BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 900


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          Date of Hearing:  April 28, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 900  
          Levine - As Amended April 23, 2015


          SUBJECT:  EXTENDED GUARDIANSHIPS: special immigrant juvenile  
          status


          KEY ISSUE:  IN ORDER TO BETTER PROTECT VULNERABLE IMMIGRANT  
          YOUTH, SHOULD CALIFORNIA LAW ALIGN WITH FEDERAL LAW AND ALLOW A  
          GUARDIANSHIP TO LAST UNTIL Age 21 For THOSE YOUTH WHO MAY BE  
          ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS?


                                      SYNOPSIS


          This bill, sponsored by Bet Tzedek and the Immigrant Legal  
          Resource Center, is designed to better align state and federal  
          law in order to protect vulnerable, unaccompanied immigrant  
          youth up to 21 years old.  Federal law allows youth up to 21  
          years of age to qualify for special immigrant juvenile status  
          and, thus, be eligible to remain in the United States lawfully.   
          To qualify, a state juvenile court must make certain initial  
          findings.  However, California law today only has a process to  
          make those findings for youth up to 18 years of age, unless the  
          youth is a nonminor dependent in the foster care system.  This  
          bill creates that missing process, and allows for custodial  
          assistance from a caring adult, for youth 18 to 21 by allowing  
          for the establishment and extension of guardianships until 21  








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          for immigrant youth seeking Special Immigrant Juvenile Status.   
          Given that these 18 and over youth are legally adults, this bill  
          rightly ensures that they have the legal decisionmaking  
          authority of adults, similar to the authority that nonminor  
          dependents in the juvenile court have.  The author believes that  
          this bill is necessary not only to allow these youth to apply  
          for legal status, "but to stabilize their legal immigration  
          situation so that they can overcome the abuse, abandonment, or  
          neglect they have suffered through the support of the state  
          court and legal guardian."  This bill is supported by numerous  
          children's advocates and immigrant rights organizations.  It has  
          no known opposition.


          SUMMARY:  Allows for guardianships for youth from ages 18 until  
          21 who may qualify for federal Special Immigrant Juvenile Status  
          (SIJS).  Specifically, this bill:  


          1)Allows, with the consent of the proposed ward, a probate court  
            to establish a guardianship of the person for an unmarried  
            individual, who is at least 18 years of age, but not yet 21,  
            in connection with a petition to make necessary findings  
            regarding SIJS, as specified.  Allows the petition for  
            guardianship to be filed by a relative, the proposed ward or  
            any other person.


          2)Allows, with the consent, or at the request, of the ward, a  
            court to extend a guardianship of the person beyond 18 years  
            of age in order to allow the ward to complete the application  
            process with U.S. Citizenship and Immigration Services for  
            classification as a special immigrant juvenile, as specified.   
            Provides that the petition for guardianship may be filed by a  
            relative, the ward or any other person.  Prevents the  
            guardianship from extending beyond the ward reaching 21 years  
            of age. 










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          3)Provides that nothing in #s 1) or 2), above, abrogates any  
            other rights a ward who is 18 or older may have as an adult  
            under California law.  Notwithstanding statutes allowing a  
            guardian to fix the residence of a ward or consent to medical  
            treatment on behalf of a ward, provides that a ward who is 18  
            years or older retains all legal decisionmaking authority as  
            an adult.


          4)Provides that a court may terminate the guardianship of a ward  
            who is 18 or older if the ward requests termination.


          5)Requires Judicial Council to adopt necessary rules and forms  
            by July 1, 2016.


          6)States the legislation findings that, among other things:


             a)   SIJS offers interim relief from deportation for children  
               under 21, where a state juvenile court has made specified  
               findings, including that reunification with one or both  
               parents is not viable due to abuse, neglect, or  
               abandonment, and a finding that it is not in the child's  
               best interest to be returned to his or her country of  
               origin.


             b)   Federal law allows a person under 21 to seek relief from  
               deportation as a special immigrant juvenile, but youth  
               18-21 in California have largely been unable to obtain the  
               necessary state court findings because probate courts  
               cannot take jurisdiction, for purposes of establishing a  
               guardianship, of youth over 18, even though unaccompanied  
               immigrant youth between 18 and 21 face identical  
               circumstances to those faced by their younger counterparts.










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             c)   It is necessary to allow unaccompanied immigrant youth,  
               many of whom have experienced parental abuse, neglect or  
               abandonment, the opportunity to have a custodial  
               relationship with a responsible adult as they adjust to a  
               new cultural context, language and education system, and  
               recover from the trauma of abuse, neglect and abandonment,  
               in order to promote permanency and long-term well-being of  
               these youth.


             d)   Guardianship of the person may be necessary and  
               convenient for these youth, although any such youth  
               appointed a guardian still retains the rights of an adult  
               under California law.


          EXISTING LAW:  


          1)Allows a the court to appoint a guardian of the person, the  
            estate, or both for a child under 18, taking into  
            consideration the best interest of the proposed ward.   
            (Probate Code Section 1501 et seq.)
          2)Under federal law, defines a "special immigrant juvenile" as a  
            person under 21 who is declared a dependent by a juvenile  
            court or committed to the custody of a state agency or a  
            court-appointed individual, whose reunification with one or  
            both of his or her parents is not viable due to abuse,  
            neglect, abandonment, or a similar basis found under state  
            law, and whose return to his or her country of nationality or  
            last habitual residence is not in his or her best interest.   
            Allows such person to obtain SIJS and, based on that, apply  
            for a visa for lawful permanent residency.  (8 U.S.C. Sections  
            1101(a)(27)(J), 1153(b)(4).)


          3)Provides that the superior court, including a juvenile,  
            probate, or family court department or division of the  
            superior court, has jurisdiction to make judicial  








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            determinations regarding the custody and care of juveniles  
            within the meaning of the federal Immigration and Nationality  
            Act.  Requires the superior court to make an order containing  
            the necessary findings regarding SIJS pursuant to federal law,  
            if there is evidence to support those findings.  (Code of  
            Civil Procedure Section 155.)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  This bill is designed to better align state and  
          federal law in order to protect vulnerable, unaccompanied  
          immigrant youth ages 18-21.  Federal law allows youth up to 21  
          years of age to qualify for SIJS and, thus, be eligible to  
          remain lawfully in the United States.  To qualify, a state  
          juvenile court must first make certain findings.  However,  
          California law today only has a process to make those findings  
          for youth up to 18 years of age, unless the youth is a nonminor  
          dependent in the foster care system.  This bill creates that  
          missing process, and allows for custodial assistance from a  
          caring adult, for youth 18 to 21 by allowing for the  
          establishment and extension of guardianships until 21 for  
          immigrant youth seeking SIJS.


          In support, the author writes:


            Not only will extending jurisdiction allow these children to  
            apply for legal status, it will also help meet the ultimate  
            goals of SIJS, which are not merely to enable vulnerable  
            children to remain here legally, but to stabilize their legal  
            immigration situation so that they can overcome the abuse,  
            abandonment, or neglect they have suffered through the support  
            of the state court and legal guardian.


          Special Immigrant Juvenile Status.  "Special Immigrant Juvenile  








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          Status" is a federal immigration classification that may help  
          undocumented, vulnerable children and youth remain in the United  
          States.  Under the Trafficking Victims Protection  
          Reauthorization Act of 2008, Pub. L. No. 110-457, any unmarried  
          person under age 21 who has been abused, neglected or abandoned  
          by a parent may seek classification as a Special Immigrant  
          Juvenile and then immediately apply for lawful permanent  
          resident status.  To be eligible for SIJS, a state juvenile  
          court must first find that:


             1.   The child is a dependent of a juvenile court or  
               committed to the custody of a state agency or a  
               court-appointed individual;


             2.   Reunification with one or both of the child's parents is  
               not viable due to abuse, neglect, abandonment, or a similar  
               basis found under state law; and 


             3.   Return to the child's country of nationality or last  
               habitual residence is not in his or her best interest.  (8  
               U.S.C. Section 1101(a)(27)(J).)


          The first finding originally only applied to children under the  
          direct jurisdiction of the juvenile court, thus limiting  
          eligibility for SIJS.  This was expanded in 2008 to include  
          children with a court-appointed custodian, thus allowing the  
          required findings to be made on behalf of children with  
          guardianships established by a probate court and custodial  
          arrangements established by a family court.  This significantly  
          expanded the number of immigrant children eligible for SIJS.   
          Once a state court makes the requisite findings, the child may  
          apply to the U.S. Citizenship and Immigration Services for SIJS.  
           (8 U.S.C. Section 1153(b)(4).)










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          Last Year's Legislation Allowed California Courts to Make the  
          Necessary Findings, Although Not All Youth Covered by the  
          Federal Law Are Covered by State Statute.  Last year, in AB 873  
          (Budget and Fiscal Review), Chap. 685, Stats. 2014, the  
          Legislature specifically provided that superior courts can make  
          the findings necessary for a child to be eligible for SIJS.  In  
          particular, that new law states that the superior court,  
          including a juvenile, probate, or family court, has jurisdiction  
          to make judicial determinations regarding the custody and care  
          of juveniles within the meaning of the federal Immigration and  
          Nationality Act, and requires the court to make an order  
          containing the necessary findings for SIJS, if there is evidence  
          to support them.  (Code of Civil Procedure Section 155.) 


          Thus, a child in California today, who is under 18, can have the  
          necessary findings made in a juvenile court as part of a  
          dependency or delinquency proceeding, in family court as part of  
          a custody proceeding or in probate court as part of a  
          guardianship proceeding, since all those proceedings would  
          satisfy the first required finding - the child is either  
          declared a dependent by the juvenile court or is legally  
          committed to, or placed under the custody of, a state agency or  
          department, or an individual or entity appointed by the court.   
          For youths over 18, but still eligible for federal SIJS because  
          they are under 21, a juvenile court in a dependency proceeding  
          has jurisdiction over nonminor dependents and could, for those  
          youth, make the requisite findings necessary to secure legal  
          immigration status until 21.  This expansion of dependency  
          support and oversight for nonminor youth dates back only a few  
          years when, pursuant to federal legislation providing for foster  
          care financial assistance up to age 21, California established  
          the California Fostering Connections to Success Act of 2010  
          which, among other provisions, extended transitional foster care  
          to eligible youth up to age 21 as a voluntary program for youth  
          who meet specified work and education participation criteria.   
          (AB 12 (Beall), Chap. 559, Stats. 2010.)










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          However, for youths over 18 who are not dependents of the  
          juvenile court, there is currently no state court proceeding  
          under which the requisite state court findings can be made.  As  
          a result, there is a gap between who the federal government will  
          assist under SIJS - youth under 21 who meet the necessary  
          findings - and those who can get the necessary findings in  
          California - all youth under 18, but only those over 18 who are  
          nonminor dependents of the juvenile court.  This gap  
          significantly limits the options for those otherwise eligible  
          immigrant youth in California who, because of state law  
          limitations alone, cannot qualify for SIJS.  


          This Bill Extends Guardianship Proceedings Until 21 for Youth in  
          Need of the Special Immigrant Juvenile Status Finding.  This  
          bill seeks to close that gap by allowing probate courts to  
          establish guardianships for youth who are at least 18, but less  
          than 21, and to extend existing guardianships up to 21, if done  
          in connection with a petition to make the necessary SIJS  
          findings.  Thus, this bill fills the gap and allows for the  
          necessary state court finding to help these youth become legal  
          residents of California.  However, this bill does much more for  
          this very vulnerable population.  As the bill's legislative  
          findings make clear, these guardianships connect immigrant youth  
          who have been abused, neglected or abandoned with a caring adult  
          "as they adjust to a new cultural context, language, and  
          education system, and recover from the trauma of abuse, neglect  
          or abandonment.  These custodial arrangements promote permanency  
          and the long-term well being of immigrant children present in  
          the United States who have experienced abuse, neglect, or  
          abandonment." 


          California is not alone in extending guardianships to 21.  New  
          York and Maryland are among the states that offer extended  
          guardianships until 21 years of age.  


          Bill Makes Clear That These 18-21 Year Old Youth Retain Their  








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          Legal Rights as Adults Under California Law.  All of the regular  
          guardianship rules and statutes apply to these new over 18  
          guardianships, with several key exceptions, all recognizing that  
          the youth subject to them are now adults, with distinct legal  
          rights.  Like guardianships for children, guardianships for  
          those over 18 begin with notice to specified relatives and,  
          unless waived by the court, an investigation of the proposed  
          guardianship by a court investigator, probation officer, or  
          domestic relations investigator, along with recommendations of  
          the appropriateness of the guardianship.  The court may appoint  
          a guardian if it appears to the court to be "necessary or  
          convenient," the same standard that applies to those under 18.   
          (Probate Code Section 1514.) 


          However, because youth 18 and older are legally adults, this  
          bill rightly proposes to treat nonminor wards different than  
          minor wards.  First, the guardianship can only be established  
          for a youth 18 or over, or extended for a youth who has reached  
          18, with the youth's consent.  No non-minor will be forced into  
          a guardianship, just like no nonminor can be forced to remain in  
          dependency after age 18.  Second, the court may terminate a  
          guardianship if a ward 18 and over requests termination.  This  
          ensures that the nonminor ward remains in a guardianship only if  
          he or she so desires.


          Finally, this bill specifically states that wards 18 and over  
          retain their legal rights as adults under California law.  The  
          language in the bill is modeled after Welfare & Institutions  
          Code Section 303(d), which provides that nonminor dependents  
          retain all of their legal decisionmaking authority as adults  
          even if they have elected to receive extended foster care  
          assistance.  In particular, the bill rightly specifies that  
          these nonminor wards are entitled to make their own legal  
          decisions notwithstanding statutory authority for guardians to  
          establish their wards' residences and consent to medical  
          treatment for them.  Again, these provisions are analogous to  
          how the law today treats nonminor dependents.   








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          ARGUMENTS IN SUPPORT:  This bill is supported by a wide range of  
          children's and immigrant rights advocates.  They write:


            Particularly in light of the recent influx of unaccompanied  
            children arriving in the United States, including 5,831 of  
            whom were released to family members or other adults in the  
            state of California in Fiscal Year 2014 alone, this bill is  
            crucial to protecting vulnerable unaccompanied immigrant  
            children in the state of California.  Further, it will  
            facilitate their successful integration into and ultimate  
            contribution to our larger community in cases where such youth  
            are eligible for legal status through Special Immigrant  
            Juvenile Status.  This bill will ultimately lead to safety and  
            stability for immigrant children in California, principles  
            that are highly valued by our state.  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Bet Tzedek (co-sponsor)


          Immigrant Legal Resource Center (co-sponsor)


          Asian Americans Advancing Justice - Asian Law Caucus


          Asian Pacific Islander Legal Outreach









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          Association of Pro Bono Counsel


          Bay Area Industrial Areas Foundation


          California Immigrant Policy Center


          California Rural Legal Assistance Foundation


          Catholic Charities of the East Bay


          Catholic Legal Immigration Network


          Canal Alliance


          Central American Resource Center


          Centro Legal de la Raza


          Dolores Street Community Services


          Immigrant Rights Clinic, University of California, Irvine School  
          of Law


          Immigration Center for Women and Children


          Larkin Street Legal Services








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          Lawyers' Committee for Civil Rights of the San Francisco Bay  
          Area


          Legal Advocates for Children and Youth


          Legal Aid Society of San Mateo County


          Legal Services for Children


          Legal Services for Prisoners with Children


          Los Angeles Center for Law and Justice


          Loyola Immigrant Justice Clinic, Loyola Law School


          Pangea Legal Services


          Public Counsel's Children's Rights Project


          San Diego Volunteer Lawyer Program


          San Francisco International High School


          Social Justice Collaborative










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          Youth Law Center




          Opposition


          None on file




          Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334