On July 9, 2014, this class action lawsuit was filed on behalf of all children who are or will be in immigration proceedings who do not have legal representation in their proceedings. The suit was filed in the United States District Court for the Western District of Washington under the Immigration and Nationality Act (INA) against the U.S. Department of Justice and U.S. Immigration and Customs Enforcement. The plaintiffs, represented by private counsel and several public interest groups, sought declaratory and injunctive relief, claiming that the defendants' failure to ensure legal representation for the plaintiffs and the putative class at immigration proceedings violated the INA and the Due Process Clause of the Fifth Amendment to the United States Constitution.

On September 29, 2014, the court (District Judge Thomas S. Zilly) denied plaintiffs' motion for a preliminary injunction. The plaintiffs' motion did not ask the Court to compel the defendants to provide them with legal representation at government expense; rather, it sought an order enjoining defendants from denying continuances of plaintiffs' removal proceedings. Judge Zilly found, however, that plaintiffs had not first sought such continuances from immigration judges, and he held that the plaintiffs' motion was thus "not ripe for adjudication" and that the court "currently lacks jurisdiction to grant the specific relief sought by plaintiffs." Judge Zilly further stated that "[t]he core issue of whether plaintiffs are entitled, under the Fifth Amendment, to counsel at government expense is not now before the Court and must await another day." The court deferred, however, a ruling on plaintiffs' class certification motion until it considered Defendants' recently filed motion to dismiss. 2014 WL 12515265 (W.D. Wash. Sept. 29, 2014).

On April 13, 2015, after considering the defendants' motion to dismiss the plaintiffs' second amended complaint, the court granted in part and denied in part the defendants' motion. The court held that it lacked jurisdiction over plaintiffs' INA claims because of the jurisdiction-stripping provisions of IIRIRA and the Real ID Act. The court also struck plaintiff's request for class-wide injunctive relief on the grounds that it could provide only class-wide declaratory relief. But focusing on the plaintiffs already in removal proceedings and not yet ordered removed, the court held that it had jurisdiction to decide plaintiffs' Due Process claim. Under the Mathews due process test, the plaintiffs had a high liberty interest in avoiding removal and plausibly faced a risk of erroneous deprivation of this interest without counsel, though the court could not determine the cost to the government in providing counsel. 107 F. Supp. 3d 1119 (W.D. Wash. Apr. 13, 2015).

The defendants requested leave to file an interlocutory appeal to the Ninth Circuit Court of Appeals to clarify the jurisdictional issues. The defendants also asked the district court to stay the litigation there in the meantime. But in an August 27, 2015 order, the court explained that, although it had granted defendants' first request (for an appeal), it had denied their second request (for a stay). According to the court, defendants were unlikely to prevail on their jurisdictional challenge, plaintiffs were soon to age out of being minors, and discovery could continue. At the same order, however, the court also denied plaintiffs' most recent request for class certification, finding the proposed class of unrepresented minors to be too broad. The court also noted that, of the remaining six plaintiffs, five had either won some form of immigration relief or now had counsel. The court thus dismissed the three plaintiffs who had already received permanent resident status. 2015 WL 9839679 (W.D. Wash. Aug. 27, 2015).

On December 4, 2015, the plaintiffs filed a third amended complaint. This complaint included fourteen named plaintiffs in removal proceedings without counsel, and it sought class certification for indigent minors in removal proceedings unable to afford counsel. As in the original complaint, the plaintiffs requested injunctive relief on statutory (INA) and due process constitutional grounds.

On January 21, 2016, however, the court issued an order denying plaintiffs' most recent request for class certification. The court held that the proposed class was still too broad and that the named plaintiffs' respective situations (i.e., nearing 18 years old or on track to receive permanent resident status) were not representative of proposed class members. 2016 WL 4533605 (W.D. Wash. Jan. 21, 2016).

The defendants again moved to dismiss. In an April 15, 2016 order, the court granted, denied, and deferred different parts of the motion. Judge Zilly dismissed the plaintiffs' claims against the USCIS Director and dismissed as moot the claim of one plaintiff who had turned 18 and was no longer in removal proceedings. The court deferred, however, a decision on the claim of another plaintiff who had turned 18 and was on track to permanent resident status but was still in removal proceedings. As for the claims of the remaining plaintiffs, the court denied the defendants' motion to dismiss. The court rejected the defendants' argument that arriving noncitizens had no procedural due process rights beyond those specified by Congress, but it also conceded that noncitizens who entered without inspection may have fewer due process rights than those who were lawfully admitted. Accordingly, the court found appropriate for trial the issue of whether due process rights include the right to counsel at government expense. 180 F.Supp.3d 811 (W.D. Wash. Apr. 15, 2016).

Returning to the class certification process, the court, in a June 24, 2016 order, certified the class of minors in removal proceedings in the Ninth Circuit as of the date of the order who were financially unable to afford legal representation, were charged with inadmissibility, and had credible claims to relief under asylum, withholding of removal, Convention Against Torture, or existing U.S. citizenship. 2016 WL 3458352 (W.D. Wash. June 24, 2016).

After oral argument, the court on July 8, 2016, denied plaintiffs' most recent motion for preliminary injunction (on behalf of one plaintiff) but did not provide written reasoning.

Next, the Ninth Circuit, where the parties had litigated defendants' interlocutory appeal on the jurisdictional questions, issued an order on September 20, 2016. Without reaching the merits of plaintiffs' claims, the Ninth Circuit held that the district court had no jurisdiction over either the statutory or constitutional claims (thus reversing the district court's Apr. 13, 2015 determination of jurisdiction over the latter only). According to the Ninth Circuit, the INA required plaintiffs to exhaust administrative remedies and then file for circuit court review, thus foreclosing district court review. 837 F.3d 1026 (9th Cir. 2016).

After this order, the district court on the same day struck the trial date and all remaining deadlines and motions. The court struck them without prejudice, however, to permit reinstating them in the event that the Ninth Circuit's decision was vacated, reversed, or modified before a mandate issues.

On November 13, 2018, the Ninth Circuit denied a motion to rehear the case en banc. 908 F.3d 1157. Circuit Judge Marsha S. Berzon (joined by Circuit Judges Kim McLane Wardlaw, William A. Fletcher, Richard A. Paez, and Mary H. Murguia) dissented and voted to rehear the case. Judge Berzon argued that the panel read the INA’s jurisdiction stripping provisions too broadly and that the relevant provisions only precluded review of claim where an order of removal was entered and an individual seeks relief from that order. The mandate of the Ninth Circuit was entered on November 27, 2018.

Judge Zilly then issued an order to show cause why the case should not be dismissed without prejudice for lack of jurisdiction. On December 6, 2018, the plaintiffs responded that they would not appeal the Ninth Circuit decision to the U.S. Supreme Court. As the plaintiffs declined to appeal the Ninth Circuit decision, the court dismissed the case without prejudice for lack of jurisdiction on May 2, 2019.

Dan Whitman - 09/30/2014
Ava Morgenstern - 05/08/2017
Raul Noguera-McElroy - 04/19/2019


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