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May 24, 2004.


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 Order.


  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 representation. Id.

  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 Eighth Amendment.

  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. 2002).

  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 protection claim.

  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 ...

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