BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SJR 31 (Torres)
As Introduced
Hearing Date: August 14, 2014
Fiscal: No
Urgency: No
TMW
SUBJECT
Immigration: Unaccompanied Minors
DESCRIPTION
This measure would urge the President and Congress of the United
States to take action and adopt immigration policies, as
specified, to ensure protection for unaccompanied children
immigrating into the United States.
(This analysis reflects author's amendments to be offered in
Committee.)
BACKGROUND
According to data collected by the United States Customs and
Border Patrol (CBP), in the past year, nearly 63,000 children,
unaccompanied by family members, crossed the southwest border
into the United States and were apprehended by CBP. (CBP, U.S.
Border Patrol Family Unit and Unaccompanied Alien Children
Apprehensions Comparisons reflect Fiscal Year 2014 to date
(October 1, 2013 - July 31, 2014) compared to the same time
period for Fiscal Year 2013 (July 31, 2014) [as of Aug. 13, 2014].) These numbers have
doubled from the prior year, with these children migrating from
Honduras, Guatemala, El Salvador, and Mexico.
Prior to the enactment of the Homeland Security Act of 2002
(HSA), unaccompanied children had few legal protections prior to
deportation. With the enactment of the HSA, the care and
custody for these children was transferred from the U.S.
(more)
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Immigration and Naturalization Service to the U.S. Department of
Health and Human Services (HHS). In 2008, these protections
were expanded when President George W. Bush signed the William
Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008, which required unaccompanied minors immigrating into
the U.S. to be given an opportunity to appear at an immigration
hearing and consult with an advocate, recommended that they have
access to counsel, and required these children to be placed in
the care of the HHS in the least restrictive setting that is in
the best interest of the child. However, the recent surge of
unaccompanied minors immigrating into the U.S. has created a
humanitarian crisis because of the increased demand for housing,
care, and legal services for these children while they are
awaiting reunification with family members or the outcome of the
immigration process.
Although there has been recent discussion from the current
presidential administration and U.S. Congress to address this
immigration crisis, concerns are increasing as to the due
process, safety, and well-being of unaccompanied children
awaiting the outcome of their immigration status. Accordingly,
this measure would urge the President and U.S. Congress to focus
resources, adopt immigration policies, and provide care for
unaccompanied children immigrating into the U.S.
CHANGES TO EXISTING LAW
This measure would make the following legislative statements:
an unprecedented number of unaccompanied minors from Central
America have migrated into the United States at the Mexican
border, creating a humanitarian crisis and requiring immediate
action by the Administration and Congress of the United
States;
according to United States Customs and Border Protection, the
United States government has apprehended approximately 52,000
unaccompanied minors so far this fiscal year and expects to
apprehend at least 90,000 by the end of September;
as of the end of May, 2014, the United States Border Patrol
had apprehended more unaccompanied minors than in any of the
previous five years, and almost twice as many unaccompanied
minors as in the 2011-12 fiscal year;
although unaccompanied minors have been entering the United
States through the southwest border for years, the surge in
the last several months has overloaded border patrol stations
and detention facilities;
this upsurge in unaccompanied minors has created the need for
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more housing and legal services;
currently, about 76 percent of unaccompanied minors
apprehended are from Honduras, El Salvador, and Guatemala, and
the remaining 24 percent are from Mexico;
in the 2012-13 fiscal year, 73 percent of the unaccompanied
minors were male and 27 percent were female, and 76 percent
were over 14 years of age;
the average length of stay in immigration detention facilities
was 61 days between the 2007-08 and 2009-10 fiscal years,
while the current reported average stay is 35 days;
many of the laws and procedures regarding unaccompanied minors
were developed to protect children from human trafficking and
other threats of violence;
by law, immigration cases involving unaccompanied minors are
focused on the welfare of the child, rather than detention,
and the United States Department of Health and Human Services
(HHS) must place the children in the "least restrictive
setting" possible;
unaccompanied minors from contiguous countries, such as Mexico
and Canada, may elect to return to their country of origin
when apprehended at the border or enter the immigration
system, but they are not automatically taken into custody;
unaccompanied minors from noncontiguous countries are
automatically taken into custody, but are still subject to
immigration proceedings and potential deportation;
a recent report from the United Nations High Commissioner for
Refugees found that a majority of unaccompanied minors whom
they interviewed that have been apprehended at the southwest
border, many from Honduras, El Salvador, and Guatemala, were
fleeing instances of extreme violence such as drug cartels and
gang activity. Others are victims of human trafficking or were
living in poverty and are attempting to reunite with family
members already in the United States, traveling alone,
crossing mountains and deserts, and facing unknown dangers and
harm along their journey;
the United States has always been a leader in providing care
and assistance to those in danger and in need;
Congress unanimously passed the Trafficking Victims Protection
Reauthorization Act of 2008, which continued a long history of
establishing procedures that fairly and safely repatriate
unaccompanied minors to their home countries;
the United States must recognize this is a humanitarian crisis
impacting young and innocent children. These children have
lost their childhood and everything they know, including their
parents;
as an international leader in the humane treatment of
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individuals, the United States has a responsibility to treat
these children humanely and ensure that those who have arrived
alone have a safe place to stay; and
addressing the issue of unaccompanied children will require
cooperation from all branches of the United States government
and appropriate funding to respond to the crisis in a
humanitarian and child protection-focused manner.
This measure would urge the President and Congress of the United
States to focus resources on protecting unaccompanied children
immigrating into the United States from harm, uphold their right
to due process, and work with our international partners to
address the root problems that put these children in danger in
their home countries.
This measure would also urge the President and Congress of the
United States to adopt immigration policies that ensure that
unaccompanied minors receive appropriate child welfare services,
legal assistance, and access to immigration protection.
This measure would urge the President and Congress of the United
States to require that a best interest of the child standard be
applied in immigration proceedings involving unaccompanied
minors.
This measure would urge the President and Congress of the United
States to place all unaccompanied minors in the custody of HHS
to ensure they receive careful and robust screening and
protection to ensure their safety and well-being.
COMMENT
1. Stated need for the bill
The author writes:
An unprecedented number of unaccompanied minors from Central
America have migrated into the United States at the Mexican
border, creating a humanitarian crisis and requiring immediate
action by the Administration and Congress of the United
States. The United States must recognize this is a
humanitarian crisis impacting young and innocent children.
[Many of these] children have lost their childhood and
everything they know, including their parents. As
international leaders we have a responsibility to treat these
children humanely and ensure that those who have arrived alone
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have a safe place to stay. Addressing the issue of
unaccompanied children will require cooperation from all
branches of the United States government and appropriate
funding to respond to the crisis in a humanitarian and child
protection-focused manner.
SJR 31 urges the President and Congress of the United States
to focus resources on protecting unaccompanied children
immigrating into the United States from harm, uphold their
right to due process, and work with our international partners
to address the root problems that put these children in danger
in their home countries.
2.Resolution would urge Congress to maintain protections for
unaccompanied minors
Pursuant to the United States Constitution, which grants the
federal government the power to establish a uniform Rule of
Nationalization and regulate commerce with foreign nations, the
federal government possesses the exclusive power to regulate
immigration. (U.S. Const., art. I, sec. 8, clauses 3 and 4; see
also League of United Latin American Citizens v. Wilson (1995)
908 F.Supp. 755, 786-87.) Because the federal government bears
the exclusive responsibility for immigration matters, the states
"can neither add to nor take from the conditions lawfully
imposed by Congress upon admission, naturalization and residence
of aliens in the United States or the several states."
(Takahashi v. Fish & Game Commission (1948) 334 U.S. 410, 419.)
The federal William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 requires that unaccompanied minors
immigrating into the United States be given an opportunity to
appear at an immigration hearing and consult with an advocate,
recommends that they have access to counsel, and requires these
children to be placed in the care of the United States
Department of Health and Human Services (HHS) in the least
restrictive setting that is in the best interest of the child.
As part of the immigration adjudication process, unaccompanied
minors are provided with limited resources, including Medicaid,
K-12 education, and child welfare services. Notably, these
provisions were intended to protect unaccompanied immigrating
children from human trafficking and other threats of violence.
This measure would urge the President and Congress of the United
States to continue the existing levels of humanitarian care and
urge them to focus resources on protecting unaccompanied
children immigrating into the United States from harm, uphold
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their right to due process, and work with international partners
to address the root problems that put these children in danger
in their home countries. This measure would also urge the
President and Congress of the United States to adopt immigration
policies that ensure that unaccompanied minors receive
appropriate child welfare services, legal assistance, and access
to immigration protection. In this way, this measure would
further support recent immigration policies approved by the
California Legislature.
It is important to note that unaccompanied minors from
noncontiguous countries (countries that do not share a border
with the United States) are taken into custody and provided
limited care and services pending immigration proceedings, but
if these children originate from Mexico or Canada, they are not
automatically taken into custody and may elect to return to
their country of origin. In order to ensure that all
unaccompanied children receive careful and robust screening and
protection to ensure their safety and well-being, this measure
would also urge the President and Congress of the United States
to place all unaccompanied minors in the custody of HHS.
3.Author's amendment
The author offers the following amendment to correct a drafting
error.
Author's amendment :
On page 2, in line 25, remove and replace "county" with
"country"
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation :
SB 1402 (De Le�n, 2014) would submit an advisory question to the
voters asking whether the President and Congress of the United
States should reform immigration laws and pass comprehensive
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immigration reform that includes a pathway to citizenship. SB
1402 is currently in the Assembly Committee on Rules.
SB 1392 (Lara, 2014) would establish the Office of New American
Integration in the Governor's office for the purpose of
formulating a comprehensive state strategy to support the
integration of immigrants in the state, including the
improvement of the current social and economic mobility and
self-sufficiency of documented immigrants. SB 1392 is currently
in the Senate Committee on Rules.
SR 25 (Calderon, 2014) contains the same language as SR 40
(Correa, 2014). SR 25 is currently in the Senate Committee on
Rules.
HR 51 (P�rez, 2014) would declare that the residents of
California, as residents of the United States, have a duty to
respect the human dignity of immigrants and ensure they are
afforded equal protection under the laws, as specified, as well
as access to a mode of communication that can help facilitate
their repatriation back to Central America when doing so does
not endanger their lives and safety. HR 51 is in the Assembly
pending referral.
AB 1660 (Alejo, 2014) would clarify the provisions of AB 60
(Alejo, Ch. 524, Stats. 2013) that a person who holds or
presents that driver's license is also protected from employment
and housing discrimination under the Fair Employment and Housing
Act and from discrimination by a state or local government
agency, and that the affidavit submitted to obtain that driver's
license is exempt from public disclosure under the California
Public Records Act. AB 1660 is currently on the Senate Floor.
AB 692 (Gonzalez, 2014) contains the same language as SB 1402
and is currently in the Senate Committee on Appropriations.
Prior Legislation :
SR 40 (Correa, 2014) urged President Obama to take executive
action to suspend any further deportations of unauthorized
individuals with no serious criminal history.
SJR 8 (Correa, Res. Ch. 102, Stats. 2013) urged Congress and the
President to take a comprehensive and workable approach to
improving the nation's immigration system.
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AJR 3 (Alejo, Res. Ch. 77, Stats. 2013) specified goals for
reforming the nation's immigration system, and urged Congress
and the President to take a humane and just approach to solving
the nation's broken immigration system.
AB 60 (Alejo, Ch. 524, Stats. 2013) authorized the Department of
Motor Vehicles (DMV) to issue an original driver's license to a
person who is unable to submit satisfactory proof that the
applicant's presence in the United States is authorized under
federal law if he or she meets all other qualifications for
licensure and provides satisfactory proof to the DMV, of his or
her identity and California residency.
AB 35 (Hern�ndez, Ch. 571, Stats. 2013), among other things,
authorized an employee whose federal application for Deferred
Action for Childhood Arrivals (DACA) has been granted to receive
unemployment compensation benefits, extended duration benefits,
and federal-state extended benefits, and made technical
revisions regarding the issuance of a state driver's license or
identification card to persons approved under DACA and
established under AB 2189 (Cedillo and Skinner, Ch. 862, Stats.
2012).
AB 2189 (Cedillo and Skinner, Ch. 862, Stats. 2012), among other
things, allowed persons who provide satisfactory proof, as
described, that their presence in the United States is
authorized under federal law, but who are not eligible for a
social security account number, to receive an original driver's
license from the DMV if they meet all other qualifications for
licensure.
AJR 37 (De Le�n, Res. Ch. 62, Stats. 2010) urged Congress and
the President to develop a comprehensive approach to immigration
reform.
AJR 15 (De Le�n, Res. Ch. 60, Stats. 2010) urged Congress and
the President to develop a comprehensive approach to immigration
reform.
SJR 19 (Cedillo, 2009) would have urged Congress and the
President of the United States to declare an immediate
moratorium on the aggressive, unprecedented enforcement of
employer sanctions related to immigration. SJR 19 passed the
Senate but was held at the Assembly Desk.
AB 2826 (Mendoza, 2008) was substantially similar to AB 692 and
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would have called an election to ask California voters whether
the President and the Congress of the United States should
create a pathway to citizenship for undocumented immigrants. AB
2826 died in the Assembly Committee on Judiciary.
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