Summary
The Ninth Circuit held that Immigration Judges must advise juvenile respondents of apparent eligibility for Special Immigrant Juvenile (SIJ) status under 8 C.F.R. § 1240.11(a)(2) when the record raises a reasonable possibility of eligibility, even if the child has not yet obtained a state court order or USCIS approval. The court found that the IJ failed to inform the petitioner of SIJ eligibility based on evidence of parental abandonment and gang threats showing that reunification with one parent might not be viable and that return to Honduras might not be in his best interest. The court vacated the removal order and remanded for a new hearing, but declined to address the constitutional right to appointed counsel for minors in removal proceedings.
Topics
Practice areas
Questions Presented
- Whether the Immigration Judge erred by failing to advise C.J.L.G. of his apparent eligibility for Special Immigrant Juvenile (SIJ) status under 8 C.F.R. § 1240.11(a)(2).
- Whether the Fifth Amendment requires appointment of counsel for indigent minors in removal proceedings (not reached by the majority).
Holdings
- The IJ was required to inform CJ of his apparent eligibility for SIJ status because the facts before the IJ raised a reasonable possibility that CJ could establish eligibility for relief.
Key quotations
“The 'apparent eligibility' standard of 8 C.F.R. § 1240.11(a)(2) is triggered whenever the facts before the IJ raise a 'reasonable possibility that the petitioner may be eligible for relief.'” (at 622)
“We do not read the regulation so grudgingly. [It] obviously is meant to prompt the IJ to help an alien explore legal avenues of relief that might not be apparent to him or his attorney.” (at 623)
“The information presented during CJ's proceedings made it reasonably possible that he could establish eligibility for SIJ status.” (at 624)
Factual background
C.J.L.G. (CJ), a 14-year-old Honduran, was threatened by a gang, held at gunpoint, and fled with his mother to the United States. They entered without inspection. In removal proceedings, CJ appeared without counsel; his mother represented him. The IJ found CJ credible but denied relief. The record showed that CJ's father had abandoned him years ago, and CJ feared returning to Honduras due to gang threats. The IJ did not advise CJ about potential eligibility for Special Immigrant Juvenile (SIJ) status.
Procedural history
The Immigration Judge (IJ) denied C.J.L.G.'s applications for asylum, withholding of removal, and protection under the Convention Against Torture, and ordered him removed. The Board of Immigration Appeals (BIA) dismissed the appeal. A three-judge panel of the Ninth Circuit denied the petition for review, but the en banc court granted rehearing.
Remand instructions
The removal order is vacated and the case is remanded for a new hearing before the IJ. The IJ should exercise discretion in light of CJ's apparent eligibility for SIJ status and may consider how far he has proceeded in the SIJ process.