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AB-3 Public defenders: legal counsel: immigration consequences: grants.(2017-2018)

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Date Published: 05/30/2017 11:58 AM
AB3:v96#DOCUMENT

Amended  IN  Assembly  May 30, 2017
Amended  IN  Assembly  May 09, 2017
Amended  IN  Assembly  February 17, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 3


Introduced by Assembly Member Bonta
(Coauthors: Assembly Members Chiu, Eggman, Cristina Garcia, Levine, and Rendon)
(Coauthors: Senators Allen, De León, and Hueso)

December 05, 2016


An act to add Chapter 5.7 (commencing with Section 13500) to Part 3 of Division 9 of the Welfare and Institutions Code, relating to immigration, and making an appropriation therefor. immigration.


LEGISLATIVE COUNSEL'S DIGEST


AB 3, as amended, Bonta. Public defenders: legal counsel: immigration consequences: grants.
Existing law designates the State Department of Social Services as the single agency with full power to supervise every phase of the administration of public social services, except health care services and medical assistance. Existing law requires the department, subject to the availability of funding, to contract with qualified nonprofit legal services organizations to provide legal services to unaccompanied undocumented minors, as defined, who are transferred to the care and custody of the federal Office of Refugee Resettlement and who are present in this state. Existing law also requires a court, prior to accepting a guilty or nolo contendere plea, to advise a defendant that, if the defendant is not a citizen, conviction of the charged offense may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization, as specified.
This bill would require the department to issue requests for proposal and issue grants to qualified legal services projects or qualified support centers that meet specified requirements, for the provision of legal training, written materials, mentoring, and technical assistance to county offices of the public defender in this state and attorneys contracted by counties to provide indigent criminal defense on issues relating to the immigration consequences of criminal convictions and obtaining relief for prior invalid convictions for noncitizen defendants.
This bill would additionally require the department to issue requests for proposal and issue grants to qualified legal services projects and qualified support centers for the purpose of administering funding or partnering with county offices of the public defender for those offices to hire or designate one or more attorneys who will be mentored and trained by attorneys at the qualified legal services project and qualified support centers. The bill would require the designated attorneys to be mentored or trained to advise defenders on the immigration consequences of criminal convictions for noncitizen clients and how to obtain relief for prior invalid convictions for these clients.

This bill would appropriate $14,000,000 from the General Fund to the department for the purposes of the grants awarded pursuant to this bill.

This bill would make implementation of its provisions subject to the enactment of an appropriation for that purpose.
Vote: TWO_THIRDSMAJORITY   Appropriation: YESNO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) The immigration consequences of criminal convictions have a particularly strong impact in California. One out of every four persons living in the state is foreign-born. One out of every two children lives in a household headed by at least one foreign-born person. The majority of these children are United States citizens. It is estimated that recently 50,000 parents of children who are United States citizens in California were deported in a period of a little over two years. Once a person is deported, especially after a criminal conviction, it is extremely unlikely that he or she ever is permitted to return.
(b) Avoiding deportations also would result in significant budget savings associated with the economic and social disruptions caused by deportation, which can include the following: the loss of a family’s primary wage earner, which can make the family more reliant on the social services safety net and public health insurance programs; the lost tax revenue from the deported worker; the placement of children in foster care; the loss of the family home to foreclosure; and disruption in children’s school attendance.
(c) In Padilla v. Kentucky, 559 U.S. 356 (2010), the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires defense counsel to advise noncitizen defendants regarding the potential immigration consequences of their criminal cases. California courts have long held that defense counsel must investigate and advise regarding the immigration consequences of the available depositions, and should, when consistent with the goals of and informed consent of the defendant, and as consistent with professional standards, defend against adverse immigration consequences (People v. Soriano, 194 Cal.App.3d 1470 (1987), People v. Barocio, 216 Cal.App.3d 99 (1989), People v. Bautista, 115 Cal.App.4th 229 (2004)). In 2015, California enacted Assembly Bill 1343 (Thurmond), adding Sections 1016.2 and 1016.3 to the Penal Code, which codified the holding of Padilla v. Kentucky and the holdings of the California court decisions that defense counsel must provide a noncitizen defendant with affirmative and competent advice on the immigration consequences of a proposed disposition and, when appropriate, defend against those consequences.
(d) Providing accurate advice to noncitizen defendants on immigration consequences at the time of plea will result in significant budget savings by unclogging the criminal courts. Currently, defenders without adequate resources must seek frequent continuances, as they seek to obtain an analysis. Moreover, desperate immigrants who were not adequately advised at plea, and who only later discover that the plea is a basis for deportation and permanent separation from family, are returning to California courts with time-consuming motions to overturn their convictions based upon this failure and to replead their cases. They are within their rights. On March 27, 2017, the California Supreme Court reaffirmed that defense counsel’s failure to provide accurate advice on the immigration consequences of a proposed plea is a basis to vacate the conviction (People v. Patterson, 2 Cal.5th 885). In the last two years, California voters and the Legislature have passed laws that provide efficient vehicles to eliminate convictions that were legally invalid due to lack of information about immigration consequences, including subdivision (b) of Section 18.5 of the Penal Code, and Sections 1203.43 and 1473.7 of the Penal Code. By providing resources to defenders, the Legislature will enable public defenders, who are government employees, to meet the Sixth Amendment requirements set out in cases such as Padilla and Patterson, and it will stem the flow of postconviction relief cases coming back to the courts.
(e) With an accurate understanding of immigration consequences, many noncitizen defendants are able to plead to a conviction and sentence that satisfy the prosecution and court but that have no, or fewer, adverse immigration consequences than the original charge.
(f) Providing defense counsel with access to individual consultation, written resources, and training on immigration-related matters will ensure that the counsel’s clients receive equal treatment under the law and are properly advised of the immigration consequences of their cases and can make informed choices.
(g) Defendants who are misadvised or not advised at all of the immigration consequences of criminal charges often suffer irreparable damage to their current or potential lawful immigration status, resulting in penalties such as mandatory detention, deportation, and permanent separation from close family.
(h) Once in removal proceedings, a noncitizen may be transferred to immigration detention facilities across the country. Many criminal offenses trigger mandatory detention, so that the person may not request bond. In immigration proceedings, there is no court-appointed right to counsel, and the majority of detained immigrants go unrepresented. Immigration judges often lack the power to consider whether the person should remain in the United States in light of equitable factors such as serious hardship to United States citizen family members, length of time living in the United States, or rehabilitation.

SEC. 2.

 Chapter 5.7 (commencing with Section 13500) is added to Part 3 of Division 9 of the Welfare and Institutions Code, to read:
CHAPTER  5.7. Funding for Immigration Counsel for Defense Counsel

13500.
 For purposes of this chapter, both of the following definitions shall apply:
(a) “Qualified legal services project” has the same meaning as that term is defined in subdivision (a) of Section 6213 of the Business and Professions Code.
(b) “Qualified support center” has the same meaning as that term is defined in subdivision (b) of Section 6213 of the Business and Professions Code.

13501.
 (a) The department shall issue requests for proposals and issue grants to qualified legal services projects and qualified support centers for provision of legal training, written materials, mentoring, and technical assistance to county offices of the public defender in this state and attorneys contracted by counties to provide indigent criminal defense in this state on issues relating to the immigration consequences of criminal convictions and obtaining relief for prior invalid convictions for noncitizen defendants.
(b) The department shall issue requests for proposals and issue grants to qualified legal services projects and qualified support centers for the purpose of administering funding or partnering with county offices of the public defender for those offices to hire or designate one or more attorneys who will be mentored and trained by attorneys at the qualified legal services project projects and qualified support centers. These designated attorneys shall be mentored or trained to advise defenders on the immigration consequences of criminal convictions for noncitizen clients and how to obtain relief for prior invalid convictions for these clients.

(c)The amount of fourteen million dollars ($14,000,000) is hereby appropriated from the General Fund to the Controller to be allocated to the department for the purposes of the grants awarded pursuant to this chapter.

(d)

(c) Grant proposals funded through this program shall be funded for a period of two years.

13502.
 Any grants awarded pursuant to subdivision (a) of Section 13501 shall only be made to a qualified legal services project or qualified support center that meets all of the following requirements:
(a) Has staff with a sufficient level of experience, as determined by the department, in providing expert training, technical assistance, and written materials regarding the immigration consequences of criminal convictions to criminal defense attorneys.
(b) Agrees to provide reporting, monitoring, or audits of services provided, as determined by the department. Grantees shall not be required to disclose information that is protected by attorney-client privilege.
(c) Agrees to meet standards determined by the department relating to continuing legal education on the immigration consequences of criminal convictions and active participation in the statewide collaborative on this issue.
(d) Agrees to maintain adequate legal malpractice insurance and to indemnify and hold the state harmless from any claims that arise from any legal services provided through the grants funded pursuant to this chapter.

13503.
 An application for grants awarded pursuant to subdivision (b) of Section 13501 shall do all of the following:
(a) Designate qualified staff to oversee the administration of funding or mentorship of defenders from county public defender offices on issues related to the immigration consequences of criminal convictions for noncitizen clients and how to obtain relief for prior invalid convictions for those clients.
(b) Explain the specific purpose of the grant funds, including funding for the provision of hiring attorneys who will participate in mentoring and training by attorneys from the qualified legal service providers or qualified support center.
(c) Agree to provide reporting, monitoring, or audits of services provided, as determined by the department. Grantees shall not be required to disclose information protected by attorney-client privilege.
(d) Agree to maintain adequate legal malpractice insurance and to indemnify and hold the state harmless from any claims that arise from any legal services provided through the grants funded pursuant to this chapter.

13504.
 Implementation of this chapter shall be subject to the enactment of an appropriation for that purpose in the Budget Act or another statute.

13504. 13505.
 The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.