The following is a guest blog post by Rachel K. Prandini, Unaccompanied Minor Law Fellow/Attorney at the Immigrant Legal Resource Center in San Francisco.
The number of unaccompanied minors arriving at the US southern border in 2014 has been unprecedented, with California receiving a large number of these children. The California legislature made great strides in assisting these vulnerable children through the passage of SB 873, which will give them greater access to justice in both federal immigration and state courts. California attorneys have opportunities to leverage this new law in at least five specific ways.
California’s new law, SB 873 (Stats 2014, ch 685, SB 873 (effective September 27, 2014), appropriates $3 million to provide legal representation for unaccompanied minors in removal (deportation) proceedings, because children otherwise have no right to government-funded representation in immigration court.
The law also includes provisions on consideration of Special Immigrant Juvenile Status (SIJS) petitions by state courts. SIJS is a path towards legal status for children who have been abandoned, abused, or neglected by a parent; these petitions are unique in that children must have findings from a state court before they can even apply for SIJS with the federal government.
SB 873 can be a powerful tool in the work to help unaccompanied minors. For those who work in this area regularly, and for the many more who are stepping up in this crisis, here are five tips to help you leverage SB 873 to improve practice in state court for SIJS petitions:
- Cite the law to establish family court jurisdiction. Because the new law now squarely identifies family courts as one type of court with jurisdiction to make SIJS findings, practitioners can cite to this statutory language instead of making extensive arguments about jurisdiction.
- Push for state court findings. Practitioners can leverage the statutory language imposing an affirmative duty on state courts to enter SIJS findings to argue that courts must make these findings when sufficient evidence exists.
- Argue that the child’s declaration is enough. When judges are requesting additional evidence of abandonment, abuse, or neglect that isn’t available, practitioners can cite to the language of SB 873 to argue that a declaration from a child should be sufficient.
- Keep the child’s immigration status confidential. In proceedings that aren’t otherwise confidential (e.g., guardianship), practitioners can now rely on SB 873 to object to the release of confidential information on a child’s immigration status in their SIJS petitions. Moreover, records relating to a child’s immigration status or SIJS petition that aren’t otherwise confidential under state law may now be sealed.
- Remind state court judges of their role. On September 30, 2014, the Judicial Council of California published a Memorandum on “Senate Bill 873 and the Special Immigrant Juvenile Process in the Superior Court,” which was sent to all presiding judges, court executives, and appellate courts to provide additional information on current law and SB 873. Practitioners can point to positive treatment of SIJS petitions in the Judicial Council memo to remind judges that it’s within their proper role to consider and make SIJS findings.
As many more practitioners step up to address the needs of the unaccompanied minor population in California, SB 873 will be crucial to facilitating practice in state courts. Though novel, the SIJS process may quite literally mean the difference between life and death for some children facing deportation.
For more on Special Immigrant Juvenile Status, including discussion of eligibility and procedures, turn to CEB’s California Guardianship Practice §§11.27-11.40. Get practical advice on helping children who enter the California juvenile dependency system—which may happen if immigrant children are abused/abandoned after finding a sponsoring family in the US—in CEB’s California Juvenile Dependency Practice, chap 2. On enforcement of child custody and visitation matters under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Hague Convention on the Civil Aspects of International Child Abduction, see California Child Custody Litigation and Practice, chap 20.
Other CEBblog™ posts you may find interesting:
- Don’t Let Immigration Status Sabotage Your Client’s Sentence
- Juvenile Dependency Primer
- The Best Interest of the Tribe?
© The Regents of the University of California, 2014. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.