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J. E. F.M. v. Whitaker

United States Court of Appeals, Ninth Circuit

November 13, 2018

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,
v.
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.

          D.C. No. 2:14-cv-01026-TSZ

          Before: Andrew J. Kleinfeld, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.

         SUMMARY [*]

         Immigration

         In a 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 banc.

         Dissenting 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.

         Judge 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 claims.

          ORDER

         The panel votes to deny the petition for rehearing.

         The 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.

         The 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:

         The 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 107 (1985)).

         The class of children in this case do not challenge any orders of removal or ask the district court to grant them relief from removal.[1] Instead, they maintain that they have a due process and statutory right to appointed counsel in the removal proceedings they face.

         The 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.[2] 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.

         Contrary 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.

         I.

         The 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.

         A.

         The panel's opinion relies on 8 U.S.C. § 1252(b)(9), which provides:

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.

         But the panel ignores that § 1252(b)(9) is a sub-provision of ...


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