Senate Joint ResolutionNo. 28


Introduced by Senator Lara

(Coauthors: Senators De León, Hall, Hernandez, Mendoza, and Mitchell)

(Coauthors: Assembly Members Alejo, Arambula, Calderon, Campos, Eggman, Cristina Garcia, Eduardo Garcia, Gomez, Gonzalez, Roger Hernández, Lopez, Medina, Rendon, Rodriguez, Salas, Santiago, and Thurmond)

August 23, 2016


Senate Joint Resolution No. 28—Relative to immigrant children.

LEGISLATIVE COUNSEL’S DIGEST

SJR 28, as introduced, Lara. Immigrant children: legal representation.

This measure would urge the federal government to ensure that immigrant children are afforded due process under the law in removal proceedings by providing government-funded attorneys, trained in immigration law, to all indigent children seeking an immigration remedy. The measure would urge the federal government to first hear cases involving children that have legal counsel and to immediately halt cases brought against unrepresented immigrant children until lawyers are made available to represent them.

Fiscal committee: no.

P1    1WHEREAS, The Fifth Amendment to the United States
2Constitution provides that a person shall not be deprived of life,
3liberty, or property without due process of law, thereby ensuring
4that he or she will receive a fundamentally fair, orderly, and just
5judicial proceeding before being deprived of his or her freedom;
6and

P2    1WHEREAS, Former Assistant Chief Immigration Judge Jack
2H. Weil, a senior official in the United States Department of
3Justice, asserted in a deposition that he has trained toddlers in
4immigration law and can afford them a fair hearing without the
5toddler being represented by legal counsel; and

6WHEREAS, The assertion made by Judge Weil is contemptible
7and offensive to our country’s Fifth Amendment constitutional
8mandate to provide all with due process under the law; and

9WHEREAS, Due process cannot be guaranteed in an adversarial
10immigration removal proceeding without legal representation; and

11WHEREAS, Article 14 of the Universal Declaration of Human
12Rights, adopted in 1948, states that “Everyone has the right to seek
13and to enjoy in other countries asylum from persecution.”
14Accordingly, children escaping from violence in other countries,
15whether unaccompanied or accompanied by a parent, are not
16“illegal” when they come to the United States in search of asylum;
17and

18WHEREAS, The protections of Article 14 have been
19incorporated by the United States Congress into domestic law,
20which now protects all asylum seekers, including children, by
21prohibiting the federal government from returning to their home
22countries persons who have fled persecution due to race, religion,
23nationality, political opinion, or membership in a particular social
24group; and

25WHEREAS, It is our nation’s legal and moral obligation to open
26our arms to children who fear harm in their country of origin and
27to foreign-born children in the United States who cannot be
28reunified with one or both parents due to abuse, neglect, or
29abandonment and who are therefore eligible for Special Immigrant
30Juvenile Status or any other immigration remedy; and

31WHEREAS, Respect for due process requires that all indigent
32children seeking asylum, Special Immigrant Juvenile Status, or
33other immigration remedies in defense of deportation be afforded
34government-funded competent immigration counsel; and

35WHEREAS, According to a study by the Transactional Records
36Access Clearinghouse, the foremost authority on federal
37immigration enforcement data, unrepresented children were ordered
38to leave the United States in 86 percent of cases, whereas
39represented children were ordered to leave the United States in
40only 16 percent of cases; and

P3    1WHEREAS, As demonstrated by the same study, the provision
2of legal representation would improve the integrity of the
3immigration court system, because children without legal
4representation fail to appear in court and therefore are ordered
5removed in absentia in 75 percent of cases. By comparison,
6children with legal representation do consistently appear in court
7and are therefore ordered removed in absentia in only 3 percent
8of cases; and

9WHEREAS, The federal government is denying indigent
10immigrant children in California their rights to a fair trial under
11the Fifth Amendment to the United States Constitution because
12the federal government does not provide these children with legal
13representation in immigration court. These children therefore face
14the threat of deportation to violent and dangerous conditions where
15they may face persecution, violence, or even death; and

16WHEREAS, Human Rights Watch filed an amicus brief in the
17case of J.E.F.M. v. Lynch, a nationwide lawsuit on behalf of
18thousands of children who are challenging the federal government’s
19failure to provide the children with legal representation in
20deportation hearings, arguing that the failure of the United States
21government to appoint lawyers to represent immigrant children
22facing deportation violates their basic rights under international
23law; and

24WHEREAS, the California Attorney General has engaged in
25efforts to close the legal services gap for unaccompanied immigrant
26children across California and joined an amicus brief in J.E.F.M.
27v. Lynch.

28WHEREAS, Since January 2014, at least 83 deportees, including
29children, from the United States, were reported murdered upon
30their return to Guatemala, Honduras, and El Salvador, which
31remain three of the most violent countries in the world; and

32WHEREAS, There are currently over 13,800 children in
33California that are not represented by legal counsel in immigration
34court; and

35WHEREAS, California has a duty to protect the welfare of
36children within our state, including immigrant children; and

37WHEREAS, California values immigrant children and has made
38this clear through legislative enactments, including Assembly Bill
39540 (2001), Assembly Bills 130 and 131 (2011), commonly
40referred to as the California Dream Act, Senate Bill 1064 (2012),
P4    1Senate Bill 873 (2014), commonly referred to as the
2Unaccompanied Minors Program, Senate Bill 1210 (2014),
3commonly referred to as the California DREAM Loan Program,
4and Senate Bills 4 and 75 (2015), commonly referred to as the
5Health4All Kids Act; and

6WHEREAS, Special Immigrant Juvenile Status under Section
71101(a)(27)(J) of Title 8 of the United States Code is immigration
8relief that relies on a state’s interest in the welfare of children and
9provides for Special Immigrant Juvenile Status where a state court
10determines that reunification with one or both of the immigrant’s
11parents is not viable due to abuse, neglect, abandonment, or similar
12basis found under state law and that it would not be in the child’s
13best interest to return to his or her home country; and

14WHEREAS, California makes an annual $3 million investment
15to ensure that unaccompanied minors receive the legal
16representation that they need to pursue Special Immigrant Juvenile
17Status and other immigration relief; and

18WHEREAS, California passed Senate Bill 873 (2014) and
19Assembly Bill 900 (2015) to ensure that California courts issue
20the predicate orders necessary for children to apply for Special
21Immigrant Juvenile Status; and

22WHEREAS, California is disadvantaged when California’s
23children are denied their rights under the United States
24Constitution, including their right to due process; and

25WHEREAS, California has a strong interest in ensuring that the
26children living in this state are not unfairly deported. Schools are
27disrupted when children are pulled from classes, communities are
28thrown into disorder when families are torn apart, the health and
29welfare of these children are put at risk, and the state is denied the
30potential societal and economic contributions of these children;
31now, therefore, be it

32Resolved by the Senate and the Assembly of the State of
33California, jointly,
That the Legislature of the State of California
34urges the federal government to take action to remedy this injury
35to the State of California, through appropriate measures within the
36United States Department of Justice, the United States Department
37of Homeland Security, and the Office of Refugee Resettlement,
38and ensure that immigrant children are afforded due process under
39the law when they are fighting to remain in the United States of
40America, by providing government-funded attorneys, trained in
P5    1immigration law, to all indigent children fighting deportation and
2seeking an immigration remedy; and be it further

3Resolved, That the Legislature of the State of California urges
4the federal government to rearrange its dockets to first hear the
5cases of children who have legal representation and to immediately
6halt cases it is pursuing against unrepresented immigrant children
7until lawyers are made available to represent them; and be it further

8Resolved, That the Secretary of the Senate transmit copies of
9this resolution to the President and Vice President of the United
10States, to the Speaker of the House of Representatives, to the
11Majority Leader of the Senate, to each Senator and Representative
12from California in the Congress of the United States, and to the
13author for appropriate distribution.



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