United States v. 2020-04-27 | 16-71918 | VICTOR PEREZ V. WILLIAM BARR | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VICTOR MANUEL PEREZ, AKA
Victor Perez,
Petitioner,

v.

WILLIAM P. BARR, Attorney General,
Respondent.
No. 16-71918

Agency No.
A087-446-901

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted February 14, 2019
Vacated October 7, 2019
Resubmitted April 20, 2020
Pasadena, California

Filed April 27, 2020

2 PEREZ V. BARR

Before: Consuelo M. Callahan and Andrew D. Hurwitz,
Circuit Judges, and Edward R. Korman,
*
District Judge.
**

Opinion by Judge Callahan

SUMMARY
***

Immigration / Pro Bono Compensation

The panel denied petitioner’s request for compensation
at government expense of his court-appointed pro bono
counsel in a petition for review of the Board of Immigration
Appeals’ denial of relief from removal, holding that there is
no authority, including under the federal habeas statutes, the
All Writs Act, and the Criminal Justice Act, requiring the
government to compensate counsel for mentally
incompetent petitioners in petitions for review under
8 U.S.C. § 1252(a).

Petitioner contended that because the Suspension Clause
requires petitions for review under the REAL ID Act to serve
as the functional equivalent of habeas petitions, the court can
and should exercise its authority to appoint government-

*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
**
Pursuant to Ninth Circuit General Order 3.2.h, Judge Hurwitz was
drawn by lot to replace our late colleague Judge Raymond T. Fisher.
Judge Hurwitz has reviewed the record and briefs in this case and
listened to the oral argument before the prior panel.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

PEREZ V. BARR 3

compensated counsel under the Criminal Justice Act,
18 U.S.C. § 3006A, and other provisions of federal law that
allow the court to do so in certain habeas petitions.

The panel agreed that a petition for review, in order to
serve as an acceptable habeas substitute, must provide the
petitioner a meaningful opportunity to demonstrate that he is
being held pursuant to the erroneous application or
interpretation of relevant law. The panel also assumed that
there may be cases in which a mentally incompetent
petitioner requires the assistance of counsel to seek
meaningful review of a removal order, and that appointment
of counsel may be necessary in such cases. However, the
panel held that the Suspension Clause does not require
government compensation of court-appointed counsel, at
least as long as the court can obtain the assistance of
competent pro bono counsel.

The panel recognized that the All Writs Act, 28 U.S.C.
§ 1651(a), provides this court with the inherent authority to
appoint counsel when necessary to the exercise of its judicial
function, but reasoned that the authority to appoint counsel
is not coextensive with the authority to order compensation
of such counsel, which is a specific imposition on the public
fisc. The panel explained that under separation of powers
principles, Congress, and not the judiciary, holds the power
of the purse, and thus the authority to appoint counsel at the
public’s expense generally must emerge from a statutory
authority established for that purpose.

The panel rejected petitioner’s contention that such
statutory authority is found in the All Writs Act, the habeas
statutes, 28 U.S.C. § 2241 and § 2243, or the Criminal
Justice Act. The panel therefore concluded that although the
court has the inherent authority to appoint pro bono counsel,

4 PEREZ V. BARR

it lacks the requisite statutory authority to order government
compensation for his appointed counsel.

The panel addressed petitioner’s remaining contentions
in a separately and concurrently filed memorandum
disposition.

COUNSEL

Veronica Barba (argued), Lucas & Barba LLP, Los Angeles,
California, for Petitioner.

Scott Grant Stewart (argued), Rosanne M. Perry and Rachel
Browning, Trial Attorneys; Kohsei Ugumori, Senior
Litigation Counsel; Emily Ann Radford, Assistant Director;
Joseph H. Hunt, Assistant Attorney General; Office of
Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C.; for Respondent.

Stephen Kang, ACLU Foundation Immigrants’ Rights
Project, San Francisco, California; Ahilan T. Arulanantham
and Jessica Karp Bansal, ACLU of Southern California, Los
Angeles, California; for Amici Curiae ACLU Immigrants’
Rights Project and ACLU of Southern California.

PEREZ V. BARR 5

OPINION
CALLAHAN, Circuit Judge:
Victor Manuel Perez, a native and citizen of Mexico,
petitions for review of a final removal order of the Board of
Immigration Appeals (BIA) denying his applications for
asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). In the agency
proceedings, an immigration judge (IJ) deemed Perez
mentally incompetent to proceed pro se and provided a
Qualified Representative (QR) in the form of legal counsel
to represent Perez in his removal hearing and appeal to the
BIA. Perez then asked this court to appoint him
compensated counsel to represent him in connection with his
petition for review from the BIA’s order. We in turn
appointed pro bono counsel for Perez. The issue for decision
is whether we can and should order the government to
compensate appointed counsel for her services in
representing Perez before this court. Because Perez and his
amici curiae identify no authority allowing us to order the
government to do so, we deny the request for compensation.
I.
The Department of Homeland Security (DHS) initiated
removal proceedings against Perez in 2013. At Perez’s first
appearance, the IJ ordered a competency inquiry. DHS later
filed a Notification Pursuant to the Notice Criteria in the
Franco-Gonzales Class Action
1
based on evidence of

1
The Franco-Gonzales litigation was a class action on behalf of
“mentally disabled immigrant detainees who are held in custody without
counsel,” asserting that they were entitled to appointed counsel under the
Immigration and Nationality Act (INA), the Rehabilitation Act, and the
Due Process Clause. See Franco-Gonzales v. Holder, 767 F. Supp. 2d

6 PEREZ V. BARR

Perez’s mental health diagnoses. In March 2014, the IJ
found that Perez was not competent to represent himself and
appointed government-contracted legal counsel to be
Perez’s QR in the removal proceedings.
2
With counsel’s

1034, 1038 (C.D. Cal. 2010). In December 2010, the district court issued
a preliminary injunction, finding that plaintiffs were entitled to
representation in the form of a QR as a reasonable accommodation under
the Rehabilitation Act, and enjoining DHS
from pursuing further immigration proceedings
against Plaintiffs until such time as (i) Plaintiffs are
afforded a Qualified Representative(s) who is willing
and able to represent Plaintiffs during all phases of
their immigration proceedings, including appeals
and/or custody hearings, whether pro bono or at
Defendants’ expense, and (ii) after the implementation
of a briefing schedule to be mutually agreed upon by
the parties in the underlying BIA proceedings.
Id. at 1061.
After issuing a similar injunction for an additional plaintiff, see
Franco-Gonzales v. Holder, 828 F. Supp. 2d 1133, 1149–50 (C.D. Cal.
2011), and granting class certification, see Franco-Gonzales v.
Napolitano, No. CV 10-02211 DMG (DTBx), 2011 WL 11705815,
at *16 (C.D. Cal. Nov. 21, 2011), the district court granted partial
summary judgment in favor of the certified class and entered a
permanent injunction in April 2013, Franco-Gonzales v. Holder, No. CV
10-02211 DMG (DTBx), 2013 WL 3674492, at *20 (C.D. Cal. Apr. 23,
2013). The government did not appeal those orders.
2
In 2013, the Executive Office for Immigration Review (EOIR)
launched the National Qualified Representative Program (NQRP), “a
nationwide program to provide Qualified Representatives (QRs) to
certain unrepresented and detained respondents who are found by an
Immigration Judge or the BIA to be mentally incompetent to represent
themselves in immigration proceedings.” U.S. Department of Justice,
Executive Office of Immigration Review, National Qualified
Representative Program (NQRP), https://www.justice.gov/eoir/national

PEREZ V. BARR 7

assistance, Perez applied for asylum, withholding of
removal, and CAT relief. After the IJ issued a written
decision denying Perez’s applications for relief, Perez timely
appealed to the BIA with the assistance of his QR. The BIA
adopted and affirmed the IJ’s decision and dismissed Perez’s
appeal.
Perez, with the assistance of his QR, then filed a pro se
petition for review and a motion to proceed in forma
pauperis before this court. His counsel also filed a motion
to be appointed under the federal habeas statute, 28 U.S.C.
§ 2241, or the Criminal Justice Act (CJA), 18 U.S.C.
§ 3006A(a)(2)(B), to represent Perez in this petition for
review. A motions panel of our court granted Perez’s motion
to proceed in forma pauperis but denied counsel’s motion for
statutory appointment. However, concluding that our review
would benefit from the appointment of pro bono counsel, the
panel asked Perez’s counsel whether she would accept
appointment under the Ninth Circuit’s pro bono program; if
not, the panel stated, other pro bono counsel would be
appointed. Perez’s counsel accepted the pro bono
appointment but requested that the denial of her motion be
without prejudice to arguing before the merits panel that
Perez was entitled to compensated counsel. The panel
granted the request.
II.
Perez and amici argue that we have authority under the
federal habeas statute, the All Writs Act, and the CJA, as
informed by the Suspension Clause, to appoint and

-qualified-representative-program-nqrp (last updated Feb. 18, 2020).
“EOIR carries out the NQRP through effort of federal staff and a
contract.” Id.

8 PEREZ V. BARR

compensate counsel for mentally incompetent petitioners in
petitions for review under 8 U.S.C. § 1252(a). According to
Perez, because the Suspension Clause requires petitions for
review under the REAL ID Act to serve as the functional
equivalent of habeas petitions, we can and should exercise
our authority to appoint him government-compensated
counsel under the Criminal Justice Act and other provisions
of federal law that allow us to do so in certain habeas
petitions. These claims raise questions of law that we
address de novo. See Montes-Lopez v. Gonzales, 486 F.3d
1163, 1165 (9th Cir. 2007).
A.
The Suspension Clause provides that “[t]he Privilege of
the Writ of Habeas Corpus shall not be suspended, unless
when in Cases of Rebellion or Invasion the public Safety
may require it.” U.S. Const. art. 1, § 9, cl. 2. The Clause
“ensures that, except during periods of formal suspension,
the Judiciary will have a time-tested device, the writ, to
maintain the ‘delicate balance of governance’ that is itself
the surest safeguard of liberty” and “protects the rights of the
detained by affirming the duty and authority of the Judiciary
to call the jailer to account.” Boumediene v. Bush, 553 U.S.
723, 745 (2008) (citations omitted). Congress may not
“eliminate the writ without running afoul of the Suspension
Clause” unless it “provides ‘a collateral remedy which is
neither inadequate nor ineffective to test the legality of a
person’s detention.’” Singh v. Mukasey, 533 F.3d 1103,
1106 (9th Cir. 2008) (quoting Swain v. Pressley, 430 U.S.
372, 381 (1977)). The Suspension Clause’s guarantee
applies to the immigration context; the Supreme Court has
held that “some ‘judicial intervention in deportation cases’
is unquestionably ‘required by the Constitution.’” INS v. St.

PEREZ V. BARR 9

Cyr, 533 U.S. 289, 300 (2001) (quoting Heikkila v. Barber,
345 U.S. 229, 235 (1953)).
There are “few precedents addressing what features an
adequate substitute for habeas corpus must contain,” and
Boumediene declined “to offer a comprehensive summary of
the requisites for an adequate substitute for habeas corpus.”
553 U.S. at 772, 779. Boumediene, however, did highlight
two “easily identified attributes of any constitutionally
adequate habeas corpus proceeding.” Id. at 779. First, “the
privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being held
pursuant to ‘the erroneous application or interpretation’ of
relevant law.” Id. (quoting St. Cyr, 533 U.S. at 302).
Second, “the habeas court must have the power to order the
conditional release of an individual unlawfully detained—
though release need not be the exclusive remedy and is not
the appropriate one in every case in which the writ is
granted.” Id.
After Congress enacted prohibitions on judicial review
of removal orders in the 1996 amendments to the
Immigration and Nationality Act, the Supreme Court
concluded that the Act did not repeal federal habeas
jurisdiction given the “serious Suspension Clause issue” that
would arise “if we were to accept the INS’ submission that
the 1996 statutes have withdrawn [the power of habeas
review] from federal judges and provided no adequate
substitute for its exercise.” St. Cyr, 533 U.S. at 305. “St.
Cyr left instructions for both Congress and the lower courts,
with a view to conform with the requirements of the
Suspension Clause: Congress was required to provide
adequate and effective review for all aliens subject to
removal” and courts “are required to interpret congressional
enactments restricting the right to review consistent with the

10 PEREZ V. BARR

mandates of the Suspension Clause.” Ramadan v. Gonzales,
479 F.3d 646, 653 (9th Cir. 2007) (per curiam).
In response, Congress enacted the REAL ID Act of 2005,
which eliminated habeas corpus jurisdiction over final
orders of removal, making petitions for review before the
courts of appeal “the sole and exclusive means for judicial
review” of such orders. 8 U.S.C. § 1252(a)(5). We have
held the REAL ID Act does not violate the Suspension
Clause because a petition for review under § 1252(a)(5) is
“an adequate substitute for habeas proceedings.” Puri v.
Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006). We
explained that “if a substitute remedy provides the same
scope of review as a habeas remedy, it is adequate and
effective.” Id. at 1042 (citing Swain, 430 U.S. at 381–82).
Perez and his amici suggest that the Suspension Clause
requires more in his case: the appointment of government-
compensated counsel. First, they argue that because
petitions for review are substitutes for habeas proceedings,
they must also provide the same procedural protections
available in traditional habeas actions, including the
appointment of government-compensated counsel for
petitioners in appropriate cases. Second, they contend that
because the Suspension Clause requires a “meaningful
opportunity” to challenge detention orders, this court must
have the authority to appoint compensated counsel to ensure
Perez receives that opportunity.
We agree that a petition for review, in order to serve as
an acceptable habeas substitute, must provide the petitioner
“a meaningful opportunity to demonstrate that he is being
held pursuant to ‘the erroneous application or interpretation’
of relevant law.” Boumediene, 553 U.S. at 779 (quoting St.
Cyr, 533 U.S. at 302). We assume that there may be cases
in which a mentally incompetent petitioner requires the

PEREZ V. BARR 11

assistance of counsel to seek meaningful review of a removal
order and that appointment of counsel may be necessary in
such cases. But, we part company with Perez and his amici
on whether we must order the government to compensate
court-appointed counsel in this petition for review.
We start from the premise that we plainly had the ability
to appoint pro bono counsel to represent Perez in his petition
for review. See, e.g., 28 U.S.C. § 1915(e)(1); United States
v. 30.64 Acres of Land, 795 F.2d 796, 800 (9th Cir. 1986).
However, our authority to do so in this case stems from our
inherent judicial power, rather than the Suspension Clause.
The question before us is thus more limited: whether the
Suspension Clause requires the government compensation
of court-appointed counsel. We hold that it does not, at least
as long as we can obtain the assistance of competent pro
bono counsel. The unavailability of compensation for
counsel does not reduce the scope of the “review” or “relief”
available to REAL ID Act petitioners who obtain competent
pro bono representation. See Puri, 464 F.3d at 1042.
Nor was the right to a compensated appointed attorney a
part of “the writ as it existed in 1789.” St. Cyr, 533 U.S.
at 304. While Perez and his amici proffer some historical
evidence that English courts possessed the authority to
appoint counsel for habeas petitioners, these sources do not
shed any light as to the requirement or means for court-
ordered compensation of such counsel. In fact, we have
previously held that an attorney directed to represent a
traditional criminal habeas petitioner seeking the writ under
28 U.S.C. § 2255 is not entitled to compensation under the
Fifth Amendment. See United States v. Dillon, 346 F.2d
633, 636 (9th Cir. 1965). We recognized that although “the
obligation of the legal profession to serve indigents on court
order is an ancient and established tradition,” “the obligation

12 PEREZ V. BARR

. . . to serve without compensation has been modified only
by statute.” Id. If appointed lawyers in core habeas
proceedings are not constitutionally entitled to
compensation, then it follows that compensation for
appointed counsel is not essential in habeas substitutes under
the Suspension Clause.
3

B.
It has long been recognized that courts have the inherent
authority to appoint counsel when necessary to the exercise
of their judicial function, even absent express statutory
authorization. As the Supreme Court has stated:
Courts have (at least in the absence of
legislation to the contrary) inherent power to
provide themselves with appropriate
instruments required for the performance of
their duties. This power includes authority to
appoint persons unconnected with the court
to aid judges in the performance of specific
judicial duties, as they may arise in the
progress of a cause.
Ex Parte Peterson, 253 U.S. 300, 312 (1920) (citation
omitted); see also Young v. U.S. ex rel. Vuitton et Fils S.A.,

3
In so holding, we do not address whether due process may require
the appointment of government-compensated counsel for mentally
incompetent aliens in petitions for review. See Thuraissigiam v. U.S.
Dep’t of Homeland Security, 917 F.3d 1097, 1111 (9th Cir. 2019)
(“Although often conflated, the rights protected by the Suspension
Clause are not identical to those under the Fifth Amendment’s guarantee
of due process.”). Neither Perez nor his amici argue that he is entitled to
compensated counsel as a matter of due process, presumably because
Perez has received the full benefit of able pro bono representation.

PEREZ V. BARR 13

481 U.S. 787, 793, 801 (1987) (recognizing a court’s
“inherent power” to appoint a private attorney to prosecute
contempt proceedings).
This inherent judicial authority has been codified in the
All Writs Act, which provides that “[t]he Supreme Court and
all courts established by Act of Congress may issue all writs
necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). The “purpose and function” of
the All Writs Act is “to supply the courts with the
instruments needed to perform their duty, as prescribed by
the Congress and the Constitution.” Harris v. Nelson,
394 U.S. 286, 300 (1969). The Act formally recognizes an
Article III court’s inherent authority to “fashion appropriate
modes of procedure” necessary to the exercise of its judicial
function. Id. at 299. Under this authority, there is no
question that we may appoint counsel when we deem it
necessary to assist in our meaningful review of a removal
order. In fact, we exercised that very authority here.
However, our appointment of counsel for Perez pursuant
to our inherent court powers does not necessarily entail the
compensation that Perez and amici seek. Our authority to
appoint
4
counsel is not coextensive with our authority to
order compensation of such counsel. The former derives

4
We have recognized that “courts use the word ‘appoint’ in two
different senses”: (1) “to order an attorney to represent an indigent client,
whether with or without compensation,” or (2) “to designate a pro bono
volunteer attorney as counsel of record for an indigent client.”
30.64 Acres, 795 F.2d at 800. In this opinion, we use the word “appoint”
broadly to refer to both these purposes, without abrogating the distinction
recognized in 30.64 Acres between the “request” of counsel under the
federal in forma pauperis statute, 28 U.S.C. § 1915, and the
“appointment” of counsel under other statutes or our inherent authority.

14 PEREZ V. BARR

from the judiciary’s inherent authority, while the latter is a
specific imposition on the public fisc—something generally
permissible only where the legislature has provided such
authority.
5

If compensation is not authorized by statute, we typically
must rely on the longstanding tradition of pro bono
representation in the legal profession. This is the teaching
of Dillon, in which we held that an attorney appointed by the
court to represent an indigent federal habeas petitioner was
not entitled to be compensated for his services under the Just
Compensation Clause of the Fifth Amendment. 346 F.2d
at 636. After discussing the traditional “obligation on the
part of the legal profession to represent indigents upon court
order, without compensation,” we noted that “appointed
counsel have generally been compensated, if at all, only by
statutory fees which would be inadequate under just
compensation principles, and which are usually payable only
in limited types of cases.” Id. at 635 (emphasis added). We
further explained that “[t]he problem of providing some
system of compensation for appointed counsel, in light of the
developing law of the right of indigents to counsel, is a
matter for legislative and not judicial treatment.” Id. at 636.

5
Some expenditures associated with the appointment of counsel for
the purpose of assisting the court’s resolution of a case or performance
of its judicial functions may be appropriately covered under the judiciary
budget or taxed as costs under relevant court rules. See, e.g., Ex Parte
Peterson, 253 U.S. at 314–15 (“As Congress has made no provision for
paying from public funds either the fees of auditors or the expense of the
stenographer, the power to make the appointment without consent of the
parties is practically dependent upon the power to tax the expense as
costs.” (footnote omitted)); Fed. R. App. P. 39. But Perez does not seek
compensation out of this court’s budget (nor does he identify a fund from
which we can do so) or seek to tax costs.

PEREZ V. BARR 15

The critical basis for the distinction between the court’s
authority to appoint counsel and its authority to require
government compensation of counsel lies in the bedrock
separation of powers principles central to our constitutional
system of government, wherein Congress, and not the
judiciary, holds the power of the purse.
6
Under these
principles, our authority to appoint Perez counsel at the
public’s expense generally must emerge from a statutory
authority established for that purpose.
7

C.
We therefore turn to whether there is a statutory basis for
the compensation of Perez’s counsel. Perez and amici argue
that such authority is found in the All Writs Act, 28 U.S.C.
§ 1651; the habeas statutes, 28 U.S.C. § 2241 and § 2243; or
the Criminal Justice Act, 18 U.S.C. § 3006A. We conclude
that none of these statutes authorizes us to order government
compensation of Perez’s counsel in his petition for review.

6
See U.S. Const. art. I, § 9, cl. 7 (Appropriations Clause); U.S.
Const. art. I, § 8, cl. 1 (Spending Clause); see also The Federalist No. 78,
at 1 (Alexander Hamilton) (“The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of every
citizen are to be regulated. The judiciary, on the contrary, has no
influence over either the sword or the purse; no direction either of the
strength or of the wealth of the society; and can take no active resolution
whatever.”); The Federalist No. 58, at 2 (James Madison) (“This power
over the purse may . . . be regarded as the most complete and effectual
weapon with which any constitution can arm the immediate
representatives of the people . . . .”).
7
We need not confront what remedies would be appropriate if we
were unable to obtain competent uncompensated counsel in a case
requiring such an appointment. There is no contest that Perez was
provided such counsel here.

16 PEREZ V. BARR

1 The All Writs Act
The All Writs Act, 28 U.S.C. § 1651(a), codifies the
courts’ inherent authority to “fashion appropriate modes of
procedure” necessary to the exercise of the judicial function,
Harris, 394 U.S. at 299, which may include the appointment
of counsel. However, the Act requires that those “modes of
procedure” be “agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a). Moreover, the Act “cannot
enlarge a court’s jurisdiction.” Clinton v. Goldsmith,
526 U.S. 529, 535 (1999) (quoting 19 J. Moore & G. Pratt,
Moore’s Federal Practice § 204.02[4] (3d ed. 1998)).
Rather, the All Writs Act “is a residual source of authority
to issue writs that are not otherwise covered by statute.
When a statute specifically addresses the particular issue at
hand, it is that authority, and not the All Writs Act, that is
controlling.” Pa. Bureau of Corr. v. U.S. Marshals Serv.,
474 U.S. 34, 43 (1985). Thus, although the All Writs Act
“empowers federal courts to fashion extraordinary remedies
when the need arises, it does not authorize them to issue ad
hoc writs whenever compliance with statutory procedures
appears inconvenient or less appropriate.”
8
Id.

8
We have therefore cautioned against the “dangers of unprincipled
use” of its power under the All Writs Act, for
without articulable and practically applicable
guidelines to govern the issuance of extra-ordinary
writs, appellate judges would continually be subject to
the temptation to grant such relief merely because they
are sympathetic with the purposes of the petitioners’
underlying actions, or because they question the trial
court’s ability to direct the litigation efficiently or
impartially. As with many other facets of judicial
power, the continuing effectiveness of an appellate

PEREZ V. BARR 17

Although we have authority under the All Writs Act to
order the appointment of counsel, our respect for the
Constitution’s separation-of-powers scheme eschews us
from directing the expenditure of the public fisc when
Congress has not authorized such use. Here, ordering the
government to compensate counsel is not necessary for the
exercise of our jurisdiction over Perez’s petition for review.
Whether such an order might be required under different
circumstances—such as for example, when no competent
pro bono counsel could be appointed—is not before us.
2. The Federal Habeas Statutes, 28 U.S.C. §§ 2241 and
2243
Amici argue that 28 U.S.C. § 2243, which authorizes the
courts to adjudicate federal habeas petitions “as law and
justice require,” allows the appointment of government-
funded counsel. Under the REAL ID Act, however, petitions
for review of final orders of removal are no longer governed
by the federal habeas corpus statutes. See Mamigonian v.
Biggs, 710 F.3d 936, 941 (9th Cir. 2013) (“[T]he REAL ID
Act precludes aliens . . . from seeking habeas relief over final
orders of removal in district courts.”); Alvarez-Barajas v.
Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005) (“[T]he Act
eliminated habeas jurisdiction, including jurisdiction under
28 U.S.C. § 2241, over final orders of deportation,
exclusion, or removal.”). Under the REAL ID Act,
provisions pertaining to “habeas corpus review pursuant to”
28 U.S.C. § 2241 and “any other habeas corpus provision”
no longer apply to review of final removal orders. 8 U.S.C.

court’s section 1651 power depends on its reasoned
and principled exercise.
Bauman v. U.S. Dist. Court, 557 F.2d 650, 653–54 (9th Cir. 1977).

18 PEREZ V. BARR

§ 1252(a)(5). Sections 2241 and 2243 therefore do not
provide authority for this court to compensate appointed
counsel. In the face of these authorities and Congress’
express intent with the REAL ID Act, we cannot extend the
federal habeas statutes to require government compensation
of appointed counsel in petitions for review under 8 U.S.C.
§ 1252.
3. The Criminal Justice Act
Finally, Perez relies on the Criminal Justice Act, citing
18 U.S.C. § 3006A(a)(2)(B), which provides that when “the
interests of justice so require, representation may be
provided for any financially eligible person who . . . is
seeking relief under section 2241, 2254, or 2255 of title 28.”
9

But, as noted above, petitions for review no longer qualify
under the REAL ID Act as statutory habeas actions.
Moreover, the CJA was enacted “to promote the cause of
criminal justice by providing for the representation of
defendants . . . in criminal cases in the courts of the United
States.” Pub. L. No. 88-455, 78 Stat. 552 (1964). When read
in conjunction with the REAL ID Act, we conclude that the

9
Amici’s argument is slightly different. Invoking our authority to
“fashion appropriate modes of procedure” and ensure that the petitioner
can meaningfully challenge his removal order, they assert that we may
“look to the CJA in shaping appropriate procedures for appointing
counsel.” But amici do not argue, nor could they, that our inability to
compensate counsel affected Perez’s ability to meaningfully challenge
his removal.

PEREZ V. BARR 19

purpose and text of the CJA preclude its application to
petitions for review.
10

We recognize that, prior to the REAL ID Act, some
federal courts invoked the CJA as authority for appointing
compensated counsel for aliens challenging their
deportation, while others declined to do so. Compare Duran
v. Reno, 193 F.3d 82, 85 (2d. Cir. 1999) (allowing that “CJA
funds may be used to provide counsel for appellant”
challenging deportation order under § 2241), vacated as
moot, 197 F.3d 63 (2d Cir. 1999), with Perez-Perez v.
Hanberry, 781 F.2d 1477, 1479–80 (11th Cir. 1986)
(holding that the CJA “does not authorize appointment of
counsel at government expense for excludable aliens seeking
parole”). However, the REAL ID Act eliminated any basis

10
Our perspective is also reflected in the Administrative Office of
the United States Courts’ implementing policy and guidelines for CJA
appointments, which provide:
Cases or proceedings which are not covered by or
compensable under the CJA include the following:
...
(d) Administrative proceedings before the U.S.
Citizenship and Immigration Services (USCIS),
removal or deportation proceedings before the
Immigration Court, review of the Immigration Court’s
decision by the Board of Immigration Appeals, and
judicial review by the federal courts of appeals of
petitions for review from these administrative
decisions.
“Guidelines for Administering the CJA and Related Statutes,” Vol. 7:
Defender Services, Part A of the Administrative Office of the United
States Courts’ Guide to Judiciary Policy, § 210.20.50(d) (emphasis
added).

20 PEREZ V. BARR

for concluding that the CJA’s provision of counsel for
indigent petitioners “seeking relief under section 2241,
2254, or 2255 of title 28” extends to petitions for review
under 8 U.S.C. § 1252(a). Because Perez’s petition for
review is governed by the REAL ID Act, the compensatory
provisions of the CJA do not extend to his counsel’s services
before this court.
III.
Although we have the inherent authority to appoint pro
bono counsel for Perez, and did so in his petition for review,
we lack the requisite statutory authority to order government
compensation for his appointed counsel. We therefore
DENY Perez’s request for appointment of counsel
compensated at government expense.
11

11
We address the remaining issues in Perez’s petition for review in
a separate and concurrently filed memorandum disposition, Perez v.
Barr, __ F. App’x __ (9th Cir. 2020).