Right to Appointed Counsel for Children in Immigration Proceedings

F.L.B. v. Lynch (J.E.F.M. v. Holder), No. 2:14-cv-01026 (W.D. Wash. filed July 9, 2014)


On July 9, 2014, the American Immigration Council, with co-counsel American Civil Liberties Union, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP, filed a lawsuit seeking recognition of a right to appointed counsel for unrepresented children in immigration proceedings nationwide. Named Plaintiffs in the case, children as young as one year old, are scheduled to appear in immigration court without any legal representation.

The complaint charges the U.S. Department of Justice, Department of Homeland Security, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Department of Health and Human Services, Executive Office for Immigration Review, and Office of Refugee Resettlement with violating the U.S. Constitution's Fifth Amendment Due Process Clause and the Immigration and Nationality Act’s provisions requiring a “full and fair hearing” before an immigration judge. It seeks to require the government to provide unrepresented children who are unable to pay for attorneys with legal representation in their immigration proceedings.

In September 2016, the Ninth Circuit Court held that the U.S. District Court for the Western District of Washington lacked jurisdiction on both the constitutional and statutory claims. In November 2018, the Ninth Circuit denied Plaintiffs’ request for rehearing. 

With the same co-counsel, the Council represented two individual children in petitions for review who were ordered removed by immigration judges while unrepresented by attorneys. Both cases were before the Ninth Circuit Court of Appeals.  In May 2019, in C.J.L.G. v. Barr, the Ninth Circuit did not reach the issue of the child’s right to appointed counsel in removal proceedings, but found that the immigration judge’s failure to advise the child about his potential eligibility for Special Immigration Juvenile status warranted a new hearing before the immigration judge. In May 2021, in Hernandez-Galand v. Garland, the Ninth Circuit likewise did not reach the issue of the child’s right to appointed counsel in removal proceedings, but found that exceptional circumstances justified reopening the case.

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