BILL NUMBER: SR 89 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Lara
AUGUST 30, 2016
Relative to immigrant children.
LEGISLATIVE COUNSEL'S DIGEST
HOUSE OR SENATE RESOLUTIONS DO NOT CONTAIN A DIGEST
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.