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


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Judiciary       |8-0  |Mark Stone, Wagner,   |                    |
          |                |     |Alejo, Chau, Chiu,    |                    |
          |                |     |Cristina Garcia,      |                    |
          |                |     |Holden, Ting          |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 


          SUMMARY:  Urges the federal government to ensure that immigrant  
          children are afforded due process under the law in removal  








                                                                     SJR 28


                                                                    Page  2





          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  








                                                                     SJR 28


                                                                    Page  3





             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  








                                                                     SJR 28


                                                                    Page  4





             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  








                                                                     SJR 28


                                                                    Page  5





          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.  









                                                                     SJR 28


                                                                    Page  6






          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  








                                                                     SJR 28


                                                                    Page  7





          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  








                                                                     SJR 28


                                                                    Page  8





          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.










                                                                     SJR 28


                                                                    Page  9





          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