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