9th Circuit Dumps Right-to-Counsel Lawsuit, Only Feels A Little Bad About It

September, 27, 2016 (Fault Lines) – Last week was both very good and very bad for Ahilan Arulanantham for essentially the same reason. On Wednesday, he lost, as lead counsel, a case in the Ninth Circuit called J.E.F.M. v. Lynch. More on that later. Just the next day, he won a MacArthur Foundation “Genius” Grant for his work in J.E.F.M. At least that has to take the sting out of things a little bit.

There is a reason that J.E.F.M. drew the attention of the MacArthur Foundation. As many lawyers are already aware, and as probably most reasonable people are horrified to learn, no one has a right to a free lawyer in immigration proceedings. This includes children, even when they are unaccompanied by an adult. It is the default for the Government to detain a three-year-old who speaks no English, bring them in front of an Immigration Judge (IJ), who is an employee of, and answerable to, the Executive, and expect that child to defend himself pro se against removal, all the while with another attorney, also employed by the Executive, trying to convince the IJ to order the kid removed post haste.

Arulanantham is not a monster, so he thought that system should maybe be changed, and filed a class action suit in federal court. This wasn’t a claim the plaintiffs raised in a removal proceedings itself, but was an action seeking to get a judgment that all such people should get free lawyers. A district court decided that it could at least decide the case, and the government filed an interlocutory appeal.

Enter the Ninth Circuit, which unanimously held that federal courts could not even hear the case and dismissed the whole thing. The Court held that to be able to ask for a free lawyer, a child first has to go through proper administrative channels within the Immigration Courts. The Court was very clear to say that it didn’t rule one way or the other about whether these kids should get free lawyers.

That’s not so bad, right? Except, in the way the Court got to its conclusion, it is almost certain that the problem will never even be considered by the federal courts in any meaningful way.

Writing for the majority, Judge McKeown pretty easily nixed the plaintiffs’ method of getting to court. They had filed a civil lawsuit in federal court, but the federal immigration statute says all claims asking for a review of a “final order” of removal, “including interpretation and application of constitutional and statutory provisions” that are tied to removal proceedings, must go through the administrative review process within immigration court. 8 U.S.C § 1252(b)(9). This part of the opinion is most certainly right, and, according to the Court, the kids did “not seriously dispute” this conclusion.

The plaintiffs instead tried to get around the statute, saying that the application of the statute “creates a Catch-22 that effectively bars all judicial review of their claim.” They pointed to an earlier case in the Supreme Court, McNary v. Haitian Refugee Center, Inc., that had appeared to create something like an equitable exception to the jurisdictional limits in really, really, unfair circumstances. The plaintiffs said that the Supreme Court had therefore expressed a preference for judicial review of this type of statute, and suggested that the court should not interpret the statute in a way to close the door to the courthouse.

The Ninth Circuit rejected the argument because the statute was “unambiguous.” McNary had just been talking about interpretive tools that apply when a statute isn’t clear. That was all that was necessary to kick the case out of court. That’s where it should have ended.

But for good measure, the court tried to refute the idea that the minors would never get judicial review. The court acknowledged, understatedly, that the situation “poses an extremely difficult situation” for the children. But, minors in removal get special protection from the IJ, namely that they get asked more questions before the IJ can order them removed.

The court also claimed that children would still be able to raise the constitutional claim through administrative channels. After all, in 2004, a minor had somehow gotten a right to counsel claim before a federal court. One time, more than a decade ago, a 14-year-old boy asked an IJ for a lawyer, managed to appeal to the BIA properly, and then somehow got the case to the Ninth Circuit. Of course, the claim was never considered on the merits because the government “settled” the claim, but future “test cases” might similarly be brought.

Judge McKeown, joined by Judge Smith, wrote a special concurrence to her own opinion, which called on the Executive and Congress to fix the obvious injustice that the current policy has caused for a flood of unaccompanied children in removal proceedings.

The biggest problem with the decision is that the Court’s unnecessary musings about the situation just make it worse. The Court’s discussion of how this case doesn’t really create an impossible situation is just wrong. The Court acknowledged that the ruling requires every single child who wants a free lawyer to go through administrative channels first, but then acts like a child can just ask for a free lawyer and everything will take care of itself. But that’s not how it works.

To get to court, the child first would have to specifically raise a request for free counsel, and articulate that the request was based on the due process clause. The IJ is specifically forbidden from deciding constitutional claims, so she would have to say no. The child would then have to figure out how to appeal to the BIA, raising the same claim. They have to say no as well. Then the child would have to appeal to the Court of Appeals, raising the same claim again. If, a child could somehow pass these hurdles, the test of whether he gets a free lawyer considers, primarily, whether the kid can handle the proceedings on his own. If a kid can manage to get the claim before the Court, this is a pretty good indication that he can do okay without a lawyer.

The Court seemed to anticipate some of this, and suggested that it wouldn’t be that big of a problem because pro bono lawyers are ready to make sure the kids could raise the proper claims. But mootness is a problem as well, because a kid can’t complain about the unfairness of going pro se if he has a lawyer. That means, in every single case, for a three-year-old to raise the issue, he’s going to have to articulate a specific request on his own. While some IJ’s think this is all fine, it is “stupid, stupid, stupid” to expect this out of a child.

This is also a problem because, by paying lip service to the idea that kids can get to court on their own, the Court suggests to others that this isn’t a big deal. If other courts consider this type of case, they will likely repeat the false notion that kids will still be able to have their day in court.

The special concurrence just compounds that problem. Judge McKeown essentially apologizes for being forced to stick it to these kids and asks for Congress to help. That apology isn’t a real one though, and violates one of two fundamental rules of apologizing. First, if you apologize for something that’s not your fault, it isn’t an apology it’s being defensive. Second, if you apologize for something that is your fault and you do it anyway, you aren’t really sorry.

If Judge McKeown is saying it’s not her fault she has to rule this way, I’d rather she saved it. That just makes her feel better about deporting children. If she felt she could have stopped it, she’s not sorry because she did it anyway. This non-apology serves no useful purpose, but it diminishes the odds that other courts will step in. Another judge can just look at this case and think that the problem can’t be helped, but still assuage his own guilt with Judge McKeown’s non-apology apology.

What’s next? I’m sure Arulanantham has lots of ideas, but to offer an admittedly non-genius suggestion: this case should be tried again in the most hostile forum available (obviously the Fifth Circuit), and the plaintiffs’ lawyers should throw it on purpose. Instead of winning the hearts of the judges, who would then rule against them anyway, the lawyers should aim for an unbelievably extreme and hostile opinion. The dream opinion would read, “These kids don’t have a right to a day in court. They can’t get to court ever. That’s fine with me!” That would present a much cleaner issue for the Supreme Court to consider, and one the Court might just remedy.

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