BILL ANALYSIS
AB 1338
Page 1
Date of Hearing: April 19, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1338 (Nation) - As Introduced: February 22, 2005
As Proposed to Be Amended
SUBJECT : Immigrant Children
KEY ISSUES :
1)Should a child who is not a lawful permanent resident (LPR) or
u.s. citizen and who has been deemed a dependent or ward of
the Juvenile court have the right to an immigration attorney?
2)Should an adoption agency be required to provide prospective
adoptive parents with information regarding a child's
immigration status?
SYNOPSIS
This bill, brought to the author by a concerned constituent,
provides children who are not Lawful Permanent Residents ("LPR")
or United States citizens with immigration counsel. Under the
bill, a juvenile court must appoint an immigration attorney to
both a dependent child and a child who is a ward of the court.
The child's immigration attorney would then be required to
pursue Special Immigrant Juvenile status or any other avenue in
order to obtain lawful permanent residency or United States
citizenship for the child, if the attorney determines such
status is in the child's best interests.
Immigrant children often times flee their country because they
are victims of abuse or they are brought to the United States,
either by their parents or others, without their express
consent. Generally, these children are young and alone, subject
to abuse and exploitation. These children are often unable to
articulate their fears, their views, or testify to their needs
as accurately as adults can. This bill provides them with an
immigration attorney to protect their interests and navigate
them through the federal immigration process.
The bill also requires an adoption agency to disclose
AB 1338
Page 2
information to prospective adoptive parents regarding a child's
immigration status. This disclosure is analogous to the
disclosure required of a child's medical records to prospective
adoptive parents required under current law. While this
disclosure would enable prospective adoptive parents to prepare
both financially and emotionally for navigating the immigration
system for their adopted child, it could also have the
unintended consequences of prospective adoptive parents
declining to adopt immigrant children.
SUMMARY : Seeks to provide certain immigrant children with
immigration counsel and to require adoption agencies to disclose
information to prospective adoptive parents regarding a child's
immigration status. Specifically, this bill :
1)Requires the juvenile court to appoint an immigration attorney
to a dependent child who is not a LPR or U.S. citizen and is
unable to reunify with his or her parents.
2)Requires the juvenile court to appoint an immigration attorney
to a ward of the court who is not a LPR or U.S. citizen and
who either is in the foster care system or is unlikely to
reunify with his or her parents.
3)Requires the child's immigration counsel to pursue Special
Immigrant Juvenile status or any other avenue to obtain LPR or
U.S. citizen status for the child, if the immigration attorney
determines such status is in the child's best interests.
4)Requires the Judicial Council to establish standards, training
requirements, and guidelines for attorneys eligible to be
appointed as immigration counsel.
5)Requires an adoption agency to provide prospective adoptive
parents with information regarding a child's immigration
status.
EXISTING LAW :
1)Provides that a juvenile court may have jurisdiction over a
child as a dependent child because that child is the subject
of abuse or neglect. (Welfare and Institutions Code section
300.)
AB 1338
Page 3
2)Provides that a juvenile court may have jurisdiction over a
child because that child has committed acts that trigger
delinquency jurisdiction rendering the child a ward. (Welfare
and Institutions Code section 601, 602.)
3)Authorizes a juvenile court to order a dependent child who is
a resident of a foreign country sent to an official of a
juvenile court of that country or an agency authorized to
accept the child. (Welfare and Institutions Code section
368.)
4)Authorizes a juvenile court to order a ward of the court, or a
minor placed on probation, who is a resident of a foreign
country sent to an official of a juvenile court of that
country or an agency authorized to accept the child. (Welfare
and Institutions Code section 738.)
FISCAL EFFECT : The bill as currently in print is keyed fiscal.
COMMENTS : This bill provides children who are not lawful
permanent residents (LPRs) or U.S. citizens with immigration
counsel. The bill also compels an adoption agency to provide
prospective adoptive parents with information regarding a
child's immigration status.
Last Year's Veto Message by Governor : Governor Schwarzenegger
vetoed an almost identical bill by the author last year, stating
in pertinent part:
I support policies that provide children and their
advocates with means to obtain and exercise their
rights, however this bill is unnecessary. The
Department of Social Services has taken steps to
minimize this potential problem for foster youth by
recently developing regulations that require a
Transitional Independent Living Plan to be completed
for each child in foster care. This plan includes a
variety of issues, including addressing immigration
status. This should enable the immigration process
to be started sooner.
Current law already requires the court to appoint an
attorney to represent the child in dependency
AB 1338
Page 4
proceedings. Counties already have the option of
appointing an attorney to assist in resolving the
immigration status of a child. This bill will apply
an overbroad solution to all counties regardless of
the individual needs of each jurisdiction.
Background : Immigrant children oftentimes flee their home
country because they are victims of abuse or are brought to the
U.S., either by their parents or others, without their express
consent. Generally, these children are young and alone, subject
to abuse and exploitation. These children are often unable to
articulate their fears, their views, or testify to their needs
as accurately as adults can. This bill provides these children
with an immigration attorney to protect their interests and
navigate them through the federal immigration process.
Federal Jurisdiction . The federal government has jurisdiction
over all matters concerning immigration and naturalization. It
should be noted, if a child originates in state court, the state
court must first decide to turn the individual over to what was
formerly known as the Immigration and Naturalization Service,
now called the Border & Transportation Security under the
Department of Homeland Security. If the child started with the
federal government, then the Border & Transportation Security
has the sole authority to detain and decide the fate of the
child. All undocumented children within California's juvenile
justice system run the risk of being referred to the federal
system - and possibly deported - and, thus, should be able to
consult with an attorney knowledgeable in immigration law.
The author writes, "It is estimated that in California there are
over 400 'illegal' immigrant children placed in foster care or
adoption proceedings annually. Currently, there are no
statewide guidelines or standards for addressing the immigration
status of these non-citizen children. However, most counties in
the State have admitted to providing foster care and/or adoption
services to these children without regard to their immigration
status. While this is absolutely beneficial to the children in
question (the alternative is deporting them back to their home
country), this process raises some questions and further
difficulties." The author continues, "The appointment of
immigration counsel for 'illegal' immigrant children placed in
long-term foster care is an important first step in this
process. Requiring said counsel to pursue 'Special Immigrant
AB 1338
Page 5
Juvenile Status' if it is deemed to be in the best interest of
the child is the next step."
Special Immigrant Juvenile Status . When an undocumented child
is found to be the victim of abuse, the child generally becomes
eligible for the Special Immigrant Juvenile status. That status
is designed to protect children from further abuse. Under
Special Immigrant Juvenile status, the child would be eligible
for foster care and could apply for LPR status. Under the bill,
the child's appointed immigration attorney would be required to
pursue Special Immigrant Juvenile status, if the attorney
determines such status is in the child's best interests. An
undocumented child whose status has been adjusted to Special
Immigrant Juvenile would then be eligible to apply for LPR
status and later apply to become a citizen of the U.S.
Judicial Council . AB 1895 also requires the Judicial Council,
before July 1, 2005, to establish standards, training
requirements, and guidelines for attorneys eligible to be
appointed as immigration counsel. If this bill were to be
enacted the Judicial Council would be required to promulgate
these rules within 6 months of the bill going into effect. It
is the Judicial Council's view that a 6 month period of time is
too short a time period to adequately establish standards,
training requirements, and guidelines for these attorneys. The
author has agreed to amend the bill to extend this date to
January 1, 2006 in order to give the Judicial Council adequate
time to promulgate the appropriate rules.
Fiscal Challenge . The bill does not address whether, or how,
the appointed immigration counsel would be compensated for his
or her services. It is unclear whether the appointed attorney
would be working pro bono or would be compensated by the state
or federal government. If these attorneys are to be compensated
by the state, the bill does not specify where that funding would
come from. Responding to these fiscal concerns the author
states he is working with the Chief Probation Officers of
California, who concur with the policy of this measure, to try
to develop a funding approach in the bill. The author also
states he is also working with the Department of Social Services
to address these fiscal issues.
It should be noted that the federal "The Unaccompanied Alien
Child Protection Act of 2003" introduced in both the Senate and
AB 1338
Page 6
the House would, among other things, establish a mechanism and
infrastructure for providing pro bono legal representation for
unaccompanied alien children in their immigration matters and
provide for appointed counsel at government expense as a last
resort. (S.1129 Feinstein and H.R. 3361 Lofgren.) The Senate
bill is currently in the Senate Judiciary Committee and the
House bill is currently in the House Subcommittee on
Immigration, Border Security, and Claims.
Adoption of undocumented children . The bill would also require
an adoption agency to disclose information to prospective
adoptive parents regarding a child's immigration status as well
as the name and contact information of any appointed immigration
counsel for the child. According to the author, this bill was
brought to him by a constituent who legally adopted an eight
year old boy only to find out one year later that her child was
not in the United States legally. The author contends that the
adoption of undocumented immigrant children comes with an
inherent risk. The author states, "These children continuously
run the risk of being deported due to lack of official
citizenship status, regardless of the fact that they have been
legitimately adopted into American families." The author's
constituent was not made aware that her child was illegally in
the U.S. and was, therefore, unable to prepare both financially
and emotionally for navigating the immigration system for her
son.
This disclosure by the adoption agency is analogous to the
disclosure required of a child's medical records to prospective
adoptive parents. Specifically, section 8706 of the Welfare and
Institutions Code requires an adoption agency to give the
prospective adoptive parents a written report on the child's
medical background and, if available, the medical background of
the child's biological parents so far as ascertainable. The
report on the child's background is required to contain all
known diagnostic information, including current medical reports
on the child, psychological evaluations, and scholastic
information, as well as all known information regarding the
child's developmental history and family life.
Regarding possible concerns that in some cases requiring an
adoption agency to disclose information to prospective adoptive
parents regarding a child's immigration status might
inadvertently lead some prospective adoptive parents to decline
AB 1338
Page 7
to adopt immigrant children, the author states the following:
Because it is not mandatory that a child's immigration
status be revealed to his court-appointed guardians or
prospective parents, once that prospective adoptive
parent becomes the legal guardian and parent of the
child, the parent would end up going through a very
large ordeal, and possibly have to "give
back"/"give-up" the child if he/she found out the
status of the child, after the child had been legally
adopted. In most cases, the child could be deported.
If the prospective adoptive parent found out the
status of the child before the entire process ended,
it would give him/her an opportunity to work with a
person who would be able to walk the parent and child
through a process whereby at the end of the adoption
process the child would be a legal citizen as well.
ARGUMENTS IN SUPPORT : The Youth Law Center argues that the
bill will enable foster children to avoid serious immigration
problems when they leave foster care through either emancipation
or adoption. The Northern California Association of Counsel for
Children writes in support of the bill, "Most foster children
who are not United States citizens or legal permanent residents
are eligible for legal status under current immigration law.
However, if these children do not receive help from an advocate
who is knowledgeable about immigration law, immigration problems
can complicate permanent placement plans and interfere with
successful emancipation. This bill would ensure children get
the help they need." The California Alliance of Child and
Family Services states that the bill "would protect the rights
of abused, abandoned, or neglected children and wards of the
court, by providing to them adequate legal assistance to
navigate the daunting federal immigration process. Our concern
is that if these children are not successful in achieving
special immigration status, their only alternative would be
deportation back to their home county, alone and with out any
support."
ARGUMENTS IN OPPOSITION : Writing in opposition, the Chief
Probation Officers of California states its opposition is based
solely on fiscal grounds and not on policy grounds.
REGISTERED SUPPORT / OPPOSITION :
AB 1338
Page 8
Support
American Civil Liberties Union
Asian Americans for Civil Rights and Equality
Asian Law Caucus
Asian Pacific American Legal Center of Southern California
California Immigrant Welfare Collaborative
Coalition for Humane Immigrant Rights of Los Angeles
Legal Services for Children
Los Angeles Affiliate of the National Association of Counsel for
Children
Mexican American Legal Defense and Education Fund (MALDEF)
Youth Law Center
Opposition
Chief Probation Officers of California
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334