Court Refuses to Decide Right to Counsel for Undocumented

The U.S. Court of Appeals for the 9th Circuit ruled September 20, 2016 in J.E.F.M. v. Lynch that undocumented children cannot sue the federal government in a class action suit to have attorneys represent them in deportation hearings. The three-judge panel reversed the lower court’s determination that it had jurisdiction over the minors’ due process claims under the Constitution, while affirming the district court’s dismissal for lack of jurisdiction of the minors’ statutory claims for court-appointed counsel.

The unanimous opinion written by Judge Margaret McKeown stressed that the district court did not have jurisdiction over the class-action claim that indigent minor immigrants have a right to government-appointed counsel in removal proceedings. Judge McKeown explained that, despite the gravity of their claims, the minors could not “bypass” the processes in their individual immigration court hearings by filing a class action suit in federal district court. The appeals court did not address the merits of the case in its holding. Rather, it indicated that the matter would have to be determined within the normal immigration court process and appellate procedures for immigration matters.

While the 9th Circuit decision is binding only on the western states within that circuit, the decision strongly suggests that immigration courts may well be the exclusive venue for initial review of civil rights claims for individuals in removal proceedings. Decisions made by immigration courts can be appealed to the Board of Immigration Appeals (BIA) and the BIA decisions are subject to review in the federal circuit court with jurisdiction over the location of the immigration court that issued the initial decision.

The case was originally brought by the American Civil Liberties Union (ACLU) in response to the child migrant crisis of 2014. In that year, more than 60,000 minors from Central American countries, fleeing violence and insecurity in their home countries, arrived at the border to seek asylum[1]. This humanitarian crisis raised the question of whether these children have a right to counsel in immigration cases – which are considered civil (non-criminal) proceedings. Currently, while criminal defendants have been found to have a right under the Constitution’s Sixth Amendment to be appointed an attorney if they cannot afford one, no such right have been found for individuals in non-criminal proceedings. Removal (deportation) proceedings are considered civil, so there is no right to free counsel despite the grave consequences individuals could face after deportation.

The decision does contain language acknowledging that it is problematic for children to represent themselves in complex proceedings with no access to counsel. In a separate concurrence joined only by Judge M. Smith, Judge McKeown encouraged the Obama administration and Congress to find a political solution to the problem. However, under the new Trump administration and Republican majority, it is unlikely that the issue of unrepresented minors in removal proceedings will be addressed through legislation. Although this decision does not dictate precedent for the whole country or change immigration laws, a future case could do so if it reached the U.S. Supreme Court. This would require litigation in immigration court, an appeal to the BIA, an appeal to the appropriate circuit court, and the acceptance of the case by the Supreme Court through a grant of certiorari. In the meantime, thousands of unaccompanied children will continue to lack legal representation in removal proceedings. Given the vast difference in removal rates between individuals with counsel and those without, it is virtually certain that children who qualify for asylum, Special Immigrant Juvenile Status or other forms of relief will continue to be ordered removed.

[1] William Kandel, Unaccompanied Alien Children: An Overview, Congressional Research Service, 1 (May 11, 2016), available at

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