United States District Court, E.D. New York
May 24, 2004.
OLUSHOLA FAYEMI, Minor, Plaintiff, by her "Next Friends" SAUNDRA RAYFORD and IBIKUNLE FAYEMI, -against- BUREAU OF IMMIGRATION AND CUSTOM ENFORCEMENT, formerly "INS," Defendant
The opinion of the court was delivered by: DAVID TRAGER, District Judge
Saundra Rayford and Ibikunle Fayemi, the grandmother and father of
thirteen-year-old plaintiff, Olushola Fayemi, bring this pro
se action on plaintiff's behalf in an effort to enjoin
defendant Bureau of Immigration and Custom Enforcement from deporting Mr.
Fayemi to Nigeria. Ms. Rayford's application to proceed in
forma pauperis is granted, but the application for
the appointment of counsel is denied. Ms. Rayford and Mr. Fayemi are
directed to obtain counsel for plaintiff within sixty (60) days of this
In May 2000, Mr. Fayemi, who is currently incarcerated at a federal
facility in Texas, "was ordered deported to his native country, Nigeria,
because of an aggravated felony conviction." Complaint, ¶ 8.
Plaintiff, whose mother is a drug addict and who has been placed in the
custody of her maternal grandmother, Ms. Rayford, was "devastated" by the
possibility that she might never see her father again. The complaint
alleges that his deportation would cause plaintiff "extreme psychological hardship and emotional distress." Id. at ¶ 10. On May 6, 2004, Ms. Rayford and Mr. Fayemi commenced this action on
behalf of plaintiff. The two-page complaint, which alleges that this
action is being brought pursuant to 28 U.S.C. § 1331, seeks to enjoin
Mr. Fayemi's deportation on two grounds. First, the complaint alleges
that deporting plaintiff's father "to a country where she might never see
him again is cruel and derivative punishment against her" and would
therefore violate plaintiff's Eighth Amendment rights. Id. at
¶ 11. Second, the complaint alleges that the deportation would
violate the Equal Protection Clause of the Fifth Amendment, since "other
American citizens similarly situated would not have their fathers
deported." Id. at ¶ 12.
The complaint acknowledges that plaintiff is a minor and that "a minor
cannot sustain a lawsuit in court without the representation of an
attorney." Id. at ¶ 13. Accordingly, the complaint
specifically requests that this Court appoint an attorney to represent
her. In addition, Ms. Rayford's request to proceed in
forma pauperis indicates that plaintiff's grandmother
is on public assistance and does not have the means to hire an attorney
for her granddaughter.
As the complaint correctly notes, minors cannot elect to proceed
pro se. Cheung v. Youth Orchestra Found. of
Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990)). Moreover, lay
persons cannot represent another individual not even their own
child or grandchild. See Machadio v. Apfel,
276 F.3d 103, 106 (2d Cir. 2002); Iannaccone v. Law, 142 F.3d 553, 558
(2d Cir. 1998). "[I]n federal court `a non-attorney parent must be
represented by counsel in bringing an action on behalf of his or her
child.'" Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123,
125 (2d Cir. 1998)(per curiam), cert. denied, 526 U.S. 1025
(1999)(quoting Cheung, 906 F.2d at 61). When it is apparent to
a court that a lay person is suing on behalf of a minor, the court has a
duty to protect the child by enforcing, sua sponte, the prohibition against unauthorized
In appropriate cases, the district court may appoint counsel to
represent a minor whose parent or grandparent has commenced a
pro se action on his or her behalf. Cheung,
906 F.2d at 61. The determination as to whether or not to appoint counsel
must be made before deciding any other issues in the case. Id.
at 62. If the district court declines to appoint counsel and if the
non-attorney parent is unable to retain counsel, the complaint should be
dismissed without prejudice. Id.
There is, of course, no right to have counsel appointed in a civil
case. Simons v. Lycee Francais de New York, No. 03 Civ. 4972
(LAK), 2003 WL 22295360, at *3, n.2 (S.D.N.Y. Oct. 7, 2003). In
determining whether to appoint counsel, a district court must first
determine whether the indigent litigant's position "seems likely to be of
substance." Wenger, 146 F.3d at 125. If the litigant's claims
meet this "threshold requirement," the court should consider the factors
set forth in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d
Cir. 1986). See Wenger, 146 F.3d at 125. In addition,
"in determining whether appointment of counsel is necessary in a case
involving a party who is unable to represent himself [or herself] because
he [or she] is a minor . . ., the court should consider the fact that,
without appointment of counsel, the case will not go forward at all."
Id. However, even if the failure to appoint counsel might
result in a minor's claims being dismissed, the appointment of counsel is
not required when it is clear that no substantial claim might be brought
on behalf of the minor. Id.; see Cheung,
906 F.2d at 62.
In this case, the complaint does not raise any substantial claims. The
complaint alleges that the deportation of plaintiff's father violates
plaintiff's Eighth Amendment right against cruel and unusual punishment
and her Fifth Amendment right to equal protection of the laws. However,
neither claim has any merit. First, the Eighth Amendment is inapplicable to deportation proceedings.
The Eighth Amendment provides that "[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted." Because the Amendment is addressed to bails, fine and
punishments, the Supreme Court has long interpreted it as applying
"primarily, and perhaps exclusively, to criminal prosecutions and
punishments." Browning-Ferris Industries of Vermont, Inc. v. Kelco
Disposal, Inc., 492 U.S. 257, 262 (1989). "It is settled that
deportation, being a civil procedure, is not punishment and the cruel and
unusual punishment clause of the Eighth Amendment accordingly is not
applicable." Santelises v. Immigration and Naturalization
Serv., 491 F.2d 1254, 1255-56 (2d Cir.), cert. denied,
417 U.S. 968 (1974); see also Fong Yue Ting v.
United States, 149 U.S. 698, 730 (1892)(holding that the Eighth
Amendment is inapplicable to the deportation of aliens on the ground that
`deportation is not a punishment for crime.'). Thus, neither plaintiff
nor her father can argue that Mr. Fayemi's deportation violates the
Second, plaintiff has not alleged facts to suggest an equal protection
violation. "The Equal Protection Clause requires that the government
treat all similarly situated people alike." Harlen Assocs. v.
Incorporated Village of Mineola, 273 F.3d 494, 499 (2d Cir.
2001)(citing City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985)). In order to state a selective enforcement or
treatment claim, "plaintiffs in this Circuit traditionally have been
required to show both (1) that they were treated differently from
other similarly situated individuals, and (2) that such differential
treatment was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of constitutional
rights, or malicious or bad faith intent to injure a person."
Harlen Assocs., 273 F.3d at 499 (internal quotations and citations
omitted). The allegations in the complaint do not suggest that plaintiff has any basis for
making such a claim.
First, in asserting that "other American citizens similarly situated
would not have their fathers deported," the complaint suggests that
plaintiff may be comparing herself to American citizens whose fathers are
citizens themselves or who enjoy a different immigration status than Mr.
Fayemi. All aliens are not treated alike. For example, as discussed in
more detail below, some aliens who are deportable on the basis of certain
criminal convictions can apply to the Attorney General for a waiver of
deportation on hardship grounds. See 8 U.S.C. § 1182(h).
However, in 1996, Congress effected changes to this law that made lawful
permanent resident aliens ("LPRs") categorically ineligible for such
waivers. See Section 348 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub.L. 104-208, 110 Stat. 3009-546
(1996). Although the Second Circuit found that this distinction between
classes of aliens "simply defies logic," it nonetheless upheld this
legislative amendment against an equal protection challenge, holding that
LPRs and non-LPRs were not "similarly situated." Jankowski-Burczyk
v. Immigration and Naturalization Serv., 291 F.3d 172, 175 (2d Cir.
In addition to having to show that other people who were convicted of a
similar crime and who had the same immigration status as her father were
not deported, plaintiff would have to show that the disparate treatment
was due to some impermissible consideration. Plaintiff's complaint does
not even allege an invidious motive. To the contrary, the complaint
concedes that Mr. Fayemi "was ordered deported . . . because of an
aggravated felony conviction." Complaint, ¶ 8. The complaint does not
suggest that Mr. Fayemi was wrongly convicted, that the conviction was
incorrectly classified as an aggravated felony or that
8 U.S.C. § 1227(a)(2)(iii), the provision that makes aggravated felons
eligible to deportation, was selectively applied for impermissible
reasons. Accordingly, it seems unlikely that plaintiff could make the showing necessary to make out an equal
Since this Court concludes that plaintiff's claims are not "likely to
be of substance," it declines to appoint counsel on her behalf. While
this Court recognizes that this decision may effectively preclude
plaintiff from seeking relief in this court, it notes that the remedy
plaintiff seeks may be available by petitioning the Attorney General.
Under section 212(h) of the Immigration and Naturalization Act,
8 U.S.C. § 1182(h), the Attorney General has discretion to waive certain
criminal grounds for deportability
in the case of an immigrant who is the . . .
parent . . . of a citizen of the United States or
an alien lawfully admitted for permanent residence
if it is established to the satisfaction of the
Attorney General that the alien's denial of
admission would result in extreme hardship to the
United States citizen or lawfully resident . . .
daughter of such alien. . . ."
8 U.S.C. § 1182(h)(1)(B).*fn1
Therefore, this Court's decision
not to appoint counsel may not preclude plaintiff and her family from
making the case that Mr. Fayemi's deportation will create extreme
hardship, provided that Mr. Fayemi was not convicted of a crime making
him ineligible for this waiver and is not an LPR.*fn2
If Mr. Fayemi is
an LPR, neither he nor plaintiff has an equal protection claim in any
event. See Jankowski-Burczyk, 291 F.3d at 175. Conclusion
For the reasons set forth above, Ms. Rayford's application for
appointment of counsel is denied. Ms. Rayford and Mr. Fayemi are directed
to obtain counsel for plaintiff, Olushola Fayemi, within sixty (60) days
of the date of this Order. If Ms. Rayford and Mr. Fayemi cannot find an
attorney to represent plaintiff or choose not to do so, plaintiff's
claims will be dismissed without prejudice.
No summons shall issue at this time and all further proceedings shall
be stayed for sixty (60) days. The Court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in
good faith. See Coppedge v. United States,
369 U.S. 438, 444-45 (1962).