Senate Resolution No. 89

Introduced by Senator Lara

August 30, 2016

Senate Resolution No. 89—Relative to immigrant children.

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

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

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

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

WHEREAS, 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.”
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 in search of asylum;
and

WHEREAS, The protections of Article 14 have been
incorporated by the United States 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; and

WHEREAS, 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; and

WHEREAS, 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; and

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

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

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

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

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

WHEREAS, 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, which
remain three of the most violent countries in the world; and

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

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

WHEREAS, California values immigrant children and has made
this clear through legislative enactments, including Assembly Bill
540 (2001), Assembly Bills 130 and 131 (2011), commonly
referred to as the California Dream Act, Senate Bill 1064 (2012),
Senate Bill 873 (2014), commonly referred to as the
Unaccompanied Minors Program, Senate Bill 1210 (2014),
commonly referred to as the California DREAM Loan Program,
and Senate Bills 4 and 75 (2015), commonly referred to as the
Health4All Kids Act; and

WHEREAS, Special Immigrant Juvenile Status under Section
1101(a)(27)(J) of Title 8 of the United States Code is immigration
relief that relies on a state’s interest in the welfare of children and
provides for Special Immigrant Juvenile Status where a state court
determines that reunification with one or both of the immigrant’s
parents is not viable due to abuse, neglect, abandonment, or similar
basis found under state law and that it would not be in the child’s
best interest to return to his or her home country; and

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

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

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

WHEREAS, California has a strong interest in ensuring that the
children living in this state are not unfairly deported. 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;
now, therefore, be it

Resolved by the Senate of the State of California, That the Senate
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; and be it further

Resolved, That the Senate 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; and be it further

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