BILL ANALYSIS Ó
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