The County of Santa Clara
California

Report
73852

Held from October 21, 2014 (Item No. 63): Authorize the Office of the County Counsel to provide pro bono legal representation relating to unaccompanied children who have arrived at the border and have been placed in the County. (Office of the County Counsel)

Information

Department:County CounselSponsors:
Category:Report

Body

FISCAL IMPLICATIONS

There are no fiscal implications associated with the recommended action.  If a pro bono representation program is authorized, attorneys from the Office of the County Counsel (Office) will participate in the program on a voluntary basis. This voluntary work will be in addition to attorneys’ existing workloads.  The Office will carefully monitor the work of the volunteer attorneys to ensure that their pro bono work will not impact their work for the County.

REASONS FOR RECOMMENDATION

At its August 5, 2014 meeting (Item No. 30), the Board of Supervisors requested that the Office report back regarding the steps the Office may take to participate in efforts to secure immigration-related legal representation for the surge of unaccompanied children who have arrived at our country’s borders and have subsequently been placed in the County.  Since the Board’s request, the Sonoma County Board of Supervisors has authorized its County Counsel’s Office to provide pro bono legal representation to unaccompanied children in the Sonoma County region.  Other County Boards of Supervisors are considering doing the same.

This is because the need for legal representation for this group of children is great.  Multiple sources have reported that approximately 60,000 unaccompanied children have arrived at United States borders since October 2013.  The exact number of children that have been or will be placed in Santa Clara County is unknown, but data from the federal Office of Refugee Resettlement indicates that the number may be around 450.  A population-based estimate yields an even higher number.  In a report prepared in September, San Francisco’s Budget and Legislative Analyst estimated that a total of 2,130 unaccompanied minors have been placed in the Bay Area and currently lack legal representation.  Given that Santa Clara County represents approximately 25% of the total Bay Area population, this means that approximately 532 unaccompanied children may reside in the County and require legal services.  Unfortunately, the vast majority of these children cannot afford to pay for legal representation.

A working group of South Bay immigration legal service providers has been convened to create a coordinated strategy for providing these children with pro bono legal services.  According to this working group, these children have a paramount need for legal representation to assist them in applying for any immigration relief to which they may be entitled, to protect their rights, and to ensure they are aware of and appear for their hearings in immigration court.  This need far outstrips the existing capacity of local legal service providers – particularly in the three areas listed below. 

In light of this urgent need, we have carefully considered the role our Office could play in ensuring that these unaccompanied children receive the legal representation they need.  At the suggestion of the Board, we initially considered whether the Office could play a useful role in coordinating representation by outside pro bono attorneys.  But based on what we have learned in our meetings with the legal working group, our Office does not appear to have the necessary expertise in immigration law and procedure, nor the ability to train and supervise private pro bono counsel, that are needed to fulfill that role.  Instead, pro bono coordination can be better accomplished by organizations such as Catholic Charities that have state- and nation-wide networks of attorneys and advocates with the relevant expertise. 

We believe that the Office could best serve unaccompanied children by drawing upon the efforts of interested attorneys in the Office who are properly trained to provide specific forms of pro bono representation.  Accordingly, we recommend that the Board authorize the Office of the County Counsel to provide a limited amount of pro bono representation to unaccompanied children residing in the County.  Because the legal community’s understanding of the specific legal needs of unaccompanied children and of the capacity of nonprofit organizations to meet those needs is continuing to evolve, we identify below the categories of pro bono representation that our Office may provide.  If authorized by the Board to provide pro bono representation, the Office would screen potential cases based on need, capacity, and the ability and availability of the Office’s attorneys.  The Office would provide pro bono representation in any or all of the following categories:

1.              Special Immigrant Juvenile Status (SIJS) Cases:

SIJS is the most common type of immigration relief sought by unaccompanied children.  It provides lawful permanent resident status – i.e., a green card – for these children.  To obtain SIJS, an applicant must first obtain a determination from a juvenile, family, or probate court that the minor cannot be reunified with one or both parents due to abuse, neglect, abandonment, or another similar basis in state law, and that it would not be in the child’s best interest to return to his or her country of origin.  Second, after obtaining the state court determination, the minor must file an SIJS petition with United States Citizenship and Immigration Services. 

The Office could provide pro bono representation at either or both stages of the SIJS process.  The first stage could draw upon the Office’s existing expertise and experience obtaining guardianships in probate court.  The Office could also pursue the court findings needed at this stage of the SIJS process in family court for children with one parent residing in the United States.  In light of the relevant expertise and experience of the Office, this stage is likely to require between 15 and 30 hours of attorney time per case. 

The second stage of an SIJS application process typically requires approximately the same amount of time.  This stage could also be completed by an attorney in our Office, or the case could be transferred to a community legal service provider for completion.

2.              Asylum Cases:

Asylum is the second most common type of relief sought by unaccompanied children.  Although preparing an asylum application is typically a fact-intensive process, the legal aspects of preparing an asylum application are not complicated.  And there are attorneys in the Office with experience handling asylum cases.  We believe that attorneys in our Office, with appropriate training, could provide efficient and effective representation in asylum cases.  The best available estimates suggest that an average asylum case requires approximately 50 to 85 hours of attorney time per case over a period of many months.

3.              Motions to Reopen:

As explained in greater detail below, the rapid pace of immigration proceedings involving unaccompanied children and the children’s current lack of legal representation have resulted in many children failing to appear for their initial hearings in immigration court.  Many children are ordered deported in absentia due to their failure to appear.  These children may qualify for immigration relief, but they cannot even apply for that relief unless they file a motion with the immigration court to rescind their in absentia deportation orders and reopen their cases. 

The process of preparing and filing a motion to reopen is relatively simple, and would likely require no more than 10 hours of attorney time per case.  After completing the motion to reopen, an attorney in our Office could transfer the case to a community legal service provider to determine the child’s potential eligibility for relief and represent him or her in applying for that relief, or could continue the representation depending on the nature of the relief the child would be seeking.

In administering the pro bono program, the Office would take all measures necessary to ensure that its work for the County would not be compromised in any way.  First, the Office would survey its attorneys to determine the level of interest.  Any attorney who expressed interest in participating in the program would be required to obtain approval from the Office’s management team.  The management team would only approve the request if the pro bono representation would not affect the attorney’s work for the County in light of that attorney’s existing workload and capacity.  This would be identical to the process the Office already has in place for approving employees’ outside employment requests under Board Policy No. 3.6.  Second, attorneys who voluntarily participated in the program would be required to agree that their pro bono work would not interfere in any way with their work for the County, and the Office’s management team would carefully monitor pro bono cases on an ongoing basis to ensure that the Office’s work for the County would not be affected.  Third, the number of hours each case would require would be spread out over time – likely several months to a year or more.  Finally, the Office would begin with a limited number of cases and would not expand its pro bono work unless it could determine this additional work would not affect its work for the County.   

Additionally, the Office would ensure that its attorneys receive appropriate training at no cost to the County.  The Immigrant Legal Resource Center, a San Francisco-based organization with nationally-renowned expertise in immigration law, has offered to provide training sessions and ongoing support in asylum and SIJS to the Office’s attorneys if the Office receives authorization for a pro bono program.

If authorized to provide pro bono services to unaccompanied children, the Office would also ensure that the representation would not create any risk for the County.  The Office would set up any necessary ethical walls or other protocols to ensure effective and competent representation, and would obtain appropriate insurance coverage by working with nonprofit organizations that are able to extend their coverage to pro bono attorneys working under their supervision.

CHILD IMPACT

The recommended action will have a positive impact on the ability of unaccompanied children placed in Santa Clara County to pursue immigration relief to which they may be entitled.

SENIOR IMPACT

The recommended action will have no/neutral impact on seniors.

SUSTAINABILITY IMPLICATIONS

The recommended action will have no/neutral sustainability implications.

BACKGROUND

Individuals appearing in immigration court have no right to a court-appointed attorney.  According to Syracuse University’s Transactional Records Access Clearinghouse (TRAC) – a leading source of immigration court-related information – nearly half of all unaccompanied children appearing in immigration court in 2014 are unrepresented.  Attorney representation has a dramatic effect on the outcomes children obtain in immigration court.  TRAC data indicates that children are ordered deported in 90% of cases without attorney representation, but in only 50% of cases with attorney representation.  According to the Catholic Legal Immigration Network, attorney representation also has a significant impact on children’s rates of appearance at their immigration proceedings.  These appearances are critical, as any person who fails to appear for immigration court proceedings can be summarily ordered deported in absentia based on the failure to appear. 

Compounding the problems associated with lack of representation, the federal government has initiated “rocket dockets” – i.e., highly expedited immigration court calendars – for unaccompanied children.  In the rocket docket system, a child’s initial hearing in immigration court may be scheduled with just a few days’ notice, drastically reducing the odds that the child will appear for the hearing or have the opportunity to obtain legal representation beforehand.  According to local legal service providers, many children are falling through the cracks and being ordered deported in absentia in very short timeframes.

Despite the great importance of attorney representation in immigration cases involving children, there currently are not enough attorneys available to represent the many unaccompanied children present in the County.  Legal service providers in the area have been overwhelmed by the recent influx of unaccompanied children, and opportunities for these providers to obtain additional funding are limited.  The Governor recently signed legislation appropriating $3 million statewide to award to non-profit legal service organizations that represent unaccompanied minors.  The funding available under this legislation is available only to non-profit legal service providers who meet specific criteria.  Additionally, the majority of this funding is likely to be allocated to Southern California, which is home to a far greater number of unaccompanied children than Northern California.  And even if the full amount were to come to Northern California, it would not be enough to meet the needs of the unaccompanied children placed here.  San Francisco’s Budget and Legislative Analyst has projected that the annual cost to provide legal representation to the 2,130 unaccompanied minors residing in the Bay Area is approximately $6 million – twice the amount the Legislature has appropriated for the entire state.  Recognizing the inadequacy of the proposed state funding, the San Francisco Board of Supervisors has passed an ordinance allocating approximately $1.1 million per year over the next two years for non-profit legal service providers to perform this work.  This amount represents San Francisco’s proportionate share of the overall $6 million estimated cost for the Bay Area.  Finally, some grant funding for legal service providers in the South Bay may be available from the Silicon Valley Community Foundation, but funding levels are uncertain.

The Sonoma County Counsel’s Office, which employs approximately 30 attorneys, recently obtained approval from its Board to allow attorneys from the County Counsel’s Office, and possibly also from the Public Defender’s Office, to provide pro bono representation to unaccompanied children.  Sonoma County will take 8 to 10 cases initially, with the apparent option for expansion at a later date.  It is our understanding that the Alameda County Counsel’s Office is working on a similar proposal.  San Francisco and Alameda Counties have also sought to meet the increased need for immigration court representation by creating dedicated immigration attorney positions in their public defender offices.  The Santa Clara County Public Defender’s Office recently obtained Board approval to hire an attorney who will focus on providing advice regarding the immigration consequences of criminal convictions, but does not employ any attorneys to provide immigration court representation.  In the absence of a County attorney dedicated to immigration work, attorneys in the Office of the County Counsel could help meet the tremendous need for representation of unaccompanied children without any need for additional hiring, any fiscal impact on the County, or any adverse effect on their legal work for the County.

CONSEQUENCES OF NEGATIVE ACTION

The Office of the County Counsel will not be able to participate in regional efforts to provide pro bono legal representation to unaccompanied minors placed in the County.

Meeting History

Oct 21, 2014 9:00 AM Video Board of Supervisors Regular Meeting

Held at request of Supervisor Simitian.

RESULT:HELD [UNANIMOUS]Next: 11/4/2014 9:00 AM
MOVER:Ken Yeager, Supervisor
SECONDER:Dave Cortese, Vice President
AYES:Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian
Nov 4, 2014 9:00 AM Video Board of Supervisors Regular Meeting

Supervisor Simitian requested the Office of the County Counsel create a one-year pilot project and report the number of billable hours credited toward administrative time during the period of the pilot project; and, Supervisor Chavez requested an off-agenda report in nine months regarding the status of the pilot project.

RESULT:APPROVED [UNANIMOUS]
MOVER:S. Joseph Simitian, Supervisor
SECONDER:Cindy Chavez, Supervisor
AYES:Mike Wasserman, Cindy Chavez, Dave Cortese, Ken Yeager, S. Joseph Simitian

Transcript

Nov 4, 2014 9:00 AMBoard of SupervisorsRegular Meeting

 

10:53 AM21st to November 18. 22 was added to the consent calendar. 23 was added to the consent calendar. That brings us to item number 24. The representation of unaccompanied minors. And, Mr. Clerk, you have the lead on this if i'm correct. Yes.
10:54 AMYes, thank you, Mr. President, members of the board. We're bringing deputy county counsel [speaker not understood] to answer any questions the board May have. By way of introduction, let me say we on October 20th presented the board with a report indicating that we would participate in a pro bono program to provide legal assistance to immigrant youth in the immigrant process, legal process. And we would do so using volunteer attorney in our office and that their work would be in this area would be above and beyond their regularly assigned county work. And on October 20th, supervisor simitian asked a very good question, which is how is it that we would be able to assure the board that this work in fact would be done above and beyond that work which is otherwise required and necessary on behalf of the county. We presented some additional information to supervisor simitian about our office's billable hours policy which does create an expectation that attorneys in the office will bill 1900 hours per fiscal year, 100 hours is administrative time. We do bill clients on an hourly basis according to our time sheets that are produced by the attorneys in the office. And that the management staff in our office does regularly monitor the attorneys' billable hours to ensure that they are performing consistent with our expectations and billable hours policy. And it would be through that mechanism that we would ultimately monitor performance in the pro bono area to ensure that it does not interfere with the necessary work on behalf of the county. With that, i'll turn the item over to davita and danny if the board has any additional questions.
10:56 AMThank you for the explanation. I'm sure a lot of members of the public who might be listening to this item at this time might find it interesting we have to go through all of this to approve attorneys doing pro bono work. It's something the general public I think would find intriguing. Supervisor simitian.
Thank you. looking forward to supporting this in a minute. A couple of questions about putting some boundary around it, some understanding, some expectation. Mr. Clerk, my understanding from looking at the materials that you provided is that there is this 1900-hour policy, up to 100 hours of that can be administrative. My understanding further is that any of the work that is done on this pro bono project would be done without those hours counting towards the 1800-hour expectation on direct time service. Is that correct? He
10:57 AMThat is correct.
However, the pro bono hours can be counted as towards the 100 hours of administrative time that is expected as well, yes?
Yes.
So, there is some cost to the county in that if somebody gives 50 hours of time on the pro bono effort, that time might be credited against their 100-hour expectation or up to 100-hour expectation on the administrative side and then those are hours that don't get performed doing some administrative duties for our county. Is that a fair summary?
10:58 AMYou are correct.
Good. how many lawyers do we have in your organization?
Approximately 65.
And do we have any idea at this point how many of them might be interested in participating and kudos to them for their willingness to participate, by the way?
Informally about half a dozen attorneys in the office have approached me saying that they would be interested in helping out with this effort if the board authorizes it. We have not formally surveyed the office yet.
Good. is there any reason, Mr. Clerk, why we can't make this a one year pilot project so we can lay down a marker that we're going to keep track of how this works out? I wish I would say I thought the problem was going to go away at the end of the year. Given our nation's history on immigration reform that seems unlikely frankly. If we made it a one year pilot project, ask you to be able to report back to us on the number of billable hours that were credited against administrative time, I think that would provide some additional assurances as it is just for members of the public who May be worried about losses, resources by the county. If we're talking about a half dozen folks who are going to continue to provide their 1800 hours of direct billable service, I think the impact on the county is pretty modest and again kudos to those who want to take on that additional effort, certainly a function that needs to be performed. We clearly don't have enough folks out there ready to perform it. Would that be a problem if I frame a motion in that way?
10:59 AMIt should not be a problem. the only caveat that I would assert is the possibility that some matter we're involved in could continue beyond the one-year period but we would do our best to ensure we don't take matters on that bump up against or --
11:00 AMI wouldn't even ask you to do that. I think if we're understanding that justice is not always swift in these matters, if there is a matter that's pending just to be clear on the record, it would not be my expectation as characterize thing in a one-year pilot project would anyway sort of bring down a door closing on a case that's pending. I want to be very clear about that.
I see no problem with that.
Is that a motion?
With that understanding, the only observation I would make, I know he it's election day, we have places to go and people to see, I do -- not surprisingly i've been a little persnickety about this. I've pushed back on some of the assumptions. I want to be clear with folk in the county counsel's office. I think the right to due process is so fundamental and it is so patently absent in much of this effort. So, the fact that we've got folks who want to step up and make sure that these kid, whatever the outcome, get the due process I think is sort of fundamental to our system of justice in this country is very gratifying. So, please don't misconstrue the push back on some of the process and some of the technical matters as being anything other than just that. Happy to make the motion in support.
11:01 AMThank you for the motion. supervisor chavez seconds it. I see your light on for discussion.
Yes, I did second the motion. one request I would make is that I concur with supervisor simitian, but I wouldn't want anybody -- any child's case to be shortchanged because of the one-year bracket. One request I would make to all of you, after we've been in this for nine months, to give an off-agenda report back so we have a sense of what's working and not working and that way if there are concerns board members can raise them so we aren't putting a timeline on a child's process. That would be my only caveat to the maker of the motion.
11:02 AMMy understanding from supervisor simitian's motion is that we have a pilot program with a one-year report back, but that it's not intend today intended to prejudice any [speaker not understood].
[speaker not understood] if we had a nine-month report back. My hope and expectation is this will all work seamlessly. Rather than get through the year and have that last-minute scramble we sometimes have, oh, my gosh, oh, my gosh, where have we gone? If we have a three-month report back we can make sure there is a seamless continuation. Reaffirming the observation we both made, it is not in any way shape or form intended to cut off services to someone who is already receiving legal services in a particular matter, asking for a nine-month report back would be something i'd happily incorporate into the motion.
11:03 AMThank you, thank you both. supervisor cortese, and then we have one more person to vote.
A comment made at the association, they have indicated a willingness to help pull together informally or formally these kinds of legal resources. I don't think we should feel like we're in this alone even in this pilot period, but continue to reach out through correspondtions like them that are connected with all 101 cities and nine counties because we have people working even in this county who have signed resolutions and said that they're willing to help with this cause. So, I just -- i'm trying -- not to make things bigger or more complicated, but to reduce the load on the county at some point by sharing the load with the others that are around us. I think it would help they've indicated that.
11:04 AMThank you. and all votes have been cast and that passes unanimously, madam clerk. I have no speaker cards.