CJLG v. Sessions, 880 F.3d 1122 (9th Cir. 2018): Obligation of IJ to Inform of Possible Eligibility for SIJ Classification

 

Introduction: C.J.L.G. v. Sessions, 880 F.3d 1122,1147-50 (9th Cir. 2018)

On January 29, 2018, the United States Court of Appeals for the Ninth Circuit issued a published decision in C.J.L.G. v. Sessions, 880 F.3d 1122 (9th Cir. 2018) [PDF version]. The case concerned a minor alien from Honduras who appealed from the Board of Immigration Appeals' (BIA's) affirmation of an Immigration Judge's decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The main thrust of the alien's appeal was that he had been deprived of his right to counsel appointed at government expense. The Ninth Circuit panel ultimately rejected all of the alien's arguments and denied the petition for review.

In this article, we will focus specifically on a different aspect of the appeal: the claim that the alien's due process rights were violated because the Immigration Judge's failed to inform him of his possible eligibility for special immigrant juvenile classification. We will examine what this means going forward for individuals in immigration proceedings who may be theoretically eligible for special immigrant juvenile classification. Those who are interested in learning about the other aspects of the decision may consult the text of the decision itself.

Factual and Procedural History: 880 F.3d at 1129-32

Although we are only examining one small part of the decision, it is important to first establish the outline of the factual and procedural history of the case.

The petitioner (“C.J.”) was a native and citizen of Honduras. On June 21, 2014, he arrived along with his mother in the United States without inspection. C.J. was 13 years old at the time of his arrival. Four days after arriving in the United States, C.J. and his mother were apprehended and his mother served with his notice to appear, which she signed on his behalf.

C.J.'s mother represented him in removal proceedings after she had failed to obtain private counsel, including on his application for asylum. The Immigration Judge determined that C.J. was removable for having entered the United States without being inspected or paroled and denied his applications for asylum, withholding of removal, and CAT relief. The Immigration Judge considered C.J. to be credible, but ultimately concluded that he lacked an objectively reasonable basis for the relief sought. On appeal, the BIA affirmed the Immigration Judge's decision.

This time with counsel, C.J. appealed from the Board's denial to the Ninth Circuit. C.J. argued that his constitutional due process rights were violated during the immigration proceedings. In this article, we will focus specifically on his argument that his due process rights were violated by the Immigration Judge's failure to inform him of his possible eligibility for special immigrant juvenile classification. As we noted in the introduction, the Ninth Circuit ultimately rejected all of C.J.'s arguments and denied the petition for review.

Analysis and Conclusions of SIJ Notification Claims: 880 F.3d at 1132-33 and 1147-50

Under long-established precedent, aliens in removal proceedings are entitled to constitutional due process. The Supreme Court of the United States held that due process protections adhere to aliens, whether they are in the United States legally or illegally, in Mathews v. Diaz, 426 U.S. 67, 77, 96 (1976) [PDF version]. This applies even though the protections for aliens are less than those for citizens and the level of protection may vary depending on the alien's immigration status. Id. at 78. In Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1160 (9th Cir. 2004) [PDF version], the Ninth Circuit held that aliens minors in removal proceedings are entitled to the Fifth Amendment's due process guarantees (internal citation omitted) [PDF version]. The Immigration and Nationality Act (INA) and its implementing regulation set forth specific protections for alien minors in removal proceedings.

In addition to other claims, C.J. argued that his due process rights were violated because the Immigration Judge did not inform him of his possible eligibility for special immigrant juvenile classification.

This claim hinged on the regulatory provision at 8 C.F.R. 1240.11(a)(2), which requires immigration judges 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…” In United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (en banc) [PDF version], the full Ninth Circuit held that “apparent eligibility” is demonstrated “where the record, fairly reviewed by an individual who is intimately familiar with the immigration laws-as [immigration judges] no doubt are-raises a reasonable possibility that the petitioner may be eligible for relief.” (Emphasis added.) The Lopez-Velasquez Ninth Circuit quoted from the prior Ninth Circuit decision in Moran-Enriquez v. INS, 884 F.2d 420, 422 (9th Cir. 1989) [PDF version], in stating that this duty is triggered when the alien “or some other person puts information before the judge that makes such eligibility apparent.” (Emphasis added.) Where the record demonstrates a factual basis for relief for the alien, an immigration judge's failure to advise the alien of his or her “apparent eligibility” for relief constitutes a due process violation under the law of the Ninth Circuit, as it recently held in United States v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013) [PDF version].1

Special immigrant juvenile classification provides certain alien minors who apply when they are under the age of 21 a path to lawful permanent resident status. We discuss the eligibility requirements [see article] and adjudication process [see article] on site in our full section on special immigrant juveniles [see category]. The Ninth Circuit panel noted eligibility for the classification requires that an alien minor must first obtain a qualifying court order from a state juvenile court in order to apply for special immigrant juvenile classification with the United States Citizenship and Immigration Services (USCIS). Once the minor has obtained a qualifying state court order, he or she may apply for special immigrant juvenile classification under section 101(a)(27)(J) of the INA. The Ninth Circuit noted that even if the minor is classified as a special immigrant juvenile, the immigration judge would still have the discretion to deny the minor's subsequent application for adjustment of status and order him or her removed.

Before the Ninth Circuit, C.J. argued that the information that existed in his removal hearing “raised the reasonable possibility that he may be eligible for [special immigrant juvenile classification].” Specifically, he took the position that the facts presented in the hearing before the Immigration Judge indicated that a state court would have deemed him dependent on the juvenile court, thus providing him with the basis for seeking relief as a special immigrant juvenile

C.J. had testified that he had not seen or heard from his father in many years and that his father had left his mother “a long time ago.” This testimony, he argued, established that reunification with at least one parent was impossible. Furthermore, because he had credibly testified to death threats he had received from gangs in Honduras, a state court would likely determine that it was not in his best interest to be returned to Honduras. Furthermore, linking to his other claims on appeal, C.J. asserted “that access to [special immigrant juvenile] status is only meaningful if [the Ninth Circuit] appoints him counsel to shepherd his case through the California [state] courts.” (Ninth Circuit description of his claims.)

The Ninth Circuit, however, found unpersuasive C.J.'s contention that his eligibility for special immigrant juvenile classification was apparent in the removal hearing. Specifically, the Ninth Circuit noted that C.J. lacked a state court order deeming him dependent on the juvenile court, which is required for special immigrant juvenile classification. For this reason, the Ninth Circuit explained that the Immigration Judge could not have granted him special immigrant juvenile status because he was not “apparent[ly] eligib[le]” for relief. Accordingly, the Ninth Circuit concluded that, under its existing case-law, the Immigration Judge's duty to inform was not triggered.

The Ninth Circuit stated that “[h]ad C.J. secured the requisite state court determinations and revealed that development in immigration proceeding[s], then the [Immigration Judge] would have been obliged to inform him of his 'apparent eligibility' to seek [special immigrant juvenile] status.” However, the Court noted that C.J. had not even initiated such a process in state court, much less obtained the requisite state court determinations. It added that the Immigration Judge was “not required to parse the record for evidence of a petitioner's potential eligibility to pursue an independent state court action.” The panel cited to Ninth Circuit precedent in Moran-Enriquez, 884 F.2d at 422, wherein the Court stated that “[immigration judges] are not expected to be clairvoyant” when informing an alien of his or her options for relief.

The Ninth Circuit went further with regard to the facts presented in the instant case, stating that even if it were to have concluded that an immigration judge must “advise an alien minor of immigration relief that may be available based on hypothetical findings by a state court,” C.J.'s possible eligibility for special immigrant juvenile classification would have still not been “apparent.” The Ninth Circuit noted that C.J. remained in the custody of his mother despite the fact that his father had abandoned the family long before. Primarily for this reason, the Ninth Circuit stated that C.J.'s assumption that a state court would have made the requisite determinations finding him dependent on the juvenile court and thereby qualifying him for special immigrant juvenile classification were “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.”

The Ninth Circuit held that its conclusions “necessarily dispose[d] of C.J.'s claimed right to court-appointed counsel at government expense for purposes of pursuing the requisite state court action.”

Conclusion

In the instant case, the Ninth Circuit held that an immigration judge does not have an obligation to inform a minor in removal proceedings of his or her possible eligibility for special immigrant juvenile classification if the minor does not have a qualifying state court order. This is because such a court order is required in order to qualify an alien for special immigrant juvenile classification. Notably, the petitioner in the instant case had not even initiated a process to obtain a state court order, which the Ninth Circuit noted in its section questioning whether his case for relief would have been eligible to a state court had he pursued it.

The case is noteworthy in light of the fact that the Ninth Circuit has held, contrarily to virtually all circuits except for the Second, that aliens have due process rights to be informed of possible eligibility for certain forms of discretionary relief under specified circumstances. Beyond the due process issue, however, the decision interprets a regulatory provision that is applicable to all immigration judges.

The case highlights the importance of consulting with an experienced immigration attorney before immigration proceedings. An experienced immigration attorney may examine an individual's case and determine what forms of relief he or she may be eligible for. Regardless of whether the individual in the instant case would have been able to obtain a court order that could form the basis for his eligibility for special immigrant juvenile classification, the Ninth Circuit concluded that the theoretical possibility was not grounds for granting his petition for review due in large part to the fact that he had never initiated the process in the first place.

To learn more about related issues, please see our website's growing sections on special immigrant juvenile classification [see category] and removal and deportation defense [see category].

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1. Here, it is important to note that the majority of the circuit courts (Third, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh) have concluded that aliens do not have due process rights to be informed of possible eligibility for discretionary relief. For a list of the pertinent cases and citations, please see the decision of the United States Court of Appeals for the Sixth Circuit on the issue in United States v. Estrada, 876 F.3d 885, 888 (6th Cir. 2017) [PDF version]. The only circuit which the Sixth Circuit noted had agreed with the Ninth on the issue in a published decision was the United States Court of Appeals for the Second Circuit, which has jurisdiction over cases arising in New York, Connecticut, and Vermont. The relevant Second Circuit decision was issued in United States v. Copeland, 376 F.3d 61, 71 (2d Cir. 2004) [PDF version]. The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington (State), Guam, and the Northern Mariana Islands. Nevertheless, even granting disagreement on whether aliens have due process rights to be notified of possible eligibility for relief, the Federal government is still obligated to follow its own regulations. In this case, the Department of Justice (DOJ) regulations require immigration judges to inform an alien of his or her apparent eligibility to apply for benefits in immigration proceedings.