BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AJR 41 A
Assembly Member Nation J
As Amended June 7, 2006 R
Hearing Date: June 20, 2006
BCP:rm 4
1
SUBJECT
Immigrant Children
DESCRIPTION
This resolution would urge Congress to amend federal
immigration law to:
permit appointment of an immigration specialist for
undocumented dependent children prior to their
emancipation; and
amend provisions allowing for automatic citizenship
of children born overseas to include children adopted
from the dependent court who are not fully admitted
for permanent residence.
BACKGROUND
Each year, increasing numbers of undocumented immigrant
children are entering the juvenile dependency court system
and placed in long-term foster care. Those children enter
the dependency system due to abuse, neglect or abandonment,
and often remain in foster care until they emancipate.
While attempts may be made to reunify with the child's
parents, those attempts may fail due to the disappearance
of the parents, the parents return to their home country,
or their inability to provide a safe and stable home
environment for the child. Undocumented immigrant children
emancipating from foster care at age 18 are faced with the
inability to legally work in the United States, and may be
subject to deportation.
(more)
AJR 41 (Nation)
Page 2
In response to the growing problem, Congress created
Special Immigrant Juvenile Status (SIJS) for these
children. Upon granting of this status, an undocumented
child may apply for lawful permanent residency within the
United States. If the child is granted lawful permanent
residency status, they may lawfully work, qualify for
in-state tuition at college and apply for citizenship in
five years.
However, in order to receive a grant of SIJS, the juvenile
court must make certain findings, including that it is in
the best interest of the child to remain in this country.
Once a juvenile court terminates jurisdiction over the
child, that court can no longer make the required findings
about the child, and that child would lose their
eligibility for SIJS. [8 U.S.C. 1431(a).; Welf. & Inst.
Code 303.].
Accordingly, this resolution urges Congress to permit these
children to have an immigration specialist assigned to them
prior to their emancipation from the system. Appointment
of an immigration specialist would help ensure that
qualified children, who wish to receive SIJS status and
apply for legal citizenship, are given the tools to do so.
Furthermore, AJR 41 would urge Congress to amend federal
immigration law to allow children adopted while dependents
of the juvenile court, who are not admitted for permanent
residence, to automatically become citizens pursuant to the
existing statute governing children of citizens born
abroad.
CHANGES TO EXISTING LAW
Existing law authorizes the juvenile court to adjudge an
abused, neglected or abandoned child a dependent child of
the court, to terminate the parental rights of the child's
parents if reunification efforts fail, and to place the
child in long-term foster care, a guardianship, or
adoption. [Welf. & Inst. Code 300 et seq.]
Existing law requires that a dependent child with no
counsel be represented by appointed counsel at all
dependency proceedings, as specified. [Welf & Inst. Code
317.] Existing law authorizes the juvenile court to adjudge
a child a ward of the court for being habitually
AJR 41 (Nation)
Page 3
disobedient or truant, and provides for the appointment of
counsel to represent the child at juvenile court
proceedings. [Welf. & Inst. Code. 601 et seq.]
Existing federal law provides for the granting of "special
immigrant juvenile status" to an unmarried child under 21
years of age who is present in the United States, under the
jurisdiction of the juvenile court, deemed eligible for
long-term foster care, and for whom it has been determined
that it would not be in their best interest to return to
their country of nationality or past residence. The federal
statute specifies that the Attorney General expressly
consents to the juvenile court's order serving as a
precondition to the granting of status. [8 U.S.C
1101(a)(27).]
Existing federal law allows a child born outside the United
States to automatically become a citizen of the United
States when at least one parent is a citizen, the child is
under 18, and the child is lawfully residing in the country
and in the custody of the citizen parent. Existing federal
law allows adopted children to use this provision, subject
to certain limitations. [8 U.S.C. 1431.]
This resolution would declare that "the number of
unaccompanied children taken into custody by immigration
officials has increased by nearly 30 percent, and is
expected to reach an alltime high this year."
This resolution would reiterate the requirements under
federal immigration law for a grant of "special immigrant
juvenile status," and declare that if a child is not
assigned an immigration specialist prior to their
emancipation, their ability to gain legal status under the
"special immigrant juvenile status" program "become[s]
practically null." This resolution would further declare
that unless child welfare and juvenile court systems ensure
that eligible children receive "special immigrant juvenile
status" prior to emancipation, they "are destined for lives
of instability and fear . . ."
This resolution would urge the President and Congress to
protect these children by amending federal law to permit
the assignment of an immigration specialist prior to their
emancipation.
AJR 41 (Nation)
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This resolution would further urge Congress to amend
federal immigration law to state that a child adopted while
a dependent of the juvenile court need not be fully
admitted for permanent residency in order to automatically
become a United States citizen, provided that certain
conditions are met.
COMMENT
1. Stated need for the bill
According to the author, "over 400 unlawful immigra[nt]
children are placed in foster care or adoption
proceedings annually . . . [additionally,] no statewide
guidelines are in place to address the immigration status
of the non-citizen children in question." SueCares,
supporter of AJR 41, adds that
[an undocumented] child can only obtain legal
status while the child is a dependent of the
court. Unfortunately, there are no current laws
to require the assignment of an Immigration
Specialist to ensure that this will happen.
If the child is not assigned an Immigration
Specialist to obtain SIJS prior to emancipation,
there is little or no hope of gaining legal
status even though many of these children were
brought here as infants and have lived almost
their entire lives in the United states
. . .
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 have ever known.
Accordingly, AJR 41 would urge Congress to amend federal
immigration law to permit appointment of immigration
specialists prior to an undocumented dependent child's
emancipation, and to permit a child not admitted for
permanent residency to become a United States citizen
AJR 41 (Nation)
Page 5
through adoption by a citizen while a dependent of the
juvenile court.
2. Previous attempts to provide assistance to
undocumented children in the juvenile dependency court
system
For the previous two years, the author has introduced
bills to require court appointment of an immigration
attorney for undocumented children subject to the
jurisdiction of the juvenile court. Pursuant to those
bills, the appointed attorney would be permitted to
pursue SIJS status, permanent legal residency or
citizenship for the child. Both bills, AB 1338 (Nation,
2005), and AB 1895 (Nation, 2004), were vetoed by
Governor Schwarzenegger.
The Governor issued similar veto messages each year.
Those messages supported the "policies that provide
children and their advocates with means to obtain and
exercise their rights," but found both bills to be an
"overbroad
solution [for] all counties regardless of the individual
needs of each
jurisdiction."
The author returns with the present Joint Resolution to
address the continuing problem of undocumented children
emancipating from the system without pursing SIJS. In
contrast to previous versions, the present bill urges for
a change in the federal immigration law, as opposed to
amending state law. Ironically, advocating a change in
federal law is necessarily broader than the previous
versions as any change would apply nationwide.
3. Resolution urging Congress to amend Section 320 of the
Immigration and Nationality Act
Currently, Section 320 of the Immigration and Nationality
Act sets forth the procedure under which a child born
outside the United States and residing permanently in the
United States may automatically become a citizen. [8
U.S.C. 1431.] That statute grants automatic
citizenship to the child if:
at least one parent of the child is a citizen of
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the United States;
the child is under the age of 18; and
the child resides in the United States in the
custody of the citizen parent, pursuant to a lawful
admission for permanent residence.
Adopted children qualify under the above federal law if
they fulfill certain requirements. [See 8 U.S.C.
1431(b), 1101(b)(1).] Accordingly, AJR 41 would urge
Congress to change the above requirement that a child
reside in the United States "pursuant to a lawful
admission for permanent residence" to allowing children
not fully admitted for permanent residence, if they were
adopted while a dependent of a juvenile court. [8.
U.S.C. 1431(a)(3).]
Presumably, the change is intended to address the
following situation described by the Child Welfare
Directors Association of California (CWDA) where an
adopted child is not a lawful resident, unbeknownst to
the adopting parents:
[w]hile it does not happen often, there are cases
of undocumented children being placed into foster
care and adopted by loving families, only to find
later on that they are not able to attend college
or work legally in the United States.
Provided they meet the remaining statutory requirements,
the effect of this change would be to provide for the
automatic citizenship of children, not lawfully admitted
for permanent residence, who were adopted while
dependents of the juvenile court.
4. Resolution to permit dependent children to have an
immigration specialist assigned to them prior to
emancipation
Similar to AB 1338 and AB 1895 (Nation), this bill would
attempt to provide assistance to undocumented children
who are dependents of the juvenile court. As stated
above, these children may begin to pursue permanent legal
residency by qualifying for SIJS. Once granted SIJS, the
child may apply for permanent legal residency, and in
turn for citizenship. Since SIJS requires specific
AJR 41 (Nation)
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findings by the juvenile court, once that court
terminates jurisdiction, the child is unable to purse
SIJS.
Accordingly, AJR 41 would urge Congress to amend federal
immigration law to permit these children to have an
immigration specialist assigned to them prior to
emancipation. This specialist could inform them of their
options and assist them in pursuit of SIJS and then
permanent legal residency. As a result, more
undocumented dependent children could gain permanent
legal residency, be able to legally work within the
United States, receive federal or state financial aid for
schools, and be allowed to pay in-state tuition. In
support, the Los Angeles County Unified School District
(LAUSD) states that this change would "help to provide
equal opportunity for immigrant students to access higher
education and achieve the American dream."
5. Related pending federal legislation
Two currently pending bills in Congress deal with
undocumented children. Both, S. 119 (Feinstein), the
"Unaccompanied Alien Child Protection Act," and H.R. 1172
(Lofgren), include provisions that would ensure that
certain undocumented children are represented by
competent legal counsel in their immigration proceedings.
Those bills are currently the House Subcommittee on
Immigration, Border Security, and Claims.
Support: County Welfare Directors Association of
California (CWDA); Family Law Section of the State
Bar of California; Los Angeles Unified School
District (LAUSD); SueCares
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: SB 1393 (Florez), would
revise procedures for intercountry
adoption. (This bill is currently in
AJR 41 (Nation)
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the Assembly Judiciary Committee.)
SB 1712 (Migden), would encourage
the placement of hard-to-place foster
children. (This bill is currently in
the Assembly Judiciary Committee.)
Prior Legislation: AB 1895 (Nation, 2004), vetoed, would
have required appointment of an immigration
law attorney for non-citizen dependant
children, who may pursue SIJS for child.
AB 1338 (Nation, 2005), vetoed, same subject
as above.
Prior Vote: Asm. Floor (Ayes 48, Noes 26)
Asm. Jud. (Ayes 6, Noes 2)
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