BILL ANALYSIS                                                                                                                                                                                                    



                                                                     SJR 28


                                                                    Page  1





          Date of Hearing:   August 31, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SJR  
          28 (Lara) - As Introduced August 23, 2016


          SENATE VOTE:  31-2


          SUBJECT:  IMMIGRANT CHILDREN:  LEGAL REPRESENTATION


          KEY ISSUE:  IN ORDER TO ENSURE DUE PROCESS TO THOUSANDS OF  
          IMMIGRANT CHILDREN FACING REMOVAL PROCEEDINGS WITHOUT LEGAL  
          representation, SHOULD THE LEGISLATURE URGE THE FEDERAL  
          GOVERNMENT TO PROVIDE AND PAY FOR LEGAL counsel FOR THESE  
          CHILDREN, AND TO IMMEDIATELY STOP pursuing CASES AGAINST  
          UNREPRESENTED CHILDREN UNTIL counsel is appointed to REPRESENT  
          them?


                                      SYNOPSIS


          According to the author, this resolution responds to the federal  
          government's controversial policy of seeking deportation of  
          thousands of Central American children who have been detained at  
          the southern border of the U.S. in recent years-many of them  
          unaccompanied and trying to escape poverty and street violence  
          in countries including El Salvador, Guatemala and Honduras.  Of  
          particular controversy, is the fact that the U.S. government is  
          seeking to deport these children without ensuring that they have  








                                                                     SJR 28


                                                                    Page  2





          legal representation in immigration court-a regrettable approach  
          that does not acknowledge the injustice of having children too  
          young to understand the legal process left to fend for  
          themselves in deportation hearings without legal counsel.  The  
          author notes that the American Civil Liberties Union and other  
          immigrant advocates recently filed a nationwide class-action  
          lawsuit on behalf of thousands of children, challenging the  
          federal government's failure to provide the children with legal  
          representation in deportation hearings.


          Accordingly, this measure urges 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 fighting  
          deportation and seeking an immigration remedy.  The measure also  
          urges the federal government to rearrange its dockets to first  
          hear the cases of children who have legal representation and to  
          immediately halt cases it is pursuing against unrepresented  
          immigrant children until lawyers are made available to represent  
          them.  This resolution is consistent with other recent laws  
          enacted by the Legislature, described below, intended to enable  
          immigrant children to remain in the country by obtaining Special  
          Immigrant Juvenile Status, a federal immigration classification  
          that may help undocumented, vulnerable children and youth remain  
          in the United States.  This measure previously passed the Senate  
          by a bipartisan 31-2 vote.


          SUMMARY:  Urges 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 indigent children seeking an immigration  
          remedy.  Specifically, this measure:   


           1) Finds and declares that Article 14 of the Universal  
             Declaration of Human Rights, adopted in 1948, states that  
             "Everyone has the right to seek and to enjoy in other  








                                                                     SJR 28


                                                                    Page  3





             countries asylum from persecution," and that, accordingly,  
             children escaping from violence in other countries, whether  
             unaccompanied or accompanied by a parent, are not "illegal"  
             when they come to the U.S. in search of asylum. Further  
             states that the protections of Article 14 have been  
             incorporated by Congress into domestic law, which now  
             protects all asylum seekers, including children, by  
             prohibiting the federal government from returning to their  
             home countries persons who have fled persecution due to race,  
             religion, nationality, political opinion, or membership in a  
             particular social group.


           2) Declares that it is our nation's legal and moral obligation  
             to open our arms to children who fear harm in their country  
             of origin and to foreign-born children in the United States  
             who cannot be reunified with one or both parents due to  
             abuse, neglect, or abandonment and who are therefore eligible  
             for Special Immigrant Juvenile Status or any other  
             immigration remedy.


           3) States that respect for due process requires that all  
             indigent children seeking asylum, Special Immigrant Juvenile  
             Status, or other immigration remedies in defense of  
             deportation be afforded government-funded competent  
             immigration counsel.


           4) Finds that the federal government is denying indigent  
             immigrant children in California their rights to a fair trial  
             under the Fifth Amendment because it does not provide these  
             children with legal representation in immigration court, and  
             these children therefore face the threat of deportation to  
             violent and dangerous conditions where they may face  
             persecution, violence, or even death.


           5) States that California has a duty to protect the welfare of  








                                                                     SJR 28


                                                                    Page  4





             children within our state, including immigrant children, and  
             that our state values immigrant children and has made this  
             clear through legislative enactments, including AB 540  
             (2001), AB 130 and AB 131 (2011), commonly referred to as the  
             California Dream Act, SB 1064 (2012), SB 873 (2014), commonly  
             referred to as the Unaccompanied Minors Program, SB 1210  
             (2014), commonly referred to as the California DREAM Loan  
             Program, and SB 4 and SB 75 (2015), commonly referred to as  
             the Health4All Kids Act.


          6)Declares that California passed SB 873 (2014) and AB 900  
            (2015) to ensure that California courts issue the predicate  
            orders necessary for children to apply for Special Immigrant  
            Juvenile Status, and also states that California makes an  
            annual $3 million investment to ensure that unaccompanied  
            minors receive the legal representation that they need to  
            pursue SIJS and other immigration relief.


           7) States that California has a strong interest in ensuring  
             that the children living in this state are not unfairly  
             deported, and that schools are disrupted when children are  
             pulled from classes, communities are thrown into disorder  
             when families are torn apart, the health and welfare of these  
             children are put at risk, and the state is denied the  
             potential societal and economic contributions of these  
             children.


          8)Urges the federal government to take action to remedy this  
            injury to the State of California, through appropriate  
            measures within the United States Department of Justice, the  
            United States Department of Homeland Security, and the Office  
            of Refugee Resettlement, and ensure that immigrant children  
            are afforded due process under the law when they are fighting  
            to remain in the United States of America, by providing  
            government-funded attorneys, trained in immigration law, to  
            all indigent children fighting deportation and seeking an  








                                                                     SJR 28


                                                                    Page  5





            immigration remedy.


          9)Urges the federal government to rearrange its dockets to first  
            hear the cases of children who have legal representation and  
            to immediately halt cases it is pursuing against unrepresented  
            immigrant children until lawyers are made available to  
            represent them.


          EXISTING FEDERAL LAW:   


          1)Pursuant to the Immigration and Naturalization Act, protects  
            all asylum seekers by prohibiting the federal government from  
            returning to their home countries people who have fled  
            persecution on account of race, religion, nationality,  
            political opinion, or membership in a particular social group.  
             (8 U.S.C. Sec. 1101 (a)(42)(A).)


          2)Pursuant to the Immigration and Naturalization Act, 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  
            special immigrant juvenile status (SIJS) and, based on that  
            status, apply for a visa for lawful permanent residency.  (8  
            U.S.C. Sections 1101(a)(27)(J), 1153(b)(4).)


          3)Pursuant to case law, establishes that immigrant detainees  
            with mental disabilities who are facing deportation and who  
            are unable to adequately represent themselves are entitled to  
            qualified legal representatives provided by the federal  








                                                                     SJR 28


                                                                    Page  6





            government for representation during all phases of their  
            immigration proceedings, including appeals and custody  
            hearings.  (Franco-Gonzalez v. Holder, CV 10-02211-DMG.)


          4)Provides that a person shall not be deprived of life, liberty,  
            or property without due process of law.  (Amendment V, U.S.  
            Constitution.)


          EXISTING STATE LAW:


          1)Provides that the Department of Social Services, subject to  
            the availability of funding from the annual Budget Act, shall  
            contract with qualified nonprofit legal services organizations  
            to provide legal services to unaccompanied undocumented minors  
            who are transferred to the care and custody of the federal  
            Office of Refugee Resettlement and who are present in this  
            state.  (Welfare and Institutions Code Section 13300(a).)


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


          3)Authorizes a court, with the consent of the proposed ward, to  
            appoint a guardian of the person for an unmarried individual  
            who is 18 years of age or older, but who has not yet attained  
            21 years of age in connection with a petition to make the  
            necessary findings regarding special immigrant juvenile status  
            pursuant to subdivision (b) of Section 155 of the Code of  








                                                                     SJR 28


                                                                    Page  7





            Civil Procedure.  (Probate Code Section 1510.1(a)(1).)


          4)Authorizes a court, at the request of or with the consent of  
            the ward, to extend an existing guardianship of the person for  
            a ward past 18 years of age, for purposes of allowing the ward  
            to complete the application process with the United States  
            Citizenship and Immigration Services for classification as a  
            special immigrant juvenile pursuant to Section 1101(a)(27)(J)  
            of Title 8 of the United States Code.  (Probate Code Section  
            1510.1(b)(1).)


          FISCAL EFFECT:  As currently in print this measure is keyed  
          non-fiscal.


          COMMENTS:  This measure urges 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  
          fighting deportation and seeking an immigration remedy.


          Author's statement.  According to the author:


               In 2014, tens of thousands of unaccompanied minors  
               immigrated to the United States. This influx caught the  
               U.S. officials by surprise and exposed the structural  
               shortcomings that exist within the immigration court  
               processing system. These children were detained into  
               border patrol facilities along the border throughout  
               the American southwest while they awaited court  
               hearings.  Most of the children appearing in  
               immigration courts are from Central America, escapees  
               of the poverty and street violence that make El  
               Salvador, Guatemala and Honduras some of the most  
               dangerous countries in the world. 








                                                                     SJR 28


                                                                    Page  8







               Thousands of unaccompanied minors are currently caught  
               in legal limbo. These children are required to  
               represent themselves in court and make a legal case  
               before a judge explaining why their pleas for asylum  
               should be granted.  (However), Jack H. Weil, a U.S.  
               Court of Appeals Judge for the 9th Circuit, stated in  
               early 2016 that children as young as 3 years old can be  
               taught immigration law and represent themselves.  
               (These) unaccompanied minors . . . are pleading for  
               asylum or other type of relief in a complex legal  
               system they do not understand.  SJR 28 urges the  
               federal government to provide these children with due  
               process and legal counsel so they can adequately plead  
               their asylum cases in court.


          Controversial deportation policy for immigrant children who have  
          no legal counsel.  According to the author, this resolution is  
          in response to the federal government's controversial policy of  
          seeking deportation of thousands of Central American children  
          who have been detained at the southern border of the U.S. in  
          recent years.  A recent editorial in the New York Times  
          summarizes the controversy:


               The children are part of an influx of families fleeing  
               persecution in Guatemala, Honduras and El Salvador.  
               This emergency has become a political headache for the  
               Obama administration, which has been doing all it can  
               to handle the arrivals of thousands of would-be  
               refugees while deterring future arrivals. Among other  
               tactics, it has been rushing their cases through the  
               clogged immigration courts with the so-called rocket  
               docket and has recently been conducting raids to round  
               up immigrants who have not responded to deportation  
               orders.









                                                                     SJR 28


                                                                    Page  9






               While federal law does not require that noncitizens be  
               given government-appointed lawyers in immigration  
               proceedings, it does require a "full and fair hearing"  
               before a judge. Yet the administration argues that it  
               has no constitutional obligation to provide counsel  
               for children in immigration court and refuses to  
               acknowledge the injustice of having children too young  
               to understand the legal process fending for themselves  
               in deportation hearings.  The result would be farcical  
               were it not also tragic, because these children face  
               grave danger, if not violent death, in being returned  
               to their home countries. ("Migrant Children Deserve a  
               Voice in Court."  Editorial Board, New York Times:  
               March 8, 2016. [Available at:  
               http://www.nytimes.com/2016/03/08/opinion/migrant-child 
               ren-deserve-a-voice-in-court.html])


          The resolution further states that since January 2014, at least  
          83 deportees, including children, from the United States, were  
          reported murdered upon their return to Guatemala, Honduras, and  
          El Salvador--three of the most violent countries in the world.  


          Recent litigation to ensure legal representation for these  
          immigrant children facing removal proceedings.  In July 2014,  
          the American Civil Liberties Union (ACLU) and several other  
          immigrant advocates filed a nationwide class-action lawsuit on  
          behalf of thousands of children challenging the federal  
          government's failure to provide them with legal representation  
          in deportation hearings.  According to the author, Human Rights  
          Watch has filed an amicus brief in the case, and California  
          Attorney General Kamala Harris has joined an amicus brief in the  
          case urging the court to ensure legal representation for these  
          children.


          According to the ACLU website about the litigation:








                                                                     SJR 28


                                                                    Page  10







               (These children) are scheduled to appear at  
               deportation hearings without any legal representation  
               and face a very real risk of being sent back into the  
               perilous circumstances they left.  The Obama  
               administration has announced programs to provide legal  
               assistance to a limited number of youth facing  
               deportation hearings, but this proposal does not come  
               close to meeting the urgent need for legal  
               representation for all children whom the government  
               wants to deport. The administration's programs are not  
               sufficient to meet the overwhelming need. In the  
               meantime, children continue to appear alone in court  
               every day, where they continue to receive orders  
               requiring them to leave the United States.


               The complaint charges the U.S. Department of Justice,  
               Department of Homeland Security, U.S. Immigration and  
               Customs Enforcement, Department of Health and Human  
               Services, Executive Office for Immigration Review, and  
               Office of Refugee Resettlement with violating the U.S.  
               Constitution's Fifth Amendment Due Process Clause and  
               the Immigration and Nationality Act's provisions  
               requiring a "full and fair hearing" before an  
               immigration judge. It seeks to require the government  
               to provide children with legal representation in their  
               deportation hearings.  (Available at:  
                https://www.aclu.org/cases/jefm-v-lynch  .)


          This bill seeks to ensure due process for children facing  
          removal in immigration proceedings without the help of legal  
          representation.  According to the author, there are currently  
          over 13,800 children in California that are not represented by  
          legal counsel in immigration court. The author contends that  
          respect for due process requires that all indigent children  
          seeking asylum, Special Immigrant Juvenile Status, or other  








                                                                     SJR 28


                                                                    Page  11





          immigration remedies in defense of deportation be afforded  
          government-funded competent immigration counsel.  While this  
          measure recognizes that the particular population of children  
          singled out by this measure are among those deserving of legal  
          representation in order to ensure that the law is applied  
          correctly, it should also be noted that all detainees, children  
          and non-children alike, should be entitled to counsel in order  
          to guarantee due process.  After all, as the measure itself  
          states, "Due process cannot be guaranteed in an adversarial  
          immigration removal proceeding without legal representation."


          Nevertheless, this resolution urges the federal government to  
          take action to take appropriate measures within the U.S.  
          Department of Justice, the U.S. Department of Homeland Security,  
          and the Office of Refugee Resettlement, to ensure that immigrant  
          children are afforded due process under the law by providing  
          government-funded attorneys, trained in immigration law, to all  
          indigent children fighting deportation and seeking an  
          immigration remedy.  In addition, the measure urges the federal  
          government to rearrange its dockets to first hear the cases of  
          children who have legal representation and to immediately halt  
          cases it is pursuing against unrepresented immigrant children  
          until lawyers are made available to represent them.


          This bill is consistent with recent laws enacted by the  
          Legislature to help vulnerable immigrant children to remain in  
          the country by obtaining Special Immigrant Juvenile Status.   
          "Special Immigrant Juvenile 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:









                                                                     SJR 28


                                                                    Page  12






             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).)


          In 2014, the Legislature passed and the Governor signed AB 873  
          (Ch. 685, Stats. 2014), legislation which specifically provides  
          that superior courts can make the findings necessary for a child  
                                                   to be eligible for SIJS.  In particular, AB 873 ensured 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  








                                                                     SJR 28


                                                                    Page  13





          155.)  As a result, the law helps facilitate the necessary state  
          court findings that allow vulnerable immigrant youth to  
          successfully apply for SIJS.


          In 2015, the Legislature enacted follow-up legislation, AB 900  
          (Ch. 694, Stats. 2015), which closed a gap in the law and  
          extended guardianship proceedings until age 21 for under-18  
          youth in California in need of the Special Immigrant Juvenile  
          Status finding.  The Legislature acted to expand potential  
          coverage of SIJS because, before AB 900 was enacted, there was  
          no state court proceeding under which the requisite court  
          findings could be made for youths who are at least 18, but less  
          than 21, who were not dependents of the juvenile court.


          Finally, as also stated in the resolution, the author notes that  
          California annually makes a $3 million investment to ensure that  
          unaccompanied minors receive the legal representation that they  
          need to pursue SIJS and other immigration relief.  For these  
          reasons, this measure is consistent with recent legislation and  
          actions taken to help immigrant youth seek Special Immigrant  
          Juvenile Status and remain in this country.


          Pending Related Legislation.  As approved by this Committee, SB  
          1289 (Lara) of 2016 sought, among other things, to require  
          immigrant detention facilities to have a Legal Orientation  
          Program, as specified, that includes an orientation on  
          immigration removal proceedings and forms of relief,  
          distribution of self-help materials, provision of private and  
          individual consultations with unrepresented detainees to discuss  
          their cases, and referrals to pro bono legal services.  In  
          addition, the bill sought to prohibit immigrant detention  
          facilities from depriving immigrant detainees from access to an  
          attorney or other authorized legal representative, and from  
          access to translation or interpreters.  SB 1289 is currently in  
          the Senate, awaiting concurrence with Assembly amendments.









                                                                     SJR 28


                                                                    Page  14






          As approved by this Committee, AB 1462 (Gonzalez) of 2015 sought  
          to require select state departments or agencies, as determined  
          by the Governor, to contract with qualified nonprofit or  
          community-based organizations to provide legal services to DACA  
          and DAPA applicants in California, subject to the availability  
          of funding in the annual Budget Act.  AB 1462 was held on  
          suspense by the Assembly Appropriations Committee.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          None on file




          Opposition


          None on file




          Analysis Prepared by:Anthony Lew / JUD. / (916)  
          319-2334














                                                                     SJR 28


                                                                    Page  15