ORDER

Thomas S. Zilly, United States District Judge.

THIS MATTER comes before the Court on defendants' motion to dismiss, docket no. 80, based on lack of jurisdiction and failure to state a claim. Having considered all of the materials filed in support of, and in opposition to, the motion, and the oral arguments of counsel, the Court enters the following order.

Background

In this action, nine juveniles ranging in age from 3 to 17, on behalf of themselves and others similarly situated,1 assert both a statutory and a constitutional claim that they are entitled to have attorneys appointed to represent them at government expense in connection with their removal proceedings.2 They assert the statutory claim under § 240 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229a, and they bring the constitutional claim under the Due Process Clause of the Fifth Amendment. As to five of the nine plaintiffs, three of whom are siblings, removal proceedings are ongoing. See 2d Am. Compl. ¶¶ 13-16, 18, & 85 (docket no. 95). As to the other four plaintiffs, however, removal proceedings are not currently pending.3

Under the INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), an alien is "removable" if (i) he or she was not admitted to the United States and is "inadmissible" under 8 U.S.C. § 1182, or (ii) he or she was admitted to the United States and is "deportable" under 8 U.S.C. § 1227. See 8 U.S.C. § 1229a(e)(2). Before the enactment of IIRIRA, a distinction had been drawn between "exclusion" and "deportation" of individuals. See Dormescar v. U.S. Att'y Gen., 690 F.3d 1258, 1260 (11th Cir.2012); see also U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317 (1950). "Excludable" aliens, meaning those who sought but had not yet achieved admission, were treated as though they were detained at the border, even if they were physically present within the United States, Dormescar, 690 F.3d at 1260, and "excludable" aliens were entitled to fewer procedural protections than "deportable" aliens, Mariscal-Sandoval v. Ashcroft, 370 F.3d 851, 854 (9th Cir.2004). When IIRIRA became effective on April 1, 1997, see Pub.L. No. 104-208, § 309(a), 110 Stat. 3009 (1996), exclusion and deportation proceedings were merged into the broader category of "removal" proceedings. Mariscal-Sandoval, 370 F.3d at 854 n. 6.

Removal proceedings are conducted before an immigration judge, and such proceedings are "the sole and exclusive" means for determining whether an alien may be admitted to or removed from the United States. 8 U.S.C. §§ 1229a(a)(1) & (3). Pursuant to INA § 240(b), an alien in a removal proceeding may offer evidence on his or her own behalf and may review the evidence and cross-examine the witnesses presented by the Government. 8 U.S.C. § 1229a(b)(4)(B). An alien also has the statutory "privilege of being represented, at no expense to the Government, by counsel of the alien's choosing" in both "removal proceedings before an immigration judge" and "appeal proceedings before the Attorney General." 8 U.S.C. §§ 1229a(b)(4)(A) & 1362. In this case, plaintiffs contend that, because they are unable to retain counsel, for either financial or other reasons, they cannot exercise their statutory right to present evidence and cross-examine witnesses and are being denied their constitutional right to due process of law.

Discussion

Defendants move to dismiss for lack of subject-matter jurisdiction and for failure to state a claim. Defendants' motion to dismiss was filed before the Court entered its order denying plaintiffs' earlier motion for a preliminary injunction, see Order (docket no. 81), and before plaintiffs sought and were granted leave to file their Second Amended Complaint.4 Although jurisdiction was addressed in the Court's prior order, additional plaintiffs have now been named and the jurisdictional issues more squarely concern the right-to-counsel claim, as opposed to the continuances or stays plaintiffs sought in their motion for a preliminary injunction. The Court will therefore consider defendants' jurisdictional arguments anew.

A. Jurisdiction

Defendants assert three overlapping reasons for dismissing this action for lack of jurisdiction:5 (i) lack of ripeness; (ii) the jurisdiction-stripping and channeling provisions of IIRIRA, as amended by the REAL ID Act of 2005; and (iii) sovereign immunity. Defendants' arguments can be distilled into one basic premise, namely that plaintiffs can and should be required to raise their right-to-counsel claim in their removal proceedings and then seek review of the predictably unfavorable result by the Board of Immigration Appeals ("BIA") and the appropriate court of appeals.

Plaintiffs appear to view defendants' analysis as stating a form of Catch-22.6 Plaintiffs contend that, as children, they lack the capacity to request an attorney in the midst of a removal proceeding, to appeal to the BIA, or to petition for review by a court of appeals, and that they cannot be assisted in any of these endeavors by a lawyer without thereby forfeiting their claim to appointment of counsel. In other words, according to plaintiffs, they cannot feasibly ask for an attorney without the help of an attorney, but if they receive the help of an attorney, then they cannot ask for an attorney at government expense.

This alleged paradox presupposes cognitive limitations on the part of all alien juveniles that the Court is not ready to accept.7 The Court is persuaded, however, that the jurisdictional hurdles defendants seek to erect would create a different unfair result. Assuming an alien minor, acting pro se, successfully navigated the immigration labyrinth all the way to the appropriate court of appeals, he or she would arrive there without the record necessary to conduct the balancing of interests required by Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), in connection with a due process right-to-counsel claim.8 An immigration judge, who has no authority to appoint an attorney at government expense, would have no reason to hold an evidentiary hearing or engage in the Mathews analysis. Absent an endeavor by an immigration judge to weigh the Mathews factors with regard to a right-to-counsel claim, neither the BIA nor a court of appeals would have anything to review. Meanwhile, the petitioner would likely have turned 18 while the appeal was pending, meaning that remand to develop a record would not be a viable option and the claim of a right to counsel for alien juveniles would remain unresolved. A different youth might later take up the cause and run the same gauntlet, but with probably the same result.

The Court is of the opinion that the due process question plaintiffs have raised in this case is far too important to consign it, as defendants propose, to the perhaps perpetual loop of the administrative and judicial review process. A fundamental precept of due process is that individuals have a right "to be heard `at a meaningful time and in a meaningful manner" before "being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction." Mathews, 424 U.S. at 333, 96 S.Ct. 893. Unlike some other legal doctrines, due process is "not a technical conception with a fixed content unrelated to time, place and circumstances," but rather is "flexible and calls for such procedural protections as the particular situation demands." Id. at 334, 96 S.Ct. 893 (quoting Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), and Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Whether plaintiffs' constitutional due process right-to-counsel claim has merit cannot yet be determined, but plaintiffs deserve, and the Court concludes that it has jurisdiction (at least with respect to juveniles currently in removal proceedings) to eventually provide an answer. With respect to plaintiffs' statutory claim, however, the Court lacks jurisdiction.

1. Ripeness

Defendants contend that plaintiffs' right-to-counsel claim is not ripe because no named plaintiff has yet, during the course of removal proceedings, requested and been refused an attorney at government expense. Defendants' argument has merit with respect to minors against whom removal proceedings have not yet been initiated. A claim "is not ripe for adjudication if it rests upon `contingent future events that may not occur as anticipated, or indeed may not occur at all.'" Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (quoting Thomas v. Union Carbide Ayric. Prods. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985)). Removal proceedings might never be commenced with respect to G.D.S. and A.E.G.E., and their claims asserting a constitutional or statutory right to the appointment of an attorney to represent them in removal proceedings are premature. Thus, as to these two juveniles, the Court currently lacks jurisdiction, and defendants' Rule 12(h)(1) motion to dismiss is GRANTED in part. The claims of G.D.S. and A.E.G.E. are DISMISSED without prejudice.

Defendants' ripeness challenge otherwise fails. Exhaustion is not required to make a claim ripe when the agency lacks authority to grant relief. See Xiao v. Barr, 979 F.2d 151, 154 (9th Cir. 1992); El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 746-47 (9th Cir.1991); see also Am. Arab Anti-Discrimination Comm. v. Reno ("AAADC I"), 70 F.3d 1045, 1058 (9th Cir.1995) ("[W]e customarily decline to apply the prudential ripeness doctrine when exhaustion would be a futile attempt to challenge a fixed agency position."). Defendants concede that neither an immigration judge nor the BIA "has the authority to appoint counsel" for an alien minor or "to declare that 8 U.S.C. § 1362 is unconstitutional as applied to all minors." Defs.' Supp. Br. at 7 (docket no. 97). Thus, any attempt by plaintiffs to secure from an immigration judge or the BIA a government-compensated lawyer to assist them with removal proceedings would be futile.

In El Rescate, the plaintiffs faced a similar issue of futility in challenging certain practices of the Executive Office of Immigration Review ("EOIR"), namely the use of incompetent translators and the failure to interpret many portions of immigration court hearings. 959 F.2d at 745. The district court granted summary judgment in favor of the plaintiffs, and the EOIR appealed, arguing that the district court lacked jurisdiction because the plaintiffs did not exhaust their administrative remedies. Id. at 745-46. In holding that exhaustion was not required, the Ninth Circuit focused on the distinction between claims attacking the validity of an individual order of deportation or exclusion (now known collectively as removal) and claims predicated on "an alleged pattern and practice of constitutional or statutory violations." Id. at 746. With regard to the latter, the Ninth Circuit held that exhaustion is unnecessary when "the agency's position on the question at issue `appears already set,'" and resort to administrative remedies is "very likely" to produce an unfavorable result or be futile. Id. at 747; see also AAADC I, 70 F.3d at 1058 (observing that exhaustion is futile when no "genuine doubt" exists as to "what is going to happen in the administrative process" (quoting Rafeedie v. INS, 880 F.2d 506, 514 (D.C.Cir.1989))). In this case, as in El Rescate, the remaining plaintiffs present a "pattern and practice" claim as to which recourse to the administrative process is guaranteed to fail. Thus, defendants' attack on the ripeness of plaintiffs' claim lacks merit.

2. IIRIRA and the REAL ID Act

Ripeness is not, however, the only obstacle that the remaining plaintiffs' statutory and constitutional right-to-counsel claims must overcome. As explained in more detail below, IIRIRA's jurisdiction-stripping provision, as amended by the REAL ID Act, 8 U.S.C. § 1252(g), requires the Court to dismiss at least G.J.C.P.'s claim because it seeks to collaterally attack an order of removal entered in absentia. In addition, the REAL ID Act's and IIRIRA's channeling mechanism, 8 U.S.C. §§ 1252(a)(5) and (b)(9), removes plaintiffs' first cause of action for violation of INA § 240 from the purview of this Court. As to the second cause of action, however, brought under the Due Process Clause of the Fifth Amendment, the Court concludes that neither IIRIRA's jurisdiction-stripping provision nor the Real ID Act's and IIRIRA's channeling mechanism compel dismissal.

a. Section 1252(g)

Section 1252(g) provides:

8 U.S.C. § 1252(g). Section 1252(g) is narrow and "applies only to three discrete actions" that the Attorney General might take, namely to "`commence proceedings, adjudicate cases, or execute removal orders.'" Reno v. Am.-Arab Anti-Discrimination Comm. ("AAADC II"), 525 U.S. 471, 482, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (emphasis in original) (quoting 8 U.S.C. § 1252(g)). Section 1252(g) is aimed solely "at preserving prosecutorial discretion." Barahona-Gomez v. Reno, 236 F.3d 1115, 1119 (9th Cir.2001). Because immigration courts may not decline to hear cases, after a removal proceeding has been initiated, discretion no longer plays a role. Id. at 1120. Thus, § 1252(g) does not deprive federal courts of jurisdiction to hear constitutional challenges to the manner in which removal proceedings are conducted. Id. at 1119-21; Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir.1998); see also Franco-Gonzales v. Holder, 767 F.Supp.2d 1034, 1049 (C.D.Cal.2010).

With regard to J.E.F.M., J.F.M., D.G.F.M., F.L.B., and M.A.M., who are subject to ongoing removal proceedings, as well as J.E.V.G., whose removal proceeding will be or has been reopened, the rightto-counsel claim does not implicate the Attorney General's discretion to commence proceedings, adjudicate cases, or execute removal orders. Thus, as to these six plaintiffs, § 1252(g) does not operate as a bar to the Court's jurisdiction.

The same is not true for G.J.C.P., who has already been ordered removed in absentia. An order of removal issued in absentia may be rescinded only upon an immigration judge's grant of a motion to reopen filed within the time limits set forth in 8 U.S.C. § 1229a(b)(5)(C).9 Absent such reopening, any review by a court of appeals must be confined to the validity of the notice of the hearing, the reasons for failing to appear, and the removability of the alien. 8 U.S.C. § 1229a(b)(5)(D). In asserting her right-to-counsel claim, G.J.C.P. is attempting to circumvent the statutory restrictions on challenging a removal order issued in absentia, and she seeks relief that would hamper the Attorney General's discretion to execute such removal order, i.e., relief that § 1252(g) prohibits the Court from granting. Thus, defendants' Rule 12(b)(1) motion to dismiss is GRANTED in part, and G.J.C.P.'s claims are DISMISSED without prejudice.

b. Sections 1252(a)(5) and (b)(9)

In "stark contrast" to § 1252(g), which categorically excludes from judicial review only "certain specified decisions and actions," AAADC II, 525 U.S. at 482-83, 119 S.Ct. 936, the REAL ID Act's and IIRIRA's channeling mechanism, §§ 1252(a)(5) and (b)(9), is broad in scope. Section 1252(a)(5) indicates in relevant part:

8 U.S.C. § 1252(a)(5). Section 1252(b)(9) reads:

8 U.S.C. § 1252(b)(9). The Supreme Court has characterized § 1252(b)(9) as an "unmistakable `zipper' clause," see AAADC II, 525 U.S. at 483, 119 S.Ct. 936, while the First Circuit has described the expanse of § 1252(b)(9) as "breathtaking," Aguilar v. U.S. Immigration & Customs Enforcement Div. of the Dep't of Homeland Sec., 510 F.3d 1, 9 (1st Cir.2007).

Sections 1252(a)(5) and (b)(9) were "designed to consolidate and channel review of all legal and factual questions that arise from the removal of an alien into the administrative process, with judicial review of those decisions vested exclusively in the courts of appeal." Aguilar, 510 F.3d at 9 (emphasis in original); see also, e.g., Iasu v. Smith, 511 F.3d 881, 886-87 (9th Cir. 2007). The purpose was to "put an end to the scattershot and piecemeal nature of the review process that previously had held sway in regard to removal proceedings." Aguilar, 510 F.3d at 9 (citing H.R.Rep. No. 109-72, at 174 (2005), reprinted in 2005 U.S.C.C.A.N. 240, 299); see also Iasu, 511 F.3d at 887 (Congress's "explicit intent [was] to give `every alien one day in the court of appeals'"). In Aguilar, however, the First Circuit recognized that certain denial-of-due-process claims "are beyond the authority of the agency to adjudicate," 510 F.3d at 18 n. 4, and in those rare circumstances, any exhaustion requirements may be excused if the claims satisfy the standards articulated in McNanj v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991), and its progeny.

In McNary, the plaintiffs sought relief on behalf of a class of undocumented aliens who had applied for special agricultural worker ("SAW") status under amnesty programs enacted in 1986. Id. at 482-87, 111 S.Ct. 888. They alleged that the Immigration and Naturalization Service ("INS") had adopted unlawful practices and policies for administering the SAW program, including denying applicants an opportunity to challenge adverse evidence on which denials were based, failing to provide competent interpreters, and interviewing applicants in an arbitrary fashion without making a verbatim recording and thereby inhibiting meaningful administrative review. Id. at 487-88, 111 S.Ct. 888. A provision of the amnesty statute prohibited judicial review of a denial of SAW status, except in an appeal from an order of exclusion or deportation. Id. at 485-86, 111 S.Ct. 888 (citing 8 U.S.C. § 1160(e)).

The McNary Court held that the statutory restriction on jurisdiction applied only to "direct review of individual denials of SAW status," and not to "collateral challenges to unconstitutional practices and policies used by the agency in processing applications." Id. at 492, 111 S.Ct. 888. The Supreme Court reasoned:

Id. at 497, 111 S.Ct. 888. The McNary Court therefore refused to apply the statutory restriction on challenges to the denial of SAW status because doing so would have been "the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims." Id.

The Ninth Circuit has "distilled two `guiding principles'" from McNary and related decisions. See City of Rialto v. W. Coast Loading Corp., 581 F.3d 865, 874 (9th Cir.2009). First, to avoid a channeling mechanism, the claim at issue must challenge "a `procedure or policy that is collateral to an alien's substantive eligibility,' for which `the administrative record is insufficient to provide a basis for meaningful judicial review.'" Id. (quoting Proyecto San Pablo v. INS, 189 F.3d 1130, 1138 (9th Cir.1999) (quoting Ortiz v. Meissner, 179 F.3d 718, 722 (9th Cir.1999))). Second, the plaintiffs' claim must be ripe, meaning that the plaintiffs have "taken the affirmative steps that [they] could take before the INS blocked [their] path.'" Id. (alterations in original). This second requirement is derived from Reno v. Catholic Soc. Sera's., Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993), which observed that injunctive and declaratory judgment remedies are "discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy `ripe' for judicial resolution." 509 U.S. at 57, 113 S.Ct. 2485.

In conducting the McNary analysis, the Ninth Circuit has focused on whether the claim at issue would become moot if subjected to the administrative and judicial review process. For example, in Ortiz, the plaintiffs filed suit to enforce a statutory provision that allowed persons who had filed non-frivolous applications under an amnesty program promulgated in 1986 to receive authorization to work in the United States pending the "final determination" on their applications. 179 F.3d at 719. In concluding, despite the channeling provision of the amnesty program, that the district court had properly exercised jurisdiction over the plaintiffs' interim-status claim, the Ninth Circuit reasoned:

Id. at 722.

The Ninth Circuit reached a similar result in Proyecto. In Pro yecto, the plaintiffs sought access to their prior deportation files, the contents of which were considered by the INS in denying their applications for legalization under the amnesty scheme implemented in 1986. 189 F.3d at 1134, 1137-38. Under the McNary doctrine, the Ninth Circuit held that the district court had jurisdiction to consider the plaintiffs' challenge to the procedures for obtaining prior deportation files, observing that any judicial review of a denial of a legalization application would be limited to the administrative record, and thus, prior deportation files received by the plaintiffs after the INS issued a final order would be "of no use." Id. at 1138.

With respect to the McNary inquiries and the mootness concerns expressed in Ortiz and Proyecto, plaintiffs' constitutional right-to-counsel claim differs from their statutory claim alleging violation of INA § 240. With respect to the constitutional claim, both prongs of the McNary standard are satisfied. First, the alleged right to counsel involves a "procedure or policy" (or perhaps, the absence of one) that is collateral to the substance of the underlying removal proceedings and, because an immigration judge is unlikely to conduct the requisite Mathews balancing, the administrative record would be insufficient to provide a basis for meaningful judicial review.10 Second, although no named plaintiff has yet asked an immigration judge to appoint counsel, the constitutional right-to-counsel claim is ripe because such request would be futile in light of the current immigration laws and regulations.

In addition, because plaintiffs base their constitutional right-to-counsel claim on their particular interests, and the risks of erroneous deprivation they face, as juveniles,11 they are confronted with the type of mootness dilemma that Ortiz and Prayecto employed McNary to solve. Plaintiffs will not remain minors for long. Four of the six remaining named plaintiffs are already 16, and they are likely to become adults before having the opportunity to present their right-to-counsel claim to an appropriate court of appeals.

Moreover, even if these four plaintiffs were to reach the court of appeals before turning 18, chances are high that the clock would still wind down on their due process right-to-counsel claim. Assuming that no Mathews balancing occurred during the removal proceedings, the court of appeals would not have an adequate record, and lacking the necessary "factfinding and record-developing capabilities," McNary, 498 U.S. at 497, 111 S.Ct. 888, the court of appeals would need to remand for an immigration judge to conduct the requisite hearing. As a result, prior to or during the course of any proceedings on remand, most, if not all, of the remaining plaintiffs would cease to be juveniles. Thus, channeling plaintiffs' right-to-counsel claim to the court of appeals would be "the practical equivalent of a total denial of judicial review." See id. The Court therefore holds that, pursuant to the McNary doctrine, plaintiffs are not required by §§ 1252(a)(5) and (b)(9) to administratively exhaust their due process claim to appointment of counsel at government expense.

The Court, however, reaches the opposite conclusion with respect to plaintiffs' statutory claim that, absent an appointed attorney, they cannot take advantage of their rights under INA § 240(b) to present evidence and cross-examine witnesses. Although this claim involves a "procedure or policy" collateral to plaintiffs' substantive eligibility, it does not meet the other McNary criteria. Because the claim is predicated on statutory rather than due process rights, the Mathews balancing standard does not apply and, as a result, concerns about the adequacy of the administrative record are not warranted. In addition, because the claim involves statutory rights, which an immigration judge must and has authority to honor, plaintiffs cannot show ripeness by establishing the requisite futility.

The conclusion that the Court lacks jurisdiction over plaintiffs' statutory claim is supported by Ching v. Mayorkas, 725 F.3d 1149 (9th Cir.2013). In Ching, the plaintiffs were a U.S. citizen and his wife, on whose behalf the husband sought an 1-130 visa. Id. at 1153. The wife had lawfully entered the United States as a nonimmigrant visitor and then dated, married, and divorced another U.S. citizen. Id. During an investigation, United States Citizenship and Immigration Services ("USCIS") officers obtained a sworn statement from the first husband indicating that the first marriage was a sham, and the second husband's 1-130 visa petition was denied. Id. The plaintiffs sued, alleging that USCIS had violated INA § 240(b) by not affording the plaintiffs an opportunity to cross-examine the first husband about his sworn statement. Id. at 1154. The Ninth Circuit held that, to the extent the plaintiffs claimed USCIS violated INA § 240(b), the district court properly granted summary judgment because it lacked jurisdiction to consider the claim, a petition for review to the court of appeals being the "sole and exclusive means" for judicial review. Id. (citing 8 U.S.C. § 1252(a)(5)). Cluing requires that plaintiffs' statutory claim, which likewise asserts a violation of INA § 240(b), be channeled via § 1252(a)(5) to the appropriate court of appeals.

Ching also supports the distinction being drawn here between plaintiffs' statutory and constitutional claims. In Cluing, in addition to their assertion that USCIS violated INA § 240(b), the plaintiffs alleged that their due process rights were infringed when they were not permitted to cross-examine the first husband or the USCIS officer who took his statement. The district court granted summary judgment against the plaintiffs, finding that the opportunity to respond in writing to the first husband's statement was sufficient for due process. Id. at 1154. The Ninth Circuit employed the three-part balancing test articulated in Mathews12 to reverse the district court's decision on the due process claim. Id. at 1157-59. In other words, in Citing, although the statutory and constitutional claims sought identical relief, the channeling of the statutory claim to the court of appeals did not affect the constitutional claim.13 The Court is persuaded that, in this case, the same result is appropriate.

Channeling the statutory claim but not the constitutional claim is also consistent with the First Circuit's decision in Aguilar. Unlike plaintiffs in this case, the plaintiffs in Aguilar did not seek counsel at government expense. Rather, the plaintiffs in Aguilar, who were detained following a raid of a government contractor's factory, alleged that the government infringed their statutory rights by "barring their access to lawyers, interfering with preexisting attorney-client relationships, and making it difficult to secure counsel of their choosing." 510 F.3d at 13. The First Circuit viewed the statutory right-to-counsel claims as "commonplace," frequently featured in petitions for judicial review of removal orders, and thus not "sufficiently separate from removal proceedings to be considered either `independent' or `collateral.'" Id. In the First Circuit's view, aliens "can receive effective relief for their alleged violations of the right to counsel simply by navigating the channels deliberately dredged by Congress," as evidenced by the experiences of the plaintiffs in Aguilar, who received continuances when requested for the purpose of retaining counsel, and who generally secured changes in venue back to Massachusetts, where they had been working and residing. Id. at 14. These same or similar methods might be equally effective in ensuring that the statutory rights of plaintiffs in this case, to present evidence and cross-examine witnesses during the course of removal proceedings, are protected. Because continuances, changes of venue, and the like might enable at least some alien minors to gather the relevant materials and prepare to adequately confront the government's evidence, including any witnesses, the Court concludes that § 1252(b)(9) requires plaintiffs to exhaust these avenues of possible relief.

In rejecting the contention that McNary allowed the plaintiffs in Aguilar to circumvent the channeling mechanism of § 1252(b)(9), the First Circuit observed:

510 F.3d at 17 (citations omitted). The First Circuit distinguished, as does this Court, between statutory claims that an immigration judge can adequately address during the course of removal proceedings and the "rare" denial-of-due-process claims "that are beyond the authority of the agency to adjudicate." Id. at 18 n. 4. With regard to the former "commonplace" claims, the "vise-like grip of § 1252(b)(9)" cannot be avoided. Id. at 9. As to the latter claims, which, if they exist at all, must include the constitutional right-tocounsel claim asserted in this case, McNary preserves the "strong presumption in favor of judicial review of administrative action." See 498 U.S. at 498, 111 S.Ct. 888. Having thus separated the proverbial wheat from chaff', the Court GRANTS in part defendants' Rule 12(b)(1) motion and DISMISSES for lack of jurisdiction plaintiffs' first claim for violation of INA § 240.14 The Court further HOLDS that §§ 1252(a)(5) and (b)(9) do not bar plaintiffs' second claim under the Due Process Clause of the Fifth Amendment, and now turns its attention to the issue of sovereign immunity.

3. Sovereign Immunity

The United States, as sovereign, is immune from suit "save as it consents to be sued," and any waiver of sovereign immunity must be "unequivocally expressed." United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). An action seeking injunctive relief against a federal officer in his or her official capacity is equivalent to an action against the United States. Stimac v. Haag, 2010 WL 3835719 at *2 (N.D.Cal. Sep. 29, 2010) (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-88, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949)). In this case, defendants are each sued in their official capacity. See 2d Am. Compl. ¶¶ 24-31 (docket no. 95). Plaintiffs therefore bear the burden of establishing the existence of an unequivocal waiver of sovereign immunity. See, e.g., Baker v. United States, 817 F.2d 560, 562 (9th Cir.1987).

The only basis for jurisdiction pleaded by plaintiffs that might serve as a waiver of sovereign immunity15 is a provision of the Administrative Procedures Act ("APA"), namely 5 U.S.C. § 702, which reads in relevant part:

The case on which plaintiffs principally rely, The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir.1989), predates IIRIRA and the REAL ID Act, but more recent authorities support plaintiffs' position that sovereign immunity has been waived.

Historically, courts relied on the "fiction" articulated in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), to permit claims for prospective injunctive relief against government officials despite sovereign immunity. EEOC v. Peabody W. Coal Co., 610 F.3d 1070, 1085 (9th Cir.2010). Since 1976, however, courts have looked to § 702 of the APA to serve the purposes of the Ex parte Young fiction in suits against federal officers; section 702 is viewed as the requisite waiver of sovereign immunity for equitable actions brought under 28 U.S.C. § 1331. See id. at 1085-86; Gallo Cattle Co. v. U.S. Dep't of Agric., 159 F.3d 1194, 1198 (9th Cir. 1998); see also Match-E-Be-Nash-She-Wish Band of Pottawatoiui Indians v. Patchak, ___ U.S. ___, 132 S.Ct. 2199, 2204, 183 L.Ed.2d 211 (2012); Pullman Constr. Indus., Inc. v. United States, 23 F.3d 1166, 1168 (7th Cir.1994) (observing that "the United States is no stranger to litigation in its own courts" and that "Congress has consented to litigation in federal courts seeking equitable relief from the United States" (citing 5 U.S.C. § 702 and Bowen v. Mass., 487 U.S. 879, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988))); Shanti, Inc. v. Reno, 36 F.Supp.2d 1151, 1159-60 (D.Minn.1999).

The APA contains explicit exceptions to, and thereby limits, its waiver of sovereign immunity. See Gallo, 159 F.3d at 1198; see also Patchak, 132 S.Ct. at 220405. Section 702's waiver of sovereign immunity does not extend to (i) claims as to which a statute precludes judicial review, (ii) claims that challenge an action committed by law to agency discretion, or (iii) claims that seek review of a decision that is not final within the meaning of the APA. See 5 U.S.C. § 701(a) ("This chapter applies, according to the provisions thereof, except to the extent that — (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law."); 5 U.S.C. § 704 ("Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review."); see also Patchak, 132 S.Ct. at 2204-05; Gallo, 159 F.3d at 1198; Shanti, 36 F.Supp.2d at 1160. An action is final if it "mark[s] the consummation of the agency's decision making process," is not "merely tentative or interlocutory" in nature, and is "one by which rights or obligations have been determined, or from which legal consequences will flow." Gallo, 159 F.3d at 1198-99.

The Court is satisfied that the exceptions to § 702's waiver of sovereign immunity do not apply with regard to plaintiffs' constitutional right-to-counsel claim. Having performed the McNary analysis, the Court concludes that no statute precludes judicial review of such claim, and thus § 701(a)(1) is no obstacle. Moreover, the issue of whether plaintiffs are entitled to an attorney at government expense is undisputedly not committed to agency discretion by law and, as a result, § 701(a)(2) has no relevance. Finally, the matter comports with § 704's finality requirement because neither immigration judges nor the BIA have the authority to grant plaintiffs the relief they seek. In essence, as noted by plaintiffs' counsel during oral argument, the answer to the sovereign immunity question tracks the result of the McNary inquiry; because §§ 1252(a)(5) and (b)(9) do not channel plaintiffs' constitutional right-to-counsel claim away from this Court, sovereign immunity is waived. Cf. Morrison-Knudsen Co. v. CHG Int'l, Inc., 811 F.2d 1209, 1214 (9th Cir.1987) ("[The Federal Savings and Loan Insurance Corporation's] effort to recharacterize its essential argument as a sovereign immunity claim is disingenuous. If the pertinent statutes indeed confer upon FSLIC exclusive jurisdiction over the matters at issue, then the sovereign immunity issue does not arise. If they do not, then the immunity contention is unavailing. The sovereign immunity terminology... adds nothing to FSLIC's argument.").

The finding of sovereign-immunity waiver in this case is consistent with other decisions. For example, with regard to the claims of a minor, who was an American citizen seeking to prevent the removal of his undocumented alien mother on the ground that his mother's removal would violate his own constitutional rights, the Sixth Circuit held that the district court had subject-matter jurisdiction pursuant to 28 U.S.C. § 1331, and that the APA operated to waive sovereign immunity. See Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615 (6th Cir.2010). Like remaining plaintiffs in this case, the plaintiff in Hamdi had no other avenue for presenting his constitutional claims; he could not have raised them in either his mother's removal proceedings or on judicial review. See id. at 620-24.

Neither Ardestani v. INS, 502 U.S. 129, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991),16 which was cited by the Sixth Circuit in Hamdi, nor Al-Nashiri v. MacDonald, 2012 WL 1642306 (W.D.Wash. May 10, 2012),17 require a different result. Although both Ardestani and Al-Nashiri rely on jurisdiction-stripping or channeling provisions to reject assertions of a waiver of sovereign immunity, the cases are distinguishable because neither case involved a claim, like the one at issue here, that is eligible for McNary treatment. Moreover, neither case concerned IIRIRA or the REAL ID Act, Ardestani having been decided before those statutes were enacted and Al-Nashiri dealing exclusively with the Military Commissions Act of 2006. Thus, with respect to remaining plaintiffs' constitutional claim, the Court is persuaded that sovereign immunity has been unequivocally waived, and to the extent defendants' Rule 12(b)(1) motion to dismiss is premised on sovereign immunity, it is DENIED.

B. Failure to State a Claim

Without conceding that the Mathews balancing standard applies to plaintiffs' due process claim, defendants contend that plaintiffs do not state a "plausible" basis for relief under Mathews.18 Defendants' Rule 12(b)(6) motion, however, ignores the allegations of the Second Amended Complaint, relies on facts outside the pleadings, and invites the Court to engage in the type of analysis more appropriately reserved for summary judgment or trial. The Court declines to prematurely evaluate the merits of plaintiffs' constitutional claim and, for the reasons discussed below, DENIES defendants' Rule 12(b)(6) motion.

Historically, right-to-counsel claims under the Due Process Clause of the Fifth Amendment in the immigration context were analyzed under a two-part standard: (i) whether the proceedings were rendered "fundamentally unfair," and (ii) whether the alien was thereby prejudiced. See, e.g., Lin v. Ashcroft, 377 F.3d 1014, 1023-24 (9th Cir.2004); Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000). The procedural postures of previous right-to-counsel cases, however, differ from that of the one before the Court. Those cases all involved either direct review of a removal or other BIA order or collateral attack of a removal order being used as evidence in a prosecution for illegal reentry.19

Cases more procedurally analogous to the matter before the Court indicate that Mathews sets forth the appropriate test. See Walters v. Reno, 145 F.3d 1032, 1043-44 (9th Cir.1998); see also Ching v. Mayorkas, 725 F.3d 1149, 1157-59 (9th Cir.2013). At oral argument, counsel for defendants seemed to suggest that Mathews would apply with respect to "deportable" aliens, but not as to "inadmissible" aliens. Defendants, however, have cited no authority to support the proposition that such distinction can now be drawn, in the context of analyzing what process is due to such individuals, in light of IIRIRA's merger of matters involving inadmissible and deportable aliens into one proceeding known as "removal." The Court is satisfied that plaintiffs' due process right-to-counsel claim requires a weighing of the three factors articulated in Mathews, namely, the nature of plaintiffs' interest, the risk of erroneous deprivation, and the fiscal or administrative burdens on the government associated with additional or substitute safeguards. See 424 U.S. at 335, 96 S.Ct. 893; see also Turner v. Rogers, 564 U.S. 431, 131 S.Ct. 2507, 2517-18, 180 L.Ed.2d 452 (2011).

In Turner, in which the Supreme Court employed Mathews, a noncustodial parent, who was incarcerated until he "purged" himself of contempt by making the requisite child support payments, asserted that his due process rights had been violated by South Carolina's failure to appoint counsel to represent him. 131 S.Ct. at 2512-13, 2515-16. In concluding that due process "does not automatically require the provision of counsel at civil contempt proceedings... even if [the indigent] individual faces incarceration," id. at 2520 (emphasis in original), the Turner Court was persuaded that a substitute set of safeguards20 would sufficiently reduce the risk of erroneous deprivation, and that, because the opposing party (the custodial parent) was likewise unrepresented by counsel, the playing field was appropriately level, id. at 2519. The Supreme Court expressed concern that requiring South Carolina to provide counsel to noncustodial parents would "create an asymmetry" unfavorable to the custodial parent to whom child support payments are owed. Id.

In Turner, the Supreme Court left open the issue of whether, when the government has "counsel or some other competent representative" in the proceeding, the individual involved is owed more process than the privilege of retaining an attorney. See id. at 2520. The Turner Court similarly reserved ruling on "what due process requires in an unusually complex case" when the individual "can fairly be represented only by a trained advocate." Id. The right-to-counsel claim asserted by plaintiffs in this case falls squarely within the intersection of the questions unanswered in Turner. The removal proceedings at issue in this case pit juveniles against the full force of the federal government — the government initiates the proceedings, it is represented in them, and its discretion in executing removal orders is insulated from judicial review.21 Moreover, courts have repeatedly recognized "[w]ith only a small degree of hyperbole" that the immigration laws are "second only to the Internal Revenue Code in complexity."22 Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir.2004). With this perspective in mind, the Court turns to the Mathews factors.

1. First Mathews Factor: Nature of Interest

In their motion to dismiss, defendants contend that the requisite liberty interest is not at stake, stating that "deportation is not punishment. Defs.' Mot. at 21 (docket no. 80). Defendants' assertion misses the mark. Deportation has been described as "a drastic measure and at times the equivalent of banishment or exile" — it is a "forfeiture for misconduct" and "a penalty." INS v. Errieo, 385 U.S. 214, 225, 87 S.Ct. 473, 17 L.Ed.2d 318 (1966). In contrast, "exclusion" requires no showing of wrongdoing, only a finding of inadmissibility. See Dorniesear; 690 F.3d at 1260; see also 8 U.S.C. § 1229a(e)(2)(A). The terms "deportation" and "exclusion," however, no longer play their historical roles because of the changes wrought by IIRIRA, and plaintiffs in this case are facing "removal."

In discounting the nature of plaintiffs' interest, defendants rely on Tamer, in which the Supreme Court observed that, in the civil context, incarceration has been deemed a necessary, but not sufficient, prerequisite to finding a right to counsel under the Due Process Clause. See 131 S.Ct. at 2517. Defendants, however, cite no authority for the proposition that the Court must focus on the "administrative act" of removal itself, see Defs.' Mot. at 21, and ignore the potential effect of removal, which might be the same or worse than incarceration for some minor aliens.23 Thus, for purposes of ruling on defendants' motion to dismiss, the allegations in the Second Amended Complaint, which the Court must accept as true, support the likely consequences of plaintiffs returning to their homelands.24

2. Second Mathews Factor: Risk of Erroneous Deprivation

Defendants offer three reasons why plaintiffs cannot establish the requisite risk of erroneous deprivation: (i) the risk of error in removal decisions is the same for juveniles as it is for adults; (ii) children already receive additional process designed to reduce the risk of erroneous removal decisions; and (iii) the availability of appellate and judicial review is a sufficient substitute for the assistance of counsel in removal proceedings. The first two arguments require evidentiary support25 and are not properly before the Court on a Rule 12(b)(6) motion.26 The third contention runs contrary to common sense. Under this theory, counsel would be unnecessary even in a criminal proceeding because the accused, if convicted, could always appeal. Moreover, the argument ignores the fact that review is generally limited to the administrative record, see 8 U.S.C. § 1252(b)(4)(A), and that the absence of counsel in the underlying proceeding is likely to affect the shape and scope of such record. The Court also observes that, despite the safeguards touted by defendants, at least one named plaintiff, J.E.V.G., was improperly ordered removed in absentia. Defendants' concession in this regard supports a "plausible" claim that the current procedures available to juveniles27 are not an adequate substitute for the appointment of counsel at government expense. Whether plaintiffs can ultimately prevail on this issue is a question for another day.

3. Third Mathews Factor: Fiscal and Administrative Burdens

Although plaintiffs' right-to-counsel claim poses significant questions about feasibility and cost, the Court cannot resolve those issues in the context of defendants' Rule 12(b)(6) motion. The parties have not indicated either the percentage of cases involving unaccompanied minors or the percentage of cases in which an attorney was retained, secured from a pro bono panel, or provided under either HHS's or the justice AmeriCorps program. Moreover, no estimates have been provided concerning either the amount of funding necessary to appoint counsel for each juvenile desiring an attorney but lacking the means to retain one28 or the financial burden that might be associated with less expansive schemes.29

Rather than attempting to quantify the financial and administrative burdens associated with plaintiffs' requested relief or possible alternatives, defendants speak broadly in "slippery slope" terms. They express concern about the wheels of removal proceedings involving minors grinding to a halt if the government is required to provide counsel for every juvenile in a removal proceeding. Defendants assert that the effect of a ruling favorable to plaintiffs would be to encourage even more youngsters to journey illegally to the United States. They also seem to fear that the Court will inadvertently create a loophole through which parents, guardians, or other adult aliens might receive the services of an appointed attorney. Cf. 8 U.S.C. § 1101(a)(27)(J)(iii)(II) (explicitly addressing a similar concern: "no natural parent or prior adoptive parent of any alien provided special immigrant status ... shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter"). Although the financial constraints and border-policing concerns raised by defendants must play a role in any analysis concerning plaintiffs' assertion of a right to appointed counsel under the Due Process Clause of the Fifth Amendment, at this juncture, they are not sufficiently quantified or developed to allow the Court to engage in the balancing required by Mathews.

C. Classwide Relief

In their supplemental brief in support of their motion to dismiss, defendants ask the Court to strike plaintiffs' request for injunctive relief on behalf of the putative class. The INA makes clear that the Court lacks jurisdiction to grant classwide injunctive relief. See Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir.2010) (quoting AAADC II, 525 U.S. at 481-82, 119 S.Ct. 936). The Court may, however, enter a classwide declaratory judgment. Id. In Rodriguez, the Ninth Circuit interpreted 8 U.S.C. 1252(f)(1), which provides:

8 U.S.C. § 1252(f)(1). The Ninth Circuit concluded that the terms "enjoin" and "restrain," as used in § 1252(f)(1), have different meanings, and that neither encompasses declaratory relief. 591 F.3d at 1119. Enjoin refers to permanent injunctions, while restrain connotes temporary or preliminary injunctive relief. Id. (citing Arevalo v. Ashcroft, 344 F.3d 1, 7 (1st Cir. 2003)). Unlike provisions relating to state taxes30 and state public utility rates,31 § 1252(D(1) does not also include the word "suspend," which has been interpreted to cover declaratory relief, and the Ninth Circuit reasoned that Congress knew it was leaving open the possibility of classwide declaratory relief when it omitted the term "suspend" from § 1252(f)(1). Id. (citing Cal. v. Grace Brethren Church, 457 U.S. 393, 408, 102 S.Ct. 2498, 73 L.Ed.2d 93 (1982)).

The Third Circuit has reached a similar result. See Alli v. Decker, 650 F.3d 1007, 1014-15 (3d Cir.2011) ("declaratory relief will not always be the functional equivalent of injunctive relief" and the "distinct purpose and effect of a declaration, as compared to an injunction, presents an entirely plausible basis upon which Congress might choose to bar one form of relief but not the other"). In Alli, the Third Circuit explained that, although the district court could enter declaratory judgment in favor of the class, such declaration "would not — indeed, by the plain terms of the statute, could not — form the basis for classwide injunctive relief." Id. at 1015. Rather, after securing a declaratory judgment, each individual class member would have to separately invoke it as a ground for individual injunctive relief, which "is expressly permitted under § 1252(f)(1)." Id.; see also id. at 1015 n. 13 (observing that, although "the judiciary has `long presumed that officials of the Executive Branch will adhere to the law as declared by the court" the recent position of the Department of Justice is that, "at least under certain circumstances, this presumption applies only after appellate review is exhausted").

In sum, § 1252(f)(1) does not preclude the Court from granting a preliminary or permanent injunction as to "an individual alien against whom proceedings ... have been initiated." Section 1252(0(1), however, deprives the Court of jurisdiction to provide injunctive relief to a class. If appropriate, the Court could enter a classwide declaratory judgment, but the enforcement of such decision would have to be on a case-by-case basis. The Court therefore GRANTS in part defendants' Rule 12(b)(6) motion to dismiss, and STRIKES plaintiffs' request for classwide injunctive relief.

Conclusion

For the foregoing reasons, defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), docket no. 80, is GRANTED in part and DENIED in part. The claims of G.D.S., A.E.G.E., and G.J.C.P. are DISMISSED without prejudice. Plaintiffs' first claim for violation of INA § 240 is DISMISSED for lack of jurisdiction pursuant to 8 U.S.C. §§ 1252(a)(5) and (b)(9). Plaintiffs' request for classwide injunctive relief is STRICKEN pursuant to 8 U.S.C. § 1252(0(1), but plaintiffs' prayer for a classwide declaratory judgment and individual injunctive relief will remain in the case. Defendants' motion to dismiss is otherwise DENIED.

IT IS SO ORDERED.