SENATE COMMITTEE ON HUMAN SERVICES

Senator Hurtado, Chair

2019 - 2020 Regular

Bill No: SR 8

Author:	Umberg
Version:	March 18, 2019	Hearing Date:	March 25, 2019
Urgency:	No	Fiscal:	No
Consultant:	Marisa Shea

Subject: Asylum Seekers

SUMMARY

This Senate Resolution calls upon the federal government to comply with its obligations under law to allow people seeking asylum in the United States to seek prompt and fair initial evaluation of their claim. This Senate Resolution also commends the attorney and humanitarian volunteers at the boarder who have been volunteering their time and services to asylum seekers at the border.

ABSTRACT

Existing Law:

Provides, under the Fifth Amendment to the U.S. Constitution, that a person shall not be deprived of life, liberty, or property without due process of law. (U.S. Const., 5th Amendment)
Holds that once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent. (Zadvydas v. Davis, 533 U.S. 678 (2001))
Prohibits the federal government from returning to their home countries people whose life or freedom would be threatened because of the person’s race, religion, nationality, membership in a particular social group, or political opinion. (8 U.S.C. 1231(b)(3))
Provides for the protection of people who have fled persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. (UN General Assembly, Universal Declaration of Human Rights, Dec. 10, 1948, 217A(III), Art. 14)
Protects all asylum seekers by prohibiting the federal government from returning to their home countries people who have fled persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. (8 U.S.C. Sec. 1101(a)(42)(A))
Provides that victims of certain crimes may obtain immigration relief through a Victim of Crime Visa (U-Visa) and victims of human trafficking may obtain immigration relief through a Victim of Trafficking Visa (T-Visa). (8 U.S.C. Sec. 1101(a)(15)(U); 8 U.S.C. Sec. 1101(a)(15)(T))
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))
Defines “refugee” as meaning any person who is outside any country of such person’s nationality, or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. ((8 U.S.C. Sec. 1101 (a)(42)(A)
Delineates, as part of the federal Immigration and Nationality Act, categories of deportable non-citizen or non-national of the United States who is in and admitted to the United States and provides for waivers to deportation in certain instances and under certain circumstances, as specified. (8 U.S.C. 1227)
Requires the California Department of Social Services (CDSS), subject to the availability of funding, to contract with qualified nonprofit legal services organizations to provide legal services to unaccompanied undocumented minors who are transferred to the care and custody of the federal Office of Refugee Resettlement (ORR) and who are present in California, and stipulates requirements for the fulfillment of these contracts, as specified. (WIC 13300-13301)
Requires CDSS, subject to the availability of funding, to provide grants to qualified organizations for the provision of services to persons residing, or who formerly resided, in California that include, but are not limited to the following services, as specified: assist initial or renewal requests of deferred action under Deferred Action for Childhood Arrivals (DACA); obtain other immigration remedies; assist with the naturalization process and related appeals; and provide legal training and technical assistance. Further, stipulates requirements for the fulfillment of these grants and requires CDSS to update the Legislature on information related to the implementation and administration of these grants, as specified. (WIC 13303-13304)
Appropriates $20 million to CDSS in the Fiscal Year (FY) 2017-18 for immigration services funding to be available for payment to existing entities under contract for immigration services to provide services for clients involved in, applying for, or subject to federal DACA status, as specified. (WIC 13303(g))
Requires CDSS to, subject to the availability of funding, provide grants to qualified organizations to provide education and outreach information, services, and materials regarding CDSS-funded immigration services provided through grantees and requires this education and outreach funding to only be provided to nonprofit organizations that have at least three years’ experience both conducting education and outreach with immigration populations and conducting outreach for government benefits and programs, as specified. (WIC 13305-13306)
Authorizes CDSS to transfer funds appropriated for purposes of funding undocumented unaccompanied minors (UUM) and immigration services grants and contracts among services in response to the results of requests for applications received or to changing state or federal law, and requires CDSS to notify the Joint Legislative Budget Committee and, in some cases, the Department of Finance, of any such transfer, as specified. (WIC 13307)

This Resolution:

Makes the following statements:
1. The act of receiving and sheltering those in need of refuge from persecution abroad represents the practical embodiment of the fundamental moral command to treat others as one would wish to be treated;
2. There is no darker stain on the moral character of our nation’s refugee history than the refusal to accept hundreds of German Jews who, in 1939, sought to escape the Third Reich;
3. Nine hundred thirty-seven mostly German Jews boarded the transatlantic liner St. Louis at Hamburg, Germany, but the ship was refused permission to dock in Cuba and then in the United States;
4. The St. Louis returned to Europe, where 254 of its passengers were murdered during the Holocaust;
5. Our nation’s subsequent commitment not to repeat this tragic moral failure led to the enactment of federal laws that protect all asylum seekers by prohibiting the federal government from returning to their home countries people who have fled persecution on account of race, religion, nationality, political opinion, or membership in a particular social group (8 U.S.C. Sec. 1101(a)(42)(A) and (8 U.S.C. Sec. 1231(b)(3));
6. These federal laws also reflect our nation’s obligations under existing international humanitarian law, which provides for the protection of people who have fled persecution because of race, religion, nationality, political opinion, or membership in a particular social group (United Nations General Assembly, Universal Declaration of Human Rights, Dec. 10, 1948, 217A(III), Art. 14.);
7. California is among the nation’s leading recipients of refugees and asylum-seekers;
8. California takes tremendous pride in providing welcome, support, healing, and an opportunity to live anew in peace to those immigrants;
9. By contrast, the Trump administration has deliberately and unlawfully undertaken a series of policy changes, and erected practical barriers, designed to prevent people seeking refuge in the United States from having the opportunity to plead their legal case for asylum;
10. Many of these policies and barriers violate federal and international human rights law;
11. For example, the Honorable Judge Jon S. Tigar of the United States District Court for the Northern District of California recently blocked President Donald Trump’s attempt to unlawfully prevent people from requesting asylum unless they presented themselves at an official port of entry, where Customs and Border Protection under President Trump now makes people wait for weeks under dangerous conditions and without decent shelter. Judge Tigar wrote that the President “may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden”;
12. The federal government nonetheless continues to restrict people seeking asylum from presenting themselves at ports of entry; and
13. The federal government has fired rubber bullets and toxic gases at immigrant men, women, and children seeking access to the border in order to make a claim for asylum.
Resolves by the Senate of the State of California that:
1. That the Senate of the State of California condemns the federal government’s failure to meet its obligations to those seeking asylum under international law and the federal Immigration and Nationality Act;
2. That the Senate calls upon the federal government to comply fully with its humanitarian duty, and its obligations under law, by removing all barriers that prevent people seeking refuge in the United States from obtaining a prompt and fair initial evaluation of their claim for asylum;
3. That the Senate condemns the disproportionate and unnecessary use of rubber bullets and toxic gases against unarmed and largely peaceful civilians who are merely seeking access to apply for refuge;
4. That the Senate commends the attorneys at the border who volunteer their time and services to ensure that the asylum seekers’ legal right to enter California is respected by the federal government;
5. That the Senate commends the humanitarian volunteers at the border who volunteer their time and services to ensure that the asylum seekers are fed, clothed, housed, and kept safe; and
6. That the Secretary of the Senate transmit copies of this resolution to the President and Vice President of the United States, the Secretary of the Department of Homeland Security, the Speaker of the House of Representatives, the Minority Leader of the House of Representatives, the Majority Leader of the United States Senate, the Minority Leader of the United States Senate, and to each Senator and Representative from California in the Congress of the United States.

BACKGROUND AND DISCUSSION

Purpose of the Bill:

According to the author, “the California State Government must come together to condemn the illegal and morally unethical treatment of asylum applicants by the United States Federal Government. When asylum applicants attempt to seek refuge in our country they are met with harsh treatments and delays, a complete lack of resources including sustenance and shelter, and a coarse legal system in which often times they have no representation. The humanitarian crisis created at our southern border by the Federal Government has left countless in despair and has diminished the moral standing of our country.”

Presidential Proclamation

In response to the migrant caravan that traveled from Central America through Mexico to the Southern Boarder of the United States, President Trump issued a proclamation sharing his administration’s view of the caravan and proclaiming changes to the asylum process. The November 9, 2018 proclamation described the caravan as a “mass migration of aliens with no basis for admission into the United States…” and claimed this migration “has precipitated a crisis and undermines the integrity of our boarders.” ^[1]

By treating the arrival of these migrants at the southern United States boarder as a crisis, President Trump attempted to suspend the access of some to the current asylum process that was put in place by Congress through the Immigration and Nationality Act. Through his proclamation, President Trump limited asylum to only those who presented themselves for inspection at a port of entry. Meaning that any individual who entered the country and then sought asylum would be deemed ineligible, if their entry occurred after November 9, 2018.^[2] A further explanation of the asylum process is discussed below. The changes to the asylum process sought through this proclamation, were carried out by the Department of Justice and the Department of Homeland Security adopting an interim final rule, without a period for public comment, that barred “aliens who cross the southern border unlawfully… from eligibility for asylum.”^[3]

The American Civil Liberties Union, Southern Poverty Law Center, and Center for Constitutional Rights filed a federal lawsuit challenging this proclamation on behalf of several organizations, including the East Bay Sanctuary Covenant and the Central American Resource Center in Los Angeles. As a result of this lawsuit, Judge Jon S. Tigar of the U.S. District Court in San Francisco issued a temporary restraining order blocking the proclamations changes to the asylum process. Judge Tigar wrote, “the rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the Immigration and Naturalization Act and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”^[4] This temporary restraining order blocks the federal administration’s changes to existing asylum law while the case moves through the court’s process.

Affirmative Asylum and Defensive Asylum

Under the Immigration and Naturalization Act, the United States offers two ways for individuals to obtain asylum, an affirmative process and a defensive process. For both processes an individual must be physically present in the United States to seek asylum.

When pursing affirmative asylum, an individual applies while present in the United States, regardless of how they arrived or what their current immigration status is, but the application must made within one year of the date of the individual’s last arrival into the United States, unless certain circumstances are met. An individual may apply for affirmative asylum by submitting a Form I-589 to U.S. Citizenship and Immigration Services (USCIS), and according to USCIS individuals are rarely detained by Immigration and Customs Enforcement (ICE) while their application is pending. If found ineligible through the affirmative asylum process an individual’s case will be referred to an immigration judge at the Executive Office for Immigration Review (EOIR) who will conduct a new hearing and issue a status decision that is independent of the decision made by USCIS, following this decision deportation proceedings may begin.^{^[5]}

A defensive application for asylum results from a request for asylum being raised as a defense against removal from the United States. This occurs when an individual is in removal proceedings, typically as a result of being referred after USCIS determined them ineligible for asylum at the end of the affirmative process or because they were found within the United States or at a port of entry without proper documents or in violation of their immigration status. A defensive application for asylum may also be raised by individuals caught by U.S. Customs and Board Protection trying to enter the United States without the required documentation. Defensive asylum cases are presented before an immigration judge in an adversarial removal proceeding, the judge decides whether the individual is eligible. If found to be ineligible, the judge will order removal or determine if the individual is eligible for any other forms of relief from removal.^{^[6]}

Due to the November 9, 2018 proclamation limiting asylum to those who enter through a port of entry, the proclamation would seemingly limit asylum cases to the defensive application model in most instances. This is because those individuals would be seeking to enter the United States at a port of entry without proper documents, thus triggering the defensive application model. However, due to the temporary restraining order issued by the Judge Tigar, described above, the changes brought abought by the proclamation are temporarily barred.

Port of Entry Asylum Process

Individuals presenting at a port of entry without documentation are asked by officials whether they are afraid to go home, an asylum seeker would say yes – resulting in referral to ICE. The individual would then be held in an immigration detention facility awaiting a credible fear interview with an asylum officer from USCIS. The asylum officer interviews the individual to determine whether their fear is credible, if it is found to be credible an individual is provided with a notice to appear, which places the individual on the schedule in immigration court. The individual then appears in immigration court and receives an asylum application. Upon submission of the asylum application the individual is officially seeking asylum and scheduled for a hearing. At this hearing, the individual presents evidence to support their asylum claim and the judge makes a decision as to whether they will be granted asylum. If asylum is not granted, the individual may appeal the decision or else be removed from the United State.^[7]

Alternatively, an asylum officer could find the person’s fear to not be credible, this would result in ICE preparing the individual for deportation. The individual may appeal the asylum officer’s decision for review by an immigration judge or accept the asylum officer’s decision and be deported. If the individual appeals, and the judge disagrees with the asylum officer, then the individual begins the application process as they would have if asylum officer found their fear credible. If judge agrees with the asylum officer and finds the claim of fear to not be credible, the individual is deported.^[8]

While awaiting their credible fear interview the individual is held in detention centers. If they receive a positive credible fear finding and receive a notice to appear document, scheduling their immigration court appearance, the individual may then be able to request a release from detention. This requires they pay a bond and wear an ankle monitor while awaiting their court appearance. It has been reported that under the current federal administration, most asylum seekers are remaining in custody rather than being released while awaiting trial.^[9]

This process may be changed for some asylum seekers due to a March 7, 2018 Ninth Circuit Court of Appeals decision. The Ninth Circuit Court of Appeals ruled that immigration authorities cannot continue the practice of deporting asylum seekers who fail their initial credible fear screening. Individuals who are found not to have a credible fear of return to their country of origin by the asylum officer, now have the right to seek a habeas corpus hearing in the federal courts before being deport – thus extending their stay in the United States. According to the New York Times, this ruling “broadens constitutional protections for undocumented immigrants at the border and opens a new legal gateway for some of them to appeal for permission to stay in the country, even when an asylum officer and an immigration judge have made a determination that they do not have a credible fear of persecution in their homeland.”^[10] This decision will only be applied to the nine western states within the court’s jurisdiction, those states are: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Additionally, it is expected that the federal government will appeal this decision to the Supreme Court.

CDSS Immigration Services Funding

Within CDSS, the Immigration Services Unit oversees programs and funding initiatives aimed at supporting legal services, outreach and education, and other immigrant integration efforts. Existing law authorizes CDSS, through the efforts of this Unit, to award Immigration Services Funding to qualified nonprofit organizations for one, or more, of the following six service categories:

Services to assist applicants seeking DACA status;
Services to assist applicants seeking naturalizations;
Services to assist applicants seeking other immigration remedies;
Legal training and technical assistance services;
Education and outreach activities; and
Services to assist individuals with removal defense. (WIC 13302-13306)

As of January 3, 2019, CDSS has offered $43,823,900 in funding to 101 nonprofit organizations for Immigration Services for Fiscal Year (FY) 2018-19. CDSS received requests for funds for FY 2018-19 that totaled $77,132,680. They are limited to funding only qualified nonprofit organizations that provide services to immigrants who reside, or formerly resided, in the State of California per the requirements of Welfare and Institutions Code Sections 13302-13306. Per these code sections, the nonprofit organizations must have a minimum of three years’ experience handling immigration cases. Additionally, these organizations must be recognized and accredited by the Board of Immigration Appeals under the U.S. Department of Justice’s Executive Office for Immigration Review or meet the requirements to receive funding from the Trust Fund Program administered by the State Bar of California, as specified.

The awards offered for FY 2018-19 represent an increase of approximately $2.6 million from the $41.2 million awarded to 91 nonprofit organizations in FY 2017-18.

CDSS Unaccompanied Undocumented Minors (UUMs)

In addition to Immigration Services Funding, CDSS contracts with nonprofit legal services organization to provide legal services to eligible UUMs. UUMs are undocumented children and youth who have come to the United States without a parent or guardian. CDSS serves those who are in California and, upon being apprehended, are either transferred to the care and custody of the federal ORR or are living with a sponsor. According to CDSS, the funding for this program “is for the sole purpose of providing legal representation for UUMs in the filing of, preparation for, and representation in administrative and/or judicial proceedings for the following immigration statuses: asylum, T-Visa, U-Visa, Special Immigrant Juvenile Status (SIJS) and/or other affirmative remedies.” The legal services include culturally and linguistically appropriate services provided by attorneys, paralegals, interpreters, and other support staff for state court proceedings, federal immigration proceedings, and any appeals arising from those proceedings. For FY 2017-18, CDSS awarded $2.9 million to 20 nonprofit legal organizations across the state, with an expected total caseload of 580 UUMs at a cost of $5,000 each.

Governor’s Proposed Budget for FY 2019-20

The Governor’s proposed budget, released January 10, 2019, includes $75 million in FY 2019-20 and annually thereafter through FY 2021-22 for the immigration-related services program described above. Additionally, the proposed budget includes for $20 million general fund to establish an Immigration Rapid Response Program. These funds will be made available over a three-year period to assist qualified community-based organizations and nonprofit entities providing services during an immigration or human trafficking emergency situation when federal funding is not available. Finally, the proposed budget includes one-time funding of $5 million general fund to address immigration emergencies that occur during FY 2018-19. This $5 million has already been allocated for this purpose with passage of AB 72 (Committee on Budget, Chapter 1, Statutes of 2019).

Related/Prior Legislation:

SJR 29 (Pan, 2018) called upon the President of the United States and the United States Congress to acknowledge that the separation of immigrant children from their families at the border was detrimental to the short- and long-term physical and mental well-being of children.

AJR 46 (Gonzalez, 2018) expressed the California Legislature’s denunciation of the separation of immigrant families and urged President Trump and all relevant federal agencies and departments to cease the implementation of the “zero tolerance” federal immigration policy and to not propose additional inhumane immigration policies in the future.

SR 114 (De León, 2018) expressed the Senate’s denunciation of the separation of immigrant families and calls for just and humane immigration proceedings that: protect family units; ensure the welfare of children and domestic violence survivors; and provide for an accessible asylum process.

SB 29 (Lara, Chapter 494, Statutes of 2017) established, after January 1, 2018, contracting restrictions and new notice and public hearing requirements, as specified, upon local governments and local law enforcement agencies with respect to contracts, building permits, and other official actions involving the federal government, federal agencies, or private corporations seeking to house or detain noncitizens for purposes of civil immigration custody.

SB 54 (De León, Chapter 495, Statutes of 2017) created the California Values Act that limits the involvement of state and local law enforcement agencies in federal immigration enforcement.

AJR 10 (Santiago, Chapter 143, Statutes of 2017) urged the Congress of the United States to support S. 349, the Access to Counsel Act sponsored by Senator Kamala Harris, to ensure that those persons held or detained while attempting to enter the United States, whether at a border crossing or a port of entry, would be guaranteed access to legal counsel.

POSITIONS

Support:

None received

Oppose:

None received

-- END --

Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States, Proclamation (November 9, 2018) <https://www.whitehouse.gov/presidential-actions/presidential-proclamation-addressing-mass-migration-southern-border-united-states/> (as of February 27, 2019). ↑
Id. ↑
Presidential Proclamation and DOJ/DHS Interim Final Rule on Asylum, LexisNexis Legal News Room (November 9, 2018) <https://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/posts/presidential-proclamation-and-doj-dhs-interim-final-rule-on-asylum-nov-9-2018> (as of February 28, 2019). ↑
East Bay Sanctuary Covenant v. Trump, ACLU (February 7, 2019) <https://www.aclu.org/cases/east-bay-sanctuary-covenant-v-trump> (as of February 28, 2019). ↑
Obtaining Asylum in the United States, U.S. Citizenship and Immigration Services (October 19, 2015) <https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states> (as of February 28, 2019). ↑
Id. ↑
Morrissey, K. What Happens When Someone Asks for Asylum at the Border, The San Diego Union-Tribune (April 28, 2019) <https://www.sandiegouniontribune.com/news/immigration/sd-me-asylum-process-20180427-story.html> (as of March 3, 2019). ↑
Id. ↑
Id. ↑
Jordan, M. Ninth Circuit Appeals Court Grants More Protections for Asylum Seekers, The New York Times (March 7, 2019) <https://www.nytimes.com/2019/03/07/us/asylum-seekers-ninth-circuit.html?emc=edit_NN_p_20190308&nl=morning-briefing&nlid=79221310tion%3DtopNews&section=topNews&te=1&login=smartlock&auth=login-smartlock> (as of March 8, 2018). ↑

SR 8

News Coverage: