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