BILL ANALYSIS
AJR 41
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AJR 41 (Nation)
As Amended June 7, 2006
Majority vote
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|ASSEMBLY: |48-26|(April 3, 2006) |SENATE: |23-14|(August 10, |
| | | | | |2006) |
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Original Committee Reference: JUD.
SUMMARY : Makes various findings and declarations regarding
undocumented immigrant children and urges Congress and the
President of the United States (U.S.) to protect these children
by amending the federal immigration law to allow such immigrant
children who are legally adopted to become U.S. citizens.
Specifically, this resolution :
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% and is expected to reach an all
time high this year;
b) Congress has the power to regulate immigration and
naturalization;
c) Federal immigration law specifically provides that a
juvenile who is an unlawful immigrant may be accorded the
status of special immigrant if he or she:
i) Has been 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;
ii) 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
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nationality or country of last habitual residence; and,
iii) Is a person in whose case the U.S. Attorney General
expressly consents to the dependency order serving as a
precondition to the grant of special immigrant juvenile
status (SIJS);
d) 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,
e) 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 U.S. President 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 U.S., he or she need not be fully admitted for
permanent residence, as required by subsection (a)(3) in order
to become a U.S. citizen pursuant to this section.
The Senate amendments delete provisions that declared:
1)In California, if an undocumented child has become a dependent
of a juvenile court because of abuse or neglect and parent
rights are terminated, that child is eligible for SIJS.
2)The Transitional Independent Living Plan (TILP) was created to
help prepare undocumented children to live on their own.
3)TILP is not mandatory and is only a document of suggested
guidelines.
4)The child can only obtain legal status while the child is a
dependent of the court.
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 because that child has committed acts
that trigger delinquency jurisdiction rendering the child a
ward.
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.
AS PASSED BY THE ASSEMBLY , this bill made various findings and
declarations regarding undocumented immigrant children and urged
Congress and the U.S. President to protect these children by
amending the federal immigration law to allow such immigrant
children, who were legally adopted, to become U.S. citizens.
FISCAL EFFECT : None
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 U.S. 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
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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 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."
Last year, the Governor vetoed AB 1338 (Nation) that would have
provided children who are not lawful permanent residents or U.S.
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.
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
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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.
It should be noted that the federal "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.
Analysis Prepared by : Manuel Valencia / JUD. / (916) 319-2334
FN: 0015322