(Dec. 11, 2014 – Los Angeles, CA) – In a case of first impression under a new California law, Bet Tzedek attorneys have succeeded in obtaining appellate confirmation that unaccompanied undocumented minors must be treated the same as any other child seeking legal guardianship through the probate courts.
Bet Tzedek attorneys Kevin Kish, Nicholas Levenhagen, and Erikson Albrecht represented “Israel R.”, a 17-year-old minor from El Salvador. When the probate court denied his petition, the team pursued an extraordinary writ with the Court of Appeal. In response, the Court of Appeal forcefully asserted that every minor, regardless of immigration status and whether or not they are nearing the age of majority is subject to the same legal standard.
The case is part of a cutting-edge legal strategy for protecting undocumented unaccompanied minors called SIJS (Special Immigrant Juvenile Status). SIJS is a pathway to legal residency specifically designed for children like Israel R., a minor who was abandoned by both of his parents, was forced to leave school at 11 to support his grandmother and faced targeted gang violence in his home country. To establish SIJS, a state court must find that: 1) the minor has been placed in the custody of an individual appointed by the Court; 2) reunification with at least one parent is not viable because of abuse, neglect, abandonment or a similar basis under state law; and 3) it is not in the minor’s best interest to be returned to his or her previous country of nationality or residence.
The minor may then apply for SIJS with federal immigration authorities.
“Although years ago Congress gave state courts the responsibility to make these SIJS findings,” said Albrecht, “courts recently have grown reluctant to do so.” As a result, many children are denied the relief federal law intended to provide.
To address this issue and eliminate any ambiguity that California Superior Courts, including family and probate courts, have jurisdiction to make these findings, Gov. Jerry Brown signed SB 873 into law on September 27, 2014. The law, which took immediate effect, reinforces the affirmative responsibility of the courts to make the SIJS findings when appropriate.
In early November, Bet Tzedek appeared before the Superior Court of Los Angeles for an uncontested guardianship and factual findings necessary for Israel R. to apply for SIJS relief prior to reaching the age of majority in December. The probate court denied the petition and refused to make the requisite factual findings.
Bet Tzedek petitioned for a writ of mandate and just two days later the Court of Appeals, Second District issued its Palma decision, siding with Bet Tzedek and finding the lower court had applied an erroneously heightened standard. As a result the probate court has now reversed its decision and made the necessary factual findings for Israel R. to seek SIJS protection.
“So many of these minors are left without representation, especially on appeal,” said Kish. “We are hopeful that this case will not only ensure a safe home for Israel R., but for many others who have similar needs.”
About Bet Tzedek
Founded in 1974, Bet Tzedek pursues equal justice for all by providing high-quality, free legal services to low-income, disabled and elderly people of all racial and religious backgrounds. One of the nation’s premier public interest law firms, Bet Tzedek uses direct legal service, impact litigation, community outreach and legislative advocacy in the areas of consumer rights, employment rights, elder justice/caregiver law, Holocaust reparations, housing, human trafficking, public benefits and real estate to serve more 20,000 people every year.