When Jurisdiction Stripping Raises Factual Questions

David K. Hausman^[1]*

Abstract

Courts apply a strong presumption in favor of judicial review of government action. When they apply that presumption, they silently presume that they can determine, as a matter of law, whether such judicial review exists. In fact, however, whether judicial review exists may present a factual question.

Consider a catch-22 at the center of immigration jurisdiction doctrine: for certain due process claims, the only review available is review that is unavailable. Some federal courts have read a jurisdictional statute to allow only direct appeals of deportation orders, regardless of what claims are at issue. Appealing without a lawyer is difficult and extremely rare; as a result, judicial review does not exist in fact for due process violations that affect only pro se noncitizens. For example, the government has ignored its obligation to translate the asylum application for non-English speakers. But no one has challenged that violation on appeal because any appeal itself has to be filed in English. Similarly, the government does not provide lawyers for children—even toddlers—in immigration court. But that clear due process violation has never received judicial review because children who need counsel are unable to appeal and raise that claim themselves.

In the immigration context, courts should solve these problems by applying the presumption in favor of judicial review to allow jurisdiction in district court where the facts show that the government action would otherwise evade review. But more broadly, these problems point to a problem with jurisdiction-stripping doctrine.

Judges and scholars have assumed that determining the extent of jurisdiction-stripping statutes requires answering questions of law. But determining whether Congress has withdrawn jurisdiction often raises questions of fact, just as standing doctrine requires a factual inquiry into the imminence of harm.

Introduction

To apply for asylum in the United States, noncitizens must fill out a twelve-page form in English. The government provides no translation of that form, even for people who speak no English and are imprisoned while they contest their cases in immigration court. There is no serious question that this failure to provide written translation violates the Due Process Clause.

That failure affects thousands of people every year, but no court has ever ruled on this issue because courts have mistaken a factual question for a legal one and have thereby misread an obscure jurisdictional statute. Title 8 U.S.C. § 1252(b)(9) (“section (b)(9)”) provides that judicial review of any questions “arising from” deportation proceedings can only be decided through a “petition for review”—a direct appeal of a removal (deportation) order to a court of appeals.^[2]

This statute appears to channel and consolidate appeals in the circuit courts, but in fact, when read expansively and incorrectly, it strips courts of all jurisdiction over certain claims. For example, any challenge by a noncitizen to the lack of translation cannot, under an expansive reading of the statute, be raised in a collateral action in district court. Instead, it can only be raised on a direct petition for review to a court of appeals. But appeals and petitions for review must themselves be in English, so no one who needs the asylum application translated can challenge the lack of translation on appeal. And in the unlikely event that that non-English speaker finds a lawyer after having been ordered deported, the lawyer likely has an ethical obligation to have the application translated and move to reopen the case, mooting the appeal and preventing the issue from receiving judicial review. By contrast, if a collateral action in district court were possible, lawyers could represent a group of non-English speakers for the limited purpose of challenging the lack of translation, and the action would very likely result in an injunction requiring the agency to provide translation.

Courts have reached these nonsensical results by mistaking a factual question for a legal question. Courts should ask and answer a factual question instead. Is there in fact a meaningful opportunity for each claim to be raised defensively before a court of appeals? If so, section (b)(9) applies, and the claim must be raised on direct appeal; if not, the presumption in favor of judicial review applies, and section (b)(9) should be read narrowly to permit district court review. Suggesting that every claim must receive a meaningful opportunity for review is not the same as suggesting that every noncitizen must have a meaningful chance of review. That would require appointed counsel (an excellent idea that is not the subject of this Essay).^[3] Instead, the point is that a statute strips courts of jurisdiction over a claim when that claim systematically evades review.

To answer the key factual question, courts should also consider how often claims are raised as a proportion of the number of likely violations. When thousands of asylum seekers are required to fill out an application that they cannot understand each year, but none challenge the lack of translation, courts should conclude that direct appeal does not create a meaningful opportunity for review of this failure to translate.^[4] Even though this is a factual determination, it is, like other factual determinations, part of a legal question for the court to resolve.^[5]

Courts already make similar probabilistic judgments, but they often calculate the probability incorrectly by failing to consider all violations, rather than just the rare challenges of those violations. Consider a challenge to the government’s failure to provide legal counsel for children in deportation proceedings. The Ninth Circuit concluded that children facing deportation without lawyers have a meaningful chance to raise their deprivation-of-counsel claims on direct appeal—because a single case including that claim had been docketed at the Ninth Circuit.^[6] That case settled, and the government still does not appoint counsel for children facing deportation. If the Ninth Circuit had considered the denominator—the thousands of cases in which kids were ordered deported but were not able to appeal—it would have reached the opposite conclusion: that there is no meaningful opportunity for judicial review of the claim that due process requires appointed counsel in immigration court. That conclusion, ironically, rests on the unsurprising fact that children who lack counsel are systematically unable to appeal.^[7]

This interpretation of section (b)(9) creates a fundamental contradiction in the rules governing deportation: the law gives procedural protections to pro se immigrants with one hand while making them unenforceable by jurisdiction channeling with the other hand. Many due process violations for immigrants without lawyers result from the combination of their inability to assert their rights individually without counsel and the preclusion of collateral impact litigation that follows from an expansive misreading of section (b)(9).

Section (b)(9) sounds obscure, but its implications are broad. Indeed, the catch-22 that is the subject of this Essay is only one of the ways in which section (b)(9) limits noncitizens’ access to court; for example, even where section (b)(9) does not strip jurisdiction, it may lead to delayed and less rigorous review.^[8] Adam Garnick has provided an excellent and comprehensive discussion of these concerns and of the ways in which courts have read the language of section (b)(9). Building on Garnick’s work, this Essay focuses more narrowly on situations in which section (b)(9)’s channeling might preclude Article III review entirely. Whether a withdrawal of jurisdiction exists often presents a factual question. Although scholars have examined the standards for establishing other jurisdictional facts,^[9] facts concerning jurisdiction stripping have largely escaped the same inquiry. And although the presumption in favor of judicial review has received extensive attention,^[10] its factual prerequisites have not. Courts may sometimes need to conduct a factual determination before they can decide whether to apply the presumption.

This Essay begins, in Part I, by describing the existing Supreme Court case law on jurisdiction channeling and section (b)(9) and explaining how district courts should decide whether to allow affirmative challenges under that case law. Part II describes claims, in the immigration context, that have been effectively precluded by the jurisdiction-channeling statute. Two examples are central: the immigration courts’ failure to translate applications for asylum and the immigration courts’ failure to appoint counsel for even young children. In Part III, finally, I discuss more general implications for the study of limits on the jurisdiction of the federal courts.

I. Jurisdiction Channeling

This Part describes and criticizes the doctrinal framework for interpreting statutes that purport to channel administrative claims directly to courts of appeals. Although courts often use factual language in evaluating whether these statutes preclude all judicial review, no court has recognized the determination as a factual one. Treating facts as facts is especially important in the immigration context, where the channeling of judicial review interacts with the lack of government-appointed counsel to preclude all review of many claims.

Many agency statutes provide for direct review of agency decisions in the courts of appeals, requiring litigants to skip the district court and precluding collateral challenges to agency adjudication procedures. Such agencies include the Merit Systems Protection Board (so long as employment discrimination is not implicated),^[11] the Securities and Exchange Commission,^[12] and the National Labor Relations Board.^[13]

Scholars have devoted little attention to the standard that courts employ to determine the boundaries of jurisdiction-channeling statutes.^[14] That standard—for determining when a jurisdiction-channeling statute effectively precludes all review—is poorly developed. The leading Supreme Court case on the question suggested that channeling review to the court of appeals does not implicate the presumption in favor of review of constitutional claims. That presumption is a strong one; courts have employed it to reach otherwise implausible readings of jurisdiction-stripping statutes. But the Court concluded that that presumption does not apply so long as a meaningful chance of judicial review remains. The Court did not, however, recognize this determination as a factual, probabilistic one.

That case, Elgin v. Department of Treasury,^[15] concerned whether federal employees could go to district court to raise constitutional challenges to their firing or whether they were required to appeal their firing directly to the Federal Circuit from the Merit Systems Protection Board (MSPB). The petitioners were federal employees who were fired on the basis of a statute that bans the federal employment of any person who failed to register for the draft.^[16] They sued in district court, seeking reinstatement to their jobs as well as a declaration that the statute leading to their firing was unconstitutional.^[17] The question before the Supreme Court was whether the district court had jurisdiction or whether the plaintiffs were required instead to bring their claims through a direct administrative appeal, with judicial review only available in the Court of Appeals for the Federal Circuit. The opinion divided the Justices along ideologically unusual lines: Justice Thomas wrote the majority opinion, and Justice Alito filed a dissent, joined by Justices Ginsburg and Kagan.

The majority declined to apply a presumption in favor of collateral judicial review in the district court and held that the statute by its terms required that the issues be raised on direct appeal to the Federal Circuit. The majority characterized the well-known presumption in favor of judicial review of constitutional claims, from Webster v. Doe^[18] and Bowen v. Michigan Academy of Family Physicians,^[19] as a presumption against an interpretation of a statute to “deny any judicial forum for a colorable constitutional claim.”^[20] The Court then held that this “standard does not apply where Congress simply channels judicial review of a constitutional claim to a particular court.”^[21]

Yet the Court did not really mean that: it took care to explain why the claims at issue actually could be raised in the court of appeals. The Court therefore did conduct a factual inquiry—which it did not describe as factual—into whether review remained available: it considered whether the opportunity for review of the constitutional claims within the agency, and on appeal to the Federal Circuit, would be “meaningful.” It also suggested that the presumption in favor of judicial review might apply if the claims could not be “meaningfully addressed” in a court of appeals.^[22]

In deciding whether meaningful review was available, the Court considered whether the Federal Circuit could reach the claims. The plaintiffs contended that the Federal Circuit could not reach the constitutional issues because the MSPB would dismiss a case raising them, thereby depriving the Federal Circuit of the record needed for constitutional review.^[23] The Court disagreed. Although the answer to this question is necessarily probabilistic, the Justices did not treat it that way. Instead, they appeared to be answering a different question: whether such review could ever be possible.

That must be the wrong question. Imagine a statute that provides that the Federal Circuit will review 1 in every 1,000 constitutional claims, to be selected by lottery. The Supreme Court could equally have dismissed the contention that such claims would “never reach the factfinding stage” and that the Board would “invariably dismiss” them.^[24] Justice Alito’s dissent was no more realistic than the majority on this point: the dissent offered reasons why a district court could better adjudicate these claims, but, like the majority, did not suggest the court should determine how likely the claims were to be reviewed at the court of appeals.^[25] Justice Alito therefore also did not quarrel with the majority’s determination that the presumption in favor of judicial review did not apply.

Neither the majority nor the dissent recognized that the meaningfulness of any review process must depend on the chance that a claim can be reviewed. In order to answer the question of whether review is meaningful, courts need to consider how commonly it is available. Indeed, the Court used probabilistic language, hazarding a guess about whether factfinding would actually be regularly available in the administrative process, holding that “we think the CSRA review scheme fully accommodates an employee’s potential need to establish facts relevant to his constitutional challenge to a federal statute.”^[26] The Court’s characterization of its statement as a thought was apt: neither the petitioners nor the government produced evidence about how frequently constitutional claims would be adjudicated if brought through the MSPB process. Nor had the district court conducted factfinding on the issue.^[27] And none of the Justices suggested that the district court should have done so.

Yet a factual inquiry into a jurisdictional issue is far from unknown in the law. For example, when establishing standing, “each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, [i.e.], with the manner and degree of evidence required at the successive stages of the litigation.”^[28] And courts depend on these facts to make a probabilistic determination about the likelihood of injury.^[29] Courts could apply this standard, or fashion a similar one, in determining whether plaintiffs are entitled to the presumption in favor of judicial review.

Had the Court understood the “meaningful review” standard as presenting a factual question, it could have remanded the case to the district court for determination of the facts relevant to it—for example, for determination of how frequently the MSPB dismissed such cases (rather than deciding them on the merits). Only after those determinations should it be possible to say whether the presumption in favor of review applies, and therefore whether district courts have jurisdiction to hear these claims.^[30]

In sum, Elgin requires that courts inquire into whether meaningful review exists, but fails to recognize that this question is a factual, probabilistic one.

II. Jurisdiction Channeling, Counsel, and Constitutional Violations in Immigration Court

This Part describes two examples of claims precluded by an expansive reading of section (b)(9): claims seeking translation of the asylum application, and claims seeking appointed counsel for children. Those examples are significant enough, on their own, to require a rethinking of section (b)(9). But they are only examples, and section (b)(9) has become even more important and harmful as the government has invoked it to defend its asylum bans.

Before describing the two examples in Sections C and D, I offer a brief introduction, in Sections A and B, to immigration court procedure and the state of the doctrine interpreting the immigration statute’s channeling scheme.

A. Immigration Court Procedure

A standard removal case begins when the government files a Notice to Appear. The Notice to Appear sets out the immigration charge—the statutory provision under which the government believes that the person is in the United States without authorization—and sets a date on which the person is to appear in immigration court.^[31] In some cases, the government imprisons the noncitizen pending immigration proceedings; in others, the noncitizen remains free but must appear at immigration court hearings.

The proceedings in immigration court unfold over a series of hearings. At an initial group or “master calendar” hearing, the immigration judge holds a short colloquy with each respondent, offering an advisal of rights (if the respondent lacks an attorney) and giving the respondent a chance to admit or deny the immigration charges.^[32] At all hearings, an interpreter is present to translate the oral proceedings—but not any written applications. If the respondent intends to contest the immigration charges or to apply for a form of immigration relief, like asylum or family-based relief, the immigration judge schedules an individual merits hearing, which is a short trial-like proceeding at which the parties may present evidence (including witnesses) and legal arguments.^[33]

Either the government or the noncitizen may appeal the immigration judge’s decision to the Board of Immigration Appeals, the administrative appeals board within the Executive Office for Immigration Review. If the Board grants relief, that decision is subject to review only by the Attorney General, who may certify decisions of the Board for her review and reverse them if she chooses. If, on the other hand, a removal order is affirmed by the Board of Immigration Appeals or by the Attorney General, the respondent may still petition to a court of appeals for review of the decision within thirty days.

B. The Channeling of Immigration Appeals

Before describing claims for which an expansive reading of section (b)(9) precludes jurisdiction entirely, a little background on that section is in order.

The immigration statute, as amended by the REAL ID Act of 2005, provides that court of appeals review “shall be the sole and exclusive means for judicial review of an order of removal,”^[34] and it explicitly notes that the preclusion of other review means the preclusion of all habeas review as well.^[35] The statute does not stop there, though. It also provides, in the less-infamous-than-it-should-be section (b)(9), that

[j]udicial 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.^[36]

This provision is titled “[c]onsolidation of questions for judicial review,” and it sounds like a means of consolidating questions in the court of appeals, allowing litigants to skip the district court and have all of their claims resolved at once.

Congress amended section (b)(9) in 2005 “to clarify that, except as otherwise provided in section 242 of the INA, no court is to have jurisdiction for habeas review or other non-direct judicial review of a removal order or questions of law or fact arising from such an order.”^[37] This clarified the confusing jurisdictional patchwork left after INS v. St. Cyr,^[38] in which some claims had to be brought as habeas actions in the district court, whereas others needed to be litigated on petition for review in the court of appeals.^[39]

Courts generally deemed the petition for review process an adequate alternative to habeas corpus in the run of challenges to deportation orders,^[40] but it was less clear whether courts would allow affirmative district court lawsuits challenging aspects of immigration court procedure.^[41]

Courts have interpreted section (b)(9) to require that all claims that could be raised on a petition for review must be raised on a petition for review—and may not be asserted in a district court action. For example, the Ninth Circuit has held that section (b)(9) precludes review so long as a claim “could and should have been brought before the agency.”^[42]

The key question, then, is whether any given claim can, in fact, be raised on a petition for review (a direct appeal).^[43] Courts have not described this inquiry as factual; instead, they have looked to the statutory scheme itself to determine whether a meaningful opportunity for review existed.^[44] For example, in a 2010 challenge to the government’s failure to provide counsel to mentally incompetent respondents in immigration court, the district court recognized that absent counsel, mentally disabled noncitizens’ counsel claims would not receive judicial review. But the court did not describe this as a factual conclusion, and it relied less on this conclusion than on the proposition that the relief—appointed counsel—would only “help to ensure [the plaintiffs’] meaningful participation in removal and/or custody proceedings.”^[45] (The government did not appeal, and as a result, the Ninth Circuit did not review that decision.)^[46]

In each of the examples below, a factual inquiry into whether section (b)(9) is preclusive should consider three factors: 1) the obstacles (or lack of them) to raising the claim in the court of appeals; 2) how often the challenged action occurs relative to how often it is reviewed by a court of appeals; and 3) how important the procedural devices of collateral district court litigation are to an effective challenge. In each example, if courts were to conduct this factual inquiry, they would determine that the unavailability of collateral review precludes the relevant claims. Courts would therefore apply the presumption in favor of judicial review and read section (b)(9) narrowly to allow district court jurisdiction. After discussing these examples, I explain in Section E that this factual inquiry is most likely to find a preclusion of jurisdiction when the violation at issue affects only noncitizens without lawyers.

C. Example 1: Failure to Translate the Asylum Application

The government’s failure to translate the asylum application fails all three parts of the proposed factual test: 1) the appeals process presents nearly insuperable obstacles to challenges in the court of appeals, 2) the claim has never been raised, despite thousands of non-English speakers encountering it every year, and 3) the availability of injunctive relief and the class action device is critical to solving the problem.

First, some background on the asylum application. Noncitizens facing deportation have a statutory right to apply for asylum and other forms of persecution-related relief.^[47] An application for asylum (or withholding of removal or relief under the Convention Against Torture) begins with a paper application: the I-589 form.^[48] That form solicits information about each applicant’s asylum claim, including the reasons why the noncitizen fears persecution if deported. The form is only available in English,^[49] and the instructions specify that “[y]our answers must be completed in English. Forms completed in a language other than English will be returned to you.^[50]

The failure to translate the application and the requirement that it be filled out in English are almost certainly illegal—under the asylum statute^[51] and under the Due Process Clause^[52]—but as far as this author is aware, no court has had the opportunity to consider their legality.

A district court, when deciding whether it has jurisdiction over a collateral challenge to this failure to translate, should consider the three factors I have argued should determine whether, absent district court review, no meaningful review of these claims would be possible.

First, the court should consider the obstacles to challenging the lack of translation on petition for review. The translation issue cannot realistically be raised by a pro se applicant who finds an attorney after being ordered removed by the immigration judge but before the thirty-day deadline for filing an appeal. If the applicant finds an attorney at that stage, the attorney’s responsibility is to move the immigration judge to reconsider^[53] or to move the Board of Immigration Appeals to remand to consider new evidence.^[54] And if an attorney appears on the scene after the deadline for appeal has passed, the correct course is to file a motion to reopen, which is likely to be granted, since a new asylum application will almost certainly contain new evidence.^[55] And even if all of these obstacles could be overcome and these issues were briefed on appeal, the court of appeals could very well decide the petition for review on an alternative ground, as the Ninth Circuit recently did in the children’s counsel context.^[56] Or, in some circuits, the court of appeals could ignore the violation if it found that the failure to translate did not cause prejudice in that respondent’s case—for example, if it concluded that the respondent lacked a viable asylum claim regardless.

The analysis so far involves the statutory scheme—something that courts already consider. But courts should also consider other evidence of the obstacles to raising these claims. For example, the plaintiffs might provide affidavits explaining why they would be unable to challenge the lack of translation in immigration court. Even without such evidence, however, the first factor clearly supports finding district court jurisdiction.

The second factor is straightforward and decisive. The district should consider the numbers. Over 85% of respondents in the immigration courts have limited English proficiency.^[57] Around 40% of asylum seekers who end up in immigration proceedings do not file an asylum application—no doubt in many cases because they cannot fill out the application in English and they lack a lawyer.^[58] And zero court of appeals cases have squarely considered whether the government must translate the asylum application. Instead, the existing inadequate interpretation cases generally concern instances in which an interpreter translated incorrectly.^[59] Tellingly, the few cases in which courts of appeals considered language issues for asylum applicants concerned people who did have their applications translated at their own expense—but where those translations contained errors or were late. For example, one case involved an asylum applicant whose attorney provided a Mandarin translator instead of a Korean translator for the asylum application,^[60] and another concerned an applicant who filed an initial asylum application in Spanish and a subsequent late application in English, and then sought to have the later English application considered.^[61] In both cases, the courts of appeals affirmed the applicants’ removal orders; the courts held that translation issues did not prevent their applications for asylum. The claim at issue here—that the government must translate the application and individuals’ responses—therefore went unaddressed.

Moreover, in both of these cases, the respondents had lawyers representing them in immigration court. Indeed, one of the courts noted that “[e]ven though Petitioner did not speak English, his attorney did.”^[62] It is not surprising that both of these cases concern applicants who had attorneys. As a statistical matter, applicants without attorneys virtually never appeal.^[63] And as a matter of common sense, applicants who do not have a lawyer and cannot speak English cannot appeal: all appeals, even to the administrative Board of Immigration Appeals, must be in English.^[64]

The second factor therefore strongly suggests that section (b)(9) has preclusive effect and that the presumption in favor of review in district court should apply.

Finally, the third factor—the importance of district court procedural devices—points in the same direction. If civil rights attorneys could bring a collateral district court action challenging this practice, the practice would be quickly invalidated. The attorneys could represent applicants with pending cases, and they could certify a class of people who wanted to apply for asylum but lacked access to attorneys or interpreters. Moreover, a district court could issue injunctive relief that would comprehensively address the due process issues. By contrast, if the issue was decided on a petition for review, the government would be free to read the opinion as it chose: that reading could itself only be challenged on a subsequent petition for review, meaning that the government’s reading would, at a minimum, prevail for the years in which it would take for the issue to be raised. During those years, the government might conclude, for example, that the relevant court of appeals decision only required translation in some subset of cases. Litigants would not be able to bring an enforcement action to challenge that interpretation.

Applying a presumption in favor of judicial review, district courts should conclude that section (b)(9) does not deprive them of jurisdiction to hear challenges to the government’s failure to translate the asylum application.

D. Example 2: Appointed Counsel for Children Facing Deportation

Almost everyone agrees that the Due Process Clause guarantees government-appointed counsel for young children in immigration court, but no case has reached that holding—because of section (b)(9).^[65] The failure of the government to provide children with counsel in removal proceedings has generated perhaps the leading case on section (b)(9). That case and its aftermath demonstrate why the statute must be read to allow collateral challenges in district court to this lack of government counsel.

In J.E.F.M. v. Lynch, several civil rights groups brought a class action on behalf of unaccompanied children who lacked counsel in removal proceedings.^[66] The government moved to dismiss the case on jurisdictional and other grounds, but the district court denied the motion in part, allowing the case to proceed.^[67] The plaintiffs assembled a detailed record, including expert evidence and fact depositions. (In one of those depositions, an immigration judge notoriously asserted that three- and four-year-olds could competently represent themselves in removal proceedings.)^[68]

The Ninth Circuit reversed on jurisdictional grounds, holding that the plaintiffs’ statutory and constitutional claims seeking appointed counsel in immigration court could be asserted only on petition for review of a removal order in a court of appeals.^[69] The panel began by noting the breadth of section (b)(9)’s text, which—together with the statute’s command that “[a] petition for review . . . shall be the sole and exclusive means for judicial review of an order of removal”^[70]—requires that any claim related to removal proceedings that is not “[a]ncillary”^[71] or “collateral”^[72] to those proceedings may only be raised on a petition for review. Quoting the First Circuit, the court characterized section (b)(9) as “‘breathtaking’ in scope and ‘vise-like’ in grip.”^[73]

The court’s analysis of the statute depended on facts, but it did not characterize the inquiry as factual. The court took as a premise that “while these [statutory] sections limit how immigrants can challenge their removal proceedings, they are not jurisdiction-stripping statutes that, by their terms, foreclose all judicial review of agency actions.”^[74] This premise was critical: the panel relied on the Supreme Court’s suggestion in Elgin that the presumption in favor of judicial review does not apply “where Congress channels judicial review of constitutional questions to a particular court but does not deny all judicial review of those questions.”^[75]

The court then engaged in a factual, probabilistic analysis of whether the claims in question could be raised on a petition for review. The court began by suggesting that adult immigrants “routinely” raise right-to-counsel claims on petition for review, citing three opinions over the last thirty years in which petitioners raised such claims.^[76] The court also noted that, in a separate pending petition for review, a fourteen-year-old had raised an appointed counsel claim on appeal; this child had found a lawyer after having been ordered removed.^[77] The court declared that this single case “lays rest to the contention that right-to-counsel claims will never surface through the PFR process.”^[78] Finally, the court noted that the government had agreed, for a limited period, to provide notice to the plaintiffs’ counsel of any removal order for an unaccompanied child following a merits hearing.^[79] These were all factual conclusions, but the court did not recognize the inquiry as involving any question of fact.^[80]

Had the Ninth Circuit recognized that this test was factual and instructed the district court to take evidence on the jurisdictional question, that evidence would have yielded unambiguous results. Again, the same three factors should have organized the inquiry.

First, the Ninth Circuit underestimated the obstacles to raising the appointed counsel issue on petition for review. Indeed, a concerted effort to bring this issue before a court of appeals has so far failed, despite thousands of removal orders issued to unrepresented children.^[81] Consider the many barriers to bringing this claim in that posture. First, unrepresented children, if they are ordered removed, are vanishingly unlikely to be able to appeal—ironically, for the same reasons that they need counsel in the first place.^[82] The only chance to appeal arises within the thirty-day window after the order of removal is entered. But—again because the child lacked counsel at the time of the removal order—other attorneys are unlikely to learn of the removal order.^[83] Moreover, in most of these cases, the immigration judge ordered the child removed in absentia, when he or she did not appear at the hearing.^[84] When the child does not appear in court, it is unlikely that an attorney will locate the child and file an appeal, yet the child’s interest in having an attorney is even higher in those cases: who could expect an unaccompanied toddler to read a notice to appear and come to a hearing?^[85] And if an in absentia removal order is entered, that order allows ICE later to deport the child without any opportunity for the child to appear before an immigration judge, let alone to access appointed counsel.

Moreover, even if, against the tall odds, the child finds an attorney in the thirty-day period between entry of a removal order and the appeal deadline, that appeal is unlikely to decide the question of whether the Due Process Clause requires appointed counsel. Indeed, impact litigators managed to raise such a claim in one case decided by a court of appeals. In C.J.L.G. v. Barr,^[86] a fourteen-year-old asylum applicant was ordered removed by an immigration judge after explaining that he could not afford counsel.^[87] He found counsel for his appeal, and that counsel argued that his removal order violated his right to appointed counsel under the Due Process Clause.^[88] The Board of Immigration Appeals dismissed the appeal, and the applicant petitioned for review to the Ninth Circuit. The Ninth Circuit panel rejected the counsel argument, largely because it concluded that there was no prejudice—that C.J.L.G.’s claims would have failed regardless of whether he had found counsel.^[89] C.J.L.G. petitioned for rehearing en banc, and the en banc Ninth Circuit vacated the panel opinion—but declined to reach the issue of whether the petitioner had the right to appointed counsel. Instead, the en banc court vacated the removal order on an alternative ground: that the immigration judge had failed to inform the child that he was eligible for a different form of immigration relief.^[90] C.J.L.G. illustrates that even when attorneys are able to find a similar claim and raise it defensively on petition for review, they may still be unable to get a broad ruling on the right at issue: the reviewing court can often resolve the case without addressing a facial challenge to the legality of the practice.

The second factor—the relative numbers—also supported applying the presumption in favor of review. The Ninth Circuit suggested that right-to-counsel claims are “routinely”^[91] raised in the court of appeals on petition for review. In reaching that conclusion, it cited three court of appeals decisions considering right to counsel issues for adults, as well as a single pending case concerning a minor who lacked counsel.^[92] The court was making an empirical suggestion—that children who are denied counsel appeal directly as a matter of routine. That suggestion was inaccurate, and the court should have known that it was inaccurate. One of the expert reports submitted in the case showed nearly 7,000 deportation orders for unaccompanied children in just the last several years.^[93] In other words, the court concluded that an event that occurred one in 7,000 times was routine. Indeed, the single pending case settled,^[94] and as a result there have still been no cases successfully raising the issue. With thousands of potential cases and not a single one resulting in review, the relative numbers strongly support finding that section (b)(9) does not just channel these claims, but rather factually precludes them.

Third, and finally, district court procedural devices are crucial to raising this claim. Expert discovery produced the numbers that I cited because the district court (correctly) held that section (b)(9) did not apply; the class action device would allow a holding to reach beyond the individual circumstances of the case; and the district court’s ability to fashion injunctive relief would allow it to supervise a system of appointed counsel.

E. What Courts Should Do

The path forward for courts is straightforward. In fact, the Supreme Court has already outlined the interpretive tack that courts should take. In Jennings v. Rodriguez,^[95] the Supreme Court considered a challenge to prolonged hearingless detention of immigrants during removal proceedings. The government argued that the district court lacked jurisdiction because the petitioners’ detention arose from their removal proceedings. Seven Justices disagreed. In the opinion for the Court, Justice Alito explained that the words “arising from” could not be given their literal meaning because such a reading would “depriv[e] . . . detainee[s] of any meaningful chance for judicial review.”^[96]

The factual inquiry that I have proposed would help courts determine when plaintiffs have a “meaningful chance” of review: where claims are factually precluded by section (b)(9), courts should hold that the claims do not arise from actions taken to remove a noncitizen. A blueprint exists for exactly this type of decision: in McNary v. Haitian Refugee Center, Inc.,^[97] the Supreme Court interpreted a provision^[98] similar to section (b)(9) to permit affirmative pattern and practice claims in the district court. Perhaps partly in response to the McNary decision, section (b)(9) is more unequivocal than the statute at issue in McNary. But all of the same functional considerations apply.

Finally, there is an obvious place to start for the factual inquiry that I propose: courts should begin by determining whether the challenged violation only or mostly harms people without lawyers. Table 1 summarizes this approach. In the two examples above—challenges to lack of appointed counsel and challenges to lack of translation—only people without counsel are harmed. In those instances, no district court review means no review at all. For those cases, the presumption of reviewability, if it has any meaning at all, must be a presumption of reviewability in district court.

There is one last problem, which is less the focus of this Essay, but which bears mention: delay.^[99] What does this proposed approach say about cases where review will eventually be available on direct appeal? Timing matters, and under some circumstances, interim review must be available. The eventual availability of review is not equivalent to a meaningful chance at review if thousands of noncitizens will be deported because a claim has not received review in the meantime. To see this point, consider a case challenging Trump’s asylum ban.

In that case, O.A. v. Trump,^[100] plaintiffs challenged the first of President Trump’s asylum bans: his November 9, 2018, rule purporting to preclude asylum for noncitizens who entered the country between ports of entry. That rule was contrary to the text of the asylum statute, which guarantees the right to apply for asylum for any person “who arrives in the United States (whether or not at a designated port of arrival . . .).”^[101] The ban was quickly enjoined (in a parallel case in the Ninth Circuit), and the Supreme Court refused to stay the injunction.^[102]

In O.A., the government asserted that the D.C. District Court lacked jurisdiction over the individual plaintiffs’ claims under section (b)(9).^[103] The district court, in a lengthy and thorough analysis, correctly concluded that the claims challenging the ban did not arise from actions taken to remove a noncitizen. In that analysis, the court relied on the Supreme Court’s suggestion, in Jennings, that “arise from” should be read narrowly.^[104] The court therefore correctly concluded that reading section (b)(9) to preclude district court jurisdiction might deprive the plaintiffs of a meaningful opportunity for judicial review.^[105] But it, like other courts, did not describe the meaningful-opportunity-for-review question as a factual one and therefore did not highlight one of the key reasons why a challenge to the asylum ban must be allowed to proceed in district court: if the ban had not been reviewable in district court, noncitizens without counsel could have been deported in large numbers before its legality was decided.

The likely deportation of many pro se noncitizens absent district court review follows from two facts about immigration court. First, pro se cases finish more quickly than represented cases, meaning that deportation orders for pro se noncitizens will be entered long before any represented noncitizen is able to obtain review on direct appeal. The difference in case length reflects the fact noncitizens without lawyers are so much less likely to be able to apply for relief (partly because relief applications are not translated).^[106] And second, pro se noncitizens rarely appeal.^[107] These facts about immigration proceedings are not obvious, but both would be easy for a court to determine through jurisdictional factfinding. The factfinding would reveal that, absent district court review, the asylum ban would be applied first to noncitizens without lawyers, who would be systematically unable to obtain judicial review of their orders of deportation. In other words, the factfinding would indicate that the asylum ban was likely to be unreviewable for a long period of time, during which it would already begin to do harm.

Table 1: Counsel and the Likelihood that Jurisdiction Channeling Precludes Review

	Claim affects represented immigrants.	Claim does not affect represented immigrants.
Claim affects pro se immigrants.	Pro se immigrants will be harmed in the interim period before the issue is decided on a defensive appeal, so the reviewability presumption applies.	No review exists absent collateral district court review, so the reviewability presumption applies.
Claim does not affect pro se immigrants.	The reviewability presumption may not apply, since it is likely that represented immigrants will eventually obtain review.	N.A.

III. Implications for Theories of Article I Adjudication

This Essay’s proposed factual inquiry into jurisdictional preclusion fits easily within prominent theories of Article I adjudication. I suggest adding a critical factual step to determine whether Article I courts are subject to sufficient Article III supervision.

Federal courts scholars largely agree that Congress retains extremely broad—maybe unlimited—powers to strip the district courts of jurisdiction over challenges to administrative action, so long as appellate jurisdiction remains.^[108] Richard Fallon’s summary of Congress’s power to set the conditions of judicial review of administrative action is representative: “there is no constitutional problem with preclusion of APA review . . . as long as [harmed] parties . . . can bring their legal complaints before a court in another form—for example, . . . as a defense in a civil or criminal enforcement action (provided that the alternative procedure affords due process).”^[109]

In a sense this is merely a more specific articulation of Hart’s well-known proposition that “a complaint about [Congress’s choice of remedies] can rarely be of constitutional dimension.”^[110]

But to what extent does Congress have the power to vest adjudicatory authority entirely in an Article I court? For systems of adjudication in which Congress requires that parties initially seek relief in an administrative tribunal, Fallon has proposed an influential “appellate review theory.”^[111] That theory starts by defending the premise that “the Constitution, subject only to narrow qualifications, requires judicial review of and effective remedies for coercive violations of constitutional rights by government officials.”^[112] Fallon concludes that that requirement can generally be satisfied through appellate review.^[113]

Jim Pfander has offered an alternative account, focusing on Congress’s power under the Constitution to create “inferior tribunals.”^[114] That theory shares some elements of appellate review theory, but it describes circumstances under which collateral review may be a sufficient substitute for appellate review and focuses on Congress’s purpose in placing adjudication within the executive.^[115]

My suggestion—that jurisdiction-channeling schemes sometimes lead to the preclusion of all review, and that courts must determine whether they do—can be fit into either the appellate review or inferior tribunals account. The key is that courts examine the factual premise that review exists.

Fallon’s discussion of the immigration appeals context in the late 1980s—very different then from now—is instructive. At the time, immigration cases proceeded along one of three tracks. In deportation cases, the noncitizen had a direct right of appeal from the decision of the agency to a court of appeals.^[116] In exclusion cases—those concerning people seeking admission to the country at a port of entry—petitioners had access to habeas in district court.^[117] And for all other cases, judicial review was generally available so long as the plaintiff had exhausted administrative remedies.^[118]

Fallon argued that this “statutory scheme accords surprisingly well with an appellate review theory of article III.”^[119] He noted the danger that some claims might not receive review—particularly those designated as discretionary by statute—but thought that the structure of appellate review was sufficient.^[120] And perhaps it was: the key difference between then and now was that then, judicial review was available so long as plaintiffs had exhausted administrative remedies or shown that exhaustion was not required—a far lighter burden than the burden imposed by section (b)(9) today.^[121]

When channeling of judicial review precludes review entirely, that preclusion implicates constitutional principles. Fallon and Meltzer have suggested that two basic principles animate constitutional remedies.^[122] First, and weaker, is the principle that each individual has a right to a remedy for a constitutional wrong. This right can be displaced for many reasons. Second, and stronger—to fill in the gaps where the first principle does not require a remedy—is that there must be a sufficient web of remedies to prevent systemic unremedied constitutional violations. This second principle underlies my view that section (b)(9) functions as a withdrawal of jurisdiction if it prevents all review of a given claim.

Finally, this functional approach has implications for other puzzles in the jurisdiction-stripping literature. In Patchak v. Zinke,^[123] the Court considered the constitutionality of a statute that was passed with the manifest but unstated purpose of determining the result in a pending case. A plurality of four Justices held that the statute did not impinge on the judicial power because it “change[d] the law”—it stripped the courts of jurisdiction over a whole class of cases, even if it was intended to change the result in a single case.^[124] Two Justices concurred on other grounds,^[125] and Chief Justice Roberts wrote a stinging dissent, joined by Justices Kennedy and Gorsuch.^[126] The dissenters castigated the formalism of the majority’s approach, explaining that “[b]ecause the Legislature has no authority to direct entry of judgment for a party, it cannot achieve the same result by stripping jurisdiction over a particular proceeding.”^[127] The disagreement between the majority and the dissent goes to the nub of the problem in evaluating jurisdiction-channeling schemes: if the judiciary cannot examine the actual effects of jurisdictional statutes, Congress may preclude jurisdiction without judicial resistance.

Conclusion

Section (b)(9)’s silent preclusion of judicial review has broad implications for immigration and federal courts scholarship. First, an expansive and wrong interpretation of section (b)(9) has led to a large withdrawal of federal jurisdiction that is significant in its own right. Second, the effective preclusion of due process claims has particularly large implications for the immigration context, where translation of the written asylum application and access to counsel are more important than ever. A better approach to section (b)(9) offers a blueprint for the inquiry that courts should perform whenever they consider the contours of a jurisdictional statute.

1. * Assistant Professor, University of California – Berkeley School of Law. Special thanks to Mahrah Taufique for help on the legal issues concerning translation of the asylum application. Many thanks to Ming Hsu Chen, Jenny-Brooke Condon, Katrina Eiland, David Engstrom, Stephen Kang, Dave Marcus, Justin Simard, Alan Trammell, Emily Zhang, and participants at the Junior Faculty Federal Courts Workshop and New Voices in Immigration Law AALS panel for helpful comments and suggestions. Special thanks to Zabdi Salazar for excellent research assistance and to Blake Himebaugh for terrific suggestions during the editing process. Disclosure: I was an attorney at the American Civil Liberties Union Immigrants’ Rights’ Project from 2016 to 2019 and continue to consult occasionally. That consulting is unrelated to this research. ↑

2. . 8 U.S.C. § 1252(b)(9); see also id. § 1252(b)(2) (providing that the petition must be filed in the court of appeals). ↑

3. . For a discussion of access to counsel in immigration court, see, for example, Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev. 1 (2015). ↑

4. . For the numbers, see infra text accompanying notes 56–57. ↑

5. . For a critical account of jurisdiction discovery in federal court, see S.I. Strong, Jurisdictional Discovery in United States Federal Courts, 67 Wash. & Lee L. Rev. 489, 504–06 (2010). ↑

6. . See infra Section II.D. ↑

7. . For an account of this litigation and a discussion of the danger that jurisdiction channeling may amount to jurisdiction stripping, see David Marcus, How Jurisdiction-Channeling Erodes Rights, in A Guide to Civil Procedure: Integrating Critical Legal Perspectives 231 (Brooke Coleman, Suzette Malveaux, Portia Pedro & Elizabeth Porter eds., 2022). ↑

8. . Adam J. Garnick, Noncitizens’ Access to Federal District Courts: The Narrowing of § 1252(b)(9) Post-Jennings, 169 U. Pa. L. Rev. 783, 796–802 (2021) (describing the consequences of the unavailability of district court review). ↑

9. . See, e.g., Kevin M. Clermont, Jurisdictional Fact, 91 Cornell L. Rev. 973, 978 (2006). ↑

10. . See infra Part III. ↑

11. . 5 U.S.C. § 7703(b)(1)(A) (vesting jurisdiction in the Court of Appeals for the Federal Circuit). ↑

12. . 15 U.S.C. § 78y(a)(1). ↑

13. . 29 U.S.C. § 160(e). ↑

14. . Direct review in the courts of appeals has come in for well-deserved criticism by scholars—but usually not as a preclusion of all review. Mead and Fromherz, for example, note that litigants challenging administrative action must “sift through more than one thousand statutory provisions sprawled across fifty-one titles of the United States Code, enacted piecemeal through more than one hundred years of legislation.” Joseph W. Mead & Nicholas A. Fromherz, Choosing a Court to Review the Executive, 67 Admin. L. Rev. 1, 3–5 (2015). They describe the costs of such complexity and advocate a uniform rule—that review should begin in the district court. Id. at 3–5. ↑

15. . 567 U.S. 1, 14 (2012). The case has generated remarkably little academic commentary; it has been cited only thirty-eight times by law journals. As a basis for comparison, a case in the following term that considered the question of whether a houseboat is a vessel for the purposes of maritime law has been cited by scholars almost twice as often. See Lozman v. City of Riviera Beach, 568 U.S. 115 (2013). ↑

16. . Elgin, 567 U.S. at 7. ↑

17. . Id. ↑

18. . 486 U.S. 592, 603 (1988). ↑

19. . 476 U.S. 667, 681 n.12 (1986). ↑

20. . Elgin, 567 U.S. at 9 (emphasis added) (quoting Webster, 486 U.S. at 603). ↑

21. . Id. ↑

22. . Id. (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 (1994)). ↑

23. . Id. at 20. ↑

24. . Id. ↑

25. . Id. at 29–30 (Alito, J., dissenting). ↑

26. . Id. at 19 (majority opinion). ↑

27. . See Elgin v. United States, 697 F. Supp. 2d 187, 192–94 (D. Mass. 2010). ↑

28. . Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). For a critical account of this standard, see Martin H. Redish & Sopan Joshi, Litigating Article III Standing: A Proposed Solution to the Serious (But Unrecognized) Separation of Powers Problem, 162 U. Pa. L. Rev. 1373, 1374–75 (2014). ↑

29. . See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (determining whether the plaintiff had standing by asking “whether he was likely to suffer future injury”). ↑

30. . Of course, such a decision is vulnerable to one of the Elgin majority’s criticisms of the dissent: “a jurisdictional rule based on the nature of an employee’s constitutional claim would deprive the aggrieved employee, the MSPB, and the district court of clear guidance about the proper forum for the employee’s claims at the outset of the case.” Elgin, 567 U.S. at 15. But the benefits of clarity are questionable if the jurisdictional rule prevents all review. ↑

31. . DHS Notice to Appear Form I-862, Exec. Off. for Immigr. Rev., U.S. Dep’t Just. (Jan. 13, 2015), https://www.justice.gov/eoir/dhs-notice-appear-form-i-862 [https://perma.cc/7ECU-HBUJ]; see also Exec. Off. for Immigr. Rev., U.S. Dep’t of Just., Immigration Court Practice Manual § 4.2 (2023) [hereinafter Immigration Court Practice Manual], https://www.justice.gov/eoir
    /book/file/1528921/dl?inline [https://perma.cc/YX3D-CXCJ]. ↑

32. . Immigration Court Practice Manual, supra note 30, § 4.15(e). ↑

33. . Id. § 4.16. ↑

34. . 8 U.S.C. § 1252(a)(5). ↑

35. . Id. ↑

36. . Id. § 1252(b)(9). ↑

37. . H.R. Rep. No. 109-72, at 176 (2005) (Conf. Rep.). ↑

38. . 533 U.S. 289 (2001). ↑

39. . Before the REAL ID Act of 2005, when certain noncitizens were able to bring habeas petitions in district court to challenge their removal orders, district courts in habeas proceedings reviewed noncitizens’ removal orders pursuant to 28 U.S.C. § 2241. See, e.g., Enwonwu v. Chertoff, 376 F. Supp. 2d 42, 43 (D. Mass. 2005) (holding a full evidentiary hearing and issuing findings of fact in written opinion in which judge granted habeas, remanded Convention Against Torture claim to the Board of Immigration Appeals for reconsideration and ordered Enwonwu’s immediate release). ↑

40. . See, e.g., Stephen I. Vladeck, Habeas Corpus, Alternative Remedies, and the Myth of Swain v. Pressley, 13 Roger Williams U. L. Rev. 411, 432 (2008) (“Even when the adequacy of the remedy [on petition for review] has been open to some question, courts have uniformly upheld the congressional displacement of habeas corpus.”); see also, e.g., Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 326–29 (2d Cir. 2006) (construing the REAL ID act as intending to provide an effective substitute for habeas and concluding that the statute properly failed to grant courts of appeals jurisdiction over questions of fact or discretionary judgments); Enwonwu v. Gonzales, 438 F.3d 22, 32–34 (1st Cir. 2006) (finding that petition for review process was adequate substitute for habeas in the case at bar). ↑

41. . The bill’s legislative history indicates that in making these changes, Congress was careful to avoid depriving any noncitizen of judicial review. The Joint Report accompanying the bill states:

    Significantly, this section does not eliminate judicial review, but simply restores such review to its former settled forum prior to 1996. . . . No alien, not even criminal aliens, will be deprived of judicial review of such claims. Unlike AEDPA and IIRIRA, which attempted to eliminate judicial review of [certain noncitizens’] removal orders, [this section] would give every alien one day in the court of appeals, satisfying constitutional concerns.

    H.R. Rep. No. 109-72, at 174–75. ↑

42. . J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016) (citing Singh v. Gonzales, 499 F.3d 969, 974 (9th Cir. 2007)). ↑

43. . Scholars raised questions about the validity of the REAL ID Act’s jurisdictional provisions almost as soon as it was passed, but they generally did not focus on the factual preclusion of all review. In an influential early article, Gerald Neuman surveyed the possible inadequacies of the petition for review process as a replacement for habeas. Gerald L. Neuman, On the Adequacy of Direct Review After the REAL ID Act of 2005, 51 N.Y.L. Sch. L. Rev. 133 (2006). Neuman systematically worked through the constitutional questions raised by the stricter channeling of claims to the courts of appeals. He identified several likely issues: the short thirty-day period for filing a petition for review, the failure of the statute to provide for post-removal-order review, and the limitation of review to the administrative record. Id. at 143–53. ↑

44. . In some cases, the statutory scheme does answer the question, and courts need not reach the facts. For example, in Singh, 499 F.3d at 973, the petitioner filed a habeas petition in district court raising an ineffective assistance of counsel claim against his attorney, who had missed the deadline to file a petition for review. Because of the missed deadline, the petitioner had no opportunity to file a petition for review. The government contended that section (b)(9) barred Singh’s district court action. The Ninth Circuit disagreed, finding that the district court had jurisdiction over Singh’s habeas petition because the petitioner would otherwise never have his “day in court”—potentially in violation of the Suspension Clause. Id. at 979. The Ninth Circuit effectively made a determination that this claim would never receive judicial review absent district court review. This inquiry did not require factfinding because it was clear that once the petition for review filing deadline had passed, the petition for review process could no longer provide judicial review. ↑

45. . Franco-Gonzales v. Holder, 767 F. Supp. 2d 1034, 1044–45 (C.D. Cal. 2010). ↑

46. . See Franco-Gonzalez v. Sessions, No. CV 10-2211, 2017 WL 10604127, at *2 (C.D. Cal. May 12, 2017). A quick note here on exhaustion: in order to exercise jurisdiction over petitioners’ claims, courts must not only find that section (b)(9) does not bar them, but also that they are not precluded by the more general requirement that plaintiffs exhaust administrative remedies before seeking relief in court. But the exhaustion requirement poses no obstacle once a court has concluded that a plaintiff would lack meaningful judicial review and that section (b)(9) does not apply: exhaustion is not required where “‘adequate relief’ is unavailable through the administrative process.” Franco-Gonzales, 767 F. Supp. 2d at 1046 (quoting Aguilar v. ICE, 510 F.3d 1, 12 (1st Cir. 2007)). ↑

47. . Who can apply for which forms of relief raises complex questions. For example, noncitizens convicted of certain crimes are ineligible for asylum, as are noncitizens who failed to apply for asylum within the statutory period after entry. ↑

48. . I-589, Application for Asylum and for Withholding of Removal, U.S. Citizenship & Immigr. Servs., U.S. Dep’t Homeland Sec. (Jan. 9, 2024), https://www.uscis.gov/i-589 [https://perma.cc
    /2L9E-Z2UW]. The form is used both for affirmative applications for asylum, in which a noncitizen seeks asylum without being placed in removal proceedings, and defensive applications, which are filed after the initiation of removal proceedings. ↑

49. . Id. ↑

50. . U.S. Citizenship & Immigr. Servs. & U.S. Exec. Off. for Immigr. Rev., I-589, Application for Asylum and for Withholding of Removal: Instructions 5 (2023), https://www
    .uscis.gov/sites/default/files/document/forms/i-589instr.pdf [https://perma.cc/39KK-HMF4]. ↑

51. . The asylum statute provides that:

    Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum.

    8 U.S.C. § 1158(a)(1). Courts have held that the right to apply for asylum must be meaningful. For example, when the Trump Administration recently issued a rule purporting to make noncitizens ineligible for asylum if they had entered the country between ports of entry, the Ninth Circuit refused to stay a temporary restraining order enjoining that rule, explaining that “[i]t is the hollowest of rights that an alien must be allowed to apply for asylum regardless of whether she arrived through a port of entry if another rule makes her categorically ineligible for asylum based on precisely that fact.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 771 (9th Cir. 2018). The Supreme Court, by a 5-4 vote, also refused to issue a stay. Trump v. E. Bay Sanctuary Covenant, 139 S. Ct. 782 (2018) (mem.). A right to apply for asylum, but only in a language you do not understand, is hollow. ↑

52. . Finally, there is a due process right to interpretation arising from the fundamental requirement that the respondent in immigration court receive “a reasonable opportunity to examine the evidence against him, to present evidence on his own behalf, and to cross-examine witnesses presented by the Government.” Ahmed v. Gonzales, 398 F.3d 722, 725 (6th Cir. 2005) (quoting Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998)). Since as long ago as 1930, courts have recognized that insufficient interpretation may violate due process. See, e.g., Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir. 1930); Tun v. Gonzales, 485 F.3d 1014 (8th Cir. 2007); Perez-Lastor v. INS, 208 F.3d 773 (9th Cir. 2000). If insufficient interpretation of a hearing violates due process, the absence of interpretation of the asylum application itself doubly violates those principles. ↑

53. . 8 C.F.R. § 1003.23 (2023). ↑

54. . See Exec. Off. for Immigr. Rev., U.S. Dep’t of Just., Board of Immigration Appeals Practice Manual § 4.8(b) (2024) [hereinafter Board of Immigration Appeals Practice Manual], https://www.justice.gov/eoir/book/file/1528926/dl?inline [https://perma.cc/UT69-JMAZ]; 8 C.F.R. § 1003.1(d)(3)(iv) (2023). ↑

55. . See 8 U.S.C. § 1229a(c)(7) (statute authorizing motions to reopen). See generally Trina Realmuto & Kristin Macleod-Ball, Nat’l Immigr. Litig. All. & Am. Immigr. Council, The Basics of Motions to Reopen EOIR-Issued Removal Orders (2022), https://www
    .americanimmigrationcouncil.org/sites/default/files/practice_advisory/the_basics_of_motions_to_reopen_eoir-issued_removal_orders_practice_advisory.pdf [https://perma.cc/4FKW-FZCQ]. ↑

56. . See discussion infra Section II.D. ↑

57. . Laura Abel, Brennan Ctr. for Just., Language Access in Immigration Courts 1 (2011), https://www.brennancenter.org/sites/default/files/legacy/Justice/LangAccess/Language_Access
    _in_Immigration_Courts.pdf [https://perma.cc/B2C2-4K34]. ↑

58. . See Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55934, 55946 (Nov. 9, 2018) (finding that “40% of all initial completions originating with a credible-fear referral . . . were completed in FY 2018 without an alien filing an application for asylum”). Note that this may be an overestimate, because the number of credible-fear interviews has surged recently, and there is often a long gap between the initiation of a case and the filing of an application. ↑

59. . See, e.g., Zhen Li Iao v. Gonzales, 400 F.3d 530, 532 (7th Cir. 2005) (remanding where interpreter at hearing “appears not to have had a good command of English”); Wang He v. Ashcroft, 328 F.3d 593, 602–03 (9th Cir. 2003) (holding that failure to provide interpreter who spoke the respondent’s Chinese dialect undermined the agency’s finding of inconsistencies in the respondent’s testimony); Ilunga v. Holder, 777 F.3d 199, 208 (4th Cir. 2015) (remanding because inconsistency likely resulted from translation errors or language-based misunderstanding). ↑

60. . Haisong Li v. Holder, 563 F. App’x 806, 808 (2d Cir. 2014) (unpublished). ↑

61. . Toj-Culpatan v. Holder, 612 F.3d 1088, 1091 (9th Cir. 2010) (per curiam). The court appeared not to understand that the government does not provide translation of the asylum application itself, finding that “Petitioner fails to explain how his inability to speak English is extraordinary for an alien nor how it prevented him from timely filing an asylum application in English, especially given that the government makes translators available to immigrants who do not speak or read English.” Id. ↑

62. . Id. ↑

63. . David Hausman, The Failure of Immigration Appeals, 164 U. Pa. L. Rev. 1177, 1193 (2016). ↑

64. . Board of Immigration Appeals Practice Manual, supra note 53, § 3.3(a). ↑

65. . Compare, e.g., J.E.F.M. v. Lynch, 837 F.3d 1026, 1039 (9th Cir. 2016) (McKeown, J., concurring) (indicating that the lack of counsel for children raises serious due process concerns), with id. at 1041 (Kleinfeld, J., concurring) (same). See also, e.g., Amanda Kavita Sewanan, Note, The Right to Appointed Counsel: The Case for Unaccompanied Immigrant Children, 41 Cardozo L. Rev. 317, 322–23 (2019). ↑

66. . Complaint, J.E.F.M. v. Lynch, 107 F. Supp. 3d 1119 (W.D. Wash. 2015) (No. 14-01026). ↑

67. . J.E.F.M., 837 F.3d at 1030–31. The district court dismissed the statutory claims but allowed the constitutional claims to proceed. Id. at 1030. The Ninth Circuit eventually reversed on jurisdictional grounds. Id. at 1039. ↑

68. . Molly Hennessy-Fiske, This Judge Says Toddlers Can Defend Themselves in Immigration Court, L.A. Times (Mar. 6, 2016, 3:00 AM), https://www.latimes.com/nation/immigration/la-na
    -immigration-judge-20160306-story.html [https://perma.cc/PXZ2-FAPU]. ↑

69. . J.E.F.M., 837 F.3d at 1031–38. ↑

70. . Id. at 1031 (quoting 8 U.S.C. § 1252(a)(5)). ↑

71. . Id. at 1032 (quoting Torres-Tristan v. Holder, 656 F.3d 653, 658 (7th Cir. 2011)). ↑

72. . Id. (quoting Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir. 2007)).  ↑

73. . Id. at 1031 (quoting Aguilar, 510 F.3d at 9). ↑

74. . Id. ↑

75. . Id. (citing Elgin v. Dep’t of Treasury, 567 U.S. 1, 9–10 (2012)). ↑

76. . Id. at 1033 (citing Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008); Zepeda-Melendez v. INS, 741 F.2d 285, 289 (9th Cir. 1984); Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir. 2005)). ↑

77. . Id. at 1037 (citing Guzman-Heredia v. Gonzales, No. 04-72769 (9th Cir.) (unpublished)). ↑

78. . Id. At least one other court has adopted this reasoning. In Vetcher v. Sessions, a pro se petitioner filed an action in the D.C. District Court seeking, among other things, increased access to legal material and the detention facility’s law library to help him navigate the petition for review process and contest his ongoing removal proceedings. 316 F. Supp. 3d 70 (D.D.C. 2018). Citing J.E.F.M. and Elgin, the district court declined to exercise jurisdiction. Despite conceding that neither the immigration judge nor the Board of Immigration Appeals could resolve his constitutional due process claim, the court found the issue to be “enmeshed with his removal proceedings,” and therefore held that it could only be reviewed through a petition for review in the Fifth Circuit. Id. at 77. ↑

79. . J.E.F.M., 837 F.3d at 1037 n.10. ↑

80. . For a proposed standard of proof for jurisdictional factual claims, see Clermont, supra note 8, at 978–84. ↑

81. . See infra notes 92–93 and accompanying text. ↑

82. . See infra text accompanying notes 85–89. ↑

83. . In master calendar hearings, in which counsel for other immigrants might be present, immigration judges typically hear represented cases first and then allow counsel to leave, in order to save attorneys’ time. ↑

84. . See Expert Report of Professor Susan B. Long at 139, J.E.F.M. v. Lynch, 107 F. Supp. 3d 1119 (W.D. Wash. 2015) (No. 14-01026). ↑

85. . In J.E.F.M., the court made much of the government’s agreement to let counsel know of removal orders issued to children, but that agreement specifically excluded absentia orders. J.E.F.M. v. Lynch, 837 F.3d 1026, 1037 n.10 (9th Cir. 2016). ↑

86. . 923 F.3d 622, 625 (9th Cir. 2019) (en banc). ↑

87. . Id. ↑

88. . Id. ↑

89. . C.J.L.G. v. Sessions, 880 F.3d 1122, 1146–47 (9th Cir. 2017), reh’g en banc granted, 904 F.3d 642 (9th Cir. 2018), vacated sub nom. C.J.L.G. v. Barr, 923 F.3d 622 (9th Cir. 2019) (en banc). ↑

90. . C.J.L.G., 923 F.3d at 626–29. ↑

91. . J.E.F.M., 837 F.3d at 1033. ↑

92. . See sources cited supra note 75. ↑

93. . Expert Report of Professor Susan B. Long, supra note 83, at 138; see also id. at 130–31 (explaining that these cases included only cases from July 2014, when the database began tagging children’s cases in a new way, to August 2015). ↑

94. . C.J.L.G., 923 F.3d at 630 (Paez, J., concurring) (explaining that Guzman-Heredia v. Gonzales, No. 04-72769 (9th Cir.), ultimately settled). ↑

95. . 583 U.S. 281 (2018). ↑

96. . Id. at 293. For a comprehensive discussion of the ways in which Jennings affected the interpretation of section (b)(9), see Garnick, supra note 7, at 824–43. ↑

97. . 498 U.S. 479, 491–94 (1991). ↑

98. . 8 U.S.C. § 1160(e). ↑

99. . Garnick, supra note 7, at 829–42, offers additional examples of cases in which section (b)(9) should be read narrowly even where it does not entirely preclude review. Garnick also considers the harms of delay, noting that some courts have found that section (b)(9) does not preclude district court consideration of any claim that could not have been raised before the immigration judge—even if it could eventually have been considered on petition for review. Id. at 832–34. ↑

100. . 404 F. Supp. 3d 109 (D.D.C. 2019). ↑

101. . 8 U.S.C. § 1158(a)(1). ↑

102. . E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1231 (9th Cir. 2018) (declining to stay the district court’s temporary restraining order); Trump v. E. Bay Sanctuary Covenant, 139 S. Ct. 782 (2018) (same). ↑

103. . O.A., 404 F. Supp. 3d at 126–38. ↑

104. . Id. at 131–32. ↑

105. . Id. at 136–37. ↑

106. . Hausman, supra note 62, at 1201, 1203. ↑

107. . Id. at 1193. ↑

108. . See, e.g., Richard H. Fallon, Jr., Jurisdiction-Stripping Reconsidered, 96 Va. L. Rev. 1043, 1093–95 (2010) (rejecting limits on Congress’s power to strip district courts of jurisdiction); cf. Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III, 132 U. Pa. L. Rev. 741, 776 (1984) (presenting an originalist argument for mandatory district court jurisdiction); Theodore Eisenberg, Congressional Authority to Restrict Lower Federal Court Jurisdiction, 83 Yale L.J. 498, 501 (1974) (arguing that the Constitution places limits on Congress’s ability to prevent plaintiffs from vindicating constitutional rights by eliminating lower court jurisdiction). ↑

109. . Fallon, supra note 107, at 1127. ↑

110. . Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1366 (1953). ↑

111. . See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 Harv. L. Rev. 915, 933 (1988). ↑

112. . Id. at 961. ↑

113. . See id. at 933; see also id. at 967–70 (discussing the theory in the context of immigration cases). ↑

114. . James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 Harv. L. Rev. 643 (2004); Fallon, supra note 107, at 1118 (noting that Pfander had shown that appellate review theory would require the invalidation of more existing review structures than Fallon had anticipated). An additional implication of my argument is that the availability of collateral review may, in some circumstances, better protect constitutional rights than direct review. ↑

115. . Pfander, supra note 113, at 651–52. ↑

116. . Stephen H. Legomsky, Forum Choices for the Review of Agency Adjudication: A Study of the Immigration Process, 71 Iowa L. Rev. 1297, 1310–12 (1986). ↑

117. . Id. ↑

118. . Id. ↑

119. . Fallon, supra note 110, at 968. ↑

120. . Id. at 968–69. ↑

121. . See supra note 45 (describing exhaustion standard). ↑

122. . Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1787–89 (1991); see also Fallon, supra note 107, at 1107. ↑

123. . 583 U.S. 244 (2018). ↑

124. . Id. at 250–55. ↑

125. . Id. at 263 (Ginsburg, J., concurring in judgment); id. at 264 (Sotomayor, J., concurring in judgment). ↑

126. . Id. at 266 (Roberts, C.J., dissenting). ↑

127. . Id. at 275. ↑