BILL ANALYSIS Ó
SJR 28
Page 1
(Without Reference to File)
SENATE THIRD READING
SJR
28 (Lara)
As Introduced August 23, 2016
Majority vote
SENATE VOTE: 31-2
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |8-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Cristina Garcia, | |
| | |Holden, Ting | |
| | | | |
| | | | |
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SUMMARY: Urges the federal government to ensure that immigrant
children are afforded due process under the law in removal
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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
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 United States (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 (SIJS) 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
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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
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
(Firebaugh), Chapter 814, Statutes of 2001; AB 130 (Cedillo),
Chapter 93, Statutes of 2011; and AB 131 (Cedillo), Chapter
604, Statutes of 2011, commonly referred to as the California
Dream Act; SB 1064 (De León), Chapter 845, Statutes of 2012;
SB 873 (Committee on Budget and Fiscal Review), Chapter 685,
Statutes of 2014, commonly referred to as the Unaccompanied
Minors Program; SB 1210 (Lara), Chapter 754, Statutes of
2014, commonly referred to as the California DREAM Loan
Program; and SB 4 (Lara), Chapter 709, Statutes of 2015, and
SB 75 (Committee on Budget and Fiscal Review), Chapter 18,
Statutes of 2015, commonly referred to as the Health4All Kids
Act.
6)Declares that California passed SB 873 (2014) and AB 900
(Levine), Chapter 694, Statutes of 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
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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
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.
FISCAL EFFECT: None
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.
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
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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.
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.
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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:
(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. (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
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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. 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
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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 United States Code (U.S.C.) Section 1101(a)(27)(J).) 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,
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 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,
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.
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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.
Analysis Prepared by:
Anthony Lew / JUD. / (916) 319-2334 FN:
0005019