J.E. F.M. Ex Rel. Ekblad v. Lynch

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. E. F.M., a minor, by and Nos. 15-35738 through his Next Friend, Bob 15-35739 Ekblad; J. F.M., a minor, by and through his Next Friend Bob D.C. No. Ekblad; D. G. F.M., a minor, by 2:14-cv-01026-TSZ and through her Next Friend, Bob Ekblad; F. L.B., a minor, by and through his Next Friend, OPINION Casey Trupin; G. D.S., a minor, by and through his mother and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J. E. V.G.;

A. E. G.E.; G. J. C.P.,

Plaintiffs-Appellees/ Cross-Appellants,

v.

LORETTA E. LYNCH, Attorney General; JUAN P. OSUNA, Director, Executive Office for Immigration Review; JEH JOHNSON, Secretary, Homeland Security; THOMAS S. WINKOWSKI, Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement; NATHALIE R. ASHER, Field Office Director,

ICE ERO; KENNETH HAMILTON,

AAFOD, ERO; SYLVIA M.

BURWELL, Secretary, Health and Human Services; ESKINDER NEGASH, Director, Office of Refugee Resettlement, Defendants-Appellants Cross-Appellees.

Appeal from the United States…

Concurrence by Judge McKEOWN;

Concurrence by Judge KLEINFELD

OPINION

This interlocutory appeal requires us to answer a single question: does a district court have jurisdiction over a claim that indigent minor immigrants without counsel have a right to government-appointed counsel in removal proceedings? Our answer to this jurisdictional query is no. 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 “aris[e] from” immigration removal proceedings can only be brought through the petition for review process in the federal courts of appeals. 8 U.S.C. §§ 1252 (a)(5) & (b)(9). 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.

Background.

The appellees (collectively the “minors” or “children”) are immigrant minors, aged three to seventeen, who have been placed in administrative removal proceedings. The children are at various stages of the removal process: some are waiting to have…

with whom M. SMITH, Circuit Judge, joins, specially concurring:

Jurisdictional rulings have an anodyne character that may suggest insensitivity to the plight of the parties, particularly in a case involving immigrant children whose treatment, according to former Attorney General Eric Holder, raises serious policy and moral questions. 1 But we must heed the Supreme Court’s admonition that “[fjederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 , 114 S.Ct. 1673 , 128 L.Ed.2d 391 (1994) (citations omitted). We did not reach the merits here because we hewed to the statute channeling federal court jurisdiction. That said, I cannot let the occasion pass without highlighting the plight of unrepresented children who find themselves in immigration proceedings. While I do not take a position on the merits of the children’s constitutional and statutory claims, I write to underscore that the Executive and Congress have the power to address this crisis without judicial intervention. What is missing here? Money and…

specially concurring:

I agree with my colleagues that a child (or for that matter, an adult) is unlikely to be able to protect all his rights in a deportation proceeding unless he has a lawyer. Many advocacy groups are deeply involved in immigration issues, including the ones who provided counsel in this one, and because the solution to the representation problem is a highly controversial political matter, I think our own advocacy of some particular reform measure is unnecessary and the matter is .better left to the political process.