Public Comments for 02/17/2021 Courts of Justice - Subcommittee #2
SB1181 - Special immigrant juvenile status; jurisdiction.
Support for SB1181
As a longtime legal advocate, a former Assistant US Attorney, and a current law professor, I strongly encourage you to support SB1181 (Surovell), which would ensure that immigrant children in Virginia are able to access the full protection of Special Immigrant Juvenile Status. Unaccompanied, undocumented minor children fleeing violence in South and Central America are being placed in Virginia, making our Commonwealth their new home. Some of these children qualify for “special immigrant juvenile status” (SIJS) – an immigration status conferred by the federal government if the state court makes certain factual findings. These state court proceedings are necessary for these children’s cases to move forward. However, with no constitutional right to an attorney, many of these children face these proceedings, and possible deportation, all alone. Nevertheless, receiving SIJS protection often means the difference between life and death for many of these children. According to federal law, a child may apply for SIJS protection prior to turning 21, as long as they can provide the state court’s determination that they had been abused, abandoned, or neglected in their home country. Unfortunately, Virginia’s current law does not mirror the federal provisions, as our Juvenile and Domestic Relations (JDR) Courts only have jurisdiction to conduct this fact-finding until a child reaches the age of 18. This cruel mismatch results in young immigrants who did not receive these crucial findings before they turn 18 being forever closed off to SIJS protection. Even for children who had filed petitions in JDR Court prior to turning 18 – if the determinations are not made in time, they have lost what may be their only chance at safety and stability here in Virginia. Immigrant children are right now caught within the fractures of where federal law and state law do not meet, through no fault of their own. Curing this fracture, i.e., providing JDR courts with the ability to issue these findings until a young person is 21 years old, is a virtually cost-free, minimum-hassle solution with a potentially life-saving impact. Please support SB1181 so that our legal system is a more just system for immigrant children in Virginia. Tara Louise Casey Professor of Law, Legal Practice Director, Carrico Center for Pro Bono & Public Service University of Richmond School of Law
The Special Immigrant Juvenile Status (SIJS) process involves a mix of both state and federal determinations to find an immigrant child who has escaped abuse, neglect, or abandonment in her home country eligible to remain in the United States and seek permanent residency. The first part of the process requires J&DR courts to make factual findings regarding the child’s situation to determine what would be in their best interests. If the court believes it would not be in the child’s best interests to return to their home country, they can issue an order in support of the child’s SIJS application, which is then argued in the Immigration Court. Many young people and their caregivers are not aware that they must first request factual findings in state J&DR courts before the child can be granted SIJS by the federal government and don’t have access to attorneys to advise them. I handle these cases on a pro bono basis in my clinic at the University of Richmond, but not everyone has counsel. Many have experienced detention at the border or have been separated from family, which further delays seeking appropriate relief. A significant problem can then arise when the federal government rejects an SIJS application after the child turns eighteen and the JDR court loses jurisdiction. Also, attorneys often are not willing to take cases too close to the 18th birthday, because the attorney feels it is unlikely that factual findings will be determined before the child turns eighteen. SB 1181 can help protect these vulnerable, immigrant children who are at risk of being returned to harmful, dangerous, and unstable situations in their home countries. I have represented many children who have escaped unspeakable horrors. This will allow the courts to retain jurisdiction to make factual findings that enable a child to apply for SIJS until the child is 21. Importantly, this bill is limited to situations where the child has previously been in the JDR court prior to the child’s eighteenth birthday. It has always been challenging to get these cases heard before children age out of juvenile court jurisdiction, but everything has been exacerbated by the COVID-19 pandemic which has caused extensive delays in accessing the court for these proceedings. SB1181 proposes to allow the J&DR courts to retain jurisdiction over these children until they reach the age of twenty-one so that children who are closely approaching eighteen when they file for SIJS are not barred from having a judge make these determinations simply because they could not get a hearing before their eighteenth birthday. SB 1181 does not require or permit J&DR courts to provide immigration status of any kind. The J&DR courts only needs to use their expertise in determining the best interests of the child to make factual findings about the child’s situation. The factual findings from J&DR are submitted along with the child’s SIJS application to the immigration court. SB 1181 is not only critical to protect young people from being removed from a stable and safe living environment, but it is consistent with practices that already exist in Virginia courts and with the federal government’s definition and treatment of a child. Thank you for your consideration. This change could make a significant difference in the lives of these vulnerable children. Prof. Julie McConnell University of Richmond School of Law
SB1234 - Virginia State Bar examination; foreign applicants, evidence required.
Correction to the last comment: it was passed 39-0 (and not 49-0) in the Senate. Sincerely, Ibnul Ali Khan, Esq.
Dear Delegates: I was present during the hearing before the Senate and testified before it was voted 15-0 in committe. A representative from the Virginia Supreme Court stated "no comment" to the Bill. The Patron of the Bill, Senator Petersen, also conferred with the Virginia Board of Bar Examiners ("VBBE") regarding the Bill. The VBBE did not make a public appearance before the Senate. The Bill was passed 49-0 in the Senate. Sincerely, Ibnul Ali Khan, Esq.
Dear Delegates: Background: I am an attorney licensed to practice law in the states of New York and Maryland, and before the United States District Court for the District of Maryland and the Southern District of New York. I also teach Constitutional law as an Adjunct Professor at George Mason University Law School. I currently practice law with a law firm in Fairfax, Virginia. I am familiar with the Rules of the Supreme Court of Virginia and Virginia law in general. Impacted Class: I speak on behalf of a class of thousands of foreign attorneys who seek to pursue a legal career in the Commonwealth of Virginia but are prevented from doing so given the current law (the "Class"), as fully described herein. Status quo in the majority of states: currently, the Uniform Bar Exam is administered by 38 states and out of those 38 states, foreign attorneys (i.e., attorneys licensed in jurisdictions outside of the U.S.) can sit for the bar exam in potentially 34 different states, with some of those states requiring an LL.M. at an ABA-approved law school in the U.S. Getting licensed in the majority of states: of the 34 states allowing the foreign attorney to sit for their bar exam, 20 of those states require the applicant to obtain an LL.M. in an ABA-approved law school. Therefore, most foreign attorneys only pursue a 1-year LL.M. and pursue the bar exam in these states. The issue in Virginia: there is currently no option for foreign attorneys, even those who obtain an LL.M. at an ABA-approved law school and become licensed as an attorney in another state, to take the Virginia bar exam. Additionally, even if one practices law for 5-years (and maintains an active license), the only waiver provision only grants J.D. graduates the ability to waive into Virginia (without sitting for the bar exam). Therefore, someone like myself, who after having practiced as an attorney for 5 years, could never waive in or even sit for the bar exam given the J.D. requirement. In essence, the Virginia bar is limited to J.D. graduates and those who pursue the "law office" study route and precludes those in the Class. Proposed law: this law would have the impact of allowing foreign attorneys who obtain a LL.M. at an ABA-approved law school and become licensed in one of the United States to become eligible to only sit for the Virginia bar exam. I, along with the thousands of others, support this legislation. It would put foreign attorneys, who become licensed attorneys in the U.S., on an equal footing with Virginia residents and those who have had the privilege to obtain a J.D., at least as it pertains to sitting for the bar exam. Sincerely yours, Ibnul Ali Khan, Esq. Personally and on behalf of the Class
SB1168 - "Abused or neglected child"; definition.
We support. Please see prior submitted testimony. Thank you
The City of Portsmouth thanks Senator Lucas for sponsoring this bill. The problematic definitional differences in two subsections of the VA Code (VA Code Section 16.1-228 and VA Code Section 63.2-100), came to light when one of our Assistant City Attorney's encountered a problem during a court hearing. The definition in Subsection 4 of VA Code Section 16.1-228 and 63.2-100 are different. The verbiage in Subsection 4 of VA Code 63.2-100 regarding 'sexual exploitation' is more expansive than the verbiage used in the same Subsection of VA Code Section 16.1-228. Also, Subsection 2 of VA Code Section 63.2-100 is different from the definition in Subsection 2 of VA Code Section 16.1-228 regarding how to consider the actions of a parent or person responsible for providing health care for an abused and neglected child. For judicial interpretation purposes, a definition does not apply if it is not referenced. SB1168 seeks to align the definitions of these two VA Code Subsections, which will also strengthen those definitions in VA Code Section 16.1-228. We thank you in advance for your support of this legislation.
Previous testimony submitted in support of this bill. I also signed up to speak but have not received a link to connect to the meeting.
The Portsmouth City Attorneys Office ask that you support this bill because this bill makes the definition of abused or neglected child found in title 16.1 -228 consistent with the definition of abused or neglected child found in title 63.2 -100 of the Code of Virginia. The definition of an abused or neglected child should be consistent in the code of Virginia for investigation purposes and for initiating court actions in child welfare proceedings.
SB 1168 - Patron -Senator Lucas - Please Support! The crux of the matter is the difference in the definitions in Subsection 4 of VA Code Section 16.1-228 and VA Code Section 63.2-100. Also, Subsection 2 of VA Code Section 63.2-100 is different from the definition in Subsection 2 of VA Code Section 16.1-228 regarding how to consider the actions of a parent or person responsible for providing health care for an abused and neglected child. These inconsistencies in the definitions were brought to our attention by one of the City's Assistant City Attorneys, Ms. Riddick, after she encountered this misalignment in the Code of Virginia while dealing with a matter before the court. For judicial interpretation purposes a definition does not apply unless it is referenced. Hence, there exists a need to align these two VA Code Sections. This bill does not create new language in either Code Section, just adds the existing definitions in Subsections 2 and 4 of VA Code Section 63.2-100 to Subsections 2 and 4 of VA Code Section 16.1-228. I shared my research on this matter with the Virginia Crime Commission who examined the matter and agreed with my findings. They also shared the issues with the Virginia Department of Social Services, who also examined the matter, and agreed with our observations. In conclusion, we collectively agree as to how this oversight may have occurred. From a legislative staff perspective, it probably occurred because a Code Section 63.2 bill would have gone through Courts (maybe General Laws, but most likely Courts) so it would not have occurred to the patron, committee members or drafter to kept the two definitions parallel when they were amending the definitional sections in VA Code Sections in 63.2 The VA Code Section in 63.2 is a little bit 'looser' which is okay in the civil context and for DSS matters. But the VA Code Section 16.1 is definition is more likely to come into play with a criminal charge, and hence the verbiage needs to be more precise. What is 'exploitation?' Is it defined anywhere else in VA Code Sections 18.2 or 26.1? It appears they have been different regarding the term 'exploitation' as far back as a search through the portal would allow. As far as we are aware, there is no substantive reason as to why 'exploitation' appears in VA Code Section 63.2-100, but not in 16.1-228. This bill passed unanimously through Senate Courts and the full Senate, and we hope that this measure will be met with the same levels of support in the House of Delegates. Thank you