BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1338|
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THIRD READING
Bill No: AB 1338
Author: Nation (D)
Amended: 8/30/05 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-2, 6/28/05
AYES: Dunn, Cedillo, Figueroa, Kuehl
NOES: Morrow, Ackerman
NO VOTE RECORDED: Escutia
SENATE APPROPRIATIONS COMMITTEE : 8-5, 8/25/05
AYES: Migden, Alarcon, Alquist, Escutia, Florez, Murray,
Ortiz, Romero
NOES: Aanestad, Ashburn, Battin, Dutton, Poochigian
ASSEMBLY FLOOR : 50-29, 6/1/05 - See last page for vote
SUBJECT : Immigrant children: appointment of attorney
SOURCE : Author
DIGEST : When the court determines it is in the childs
best interests, this bill requires 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
CONTINUED
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reunify with his or her parents. This bill authorizes 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 and
specifies that the requirement to provide legal
representation is contingent on an appropriation in the
annual Budget Act or another statute.
ANALYSIS : 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.
Existing law requires that a dependent child with no
counsel be represented by appointed counsel at all
dependency proceedings, as specified.
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.
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.
This bill requires 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 requires 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 authorizes the attorney to seek special immigrant
juvenile status or any other avenue to obtain lawful
permanent resident status or United States citizenship.
This bill requires 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. The bill specifies that the requirement
to provide legal representation is contingent upon an
appropriation in the annual Budget Act or another statute.
Background
Increasing numbers of foreign-born children lacking lawful
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
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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.
Prior legislation
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 the Senate on 8/24/04 by a vote of
25-12 (see vote below), 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
represent children in dependency proceedings and because
the Department of Social Services could address immigration
issues.
This bill is virtually identical to AB 1895.
(AB 1895, Senate Floor Vote, AYES: Alarcon, Alpert,
Ashburn, Bowen, Burton, Cedillo, Chesbro, Ducheny, Dunn,
Escutia, Figueroa, Florez, Karnette, Kuehl, Machado,
Murray, Ortiz, Perata, Romero, Scott, Sher, Soto, Speier,
Torlakson, Vasconcellos; NOES: Aanestad, Ackerman, Battin,
Brulte, Denham, Hollingsworth, Johnson, Margett,
McClintock, Morrow, Oller, Poochigian; NO VOTE RECORDED:
McPherson, Vincent)
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
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Fiscal Impact (in thousands)
Major Provisions 2005-06 2006-07
2007-08 Fund
County mandate -- $600* $600*
General
Judicial Council $0 $25 $0
General
*Cost pressure
SUPPORT : (Verified 8/30/05)
American Civil Liberties Union
Asian Americans for Civil Rights and Equality
Asian Law Caucus
California Alliance of Child and Family Services
California Rural Legal Assistance Foundation
Congresswoman Lynn Woolsey
Inter-Agency Council of Child Abuse and Neglect
KlaasKids Foundation
Lambda Letters Project
Legal Services for Children
Los Angeles Affiliate of the National Association of
Counsel for Children
Mexican American Legal Defense and Educational Fund
Northern California Association of Counsel for Children
SueCares
Youth Law Center
ARGUMENTS IN SUPPORT : 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
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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 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.
ASSEMBLY FLOOR :
AYES: Arambula, Baca, Bass, Berg, Bermudez, Calderon,
Canciamilla, Chan, Chavez, Chu, Cohn, Coto, De La Torre,
Dymally, Evans, Frommer, Garcia, Goldberg, Hancock,
Jerome Horton, Shirley Horton, Jones, Karnette, Klehs,
Koretz, Laird, Leno, Levine, Lieber, Liu, Matthews,
Montanez, Mullin, Nation, Nava, Negrete McLeod, Oropeza,
Parra, Pavley, Ridley-Thomas, Ruskin, Saldana, Salinas,
Torrico, Tran, Umberg, Vargas, Wolk, Yee, Nunez
NOES: Aghazarian, Benoit, Blakeslee, Bogh, Cogdill,
Daucher, DeVore, Emmerson, Harman, Haynes, Houston, Huff,
Keene, La Malfa, La Suer, Leslie, Maze, McCarthy,
Mountjoy, Nakanishi, Niello, Plescia, Richman, Sharon
Runner, Spitzer, Strickland, Villines, Walters, Wyland
NO VOTE RECORDED: Gordon
RJG:nl 8/29/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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