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

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Date Published: 02/18/2017 04:00 AM
AB3:v98#DOCUMENT

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, making an appropriation therefor, and declaring the urgency thereof, to take effect immediately.


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 or a nonprofit organization contracting with the department, as provided, to issue requests for proposal and issue grants to qualified legal services projects, qualified support centers, or county offices of the public defender that meet specified requirements, to expand their programs in order to serve as regional centers legal services agencies capable of providing legal training, written materials, mentoring, and technical assistance to county offices of the public defender in this state on issues relating to the immigration consequences of criminal convictions. The bill would also require the department or contracted nonprofit organization, as provided, to issue requests for proposal and issue grants to qualified legal services projects, qualified support centers, or county offices of the public defender that meet specified requirements, that can act as a statewide resource center to the regional centers legal services agencies and county offices of the public defender to provide these regional centers legal services agencies and offices with ongoing training, written materials, mentoring, and technical assistance, and to coordinate a statewide collaborative to ensure efficient delivery of high quality legal services.
This bill would additionally require the department or contracted nonprofit organization, as provided, to issue requests for proposal and issue grants to county offices of public defenders for those offices to secure new tools to enable their attorneys to competently represent noncitizen defendants in current cases and obtain relief for prior invalid convictions, as provided, and for those offices to enable deputy public defenders and paralegals to assist nonprofit organizations and private immigration attorneys serving noncitizens in removal proceedings with locating, collecting, and copying legal documents relating to the noncitizen’s prior criminal case.
This bill would appropriate $____ from the General Fund to the department or contracted nonprofit organization for the purposes of the grants awarded pursuant to this bill.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: YES   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 also 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. 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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 proposal and issue grants to qualified legal services projects, qualified support centers, or county offices of the public defender, to expand their programs in order to serve as regional centers legal services agencies capable of providing legal training, written materials, mentoring, and technical assistance to county offices of the public defender in this state on issues relating to the immigration consequences of criminal convictions.
(b) The department shall issue requests for proposal and issue grants to one or more qualified legal services projects, qualified support centers, or county offices of the public defender that can act as a statewide resource center to the regional centers legal services agencies and county offices of the public defender to provide these regional centers legal services agencies and offices with ongoing training, written materials, mentoring, and technical assistance, and to coordinate a statewide collaborative to ensure efficient delivery of high quality legal services.
(c) The department shall issue requests for proposal and issue grants to county offices of the public defender for those offices to secure new tools to enable criminal defense attorneys to competently represent noncitizen defendants in current cases and obtain relief for prior invalid convictions, by hiring staff or by arranging for assistance from qualified advisers such as a regional center, legal services agency, statewide resource center, or private experienced immigration attorneys, or both hiring staff and arranging for that assistance.
(d) The department shall issue requests for proposal and issue grants to county offices of the public defender for those offices to enable deputy public defenders and paralegals to assist nonprofit organizations and private immigration attorneys serving noncitizens in removal proceedings with locating, collecting, and copying legal documents relating to the noncitizen’s prior criminal case, including, but not limited to, the public defender’s file.
(e) Notwithstanding subdivisions (a) to (d), inclusive, if the standards specified in Article 4 (commencing with Section 19130) of Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code for the use of personal service contracts can be established, the department may, in compliance with Article 4 (commencing with Section 19130) of Chapter 5 of Part 2 of Division 5 of Title 2 of the Government Code and any applicable competitive bidding requirements set forth in the Public Contract Code, contract with a nonprofit organization to carry out those duties specified in subdivisions (a) to (d), inclusive.
(f) The amount of ____ dollars ($____) is hereby appropriated from the General Fund to the Controller to be allocated to the department or contracted nonprofit organization for the purposes of the grants awarded pursuant to this chapter.

13502.
 Any grants awarded pursuant to subdivision (a) of Section 13501 to be a regional center legal services agency shall only be made to a qualified legal services project, qualified support center, or county office of the public defender 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.
(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.
 Any grants awarded pursuant to subdivision (b) of Section 13501 to be a statewide resource center shall only be made to a qualified legal services project, qualified support center, or county office of the public defender 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 both to criminal defense attorneys and immigration attorneys.
(b) Agrees to provide reporting, monitoring, or audits of services provided, as determined by the department.
(c) 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.

13504.
 Any grants awarded pursuant to subdivision (c) of Section 13501 to a county office of the public defender shall only be made to an office that meets all of the following requirements:
(a) Agrees to retain staff to provide technical assistance or to obtain technical assistance for attorneys from a regional center, legal services agency, statewide resource center, or private experienced immigration attorney who has 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, or agrees to provide that technical assistance and to obtain that technical assistance.
(b) Agrees to document the terms of the support provided by a regional center, legal services agency, statewide resource center, or private experienced immigration attorney.
(c) Agrees to provide reporting, monitoring, or audits of services provided, as determined by the department.
(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.

13505.
 (a) The department shall adopt regulations to implement this chapter no later than sixty days after the effective date of the act adding this chapter. The adoption or readoption of a regulation authorized by this section is deemed to address an emergency, for purposes of Sections 11346.1 and 11349.6 of the Government Code, and the department is hereby exempted for this purpose from the requirements of subdivision (b) of Section 11346.1 of the Government Code.
(b) Notwithstanding subdivision (h) of Section 11346.1 of the Government Code, the department may readopt any emergency regulation authorized by this section that is the same as, or substantially equivalent to, any emergency regulation previously adopted pursuant to this section, and the initial emergency regulations and the one readoption of emergency regulations authorized by this section shall be exempt from review by the Office of Administrative Law. Notwithstanding subdivision (e) of Section 11346.1 of the Government Code, the initial emergency regulations and the one readoption of emergency regulations authorized by this section shall be submitted to the Office of Administrative Law for filing with the Secretary of State and each shall remain in effect for no more than 180 days, by which time final regulations shall be adopted in compliance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

13506.
 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.

SEC. 3.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to ensure that Californians are not unnecessarily caught up in the federal government’s expected expansion of deportation policies that will have a significant impact on the state’s population because of inadequate defense counsel, it is necessary that this act take effect immediately.