FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT J. E. F.M., a minor, by and through Nos. 15-35738 his Next Friend, Bob Ekblad; J. 15-35739 F.M., a minor, by and through his Next Friend Bob Ekblad; D. G. F.M., D.C. No. a minor, by and through her Next 2:14-cv-01026- Friend, Bob Ekblad; F. L.B., a TSZ minor, by and through his Next Friend, Casey Trupin; G. D.S., a minor, by and through his mother ORDER and Next Friend, Ana Maria Ruvalcaba; M. A.M., a minor, by and through his mother and Next Friend, Rose Pedro; J. E. V.G.; A. E. G.E.; G. J. C.P., Plaintiffs-Appellees/ Cross-Appellants, v. MATTHEW WHITAKER, Acting Attorney General; JUAN P. OSUNA, Director, Executive Office for Immigration Review; JEH CHARLES JOHNSON, Secretary, Homeland Security; THOMAS S. WINKOWSKI, Principal Deputy Assistant Secretary, U.S. Immigration and Customs Enforcement; NATHALIE R. ASHER, Field Office Director, ICE ERO; 2 J. E. F.M. V. WHITAKER KENNETH HAMILTON, AAFOD, ERO; SYLVIA MATHEWS BURWELL, Secretary, Health and Human Services; ESKINDER NEGASH, Director, Office of Refugee Resettlement, Defendants-Appellants Cross-Appellees. Filed November 13, 2018 Before: Andrew J. Kleinfeld, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges. Order; Dissent by Judge Berzon J. E. F.M. V. WHITAKER 3 SUMMARY * Immigration In a case in which the panel concluded that the district court lacked jurisdiction to review claims brought by a class of children who claim a due process and statutory right to appointed counsel in removal proceedings, the panel filed an order denying a petition for panel rehearing and rehearing en banc. Dissenting from the denial of rehearing en banc, Judge Berzon, joined by Judges Wardlaw, W. Fletcher, Paez, and Murguia, wrote that the case should have been reheard en banc to correct the panel’s errors in concluding that the relevant statutes do not allow the children to raise their right- to-counsel claim in an affirmative habeas action. Judge Berzon wrote that the plain language of the statute, the circuit’s case law, and Supreme Court precedent all indicate that 8 U.S.C. § 1252(b)(9) bars district court review of a claim only where an order of removal has been entered and an individual seeks relief from that order. Because the immigration proceedings in this case have not reached that stage, Judge Berzon concluded that there is no statutory barrier to allowing this case to go forward. Judge Berzon also wrote that the panel’s expansive reading of § 1252(b)(9) severely hampers meaningful judicial review of the children’s right-to-counsel claims and, therefore, disregards the crucial rule of statutory interpretation that jurisdiction- * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 J. E. F.M. V. WHITAKER channeling provisions should not be interpreted to result in the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims. ORDER The panel votes to deny the petition for rehearing. The full court has been advised of ...
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