courthouse in J.E.F.M. on the promise of keeping

another open, only to duck out of that door—for now—as

well.

CALLAHAN, Circuit Judge, joined by IKUTA, Circuit

Judge, dissenting:

The majority commendably decides this appeal on a

narrow issue. Unfortunately, it requires more of the

Immigration Judge (IJ) than is required or appropriate, and

accordingly, I must dissent.

As noted by the majority, an IJ is required to inform an

alien seeking relief from removal of his “apparent eligibility

40 C.J.L.G. V. BARR

to apply for any benefits enumerated in this chapter.”

8 C.F.R. § 1240.11(a)(2). The majority then concludes that

because the “information presented during CJ’s proceedings

made it reasonably plausible that he could establish

eligibility for SIJ status,” Maj. Op. at 12, the IJ failed to

provide “the required advice,” and the appropriate remedy is

to grant the petition for review, reverse the BIA’s dismissal

of the appeal, and remand for a new hearing. See Maj Op. at

15. The asserted remedy flows from the premise, but the

premise is a step too far. I would hold that the information

presented at CJ’s hearing before the IJ did not create a

reasonable possibility that CJ qualified for relief.

An IJ “shall 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

application during the hearing, in accordance with the

provisions of § 1240.8(d).” 8 C.F.R. § 1240.11(a)(2). 1 We

1

It is far from clear that “SIJ status” (which the majority uses to

refer to the criteria required for an alien to be deemed a “special

immigrant” under 8 C.F.R. § 204.11 and U.S.C. § 1101(a)(27)(J)),

constitutes one “of the benefits enumerated in this chapter” for purposes

of 8 C.F.R. § 1240.11(a)(2). The regulation at issue, 8 C.F.R. § 1240.11,

is contained in Chapter V, “Executive Office for Immigration Review,”

which establishes a number of immigration benefits, including asylum,

withholding of removal, adjustment of status, and temporary protected

status. However, the regulatory section that explains special immigrant

status, 8 C.F.R. § 204.11, is contained in Chapter I, Department of

Homeland Security. In other words, special immigrant status is not a

benefit of the chapter at issue in § 1240.11(a)(2).

Moreover, special immigrant status is not analogous to the

immigration benefits described in Chapter V. Each of those benefits are

forms of relief from removal. By contrast, a determination that an alien

qualifies for special immigrant status provides no relief itself. Rather,

the alien who qualifies for SIJ status can then seek relief from removal

C.J.L.G. V. BARR 41

have held that this is a mandatory duty: “if an IJ fails to

advise an alien of an avenue of relief potentially available to

him, we will remand for consideration of the alien’s

eligibility for that relief.” Moran-Enriquez v. INS, 884 F.2d

420, 423 (9th Cir. 1989); United States v. Hernandez,

163 F.3d 559, 563 (9th Cir. 1998) (holding that “[t]his

provision is mandatory”). However,

IJs are not expected to be clairvoyant; the

record before them must fairly raise the issue:

“‘Until the [alien] himself or some other

person puts information before the judge that

makes such eligibility “apparent,” this duty

does not come into play.’” Bu Roe v. INS,

771 F.2d 1328, 1334 (9th Cir.1985) (quoting

United States v. Barraza-Leon, 575 F.2d 218,

222 (9th Cir. 1978)).

Moran-Enriquez, 884 F.2d at 423. Moreover, as we have

explained, “an IJ’s duty is limited to informing an alien of a

reasonable possibility that the alien is eligible for relief at

the time of the hearing,” or, in some narrow circumstances,

where the alien may become eligible imminently. United

States v. Lopez-Velasquez, 629 F.3d 894, 895 (9th Cir.

2010).

The majority assumes that § 1240.11(a)(2) applies to SIJ

status and then asserts that a failure to advise about SIJ status

can only be excused when the petitioner’s eligibility is not

by applying for adjustment of status. 8 U.S.C. 1255(a). The alien can

obtain relief only if “the alien is eligible to receive an immigrant visa and

is admissible to the United States for permanent residence, and an

immigrant visa is immediately available to him at the time his application

is filed.”

42 C.J.L.G. V. BARR

“plausible.” They then opine that “Maria’s comment that

CJ’s father left her ‘a long time ago,’ and CJ’s statement that

he had no paternal contact for ‘many years’ demonstrated

that reunification with one parent might be impossible ‘due

to . . . abandonment.’” Maj. Op. at 12. Perhaps reunification

with CJ’s father was extremely unlikely, but that was not the

issue before the IJ.

Reasonableness or plausibility should be considered in a

particular context. 2 The applicable statute, 8 U.S.C.

1101(a)(27)(J)(i), sets forth three requirements that CJ

cannot reasonably or plausibly meet. First, the statute

requires that the petitioner “has been declared dependent on

a juvenile court located in the United States or whom such a

court has legally committed to, or placed under the custody

2

The majority’s invocation of the term “plausible” from our opinion

in United States v. Rojas-Pedroza, 716 F.3d 1253, 1265–67 (9th Cir.

2013), should not be read as an expansion of the “reasonable possibility”

standard set forth in Moran-Enriquez, 884 F.3d at 423. In Rojas-

Pedroza, we explained that the standard for relief due to an IJ’s failure

to inform a petitioner of apparent eligibility for relief has two steps: first,

is the petitioner’s eligibility of relief “apparent”; and second, was the

petitioner prejudiced by the failure? Rojas-Pedroza, 716 F.3d 1262–63.

We reiterated our prior statement that “apparent eligibility” means

“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.” Id.

(quoting United States v. Lopez-Velasquez, 629 F.3d at 897).

Recognizing some ambiguity as to whether Rojas “had apparent

eligibility for relief,” we focused on the second component: prejudice.

In the context of whether Rojas had established a plausible case for

discretionary relief by the IJ, we concluded in light of his immigration

record and prior convictions he had “failed to carry his burden of

establishing plausible grounds for relief.” Rojas-Pedroza, 716 F.3d

at 1266–67. Thus, nothing in Rojas-Pedroza suggests that a petitioner

does not have to show a “reasonable possibility” that he is apparently

eligible for relief.

C.J.L.G. V. BARR 43

of, an agency or department of a State, or an individual or

entity appointed by a State or juvenile court located in the

United States.” Id. (emphasis added). Here, at the time of

his immigration hearing, CJ had not been declared a

dependent by any court in the United States or placed in

custody by any court. Indeed, he had not even commenced

any such proceeding in any court.

Second, the statute, requires that the juvenile’s

“reunification with 1 or both of the immigrant’s parents is

not viable due to abuse, neglect, abandonment, or a similar

basis found under State law.” 8 U.S.C. § 1101(a)(27)(J)(i).

If this statute is read to require a showing that reunification

with neither parent is viable, then there was no possibility of

CJ meeting the requirement. He has always been in his

mother’s custody and care. If the statute is read to require

only a showing that reunification with one of two parents is

not viable, then CJ could meet this requirement. However,

he still could not have shown that any court had declared him

a dependent.

Third, the statute requires that “the Secretary of

Homeland Security consents to the grant of special

immigrant juvenile status.” Id. § 1101(a)(27)(J). Although

neither the statute nor the regulations provides much

guidance on what is required for consent, the USCIS has

promulgated a policy manual, which provides that before

consenting, USCIS must review the juvenile court order to

conclude that the request for SIJ classification is bona fide.

See USCIS Policy Manual, vol. 6, pt. J, ch. 2, D.5. (May 23,

2018); 76 Fed. Reg. 54978, 54985 (Sept. 6, 2011). The

USCIS will not give its consent if the juvenile court order

was sought primarily or solely to obtain an immigration

benefit. See USCIS Policy Manual, vol. 6, pt. J, ch. 2, D.5.

Here, the record indicates that the alien’s mother would seek

44 C.J.L.G. V. BARR

to have CJ placed under her custody solely for the purpose

of seeking SIJ status and adjustment of status to avoid

deportation.

The majority’s application of the reasonable or plausible

standard overlooks the statute’s three requirements. First,

the majority overlooks the requirement that to be eligible for

SIJ status, a state court must have declared the applicant a

dependent, and thus imposes an unreasonable burden on IJs.

The majority tasks the IJ with predicting not whether it is

plausible that were CJ to apply to a state court he might

obtain relief, but whether it was “reasonably possible at the

time of CJ’s hearing that he could obtain SIJ status.” Maj.

Op. at 13. But this would require that IJs have an intimate

knowledge of state law. Moreover, in CJ’s case—aside from

immigration proceedings—there was no apparent need or

reason for CJ to invoke any state’s dependency proceedings

as he was at all times in his mother’s custody and care. 3

Indeed, at the time of CJ’s hearing before the IJ it was

not clear whether California courts would consider a child’s

request for SIJ findings. It was not until 2018 that the

California Supreme Court clarified that “a conclusion that a

proceeding is primarily motivated by a desire to secure SIJ

3

The fact that CJ has subsequently obtained a state-court order and

has filed a petition with the United States Citizenship and Immigration

Services speaks well of his attorneys. But his success does not change

the fact that when CJ appeared before the IJ with his mother, there was

no reasonable possibility, under the controlling legislation, that he was

eligible for immigration relief.

C.J.L.G. V. BARR 45

findings is not a ground for declining to issue the findings.”

Bianka M. v. Superior Court, 5 Cal. 5th 1004, 1025 (2018). 4

The majority also overlooks the consent requirement.

The state court’s dependency determination is not

controlling. Even after obtaining such an order, the alien

must file a petition with the USCIS, and the Secretary of

Homeland Security must consent to the grant of special

immigrant juvenile status. As noted above, it is far from

clear that the Secretary would give such consent.

Finally, the majority overlooks the fact that even after

obtaining such consent, the alien must then seek relief from

removal by applying for adjustment of status. 8 U.S.C.

§ 1255(a). The alien is not eligible for such relief unless “an

immigrant visa is immediately available to [the petitioner] at

the time his application is filed.” The record does not show

that an immigrant visa is available to CJ. And even then, the

IJ must determine whether to grant relief as a matter of

discretion. See id.

In sum, the IJ was required to inform CJ only of his

“apparent eligibility to apply for any benefits enumerated in

this chapter,” 8 C.F.R. § 1240.11(a)(2), “at the time of the

hearing.” Lopez-Velasquez, 629 F.3d at 895. Even assuming

that SIJ status is a “benefit” contemplated by this regulation,

there was no such “apparent eligibility” at the time of the

hearing here. CJ had not commenced any proceeding in a

juvenile court, nor demonstrated any need or reason to do so.

Nor was there any evidence indicating whether the Secretary

4

The California Supreme Court further noted that “the Legislature

in 2016 amended Code of Civil Procedure section 155 to make clear that

a court must issue findings relevant to SIJ status, if factually supported,

regardless of its assessment of the child’s perceived motivations in

invoking the court’s jurisdiction.” Id. at 1024.

46 C.J.L.G. V. BARR

of Homeland Security would consent to an application by

CJ, or that a visa was immediately available. In sum, at the

time of the hearing, CJ had no apparent eligibility for

benefits.

The majority’s empathy for CJ is understandable, but

does not, in my mind, justify defining “apparent eligibility”

so broadly as to require IJs to advise petitioners of potential

avenues of relief for which they are not yet (and may never

be) statutorily eligible. Accordingly, I dissent.