Child Welfare Provisions in Immigration Legislation

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Issue: Child Welfare Provisions in Immigration Legislation


Policies under consideration would impact the handling of cases involving children of illegal immigrants and unaccompanied minor children.  


No formal position.


Congress has considered comprehensive immigration reform legislation.  Among the issues under consideration relate to the children of illegal immigrants and unaccompanied minor children (UACs). 


On 4/17/13, the bipartisan Senate “Gang of 8” introduced the Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S. 744).  The measure was approved by the Senate on 6/27/13 by a vote of 68-32.  The legislation included several provisions that will allow for new protections for children and families.  The measure would require the Immigration and Customs Enforcement (ICE) to have policies in place to ensure that detained or removed parents can make decisions about their child’s care, including (1) allowing parents to make calls to arrange for the care of their children and ensures that detained parents can call or visit with their children, (2) ensuring that parents are able to participate in family court proceedings affecting their children, and (3) ensuring that parents are able to make arrangements for their children prior to a parent’s removal.  ICE would also be required to consider the best interest of children in decisions regarding a parent’s detention, release, or transfer and to provide training for ICE and detention facility personnel on best practices to minimize the detrimental impact of immigration enforcement on children.  The measure also would provide states with the authority to consider a parent’s detention or removal as a compelling reason to delay filing for termination of parental rights (TPR) and requires state child welfare agencies to meet certain conditions before filing for TPR in such cases. The bill also included provisions to ensure that children are placed with relatives whenever appropriate, regardless of immigration status and that parents would be provided assistance in making arrangements for their child prior to a parent’s removal. 

Other provisions and improvements were not included in the final bill including an amendment by Senator Richard Blumenthal (D-CT) to extend the DREAMERS Act provisions to younger children and a potential amendment similar to legislation, Foster Children Opportunity Act (H.R. 2036), introduced by Representative Beto O’Rourke (D-TX) that would have assisted youth aging out of foster care with their legal immigration status before they exit foster care.

The U.S. Immigration and Customs Enforcement (ICE) issued a directive that implements some of the policies included in S. 744.  The Directive, Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities, was issued on 8/23/13 and was effective that same date.  The Directive has implications for family court and child welfare proceedings.

While a number of House bills were introduced in the 113th Congress, the House leadership said that immigration reform legislation will not be taken up until at least 2016.  The crisis of unaccompanied children (UACs) may, however, result in legislation on the issue. 

On 7/7/15, the Senate Homeland Security and Governmental Affairs Committee held a hearing, 2014 Humanitarian Crisis at Our Border: A Review of the Government’s Responses to Unaccompanied Minors One Year Later.  While the UAC numbers have decreased, there is a significant backlog of cases awaiting disposition.  Committee Chairman Ron Johnson (R-WI) indicated that comprehensive reform is not likely, but he is interested in making sequenced reforms over time and has asked for suggestions.

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