BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1338 A
Assembly Member Nation B
As Amended May 27, 2005
Hearing Date: June 28, 2005 1
Welfare and Institutions Code 3
MJM:rm 3
8
SUBJECT
Immigrant Children: Appointment of Attorney
DESCRIPTION
When the court determines it is in the child's best
interests, this bill would require the court to appoint an
immigration attorney for the following children:
1)a dependent child who is not a citizen of the United
States or a lawful permanent resident; for whom the court
has determined parental reunification is no longer an
option; and
2)a child who is adjudged a ward of the court who is not a
citizen of the United States or a lawful permanent
resident and who is in foster care or deemed unlikely to
reunify with his or her parents.
This bill would authorize the appointed immigration
attorney to pursue special immigrant juvenile status
(dependent child or ward) pursuant to existing federal law
that permits such status or to pursue any other legal
avenue to obtain permanent legal residence or citizenship
for that dependent child or ward. This bill would not
apply to counties that already provide immigration
assistance services to these children.
BACKGROUND
Increasing numbers of foreign-born children lacking lawful
(more)
AB 1338 (Nation)
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immigration status are entering the juvenile court system
and being placed in long-term foster care. These children
enter the system because they have been abused or abandoned
and many remain there until they are emancipated from
foster care at age 18. They are often unable to reunify
with their parents because their parents have either
disappeared, returned to their home country, or are unable
to provide a safe and stable home for their children.
These children who became dependents or wards of the court
without lawful immigration status often find themselves
with no legal means of support. As undocumented residents,
they have no right to work in the United States and are
subject to deportation at anytime.
In response to this growing problem, Congress created the
special immigrant juvenile status (SIJS) for these
children. An undocumented child granted this status
becomes immediately eligible to file for permanent
residency in the United States. The process can be
completed in one year or less.
However, once a juvenile court terminates jurisdiction, the
child loses eligibility for SIJS because the factual
findings necessary to complete an SIJS application must be
made by the juvenile court, not by the immigration
authorities. [8 U.S.C. Section 1101(a)(27)(J).]
Accordingly, timing is critical for children who would seek
SIJS.
It is estimated that roughly 400 undocumented children are
placed in foster care or adoption proceedings each year in
California. Because no statewide guidelines or standards
are in place to address the immigration status of a child
in the foster care system, most of these children do not
achieve legal immigrant status.
Last year, AB 1895 (Nation 2004) was introduced to address
this problem by requiring the appointment of an immigration
attorney to specified dependent children or wards of the
court. The bill passed both houses, but was vetoed by
Governor Schwarzenegger as unnecessary. In his veto
message, the Governor declared his support for policies
that provide children and their advocates with means to
obtain and exercise their rights, but determined this bill
was overbroad because attorneys were already appointed to
AB 1338 (Nation)
Page 3
represent children in dependency proceedings and because
the Department of Social Services could address immigration
issues.
This bill is virtually identical to AB 1895.
CHANGES TO EXISTING LAW
Existing law authorizes the juvenile court to adjudge an
abused or abandoned child a dependent child of the court,
to terminate the parental rights of the child's parents if
reunification efforts fail, and to place the child in
long-term foster care, a guardianship, or adoption.
[Welfare and Institutions Code Section 301 et seq.]
Existing law requires that a dependent child with no
counsel be represented by appointed counsel at all
dependency proceedings, as specified. [Welfare and
Institutions Code Section 317.]
Existing law authorizes the juvenile court to adjudge a
child a ward of the court for being habitually disobedient
or truant, and provides for the appointment of counsel to
represent the child at juvenile court proceedings. [Welfare
and Institutions Code Sections 601 et seq.]
Existing federal law provides for the granting of "special
immigrant juvenile status" to an unmarried child under 21
years of age who is present in the United States and who is
under the jurisdiction of the juvenile court. The federal
statute specifies that the Attorney General expressly
consents to the juvenile court's order serving as a
precondition to the granting of the status. [8 U.S.C.
Section 1101(a)(27).]
This bill would require the juvenile court to appoint an
immigration attorney for a dependent child or a ward of the
court who is not a United States citizen or a lawful
permanent resident if it is in the child's best interest.
This bill would require the court, to the extent
practicable, to utilize the services of competent pro bono
counsel who agree to represent the child at no cost.
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This bill would authorize the attorney to seek special
immigrant juvenile status or any other avenue to obtain
lawful permanent resident status or United States
citizenship.
This bill would require the Judicial Council to adopt rules
by January 1, 2007, establishing standards, training
requirements and guidelines for an attorney eligible to be
appointed for this purpose.
This bill would not apply to a county that already provides
or contracts for immigration assistance services for these
children, whether those services are provided by attorneys
or social workers.
COMMENT
1. Need for the bill
The Asian Law Caucus, writing in support of this bill,
explains the need for the appointment of an immigration
attorney to dependent children or wards of the court who
are not lawful permanent residents or citizens:
Each year hundreds of immigrant children-many of whom
are abused or abandoned-are taken into custody by
county authorities throughout California. Some
children are sent to foster homes or to await
adoption; others are left in county detention
facilities. Since juvenile courts generally are
unaware of the SIJS remedy, these vulnerable children
often lose the opportunity to regularize their
immigration status. As a result, a substantial number
of children unnecessarily face insurmountable
obstacles to leading independent, productive lives.
Additionally, Youth Law Center argues that a child placed
for adoption is also affected if his or her immigration
status is not resolved. The child and the adoptive
parents face unnecessary complications and expenses to
obtain lawful resident status. In fact, the idea for
this bill was brought to the author by a constituent who
adopted eight-year-old Vicente, who had been removed from
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his mother's care because of abuse. A year after the
adoption, the family discovered Vicente was not a
citizen. It took the family nearly five years to obtain
a green card for their son, always fearing that he could
be deported at any time. The SIJS process is streamlined
and can be achieved in about a year, so if Vicente had
had someone appointed to help him while he was still
eligible for SIJS, years of frustration and fear could
have been avoided.
Timing is critical, assert supporters, because of the
requirement that a child be under the jurisdiction of the
juvenile court to obtain SIJS. Accordingly, providing
immigration counsel to children while they are under the
jurisdiction of the juvenile court would address this
problem early in the process. Supporters fear that if
the children are not successful in achieving special
immigration status, their only alternative would be
deportation back to their home country, alone and without
any support.
2. This bill would provide qualified assistance for children
when appropriate
Supporters contend this bill provides a tailored solution
to the problem of undocumented children in the juvenile
court system. The court need only appoint the
immigration attorney to assist the child in seeking SIJS,
other lawful permanent resident status, or citizenship if
certain criteria are met. If the child is a dependent
child, the court must determine that reunification of the
child with his or her parents is no longer an option. If
the child is a ward of the court, the child must be in
foster care or deemed by the court to be unlikely to
reunify with his or her parents. In all of these cases,
the court must decide that it is in the child's best
interest to have an immigration attorney appointed to
pursue lawful resident status for the child.
Supporters point out that frequently courts are either
unaware that SIJS is available or are confused about its
technical requirements. Additionally, children's
advocates and immigration attorneys often assumed that
the other group was handling the issue. Although the
SIJS process is streamlined and can be completed in about
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Page 6
a year, it is still presents a daunting prospect for
those not experienced in immigration law. Since 9/11,
the regulations relating to immigration are constantly
changing, increasing the complexity of immigration law
and highlighting the need to rely on the expertise of an
immigration attorney for even the simplest of
applications. Accordingly, the appointment of an
immigration attorney appears warranted to ensure both
that this possibility for lawful resident status is
considered and that it is achieved efficiently.
3. Opponent counties concerned about costs
Opponents have no argument with the policy proposed by
this bill, but rather are substantially concerned about
its fiscal impact. In response to these concerns, the
bill has been recently amended. The first change would
require the court, to the extent practicable, to appoint
competent pro bono counsel who agree to represent the
child for free.
Further, the bill now provides that "[f]unding for the
purposes of administering the provisions of this act is
contingent upon an appropriation." The California State
Association of Counties points out that, while they
appreciate the author's interest in working with them,
they believe the amendment is inadequate. "The language
simply states that the measure will be funded if an
appropriation is made. However, it does not expressly
state that counties will not be obligated to initiate new
mandated services. . . until sufficient funds are
appropriated." Accordingly, they contend these
amendments do not remove their concerns and must remain
opposed.
4. This bill would allow for exemption for counties which
already provide immigration assistance
Although the use of an immigration attorney is often
preferred, it is not absolutely necessary to obtain SIJS.
The Los Angeles County Department of Children and Family
Services has created a Special Immigration Unit that is
responsible for helping dependent children and wards of
the court obtain their green cards while they are under
the juvenile court's jurisdiction. The Los Angeles
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County program is reportedly successful and efficient.
To eliminate the appointment of an additional attorney
and save scarce county resources when other adequate
services are available, this bill would exempt counties
like Los Angeles that already provide immigration
assistance to these children, whether the assistance is
provided by attorneys or social workers.
5. This bill would require Judicial Council to promulgate
rules
This bill would require the Judicial Council to
promulgate rules of court establishing the standards,
training requirements, and guidelines for attorneys who
may be appointed under the provisions of this bill.
These rules would be required to be promulgated before
January 1, 2007.
6. Technical amendment
On page 11, line 40, delete "legal" and insert:
lawful
Support: SueCares; Congresswoman Lynn Woolsey; California
Rural Legal Assistance Foundation; Inter-Agency
Council of Child Abuse and Neglect; KlaasKids
Foundation; California Alliance of Child and Family
Services; Mexican American Legal Defense and
Educational Fund; Asian Law Caucus; Asian Americans
for Civil Rights and Equality; American Civil
Liberties Union; Los Angeles Affiliate of the
National Association of Counsel for Children;
Northern California Association of Counsel for
Children; Legal Services for Children; Youth Law
Center; Lambda Letters Project; several individuals
Opposition: California State Association of Counties; Chief
Probation Officers of California
HISTORY
Source: Author
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Page 8
Related Pending Legislation: None Known
Prior Legislation: AB 1895 (Nation 2004) virtually
identical to this bill, would have provided
for the appointment of an immigration
attorney for specified dependent children and
ward of the court and authorized the attorney
to seek Special Immigrant Juvenile Status for
the child.
Prior Vote: Assembly Floor (Ayes 50, Noes 29)
Assembly Appropriations (Ayes 13, Noes 5)
Assembly Judiciary (Ayes 6, Noes 2)
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