BILL ANALYSIS
AJR 41
Page 1
Date of Hearing: March 14, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AJR 41 (Nation) - As Introduced: February 2, 2006
SUBJECT : IMMIGRANT CHILDREN
KEY ISSUE : SHOULD THE LEGISLATURE URGE CONGRESS AND THE
PRESIDENT OF THE UNITED STATES TO ALLOW IMMIGRANT CHILDREN, WHO
ARE LEGALLY ADOPTED, TO BECOME UNITED STATES CITIZENS OR SHOULD
THEY FACE DEPORTATION?
SYNOPSIS
This resolution urges Congress and the President of the United
States to protect immigrant children by amending federal
immigration law to permit certain immigrant children to have an
immigration specialist assigned to them prior to their
emancipation and to amend the federal Immigration and
Nationality Act to allow a child who is adopted while he or she
is a dependent of a juvenile court located in the United States
to become a United States citizen without being fully admitted
for permanent residence.
SUMMARY : Makes various findings and declarations, regarding
undocumented immigrant children and urges Congress and the
President of the United States to protect these children by
amending the federal immigration law to allow such immigrant
children, who are legally adopted, to become United States
citizens. Specifically, this bill :
1)Declares that:
a) In the past few years, the number of unaccompanied
children taken into custody by immigration officials has
increased by nearly 30 percent, and is expected to reach an
all time high this year;
b) Congress has the power to regulate immigration and
naturalization (Art. I, Sec. 8, U.S. Const.);
c) Federal immigration law specifically provides that a
juvenile who is an unlawful immigrant may be accorded the
status of special immigrant if (a) he or she has been
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declared a dependent in a juvenile court, or is a person
whom the court has legally committed to, or placed under
the custody of, an agency or department of a state and he
or she has been deemed eligible by that court for long-term
care due to abuse, neglect, or abandonment; (b) he or she
is a person for whom it has been determined in
administrative or judicial proceedings that it would not be
in his or her best interest to be returned to the
juvenile's or his or her parent's previous country of
nationality or country of last habitual residence, and (c)
he or she is a person in whose case the Attorney General
expressly consents to the dependency order serving as a
precondition to the grant of special immigrant juvenile
status (8 U.S.C. Sec. 1101 (a) (27)(J));
d) In California if an undocumented child has become a
dependent of a juvenile court because of abuse or neglect
and parent rights are terminated, then that child is
eligible for Special Immigrant Juvenile Status (SIJS);
e) The child can only obtain legal status while the child
is a dependent of the court;
f) If the child is not assigned an immigration specialist
to obtain SIJS prior to emancipation, his or her ability of
gaining legal status becomes practically null; and,
g) Unless the Child Welfare and Juvenile Court Systems
ensure that eligible undocumented children obtain lawful
SIJS prior to their emancipation, these children are
destined for lives of instability and fear as outsiders in
the only country many have ever known.
2)Urges the Congress and the President of the United States to
protect these children by amending the federal immigration law
to permit these children to have an immigration specialist
assigned to them prior to their emancipation; and, amending
section 320 of the Immigration and Nationality Act to state
that if a child has been adopted while a dependent of a
juvenile court located in the United States, he or she need
not be fully admitted for permanent residence, as required by
subsection (a)(3) in order to become a United States citizen
pursuant to this section.
EXISTING LAW :
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1)Provides that a juvenile court may have jurisdiction over a
child as a dependent child because that child is the subject
of abuse or neglect and over a child because that child has
committed acts that trigger delinquency jurisdiction rendering
the child a ward. (Welfare and Institutions Code sections
300, 601, 602.)
2)Authorizes a juvenile court to order a dependent child, ward
of the court or a minor placed on probation, who is a resident
of a foreign country be sent to an official of a juvenile
court of that country or an agency authorized to accept the
child. (Welfare and Institutions Code sections 368, 738.)
FISCAL EFFECT : As currently in print, this measure is keyed
non-fiscal.
COMMENTS : In support, the author writes, "It is estimated that
in California there are over 400 unlawful immigrant children
placed in foster care or adoption proceedings annually. In the
past few years, the number of unaccompanied children taken into
custody by immigration officials has increased by nearly 30
percent, and is expected to reach an all time high this year.
Currently, there are no statewide guidelines or standards for
addressing the immigration status of these non-citizen children.
However, most counties in the State have admitted to providing
foster care and/or adoption services to these children without
regard to their immigration status. While this is absolutely
beneficial to the children in question (the alternative is
deporting them back to their home country), this process raises
some questions and further difficulties." A result of this
system are situations where the adoption of undocumented
immigrant children through county family courts can result in
cases in which children are "legally" adopted by American
citizens, but still "illegal" in the United States. According
to the author, "A federal statute giving these children 'legal
permanent resident' status upon adoption by an American family
or guardian would be the best solution to this issue."
According to Sue Cares, an immigrant child adoption advocate, if
one adopts a child and then find out he/she has not entered this
country legally: "The child must remain in your legal, physical
custody for two years, at which point you can request an
interview with the American Consulate in the child's home
country. So far, this process takes a minimum of three years
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with no guarantee that the child will be given legal status. If
a child is adopted and turns 18 prior to the interview, he/she
has to go back to his/her home country and wait for the
interview. If an 18-year-old does not return to his/her home
country and turns 18 before the interview, when the child does
go to the interview, the child will be barred from re-entering
the United States for three years. If the child turns 19, there
is a ten-year bar from returning to the United States."
According to the author, "Unless the child welfare and juvenile
court systems ensure that eligible undocumented children obtain
lawful status as Special Immigrant Juveniles prior to their
emancipation, these children are destined for lives of
instability and fear as outsiders in the only country many of
them have ever known. They should be given a better future than
this."
Governor's Veto . Last year, the Governor vetoed AB 1338
(Nation) that would have provided children who are not lawful
permanent residents or United States citizens with immigration
counsel. In his message, the Governor explained:
I support policies that provide children and their
advocates with means to obtain and exercise their rights,
however this bill is unnecessary. This bill is an overly
broad and costly response to a problem that may be resolved
administratively.
In contrast to AB 1338, this resolution is a much more modest
response, bringing attention to the important issue of the
plight of unlawful immigrant children caught in the foster
care/adoption/dependency court systems.
Federal Jurisdiction . The federal government has jurisdiction
over all matters concerning immigration and naturalization. It
should be noted, if a child originates in state court, the state
court must first decide to turn the individual over to what was
formerly known as the Immigration and Naturalization Service,
now called the Border & Transportation Security under the
Department of Homeland Security. If the child started with the
federal government, then the Border & Transportation Security
has the sole authority to detain and decide the fate of the
child.
Federal Legislation . It should be noted that the federal
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"Unaccompanied Alien Child Protection Act of 2005" introduced in
both the Senate and the House would, among other things, set
forth a family reunification preference order; direct the Office
of Refugee Resettlement, with respect to custodial children, to
provide immigration counsel and amend the Immigration and
Nationality Act to establish a Special Immigration Juvenile Visa
(J Visa). (S.119 Feinstein and H.R.1172 Lofgren.) The Senate
bill is currently in the House Judiciary Committee and the House
bill is currently in the House Subcommittee on Immigration,
Border Security and Claims.
REGISTERED SUPPORT / OPPOSITION :
Support
Sue Cares
Opposition
None on file.
Analysis Prepared by : Manuel Valencia / JUD. / (916) 319-2334