An 11-judge federal appeals court will consider whether alien minors have a constitutional right to court-appointed lawyers to pursue asylum claims if the youngsters’ fears of torture are supported by substantial evidence.
A majority of the 9th U.S. Circuit Court of Appeals agreed Wednesday to rehear a January appeal to determine if a 13-year-old who allegedly fled Honduras after repeatedly rejecting the Mara gang’s calls for him to join is entitled to a government-funded, court-appointed lawyer to represent his asylum claim.
The potential impact could be significant. The Dept. of Homeland Security detained more than 102,000 juveniles at or near the border in fiscal year 2016. The cost of appointed counsel for all of them, at $2,700 per case, could be as much as $276 million a year, the government argued.
The court will decide whether the Constitution’s Due Process Clause or the Immigration and Naturalization Act requires unaccompanied alien minors to be represented by counsel.
The three-judge panel rejected the claim by the petitioner, identified only as C.J., in a 2-1 vote.
Judge Connie Callahan wrote for the majority in January, “While ‘our hearts are with [C.J.],’ the law does not support his requested relief.”
In dissent, Judge John Owens wrote that the narrow majority ruling did not even discuss whether the due process clause mandates counsel for unaccompanied minors, citing the unique challenges they face.
C.J. fled Honduras in 2014 after the Mara gang made death threats against him and his family if he did not join. He and his mother were threatened at gunpoint, according to the court. Both he and his mother fled. They were both apprehended four days after entry to the US and were given lists of free legal resources.
But Maria and C.J. appeared in court without a lawyer. The hearings were delayed several times to allow Maria to find a lawyer, but she could not because the cost was $6,500, the court said.
She represented herself and her son during the hearing, but was told by the immigration judge that fear of the gangs was not enough for asylum. C.J. was never questioned by the government immigration lawyer and did not call witnesses. His application for asylum was denied.
C.J. appealed with the aid of a lawyer, who argued his due process rights were violated and the IJ failed to tell him of his available relief and by not appointing a lawyer for him.
His appeal was rejected in January but a majority of the full court voted to rehear the case.
Case: C.J.L.G. v. Sessions, No. 16-73801 (original opinion)