Judge Callahan concedes that C.J. -- a child -- "is a sympathetic petitioner." Which sounds right to me. He's a Honduran kid who "repeatedly spurned the Mara gang’s entreaties
to join its ranks despite death threats made against him and
his family" and, after the gang threatened him at gunpoint, fled Honduras and came to the United States.
Not someone we're exactly itching to send back to Honduras.
Most people, anyway.
Judge Callahan is somewhat sympathetic to the child, but not at all sympathetic to his legal claim -- which is that he's entitled to be provided an attorney before he's deported back to Honduras. That, Judge Callahan says, would "upend Congress’
statutory scheme by reading into the Due Process Clause and
the INA itself a categorical right to court-appointed counsel
at government expense for alien minors."
Ain't going to happen. As the Ninth Circuit promptly holds.
Judge Owens concurs. He comes out the same way. Though his sympathy is perhaps somewhat more substantial than Judge Callahan's. He says that he concurs "in the majority opinion and its narrow scope."
(Put to one side whether the opinion is really all that "narrow". He has a point, and he wants to make it.)
Judge Owens characterizes the majority opinion as "hold[ing] that the Due Process Clause does not mandate
government-funded counsel for C.J.L.G, an accompanied
minor. The opinion does not hold, or even discuss, whether
the Due Process Clause mandates counsel for unaccompanied
minors. That is a different question that could lead to a
different answer." Then cites several cases that suggest that in that different setting, he'd lean towards so holding.
So there's expressed sympathy here. At at least an expression of support by one of the members of the panel for a different rule in a different type of case.
None of which helps the minor -- C.J. -- here. He's getting sent back to the gang, in a country with an absurdly high murder rate.
Or, as Judge Callahan softly puts it: "We are mindful that our decision means that, absent a
reprieve offered by the government, C.J. will likely be
returned to a country in turmoil. We sympathize with his
personal plight, as C.J. appears to have displayed courage in
the face of serious adversity. But while “our hearts are with
[C.J.],” the law does not support his requested relief."
