Courts Out of Fight to Get Lawyers for Immigrant Kids

SAN FRANCISCO (CN) — A Ninth Circuit panel ruled Tuesday that courts do not have jurisdiction to decide whether immigrant children have a right to government-appointed counsel in deportation hearings.

The ACLU Immigrants' Rights Project and several advocacy groups representing a class of immigrant minors sued the government in July 2014, claiming violations of the Fifth Amendment's due process clause and the Immigration and Nationality Act's provision requiring a "full and fair hearing" before immigration judges.

According to the groups, the children — at least five of whom were detained at the U.S.-Mexico border — can't get a full and fair hearing because they are just kids who can't pay for legal representation or successfully argue for themselves against the government in removal hearings.

A federal judge in Washington state found he lacked jurisdiction to hear the minors' statutory claims for court-appointed counsel, but ruled that an exception under the Immigration and Nationality Act's exclusive review process gave him authority over the constitutional claims of right to counsel.

The Ninth Circuit's three-judge panel agreed that the federal judge lacked jurisdiction over the statutory claims, finding that because the right-to-counsel claims "arise from" removal proceedings, they must be raised through the administrative petition for review process under federal law.

But the panel reversed the lower court's determination that it had jurisdiction over the constitutional claims for the same reason.

"We conclude that federal immigration law channels review of all claims, including policies-and-practices challenges, through the petition-for-review process whenever they 'arise from' removal proceedings," Circuit Judge M. Margaret McKeown wrote for the panel. "Because the children's right-to-counsel claims arise from their removal proceedings, they can only raise those claims through the petition-for-review process."

Despite this, the panel also said its decision was not based on the merits of the immigrants' plight.

"Our answer to this jurisdictional query is no," McKeown said. "We underscore that we address only the jurisdictional issue, not the merits of the claims. Congress has clearly provided that all claims — whether statutory or constitutional — that 'arise from' immigration removal proceedings can only be brought through the petition for review process in the federal courts of appeals."

She added: "Despite the gravity of their claims, the minors cannot bypass the immigration courts and proceed directly to district court. Instead, they must exhaust the administrative process before they can access the federal courts."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit