BILL ANALYSIS
AB 1338
Page 1
GOVERNOR'S VETO
AB 1338 (Nation)
As Amended September 2, 2005
2/3 vote
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|ASSEMBLY: |50-29|(June 1, 2005) |SENATE: |23-12|(September 6, |
| | | | | |2005) |
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|ASSEMBLY: |51-28|(September 7, | | | |
| | |2005) | | | |
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Original Committee Reference: JUD.
SUMMARY : Seeks to provide certain immigrant children with
immigration counsel. 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.
5)Requires counsel to investigate whether or not the child in
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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.
6)Provides that legal representation pursuant to this bill is
contingent upon appropriation in the annual Budget Act or
another statute.
The Senate amendments make the providing of legal representation
contingent upon an appropriation in the annual Budget Act or
another statute, make technical changes and add chaptering-out
language.
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.
AS PASSED BY THE ASSEMBLY , this bill was substantively similar.
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
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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.
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 : 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
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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
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.
GOVERNOR'S VETO MESSAGE :
This bill is similar to AB 1795 which I vetoed last
year. I support policies that provide children and
their advocates with means to obtain and exercise
their rights, however this bill is unnecessary. This
bill is an overly broad and costly response to a
problem that may be resolved administratively.
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 requires the court to appoint an attorney
to represent the child in dependency proceedings. In
addition, counties have the option of appointing an
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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.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0013443