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No Free Attorney for Accompanied Child Deportees, 9th Cir. Rules

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By George Khoury, Esq. on January 29, 2018 2:00 PM

A recent case decided by the Ninth Circuit has been causing a stir, simply for reaffirming what's already well established, though resoundingly un-liked, under the law: Accompanied minors facing deportation do not have the right to an attorney provided by the government.

In addition to that holding, the Ninth Circuit also rejected the notion that an immigration judge is required to advise of all possible eligibilities for benefits. Rather, the court explained that only the benefits that the record clearly shows an alien is eligible for are required to be advised.

No Free Lawyer Requirement

As the circuit court explained, the legislature did not provide for a right to government provided counsel in the immigration court system. And while there is an explicitly enumerated right to counsel of one's own choosing (and paying), there is no public defender for immigration claims, not even for minors.

However, as noted in the concurring opinion issued separately by Judge John Owens, the majority ruling is rather narrow in that it might not apply for an unaccompanied minor. As the majority opinion notes, the minor's mother was repeatedly provided the opportunity to secure counsel for her child, and upon failing to do so (because she could not afford it), the mother served as the representative for her child.

On appeal, the matter was picked up by the ACLU. Unfortunately for the minor, and his mother, the Ninth Circuit did not find that their petitions met the technical requirements, despite the rather clear threat of harm from gang violence that both the minor and mother faced upon their return to Honduras.

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