BILL ANALYSIS
AB 1338
Page 1
ASSEMBLY THIRD READING
AB 1338 (Nation)
As Amended May 27, 2005
Majority vote
JUDICIARY 6-2 APPROPRIATIONS 13-5
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|Ayes:|Jones, Berg, Laird, |Ayes:|Chu, Bass, Berg, |
| |Levine, Lieber, Montanez | |Calderon, Mullin, |
| | | |Karnette, Klehs, Leno, |
| | | |Nation, Oropeza, |
| | | |Ridley-Thomas, Saldana, |
| | | |Yee |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Harman, Haynes |Nays:|Sharon Runner, Emmerson, |
| | | |Haynes, Nakanishi, |
| | | |Walters |
| | | | |
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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 Lawful Permanent Resident
(LPR) or United States (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 (JC) to establish standards,
training requirements, and guidelines for attorneys eligible
to be appointed as immigration counsel.
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5)Requires an adoption agency to provide prospective adoptive
parents with information regarding a child's immigration
status.
6)Requires counsel to investigate whether or not the child in
question is eligible for Special Immigrant Juvenile Status
(SIJS) and urge the court to utilize the services of competent
pro bono counsel in these cases.
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.
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.
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.
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.
FISCAL EFFECT : According to the Assembly Appropriations
analysis:
1)Significant costs in the range of $300,000 annually, assuming
200 immigrant children receive 10 hours of legal assistance
each, billed at $150 per hour. Some estimates indicate there
are 400 children in foster care statewide requiring these
immigration services.
2)Unknown potential savings to the extent a change in a child's
immigration status creates federal IV-E funding opportunities.
If a child becomes IV-E eligible, costs change from entirely
county or county and state funded to up 50% federally funded,
which creates a savings to both the state and the county.
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3)A one-time cost of approximately $25,000 to the JC to
establish regulations and protocols to be followed by juvenile
courts and local welfare departments.
4)Provisions are contingent upon appropriation in the annual
Budget Act.
COMMENTS : This bill provides children who are not 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. A similar
bill by the author was vetoed by the Governor last year, but the
author is working with the Administration to address concerns
previously raised by the Governor.
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.
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
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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
Juvenile Status' if it is deemed to be in the best interest of
the child is the next step."
This bill also requires the JC, before July 1, 2007, to
establish standards, training requirements, and guidelines for
attorneys eligible to be appointed as immigration counsel.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0010659