Washington, DC – The Senate Judiciary Committee today approved legislation sponsored by U.S. Senator Dianne Feinstein (D-Calif.) that would reform the treatment of unaccompanied immigrant children who are in federal immigration custody.

The bill was approved as part of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (S. 3061) authored by Sen. Joe Biden (D-Del.). It passed the committee 17 to 2. 

Every year, more than 7,000 undocumented and unaccompanied children are apprehended. 

“This legislation will ensure that unaccompanied children receive humane and appropriate treatment while in the custody of the United States government,” Senator Feinstein said.  “It would give unaccompanied minors access to pro bono legal counsel and someone to look after their best interest. I’ve been working on this legislation for seven years.  It is time for it to become law.” 

As under current law, if a child has committed a crime or poses a national security threat, that child will still be held in secure custody and deported.   

The “Unaccompanied Alien Child Protection Act of 2007” is supported by:

  • The United Nations High Commissioner for Refugees,
  • National Immigrant Justice Center,
  • The United States Conference of Catholic Bishops,
  • The Women’s Commission on Refugee Women and Children,
  • The Lutheran Immigration and Refugee Service, and
  • Immigrant Children’s Advocacy Center at the University of Chicago 

The legislation is also co-sponsored by Senators Edward Kennedy (D-Mass.), Russ Feingold (D-Wis.), Maria Cantwell (D-Wash.) and John Kerry (D-Mass.)

Background 

In 2002, as a result of Senator Feinstein’s efforts, Congress transferred the authority over the care and custody of unaccompanied alien children from the Immigration and Naturalization Service (INS) to the Department of Health and Human Services’ Office of Refugee Resettlement (ORR). This transfer took effect on March 1, 2003, but, the transfer of authority to ORR, by itself, is not enough to ensure that these children are properly protected.  

Senator Feinstein introduced this legislation seven years ago to provide clear direction on protecting these children from human traffickers and smugglers; isolating criminal juvenile offenders from other children; and ensuring that each child, including refugee minors has access to a guardian ad litem and pro bono legal representation in immigration proceedings. 

The Senate approved this legislation three times, however, it has stalled in the House of Representatives.  

Bill Summary

The “Unaccompanied Alien Child Protection Act of 2007,” as incorporated in the “Trafficking Victim Protection Reauthorization Act” would do the following:

  • Build on the Unaccompanied Alien Child provisions that were enacted in the Homeland Security Act of 2002, which transferred responsibility for the care and placement of unaccompanied alien children to the Department of Health and Human Services Office of Refugee Resettlement (ORR).
  • Provide guidance to the Department of Homeland Security (DHS), Department of Justice (DOJ) and ORR on how to handle unaccompanied alien children whom it encounters.
  • Establish procedures to ensure that unaccompanied alien children from Mexico or Canada who do not have claims of asylum can be safely returned to their countries without delay.
  • Require, whenever possible, family reunification or other appropriate placement for unaccompanied alien children. 
  • Provide the Director of ORR with discretion to engage the services of child welfare professionals to act as child advocates and make recommendations regarding custody, detention, release and removal, based upon the best interest of each child.
  • Provide pro bono legal representation for unaccompanied alien children in their immigration matters where possible.
  • Requires that children who are detained be placed in the least restrictive setting possible in accordance with the best interest of the child.
  • Requires that the Office of Refugee Resettlement conduct a home study before placing a trafficked – or other special needs – child in a foster home to ensure the safety of the child.

This legislation would not:

  • Expand immigration benefits beyond the current scope of U.S. immigration law.
  • Remove the jurisdiction and responsibility for adjudicating immigration status from the Department of Homeland Security or the Executive Office for Immigration Review, where such jurisdiction and responsibilities currently reside.
  • Interfere with the custodial rights of a parent or guardian in situations where a parent or guardian seeks to establish custody and make family reunification possible.
  • Interfere with the Office of Refugee Resettlement’s authority to determine how and where children with a juvenile justice history are cared for and detained.

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