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Federal appeals court rules alien minors do not have right to court-appointed counsel

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] denied review of a Board of Immigrant Appeals (BIA) case on Monday, reasoning that alien minors do not have a constitutional right to court-appointed counsel.

The court ruled [opinion, PDF] that neither the Due Process clause of the Fifth Amendment, nor the Immigration and Nationality Act (INA) impose a requirement that alien minors, whether documented or not, be appointed counsel at the government's expense.

The case arose when the BIA denied undocumented immigrant minor CJ representation at the government's expense. CJ left Honduras with his mother, Maria, in 2014 after receiving violent threats from a gang. The immigration judge (IJ) explained to CJ and Maria at the first hearing, that they could hire private counsel as representation, but Maria explained she could not afford to do so. Thus, Maria represented CJ at each hearing before the IJ. Ultimately, the IJ and BIA denied CJ's request for asylum and granted the government's deportation petition.

On appeal, the court assessed CJ's due process claim according to a three-part test, which it explained as follows:

C.J. seeks a determination that he is entitled to court- appointed counsel at government expense—a privilege that Congress has not conferred. Thus, consistent with the prevailing rule that a litigant must show prejudice to vindicate a due process violation, C.J. must show both that his constitutional rights were violated for lack of court-appointed counsel and that this prejudiced the outcome of his removal proceeding.
In its opinion, the court noted that the IJ told Maria she could retain counsel, even gave her information to contact pro bono services, and that Maria chose to act as CJ's representation. These factors support the BIA's holding that CJ failed to show he was denied a fair and impartial trial, and that he was prejudiced as a result; thus, his due process rights were not violated.

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