SAN FRANCISCO (CN) – Calling him a “sympathetic” petitioner, a Ninth Circuit appellate panel nonetheless upheld the deportation of a Honduran boy on Monday, ruling that children brought illegally to the United States by their parents do not have a constitutional right to a taxpayer-funded, court-appointed attorney in immigration proceedings.
“We are mindful that our decision means that, absent a reprieve offered by the government, C.J. will likely be returned to a country in turmoil,” Judge Consuelo Callahan wrote for the panel. “We sympathize with his personal plight, as C.J. appears to have displayed courage in the face of serious adversity. But while ‘our hearts are with [C.J.],’ the law does not support his requested relief.”
C.J., who was 13 years old when he and his mother Maria arrived in the United States in 2014, was ordered deported by an immigration judge at an immigration hearing. Maria told the judge she couldn’t afford an attorney, and the judge gave her several continuances in order to secure counsel.
Maria was still unable to find an affordable lawyer, and the judge said she had to proceed. In denying his application, the judge found that although C.J. and his mother both said he feared returning to Honduras because of gang violence, it wasn’t enough to grant him asylum.
C.J. testified in immigration court that he rebuffed recruitment attempts from the Maras gang three times, and eventually they held a gun to his head and threatened to kill his mother, aunt and uncles. But the judge said C.J. failed to present evidence that he had been persecuted, or feared persecution if he returned to Honduras, a requirement to establish eligibility for asylum.
On Monday, the Ninth Circuit upheld the Board of Immigration Appeals’ decision finding C.J.’s due process rights were not violated when he wasn’t given free legal counsel and that the immigration judge had given him a fair hearing.
The panel said the immigration judge had delayed the case for over a year so Maria could retain counsel for her son, and also noted that the Department of Homeland Security had given her a list of pro bono attorneys.
The judges said while C.J. faced at least “one-tenth possibility of persecution if he returns to Honduras,” the immigration judge still gave him a full and fair hearing. “To be sure, C.J.’s removal proceeding was not a paragon of procedural decorum,” Callahan wrote, adding that the judge should have explained to C.J.’s mother the standard for asylum.
“Even so, C.J. fails to show that the additional process he seeks—government-funded, court-appointed counsel—is necessary, either in his case or for alien minors as a class.”
She added, “A litigant in C.J.’s position must show that, not only was he deprived of a full and fair hearing, but that had the [immigration judge] performed her duty to provide one, the Constitution would still entitle him to court-appointed counsel. C.J. falls well short of accomplishing this Herculean task because he fails to show that the process Congress prescribed is categorically inadequate to vindicate an alien minor’s right to due process.”
The panel also found that mandating free court-appointed lawyers in immigration proceedings “could further strain an already overextended immigration system.”
Callahan was joined by Judge John Owens and U.S. District Judge David Faber, sitting by designation.
In a separate concurrence, Owens said their narrow ruling does not discuss whether the due process clause applies to unaccompanied minors, writing, “That is a different question that could lead to a different answer.”
The ACLU did not respond to a request for comment prior to publication.