RECENT NINTH CIRCUIT CASE LAW in Immigration

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1005 Cecile Ave | Delano, California 93215

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RECENT NINTH CIRCUIT CASE LAW

January 15, 2018 – February 15, 2018

C.J.L.G v. Sessions

, (No 16-73801)(9th Cir. January 29, 2018) – Minor Right to Counsel /Due

Process The panel denied C.J.L.G.’s petition for review of a Board of Immigration Appeals

decision, holding that neither the Due Process Clause nor the Immigration & Nationality Act

creates a categorical right to court-appointed counsel at government expense for alien minors,

and concluding that the Board’s denial of asylum, withholding of removal, and relief under the

Convention against Torture was supported by substantial evidence.

The panel held that it is not established law that alien minors are categorically entitled to

government-funded, court-appointed counsel and, applying the three-part test set forth in

Mathews v. Eldridge, 424 U.S. 319 (1976), held that C.J. had not shown a necessity for such

counsel to safeguard his due process right to a full and fair hearing. The panel incorporated its

analysis of C.J.’s asylum claim into its Mathews analysis in determining that C.J. was not

prejudiced by any procedural deficiencies in his proceeding. The panel concluded that the record

compelled a finding that C.J. had a well-founded fear of persecution based on threats he received

from the Mara gang when he resisted their recruitment efforts, but rejected C.J.’s asylum claim

because he had not established that the threats had a nexus to a protected ground, or that the

government was unable or unwilling to control the Maras.

The panel deemed waived any argument that he was denied due process on his withholding and

CAT claims, but noted that his withholding claim would also fail. The panel also rejected C.J.’s

argument that the INA’s fair hearing provision, § 1229a(b)(4)(B), implicitly requires court-

appointed counsel at government expense for all alien minors.

The panel further held that the IJ was not required to inform C.J. that he might be eligible for

Special Immigrant Juvenile status, concluding that the IJ’s duty to inform aliens of “apparent

eligibility” for relief was not triggered because, at the time of his removal proceeding, C.J. did

not have a state court order that could have made him apparently eligible for SIJ status. Finally,

the panel concluded that the agency’s denial of CAT relief was supported by substantial

evidence.

The panel concluded that 1) the Board did not err in concluding that C.J.’s experience of having

a member of the Maras put a gun to his head did not amount to “severe pain or suffering;” 2)

there was no showing that the Honduran government acquiesced in the act; and 3) the record did

not compel the conclusion that the government either turned a blind eye to the Maras’ threats or

that it would be unable or unwilling to control the Maras in the future. Concurring, Judge Owens

instead of becoming a citizen, Rodriguez Tovar would have been eligible for a visa in the F2A

category 3 in 2007, at which point his age under the statute would have been 20. Similarly, had

he been afforded his statutory age when his father became a citizen, he would have been eligible

for a visa immediately. The panel also noted that the government’s position would lead to the

absurd result that Rodriguez Tovar would have to wait in line for a visa abroad and not become

eligible for an F1 visa until more than twenty years after he would have been eligible for an F2A

visa but for his father’s naturalization. Concluding that Congress had clear intent on the question

at issue, the panel did not defer to the BIA’s opinion in Matter of Zamora-Molina. Reading the

statue as a whole, the panel concluded that Congress intended “age of the alien on the date of the

parent’s naturalization,” 8 U.S.C. § 1151(f)(2), to refer to statutory age—that is, age calculated

according to 8 U.S.C. § 1153(h)(1). Under that statute, Rodriguez Tovar’s age was only 19 on

the date of his father’s naturalization. Accordingly, the panel concluded that Rodriguez Tovar’s

visa application must be treated as one for an immediate relative of a U.S. citizen, for which

visas are always immediately available.

(Panel: Nelson and Reinhardt, Circuit Judges, and George Caram Steeh, District Judge

By luizaamervisa | Published February 16, 2018 | Posted in Immigration Attorney, Immigration Attorney Luiza A. Miller, Immigration Law, Immigration Lawyer, Trump Immigration policy, US Citizenship | Tagged IMMIGRATION

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RECENT NINTH CIRCUIT CASE LAW in Immigration

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