J. E. F.M., a minor, by and through his Next Friend, Bob Ekblad; J. F.M., a minor, by and through his Next Friend Bob Ekblad; D. G. F.M., a minor, by and through her Next Friend, Bob Ekblad; F. L.B., a minor, by and through his Next Friend, Casey Trupin; G. D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J. E. V. G.; A. E. G.E.; G. J. C.P., Plaintiffs-Appellees/ Cross-Appellants,
Matthew Whitaker, Acting Attorney General; Juan P. Osuna, Director, Executive Office for Immigration Review; Jeh Charles Johnson, Secretary, Homeland Security; Thomas S. Winkowski, Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement; Nathalie R. Asher, Field Office Director, ICE ERO; v.
Before: Andrew J. Kleinfeld, M. Margaret McKeown, and Milan
D. Smith, Jr., Circuit Judges.
case in which the panel concluded that the district court
lacked jurisdiction to review claims brought by a class of
children who claim a due process and statutory right to
appointed counsel in removal proceedings, the panel filed an
order denying a petition for panel rehearing and rehearing en
from the denial of rehearing en banc, Judge Berzon, joined by
Judges Wardlaw, W. Fletcher, Paez, and Murguia, wrote that
the case should have been reheard en banc to correct the
panel's errors in concluding that the relevant statutes
do not allow the children to raise their right-to-counsel
claim in an affirmative habeas action.
Berzon wrote that the plain language of the statute, the
circuit's case law, and Supreme Court precedent all
indicate that 8 U.S.C. § 1252(b)(9) bars district court
review of a claim only where an order of removal has
been entered and an individual seeks relief from that order.
Because the immigration proceedings in this case have not
reached that stage, Judge Berzon concluded that there is no
statutory barrier to allowing this case to go forward. Judge
Berzon also wrote that the panel's expansive reading of
§ 1252(b)(9) severely hampers meaningful judicial review
of the children's right-to-counsel claims and, therefore,
disregards the crucial rule of statutory interpretation that
jurisdiction- channeling provisions should not be interpreted
to result in the practical equivalent of a total denial of
judicial review of generic constitutional and statutory
panel votes to deny the petition for rehearing.
full court has been advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
petition for panel rehearing and the petition for rehearing
en banc are denied.
BERZON, Circuit Judge, with whom WARDLAW, W. FLETCHER, PAEZ,
and MURGUIA, Circuit Judges, join, dissenting from the denial
of rehearing en banc:
plaintiffs in this case are a class of thousands of
unrepresented children the United States seeks to expel from
the country. Many arrived here after fleeing violence and
persecution, and many could be eligible for asylum, Special
Immigrant Juvenile Status ("SIJS"), or other
protections. Some arrived accompanied by an adult; others did
not. To obtain relief, they all will be required to represent
themselves against trained government attorneys in
adversarial proceedings involving the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1101
et seq., a code of law "second only to the
Internal Revenue Code in complexity."
Castro-O'Ryan v. INS, 847 F.2d 1307, 1312 (9th
Cir. 1987) (quoting E. Hull, Without Justice For All
class of children in this case do not challenge any orders of
removal or ask the district court to grant them relief from
removal. Instead, they maintain that they have a
due process and statutory right to appointed counsel in the
removal proceedings they face.
panel did not allow the merits of their right-to-counsel
claim to be heard. Instead, it shut the courthouse doors on
them, broadly proclaiming that 8 U.S.C. § 1252(b)(9)
strips district courts of jurisdiction to hear
"any issue-whether legal or factual-arising
from any removal-related activity."
J.E.F.M., 837 F.3d at 1031. According to the panel,
the children's right-to-counsel claims can be raised only
in individual petitions for review of final orders of removal
("PFR") to the appropriate circuit court.
Id. The issue in this case then, is
not the merits of the right-to-counsel claim. The
issue is only how and where such a claim
may be raised.
to the panel's conclusion, the relevant statutes do allow
the children to raise their right-to-counsel claim in an
affirmative habeas action. That procedure, unlike appellate
review of an individual removal order, provides the
opportunity for full litigation of their claim, including:
(1) litigation through a class action rather than by each
child individually; (2) representation of the class for
purposes of the right-to-counsel question by public interest
organizations that lack the capacity to represent each class
member individually; and (3) development of a record
regarding the need for and value of attorneys that cannot be
developed in individual removal proceedings. We should have
reheard this case en banc to correct the panel's errors
and given these children-and others potentially affected by
the panel's rigid procedural ruling-their day in court.
plain language of the statute, our circuit's case law,
and Supreme Court precedent all indicate that 8 U.S.C. §
1252(b)(9) bars district court review of a claim
only where an order of removal has been entered and
an individual seeks relief from that order. Because the
immigration proceedings involving the class of children here
have not reached that stage, there is no statutory barrier to
allowing this case to go forward.
panel's opinion relies on 8 U.S.C. § 1252(b)(9),
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and
statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States
under this subchapter shall be available only in judicial
review of a final order under this section. Except as
otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under section 2241 of Title 28
or any other habeas corpus provision, by section 1361 or 1651
of such title, or by any other provision of law (statutory or
nonstatutory), to review such an order or such questions of
law or fact.
panel ignores that § 1252(b)(9) is a sub-provision of