Case No. 8233757
IN THE SUPREME COURT OF THE
STATE OF CALIFORNIA
BIANKA M., SUPREME COURT
Petitioner, F IL E D
Vv. APR 19 2017--
THE SUPERIOR COURT OF CALIFORNIA Jorge Navarrete Cierk
FOR THE COUNTY OF LOS ANGELES,
_ Respondent; — Deputy
GLADYSM.,
Real Party in Interest.
SecondDistrict Court ofAppeal
Case No. B267454
Los Angeles County Superior Court
The Honorable Holly J. Fujie
Civil Case No. BF052072
APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND
BRIEF OF THE LEGAL SERVICES FOR CHILDREN, IMMIGRATION
CENTER FOR WOMEN AND CHILDREN, LAW FOUNDATION OF
SILICON VALLEY, AND LAWYERS’ COMMITTEEFORCIVIL
RIGHTS OF THE SAN FRANCISCO BAY AREAASAMICT CURIAE IN
SUPPORT OF PETITIONER BIANKA M.
Daniel Grunfeld (Bar No. 128494) Thomas M.Peterson (Bar No. 096011)*
David Sean Cox (Bar No. 181232) MORGAN,LEWIS & BOCKIUS LLP
Nicolette L. Young (Bar No. 280810) One Market Street, Spear Tower
Lauren S. Schwartz (Bar No. 312253) San Francisco, CA 94105
MORGAN,LEWIS & BOCKIUS LLP Telephone No. (415) 442-1000
300 South Grand Avenue, 22nd Floor Facsimile No. (415) 442-1001
Los Angeles, CA 90071
Telephone No. (213) 612-2500
Facsimile No. (213) 612-2501
ATTORNEYS FORAMICI CURIAE LEGAL SERVICES FOR CHILDREN,
IMMIGRATION CENTER FOR WOMENAND CHILDREN, LAW
FOUNDATIONOFSILICON VALLEY, AND LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA
TABLE OF CONTENTS
Page
STATEMENT OF INTEREST AND PROPOSED AMICI BRIEF............. I
INTRODUCTION ooo. .oceecccccecccccc cece ceeeececeesseesscceceeesseececeeesssesessesestesisessssesees4
ARGUMENT....... ee ccccccceeeeecceeeeeesnceeeceteceesessntenseaneesseeecsscacceeeeeeesneeeeeaeeeeeneeeeeees 6
I, STATUTORY BACKGROUND......ooccccecccccccccesecesseesseeseteeesseeees 6
If. SIJS APPLICANTS ARE A VULNERABLE
POPULATIONOF “ABUSED, NEGLECTED, AND
ABANDONED CHILDREN”... o.eccceeeecceeeeseeesecesseceseeenseeesssenssees 8
A. The Court OfAppeal’s Bianka M. Decision HasDirectly
AndInjuriously Impacted The Population Of Vulnerable
Immigrant Children Congress Intended To Protect............ 13
B. A Requirement That Documents Be Translated into the |
Foreign Language of the Absent Parent Would Be »
BurdensOmMe 00.0.0... eeeeeeeeeeeeeeseeeneeeeenceeeseeeeessseeeseeseeeseceseeeseres 17
CONCLUSION(00... cccccsescsssssseseesssesssesseceesesescsecseseseseseecseseecscscsesnvesseeseansesavees 17
TABLE OF AUTHORITIES
Page(s)
CASES
Bianka M. v. Super. Ct.
(2016) 245 Cal.App.4th 406.0000... cccccccccccscccccseceesseeceecereecsseeeaees passim
Bowen v. Board ofRetirement
(1986) 42 Cal.3d 572 ooo ccccccccccccccccsessesceeeccessessecessscececccssssseecsenseseversnarees7
In re Israel O.
(2015) 233 CalApp.4th 279 .......cccceccccccccccessccceesscesesseessssecssssscensssesssseseres 6
In re YM.
(2012) 207 Cal.App.4th 892 000...ccceee cseseeeeeeeeeeeeeneaseetsteeseeteeneee lS
Leslie H. v. Super. Ct.
(2014) 224 Cal.App.4th 340.00... ccccccseseccesssceeccesecssssesssessssseessncensaes6
People v. Super. Ct.
(1979) 24 Cal.3d 428 ooo. cccccccccccssccssseesessseceseesecescseccssssessesseeensneversereeeeas7
STATUTES
8 U.S.C. 1101(a)(27)()Gii) eceeusceeeeeceessseessaececesussceeessesseseeceeeeessesssetensessessnesens6
8 U.S.C. § LILO (a)(Q7) (J). nec ccccccccccsccccssseecsnseeeeesseceesscecsesceserssscessvensaeees 4,6
8 ULS.C. § L153 (D)(4)occcc cccesecceecesseeesssseeeeenseeesssecessesesssssssssseseseeeresees 6
8 U.S.C. § 1427(a) ooo. cececccccccccesscceeesesseeesseecessseesesssscesececssssseeessasesasenseceeeeas 13
Code Civ. Proc., § 155, subd. (D)(1) .....eceee ccecesscceecessserecessessessersnecesess7
Code Civ. Proc., § 155, subd. (C) .......cecceccccccessecceseseeseecesseeseresscecssesesesseeeees7
Code of Civil Proceduresection 155 oo... cccccessesccceeeeseceeeesenees 4,5,6,7
Court 8.520(f), the Legal Services for Children, Immigration
Center for Women and Children, Law .........0.00.cceccceecscceeseccccceceececececeess 1
Prob. Code § 1514, subd. (b)(1)-(2) .... cececece cesescecccesesssaseesseessssesessneeens4
Welf. & Inst. Code §§ 325, 601, 650 oo...ccccceecesececscesesecesseseeseeeseseeeees4
ll
OTHER AUTHORITIES
8 C.F.R. § 204.11(d) (2014). Bianka M. voeccccccccccccccccccccsscesstessscsecstesscsecaee 4,6
76 Fed. Reg. at 54979 ooeeccescccssesscssceseesscessessesescsssvssvesevsessacsussssaesseeateserseses 6
CAL. RULES OF COURT, RULE8.204(C)(1)...cccceccecccceecesssescsssseseeeees I
A Guide to Children Arriving at the Border: LAWS wiicecccccccscsssccsscsecessessceeee 12
Dennis Stinchcomb & Eric Hershberg, Unaccompanied
Migrant Childrenfrom Central America: Contexts,
Causes andResponses (2014) at 16 woceeccesccceecccsscceessseeseeees 8, 10, 11, 12
Gender & Refugee Studies, Childhood and Migration in
Central andNorth America: Causes, Policies, Practices
and Challenges (February 2015) at ii.....eccecccecessccesssesesscsscsscesceseceseee 5
Marguerite Cawley, Youth in LatAm Increasingly
Perpetrators, Victims of Violent Crime ...ccccccccccccsccssssesscsssecsssescsseesseseces 11
Refugees, Children on the Run: Unaccompanied Children
Leaving Central America and Mexico and the Needfor
International Protection (March 12, 2014), at 28 .....eeccsccscsscssseeeess 9, 10
Refugees, Deported Children Face Deadly New Dangers on
Return to Honduras (Jan. 29, 2015) ......ccccccecsccsssssccsesssscsssessessecessecseseeee 12
William A. Kandelet al., UnaccompaniedAlien Children:
Potential Factors Contributing to Recent Immigration
(July 3, 2014), at 9 ooceesecssescesecssssessecssesecssssessessecasesessessseseeassnase 10
ili
Pursuant to California Rule of Court 8.520(f), the Legal Services for
Children, Immigration Center for Women and Children, Law Foundation of
Silicon Valley, and Lawyers’ Committee for Civil Rights of the San
Francisco Bay Area(collectively, “amici’’) respectfully request permission
to file the accompanying brief as amici curiae in support of Petitioner,
Bianka M.!
STATEMENT OF INTEREST AND PROPOSED AMICIBRIEF
Legal Services for Children (LSC) was founded in 1975 as a
nonprofit organization dedicated to advancing the rights of youth. LSC’s
mission is to ensure that all children in the San Francisco Bay Area have an
opportunity to be raised in a safe and stable environment with equal access
to the services they need to become healthy and productive adults.
The Immigration Center for Women and Children (ICWC) was
founded in 2004 as a nonprofit organization committed to providing
affordable immigration services to underrepresented immigrants in
California.
Legal Advocates for Children and Youth (LACY)is a program of
the Law Foundation of Silicon Valley. The Law Foundationis a nonprofit
organization dedicated to using the law to address problemslinkedto social
issues like poverty, discrimination, and child abuse and neglect.
The Lawyers’ Committee for Civil Rights (LCCR) of the San
Francisco Bay Area has been working to advance, protect, and promote the
' No party or counsel for any party authoredthis brief, participatedin its
drafting, or made any monetary contributions intended to fund the
preparation or submission of the proposedbrief. See Cal. Rules of Court,
rule 8.520(f)(4)(A). The Legal Services for Children, Immigration Center
for Women and Children, Law Foundation ofSilicon Valley, and Lawyers’
Committee for Civil Rights of the San Francisco Bay Areacertify that no
person or entity other than amici and their counsel authored or made any
monetary contribution intended to fund the preparation or submission ofthe
proposedbrief.
rights of individuals of color, low-incomepersons, and immigrants since
1968.
Amiciare deeply committed to serving children. Amici routinely
represent youth in probate and family court proceedings who have endured
horrific experiences in their home countries and are eligible for Special
Immigrant Juvenile Status (“SIJS’’) because they have been abused,
abandoned, or neglected. Importantly, in amici’s experience, a proceeding
in family court under the Uniform Parentage Act (“UPA”) is the only
procedural vehicle by which children whoare residing with one parent can
seek SIJS findings in California courts.
Amicihave a strong interest in the Court’sreversal of the Court of
Appeal’s decision becausethat decision effectively, and incorrectly, slams
the doors of the family court (and, thus, all California courts) on an entire
class of SUS eligible children. It creates daunting barriers to SIJS that are
irreconcilable with the path to legal residency laid out by Congress and the
California Legislature. Amici are united in the belief that all children have
the right to be protected by our legal system, regardless oftheir
immigration status. Accordingly, amici submit this brief to offer context to
the Court of the real detrimental effect the Court ofAppeal’s decision has
had on otherwiseeligible children andto join in the call for reversal of the
Court of Appeal’s faulty legal analysis.
Dated: April 6, 2017 Respectfully submitted,
MORGAN,LEWIS & BOCKIUS LLP
Thomas M. Petbrson \
Attorneys for Amici Curiae Legal
Services for Children, Immigration
Center for Women and Children,
Law Foundation of Silicon Valley,
and Lawyers’ Committee for Civil
Rights of the San Francisco Bay
Area
AMICI CURIAE BRIEF
INTRODUCTION
The Court of Appeal’s decision in Bianka M. effectively allows
California family courts to refuse to make SUS findings under Code of
Civil Procedure section 155 because the parentage of the child’s non-
custodial alleged parent has not been adjudicated. The Court of Appeal’s
decision in Bianka M. erects nearly impossible hurdles for Bianka and
similarly situated children who seek to reunify with one parentlegally
residing in California through a custody proceeding in the family court —
which, for children like Bianka seeking to reunify with a parent, is the only
avenueto obtain SIJS findings.”
Initially, in order to secure SIJJ status, a child must provide an order
from a state court finding that she “cannot reunify with one or both parents
due to abuse, neglect, [or] abandonment....” 8 U.S.C. § 1101(a)(27)(J); 8
C.F.R. § 204.11(d) (2014). Bianka M.holds that these findings cannot be
made in a Uniform Parentage Act proceeding before a determination of
parentage is made. According to Bianka M., this meansthat the absent
parent — the one who“abuse[d], neglected, [or] abandoned”the child —
should be joined as a party. But, of course, a California court will often be
unable to assert personal jurisdiction over an absent parent who maybe ina
foreign country. The effect is to slam the doors of the family court (and,
thus, all California courts) on the child seekingrelief.
Amici respectfully submit that the Kafkaesquecircularity of the
* Because Bianka currently resides with her mother in a loving and safe
home, she cannot obtain SIJS findings by seeking appointmentof a
guardian. Prob. Code § 1514, subd. (b)(1)-(2). In theory, Bianka and
similarly situated children could obtain SYS findings in delinquency
proceedings but(i) that would require misconductby the child, and(ii) it is
the State, not the child, that would initiate such proceedings. Welf. & Inst.
Code §§ 325, 601, 650.
result prescribed by Bianka M. cannot be squaredwith the intent of either
Congress in making children eligible for Special Immigrant Juvenile Status
or of the California Legislature in enacting, and recently clarifying, Code of
Civil Procedure section 155. The purposeof these lawsis to offer
protection to the most vulnerable among us: children who have been
abused, abandonedor neglected by the very people who are supposed to
care for them. Many of these children are unaccompanied immigrant
children who havefled abuse, abandonmentandother horrors in their home
countries for the promise of something better here. In California, most such
children are from Mexico and Central America where “childhood has
become synonymous with witnessing or suffering violence.” University of
California Hastings Center for Gender & Refugee Studies, Childhood and
Migration in Central and North America: Causes, Policies, Practices and
Challenges (February 2015)atii.’
The Bianka M. decisionis already causing California family courts
to withhold SIJS findings and expose manychildren to expulsion without
the benefit of the SIJ procedures that Congress and the California
Legislature intended them to have. Family courts should limit theirrole to
the fact-finding procedure codified in Code of Civil Procedure section 155
and designed to protect abandoned, neglected, and abused immigrant
children throughout our State.
> Available at:
http://cgrs.uchastings.edu/sites/default/files/Childhood_MigrationHumanR
ightsEnglish_1.pdf.
ARGUMENT
I. STATUTORY BACKGROUND
Congress created Special Immigrant Juvenile Status in 1990 to
provide a path to lawful permanentresidency for vulnerable children as to
whom it would not be in their best interest to return to their home country.
See 8 U.S.C. § 1153(b)(4) (allocating a percentage of immigrant visas to
special immigrants); 8 U.S.C. § 1101(a)(27)(J) (defining Special Immigrant
Juvenile Status). “[T]he purpose of SIJ status [1s] to ‘protect the applicant
from further abuse or maltreatment by preventing him or her from being
returned to a place whereheorshe is likely to suffer further abuse or
neglect’ [citation.]” Jn re Israel O. (2015) 233 Cal.App.4th 279, 291,
quoting Marcelina M.-G.v. Israel S. (N.Y. App. Div. 2013) 112 A.D.3d
100, 113. In 2008, Congress amended the SIJ provisions to broaden their
applicability; those amendments clearly indicate Congress intended to
| “expand eligibility” for children seeking SIJS relief. See Specialized
Immigrant Juvenile Petitions, 76 Fed. Reg. at 54979; Leslie H. v. Super. Ct.
(2014) 224 Cal.App.4th 340, 351. |
Congress directed states to first make the SIJS findings necessary for
the child to apply to United States Citizenship and Immigration Services for
SIS. 8 U.S.C. 1101(a)(27)(J)Gi); 8 C.F.R. § 204.11(d) (2014). A child
petitioning for SIJ status under federal law must provide a state court order
containing findingsthat he or sheis: (1) in the custody of a court-appointed
agency, guardian or other individual; (2) cannot reunify with one or both
parents due to abuse, neglect, abandonmentor other similar basis under
state law; and (3)it is not in his or her best interest to return to the home
country of the child or the parents. Id. In accordance with this framework,
California’s Legislature enacted Code of Civil Procedure section 155 in
2014, instructing courts that “[i]f an order is requested from the superior
court making the [SIJS] findings, and there is evidence to support those
findings, which mayconsistof, but is not limited to, a declaration by the
child whois the subject of the petition, the court sha// issue the order .. . of
the [SIJS] findings ... .”” Code Civ. Proc., § 155, subd. (b)(1) (emphasis
added).* —
While amici submit that the Legislative intent behind Codeof Civil
Procedure section 155 was abundantly clear when Bianka M. wasdecided,
the Legislature removed any doubt last year when it clarified the statute to
provide: |
The asserted, purported, or perceived motivation of the
child seeking classification as a special immigrant
juvenile shall not be admissible in making the findings
under this section. The court shall not include nor
reference the asserted, purported, or perceived motivation
of the child seeking classification as a special immigrant
juvenile in the court’s findings underthis section.
Code Civ. Proc., § 155, subd. (c). Of course, as a “clarification” of
existing law, the express directive of subdivision (c) applies retroactively to
the Court of Appeal’s decisionand compels the conclusion that the Court of
Appealandtrial court each erred in speculating as to the bonafides of
Bianka’s application for SIJ Status. See, e.g., Bowen v. Board of
Retirement (1986) 42 Cal.3d 572, 588 n.3 (“An exception to the general
* As suggested by the statute’s use of the mandatory “shall,” the legislative
history of section 155 makesclearthat a trial court must issue a SIJS order
if there is evidence to support the requested findings. See Legislative
Counsel’s Digest, SB 873 (September 27, 2014) (“This bill would provide
that the superior court . . . has jurisdiction to make judicial determinations
regarding the custody andcare ofjuveniles .... The bill would require the
superior court to make an order containing the necessaryfindings
regarding special immigrantjuvenile status pursuanttofederallaw,if
there is evidence to support thosefindings.”) (emphasis added). Asthis
Court has observed,“[i]t is reasonable to presume”that the Legislature’s
enactment ofa statute is made “with the intent and meaning expressed in
the Legislative Counsel’s digest.” People v. Super. Ct. (1979) 24 Cal.3d
428, 434.
rule that statutes are not construed to apply retroactively arises when the
legislation merely clarifies existing law.”) (internal quotations and citations
omitted).
In short, both Congress and the California Legislature have
recognized that SIJ status is designed to protect some of the most
vulnerable children in our society — immigrant children who havefaced
parental abandonment, abuse, or neglect and whoare threatened with
deportation to a country where they may previously have faced extreme
trauma and where they may be subject to future harm if repatriated.
Reflecting the profound public interest in the welfare of such children,the
Legislature has declined to afford California trial courts with discretion to
deny SIJ status when there is evidence supporting the requested findings.
I. SIS APPLICANTS ARE A VULNERABLE POPULATION
OF “ABUSED, NEGLECTED, AND ABANDONED
CHILDREN”
The Central America~Mexico—United States migration corridor has
seen a near tenfold growth in child migration in recent years. Childhood
and Migration ati. According to the Office of Refugee Resettlement, since
October 2013, more than12,000 children apprehended by U.S. Customs
and Border Protection (CBP) have been released to a sponsor in California.
Office of Refugee Resettlement, Unaccompanied Children Released to
Sponsors by State (March 25, 2016).”
In large part, this surge of immigrant children is due to the fact that,
in Mexico and Central America, “childhood has become synonymouswith
witnessing or suffering violence.” Childhood and Migration at ii. In all of
these countries, both societal and household violence are primary reasons
for migration. Dennis Stinchcomb & Eric Hershberg, Unaccompanied
> Available at http://www.acf.hhs.gov/programs/ort/programs/ucs/state-by-
state-uc-placed-sponsors.
Migrant Children from Central America: Contexts, Causes and Responses
(2014), at 16.° See also Childhood and Migrationat 3 (“Children and
adolescents primarily flee two types of violence: violence perpetrated by
organized criminal syndicates and violence experienced in the home.”). In
a recent study, sixty-five percent of the 200 Honduranchildren interviewed
said that violence was the main reason they decided to migrate. /d. atiii.
Household violenceis pervasive. In El Salvador, “7 out of 10
Salvadoran children and adolescents suffer[] physical violence in the
home,” whichis one of the “leading reasons Salvadoran children and
adolescents leave home.” Childhood and Migration, at v. “Severe physical
punishment, including the use of blunt objects, is a commonand accepted
practice [and] [t]he majority of sexual violence against girls (and boys)
occurs in their own homesat the handsoffathers or stepfathers . .. . There
is also a high level ofpsychological abuse in households and schools.” Jd.
at 179. In Guatemala, between 2003 and 2012, intrafamilial violence grew
by more than 500 percent. id. at viii. In addition, many cases go
unreported.
In interviews conducted by the United Nations High Commissioner
for Refugees (UNHCR) with unaccompanied children from El Salvador,
Guatemala, and Honduras, nearly one-fourth (23 percent) of children
reported some form of abuse in the home,including physical abuse,
emotional abuse, sexual abuse, sibling violence, intimate partner violence
and abandonment. United Nations High Commissionerfor Refugees,
Children on the Run: Unaccompanied Children Leaving Central America
and Mexico and the Needfor International Protection (March 12, 2014), at
° Available at http://www.peacepalacelibrary.nl/ebooks/files/388 113561 pdf.
9
28.’ Twenty-one percentofthe children reported that they had suffered
abuse and violenceintheir homesbytheir caretakers. /d. at 6.
Young girls particularly face a high risk of abuse and violence. In
the UNHCRstudy, high percentages of the Salvadoran, Honduran, and
Guatemalan girls reported abuse in the home. Children on the Run at 28-
29. Sexual abuse in the homeis a rampant problem. In El Salvador, “the
vast majority of the sexual aggressors (90% . . .) are close male relatives of
the youth — uncles, godparents, stepfathers, fathers, and grandfathers [and
so] sexual abuse of children regularly goes unreported to keep family
members from facing any prospect — howeverunlikely — of prosecution.”
Childhood and Migration at 180. In El Salvadorin 2012, 12 percentoffirst
pregnancies of girls between the ages of 10 and 19 resulted from sexual
abuse by a family member. U.S. Department of State, El Salvador 2014
Human Rights Report (2014), at 18-19.°
Abandonmentis also on the rise. Thousands of children and
adolescents have been left by parents. Typically, other family members
provide informal care for children in this situation, but no onehaslegal
responsibility for them. In turn, these “caregivers” themselves may also
abuse or neglect them. Childhood and Migration at i11-iv. Indeed, parental
__ loss — especially separation from a mother — increases a child’s
vulnerability to different forms of abuse in the home. Unaccompanied
Migrant Children, at 22. See also William A. Kandelet al.,
Unaccompanied Alien Children: Potential Factors Contributing to Recent
Immigration (July 3, 2014), at 9 (“[C]hildren whoare left behind as a result
of one or both parents migrating abroad are more vulnerable to abuse. This
” Available at
http://www.unhcrwashington.org/sites/default/files/1_UAC_Children%200
n%20the%20Run_Full%20Report.pdf.
8 Available at http://www.state.gov/documents/organization/236900.pdf.
10
is especially true of children whose mothers have migrated.”).”
To escape this violence, many children taketo thestreets.
Childhood and Migration at iii. In the Honduran city of San Pedro Sula,
for instance, 5,000 children under the age of 18 sleep on thestreets.
Marguerite Cawley, Youth in LatAm Increasingly Perpetrators, Victims of
Violent Crime, InSight Crime (January 24, 2014).'° A 2013 study found
that more than half of the homeless children and adolescents living in the
Hondurancities of Tegucigalpa and San Pedro Sula had suffered different
forms of mistreatment in their homesthat led to their homelessness.
Childhood and Migration at 81.
Unfortunately, these countries also lack the institutional capacity to
help vulnerable children. Although several of these countries have enacted
laws regarding children’s rights and protection from harm,in practice these
laws are not enforced. Childhood and Migration at iv. Moreover, welfare
agencies in these countries often fail to respond due to weak infrastructures
and enforcement powers. Jd. ativ. “El Salvador, Guatemala, and
Honduras profoundly and systematically fail to carry out essential duties
required of them as States parties to the Convention on the Rights of the
Child.” /d. at 12. In addition, crimes against children result in very few
convictions. Unaccompanied Migrant Children at 24. An estimated 93
percent of crimes against youth in Honduras end withoutarrest of the
perpetrators. /d. Between January 1, 2013 and August 28, 2013, the
Salvadoran Attorney General’s Office reported that out of 1,445 cases of
alleged rape ofminors, only 37 resulted in convictions. Jd. During roughly
the sameperiod, the Public Ministry of Guatemala reported 2,639
complaints of sexual assault or rape against minors, with only 11
” Available at https://fas.org/sgp/crs/homesec/R43628 .pdf.
' Available at http://www.insightcrime.org/news-analysis/rise-in-
colombia-mexico-youth-crime-highlights-regional-trend.
1]
convictions. /d. Resource-deprived police forces and courts are simply
unable — and often unwilling by the nature of their complicity with
organized crime groups — to provide protection to children and families. /d.
Faced with this violence andabuse, and having no otherplace to
turn, many children immigrate to the United States rather than remain under
intolerable circumstances. They must successfully seek and obtain some
form of immigration status to prevent deportation. See American
Immigration Council, A Guide to Children Arriving at the Border: Laws,
Policies and Responses (Jun 26, 2015).'' Congress created SIJS precisely
for this purpose — to provide immigration status to vulnerable populations
of children confronted with abuse, abandonmentor neglect at home.
Consequently, the number of SIJS applications that the federal government
has received reflects the increasing violence in these countries. In 2010,
USCISreceived 1,646 SIJS petitions; that numbergrew to 5,776 in 2014,
and grew again to 11,500 in 2015. U.S. Citizenship and Immigration |
Services, USCIS Special Immigrant Juveniles Form I-360 Performance
Data (Fiscal Year 2015, 3rd Qtr).” In the first quarter of fiscal year 2016
alone, USCIS has received more than 4,000 petitions. /d. Without SIJS or
someotherrelief, these children face deportation back to their countries,
where they face threats, extortion, violence, and execution. United Nations
High Commissioner for Refugees, Deported Children Face Deadly New
Dangers on Return to Honduras(Jan. 29, 2015). '°
Accordingly, SIJSis a critical mechanism in protecting this
vulnerable population.
'' Available at http://immigrationpolicy.org/special-reports/guide-children-
arriving-border-laws-policies-and-responses.
'? Available at https://www.uscis.gov/tools/reports-studies/immigration-
forms-data/data-set-form-i-360-petition-special-immigrant-juveniles.
'3 Available at http://www.unhcr.org/54ca32d89.html.
{2
A. The Court Of Appeal’s Bianka M. Decision Has Directly
AndInjuriously Impacted The Population Of Vulnerable
Immigrant Children Congress Intended To Protect
By definition, those eligible for SIS are a vulnerable population of
“abused, neglected, and abandoned”children. Jn re Y.M. (2012) 207
Cal.App.4th 892, 915; see 8 U.S.C. § 1427(a). The followingstories,
drawn from the clients of amici and their sister agencies, illustrate how the
Court of Appeal’s Bianka M. decision,if it stands, will harm children in the
class Congress intendedto protect.
In the first example, an abused, abandoned boy (“Rene”)
successfully petitioned the superior court for SIJS findings before Bianka
M. was decided. If this deserving petitioner had sought relief after Bianka
M.was decided, he almostcertainly would have been unsuccessful. In the
second, third, and fourth examples, a boy (Fabricio), a girl (Jaqueline), and
a boy (Santos) were denied SIJS findings because ofBianka M., even
though they presented evidence as compelling as that submitted by Rene.
Although the court has now made the requisite SIJS findings in Santos’s
case, children like Santos will not be safe until the Bianka M.decision is
reversed. |
e Rene
Rene wasborn in El Salvador where he lived with his mother and
father, who were never married. Rene’s mother wasphysically and
emotionally abusive to, and neglectful of, both Rene andhis older
brother. When Rene wasthree, his parents separated and his mother gave
Reneto his father to raise. Rene does not rememberhis mother calling or
visiting as he was growing up. When Renewasfive, his father went to the
United States to work and Rene remainedbehindwith his paternal
grandmother. Rene was fifteen when his older brother died and his
grandmother could no longer care for him. Rene cameto the United States
13
to rejoin his father. Because Rene had been abused, neglected, and
abandonedbyhis mother, he petitioned the superior court for a finding of
paternity and SIJS findings. Rene’s mother was located and served
personally in El Salvador but she refused to accept the paperwork, stating
that Rene washis father’s responsibility. In 2015, the family court made
findings of paternity and custody as well as the requisite SIJS findings as to
Rene’s mother’s abuse, neglect and abandonment. Reneis now able to
remain with his father, who has been his sole provider for mostofhislife.
e Fabricio
Fabricio was born 1n El Salvador wherehe lived with his mother and
sister. Fabricio’s father is a stranger, who never supported Fabricio
financially or emotionally and who has had no communication with
Fabricio outside a few phonecalls. When Fabricio was seven, his mother
went to the United States, leaving Fabricio in the care of his paternal aunt.
His aunt physically abused Fabricio on a regular basis, hitting him with
belts, cables, and sticks. When Fabricio was aboutfifteen, gang members
. beganto harass and threaten him on his way to school and several months
later about ten men stormedinto his aunt’s home andheld the familyat
gunpoint, ransacked the home, beat and kidnapped his uncle, and warned
the family not to call the police. Underthe continual threat of violence
both in and out of his home, Fabricio escaped to the United States in the
hope of reuniting with his mother. Fabricio filed a parentagepetition and a
request for SIJS findings. The court declined to make the SIJS findings
“because there has not been a judicial determination ofparentage ofother
parent [JC].” (citing Bianka M.).'* Fabricio is happy in the United States
with his mother, and he likes going to school. He wants to continue
studying to become an engineer so he can have. a goodlife. Unfortunately,
'4 Motion ofAmici Curiae in Support of Petitioner Bianka M. Requesting
Judicial Notice (“RJN”), Ex. A, 9.
14
without the predicate factual findings necessary for SIJS relief, Fabricio
could be deported to El Salvador, where he has nowhere to go and no one
to care for him.
e Jaqueline
Jaqueline was born in Guatemala whereshe lived with her mother.
When Jaqueline was two, her mother cameto the United States, leaving
Jaqueline in the care of her maternal grandmother and grandfather.
Jaqueline has never had relationship with her alleged father, whom she
only has met once, briefly, when she was eight. She has not seen or spoken
to him sincethat fleeting encounter and he has never supported Jaqueline
financially or emotionally. When Jaqueline wasthirteen, she became
pregnant. Her son’s father was abusive to her. Her grandmother becameill
and there were no other family membersto care for Jaqueline or her son, so
she came to the United States to live with her mother. Jaqueline filed a
parentage petition requesting a maternity finding, sole custody to her
mother and a request for SIJS findings. Jacqueline did not know where her
alleged father wasliving, but her attorneys were able to locate him in
Guatemala and serve him with notice of the proceedings in California.
Although her alleged father expressed nointerest in the proceedings when
he was providednotice, the trial court declined to make the SIJS findings
because her “alleged biological father is an indispensable party who should
be joined as a respondentin this case, pursuant to the Bianka M. case.”!°
Jaqueline is happy in the United States and feels safe here. Jaqueline is
able to attend high school and hopesto graduate, go on to college, and
become a doctor. Unfortunately, without the SUS factual findings,
Jaqueline cannotavail herself of SYS relief and could be forced to return to
Guatemala, where she has no oneto support and care for her and her young
'° RIN, Ex. B, § 2.
15
son.
e Santos
Santos was born in El Salvador where he lived with his mother.
Santos has never met or communicated with his father, who immediately
abandoned him upon learning that Santos’s mother was pregnant. Santos
does not even know his father’s last name. When Santos was oneyearold,
his mother movedto the United States, leaving Santosin the care of his
grandparents in El Salvador. There, Santos grew up in a town where gangs
held more powerthan the police. To escape the constant threat of gang
violence, Santos cameto the United States and reunited with his mother.
Hefiled a parentage petition and a request for SIJS findings. The court
declined to make them because “[t]he child’s fatheris not a party to this
action.”'°® Santos is happyliving in the United States with his mother, his
stepfather, and his four youngerhalf-siblings. Santosis also able to attend
high school with hisfriends, and he particularly enjoys his English class.
Unfortunately, without the SIS factual findings, Santos could not obtain
SIJS relief and could be deported back to El Salvador, where gang violence
is rampant and his grandparents are too old to protect him. Although the
court eventually made the requisite SUS findings, it did so only after pro
bonocounsel petitioned the Court of Appeal, seeking a writ of mandamus
directing thetrial court to changeits ruling. Unfortunately, not all children
will have the benefit of such extensive pro bono resources. Without the
advantageofthis costly assistance, Bianka M. will foreclose SUS to these
children—even if they present evidence as compelling as that submitted by
Santos.
* * * 2K * *
As these few of manyavailable examplesillustrate, the Bianka M.
'® RIN, Ex. C, 97.
16
decision will continue to seriously affect the lives of children in California
that Congress sought to protect.
B. A Requirement That Documents Be Translated into the
Foreign Language of the Absent Parent Would Be
Burdensome
Respondent’s brief proposes a new,additional requirement for SIJS
applicants: that documents should betranslatedinto the foreign language
of the absent parent. Specifically, Respondent’s brief advocates that the
Court “should require Bianka to serve [Jorge] with copies of the relevant
documents, including the requested SIJ status findings, translated into
Spanish.” Respondent’s Brief at 26. This stems from the Court of
Appeal’s observation that “[t]here is no indication in the record these legal
documents were translated from English into Spanish.” Bianka M. v.
Super. Ct. (2016) 245 Cal.App.4th 406, 418.
The Court should decline to impose such an onerous requirement.
To impose such a broad rule would be incredibly burdensomefor
unaccompanied minors, particularly if the cost of the translation should fall
on the applicant, and particularly if all of the documents attached to the
notice should also needto be translated. Most SIS applicants are indigent
and cannotafford certified translations. Some speak raredialects like
Kanjobal and K’iche’, making the burden even greater. The Court should
decline to imposea rule requiring that the notice and related documents
mustbe translated into the language of the absent parent.
CONCLUSION
Aspetitioner and other amici have ably demonstrated, there are
substantial reasons to conclude that the Court of Appeal erred in Bianka M.
Reversal is urgently needed and important. Thelives and futures ofmany
childrenareat stake.
17
Dated: April 6, 2017 Respectfully submitted,
MORGAN, LEWIS & BOCKIUS LLP
By:
18
Thomas M. Peterson
Attorneys for Amici Curiae Legal
Services for Children, Immigration
Center for Women and Children,
Law Foundation ofSilicon Valley,
and Lawyers’ Committee for Civil
Rights of the San Francisco Bay
Area
CERTIFICATE OF WORD COUNT
(CAL. RULES OF COURT, RULE8.204(C)(1))
I hereby certify that pursuant to California Rules of Court, Rule
8.204(c)(1), the attachedbrief, including footnotes, but excluding the
caption pageandthis certification, contains 4,661 words, as counted bythe
Word 2010 word-processing program used to generate the bri
Thomas M. Peterson
Attorneys for Amici Curiae Legal
Services for Children, Immigration
Center for Women and Children,
Law Foundation ofSilicon Valley,
and Lawyers’ Committee for Civil
Rights of the San Francisco Bay
Area
CERTIFICATE OF SERVICE
I, Davace Chin, declare that I am a resident of the State of
California, County of SanFrancisco. I am overthe age of eighteen years
and nota party to the within action; my business addressis Morgan,
Lewis & Bockius LLP, One MarketStreet, Spear Tower, San Francisco,
California 94105.
On April 6, 2017, I caused the following documentto be served:
APPLICATION FOR LEAVE TO FILE AMICI CURIAE BRIEF AND
BRIEF OF THE LEGAL SERVICES FOR CHILDREN,
IMMIGRATION CENTER FOR WOMENAND CHILDREN, LAW
FOUNDATIONOF SILICON VALLEY, AND LAWYERS’
COMMITTEE FOR CIVIL RIGHTS OF THE SAN FRANCISCO
BAY AREAASAMICI CURIAE IN SUPPORTOF PETITIONER
BIANKA M.
via U.S. Postal Service — by placing the documentlisted above in a sealed
envelope with postage thereon fully prepaid, in the United States mail at
San Francisco, California addressed as set forth below:
Joshua C. Lee
Miller Barondess, LLP
1999 Avenueofthe Stars, Suite 1000
Los Angeles, CA 90067
Nickole Gretta Miller /
Immigrant Defense Law Center
634 South Spring Street, 3rd Floor
Los Angeles, CA 90014
Allison W. Meredith
VedderPrice
1925 Century Park East, Suite 1900
Los Angeles, CA 90067
Hon. Holly Fujie
Los Angeles Superior Court
111 North Hill Street, Dept. 87
Los Angeles, CA 90012
Lisa R. Jaskol and Judith London
Public Counsel
610 South Ardmore Avenue
Los Angeles, CA 90005
Eric Westlund and Julian Poon
Gibson Dunn & Crutcher, LLP
333 South Grand Avenue
Los Angeles, CA 90071
L. Rachel Lerman
Barnes & Thornburg LLP
2029 Century Park East, Suite 300
Los Angeles, CA 90067
California Court of Appeal
Second Appellate District, Division 3
300 S. Spring Street
North Tower — Second Floor
Los Angeles, CA 90013
I declare underpenalty of perjury, under the laws of the United
States of America and the State of California, that the aboveis true and
correct. Executed on April 6, 2017, at San Francisco, California.
By: Lh"ei
ryeace Chin