Existing federal law, the Immigration and Nationality Act, establishes a procedure for classification of certain aliens as special immigrants who have been declared dependent on a juvenile court, and authorizes those aliens to apply for an adjustment of status to that of a lawful permanent resident within the United States. Under federal regulations, an alien is eligible for special immigrant juvenile status if he or she is under 21 years of age. Existing state law provides that the juvenile, probate, and family divisions of the superior court have jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act. Existing law also requires the court, upon request, to make the necessary findings regarding special immigrant juvenile status if there is evidence to support those findings.

Existing law establishes the jurisdiction of the probate court. Existing law regulates the establishment and termination of guardianships in probate court, and specifies that a guardian has the care, custody, and control of a ward.

Existing law authorizes the court to appoint a guardian of the person of an unmarried individual who is 18 years of age or older, but who has not yet attained 21 years of age, in connection with a petition to make the necessary findings regarding special immigrant juvenile status, as specified, if the proposed ward consents. Existing law authorizes the petition for guardianship to be filed by a relative or any other person on behalf of the proposed ward, or by the proposed ward.

This bill would clarify that a parent is authorized to file a petition for guardianship of the proposed ward under those provisions.

Existing federal law, the Immigration and Nationality Act, establishes a procedure for classification of certain aliens as special immigrants who have been declared dependent on a juvenile court, and authorizes those aliens to apply for an adjustment of status to that of a lawful permanent resident within the United States. Under federal regulations, an alien is eligible for special immigrant juvenile status if he or she is under 21 years of age. Existing state law provides that the juvenile, probate, and family divisions of the superior court have jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act. Existing law also requires the court, upon request, to make the necessary findings regarding special immigrant juvenile status if there is evidence to support those findings.

Existing law establishes the jurisdiction of the probate court. Existing law regulates the establishment and termination of guardianships in probate court, and specifies that a guardian has the care, custody, and control of a ward.

Existing law authorizes the court to appoint a guardian of the person of an unmarried individual who is 18 years of age or older, but who has not yet attained 21 years of age, in connection with a petition to make the necessary findings regarding special immigrant juvenile status, as specified, if the proposed ward consents. Existing law authorizes the petition for guardianship to be filed by a relative or any other person on behalf of the proposed ward, or by the proposed ward.

This bill would clarify that a parent is authorized to file a petition for guardianship of the proposed ward under those provisions.

Existing law authorizes a trustee or a beneficiary of a trust to petition a court to make determinations about the trust or to establish the existence of a trust. Existing law prescribes the procedure governing these proceedings, which includes requiring a petitioner to cause a copy of the petition to be delivered to a trustee or beneficiary who has filed and served a notice of appearance in connection with a particular petition, or who has requested a copy of the petition, within 5 days after service of the notice or receipt of the request, as specified.

This bill would make a technical, nonsubstantive change to these provisions.

 THIRD READING  

Bill No: AB 2090

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-1, 6/12/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Moorlach

ASSEMBLY FLOOR: 52-0, 4/12/18 - See last page for vote

SUBJECT:

SOURCE: Central American Resource Center of California

Immigrant Defenders Law Center

DIGEST:

This bill clarifies, in an effort to ensure that all eligible youth in California are able, when appropriate, to obtain state court findings so that they can apply for Special Immigrant Juvenile Status immigration relief, that, for the limited purpose of obtaining the necessary state court findings, a probate court may appoint a parent as guardian.

ANALYSIS:

Existing law:

1. Provides immigration relief that relies on a state’s interest in the welfare of children by providing for Special Immigrant Juvenile Status (SIJS) where a state determines that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under state law and that it would not be in the child’s best interest to return to their home country. (8 U.S.C. Sec. 1101(a)(27)(J).)
2. Defines a “special immigrant juvenile” as a person under 21 years of age who is declared a dependent by a juvenile court or committed to the custody of a state agency or a court-appointed individual, whose reunification with one or both of his or her parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law, and whose return to his or her country of nationality or last habitual residence is not in his or her best interest. (8 U.S.C. Sec. 1101(a)(27)(J).)
3. Allows such person to obtain SIJS and, based on that, apply for a visa for lawful permanent residency. (8 U.S.C. Sec. 1153(b)(4).)
4. Allows a court to appoint a guardian of the person, the estate, or both for a child under 18 years of age, taking into consideration the best interest of the proposed ward. (Prob. Code Sec. 1501 et seq.)
5. Provides that the superior court, including a juvenile, probate, or family court department or division of the superior court, has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act, and requires the superior court to make an order containing the necessary findings regarding SIJS pursuant to federal law, if there is evidence to support those findings. (Code Civ. Proc. Sec. 155.)
6. Authorizes with the consent of the proposed ward, a probate court to establish or extend a guardianship of the person for an unmarried individual, who is at least 18 years of age, but not yet 21, in connection with a petition to make necessary findings regarding SIJS or complete the SIJS application process, as specified. (Prob. Code Sec. 1510.1(a)(1).)
7. Allows the petition for guardianship, or to extend a guardianship, to be filed by a relative, the proposed ward, or any other person. (Prob. Code Sec. 1510.1(a)(2).)
8. Provides that a guardianship may not extend beyond the ward reaching 21 years of age. (Prob. Code Sec. 1510.1(b)(2).)
9. Provides that nothing in the provisions above abrogates any other rights that a ward who is 18 or older may have as an adult under California law, including, but not limited to, decisions regarding the ward’s medical treatment, education, or residence, without the ward’s express consent. (Prob. Code Sec. 1510.1(c).)
10. Requires the court to terminate a guardianship upon the petition of a ward who is 18 years of age or older. (Prob. Code Sec. 1601.)
11. Defines, for the purposes of the provisions above, the terms “child,” “minor,” and “ward” to include an unmarried individual who is younger than 21 years of age and who, pursuant to this section, consents to the appointment of a guardian or extension of a guardianship after he or she attains 18 years of age. (Prob. Code Sec. 1510.1(d).)

This bill clarifies that a parent is authorized to file a petition for guardianship of the proposed ward in connection with a petition to make necessary findings regarding SIJS.

Background

SIJS, found in the Federal Immigration and Nationality Act, is a statutory tool enacted over two decades ago to benefit immigrant children. SIJS involves both federal and state law. The federal statute and regulations provide the framework, and the state courts provide the details for each individual situation. The Los Angeles County Bar Association describes the interplay between state and federal law in a 2012 article as follows:

First, a juvenile court must establish the child’s eligibility for immigration relief. Without the court’s findings, the child cannot apply for SIJS. A “juvenile court,” for SIJS purposes, is “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” This broad definition encompasses many California courts--those that handle dependency and delinquency proceedings as well as those that hear guardianships, adoptions, and even family law cases. What matters is the jurisdiction of California courts, not the labels they use for themselves.

Second, the juvenile court must have either 1) declared the child dependent on the court, 2) legally committed the child to, or placed the child under the custody of, an agency or department of a state, or 3) legally committed the child to, or placed the child under the custody of, an individual or entity appointed by the court. Juvenile court dependents … meet this requirement. So too do … wards when the court vests their “care, custody and control” in the probation department. A child whose custody is placed with a guardian, including an institutional guardian, or with a prospective adoptive parent also meets this requirement. (Jackson, Special Status Seekers: Through the underused SIJS process, immigrant juveniles may obtain legal status, 34 (Feb. 2014) Los Angeles Lawyer 20, 22.)

The court must additionally determine that reunification with one or more of the child’s parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law. “Under California law, children have met this requirement when, for example, their parents are deceased; their parents’ identities are unknown; their parents have sexually, physically, or emotionally harmed them; or their parents have not provided appropriate care, support, or protection. By definition, SIJS-eligible children have suffered the lack of a stable and safe two-parent household.” (Id.) Additionally, the court must find that it is not in the child’s best interest to return to the child’s or his or her parent’s country of nationality.

In 2014, through SB 873 (Senate Budget and Fiscal Review Committee, Chapter 685, Statutes of 2014), the Legislature clarified that superior courts can make the findings necessary for a child to be eligible for SIJS. That law states that the superior court (including a juvenile, probate, or family court) has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act, and requires the court to make an order containing the necessary findings for SIJS, if there is evidence to support them. (Code Civ. Proc. Sec. 155.) Thus, a child in California today, who is under 18, may have the necessary SIJS findings made in a juvenile court as part of a dependency or delinquency proceeding, in family court as part of a custody proceeding, or in probate court as part of a guardianship proceeding. Nonminor dependents, or youths between the ages of 18 and 21 under the jurisdiction of the dependency court, may also qualify for SIJS status if a court makes the appropriate findings. Additionally, due to the passage of AB 900 (Levine, Chapter 694, Statutes of 2015), courts can extend or approve a guardianship for a youth between 18 and 21 years of age and make the requisite findings so that the youth can qualify for SIJS. The statute reads as follows: “A petition for guardianship of the person of a proposed ward who is 18 years of age or older, but who has not yet attained 21 years of age may be filed by a relative or any other person on behalf of the proposed ward, or the proposed ward.” This bill simply clarifies that “any other person” includes a parent.

Comments

The author writes:

Between 2014 and 2015, more than 9,500 unaccompanied immigrant youth were released to family members or other adults in California. To provide them a smoother transition to life in our state and to allow them eligibility for immigration relief through the Special Immigrant Juvenile Status (SIJS) process, the Legislature passed Assembly Bill 900 in 2016 to permit the state to appoint a legal guardian for immigrant youth between the ages of 18 and 21. However, an unforeseen ambiguity regarding who qualifies as a legal guardian has put certain immigrant youth in jeopardy of receiving this immigration relief. Assembly Bill 2090 protects these vulnerable youth at risk of deportation by clarifying that a parent can also qualify as a legal guardian.

The American Academy of Pediatrics, California, in support, writes:

The Immigration and Nationality Act, a federal law, establishes that undocumented immigrants who are below the age of 21, are unmarried and have been declared dependents of a juvenile court due to abuse, neglect or abandonment are eligible to petition for an adjustment of status to lawful permanent resident. Those who qualify and are 18, 19, or 20 years old may file a petition for guardianship so as to complete the proceedings to attain special immigrant juvenile status. Others, “a relative, or any other person” according to current law, may also file this petition on behalf of the proposed ward.

AB 2090 (Gonzalez Fletcher would clarify the language so that it would read “a parent, a relative, or any other person” so that there would be no confusion about who could submit the application on behalf of the proposed ward, thus making sure that qualifying undocumented youth have as many options as possible as they navigate their way through this legal process.

Clarifying the statute regarding who can be a guardian for SIJS youth

As described in the Background, AB 900 (Levine, Chapter 694, Statutes of 2015) was passed to ensure that youth between the ages of 18 and 21 could seek the protection of a probate guardianship and receive the requisite findings to apply for immigration relief through SIJS. Although the statute provides that a petition for guardianship of the person of a proposed ward who is 18 years of age or older, but who has not yet attained 21 years of age may be filed by “a relative” or “any other person” on behalf of the proposed ward, or by the proposed ward, some courts have allowed for parents to be guardians and others have not. This bill simply clarifies that, for the limited purpose of obtaining the necessary state court findings, a probate court may appoint a parent as guardian. This ensures that all youth have the same opportunity to come under the protection of a guardianship and are also able to obtain the requisite findings to apply for SIJS.

As explained by the Central American Resource Center of California, a sponsor of the bill:

Federal law allows a person age 21 or younger to apply for Legal Permanent Residency if they are granted SIJS. A person cannot apply to the United States Citizenship and Immigration Services (USCIS) for SIJS without a state court order confirming certain findings. However in California, many individuals between the ages of 18 and 21 were unable to acquire the necessary findings from the superior court to seek SIJS merely because probate courts could not take jurisdiction of the individuals over the age of 18 and establish guardianships of the person.

In 2015 AB 900 (Levine) was signed into law to alleviate this issue, by creating the probate guardianship for unmarried youth between the ages of 18 and 21 who seek the underlying state court findings needed to apply for SIJS.

As further explained by Immigrant Defenders Law Center, also a sponsor of this bill:

After enactment of AB 900 however, it has become clear that there is confusion regarding who can petition for guardianship. It is unclear whether “relative or any other person” intends to include parents. In some cases, a parent is the only relative that an individual seeking SIJS has.

This vagueness in statute has prevented certain applications from being submitted due to uncertainty whether guardianship will be established with the parent as the petitioner. When guardianship is not established, the youth does not receive the necessary findings, is ultimately prevented from applying for and obtaining the SIJS immigration relief, and is put at risk for deportation.

[ . . . ] Our clients who are SIJS eligible are particularly vulnerable, as they have suffered some form of mistreatment from at least one parent, and cannot return to their home country because of its current volatile conditions. AB 2090 will provide immediate immigration relief to a significant number of our clients, as it would be the only way for them to remain in this country and seek humanitarian protection through SIJS.

AB 2090 addresses this ambiguity in state law by clarifying that a parent is authorized to file a petition for guardianship for youth who are between the ages of 18 and 21 and are requesting the state court findings to apply for SIJS.

Related/Prior Legislation

AB 2642 (Levine, 2018) provides that, in an effort to ensure that unaccompanied minors are able to apply for SIJS immigration relief, a nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if specified requirements are met, which include that the nonprofit charitable corporation is licensed by this state to provide care for minors; the nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care and custody of the minor; and the petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure. The bill is currently on the Senate Floor.

AB 1603 (Assembly Budget Committee, Chapter 25, Statutes of 2016) made statutory changes to clarify the intent of SB 873 (Senate Budget and Fiscal Review Committee, Chapter 685, Statutes of 2014) and AB 900 (Levine, Chapter 694, Statutes of 2015) relating to the Unaccompanied Undocumented Minors program, administered by the Department of Social Services, which provides legal services funding for unaccompanied undocumented minors. Specifically, these changes clarified that SIJS findings can be made at any point in the court proceedings; prerequisites for SIJS findings are the same across superior court divisions; and perceived motivations of the child/juvenile in seeking classification as a special immigrant juvenile shall not be included or referred in the findings under this section.

AB 900 (Levine, Chapter 694, Statutes of 2015) authorized, with the consent of the proposed ward, a probate court to establish or extend a guardianship of the person for an unmarried individual, who is at least 18 years of age, but not yet 21, in connection with a petition to make necessary findings for the youth to pursue SIJS immigration relief.

SB 873 (Senate Budget and Fiscal Review Committee, Chapter 685, Statutes of 2014) enacted Code of Civil Procedure Section to strengthen protections for immigrant children by making it clear that all California courts have jurisdiction to make SIJS findings.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 6/14/18)

Central American Resource Center of California (co-source)

Immigrant Defenders Law Center (co-source)

American Academy of Pediatrics, California

California Immigrant Policy Center

California State PTA

OPPOSITION: (Verified 6/14/18)

None received

ASSEMBLY FLOOR: 52-0, 4/12/18

AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Cunningham, Daly, Eggman, Flora, Frazier, Friedman, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Lackey, Levine, Maienschein, McCarty, Medina, Muratsuchi, Nazarian, O'Donnell, Quirk, Quirk-Silva, Reyes, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NO VOTE RECORDED: Travis Allen, Bigelow, Bloom, Brough, Chávez, Chen, Choi, Dahle, Fong, Gallagher, Cristina Garcia, Gray, Harper, Kiley, Limón, Low, Mathis, Mayes, Melendez, Mullin, Obernolte, Patterson, Steinorth, Voepel, Waldron

Prepared by: Margie Estrada / JUD. / (916) 651-4113

6/15/18 10:41:50

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 2090 (Author:Gonzalez Fletcher)

Version: March 19, 2018

Hearing Date: June 12, 2018

Fiscal: No

Urgency: No

Consultant: MEC

SUBJECT

Guardianships: special immigrant juvenile status

DESCRIPTION

In an effort to ensure that all eligible youth in California are able, when appropriate, to obtain state court findings so that they can apply for Special Immigrant Juvenile Status immigration relief, this bill would clarify that, for the limited purpose of obtaining the necessary state court findings, a probate court may appoint a parent as guardian.

BACKGROUND

Special Immigrant Juvenile Status (SIJS), found in the Federal Immigration and Nationality Act, is a statutory tool enacted over two decades ago to benefit immigrant children. SIJS involves both federal and state law. The federal statute and regulations provide the framework, and the state courts provide the details for each individual situation. The Los Angeles County Bar Association describes the interplay between state and federal law in a 2012 article as follows:

First, a juvenile court must establish the child’s eligibility for immigration relief. Without the court’s findings, the child cannot apply for SIJS. A “juvenile court,” for SIJS purposes, is “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” This broad definition encompasses many California courts--those that handle dependency and delinquency proceedings as well as those that hear guardianships, adoptions, and even family law cases. What matters is the jurisdiction of California courts, not the labels they use for themselves.

Second, the juvenile court must have either 1) declared the child dependent on the court, 2) legally committed the child to, or placed the child under the custody of, an agency or department of a state, or 3) legally committed the child to, or placed the child under the custody of, an individual or entity appointed by the court. Juvenile court dependents … meet this requirement. So too do … wards when the court vests their “care, custody and control” in the probation department. A child whose custody is placed with a guardian, including an institutional guardian, or with a prospective adoptive parent also meets this requirement. (Jackson, Special Status Seekers: Through the underused SIJS process, immigrant juveniles may obtain legal status, 34 (Feb. 2014) Los Angeles Lawyer 20, 22.)

The court must additionally determine that reunification with one or more of the child’s parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law. “Under California law, children have met this requirement when, for example, their parents are deceased; their parents’ identities are unknown; their parents have sexually, physically, or emotionally harmed them; or their parents have not provided appropriate care, support, or protection. By definition, SIJS-eligible children have suffered the lack of a stable and safe two-parent household.” (Id.) Additionally, the court must find that it is not in the child’s best interest to return to the child’s or his or her parent’s country of nationality.

In 2014, through SB 873 (Budget and Fiscal Review, Ch. 685, Stats. of 2014), the Legislature clarified that superior courts can make the findings necessary for a child to be eligible for SIJS. That law states that the superior court (including a juvenile, probate, or family court) has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act, and requires the court to make an order containing the necessary findings for SIJS, if there is evidence to support them. (Code Civ. Proc. Sec. 155.) Thus, a child in California today, who is under 18, may have the necessary SIJS findings made in a juvenile court as part of a dependency or delinquency proceeding, in family court as part of a custody proceeding, or in probate court as part of a guardianship proceeding. Nonminor dependents, or youths between the ages of 18 and 21 under the jurisdiction of the dependency court, may also qualify for SIJS status if a court makes the appropriate findings. Additionally, due to the passage of AB 900 (Levine, Ch. 694, Stats. 2015) courts can extend or approve a guardianship for a youth between 18 and 21 years of age and make the requisite findings so that the youth can qualify for SIJS. The statute reads as follows: “A petition for guardianship of the person of a proposed ward who is 18 years of age or older, but who has not yet attained 21 years of age may be filed by a relative or any other person on behalf of the proposed ward, or the proposed ward.” This bill would simply clarify that “any other person” includes a parent.

CHANGES TO EXISTING LAW

Existing law provides immigration relief that relies on a state’s interest in the welfare of children by providing for Special Immigrant Juvenile Status where a state determines that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under state law and that it would not be in the child’s best interest to return to their home country. (8 U.S.C. Sec. 1101(a)(27)(J).)

Existing federal law defines a “special immigrant juvenile” as a person under 21 years of age who is declared a dependent by a juvenile court or committed to the custody of a state agency or a court-appointed individual, whose reunification with one or both of his or her parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law, and whose return to his or her country of nationality or last habitual residence is not in his or her best interest. (8 U.S.C. Sec. 1101(a)(27)(J).)

Existing federal law allows such person to obtain Special Immigrant Juvenile Status (SIJS) and, based on that, apply for a visa for lawful permanent residency. (8 U.S.C. Sec. 1153(b)(4).)

Existing law allows a court to appoint a guardian of the person, the estate, or both for a child under 18 years of age, taking into consideration the best interest of the proposed ward. (Prob. Code Sec. 1501 et seq.)

Existing law provides that the superior court, including a juvenile, probate, or family court department or division of the superior court, has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act, and requires the superior court to make an order containing the necessary findings regarding SIJS pursuant to federal law, if there is evidence to support those findings. (Code Civ. Proc. Sec. 155.)

Existing law authorizes with the consent of the proposed ward, a probate court to establish or extend a guardianship of the person for an unmarried individual, who is at least 18 years of age, but not yet 21, in connection with a petition to make necessary findings regarding SIJS or complete the SIJS application process, as specified. (Prob. Code Sec. 1510.1(a)(1).)

Existing law allows the petition for guardianship, or to extend a guardianship, to be filed by a relative, the proposed ward, or any other person. (Prob. Code Sec. 1510.1(a)(2).)

Existing law provides that a guardianship may not extend beyond the ward reaching 21 years of age. (Prob. Code Sec. 1510.1(b)(2).)

Existing law provides that nothing in the provisions above abrogates any other rights that a ward who is 18 or older may have as an adult under California law, including, but not limited to, decisions regarding the ward’s medical treatment, education, or residence, without the ward’s express consent. (Prob. Code Sec. 1510.1(c).)

Existing law requires the court to terminate a guardianship upon the petition of a ward who is 18 years of age or older. (Prob. Code Sec. 1601.)

Existing law defines, for the purposes of the provisions above, the terms “child,” “minor,” and “ward” to include an unmarried individual who is younger than 21 years of age and who, pursuant to this section, consents to the appointment of a guardian or extension of a guardianship after he or she attains 18 years of age. (Prob. Code Sec. 1510.1(d).)

This bill would clarify that a parent is authorized to file a petition for guardianship of the proposed ward in connection with a petition to make necessary findings regarding SIJS.

COMMENT

1. Arguments in support of the bill

According to the author:

Between 2014 and 2015, more than 9,500 unaccompanied immigrant youth were released to family members or other adults in California. To provide them a smoother transition to life in our state and to allow them eligibility for immigration relief through the Special Immigrant Juvenile Status (SIJS) process, the Legislature passed Assembly Bill 900 in 2016 to permit the state to appoint a legal guardian for immigrant youth between the ages of 18 and 21. However, an unforeseen ambiguity regarding who qualifies as a legal guardian has put certain immigrant youth in jeopardy of receiving this immigration relief. Assembly Bill 2090 protects these vulnerable youth at risk of deportation by clarifying that a parent can also qualify as a legal guardian.

The American Academy of Pediatrics, in support, writes:

The Immigration and Nationality Act, a federal law, establishes that undocumented immigrants who are below the age of 21, are unmarried and have been declared dependents of a juvenile court due to abuse, neglect or abandonment are eligible to petition for an adjustment of status to lawful permanent resident. Those who qualify and are 18, 19, or 20 years old may file a petition for guardianship so as to complete the proceedings to attain special immigrant juvenile status. Others, “a relative, or any other person” according to current law, may also file this petition on behalf of the proposed ward.

AB 2090 (Gonzalez Fletcher would clarify the language so that it would read “a parent, a relative, or any other person” so that there would be no confusion about who could submit the application on behalf of the proposed ward, thus making sure that qualifying undocumented youth have as many options as possible as they navigate their way through this legal process.

2. Clarifying the statute regarding who can be a guardian for SIJS youth

As described in the Background, AB 900 (Levine, Ch. 694, Stats. 2015) was passed to ensure that youth between the ages of 18 and 21 could seek the protection of a probate guardianship and receive the requisite findings to apply for immigration relief through Special Immigrant Juvenile Status. Although the statute provides that a petition for guardianship of the person of a proposed ward who is 18 years of age or older, but who has not yet attained 21 years of age may be filed by “a relative” or “any other person” on behalf of the proposed ward, or by the proposed ward, some courts have allowed for parents to be guardians and others have not. This bill would simply clarify that, for the limited purpose of obtaining the necessary state court findings, a probate court may appoint a parent as guardian. This would ensure that all youth have the same opportunity to come under the protection of a guardianship and are also able to obtain the requisite findings to apply for Special Immigrant Juvenile Status.

As explained by the Central American Resource Center of California, a sponsor of the bill:

Federal law allows a person age 21 or younger to apply for Legal Permanent Residency if they are granted SIJS. A person cannot apply to the United States Citizenship and Immigration Services (USCIS) for SIJS without a state court order confirming certain findings. However in California, many individuals between the ages of 18 and 21 were unable to acquire the necessary findings from the superior court to seek SIJS merely because probate courts could not take jurisdiction of the individuals over the age of 18 and establish guardianships of the person.

In 2015 AB 900 (Levine) was signed into law to alleviate this issue, by creating the probate guardianship for unmarried youth between the ages of 18 and 21 who seek the underlying state court findings needed to apply for SIJS.

As further explained by Immigrant Defenders Law Center, also a sponsor of this bill:

After enactment of AB 900 however, it has become clear that there is confusion regarding who can petition for guardianship. It is unclear whether “relative or any other person” intends to include parents. In some cases, a parent is the only relative that an individual seeking SIJS has.

This vagueness in statute has prevented certain applications from being submitted due to uncertainty whether guardianship will be established with the parent as the petitioner. When guardianship is not established, the youth does not receive the necessary findings, is ultimately prevented from applying for and obtaining the SIJS immigration relief, and is put at risk for deportation.

[ . . . ] Our clients who are SIJS eligible are particularly vulnerable, as they have suffered some form of mistreatment from at least one parent, and cannot return to their home country because of its current volatile conditions. AB 2090 will provide immediate immigration relief to a significant number of our clients, as it would be the only way for them to remain in this country and seek humanitarian protection through SIJS.

AB 2090 addresses this ambiguity in state law by clarifying that a parent is authorized to file a petition for guardianship for youth who are between the ages of 18 and 21 and are requesting the state court findings to apply for SIJS.

Support: American Academy of Pediatrics, California; California Immigrant Policy Center; California State PTA

Opposition: None Known

HISTORY

Source: Central American Resource Center; Immigrant Defenders Law Center

Related Pending Legislation: AB 2642 (Levine, 2018) In an effort to ensure that unaccompanied minors are able to apply for Special Immigrant Juvenile Status immigration relief, this bill would provide that a nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if specified requirements are met, which include that the nonprofit charitable corporation is licensed by this state to provide care for minors; the nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care and custody of the minor; and the petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure. This bill is currently in the Senate Committee on Judiciary.

Prior Legislation:

AB 1603 (Committee on Budget and Fiscal Review, Ch. 25, Stats. 2016) made statutory changes to clarify the intent of SB 873 (Committee on Budget and Fiscal Review, Ch. 685, Stats. 2014) and AB 900 (Levine, Ch. 694, Stats. 2015), relating to the Unaccompanied Undocumented Minors (UUM) program, administered by the Department of Social Services (DSS), which provides legal services funding for unaccompanied undocumented minors. Specifically, these changes clarify that special immigrant juvenile status (SIJS) findings can be made at any point in the court proceedings; prerequisites for SIJS findings are the same across superior court divisions; and perceived motivations of the child/juvenile in seeking classification as a special immigrant juvenile shall not be included or referred in the findings under this section.

AB 900 (Levine, Ch. 694, Stats. 2015) authorized, with the consent of the proposed ward, a probate court to establish or extend a guardianship of the person for an unmarried individual, who is at least 18 years of age, but not yet 21, in connection with a petition to make necessary findings for the youth to pursue Special Immigrant Juvenile Status immigration relief.

SB 873 (Committee on Budget and Fiscal Review, Ch. 685, Stats. 2014) enacted Code of Civil Procedure Section to strengthen protections for immigrant children by making it clear that all California courts have jurisdiction to make Special Immigrant Juvenile Status (SIJS) findings.

Prior Vote:

Assembly Floor (Ayes 52, Noes 0)

Assembly Judiciary Committee (Ayes 9, Noes 0)

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ASSEMBLY THIRD READING

ATR Bill Id:AB 2090

Author:(Gonzalez Fletcher)

As Amended Ver:March 19, 2018

Majority vote

SUMMARY: Specifies that a parent may be appointed as a guardian of his or her own child in connection with a petition to make necessary findings regarding special immigrant juvenile status.

EXISTING LAW:

1. Allows a probate court to appoint a guardian of the person, the estate, or both for a child under 18, taking into consideration the best interest of the proposed ward. However a court may, with the consent of the proposed ward, appoint a guardian for an unmarried individual who is 18 years of age or older, but who is not yet attained 21 years, in connection with a petition to make necessary findings regarding special immigrant status, as specified. (Probate Code Sections 1501 and 1501.1.)
2. Under federal law, defines a "special immigrant juvenile" as a person under 21 who is declared a dependent by a juvenile court or committed to the custody of a state agency or a court-appointed individual, whose reunification with one or both of his or her parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law, and whose return to his or her country of nationality or last habitual residence is not in his or her best interest. Allows such person to obtain Special Immigrant Juvenile Status (SIJS) and, based on that, apply for a visa for lawful permanent residency. (8 United States Code (U.S.C.) Section 1101 (a)(27)(J) and Section 1153 (b)(4).)
3. Provides that the superior court (including a juvenile, probate, or family court department or division of the superior court) has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act. Requires the superior court to make an order containing the necessary findings regarding SIJS pursuant to federal law, if there is evidence to support those findings. (Code of Civil Procedure Section 155.)

FISCAL EFFECT: None

COMMENTS: Special Immigrant Juvenile Status is a federal immigration classification available to undocumented immigrants under the age of 21 who have been abused, neglected, or abandoned by one or more parents. SIJS creates a path for immigrant youth to obtain legal status in situations where they cannot be united with one or both parents due to a history of abuse or neglect and where they cannot be safely returned to their country of origin. SIJS status allows immigrant youth to avoid deportation and seek legal permanent residence within the United States.

While a juvenile (or the juvenile's representative) must eventually apply to the United States Citizenship and Immigration Service (USCIS) for SIJS status, the first step requires the juvenile to obtain requisite findings from a state court (a family, juvenile, or probate court, depending upon the state). Specifically, the appropriate state court must make three findings: 1) the child has been declared a "dependent" or is otherwise legally committed to the custody of a state agency or a court-appointed guardian; 2) reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and 3) it is not in the child's best interest to be returned to his or her country of origin or last habitual residence. (8 U.S.C. Section 1101(a)(27)(J) and Section 1153 (b)(4).) This bill amends existing state law in order to address the first required finding by authorizing the court to appoint a parent as guardian, but only for the limited purpose of obtaining the preliminary state court findings necessary to file with the federal government for SIJS status. The decision to grant or deny SIJS status would still rest with the USCIS; this bill will ensure that all eligible youth in California are at least able to apply for SIJS status.

Legislative Background: Like AB 900 (Levine), Chapter 694, Statutes of 2015, this bill seeks to make modest changes to state law so that all who meet the federal requirements for SIJS status will not be prevented from doing so because of peculiarities of California courts. AB 900 addressed the issue of an "age gap" between California and federal law. Specifically, while federal law allows any youth up to age 21 to obtain SIJS, an otherwise qualified California youth between the ages of 18 and 21 could not obtain the necessary finding of dependency because California probate courts only have jurisdiction of persons up to the age of 18. So a youth who was otherwise perfectly eligible for SIJS status could not obtain it – not because the youth was not subject to abuse by one or more parents and unable to return to the country of origin – but merely because of the age limitation of state court jurisdiction. AB 900 addressed this gap by authorizing a court to create a guardianship for a willing youth, between 18 and 21, for the limited purpose of obtaining the state court findings that will permit the youth to apply for SIJS status.

This bill will similarly allow eligible youth to take advantage of federal law by clarifying that, for the limited purpose of obtaining the necessary state court findings, a parent may petition the probate court to become the child's guardian, and that the court may appoint the parent as guardian. Existing Probate Code Section 1510.1 states that "a petition for guardianship of the person . . . may be filed by a relative or any other person" [emphasis added] on behalf of the dependent." This bill would add the word "parent" to the existing statute so that the court could appoint a parent as guardian for the limited purpose of applying for SIJS status. This will allow a child to take advantage of a federal protection for which the child is eligible and deserving. The alternative is that the child is forced to part with a fit parent who is here and be deported to the custody of an abusive parent abroad.

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0002677

Date of Hearing: April 10, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2090

Author:(Gonzalez Fletcher) – As Amended Ver:March 19, 2018

SUBJECT: Guardianships: special immigrant juvenile status

KEY ISSUE: should a probate court be authorized to appoint a parent as guardian for the limited purpose of making state-court findings necessary to file a federal petition for special immigrant juvenile status?

SYNOPSIS

Special Immigrant Juvenile Status (SIJS) is a federal immigration classification available to undocumented immigrants under the age of twenty-one who have been abused, neglected, or abandoned by one or more parents. SIJS allows undocumented immigrant youth to obtain legal status, and a path to legal permanent residence, in situations where they cannot be united with one or both parents due to a history of abuse or neglect and where they cannot be safely returned to their country of origin. While juveniles seeking SIJS must eventually petition the United States Citizenship and Immigration Service (USCIS), the first step requires the juvenile to obtain requisite findings from a state court. Specifically, the appropriate state court must make three findings: (1) the child has been declared a "dependent" or is otherwise legally committed to the custody of a state agency or a court-appointed guardian; (2) reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) it is not in the child's best interest to be returned to his or her country of origin or last habitual residence. This bill amends existing state law in order to clarify that, for the limited purpose of obtaining necessary state court findings, a probate court may appoint a parent as guardian. The decision to grant or deny SIJS status would still rest with the federal USCIS. This bill, as explained below, will simply ensure that all eligible youth in California are able, when appropriate, to obtain state court findings so that they can at least apply for SIJS status. Without this clarification, it is possible that an otherwise eligible youth could be taken away from a loving parent in the United States and deported to the custody of an abusive parent abroad. This bill is supported by the American Academy of Pediatrics of California, the Immigrant Defenders Law Center, and the Central American Resource Center. There is no known opposition to this bill.

SUMMARY: Specifies that a parent may be appointed as a guardian of his or her own child in connection with a petition to make necessary findings regarding special immigrant juvenile status.

EXISTING LAW:

1. Allows a probate court to appoint a guardian of the person, the estate, or both for a child under 18, taking into consideration the best interest of the proposed ward. However a court may, with the consent of the proposed ward, appoint a guardian for an unmarried individual who is 18 years of age or older, but who is not yet attained 21 years, in connection with a petition to make necessary findings regarding special immigrant status, as specified. (Probate Code Sections 1501 and 1501.1.)
2. Under federal law, defines a "special immigrant juvenile" as a person under 21 who is declared a dependent by a juvenile court or committed to the custody of a state agency or a court-appointed individual, whose reunification with one or both of his or her parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law, and whose return to his or her country of nationality or last habitual residence is not in his or her best interest. Allows such person to obtain Special Immigrant Juvenile Status (SIJS) and, based on that, apply for a visa for lawful permanent residency. (8 U.S.C. Section 1101 (a)(27)(J) and Section 1153 (b)(4).)
3. Provides that the superior court (including a juvenile, probate, or family court department or division of the superior court) has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act. Requires the superior court to make an order containing the necessary findings regarding SIJS pursuant to federal law, if there is evidence to support those findings. (Code of Civil Procedure Section 155.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Special Immigrant Juvenile Status is a federal immigration classification available to undocumented immigrants under the age of twenty-one who have been abused, neglected, or abandoned by one or more parents. SIJS creates a path for immigrant youth to obtain legal status in situations where they cannot be united with one or both parents due to a history of abuse or neglect and where they cannot be safely returned to their country of origin. SIJS status allows immigrant youth to avoid deportation and seek legal permanent residence within the United States.

While a juvenile (or the juvenile's representative) must eventually apply to the United States Citizenship and Immigration Service (USCIS) for SIJS status, the first step requires the juvenile to obtain requisite findings from a state court (a family, juvenile, or probate court, depending upon the state). Specifically, the appropriate state court must make three findings: (1) the child has been declared a "dependent" or is otherwise legally committed to the custody of a state agency or a court-appointed guardian; (2) reunification with one or both parents is not viable due to abuse, neglect, or abandonment; and (3) it is not in the child's best interest to be returned to his or her country of origin or last habitual residence. (8 U.S.C. Section 1101 (a)(27)(J) and Section 1153 (b)(4).) This bill amends existing state law in order to address the first required finding by authorizing the court to appoint a parent as guardian, but only for the limited purpose of obtaining the preliminary state court findings necessary to file with the federal government for SIJS status. The decision to grant or deny SIJS status would still rest with the USCIS; this bill, as explained below, will simply ensure that all eligible youth in California are at least able to apply for SIJS status.

Legislative Background: Like AB 900 in 2015, this bill seeks to make modest changes to state law so that all who meet the federal requirements for SIJS status will not be prevented from doing so because of peculiarities of California courts. AB 900 (Chap. 694, Stats. 2015) addressed the issue of an "age gap" between California and federal law. Specifically, while federal law allows any youth up to age twenty-one to obtain SIJS, an otherwise qualified California youth between the ages of eighteen and twenty-one could not obtain the necessary finding of dependency because California probate courts only have jurisdiction of persons up to the age of eighteen. So a youth who was otherwise perfectly eligible for SIJS status could not obtain it – not because the youth was not subject to abuse by one or more parents and unable to return to the country of origin – but merely because of the age limitation of state court jurisdiction. AB 900 addressed this gap by authorizing a court to create a guardianship for a willing youth, between eighteen and twenty-one, for the limited purpose of obtaining the state court findings that will permit the youth to apply for SIJS status.

The bill now before the Committee similarly seeks to allow eligible youth to take advantage of federal law. The bill does so by clarifying that, for the limited purpose of obtaining the necessary state court findings, a parent may petition the probate court to become the child's guardian, and that the court may appoint the parent as guardian.

Parent as Guardian in SIJS Cases: California law recognizes two types of guardianship: a "guardianship of the estate," which gives the guardian authority over the dependent's financial affairs; and a "guardianship of the person," which gives the guardian physical custody of the dependent and full parental rights. This bill only affects the "guardianship of the person," and only for the limited purpose of obtaining the necessary findings for an SIJS petition. The clarification provided by this bill is necessary because under California law courts do not generally appoint a "parent" as "guardian" for his or her own child. By definition a "guardian" is a substitute parent when there is no living or fit parent to care for the child. Existing Probate Code Section 1510.1 states that "a petition for guardianship of the person . . . may be filed by a relative or any other person" [emphasis added] on behalf of the dependent." While a court could conceivably deem a parent either a "relative" or "any other person," the courts have generally presumed, in light of the overall purpose of the guardianship provisions, that "relative or any other person" does not include a natural parent. After all, a guardian is typically only appointed where a parent is either absent or deemed unfit to care for the child. If the parent is present and fit, then there is no need to appoint a guardian; if the parent is deemed unfit, then the court would understandably be reluctant to appoint an unfit parent as guardian.

However, in creating the SIJS program, Congress apparently envisioned the possibility that a juvenile could be eligible for the program even if that juvenile had one fit and present parent. Federal law specifies that a youth is eligible if reunification with "one or both" of the child's parents is not a viable option due to abuse or neglect, and returning the child to the country of origin is not in the child's best interest. In other words, federal law envisions a situation in which one parent is in the United States and not abusive, while the abusive parent is in the country of origin. Without the protection of SIJS status, the child could be deported to the abusive parent and taken away from a fit parent in the United States. In order for the child to take advantage of this scenario, and at least have the opportunity to apply for SIJS status, this bill would add the word "parent" to the existing statute so that the court could appoint a parent as guardian for the limited purpose of applying for SIJS status. This will allow a child to take advantage of a federal protection for which the child is eligible and deserving. The alternative is that the child is forced to part with a fit parent who is here and be deported to the custody of an abusive parent abroad.

No Preemption Issue: Although immigration is unquestionably a federal matter, this bill is fully consistent with federal law and does not appear to create any preemption issues. As noted, existing federal law deliberately created a hybrid process that gives the states the authority to make preliminary findings; once these findings have been made the juvenile may apply to the federal USCIS for SIJS status. The final determination is left with USCIS. This bill, like AB 900 in 2015, which extended probate jurisdiction to age twenty-one for the limited purpose of making the state court findings, makes a minor and limited change in state law that will permit juveniles to petition for the federal immigration status to which they are fully entitled.

ARGUMENTS IN SUPPORT: The American Academy of Pediatrics, California (AAP-CA) supports this bill because it will "clarify that the parent of an unmarried person between 18 and 21 years of age is among the people qualified to file a petition for guardianship on the youth's behalf." By inserting the word "parent" – where existing law authorizes "a relative or any other person," AAP-CA believes that this bill will eliminate "confusion about who could submit the application on behalf of the proposed ward, thus making sure that qualifying undocumented youth have as many options as possible as they navigate their way through this legal process." The Immigrant Defenders Law Center and the Central American Resource Center support this measure for substantially the same reasons, noting that ambiguities regarding who can be appointed a guardian for SIJS purposes leaves too many vulnerable youth at risk for deportation, even though they otherwise qualify for SIJS.

REGISTERED SUPPORT / OPPOSITION:

Support

American Academy of Pediatrics

Central American Resource Center

Immigrant Defenders Law Center

Opposition

None on file

Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334