                 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 the petition for
rehearing en banc. A judge requested a vote on whether to
rehear the matter en banc. The matter failed to receive a
majority of votes of the nonrecused active judges in favor of
en banc consideration. Fed. R. App. P. 35.

    The petition for panel rehearing and the petition for
rehearing en banc are denied.



BERZON, Circuit Judge, with whom WARDLAW,
W. FLETCHER, PAEZ, and MURGUIA, Circuit Judges,
join, dissenting from the denial of rehearing en banc:

    The plaintiffs in this case are a class of thousands of
unrepresented children the United States seeks to expel from
the country. Many arrived here after fleeing violence and
persecution, and many could be eligible for asylum, Special
Immigrant Juvenile Status (“SIJS”), or other protections.
Some arrived accompanied by an adult; others did not. To
obtain relief, they all will be required to represent themselves
against trained government attorneys in adversarial
proceedings involving the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1101 et seq., a code of law “second only
to the Internal Revenue Code in complexity.” Castro-
                        J. E. F.M. V. WHITAKER                         5

O’Ryan v. INS, 847 F.2d 1307, 1312 (9th Cir. 1987) (quoting
E. Hull, Without Justice For All 107 (1985)).

   The class of children in this case do not challenge any
orders of removal or ask the district court to grant them relief
from removal. 1 Instead, they maintain that they have a due
process and statutory right to appointed counsel in the
removal proceedings they face.


   1
       The certified class of plaintiffs consists of:

          All individuals under the age of eighteen (18) who:

               (1) are in removal proceedings, as defined in
               8 U.S.C. § 1229a, within the boundaries of the
               Ninth Judicial Circuit, on or after the date of entry
               of this Order;

               (2) were not admitted to the United States and are
               alleged, in such removal proceedings, to be
               “inadmissible” under 8 U.S.C. § 1182;

               (3) are without legal representation, meaning
               (a) an attorney, (b) a law student or law graduate
               directly supervised by an attorney or an accredited
               representative, or (c) an accredited representative,
               all as defined in 8 C.F.R. § 1292.1;

               (4) are financially unable to obtain such legal
               representation; and

               (5) are potentially eligible for asylum under
               8 U.S.C. § 1158, withholding of removal under
               8 U.S.C. § 1231(b)(3), or protection under the
               Convention Against Torture, or are potentially
               able to make a colorable claim of United States
               citizenship.
6                    J. E. F.M. V. WHITAKER

    The panel did not allow the merits of their right-to-
counsel claim to be heard. Instead, it shut the courthouse
doors on them, broadly proclaiming that 8 U.S.C.
§ 1252(b)(9) strips district courts of jurisdiction to hear “any
issue—whether legal or factual—arising from any removal-
related activity.” J.E.F.M., 837 F.3d at 1031. According to
the panel, the children’s right-to-counsel claims can be
raised only in individual petitions for review of final orders
of removal (“PFR”) to the appropriate circuit court. Id. 2 The
issue in this case then, is not the merits of the right-to-
counsel claim. The issue is only how and where such a claim
may be raised.

    Contrary to the panel’s conclusion, the relevant statutes
do allow the children to raise their right-to-counsel claim in
an affirmative habeas action. That procedure, unlike
appellate review of an individual removal order, provides the
opportunity for full litigation of their claim, including:
(1) litigation through a class action rather than by each child
individually; (2) representation of the class for purposes of
the right-to-counsel question by public interest organizations
that lack the capacity to represent each class member
individually; and (3) development of a record regarding the
need for and value of attorneys that cannot be developed in
individual removal proceedings. We should have reheard
this case en banc to correct the panel’s errors and given these
children—and others potentially affected by the panel’s rigid
procedural ruling—their day in court.

    2
      This court will hear en banc a right-to-counsel claim brought by
one minor through the PFR process in C.J.L.G. v. Sessions, 880 F.3d
1122 (9th Cir. 2018), reh’g en banc granted, 904 F.3d 642 (9th Cir.
2018). That minor proceeded pro se throughout his immigration
proceedings and obtained counsel only to file his PFR with our court.
880 F.3d at 1127, 1130.
                   J. E. F.M. V. WHITAKER                     7

                               I.

    The plain language of the statute, our 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
involving the class of children here have not reached that
stage, there is no statutory barrier to allowing this case to go
forward.

                              A.

   The panel’s opinion relies on 8 U.S.C. § 1252(b)(9),
which provides:

       Judicial review of all questions of law and
       fact, including interpretation and application
       of constitutional and statutory provisions,
       arising from any action taken or proceeding
       brought to remove an alien from the United
       States under this subchapter shall be
       available only in judicial review of a final
       order under this section. Except as otherwise
       provided in this section, no court shall have
       jurisdiction, by habeas corpus under section
       2241 of Title 28 or any other habeas corpus
       provision, by section 1361 or 1651 of such
       title, or by any other provision of law
       (statutory or nonstatutory), to review such an
       order or such questions of law or fact.

But the panel ignores that § 1252(b)(9) is a sub-provision of
§ 1252(b), which begins:
8                 J. E. F.M. V. WHITAKER

       (b) Requirements for review of orders of
       removal

       With respect to review of an order of removal
       under subsection (a)(1), the following
       requirements apply: . . . .

    Section 1252(b)(9) is one of the “requirements” listed
under § 1252(b). In context and as a matter of plain
language, it “appl[ies]” “[w]ith respect to review of an order
of removal.” So § 1252(b)(9) does not apply before such an
order has been entered, to a claim that does not seek review
of such an order. “[W]hen deciding whether the language is
plain, we must read the words in their context and with a
view to their place in the overall statutory scheme.” King v.
Burwell, 135 S. Ct. 2480, 2489 (2015) (quotation marks
omitted). The panel opinion entirely ignores the introductory
language in § 1252(b) and so errs in interpreting
§ 1252(b)(9) outside its statutory context.

    The provisions surrounding § 1252(b)(9) confirm that
the provision applies only to challenges to final orders of
removal. Like § 1252(b)(9), every other sub-provision under
§ 1252(b) assumes that a final order of removal has been
entered. For example, § 1252(b)(1) requires a PFR to be filed
“no later than 30 days after the date of the final order of
removal.” Section 1252(b)(2) establishes as the appropriate
venue for review of a PFR the court of appeals “in which the
immigration judge completed the proceedings.” See also,
e.g., § 1252(b)(3) (specifying that service of a PFR must be
on the officer in charge of the “district in which the final
order of removal” was entered); § 1252(b)(4) (requiring
review of a PFR to be “only on the administrative record on
which the order of removal is based”).
                   J. E. F.M. V. WHITAKER                    9

   The Supreme Court has confirmed that the statute means
exactly what it says. INS v. St. Cyr explained that
§ 1252(b)(9) “applies only ‘[w]ith respect to review of an
order of removal under subsection (a)(1).’” 533 U.S. 289,
313 (2001) (quoting 8 U.S.C. § 1252(b)).

    Congress could have written § 1252(b) to apply
generally to all issues relating to actions or proceedings
brought to remove an alien from the United States.
Alternatively, it could have placed § 1252(b)(9) in a
different part of the statute. But Congress chose instead to
apply all the “requirements” specified under § 1252(b),
including § 1252(b)(9), only to “review of an order of
removal.”

    In short, § 1252(b)(9) applies only when an order of
removal has been entered and the petitioner seeks review of
that order. The children in this case have not been ordered
removed, so they cannot be, and are not, seeking review of a
removal order. Section 1252(b)(9)’s channeling directive is
simply inapplicable.

    In coming to the opposite conclusion, the panel reasoned
that when Congress enacted § 1252(b)(9) in 1996, it adopted
the expansive jurisdiction-channeling language suggested in
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 494
(1991). J.E.F.M., 837 F.3d at 1036. But that conclusion once
again ignores the introductory language in § 1252(b) and so
elides the critical difference between the language suggested
in McNary and § 1252(b)(9): In revising the statute,
Congress located § 1252(b)(9) under § 1252(b), and thus
limited its application to “review of an order of removal.”
Cf. Mace v. Skinner, 34 F.3d 854, 857, 859 (9th Cir. 1994)
(holding that a statute restricting jurisdiction to review
“[a]ny order . . . issued by the Board” did not apply to a case
10                 J. E. F.M. V. WHITAKER

that was “not based on the merits of [an] individual
situation”).

    Nor does the Supreme Court’s recent decision in
Jennings v. Rodriguez, 138 S. Ct. 830 (2018), narrow the
impact of the introductory language in § 1252(b) on
§ 1252(b)(9). Jennings held that § 1252(b)(9) did not bar
district court review of a challenge to immigration detention.
Three (of eight) justices acknowledged that the detention
claims at issue in that case were not “challenging any part of
the process by which their removability will be determined,”
but they did not hold that § 1252(b)(9) would bar such a
challenge if raised. Id. at 841 (opinion of Alito, J., joined by
Roberts, C.J., and Kennedy, J.). Rather, they confined their
analysis of § 1252(b)(9) to “present purposes,” and
expressly disclaimed any “attempt to provide a
comprehensive interpretation” of that provision. Id. at 840–
41. Three other justices concluded that § 1252(b)(9) did not
bar the detention challenges at issue because the provision
“applies only ‘[w]ith respect to review of an order of
removal.’” Id. at 876 (Breyer, J., dissenting, joined by
Ginsburg and Sotomayor, JJ.) (quoting § 1252(b)). That
understanding, of course, is precisely the one that, in my
view, governs here. So, although Jennings did not decide the
court access question in this case, it did not adopt the panel’s
out-of-statutory-context reading of § 1252(b)(9) either.

    Finally, the panel concluded that 8 U.S.C. § 1252(a)(5),
“taken together” with § 1252(b)(9), strips the district court
of jurisdiction to review the children’s claims. J.E.F.M.,
837 F.3d at 1031. Section 1252(a)(5) provides, in relevant
part:

       Notwithstanding any other provision of law
       (statutory or nonstatutory), including section
       2241 of title 28, or any other habeas corpus
                   J. E. F.M. V. WHITAKER                   11

       provision, and sections 1361 and 1651 of
       such title, a petition for review filed with an
       appropriate court of appeals in accordance
       with this section shall be the sole and
       exclusive means for judicial review of an
       order of removal entered or issued under any
       provision of this chapter, except as provided
       in subsection (e).

As is apparent, § 1252(a)(5) cannot bear the weight the panel
placed on it. Like § 1252(b)(9), § 1252(a)(5) applies only to
“judicial review of an order of removal entered or issued.”
No such review is sought here.

                              B.

    The panel’s holding that § 1252(b)(9) applies to “any
issue . . . arising from any removal-related activity,”
J.E.F.M., 837 F.3d at 1031, is irreconcilable not only with
the statutory language and context, and with St. Cyr, but also
with this court’s precedents. We have twice held that
§ 1252(b)(9) does not apply to claims that do not seek review
of an order of removal.

    Nadarajah v. Gonzales concluded that § 1252(b)(9) did
not bar the district court’s review of a challenge to prolonged
immigration detention before a final order of removal had
issued. 443 F.3d 1069, 1075–76 (9th Cir. 2006). We
explained the meaning of § 1252(b)(9) as follows:

       The REAL ID Act amends the Immigration
       and Nationality Act by eliminating federal
       habeas corpus jurisdiction over final orders
       of removal in favor of petitions for review
       that raise “constitutional claims or questions
       of law.” 8 U.S.C. § 1252(b)(9) (as amended
12                    J. E. F.M. V. WHITAKER

         by REAL ID Act § 106(a)(2)). However, this
         provision only applies to federal habeas
         corpus jurisdiction over “final orders of
         removal.” Id. By its terms, the jurisdiction-
         stripping provision does not apply to federal
         habeas corpus petitions that do not involve
         final orders of removal. Here, as we have
         noted, there is no final order of removal. To
         the contrary, Nadarajah has prevailed at
         every administrative level. Therefore, in
         cases that do not involve a final order of
         removal, federal habeas corpus jurisdiction
         remains in the district court, and on appeal to
         this Court, pursuant to 28 U.S.C. § 2241.

Id. (emphasis added, citation omitted). The panel
misinterpreted Nadarajah by concluding that it
“distinguished between claims that ‘arise from’ removal
proceedings under § 1252(b)(9)—which must be channeled
through the PFR process—and claims that are collateral to,
or independent of, the removal process.” J.E.F.M., 837 F.3d
at 1032. That is not what Nadarajah said. The words “arise
from” never appear in the opinion; nor was our jurisdictional
holding in that case limited to claims collateral to removal.
Instead,    Nadarajah       unequivocally,     and     without
qualification, held that § 1252(b)(9) does not apply to federal
habeas corpus petitions that do not concern a final order of
removal. 3


     3
       See also Trinidad y Garcia v. Thomas, 683 F.3d 952, 958 (9th Cir.
2012) (en banc) (Thomas, J., concurring) (“The jurisdiction-stripping
provisions of the REAL-ID Act removed federal habeas jurisdiction over
final orders of removal, in favor of direct petitions for review. But the
REAL-ID Act’s jurisdiction-stripping provisions do not remove federal
                      J. E. F.M. V. WHITAKER                           13

    One year later, we reaffirmed Nadarajah’s interpretation
of § 1252(b)(9), holding that the provision did not bar a
habeas petition challenging ineffective assistance of
immigration counsel. Singh v. Gonzalez explained that,
“[b]y virtue of their explicit language, both §§ 1252(a)(5)
and 1252(b)(9) apply only to those claims seeking judicial
review of orders of removal.” 499 F.3d 969, 978 (9th Cir.
2007). Singh acknowledged that § 1252(b)(9) covers “any
action taken or proceeding brought to remove an alien,” but
interpreted the phrase “simply [to] mean[] that if the alien
fails to consolidate his claims as required under
§ 1252(b)(9), he may not later bring a separate habeas claim
to raise ‘questions of law or fact’ that should have been
brought as part of a challenge to his final order of removal.”
499 F.3d at 978, 978 n.11; see also id. at 978 (“In St. Cyr,
the [Supreme] Court confirmed that § 1252(b)(9) ‘applies
only with respect to review of an order of removal under
[8 U.S.C. § 1252(a)(1).]’ . . . The language added by the
REAL ID Act does nothing to change or undermine that
analysis.” (quoting St. Cyr, 533 U.S. at 313)). On that basis,
Singh held that because the ineffective assistance of counsel
claim in that case “d[id] not require review of an order of
removal,” the petitioner was not precluded from bringing his
action in the district court. Id. at 972.

    J.E.F.M. misstated Singh as being limited to the “unique
situation” presented by its facts—an “ineffective-assistance-
of-counsel claim that arose after his attorney failed to file a
timely PFR.” 837 F.3d at 1032. That reading is not accurate. 4

habeas jurisdiction over petitions that do not directly challenge a final
order of removal.”) (second emphasis added, citation omitted).
    4
       Other courts of appeals have taken Singh at its word and interpreted
it to mean exactly what it says. See Chehazeh v. Attorney Gen. of U.S.,
14                    J. E. F.M. V. WHITAKER

Singh did not just recognize a narrow and fact-specific
exception to the statute’s application. Rather, Singh analyzed
and interpreted the general scope of § 1252(b)(9),
recognizing that its interpretation of the statute was required
by the Supreme Court’s analysis in St. Cyr and by the plain
language of the statute. And it stated unequivocally that
§ 1252(b)(9) applies only with respect to review of an order
of removal. 5

    While writing the holdings of Nadarajah and Singh out
of existence, the panel purported to rely instead on Martinez
v. Napolitano’s statement that “[w]hen a claim by an alien,
however it is framed, challenges the procedure and
substance of an agency determination that is ‘inextricably
linked’ to the order of removal, it is prohibited by
section 1252(a)(5).” 704 F.3d 620, 623 (9th Cir. 2012). But
Martinez established a clear test for when a claim is
“inextricably linked” to an order of removal: “[T]he
distinction between an independent claim and indirect
challenge will turn on the substance of the relief that a
plaintiff is seeking.” Id. at 622 (quotation marks omitted).
That is, a claim is barred by § 1252(a)(5) if “the substance


666 F.3d 118, 132 (3d Cir. 2012); Skurtu v. Mukasey, 552 F.3d 651, 657
(8th Cir. 2008); Ochieng v. Mukasey, 520 F.3d 1110, 1115 (10th Cir.
2008).
     5
      That the petitioner in Singh was not allowed “to raise a different
ineffective assistance of counsel claim that arose before a final order of
removal entered” is consistent with the understanding that § 1252(b)(9)
does apply to review of a final order of removal. See J.E.F.M., 837 F.3d
at 1032. In Singh, an order of removal against the petitioner had entered
by the time he raised his claims. 499 F.3d at 973. Therefore, Singh’s
second ineffective assistance of counsel claim amounted to seeking relief
from his removal order.
                      J. E. F.M. V. WHITAKER                         15

of the relief [the plaintiff] is seeking . . . would negate his
order of removal.” Id. at 623 (emphasis added). Martinez
therefore recognized that § 1252(a)(5), in general, applies
only when there is an order of removal, not when none has
been entered. 6

    In sum, our precedents, guided by the Supreme Court’s
understanding in St. Cyr, have repeatedly held that
§ 1252(b)(9) strips district courts of habeas jurisdiction only
in cases where a final order of removal has been entered and
the claim seeks relief from that order. The panel’s conclusion
to the contrary in J.E.F.M. ran roughshod over the statutory
language and structure, as well as binding law.

                                  II.

    There is a second reason why the panel was wrong in
holding that the district court did not have jurisdiction to hear
the children’s claims. J.E.F.M. disregarded the crucial rule
of statutory interpretation that jurisdiction-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.” McNary, 498 U.S. at
497. By requiring unrepresented children to present their
right to counsel claims through the PFR process, the panel

     6
       Singh also adopted a remedy-based inquiry to determine when an
individual seeks review of an order of removal, similar to the test in
Martinez. See 499 F.3d at 979. Singh claimed that his attorney was
ineffective because he missed the thirty-day deadline to file a PFR with
the court of appeals. We explained that because the remedy for Singh’s
ineffective assistance of counsel claim would not be to overturn an order
of removal, but only to restart the thirty-day period for the filing of a
PFR, his claim “cannot be construed as seeking judicial review of his
final order of removal, notwithstanding his ultimate goal or desire to
overturn that final order of removal.” Id. at 979.
16                    J. E. F.M. V. WHITAKER

ensures that, for most litigants, meaningful judicial review
of those claims will never occur.

                                   A.

    The Supreme Court has long recognized a “well-settled
presumption favoring interpretations of statutes that allow
judicial review of administrative action.” McNary, 498 U.S.
at 496 (citing Bowen v. Michigan Acad. of Family
Physicians, 476 U.S. 667, 670 (1986)). The Court has
“consistently applied [this presumption] to legislation
regarding immigration, and particularly to questions
concerning the preservation of federal-court jurisdiction.”
Kucana v. Holder, 558 U.S. 233, 251 (2010). So, when
Congress enacts a jurisdiction-channeling provision, like
§ 1252(b)(9), we presume that it does not intend to preclude
meaningful judicial review of otherwise cognizable claims. 7

                                   B.

     J.E.F.M.’s expansive reading of § 1252(b)(9) severely
hampers meaningful judicial review of the children’s right-
to-counsel claims. Contrary to the panel’s overly sanguine
holding, many unrepresented minors—especially those who
are quite young or unaccompanied—will likely never make
it to the court of appeals in the first place. And if they do,
they will arrive there without the factual record necessary to
demonstrate the importance of counsel. That is because, as a
practical matter, the most important factor in ensuring

     7
      Three justices of the Supreme Court affirmed this presumption in
Jennings v. Rodriguez. They concluded that § 1252(b)(9) could not be
read to bar district court review of immigration detention challenges
because doing so would “depriv[e] . . . detainee[s] of any meaningful
chance for judicial review” of those claims. 138 S. Ct. at 840 (opinion of
Alito, J., joined by Roberts, C.J., and Kennedy, J.).
                   J. E. F.M. V. WHITAKER                   17

meaningful review of a right-to-counsel claim is having
counsel.

    Even if a tenacious child managed to file a timely appeal
to the BIA and then a timely PFR in this court claiming a
right to appointed counsel, we will often be unable to afford
the claim meaningful judicial review. Judicial review of a
PFR filed in our court is confined to the record made in
administrative proceedings. See Dent v. Holder, 627 F.3d
365, 371 (9th Cir. 2010); 8 U.S.C. § 1252(b)(4)(A).
Immigration Judges (“IJs”) and the Board of Immigration
Appeals (“BIA”) have no reason to develop an adequate
record related to the categorical right-to-counsel claim at
issue in this case. In removal proceedings, the IJ’s and BIA’s
concern is with the merits of the individual noncitizen’s case.
They have no authority to document whether, in general,
unrepresented children as a class are unfairly deprived of
immigration relief. And critically, IJs and the BIA have no
authority to determine the constitutionality of the procedures
they administer. See Padilla-Padilla v. Gonzales, 463 F.3d
972, 977 (9th Cir. 2006). They therefore have no reason to
inquire into the additional value that counsel would provide.
Yet, due process analysis requires evaluating “the probable
value, if any, of additional or substitute procedural
safeguards.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

   McNary emphasized that an inadequate record can
prevent meaningful judicial review. The government argued
in McNary that the district court lacked jurisdiction to
consider a categorical constitutional challenge to INS
procedures in hearings regarding eligibility for the Special
Agricultural Worker program (“SAW”), a form of relief for
noncitizens who would otherwise be subject to removal.
McNary, 498 U.S. at 483, 487–88. The Court rejected that
argument and held that meaningful judicial review of
18                J. E. F.M. V. WHITAKER

petitioners’ categorical challenge was not feasible where a
court of appeals could review only the record of individual
deportation proceedings. Id. at 497. As McNary noted,
challenging the INS practices at issue required presenting
evidence that “would have been irrelevant in the processing
of a particular individual application.” Id. Thus, McNary
concluded, “[n]ot only would a court of appeals reviewing
an individual SAW determination therefore most likely not
have an adequate record as to the pattern of [the Immigration
and Naturalization Service’s] allegedly unconstitutional
practices, but it also would lack the factfinding and record-
developing capabilities of a federal district court.” Id.

    The J.E.F.M. panel dismissed the considerable obstacles
to bringing a generic right-to-counsel claim through the PFR
process by pointing to one case in which an unrepresented
minor did so. 837 F.3d at 1037. But in McNary, the Court
considered the impact of the government’s proposed
jurisdictional rule on “most aliens denied SAW status.”
498 U.S. at 496 (emphasis added). It did not conclude, as the
J.E.F.M. panel did, that meaningful judicial review was
available so long as any exceptional individual might be able
to obtain judicial review.

    Since the panel issued its opinion in J.E.F.M., one other
minor, unrepresented in his removal proceedings, acquired
counsel and raised a right-to-counsel claim in a PFR before
this court. After a panel of three judges rejected his claim,
we took the case en banc; it is now pending rehearing before
an en banc panel. See C.J.L.G. v. Sessions, 880 F.3d 1122
(9th Cir. 2018), reh’g en banc granted, 904 F.3d 642 (9th
Cir. 2018). The record in C.J.L.G. consists almost
exclusively of documents from the child’s individual
removal proceedings. And, because the child was
                    J. E. F.M. V. WHITAKER                      19

unrepresented during those proceedings, the record contains
no specific explication of what an attorney could have done.

    The en banc panel in C.J.L.G. will have the children’s
right-to-counsel issue before it via the PFR route, as that has
now become the only road to deciding this essential
constitutional issue. But for all the reasons I have given, that
narrow path has considerable drawbacks and is not what
Congress intended.

                               III.

    In one recent immigration case, lawyers representing a
three-year-old child in removal proceedings recounted that
during the middle of his hearing, the child began crawling
on the table. 8 Absurdly, the only thing atypical about that
case was that the child had a lawyer. Thousands of children,
some very young and many unaccompanied, continue to
appear for their immigration proceedings without
representation. 9 They face trained government attorneys,
convoluted procedures and paperwork, and hearings
conducted using technical jargon in a language they often do
not understand. The result is nearly preordained: deportation




    8
        See Christina Jewett & Shefali Luthra, Immigrant Toddlers
Ordered to Appear in Court Alone, Texas Tribune (June 27, 2018),
https://www.texastribune.org/2018/06/27/immigrant-toddlers-ordered-
appear-court-alone/.
    9
      See Children: Amid a Growing Court Backlog Many Still
Unrepresented, Transactional Records Access Clearinghouse (TRAC)
(August 2017), http://trac.syr.edu/immigration/reports/482/#f1.
20                   J. E. F.M. V. WHITAKER

back to a country where they will face violence and
persecution. 10

     The special concurrence in J.E.F.M. expressed sympathy
for the children whom it has left “to thread their way alone
through the labyrinthine maze of immigration laws,” yet it
ultimately passes off responsibility for this crisis to “the
Executive and Congress.” 837 F.3d at 1039–40 (McKeown,
J., specially concurring). But our responsibility is to apply
the law properly, not to contradict the plain language of the
statute, Supreme Court precedent, our prior case law, and
long-settled rules of statutory interpretation. These children
present weighty constitutional issues that may determine
their ability to remain in the United States or be returned to
countries in which they face serious danger. The law requires
that we at least hear them out.

   Respectfully, I dissent from the denial of rehearing en
banc.




     10
      Children with counsel are five times more likely to be successful
in immigration court than children appearing pro se—73 percent versus
15 percent. See A Humanitarian Call to Action: Unaccompanied
Children in Removal Proceedings Continue to Present a Critical Need
for Legal Representation, ABA Commission on Immigration (June 3,
2015), https://www.americanbar.org/content/dam/aba/administrative/im
migration/uacstatement.authcheckdam.pdf.
