Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 45486-45534 [2018-19052]
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Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 212 and 236
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
45 CFR Part 410
[DHS Docket No. ICEB–2018–0002]
RIN 1653–AA75, 0970–AC42
Apprehension, Processing, Care, and
Custody of Alien Minors and
Unaccompanied Alien Children
U.S. Immigration and Customs
Enforcement (ICE), U.S. Department of
Homeland Security (DHS); U.S.
Citizenship and Immigration Services
(USCIS), DHS; U.S. Customs and Border
Protection (CBP), DHS; Office of Refugee
Resettlement (ORR), Administration for
Children and Families (ACF), U.S.
Department of Health and Human
Services (HHS).
ACTION: Notice of proposed rulemaking.
AGENCY:
The U.S. Department of
Homeland Security (DHS) and the
Department of Health and Human
Services (HHS) (‘‘the Departments’’)
propose to amend regulations relating to
the apprehension, processing, care,
custody, and release of alien juveniles.
In 1985, plaintiffs in a class action
lawsuit, Flores v. Reno, challenged the
policies of the legacy Immigration and
Naturalization Service (INS) relating to
the detention, processing, and release of
alien juveniles. The parties reached a
settlement agreement, referred to as the
Flores Settlement Agreement (FSA). The
FSA, as modified in 2001, provides that
it will terminate forty-five days after
publication of final regulations
implementing the agreement. The rule
would adopt in regulations provisions
that parallel the relevant and
substantive terms of the FSA, consistent
with the HSA and TVPRA, with some
modifications discussed further below
to reflect intervening statutory and
operational changes while still
providing similar substantive
protections and standards. It therefore
would terminate the FSA. The rule
would satisfy the basic purpose of the
FSA in ensuring that all juveniles in the
government’s custody are treated with
dignity, respect, and special concern for
their particular vulnerability as minors,
while doing so in a manner that is
workable in light of subsequent changes.
The rule would also implement closely
related provisions of the HSA and
TVPRA.
Most prominently, the rule would
create an alternative to the existing
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licensed program requirement for family
residential centers, so that ICE may use
appropriate facilities to detain family
units together during their immigration
proceedings, consistent with applicable
law.
DATES: Written comments and related
material must be submitted on or before
November 6, 2018.
ADDRESSES: You may submit comments
on the entirety of this proposed rule
package identified by DHS Docket No.
ICEB–2018–0002, by any one of the
following methods:
• Federal eRulemaking Portal
(preferred): https://www.regulations.gov.
Follow the website instructions for
submitting comments.
• Email: ICE.Regulations@
ice.dhs.gov. Include DHS Docket No.
ICEB–2018–0002 in the subject line of
the message.
• Mail: Debbie Seguin, Assistant
Director, Office of Policy, U.S.
Immigration and Customs Enforcement,
Department of Homeland Security, 500
12th Street SW, Washington, DC 20536.
To ensure proper handling, include
DHS Docket No. ICEB–2018–0002 in
your correspondence. Mail must be
postmarked by the comment submission
deadline.
• Hand Delivery/Courier: Visitor
Entrance, U.S. Immigration and
Enforcement, Department of Homeland
Security, 500 12th Street SW,
Washington, DC 20536.
Instructions: All comments submitted
outside of the Federal eRulemaking
Portal must include the docket number
for this rulemaking. All comments
received may be posted without change
to the Federal eRulemaking Portal at
https://www.regulations.gov, including
any personal or commercial information
provided. For detailed instructions on
sending comments and additional
information on the rulemaking process,
see the ‘‘Public Participation’’ heading
of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
For DHS: Debbie Seguin, Assistant
Director, Office of Policy, U.S.
Immigration and Enforcement,
Department of Homeland Security, 500
12th Street SW, Washington, DC 20536.
Telephone 202–732–6960 (not a toll-free
number).
For HHS: Division of Policy, Office of
the Director, Office of Refugee
Resettlement, Administration for
Children and Families, by email at
UACPolicy@acf.hhs.gov. Do not email
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comments on the proposed rule to this
address. Office of Refugee Resettlement,
330 C Street SW, Washington, DC
20201. Telephone 202–401–9246.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Table of Abbreviations
III. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Costs and Benefits
IV. Background and Purpose
A. History
B. Authority
1. Statutory and Regulatory Authority
2. Flores Settlement Agreement
Implementation
3. Recent Court Orders
C. Basis and Purpose of Regulatory Action
1. Need for Regulations Implementing the
Relevant and Substantive Terms of the
FSA
2. Purpose of the Regulations
V. Discussion of Elements of the Proposed
Rule
A. DHS Regulations
B. HHS Regulations
VI. Statutory and Regulatory Requirements
A. Executive Orders 12866 and 13563:
Regulatory Review
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement
Fairness Act of 1996
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
F. Paperwork Reduction Act
G. Executive Order 13132: Federalism
H. Executive Order 12988: Civil Justice
Reform
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
J. National Environmental Policy Act
(NEPA)
K. Executive Order 12630: Governmental
Actions and Interference With
Constitutionally Protected Property
Rights
L. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
M. National Technology Transfer and
Advancement Act
N. Family Assessment
VII. List of Subjects and Regulatory
Amendments
I. Public Participation
We encourage all interested parties to
participate in this rulemaking by
submitting written comments, views,
and data on all aspects of this proposed
rule. The Departments also invite
comments that relate to the economic,
environmental, or federalism effects that
might result from this proposed rule. All
comments received will be posted,
without change, to https://
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www.regulations.gov as part of the
public record and will include any
personal or commercial information you
provide.
A. Submitting Comments
All comments must be submitted in
English, or an English translation must
be provided. Comments that will
provide the most assistance to the
Departments will reference a specific
portion of the proposed rule, explain the
reason for any recommended change,
and include data, information, or
authority that support such
recommended change. If you submit
comments, please indicate the specific
section of this document to which each
comment applies, and provide a reason
for each suggestion or recommendation.
As this rule is being promulgated by two
Departments, it is especially helpful if
your comment, and each relevant part of
that comment, indicates a specific
section to which it applies, or at a
minimum each specific Department or
Departments to which it is addressed. In
this way, the comment may be better
understood and distributed to the
appropriate Department for response.
You may submit your comments and
materials online or by mail, but please
use only one of these means. If you
submit a comment online via https://
www.regulations.gov, it will be
considered received when it is received
at the Docket Management Facility.
Instructions: To submit your
comments online, go to https://
www.regulations.gov, and insert ‘‘ICEB–
2018–0002’’ in the ‘‘Search’’ box. Click
on the ‘‘Comment Now!’’ box and input
your comment in the text box provided.
Click the ‘‘Continue’’ box, and if you are
satisfied with your comment, follow the
prompts to submit it. If you submit your
comments by mail, you must include
DHS Docket No. ICEB–2018–0002, and
submit them in an unbound format, no
larger than 81⁄2 by 11 inches, suitable for
copying and electronic scanning and
filing. If you submit comments by mail
and would like to know that they
reached the facility, please enclose a
stamped, self-addressed postcard or
envelope.
Regardless of the method used for
submitting comments or material, all
submissions will be posted, without
change, to the Federal eRulemaking
Portal at https://www.regulations.gov,
and will include any personal or
commercial information you provide.
Therefore, submitting this information
makes it public. You may wish to
consider limiting the amount of
personal or commercial information that
you provide in any voluntary public
comment submission you make to the
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Departments. The Departments may
withhold information provided in
comments from public viewing that is
determined may impact the privacy of
an individual or is offensive. For
additional information, please read the
‘‘Privacy and Security Notice’’ that is
available via the link in the footer of
https://www.regulations.gov.
We will consider all comments and
materials received during the comment
period and may change this rule based
on your comments.
Note: The Departments will only consider
comments timely submitted to the docket for
this rulemaking. In light of the period of time
that has elapsed since the 1998 DOJ proposed
rule on this topic, the Departments have
established a new docket for this rulemaking.
Comments submitted to the Departments on
this topic prior to opening of the docket for
this proposed rule will not be incorporated
into the docket for this rulemaking;
commenters should resubmit those
comments, with necessary updates, as
appropriate.
B. Viewing Comments and Documents
Docket: To view comments, as well as
documents mentioned in this preamble
as being available in the docket, go to
https://www.regulations.gov and insert
‘‘ICEB–2018–0002’’ in the ‘‘Search’’ box.
Click on the ‘‘Open Docket Folder,’’ and
you can click on ‘‘View Comment’’ or
‘‘View All’’ under the ‘‘Comments’’
section of the page. Individuals without
internet access can make alternate
arrangements for viewing comments and
documents related to this rulemaking by
contacting ICE through the FOR FURTHER
INFORMATION CONTACT section above.
You may also sign up for email alerts on
the online docket to be notified when
comments are posted or a final rule is
published.
C. Privacy Act
As stated in the Submitting
Comments section above, please be
aware that anyone can search the
electronic form of comments received
into any of our dockets by the name of
the individual submitting the comment
(or signing the comment, if submitted
on behalf of an association, business,
labor union, etc.).
II. Table of Abbreviations
ACF—Administration for Children and
Families
BPA—U.S. Border Patrol Agent
CBP—U.S. Customs and Border Protection
CBPO—U.S. Customs and Border Protection
Officer
DHS—U.S. Department of Homeland
Security
DOJ—U.S. Department of Justice
EOIR—Executive Office for Immigration
Review
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FRC—Family Residential Center
FSA—Flores Settlement Agreement
HHS—U.S. Department of Health and Human
Services
HSA—Homeland Security Act of 2002
ICE—U.S. Immigration and Customs
Enforcement
IIRIRA—Illegal Immigration Reform and
Immigrant Responsibility Act of 1996
INA—Immigration and Nationality Act
INS—Immigration and Naturalization Service
JFRMU—Juvenile and Family Residential
Management Unit
OFO—U.S. Customs and Border Protection,
Office of Field Operations
OMB—Office of Management and Budget
ORR—Office of Refugee Resettlement, U.S.
Department of Health and Human Services
TVPRA—William Wilberforce Trafficking
Victims Protection Reauthorization Act of
2008
UAC(s)—Unaccompanied Alien Child(ren)
USCIS—U.S. Citizenship and Immigration
Services
USBP—U.S. Border Patrol, U.S. Customs and
Border Protection
III. Executive Summary
A. Purpose of the Regulatory Action
This rulemaking would implement
the relevant and substantive terms of the
Flores Settlement Agreement (FSA),
with such limited changes as are
necessary to implement closely-related
provisions of the Homeland Security
Act of 2002 (HSA), Public Law 107–296,
sec. 462, 116 Stat. 2135, 2202, and the
William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008
(TVPRA), Public Law 110–457, title II,
subtitle D, 122 Stat. 5044. The proposed
regulations would take account of
certain changed circumstances, ensure
that the regulations accomplish a sound
and proper implementation of governing
federal statutes, and set forth a
sustainable operational model of
immigration enforcement. For example,
one operational shift under the FSA has
been the extension of the agreement to
apply to accompanied minors, i.e.,
juveniles who arrive at the border with
their parents or legal guardians. That
has created a series of operational
difficulties, most notably with respect to
a state-licensing requirement for a
family residential center (FRC) in which
such parents/legal guardians and
children may be placed during
immigration proceedings. Additionally,
changes to the operational environment
since 1997, as well as the enactment of
the HSA and the TVPRA, have rendered
some of the substantive terms of the
FSA outdated, similarly making
compliance with the HSA, the TVPRA,
other immigration laws, and the FSA
problematic without some modification
of the literal text of the FSA. These
provisions are designed, however, so
that they still implement the substantive
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and underlying purpose of the FSA, by
ensuring that juveniles are provided
materially identical protections as under
the FSA itself. Therefore, the
Departments are proposing these
regulations to allow the public to
comment on our proposed framework
for compliance with the FSA, consistent
with current law.
From a practical perspective, one of
the most important changes from the
literal text of the FSA would be the
licensing requirement that applies to
programs in which minors may be
detained during immigration
proceedings. Under the FSA, such
facilities must be licensed ‘‘by an
appropriate State agency . . . for
dependent children.’’ FSA paragraph 6.
That requirement is sensible for
unaccompanied alien children, because
all States have licensing schemes for the
housing of unaccompanied juveniles
who are by definition ‘‘dependent
children,’’ and accordingly the rule
would not change that requirement for
those juveniles. But the need for the
license to come specifically from a
‘‘state agency’’ (rather than a federal
agency) is problematic now that the FSA
has been held to apply to accompanied
minors, including those held at FRCs,
because States generally do not have
licensing schemes for facilities to hold
minors who are together with their
parents or legal guardians, and therefore
are by definition not ‘‘dependent
children.’’ The application of the FSA’s
requirement for ‘‘state’’ licensing to
accompanied minors can effectively
require DHS to release minors from
detention in a non-state-licensed facility
even if the parent/legal guardian and
child would otherwise continue to be
detained together during their removal
proceedings, consistent with applicable
law. The rule here would eliminate that
barrier to the continued use of FRCs, by
creating an alternative federal licensing
scheme for such facilities. The goal is to
provide materially identical assurances
about the conditions of such facilities,
and thus to implement the underlying
purpose of the FSA’s licensing
requirement, and in turn to allow
families to remain together during their
immigration proceedings.
B. Legal Authority
The Secretary of Homeland Security
derives her authority to promulgate
these proposed regulatory amendments
primarily from the Immigration and
Nationality Act (INA or Act), as
amended, 8 U.S.C. 1101 et seq. The
Secretary may ‘‘establish such
regulations’’ as she deems necessary for
carrying out her authorities under the
INA. INA sec. 103(a)(3), 8 U.S.C.
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1103(a)(3). In addition, section 462 of
the HSA and section 235 of the TVPRA
prescribe substantive requirements and
procedural safeguards to be
implemented by DHS and HHS with
respect to unaccompanied alien
children (UACs). There have also been
a series of court decisions arising out of
the FSA. See, e.g., Flores v. Sessions,
862 F.3d 863 (9th Cir. 2017); Flores v.
Lynch, 828 F.3d 898 (9th Cir. 2016);
Flores v. Sessions, No. 2:85–cv–04544
(C.D. Cal. June 27, 2017).
Section 462 of the HSA also
transferred to the Office of Refugee
Resettlement (ORR) Director ‘‘functions
under the immigration laws of the
United States with respect to the care of
unaccompanied alien children that were
vested by statute in, or performed by,
the Commissioner of Immigration and
Naturalization.’’ 6 U.S.C. 279(a). The
ORR Director may, for purposes of
performing a function transferred by
this section, ‘‘exercise all authorities
under any other provision of law that
were available with respect to the
performance of that function to the
official responsible for the performance
of the function’’ immediately before the
transfer of the program. 6 U.S.C.
279(f)(1).
Consistent with provisions in the
HSA, the TVPRA places the
responsibility for the care and custody
of all UACs who are not eligible to be
repatriated to a contiguous country with
the Secretary of Health and Human
Services.1 Prior to the transfer of the
program, the Commissioner of
Immigration and Naturalization,
through a delegation from the Attorney
General, had authority ‘‘to establish
such regulations . . . as he deems
necessary for carrying out his authority
under the provisions of this Act.’’ INA
sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002);
8 CFR 2.1 (2002). In accordance with the
relevant savings and transfer provisions
of the HSA, see 6 U.S.C. 279, 552, 557;
see also 8 U.S.C. 1232(b)(1), the ORR
Director now possesses the authority to
promulgate regulations concerning
ORR’s administration of its
responsibilities under the HSA and
TVPRA, and the FSA at paragraph 40,
as well, specifically envisions
promulgation of such regulations.
C. Costs and Benefits
This proposed rule would implement
the FSA by putting in regulatory form
measures that materially parallel its
standards and protections, and also by
1 Some UACs from contiguous countries may be
permitted to withdraw their application for
admission and be repatriated. These UACs are not
referred to HHS. 8 U.S.C. 1232(a)(2).
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codifying the current requirements for
complying with the FSA, the HSA, and
TVPRA. U.S. Customs and Border
Protection (CBP) and U.S. Immigration
and Customs Enforcement (ICE)
encounter minors and UACs in different
manners. CBP generally encounters
UACs and minors at the border. In
Fiscal Year (FY) 2017, CBP
apprehended 113,920 juveniles.2
Generally, ICE encounters minors either
upon transfer from CBP to a family
residential center (FRC), or during
interior enforcement actions. In FY
2017, 37,825 family members were
booked into ICE’s three FRCs, 20,606 of
whom were minors. ICE generally
encounters UACs when it transports
UACs who are transferred out of CBP
custody to ORR custody, as well as
during interior enforcement actions.
The Departments consider their
current operations and procedures for
implementing the terms of the FSA, the
HSA, and the TVPRA to be the baseline
for the analysis of costs and benefits.
DHS already incurs the costs for these
operations; therefore, they are not costs
of this proposed rule. A primary source
of new costs for the proposed rule
would be a result of the proposed
alternative licensing process, which
would allow ICE to continue detaining
some minors along with their
accompanying parent or legal guardian
in FRCs. ICE also is proposing changes
to its current practice for parole
determinations to align them with
applicable statutory and regulatory
authority, which may result in fewer
minors or their accompanying parent or
legal guardian released on parole. These
changes may increase variable annual
FRC costs paid by ICE. While DHS
acknowledges that this rule may result
in additional or longer detention for
certain minors, DHS is unsure how
many individuals will be detained at
FRCs after this rule is effective or for
how much longer individuals may be
detained because there are so many
other variables to consider. Therefore,
DHS is unable to provide a quantified
estimate of any increased FRC costs.
DHS is also unable to provide an
estimate of the cost of any increased
detention on the individuals being
detained. HHS does not anticipate
significant new costs associated with
this rule, although it will assume some
costs from the Department of Justice
related to hearings for UACs, with
potential associated start-up costs.
2 Throughout this Notice of Proposed
Rulemaking, the Departments generally use the
term ‘‘juvenile’’ to refer to any alien under the age
of 18. For further explanation, see below for
discussion of the terms ‘‘juvenile,’’ ‘‘minor,’’ and
‘‘unaccompanied alien child (UAC).’’
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The primary benefit of the proposed
rule would be to implement the FSA in
regulations, and in turn to terminate the
agreement as contemplated by the FSA
itself. The result would be to provide for
the sound administration of the
detention and custody of alien minors
and UACs to be carried out fully,
pursuant to the INA, HSA, TVPRA, and
existing regulations issued by the
Departments responsible for
administering those statutes, rather than
partially carried out via a decades-old
settlement agreement. The rule would
ensure that applicable regulations
reflect the Departments’ current
operations with respect to minors and
UACs in accordance with the relevant
and substantive terms of the FSA and
the TVPRA, as well as the INA. Further,
by modifying the literal text of the FSA
in limited cases to reflect and respond
to intervening statutory and operational
changes, DHS will ensure that it retains
discretion to detain families, as
appropriate and pursuant to its statutory
and regulatory authorities, to meet its
enforcement needs, but while still
providing similar protections to minors.
HHS was not an original party to the
FSA and instead inherited
administration of some of its provisions.
The proposed rule similarly benefit
HHS as it clearly delineates ORR’s
responsibilities from that of other
Federal partners. Additionally, the
proposed implementation of the FSA’s
substantive provisions, specifically the
minimum standards for licensed
facilities and the release process, would
provide clear standards for the
program’s network of state licensed
facilities.
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IV. Background and Purpose
A. History
Prior to the enactment of the HSA, the
Attorney General and the legacy INS
had the primary authority to administer
and enforce the immigration laws. In the
period leading up to the Flores litigation
in the mid-1980s, the general
nationwide INS policy, based on
regulations promulgated in 1963 and the
Juvenile Justice and Delinquency
Prevention Act of 1974, was that alien
juveniles could petition an immigration
judge for release from INS custody if an
order of deportation was not final. See
Reno v. Flores, 507 U.S. 292, 324–25
(1993). In 1984, the Western Region of
the INS implemented a different release
policy for juveniles, and the INS later
adopted that policy nationwide. Under
that policy, juveniles could only be
released to a parent or a legal guardian.
The rationale for the policy was twofold: (1) To protect the juvenile’s
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welfare and safety, and (2) to shield the
INS from possible legal liability. The
policy allowed alien juveniles to be
released to other adults only in unusual
and extraordinary cases at the discretion
of the District Director or Chief Patrol
Agent. See Flores v. Meese, 942 F.2d
1352 (9th Cir. 1991) (en banc).
On July 11, 1985, four alien juveniles
filed a class action lawsuit in the U.S.
District Court for the Central District of
California, Flores v. Meese, No. 85–4544
(C.D. Cal. filed July 11, 1985). The case
‘‘ar[ose] out of the INS’s efforts to deal
with the growing number of alien
children entering the United States by
themselves or without their parents
(unaccompanied alien minors).’’ Flores
v. Meese, 934 F.2d 991, 993 (9th Cir.
1990). The class was defined to consist
of ‘‘all persons under the age of eighteen
(18) years who have been, are, or will
be arrested and detained pursuant to 8
U.S.C. 1252 by the INS within the INS’
Western Region and who have been, are,
or will be denied release from INS
custody because a parent or legal
guardian fails to personally appear to
take custody of them.’’ Id. at 994.). The
Flores litigation challenged ‘‘(a) the
[INS] policy to condition juveniles’
release on bail on their parents’ or legal
guardians’ surrendering to INS agents
for interrogation and deportation; (b) the
procedures employed by the INS in
imposing a condition on juveniles’ bail
that their parents’ or legal guardians’
[sic] surrender to INS agents for
interrogation and deportation; and (c)
the conditions maintained by the INS in
facilities where juveniles are
incarcerated.’’ See Flores Compl.
paragraph 1. The plaintiffs claimed that
the INS’s release and bond practices and
policies violated, among other things,
the INA, the Administrative Procedure
Act, and the Due Process Clause and
Equal Protection Guarantee under the
Fifth Amendment. See id. paragraphs
66–69.
Prior to a ruling on any of the issues,
on November 30, 1987, the parties
entered into a Memorandum of
Understanding (MOU) on the conditions
of detention. The MOU stated that
minors in INS custody for more than 72
hours following arrest would be housed
in facilities that met or exceeded the
standards set forth in the April 29, 1987,
U.S. Department of Justice Notice of
Funding in the Federal Register and in
the document ‘‘Alien Minors Shelter
Care Program—Description and
Requirements.’’ See Notice of
Availability of Funding for Cooperative
Agreements; Shelter Care and Other
Related Services to Alien Minors, 52 FR
15569, 15570 (Apr. 29, 1987). The
Notice provided that eligible grant
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applicants for the funding described in
the Notice included organizations that
were ‘‘appropriately licensed or can
expeditiously meet applicable state
licensing requirements for the provision
of shelter care, foster care, group care
and other related services to dependent
children . . . .’’ Id.
At approximately the same time that
the MOU was executed, the INS
published a proposed rule on the
Detention and Release of Juveniles to
amend 8 CFR parts 212 and 242. See 52
FR 38245 (Oct. 15, 1987). The stated
purpose of the rule was ‘‘to codify the
[INS] policy regarding detention and
release of juvenile aliens and to provide
a single policy for juveniles in both
deportation and exclusion
proceedings.’’ The INS issued a final
rule in May 1988. 53 FR 17449 (May 17,
1988). The rule provided for release to
a parent, guardian, or other relative, and
discretionary release to other adults. See
53 FR at 17451. It also provided that
when adults are in detention, INS
would consider release of the adult and
parent. Id.
On May 24, 1988, the district court
where the original Flores case was filed
held that the recently codified INS
regulation, 8 CFR 242.24 (1988),
governing the release of detained alien
minors, violated substantive due
process, and ordered modifications to
the regulation. The district court also
held that INS release and bond
procedures for detained minors in
deportation proceedings fell short of the
requirements of procedural due process,
and therefore ordered the INS
‘‘forthwith’’ to provide to any minor in
custody an ‘‘administrative hearing to
determine probable cause for his arrest
and the need for any restrictions placed
upon his release.’’ Flores v. Meese, 934
F.2d 991, 993 (9th Cir. 1990) (quoting
the district court). The INS appealed,
and the Ninth Circuit reversed the
district court’s holdings that the INS
exceeded its statutory authority in
promulgating 8 CFR 242.24 and that the
regulation violated substantive due
process. The Ninth Circuit also reversed
the district court’s procedural due
process holding, identified the legal
standard that the district court should
have applied, and remanded the issue
for the district court to further explore
the issue. Id. at 1013. On rehearing en
banc, however, the Ninth Circuit
vacated the original panel’s opinion,
affirmed the district court’s holding, and
held that INS’s regulation was invalid
because the regulation violated the alien
child’s due process and habeas corpus
rights, and detention where the alien
child was otherwise eligible for release
on bond or recognizance to a custodian
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served no legitimate purpose of the INS.
Flores v. Meese, 942 F.2d 1352 (9th Cir.
1991) (en banc) (‘‘The district court
correctly held that the blanket detention
policy is unlawful. The district court’s
order appropriately requires children to
be released to a responsible adult where
no relative or legal guardian is available,
and mandates a hearing before an
immigration judge for the determination
of the terms and conditions of release.’’).
The INS appealed, and in 1993, the
U.S. Supreme Court rejected Plaintiffs’
facial challenge to the constitutionality
of the INS’s regulation concerning the
care of alien juveniles. Reno v. Flores,
507 U.S. 292 (1993). The Supreme Court
held that the regulations did not violate
any substantive or procedural due
process rights or equal protection
principles. Id. at 306, 309. According to
the Court, the regulations did not
exceed the scope of the Attorney
General’s discretion under the INA to
continue custody over arrested aliens,
because the challenged regulations
rationally pursued the lawful purpose of
protecting the welfare of such juveniles.
Id. at 315.
The regulations promulgated in 1988
have remained in effect since
publication, but were moved to 8 CFR
236.3 in 1997. See 62 FR 10312, 10360
(Mar. 6, 1997). They were amended in
2002 when the authority to decide
issues concerning the detention and
release of juveniles was moved to the
Director of the Office of Juvenile Affairs
from the District Directors and Chief
Patrol Agents. See 67 FR 39255, 39258
(June 7, 2002).
The Supreme Court decision in Reno
v. Flores only resolved one of the issues
in the case. The district court approved
the FSA on January 28, 1997. In 1998,
the INS published a proposed rule
having a basis in the substantive terms
of the FSA, entitled Processing,
Detention, and Release of Juveniles. See
63 FR 39759 (July 24, 1998). In 2001 the
parties added a stipulation in the FSA,
which terminates the FSA ‘‘45 days
following defendants’ publication of
final regulations implementing t[he]
Agreement.’’ Stipulated Settlement
Agreement paragraph 40 [hereinafter
FSA], Flores v. Reno, No. CV 85–4544–
RJK(Px) (C.D. Cal. Dec. 7, 2001). In
January 2002, the INS reopened the
comment period on the 1998 proposed
rule, 67 FR 1670 (Jan. 14, 2002), but the
rulemaking was ultimately abandoned.
The U.S. District Court for the Central
District of California has continued to
rule on various motions filed in the case
and oversee enforcement of the MOU
and later the FSA.
Whereas only one Department was
involved in the creation of the FSA,
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three Departments now implement the
FSA’s substantive terms. After the 2001
Stipulation, Congress enacted the HSA
and the TVPRA, both of which impact
the treatment of alien juveniles. Among
other changes, the HSA created DHS
and, along with the TVPRA, transferred
the functions under the immigration
laws with respect to the care and then
custody of UACs referred by other
Federal agencies to HHS ORR. The
TVPRA also further regulated the
Departments’ respective roles with
respect to UACs. See 6 U.S.C. 111(a),
279; 8 U.S.C. 1232(b)(1).
To summarize those roles under the
current statutory framework: DHS
apprehends, provides care and custody
for, transfers, and removes alien minors;
DHS apprehends, transfers, and removes
UACs; and ORR provides for care and
custody of UACs who are in federal
custody (other than those permitted to
withdraw their application for
admission) referred to ORR by other
Departments. DHS and HHS are
therefore now proposing to issue
regulations implementing the relevant
and substantive terms of the FSA,
consistent with the HSA and TVPRA,
and in turn to terminate the FSA.
B. Authority
1. Statutory and Regulatory Authority
a. Immigration and Nationality Act and
the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996
The INA, as amended, provides the
primary authority for DHS to detain
certain aliens for violations of the
immigration laws. Congress expanded
legacy INS’s detention authority in
IIRIRA, Public Law 104–208, 110 Stat.
3009. In that legislation, Congress
amended the INA by providing that
certain aliens were subject to either
mandatory or discretionary detention by
the INS. This authorization flowed to
DHS after the reorganization under the
HSA. Specifically, DHS’s authority to
detain certain aliens comes from
sections 235, 236, and 241 of the INA,
8 U.S.C. 1225, 1226, and 1231. Section
235 of the INA, 8 U.S.C. 1225, provides
that applicants for admission to the
United States, including those subject to
expedited removal, shall be detained
during their removal proceedings,
although such aliens may be released on
parole in limited circumstances,
consistent with the statutory standard
set forth in 8 U.S.C. 1182(d)(5) and
standards set forth in the regulations.
Section 236 of the INA, 8 U.S.C. 1226,
provides the authority to arrest and
detain an alien pending a decision on
whether the alien is to be removed from
the United States, and section 241, 8
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U.S.C. 1231, authorizes the detention of
aliens during the period following the
issuance of a final order of removal.
Other provisions of the INA also
mandate detention of certain classes of
individuals, such as criminal aliens.
b. Homeland Security Act of 2002
As noted, the HSA, Public Law 107–
296, 116 Stat. 2135, transferred most of
the functions of the INS from DOJ to the
newly-created DHS. DHS and its various
components are responsible for border
security, interior immigration
enforcement, and immigration benefits
adjudication, among other duties. DOJ’s
EOIR retained its pre-existing functions
relating to the immigration and
naturalization of aliens, including
conducting removal proceedings and
adjudicating defensive filings of asylum
claims.
The functions regarding care of UACs
were transferred from the INS to ORR.
The HSA states ORR shall be
responsible to coordinate and
implement the care and placement of
UACs who are in Federal custody by
reason of their immigration status. ORR
was also tasked with identifying a
sufficient number of qualified
individuals, entities, and facilities to
house UACs, and with ensuring that the
interests of the child are considered in
decisions and actions relating to his or
her care and custody.
c. William Wilberforce Trafficking
Victims Protection Reauthorization Act
of 2008
Section 235 of the William
Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008
(TVPRA), Public Law 110–457, Title II,
Subtitle D, 122 Stat. 5044 (codified in
principal part at 8 U.S.C. 1232), then
stated that consistent with the HSA, and
except as otherwise provided with
respect to certain UAC from contiguous
countries (see 8 U.S.C. 1232(a)), the care
and custody of all UAC, including
responsibility for their detention, where
appropriate, shall be the responsibility
of HHS. The TVPRA, among other
things, requires federal agencies to
notify HHS within 48 hours of
apprehending or discovering a UAC, or
receiving a claim or having suspicion
that an alien in their custody is an
unaccompanied minor under 18 years of
age. 8 U.S.C. 1232(b)(2). The TVPRA
further requires that, absent exceptional
circumstances, any federal agency
transfer a UAC to the care and custody
of HHS within 72 hours of determining
that an alien in its custody is a UAC. 8
U.S.C. 1232(b)(3).
The Secretary of HHS delegated the
authority under the TVPRA to the
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Assistant Secretary for Children and
Families, 74 FR 14564 (2009), who in
turn delegated the authority to the ORR
Director, 74 FR 1232 (2009).
2. Flores Settlement Agreement
Implementation
As discussed above, in 1996 the U.S.
Government and Flores plaintiffs
entered into the FSA to resolve
nationwide the ongoing litigation
concerning the INS’s detention
regulations for alien minors. The FSA
was executed on behalf of the
Government on September 16, 1996.
The U.S. District Court for the Central
District of California approved the FSA
on January 28, 1997. The FSA became
effective upon its approval by the
district court, and provided for
continued oversight by that court.
Paragraph 9 of the FSA explains its
purpose: To establish a ‘‘nationwide
policy for the detention, release, and
treatment of minors in the custody of
the INS.’’ Paragraph 4 defines a ‘‘minor’’
as ‘‘any person under the age of eighteen
(18) years who is detained in the legal
custody of the INS,’’ but the definition
excludes minors who have been
emancipated or incarcerated due to a
criminal conviction as an adult. The
FSA established procedures and
conditions for processing,
transportation, and detention following
apprehension, and set forth the
procedures and practices that the parties
agreed should govern the INS’s
discretionary decisions to release or
detain minors and to whom they should
or may be released.
The FSA was originally set to expire
within five years, but on December 7,
2001, the Parties agreed to a termination
date of ‘‘45 days following defendants’
publication of final regulations
implementing this Agreement.’’ A copy
of the FSA and the 2001 Stipulation is
available in the docket for this
rulemaking. The primary purpose of the
regulations is to ‘‘implement[] the
Agreement,’’ and in turn to terminate
the FSA.
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3. Recent Court Orders
a. Motion To Enforce I
On January 26, 2004, Plaintiffs filed
their first motion to enforce the
agreement, alleging, among other things,
that CBP and ICE: (1) Regularly failed to
release class members 3 to caregivers
other than parents when parents refuse
to appear; (2) routinely failed to place
detained class members in the least
restrictive setting; (3) failed to provide
3 In this context, ‘‘class members’’ means minors
(as defined in the FSA), including both UACs and
accompanied minors.
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class members adequate education and
mental health services, and (4) exposed
class members to dangerous and
unhealthy conditions. Ultimately, after a
lengthy discovery process in which the
government provided Plaintiffs
numerous documents related to the
government’s compliance with the FSA,
Plaintiffs filed a Notice of Withdrawal of
Motion to Enforce Settlement on
November 14, 2005. The court
dismissed the matter on May 10, 2006.
b. Motion To Enforce II
On February 2, 2015, Plaintiffs filed a
second motion to enforce the agreement,
alleging that CBP and ICE were in
violation of the FSA because: (1) ICE’s
supposed no-release policy—i.e., an
alleged policy of detaining all femaleheaded families, including children, for
as long as it takes to determine whether
they are entitled to remain in the United
States—violated the FSA; (2) ICE’s
routine confinement of class members
in secure, unlicensed facilities breached
the Agreement; and (3) CBP exposed
class members to harsh and substandard
conditions, in violation of the
Agreement.
On July 24, 2015, the district court
granted Plaintiffs’ second motion to
enforce and denied Defendant DHS’s
contemporaneous motion to modify the
agreement. Flores v. Johnson, 212 F.
Supp. 3d 864 (C.D. Cal. 2015). The court
found: (1) The FSA applied to all alien
minors in government custody,
including those accompanied by their
parents or legal guardians; (2) ICE’s
blanket no-release policy with respect to
minors accompanied by their mothers
was a material breach of the FSA; (3) the
FSA requires Defendant DHS to release
minors with their accompanying parent
or legal guardian unless this would
create a significant flight risk or a safety
risk; (4) DHS housing minors in secure
and non-licensed FRCs violated the
FSA; and (5) CBP violated the FSA by
holding minors and UACs in facilities
that were not safe and sanitary. Id.
On August 21, 2015, the court denied
the Government’s motion to reconsider
and issued a subsequent remedial order
for DHS to implement six remedies.
Flores v. Lynch, 212 F. Supp. 3d 907
(C.D. Cal. 2015). In the decision, the
court clarified that, as provided in FSA
paragraph 12(A), in the event of an
emergency or influx, DHS need not
transfer minors to a ‘‘licensed program’’
pursuant to the 3- and 5-day
requirements of paragraph 12(A), but
must transfer such minors ‘‘as
expeditiously as possible.’’ In the
decision, the court referenced the
Government’s assertion that DHS, on
average, would detain minors who are
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45491
not UACs for 20 days—the general
length of time required to complete
credible and reasonable fear processing
at that time for aliens in expedited
removal. The court agreed that if 20
days was ‘‘as fast as [the Government]
. . . can possibly go,’’ the Government’s
practice of holding accompanied minors
in its FRCs, even if not ‘‘licensed’’ and
‘‘non-secure’’ per FSA paragraph 19,
may be within the parameters of FSA
paragraph 12(A). Id. at 914. In a
decision issued on July 6, 2016, the
Ninth Circuit agreed with the district
court that during an emergency or
influx, minors must be transferred ‘‘as
expeditiously as possible’’ to a nonsecure, licensed facility. Flores v. Lynch,
828 F.3d. 898, 902–03 (9th Cir. 2016).
The Ninth Circuit affirmed the district
court’s holding that the FSA
‘‘unambiguously’’ applies to all alien
minors and UACs in government
custody 4 and concluded the district
court did not abuse its discretion in
denying the Government’s motion to
modify the FSA. The Ninth Circuit,
however, reversed the district court’s
determination that the FSA required the
release of accompanying parents. Id.
c. Motion To Enforce III
On May 17, 2016, plaintiffs filed a
third motion to enforce the agreement,
claiming that DHS continued to violate
the agreement by: (1) Holding class
members in CBP facilities that did not
meet the requirements of the FSA; (2)
failing to advise class members of their
rights under the FSA; (3) making no
efforts to release or reunify class
members with family members; (4)
holding class members routinely with
unrelated adults; (5) detaining class
members for weeks or months in secure,
unlicensed facilities in violation of the
FSA; and (6) interfering with class
members’ right to counsel. The
Government filed a response on June 3,
2016.
On June 27, 2017, the district court
issued an opinion concluding that ICE
had not complied with the FSA because
it had failed to advise class members of
their rights under the FSA, failed to
make continuous efforts to release class
4 DHS continues to maintain that the terms of the
FSA were intended to apply only to those alien
children who were unaccompanied. In its brief
opposing the Plaintiffs’ Motion to Enforce II, DHS
pointed out that the FSA was entered into for the
purpose of settling a lawsuit challenging the
constitutionality of the Government’s policies,
practices, and regulations regarding the detention
and release of unaccompanied minors. See Def.’s
Resp. in Opp’n to Mot. To Enforce Settlement of
Class Action at 11, Flores v. Lynch, 212 F. Supp.
3d 907 (C.D. Cal. 2015) (No. CV 58–4544). This
proposed rule, however, covers both accompanied
and unaccompanied minors.
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members, and failed to release class
members as required by FSA paragraphs
12(A) and 14. The Court also found that
FRCs were unlicensed and secure.
Flores v. Sessions, No. 2:85–cv–04544
(C.D. Cal. June 27, 2017). The district
court, however, rejected the claims that
ICE had impermissibly detained class
members with unrelated adults and
interfered with class members’ right to
counsel.
The district court also concluded that
CBP acted in violation of the FSA in the
Rio Grande Valley Border Patrol Sector.
The court pointed to allegations that
CBP failed to provide class members
adequate access to food and water,
detained class members in conditions
that were not safe and sanitary, and
failed to keep the temperature of the
holding cells within a reasonable range.
The court ordered the appointment of a
Juvenile Coordinator for ICE and CBP,
responsible for monitoring the agencies’
compliance with the Agreement. The
Government’s appeal of that decision
remains pending. See Flores v. Sessions,
No. 17–56297 (9th Cir.) (docketed Aug.
28, 2017). On July 27, 2018, the district
court ordered the appointment of an
independent monitor to oversee
compliance with the June 27, 2017
Order.
d. Motion To Enforce IV
On August 12, 2016, Plaintiffs filed a
fourth motion to enforce the agreement,
claiming that ORR violated the
agreement by failing to provide UACs in
ORR custody with a bond
redetermination hearing by an
immigration judge. The Government
argued that the HSA and the TVPRA
effectively superseded the FSA’s bondhearing requirement with respect to
UACs, that only HHS could determine
the suitability of a sponsor (thus
determining release), and that
immigration judges lacked jurisdiction
over UACs in ORR custody. The district
court agreed that only HHS could
determine the suitability of a sponsor,
but disagreed that subsequent laws fully
superseded the FSA.
On January 20, 2017, the court found
that HHS breached the FSA by denying
UACs the right to a bond hearing as
provided for in the FSA. Flores v.
Lynch, No. 2:85–cv–04544, 2017 WL
6049373 (C.D. Cal. Jan. 20, 2017). The
Government appealed to the Ninth
Circuit. On July 5, 2017, the Ninth
Circuit affirmed the district court’s
ruling. The Ninth Circuit reasoned that
if Congress had intended to terminate
the settlement agreement in whole or in
part through passage of the HSA or
TVPRA, it would have said so
specifically. Flores v. Sessions, 862 F.3d
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863 (9th Cir. 2017). The Government did
not seek further review of this decision.
C. Basis and Purpose of Regulatory
Action
e. Motion To Enforce V
On April 16, 2018, Plaintiffs filed a
fifth motion to enforce the agreement,
claiming ORR unlawfully denied class
members licensed placements,
unlawfully medicated youth without
parental authorization, and
peremptorily extended minors’
detention on suspicion that available
custodians may be unfit. On July 30,
2018, the district court issued an Order.
Flores v. Sessions, 2:85–cv–04544–
DMG–AGR (ECF No. 470, Jul. 30,
2018).5 The Order discussed the Shiloh
Residential Treatment Center and
placement therein, as well as informed
consent for psychotropic drugs in such
Center; placement in secure facilities;
notice of placement in secure and staffsecure facilities; Director-level review of
children previously placed in secure or
staff-secure facilities and other issues.
Readers should refer to the full Order
for details.
1. Need for Regulations Implementing
the Relevant and Substantive Terms of
the FSA
Under the requirements of the FSA,
when DHS apprehends an alien parent
or legal guardian with his or her
child(ren) either illegally entering the
United States between the ports of entry
or found inadmissible at a port of entry,
it has, following initiation of removal
proceedings, three primary options for
purposes of immigration custody: (1)
Parole all family members into the
United States; (2) detain the parent(s) or
legal guardian(s) and either release the
juvenile to another parent or legal
guardian or transfer them to HHS to be
treated as an UAC; or (3) detain the
family unit together by placing them at
an appropriate FRC during their
immigration proceedings. The practical
implications of the FSA, including the
lack of state licensing for FRCs, have
effectively prevented the Government
from using the third option for more
than a limited period of time. This rule
would, when finalized, eliminate that
barrier and allow for the full range of
options at each stage of proceedings.
On June 20, 2018, the President
issued Executive Order 13841
specifying that ‘‘[i]t is . . . the policy of
this Administration to maintain family
unity, including by detaining alien
families together where appropriate and
consistent with law and available
resources.’’ E.O. 13841 sec. 1, 83 FR
29435. The President further provided
that the Secretary of Homeland Security
(Secretary), shall, to the extent
permitted by law and subject to the
availability of appropriations, maintain
custody of alien families during the
pendency of any . . . immigration
proceedings involving their members.’’
Id. sec. 3. The President further directed
agency components to make available
additional facilities for housing families.
Id. sec. 3(c), (d). And the President
provided that the Attorney General
‘‘shall, to the extent practicable,
prioritize the adjudication of cases
involving detained families.’’ Id. sec. 4.
There are several advantages to
maintaining family unity during
immigration proceedings. Those include
the interest in the child being with and
under the considerate care of the parent,
the strong interest parents have in
caring for their children, the guidance
parents can provide to children during
immigration proceedings and the
manner in which keeping families
together facilitates communications
among family members, the
consolidation of the family members’
f. Motion for Relief
On June 21, 2018, in accordance with
the President’s June 20, 2018, Executive
Order ‘‘Affording Congress an
Opportunity to Address Family
Separation,’’ the Government sought
limited emergency relief from two
provisions of the FSA—the release
provision of Paragraph 14, as well as the
licensing requirements of Paragraph 19.
This relief was sought in order to permit
DHS to detain alien family units
together for the pendency of their
immigration proceedings. The court
denied this motion on July 9, 2018.
This Motion to Modify sought relief
consistent with this proposed rule,
although this rule includes some
affirmative proposals (like the federallicensing regime) that were not at issue
in that motion. For example, as
discussed below, by creating a federal
licensing scheme for FRCs, the proposed
rule would eliminate a barrier to
keeping family units in detention during
their immigration proceedings,
consistent with all applicable law while
still providing similar substantive
protections to minors.6
5 The Department of Justice has not yet decided
whether to appeal the July 30 order.
6 At the time of the publication of this proposed
rule, the issue of family separation and
reunification is the subject of litigation in multiple
jurisdictions. This proposed rule is not intended to
directly address matters related to that litigation. A
significant purpose of the proposed rule with regard
to accompanied minors is to allow decisions
regarding the detention of families to be made
together as a unit, under a single legal regime, and
without having a disparate legal regime applicable
to the parent versus the child.
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removal proceedings, and to facilitate
the physical removal of a family
together as a unit if immigration relief
is unavailable. But the practical
implications of the FSA, and in
particular the lack of state licensing for
FRCs and the release requirements for
minors, have effectively prevented the
Government from using family
detention for more than a limited period
of time, and in turn often led to the
release of families. That combination of
factors may create a powerful incentive
for adults to bring juveniles on the
dangerous journey to the United States
and then put them in further danger by
illegally crossing the United States
border—in the hope, whether correct or
not, that having a juvenile will result in
an immediate release into the United
States. At the same time, the second
choice—that of separating family
members so the adult may be held in
detention pending immigration
proceedings—is to be avoided when
possible, and has generated significant
litigation. See Ms. L v. ICE, No. 18–428
(S.D. Cal.).
This rule serves to clear the way for
the sensible use of family residential
centers when it is lawful and
appropriate. In particular, it would
create a federal licensing process to
resolve the current problem caused by a
state-licensing requirement that is illsuited to family detention, and it would
allow for compatible treatment of a
family unit in immigration custody and
proceedings by eliminating barriers to
that compatibility imposed by the FSA.
Further, it would eliminate the
disparate legal regime that currently
applies to decisions to detain a family
unit, with one regime applying to the
minor (the FSA, including the statelicensing requirement and release
provisions under FSA paragraph 14)
and another regime applying to the
parent (the existing statutes and
regulations governing release on bond or
parole under the relevant
circumstances). That disparate regime
creates problems for maintaining family
unity while also enforcing the
immigration laws. Instead, the proposed
rule would ensure that a single regime
applies to the family unit, namely, the
existing statutes and regulations
governing release on bond or parole.
This rule would allow for detention at
FRCs for the pendency of immigration
proceedings (subject to all applicable
statutes and regulations governing their
detention or release) in order to permit
families to be detained together and
parents not be separated from their
children. It is important that family
detention be a viable option not only for
the numerous benefits that family unity
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18:16 Sep 06, 2018
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provides for both the family and the
administration of the INA, but also due
to the significant and ongoing influx of
adults who have made the choice to
enter the United States illegally with
juveniles or make the dangerous
overland journey to the border with
juveniles, a practice that puts juveniles
at significant risk of harm. The
expectation that adults with juveniles
will remain in the United States outside
of immigration detention may
incentivize these risky practices.
In the summer of 2014, an
unprecedented number of family units
from Central America illegally entered
or were found inadmissible to the
United States. In Fiscal Year 2013, the
total number of family units
apprehended entering the United States
illegally on the Southwest Border was
14,855. By Fiscal Year 2014, that figure
had increased to 68,445. See https://
www.cbp.gov/sites/default/files/assets/
documents/2017-Dec/BP%20Total
%20Monthly%20Family%20Units
%20by%20Sector%2C%20FY13FY17.pdf.
TABLE 1—FAMILY UNIT APPREHENSIONS AT THE SOUTHWEST BORDER
BY FISCAL YEAR 7
Family unit
apprehensions
at the
Southwest
Border
Fiscal Year
2013 ......................................
2014 ......................................
2015 ......................................
2016 ......................................
2017 ......................................
2018 * ....................................
14,855
68,445
39,838
77,674
75,622
77,802
* Partial year data for FY 2018; does not include August and September.
Prior to 2014, the only option
available to the Government for the
large majority of family units entering
the United States was the first option
described above—i.e., to issue the
family a Notice to Appear and release
the alien family to temporarily remain
in the United States pending their
removal proceedings. Thus, when an
unprecedented number of families
decided to undertake the dangerous
journey to the United States in 2014,
DHS officials faced an urgent
humanitarian situation. DHS
encountered numerous alien families
and juveniles who were hungry, thirsty,
7 See https://www.cbp.gov/sites/default/files/
assets/documents/2017-Dec/BP%20Total
%20Monthly%20Family%20Units%20by%
20Sector%2C%20FY13-FY17.pdf (last visited
August 17, 2018) See also https://www.cbp.gov/
newsroom/stats/sw-border-migration (last visited
August 17, 2018).
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exhausted, scared, vulnerable, and at
times in need of medical attention, with
some also having been beaten, starved,
sexually assaulted or worse during their
journey to the United States.
DHS mounted a multi-pronged
response to this situation. As one part
of this response, DHS placed families at
existing FRCs and oversaw the
construction of appropriate facilities to
detain family units together, in a safe
and humane environment, during the
pendency of their immigration
proceedings, which typically involved
expedited removal. Although it is
difficult to definitively prove a causal
link given the many factors that
influence migration, DHS’s assessment
is that this change helped stem the
border crisis, as it correlated with a
significant drop in family migration:
Family unit apprehensions on the
Southwest Border dropped from 68,445
in Fiscal Year 2014 to 39,838 in Fiscal
Year 2015.
Although the border crisis prompted
DHS to hold family units together, DHS
quickly faced legal challenges asserting
that the FSA applied to accompanied
minors and that family detention did
not comply with the provisions of the
FSA. In July 2015, a federal court
rejected the Government’s interpretation
of the FSA to permit family residential
centers, and declined to modify the FSA
to allow DHS to address this significant
influx of family units crossing the
border and permit family detention. See
Flores v. Lynch, 828 F.3d 898, 909–10
(9th Cir. 2016). The Government had
explained to the court that doing so
would ‘‘mak[e] it impossible for ICE to
house families at ICE [FRCs], and to
instead require ICE to separate
accompanied children from their
parents or legal guardians.’’ Flores v.
Lynch, No. 85–4544, Defendants’
Opposition to Motion to Enforce, ECF
121 at 17 (C.D. Cal. Feb. 27, 2015).
When the FSA was found to apply to
accompanied minors—an interpretation
with which the Government continues
to disagree—the agencies faced new
practical problems. The FSA requires
DHS to transfer minors to a non-secure,
licensed facility ‘‘as expeditiously as
possible,’’ and further provides that a
‘‘licensed’’ facility is one that is
‘‘licensed by a State agency.’’ FSA
paragraphs 6, 12(A). That prompted
significant and ongoing litigation
regarding the ability to obtain state
licensing of FRCs, as many States did
not have, and have not succeeded in
putting in place, licensing schemes
governing facilities that hold family
units together. That litigation severely
limited the ability to maintain detention
of families together. Again, although it
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is difficult to definitively prove the
causal link, DHS’s assessment is that the
link is real, as those limitations
correlated with a sharp increase in
family migration: The number of family
unit apprehensions by CBP again
spiked—from 39,838 in Fiscal Year 2015
to the highest level ever, 77,674 in
Fiscal Year 2016. The number of such
apprehensions along the Southwest
Border has continued to rise, and has
now reached 77,802 in Fiscal Year 2018,
with two months remaining in the fiscal
year and a rate of nearly 10,000 per
month for the past four months. See
Southwest Border Migration 2018,
https://www.cbp.gov/newsroom/stats/
sw-border-migration.
As long as the licensing must come
from a state specifically (rather than
from the federal government), DHS’s
ability to effectively use family
detention is limited. A federal program
(especially immigration enforcement)
that the Constitution and Congress
commit to federal discretion should not
depend on state licensing, particularly
when a well-established state licensing
scheme does not already exist. In order
to avoid separating family units, DHS
needs to release adult family members
in cases where detention would
otherwise be mandatory and DHS
determines parole is not appropriate, or
in cases where DHS and/or immigration
courts believe detention of the parent is
needed to ensure appearance at future
removal proceedings or to prevent
danger to the community.8 Because of
ongoing litigation concerning state
licensure for FRCs, ICE rarely is able to
hold family units for longer than
approximately 20 days. The result is
that many families are released in the
interior of the United States. While
statistics specific to family units have
not been compiled, the reality is that a
significant number of aliens who are not
in detention either fail to appear at the
required proceedings or never actually
seek asylum relief, thus remaining
illegally in the United States. See
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8 Current
parole regulations address parole,
including for juveniles in custody as well as parole
for aliens subject to expedited removal. See 8 CFR
212.5(b)(3) (parole for juveniles); 8 CFR
235.3(b)(2)(iii), (b)(4)(ii) (limiting parole for those in
expedited removal proceedings). While DHS
proposes amendments to section 212.5(b) as a part
of this regulation, this regulation is not intended to
address or alter the standards contained in sections
212.5(b) or 235.3(b). To the extent that paragraph
14 of the FSA has been interpreted to require
application of the juvenile parole regulation to
release during expedited removal proceedings, see
Flores v. Sessions, Order at 23–27 (June 27, 2017),
this regulation is intended to permit detention in
FRCs in lieu of release (except where parole is
appropriate under 8 CFR 235.3(b)(2)(iii) or (b)(4)(ii))
in order to avoid the need to separate or release
families in these circumstances.
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https://www.justice.gov/eoir/file/
1083096/download (in FY 2018 to date,
26 percent of case completions for
individual case completions are in
absentia orders, and 53 percent of case
completions for unaccompanied minors
are in absentia orders).
As described above, there have been
several important changes in law and
circumstance since FSA was executed:
(1) A significantly changed agency
structure addressing the care and
custody of juveniles, including the
development of FRCs that provide
appropriate treatment for minors while
allowing them to be held together with
their families; (2) a new statutory
framework that governs the treatment of
UACs; (3) significant increases in the
number of families and UACs crossing
the border since 1997, thus affecting
immigration enforcement priorities and
national security; and (4) further
recognition of the importance of keeping
families together during immigration
proceedings when appropriate and the
legal and practical implications of not
providing uniform proceedings for
family units in these circumstances. The
agencies have thus determined that it is
necessary to put into place regulations
that comply with the relevant and
substantive terms of the FSA regarding
the conditions for custodial settings for
minors, but, through federal licensing,
will provide the flexibility necessary to
protect the public safety and enforce the
immigration laws given current
challenges that did not exist when the
FSA was executed. This proposed rule
will provide DHS with the option of
keeping families who must or should be
detained together at appropriately
licensed FRCs for the time needed to
complete immigration proceedings,
subject to the sound implementation of
existing statutes and regulations
governing release on parole or bond.
2. Purpose of the Regulations
The primary purpose of this action is
to promulgate regulations that would
ultimately lead to the termination of the
FSA, as provided for in FSA paragraph
40. This proposed rule would
implement the relevant and substantive
terms of the FSA and provisions of the
HSA and TVPRA where they necessarily
intersect with the FSA’s provisions. The
rule would also make some
modifications to the literal text of the
FSA, but while providing similar
substantive protections to juveniles. For
example, the rule would allow for
detention of families together in
federally-licensed programs (rather than
facilities licensed specifically by a
state). States generally do not have
licensing schemes for family residential
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centers. Thus, the literal text of the FSA
currently imposes a limitation on DHS’s
ability to detain family units together in
a FRC during their immigration
proceedings, consistent with applicable
law. The federal licensing scheme in
turn would provide similar substantive
protections regarding the conditions of
such facilities, and thus implement the
underlying purpose of the statelicensing requirement.
This rule is proposed under the FSA’s
guiding principle that the Government
treats, and shall continue to treat, all
juveniles in its custody with dignity,
respect, and special concern for their
particular vulnerability as minors.
The current DHS regulations on the
detention and release of aliens under
the age of 18 found at 8 CFR 236.3 have
not been substantively updated since
their promulgation in 1988.9 DHS
therefore proposes to revise 8 CFR 236.3
to promulgate the relevant and
substantive terms of the FSA as
regulations. In addition, there are
currently no HHS regulations on this
topic. HHS proposes a new 45 CFR part
410 for the same reason.
As noted, the proposed regulations
would implement the relevant and
substantive terms of the FSA and related
statutory provisions. Separate from the
FSA, DHS has over time developed
various policies and other subregulatory documents that address
issues related to DHS custody of minor
aliens and UACs.10 In considering these
proposed regulations, DHS reviewed
such policies, and determined that the
proposed regulations are compatible
with them. Current policies on the
detention, apprehension, and
transportation of minors and UACs
generally would not, therefore, need to
be altered to bring them into conformity
with the proposed rule. This rule is not,
however, intended to displace or
otherwise codify such policies and
procedures.
Finally, this proposed rule excludes
those provisions of the FSA that are
9 See Detention and Release of Juveniles, 53 FR
17449 (May 17, 1998). When published as a final
rule, the provisions applying to the detention and
release of juveniles were originally placed in 8 CFR
242.24. After Congress passed IIRIRA, the former
INS published a final rule updating several
immigration-related provisions of the CFR and
moved these provisions from section 242.24 of Title
8 to § 236.3. See Inspection and Expedited Removal
of Aliens; Detention and Removal of Aliens;
Conduct of Removal Proceedings; Asylum
proceedings, 62 FR 10312 (Mar. 6, 1997).
10 See, e.g., ICE, Family Residential Standards,
https://www.ice.gov/detention-standards/familyresidential (last visited May 1, 2018); CBP, National
Standards on Transport, Escort, Detention, and
Search (Oct. 2015), https://www.cbp.gov/sites/
default/files/assets/documents/2017-Sep/
CBP%20TEDS%20Policy%20Oct2015.pdf (last
visited May 1, 2018).
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relevant solely by virtue of the FSA’s
existence as a settlement agreement. For
instance, the FSA contains a number of
special provisions that relate
specifically to class counsel and the
supervising court with respect to the
Departments’ compliance with the FSA.
Following termination of the FSA, such
provisions will no longer be necessary,
because compliance with the published
regulations will replace compliance
with the settlement agreement. As a
result, they are not included in this
proposed rule.11
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V. Discussion of Elements of the
Proposed Rule
As stated above, the purpose of this
rule is to terminate the FSA by to
promulgating regulations that
implement it, with minor modifications
to reflect changes in governing law and
the operational realities on the ground.
These proposed regulations, therefore,
largely replicate the language of the FSA
for publication in the Code of Federal
Regulations. The Departments propose
some modifications to the literal text of
the FSA, however, to ensure the
Government continues to comply with
the underlying goals of the FSA in a
legal and operational environment that
has significantly changed since the FSA
was signed over 20 years ago.
The Departments have different
responsibilities vis-a`-vis
implementation of the FSA, and so each
Department’s proposed regulatory text
seeks to address these various
responsibilities. DHS’s proposed
regulations seek to establish procedures
for the apprehension, processing, care,
custody, and release of alien minors,
consistent with its obligations under the
FSA. While the following sections
explain why the proposed regulations
do not adopt the literal text of the FSA
in certain circumstances, one notable
change is the proposal for an alternative
licensing process that would allow FRCs
to be considered ‘‘licensed programs’’
under FSA paragraph 6, and thus
suitable for the detention of non-UAC
minors, along with their accompanying
parents or legal guardians, for longer
periods of time than they are currently
used. DHS proposes these changes to
allow the Department to fully and
consistently apply the law to all aliens
who are subject to detention, so that
11 For instance, paragraphs 32(A), (B), and (D),
and 33 of the FSA grants Flores class counsel
special access to covered minors and to certain
facilities that hold such minors; it is unnecessary
to codify these provisions in regulation. Similarly,
paragraphs 29 to 31 include special reporting
requirements with respect to class counsel and the
supervising court; reporting to these entities would
be unnecessary following termination of the FSA.
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aliens do not have the opportunity to
abscond from DHS custody simply
because they were encountered with
children.
HHS’s proposed regulations seek to
establish procedures for the processing,
care, custody, and release of certain
UACs that by law are subject to the care
and custody of ORR.
A. DHS Regulations
DHS proposes to make edits to current
section 212.5 primarily to ensure that
the terminology used in that section is
consistent with the language used in the
additional proposed amendments
codifying the FSA, explained below.
DHS proposes to remove the term
‘‘juvenile’’ from 8 CFR 212.5(b) and
replace it with ‘‘minor in DHS custody,’’
as the proposed amendments to 8 CFR
236.3 remove the term ‘‘juvenile,’’ from
its definitions section.
DHS also proposes to remove the
words ‘‘relative,’’ ‘‘brother,’’ ‘‘sister,’’
‘‘aunt,’’ ‘‘uncle,’’ ‘‘or grandparent,’’ and
replace these terms with ‘‘parent or legal
guardian.’’ Given that, pursuant to the
HSA and TVPRA, DHS does not have
the legal authority to release a juvenile
in its custody to anyone other than a
parent or legal guardian,12 allowing
these terms to remain in the regulatory
text improperly implies that DHS will
engage in an activity not authorized by
statute, i.e. releasing a minor on parole
into the custody of someone other than
a parent or legal guardian. Further, DHS
is proposing to remove paragraph
(b)(3)(iii) in its entirety due to the same
constraints on its legal authority to
release minors to individuals who are
not parents or legal guardians. DHS is
also proposing to replace the term
‘‘Director, Deportation and Removal,’’
with ‘‘Executive Assistant Director,
Enforcement and Removal Operations,’’
to reflect the current title of the position
used within DHS.
DHS is also proposing to remove the
cross-reference to section 235.3(b) as it
currently appears in section 212.5(b), to
eliminate an ambiguity and to codify its
longstanding understanding of how
certain provisions in section 235.3(b)
relating to parole of aliens in expedited
removal proceedings apply to minors. In
particular, eliminating that cross
reference would make it clear that the
provisions in section 235.3(b) governing
parole of an aliens in expedited removal
apply to all such aliens, and not merely
adults. The current cross-reference to
section 235.3(b) is confusing, however,
because it suggests that the more
flexible standard in section 212.5(b)
12 See further explanation infra under discussion
of proposed 236.3(g), including note 20.
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45495
might override those provisions when a
minor is in expedited removal. DHS
disagrees with that interpretation of its
current regulations, which, among other
things, is in tension with the text of the
relevant statutory provision. See 8
U.S.C. 1225(b)(1)(B)(iii)(IV) (‘‘Any alien
subject to [expedited removal] shall be
detained pending a final determination
of credible fear of persecution and, if
found not to have such a fear, until
removed.’’). DHS is accordingly
amending section 212.5(b) to codify its
understanding and to eliminate the
ambiguity and any potential tension
with the statute. This change is
discussed more fully below.’’ DHS
proposes to revise its current regulations
on the detention and release of minor
aliens by replacing section 236.3 in its
entirety. Proposed paragraph 236.3(a)(1)
codifies the FSA’s general policy
statement, found in paragraph 11 of the
FSA, that minors and UACs in DHS
custody shall be treated with dignity,
respect, and special concern for their
particular vulnerability.
Current section 236.3 on the
‘‘Detention and release of juveniles’’ is
silent with respect to whether its
provisions apply to aliens detained
under mandatory or discretionary legal
authorities. This distinction is often
meaningful in immigration law because
the authority under which aliens are
detained may dictate which regulations
apply to those detained aliens.
However, the FSA does not distinguish
the applicability of its provisions as
between aliens held under mandatory or
discretionary legal authorities. Proposed
§ 236.3(a)(2), therefore, provides that the
provisions of the section apply equally
to those minors who are subject to
mandatory detention as those subject to
discretionary detention, to the extent
authorized by law.
Proposed 8 CFR 236.3(b)—Definitions
The current regulations at section
236.3(a) contain a single definition of
the term ‘‘juvenile,’’ which is defined as
any alien under the age of 18. The FSA
does not use the term ‘‘juvenile,’’ but it
contains several other terms of art that
must be defined in DHS regulations to
parallel the terms of the agreement. This
proposed rule, therefore, removes the
term ‘‘juvenile’’ from the definitions in
section 236.3 and adds several other
definitions that are either explicitly
written into the FSA or are necessary to
understanding the FSA’s provisions,
given the changes in law that have
occurred since the FSA’s signing.
Minor and UAC. Proposed § 236.3(b)
removes the definition of ‘‘juvenile,’’
because the term, defined as any alien
under the age of 18, is too broad to be
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a useful definition for the purposes of
this proposed rule. Instead, proposed
§ 236.3(b) replaces the term ‘‘juvenile’’
with two definitions: ‘‘minor,’’ as it is
defined in the FSA, and unaccompanied
alien child (UAC), as it is defined in 6
U.S.C. 279(g)(2). The distinction
between these two groups of juveniles
became legally relevant for DHS’s
actions because the TVPRA authorizes
only ORR to be responsible for the care
and custody of UACs. See 6 U.S.C.
279(b)(1); 8 U.S.C. 1232(b)(1).
The definitions of minor and UAC are
not mutually exclusive, because
although most UACs will also meet the
definition of minor, some will not. For
instance, an alien juvenile who has been
legally emancipated does not meet the
definition of a minor as set out in the
FSA, so the provisions of this proposed
rule would not apply to that juvenile.
The definition of UAC, however, does
not exclude emancipated juveniles.
Thus, if an immigration officer
encounters any alien juvenile
(regardless of whether such juvenile has
been emancipated) who has no lawful
immigration status, has not attained 18
years of age, and has no parent or legal
guardian present in the United States or
no parent or legal guardian is available
to provide care and physical custody for
that juvenile, the juvenile meets the
definition of a UAC, and the
immigration officer must transfer the
juvenile to HHS as set forth under this
rule. While the proposed rule does not
include a definition of juvenile, this
preamble uses the term juvenile to mean
any alien under the age of 18.
Emergency and Influx. The FSA also
includes definitions of ‘‘emergency’’
and ‘‘influx,’’ to explain the
circumstances under which the FSA
permits the Government more than
three or five days to transfer juveniles to
licensed programs. The proposed rule
would add definitions of both
‘‘emergency’’ and ‘‘influx’’ to the
regulations in the definitions section at
236.3(b), capturing the relevant and
substantive terms of paragraph 12(B) of
the FSA. The proposed definition of
emergency largely tracks the existing
text of the FSA, except that it reflects
DHS’s recognition that emergencies may
not only delay placement of minors, but
could also delay compliance with other
provisions of this proposed rule, or
excuse noncompliance on a temporary
basis. For example, access to a snack or
meal may be delayed if a minor is being
transported from a facility in the path of
a major hurricane to another facility in
a safer location and that transportation
happens during a time when the minor
would have access to a snack or meal.
Once at a safe location or the emergency
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otherwise abates, the schedule would
return to normal for those minors.
Under current procedures, the
disruption of the scheduled items due to
the emergency, and the cause of the
delay, would be noted in the applicable
system of records for those minors who
were impacted.
The impact, severity, and timing of a
given emergency situation dictate the
operational feasibility of providing
certain items to minors, and thus the
regulations cannot contain every
possible reality DHS will face. Thus, the
definition of ‘‘emergency’’ is flexible
and designed to cover a wide range of
possible emergencies.
The FSA defines an influx as a
situation where legacy ‘‘INS has, at any
given time, more than 130 minors
eligible for placement in a licensed
program under Paragraph 19, including
those who have been so placed or are
awaiting such placement.’’ Accordingly,
as proposed, DHS would adopt this
definition of ‘‘influx’’ without change,
except to reflect the transfer of
responsibilities from legacy INS to DHS
and ORR, and to reflect that DHS
maintains custody of minors, as defined
in this section, and, for the short period
pending their transfer to ORR, UACs.
However, DHS regularly has more
than 130 minors and UACs in custody
who are eligible for placement in a
licensed program, and for years has
been operating at the current FSA
definition of ‘‘influx.’’ DHS nonetheless
believes that this defined term
continues to be useful in the context in
which it is used. As reflected in the
discussion of proposed § 236.3(e) below,
the main implication of the threshold
for an ‘‘influx’’ is that in general, under
the FSA, DHS is required to transfer
non-UAC minors to licensed facilities
‘‘as expeditiously as possible’’ rather
than within either a 3- or a 5-day
timeframe, because DHS is currently
operating under an influx. Notably, the
FSA’s transfer timeframes no longer
control for DHS operations with respect
to UACs—the TVPRA requires that
UACs be transferred out of DHS custody
within 72 hours of determining that the
alien is a UAC, absent exceptional
circumstances. As a result, although the
number of UACs in custody could
impact whether DHS is operating under
an ‘‘influx,’’ the transfer of UACs to
ORR remains governed by the
requirements of the TVPRA at all times.
Given current operational realities, the
‘‘as expeditiously as possible’’
timeframe contained in the FSA remains
appropriate and consistent with DHS’s
goal to expeditiously transfer minors
who are not UACs. DHS also notes that
even under this standard, i.e., even in
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current ‘‘influx’’ conditions, CBP
generally transfers minors who are not
UACs out of its facilities within 3 to 5
days.
DHS nonetheless welcomes public
comment on whether it would be
appropriate to revise the definition of
influx to better reflect current
operational realities. For instance, DHS
could define an influx as a situation in
which DHS determines that
significantly more minors or UACs are
awaiting transfer than facility space is
available to accommodate them, which
prevents or delays timely transport or
placement of minors or impacts other
conditions provided by the regulations.
This definition may effectively codify
the relevant and substantive terms of the
FSA in today’s context. It would also
allow for flexibility across the national
operations of DHS, without imposing a
hard numerical trigger for when the
definition of ‘‘influx’’ applies. Under
this option, DHS would not be operating
under an ‘‘influx’’ as a steady state, as
the FSA’s definition of influx currently
requires; instead, an influx would only
exist when there is a significant number
of minors or UACs compared to
available bed space in licensed
facilities, and that the surrounding
circumstances prevent or delay the
timely transport or placement of minors
or impact other conditions provided by
the regulations. A single factor alone
would not trigger such a provision.
Licensed Facility and Non-Secure.
Paragraph 6 of the FSA defines
‘‘licensed program’’ as a program,
agency, or organization that is ‘‘licensed
by a State agency to provide residential,
group, or foster care services for
dependent children.’’ Under paragraph
6, a ‘‘licensed program’’ as used in the
agreement must generally be ‘‘nonsecure,’’ except in certain cases for
special needs minors. The proposed rule
in section 236.3(b)(9) & (b)(11) includes
definitions of ‘‘licensed facility’’ and
‘‘non-secure’’ to conform as closely as
possible to the terms and purpose of the
FSA while responding to operational
realities of ICE’s temporary detention of
minors. To parallel the provisions of
FSA paragraph 6, DHS is proposing that
facilities that temporarily detain minors
obtain licensing where appropriate
licenses are available from a state,
county, or municipality in which the
facility is located.
However, most states do not offer
licensing for facilities like these FRCs,
i.e., locations that house minors together
with their parents or legal guardians.
And those states that have previously
offered licensing for FRCs have had
their licensing schemes challenged (and
in at least one case invalidated) through
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litigation.13 That has imposed a barrier
to the continued use of FRCs: It is
difficult to continue to detain a family
in a state-licensed facility, so continued
application of a state-licensing
requirement can effectively require DHS
to release children (but not their
parents) from the FRC. The proposed
rule would eliminate that barrier to the
continued use of FRCs by creating an
alternative federal licensing scheme for
such detention. The goal is to provide
materially identical assurances about
the conditions of confinement at that
facility, and thus to implement the
underlying purpose of the FSA’s
licensing requirement. It would in turn
allow decisions regarding the detention
of families to be made together as a unit,
under a single legal regime (the
background rules regarding detention
and release), rather than under two
different regimes (one applicable to the
parent and another to the child).
Specifically, DHS proposes that if no
such licensing scheme is available in a
given jurisdiction, a facility will be
considered licensed if DHS employs an
outside entity to ensure that the facility
complies with family residential
standards established by ICE. This
alternative licensing process is being
proposed to enable DHS to house
minors together with their parents or
legal guardians in FRCs, subject to
appropriate standards and oversight,
even in jurisdictions in which an
applicable licensing regime is
unavailable. By providing an alternative
to state licensure where such licensure
is unavailable, DHS would
appropriately preserve its ability to
detain minors together with their
parents or legal guardians throughout
the removal process, if DHS decides,
consistent with the standards in the
proposed rule and applicable statutes
and regulations, that it is necessary or
appropriate to maintain custody for
more than a brief period. Moreover, the
alternative federal licensing scheme
would provide effectively the same
substantive protections that the statelicensing requirement exists to provide,
and accordingly fulfill the underlying
purpose of the state-licensing
requirement under the FSA. And by
requiring DHS to hire an auditor to
ensure compliance with ICE’s detention
13 See, e.g., Grassroots Leadership, Inc. v. Tex.
Dep’t of Family and Protective Servs., No. D–1–GN–
15–004336 (Tex. Dist. Ct. amended final judgment
Dec. 2, 2016) (finding regulatory scheme for FRCs
invalid); Commonwealth of Pa., Dep’t of Human
Servs., Adjudication and Order, Pa. Dep’t of Human
Servs., Bureau of Hearings and Appeals, BHA
Docket No. 061–16–0003 (Apr. 20, 2017) (ordering
the Pennsylvania Department of Human Services to
rescind its revocation of the license for Berks).
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standards, DHS’s alternative licensing
process would mirror analogous state
licensure processes for detention centers
and achieve the goals of state licensure
by providing third-party oversight of a
facility’s compliance with an
established set of standards.
Finally, while the FSA uses the term
‘‘non-secure,’’ as a part of the definition
of a licensed program, the FSA does not
define this term. The proposed rule
provides a definition of non-secure to
provide clarity on the use of this term
in the immigration detention context.
Like the availability of a license for
FRCs, the definition of a non-secure
facility may vary by state or locality.
Accordingly, DHS proposes that a
facility will be deemed non-secure if it
meets its state’s or locality’s definition,
but if no such definition is provided by
the state or locality, the proposed rule
provides that a facility will be deemed
non-secure if it meets an alternative
definition derived from Pennsylvania’s
definition of secure care.14
Other definitions. The FSA also
contains definitions of the terms
‘‘special needs minor’’ and ‘‘escaperisk,’’ which DHS proposes to adopt.15
DHS does not propose to adopt the
FSA’s term ‘‘medium security facility’’
because DHS does not maintain any
medium security facilities for the
temporary detention of minors, and the
definition is now unnecessary. The
proposed rule does, however, add
definitions of the terms ‘‘custody,’’
‘‘family unit,’’ and ‘‘family residential
center’’ because the enactment of the
TVPRA and current DHS detention
practices require the use of these terms
to accurately describe the requirements
and processes necessary in the
apprehension, processing, care, and
custody of alien juveniles.
Proposed 8 CFR 236.3(c)—Age
Determination
Determining the age of an alien is not
discussed in the current regulations, but
is essential for DHS to apply the
14 See
Pa. Code 3800.5 (describing ‘‘secure care’’
as that which is provided in a 24-hour living setting
for delinquent children from which ‘‘voluntary
egress’’ is prohibited from the building through
internal or exterior locks or from the premises
through secure, perimeter fencing). DHS chose to
use Pennsylvania’s definition as a starting point for
this proposed definition because of the three family
residential centers (FRCs) currently in operation,
the facility located in Berks County, PA, is the
longest operating of the FRCs.
15 The FSA’s definition of ‘‘escape-risk’’ allows
consideration of, inter alia, whether ‘‘the minor has
previously absconded or attempted to abscond from
INS custody.’’ This proposed rule would
specifically identify absconding from any federal or
state custody as a relevant factor, not just the
custody of INS or its successor agencies. This
change is consistent with the FSA, which provides
only a non-exhaustive list of considerations.
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appropriate provisions of the FSA and
the TVPRA to an alien in its custody.
Paragraph 13 of the FSA provides a
‘‘reasonable person’’ standard for
determining whether a detained alien is
an adult or a minor. Paragraph 13 also
allows medical or dental examinations
by a medical professional, or other
appropriate procedures, for purposes of
age verification. Proposed 8 CFR
236.3(c) would incorporate the FSA’s
‘‘reasonable person’’ standard and the
FSA’s standards with respect to medical
and dental examinations, and would
also be consistent with the TVPRA’s
standards for determining whether an
alien is under or over the age of 18. The
proposed rule would add that age
determinations must be based on the
totality of the evidence and
circumstances.
Proposed 8 CFR 236.3(d)—Determining
Whether an Alien Is a UAC
The current regulations make no
distinction between UACs and other
minors. While no distinction is
included in the language of the FSA,
such a distinction is made necessary by
the HSA and TVPRA, as explained
above. Accordingly, proposed 8 CFR
236.3(d) would explain when DHS
makes a determination whether an alien
juvenile is a UAC. Under the proposed
rule, immigration officers will make a
determination of whether an alien meets
the definition of a UAC each time they
encounter the alien. Therefore, even
though an alien may have been
previously determined to be a UAC, the
alien may no longer meet the statutory
definition of a UAC if the alien reaches
the age of 18, acquires legal status, or if
a parent or legal guardian is available in
the United States to provide care and
physical custody. The proposed
paragraph also highlights that, once an
alien no longer meets the definition of
a UAC, the legal protections afforded
only to UACs under the law cease to
apply.
Proposed 8 CFR 236.3(e)—Transfer of
Minors Who Are Not UACs From One
Facility to Another
This section of the proposed rule
would address the FSA’s requirement
that minors and UACs be transferred to
and placed in ‘‘licensed programs.’’
Paragraph 12(A) of the FSA requires
DHS to place in a licensed program
those minors who are not released. As
mentioned above, the FSA defines a
licensed program as a program, agency,
or organization that is ‘‘licensed by a
State agency to provide residential,
group, or foster care services for
dependent children.’’ Facilities operated
by licensed programs must be non-
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secure, unless it is appropriate to house
such minors in secure detention
facilities. Currently, the only non-secure
facilities in which ICE detains minors
who are not UACs are the FRCs.16 When
appropriate, ICE places minors in FRCs
together with their parents or legal
guardians until ICE can release the
minor.
As discussed above in connection
with the proposed definition of
‘‘licensed facility’’ in proposed
§ 236.3(b)(9), this proposed rule would
create an alternative system of
regulating facilities, in lieu of state
licensure. This system would allow ICE
to make decisions regarding the
detention of families together as a unit,
under the applicable legal standard,
while fulfilling the goals of state
licensure by ensuring independent
oversight of FRCs.
FSA paragraph 12(A) provides that
legacy ‘‘INS will transfer a minor from
a placement under this paragraph to a
placement under Paragraph 19 [i.e., a
licensed program] . . . within three (3)
days, if the minor was apprehended in
an INS district in which a licensed
program is located and has space
available; or (ii) within five (5) days in
all other cases; except’’ in certain
circumstances, including ‘‘in the event
of an emergency or influx of minors into
the United States, in which case the INS
shall place all minors pursuant to
Paragraph 19 as expeditiously as
possible.’’ As noted in the discussion
above regarding the FSA’s definition of
‘‘influx,’’ DHS has continuously been
dealing with an ‘‘influx’’ of minors, as
that term is defined in the FSA.
Accordingly, the proposed transfer
provision in section 236.3(e) would
make ‘‘as expeditiously as possible’’ the
default for transferring minors who are
not UACs to a licensed facility, but
notes that if an emergency or influx, as
defined in the regulations, does not
exist, the FSA’s ‘‘default’’ 3- and 5-day
timeframes apply.
The revised order of the text (i.e.,
making clear that in general the ‘‘as
expeditiously as possible’’ standard
applies, except where an emergency or
influx does not exist) is consistent with
the goal of DHS operational offices to
transfer all minors who are not UACs as
expeditiously as possible, given
operational realities. This proposed
amendment adds clarity, but does not
change the timeframes that have applied
with respect to non-UAC minors for two
decades under the FSA.
16 The Flores district court has held that ICE FRCs
are secure; the Government has appealed that
decision. See Flores v. Sessions, No. 2:85–cv–04544
(C.D. Cal. June 27, 2017), appeal pending, No. 17–
56297 (9th Cir.) (docketed Aug. 28, 2017).
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This provision would not retain two
additional exceptions to the 3-day
transfer timeframe. First, the exception
at Paragraph 12(A)(2), requiring transfer
in the timeline provided by ‘‘any court
decree or court-approved settlement,’’ is
not needed, as a court order would
govern in any event. Second, the
exception at paragraph 12(A)(4) of the
FSA, allowing transfer within 5 days
instead of 3 days in cases involving
transport from remote areas or where an
alien speaks an ‘‘unusual’’ language that
requires the Government to locate an
interpreter, is not included. DHS has
matured its operations such that these
factors no longer materially delay
transfer.
Proposed § 236.3(e) would apply only
to the transfer of non-UAC minors to
licensed facilities because, following
passage of the TVPRA, DHS transfers to
ORR UACs who are not able to
withdraw their application for
admission in accordance with that Act.
See 8 U.S.C. 1232(a)–(b). Therefore, the
timeline of the transfer of UACs from
DHS to HHS is governed exclusively by
the TVPRA.
Finally, under the proposed rule, as
under FSA paragraph 12(c), DHS would
continue to maintain a written plan
describing the reasonable efforts it will
take to place all minors who are not
UACs as expeditiously as possible
pursuant to FSA paragraph 12(C). (This
would include placement in a federallylicensed FRC.) CBP and ICE have
maintained such a plan through internal
guidance for law enforcement
operations.
Proposed 8 CFR 236.3(f)—Transfer of
UACs From DHS to ORR
The current regulations also do not
address the transfer of UACs from DHS
to ORR care and custody under the
TVPRA. The FSA is also silent on this
topic because the FSA does not
distinguish between minors and UACs.
Given the passage of the TVPRA and its
specific requirements related to the
transfer of UACs, the proposed
regulations at section 236.3(f) track the
TVPRA requirements. Specifically, the
proposed regulations at section 236.3(f)
prescribe procedures for transferring
UACs to the care and custody of ORR
within 72 hours (absent exceptional
circumstances) of determining that an
alien is a UAC. See section 235(b)(3) of
the TVPRA, 8 U.S.C. 1232(b)(3). Section
236.3(f) would also reflect the general
requirement under section 235(b)(2) (8
U.S.C. 1232(b)(2)) that DHS notify ORR
within 48 hours that an apprehended
individual is a UAC. While these
timelines differ from those provided in
the FSA, and differ from those
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applicable to minors who are not UACs,
as described in paragraph 236.3(e), these
timelines implement DHS’s specific
requirements applicable to UACs, as
provided in the TVPRA.
Pursuant to the FSA, UACs, like
accompanied minors, must be
transferred to a licensed program within
the 3- and 5-day timeframes provided by
Paragraph 12(A), or, in an emergency or
influx, ‘‘as expeditiously as possible.’’
The TVPRA timeline for the transfer of
UACs to HHS does not address the
requirements of Paragraph 12(A) with
respect to the transfer of UACs to
licensed programs. However, HHS now
has the authority to provide care and
custody of UACs referred to it, and thus,
HHS ensures that a referred UAC is
placed in an appropriate licensed
program, when required under the
TVPRA and the FSA. See 8 U.S.C.
1232(c)(2)(A) (requiring HHS to
‘‘promptly’’ place UACs ‘‘in the least
restrictive setting that is in the best
interest of the child’’). Accordingly,
HHS has addressed this requirement in
its proposed rule. In this rule, DHS
addresses only the transfer of UACs to
HHS, which is governed exclusively by
the TVPRA.
The current regulations do not speak
to the necessary conditions during the
transfer of UACs between DHS and HHS
facilities, although such conditions are
addressed by paragraph 25 of the FSA.
Consistent with paragraph 25 of the
FSA, the proposed regulations stipulate
that UACs will not be transported with
unrelated detained adults except upon
initial apprehension when being
transferred to a DHS facility, or if
separate transportation is impractical or
unavailable.17 In such cases,
precautions will be taken to ensure the
safety, security, and well-being of the
UAC.
For the safety and security of UACs
and whenever operationally feasible,
ICE and CBP currently make every
attempt to transport and hold UACs
separately from unrelated adults. As an
example, CBP’s U.S. Border Patrol
(USBP) strives to transport UACs and
unrelated adults in separate vehicles.
However, given the various
environments in which USBP operates,
such as remote desert locations, separate
transportation for UACs from place of
apprehension to a USBP station is not
always feasible or practical. In these
cases, USBP strives to transport the
UAC in a manner where she or he can
be monitored. There are numerous
17 The FSA includes ‘‘impractical’’ but not
‘‘unavailable.’’ DHS considers the addition of ‘‘or
unavailable’’ to be a clarification of the current
standard, and not a substantive change.
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factors that dictate the way in which a
UAC will be transported with unrelated
adults. However, at a minimum CBP
always assesses the mental capacity,
age, and gender of the UAC to ensure
that the most safe and secure setting is
available.
Proposed 8 CFR 236.3(g)—DHS
Procedures in the Apprehension and
Processing of Minors or UACs
Current section 236.3(g) provides that
each juvenile apprehended in the
immediate vicinity of the border who
permanently resides in Mexico or
Canada shall be informed, prior to the
presentation of the voluntary departure
form or being allowed to withdraw his
or her application for admission, that he
or she may make a telephone call to a
parent, close relative, a friend, or
organization on the free legal services
list. The current regulation also
provides that if the juvenile does not
reside in Mexico or Canada, that
juvenile must in fact communicate with
a parent, adult relative, friend, or with
an organization found on the free legal
services list prior to presentation of the
voluntary departure form.
In addition, the current regulations at
8 CFR 236.3(h) provide for alien
juveniles to be given a Form I–770
Notice of Rights and Disposition, which
will be read and explained to the
juvenile in a language the juvenile
understands if he or she is less than 14
years of age. This paragraph further
provides that, in the event that a
juvenile who has requested a hearing
pursuant to the Form I–770
subsequently decides to accept
voluntary departure or is allowed to
withdraw his or her application for
admission, a new Form I–770 shall be
given to, and signed by the juvenile.
The former INS promulgated much of
8 CFR 236.3 to implement the U.S.
District Court for the Central District of
California’s order in Perez-Funez v. Dist.
Dir., INS, 619 F. Supp. 656 (C.D. Cal.
1985), which required INS to afford
certain procedural safeguards to
unaccompanied juveniles who are taken
into immigration custody prior to
permitting voluntary departure. See 53
FR 17449 (May 17, 1988).
Paragraph 12(A) of the FSA provides
that whenever the Government takes a
minor or UAC into custody, it shall
expeditiously process the minor or UAC
and shall provide the minor or UAC
with a notice of rights, including the
right to a bond redetermination hearing,
if applicable. Under paragraph 24(D) of
the FSA, DHS promptly provides all
non-UAC minors who are not released
with a Form I–770, an explanation of
the right of judicial review, and a list of
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free legal services. The proposed rule’s
section 236.3(g) would retain the
provisions related to the presentation of
the Form I–770, explanation of the right
of judicial review, and the list of free
legal services, as set out in current
regulations and the FSA.
The proposed regulations at 8 CFR
236.3(g)(1) would change the regulatory
text to reflect current operations, but
also preserve the intent of these
regulations and FSA paragraphs 12(A)
and 24(D), and would continue to
comply with Perez-Funez. Specifically,
proposed § 236.3(g)(1)(i) would update
the requirements related to the Form I–
770 to reflect Paragraph 12(A) and
current operational realities. It also
would make minor clarifications to the
current regulatory language by adding
that the Form I–770 can be provided in
a language ‘‘and manner’’ the minor or
UAC understands. FSA Paragraph 12(A)
requires that all minors in DHS custody,
even those who request to withdraw
their application for admission or
request voluntary departure (which
includes voluntary departure, as
described at 8 CFR 240.25(a), sometimes
referred to as a ‘‘voluntary return’’), will
be provided with a notice of rights.
Pursuant to the requirements of the
current regulations and FSA Paragraph
12(A), CBP currently provides an I–770
to each minor or UAC during
processing. If, after processing, CBP
determines that a minor or UAC who
was processed for a voluntary departure
or a withdrawal of his or her application
for admission is no longer amenable to
such a disposition because, for instance,
the minor or UAC is no longer eligible
for voluntary departure, CBP will reprocess the minor or UAC for a more
appropriate disposition, such as the
issuance of a Notice to Appear before an
immigration judge. When the minor or
UAC is reprocessed, the minor or UAC
is issued a new I–770, or the original
one is updated accordingly. By issuing
a new I–770, or updating the original
one, CBP ensures that, in situations in
which it is appropriate to change a
minor or UAC’s immigration
disposition, the minor or UAC
continues to remain aware of his or her
rights. In addition, CBP generally
provides a minor or UAC who is being
processed for a Notice to Appear with
the list of free legal service providers.
Proposed 8 CFR 236.3(g) would
provide that minors or UACs who enter
DHS custody will be provided an I–770
that will include a statement that the
minor or UAC may make a telephone
call to a parent, close relative, or friend.
The proposed rule would specifically
address the list of free legal service
providers at proposed § 236.3(g)(1)(iii),
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45499
which would apply to every minor who
is not a UAC who is transferred to or
remains in a DHS detention facility.
In addition, pursuant to the TVPRA,
DHS currently screens all UACs from
contiguous countries to determine
whether such a UAC may be permitted
to withdraw his or her application for
admission. As part of this screening, the
UAC is provided with an I–770 Notice
of Rights. UACs from non-contiguous
countries are not permitted to withdraw
their application for admission, but are
similarly provided with the I–770
Notice of Rights. These TVPRA
requirements similarly ensure that the
due process concerns identified by the
court in Perez-Funez are adequately
addressed.
Proposed § 236.3(g)(1)(i) also does not
include the requirement in current
section 8 CFR 236.3(g) that a juvenile
who does not reside in Mexico or
Canada must in fact communicate with
a parent, adult relative, friend, or with
an organization found on the free legal
services list prior to presentation of the
voluntary departure form. However, the
passage of the TVPRA has made this
requirement no longer necessary.
Specifically, pursuant to the TVRPA,
only UACs who reside permanently in
Mexico or Canada are permitted to
withdraw their application for
admission. 8 U.S.C. 1232(a)(2).
Additionally, any minor who is not a
UAC, but who is accompanied by a
parent or legal guardian who is
permitted to voluntarily depart the
United States or withdraw his or her
application for admission as a member
of a family unit would, in general, be
undertaking such action along with his
or her accompanying parent or legal
guardian. Therefore, the minor would,
by default, have an opportunity to
communicate with his or her parent or
legal guardian at that time.
Proposed § 236.3(g)(1)(i) relates only
to situations in which DHS processes a
minor or UAC. Thus, it does not address
situations in which a minor or UAC is
in immigration proceedings before an
immigration judge. For example, this
regulation does not address a situation
in which a minor or UAC has been
granted voluntary departure by an
immigration judge, but then
subsequently requests to proceed to a
hearing. In such a situation, DHS
envisions that, consistent with current
practice, the immigration judge would
provide the minor or UAC with an
appropriate advisal of rights.
Similarly, proposed §§ 236.3(g)(1)(ii)
and (g)(1)(iii) would reflect the
requirements in Paragraph 24(D) of the
FSA related to the provision of the
notice of judicial review and the notice
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of free legal service providers.
Specifically, proposed § 236.3(g)(1)(ii)
would provide that every minor who is
not a UAC who remains in or is
transferred to a DHS detention facility
will be provided with the Notice of
Right to Seek Judicial Review, as is
provided in FSA Paragraph 24(D) and
Exhibit 6. Similarly, proposed
§ 236.3(g)(1)(iii) would provide that
such minors will be provided with the
list of free legal service providers, as
provided in FSA Paragraph 24(D).
Proposed § 236.3(g)(2) discusses
DHS’s custodial care of a minor or UAC
immediately following apprehension.
Therefore, this paragraph applies, in
general, to the time that a minor or UAC
remains in a CBP facility prior to being
transferred to ICE or to HHS. This
paragraph parallels the requirements of
FSA paragraphs 11 and 12(A). For
instance, paragraph (g)(2), like the FSA,
would require that minors and UACs
shall be held in the least restrictive
setting appropriate to the minor or
UAC’s age and special needs, provided
that such setting is consistent with the
need to protect the minor or UAC’s
well-being and that of others, as well as
with any other laws, regulations, or
legal requirements. The proposed rule
would also include a cross-reference to
DHS’s regulations at 6 CFR 115.114,
dealing specifically with sexual abuse
and assault prevention for juvenile and
family detainees in DHS’s short-term
holding facilities.
Proposed paragraph (g)(2), like the
FSA, would require that minors and
UACs be housed in facilities that are
safe and sanitary, and that the facilities
provide access to toilets and sinks,
drinking water and food as appropriate,
access to emergency medical assistance
as needed, and adequate temperature
and ventilation.
Consistent with FSA paragraphs 11
and 12(A), proposed paragraph (g)(2)(i)
provides for contact between a minor or
UAC and family members arrested with
the minor or UAC. Following arrest of
a minor or UAC and accompanying
family members, CBP transports all
individuals to a CBP facility for
processing. During the time that the
family group spends at the facility, CBP
provides contact between the minor or
UAC and all accompanying family
members, absent concerns about the
safety of the minor or UAC. This
paragraph, therefore, addresses only the
issue of contact between family
members while they remain in CBP
custody. The proposed rule is more
detailed than FSA paragraph 12(A),
insofar as it states, consistent with FSA
paragraph 11, that the safety and wellbeing of the minor or UAC and
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operational feasibility are relevant
considerations when allowing such
contact. This is consistent with FSA
paragraph 11, which requires that the
setting of a juvenile’s detention or
holding be consistent with a range of
factors, including the need to protect the
juvenile’s well-being or that of others. It
is also consistent with DHS’s
regulations on the prevention of sexual
abuse and assault in its facilities. See 6
CFR 115.14, 115.114.
DHS’s use of the term ‘‘operationally
feasible’’ in this paragraph does not
mean ‘‘possible,’’ but is intended to
indicate that there may be limited shortterm circumstances in which, while a
minor or UAC remains together with
family members in the same CBP
facility, providing such contact would
place an undue burden on agency
operations. For instance, if a family
member arrested with a minor or UAC
requires short-term, immediate medical
attention, CBP may be required to
temporarily limit contact between that
family member and the minor or UAC,
in order to provide appropriate medical
treatment. Or, CBP may have a
legitimate law enforcement reason to
temporarily limit contact between a
minor or UAC and accompanying family
members, such as when CBP decides it
is in the minor or UAC’s best interest to
interview all family members
separately. However, CBP will provide
contact with family members arrested
with the minor or UAC, and/or will
hold accompanied minors in the same
hold rooms as their accompanying
family members, if doing so is
consistent with the minor or UAC’s
safety and well-being and does not place
an undue burden on agency operations.
Similarly, the proposed regulations
would contain the same limit as the
FSA on the amount of time UACs can
be housed with an unrelated adult (no
more than 24 hours), but the proposed
regulations would explicitly allow DHS
to depart from this standard in
emergencies or other exigent
circumstances, to the extent consistent
with 6 CFR 115.14(b) and 115.114(b).
For example, it may be necessary to
house UACs with unrelated adults for
more than 24 hours during a weatherrelated disaster such as hurricanes in
southern Texas, or if an outbreak of a
communicable disease such as scabies
or chicken pox at a facility requires the
temporary commingling of the detainee
population. Appropriate consideration
is given to age, mental condition,
physical condition, and other factors
when placing UACs into space with
unrelated adults.
Where a juvenile is apprehended with
his or her parent or legal guardian, the
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current regulations indicate that such
parent or legal guardian may swear out
an affidavit designating a person to
whom the juvenile may be released. 8
CFR 236.3(b)(3). Since the passage of the
TVPRA, however, DHS no longer has
the authority to release a juvenile to
someone who is not a parent or legal
guardian, so this provision must be
amended.18 If a parent or legal guardian
is unavailable to provide care and
physical custody for an alien under the
age of 18, and the alien has no lawful
status in the United States, the alien
meets the definition of a UAC. 6 U.S.C.
279(g). Under section 235(b)(3) of the
TVPRA (8 U.S.C. 1232(b)(3)), DHS must
transfer UACs to HHS custody within 72
hours of determining that a juvenile is
a UAC, absent exceptional
circumstances. Thus, a parent or legal
guardian must be available for a minor
without lawful status in DHS custody
for DHS to release that minor. The
proposed rule would therefore remove
the current regulatory language at 8 CFR
236.3(b)(3) authorizing a parent or legal
guardian to swear an affidavit
authorizing the release of the minor to
anyone who is not also a parent or legal
guardian.
Proposed 8 CFR 236.3(h)—Detention of
Family Units
DHS’s policy, consistent with E.O.
13841, is to maintain family unity,
including by detaining families together
where appropriate and consistent with
law and available resources. The current
regulations, however, do not address the
detention of non-UAC minors together
with their parents or legal guardians as
‘‘family units’’ while in the custody of
DHS. Similarly, while the FSA
considers that juveniles may be initially
held with related family members, the
FSA does not address whether the
Government may continue to hold
minors together with their parents or
legal guardians after transfer to a
‘‘licensed program.’’ The proposed
regulations in the new section 236.3(h)
would set out requirements that must be
met for a family to be detained together
in an FRC. Per the definitions in
proposed paragraph (b), and in
accordance with the TVPRA, only
minors, not UACs, would be held in
DHS custody at an FRC.
The intention of this proposed
paragraph is to clarify that DHS may,
pursuant to its existing legal authorities,
see, e.g., INA sec. 235(b), (b)(1)(B),
(b)(1)(B)(iii)(I); 236; 241(a), detain
18 Pursuant to the requirements of the HSA and
TVPRA, only HHS has the authority to release a
minor to a non-parent or legal guardian, through the
process of finding a sponsor for a UAC. See 8 U.S.C.
1232.
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members of a family unit together.
Nothing in this proposed rule impacts
DHS’s existing detention authority.
Because the current regulations do not
address detaining non-UAC minors
together with their parents or legal
guardians as family units, the current
regulations also do not explicitly
consider what may happen when DHS
continues to detain a parent or legal
guardian, but could otherwise release a
non-UAC minor. Current immigration
law describes several situations in
which an individual alien may not be
released from detention, regardless of
whether that alien is part of a family
unit. See, e.g., INA sec. 235(b), (b)(1)(B),
(b)(1)(B)(iii)(IV); 241(a).
If the parent or legal guardian of a
family unit is subject to mandatory
detention, but the non-UAC minor of
the family unit is otherwise eligible for
release, DHS must continue to detain
the parent or legal guardian, consistent
with applicable law and policy.
Proposed 8 CFR 236.3(i)—Detention of
Minors Who Are Not UACs in DHS
Custody
The current regulations contain one
short paragraph about juvenile
detention, stating that DHS may detain
a juvenile if such detention is
‘‘necessary, for such interim period of
time as is required to locate suitable
placement for the juvenile’’ either with
a parent, legal guardian, adult relative,
or other suitable custodian or custodial
facility. 8 CFR 236.3(d). As explained
several times throughout this preamble,
the FSA contains significant detail
about requirements for DHS to detain
juveniles, including a list of
requirements for conditions of detention
in the FSA’s Exhibit 1. The proposed
regulations at section 236.3(i) would
completely replace the current
regulations at section 236.3(d) with
respect to the detention of minors who
are not UACs.
The current regulations require that
juveniles who are detained by DHS be
housed in detention facilities that have
separate accommodations for juveniles.
See 8 CFR 236.3(d). In addition, 6 CFR
115.14, first promulgated in 2014,
provides that minors are detained in the
least restrictive setting appropriate for
the minor’s age and needs. That
regulation tracks FSA paragraph 11.
Accordingly, this proposed rule would
cross-reference that regulation and
expand on it. Additionally, the
proposed regulations would make clear
that minors are placed temporarily in a
licensed facility, as defined in
paragraph (b) of proposed § 236.3, until
release can be effectuated as described
in proposed § 236.3(j).
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The proposed regulations at
§ 236.3(i)(1) would provide, like
paragraph 21 of the FSA, that minors
who are not UACs must be transferred
to state or county juvenile detention
facilities, a secure DHS detention
facility, or a DHS-contracted facility
having separate accommodations for
minors if they meet certain criteria. A
non-UAC minor may be placed in one
of these facilities because the minor is
charged with, is chargeable with, or
convicted of a crime or has been
charged with, is chargeable with, is the
subject to delinquency proceedings or
has been adjudicated as delinquent.
There is an exception for petty offenses,
and another exception for when the
offense is isolated, not within a pattern
or practice of criminal activity, does not
involve violence against a person, and
does not involve the use or carrying of
a weapon. DHS has retained these
exceptions in the proposed rule, but has
reworded them in the affirmative for
clarity. Rather than explain when DHS
would not use secure detention (such as
the exception to secure detention for
petty offenses in paragraph 21(A)(ii) of
the FSA), the proposed rule would more
clearly explain when DHS would use
secure detention. As a consequence of
these changes, there may be some
isolated, non-violent offenses that,
although not ‘‘petty’’ as defined in
paragraph 21(A)(ii) of the FSA, are
insufficient cause to place a minor in
secure detention. These clarifications
are consistent with DHS’s current
practice, and are consistent with the
intent underlying FSA paragraph 21.
Also included in the FSA’s list of
reasons to house a minor in a secure
facility are committing, or making
credible threats to commit, a violent or
malicious act while in custody or while
in the presence of an immigration
officer; engaging, while in a licensed
facility, in certain conduct that is
unacceptably disruptive of the normal
functioning of the licensed facility;
being an escape risk; or for the minor’s
own security. DHS chose not to include
in the proposed regulatory text the
specific examples of behavior or
offenses that could result in the secure
detention of a minor, as they appear in
FSA paragraph 21, because the
examples are non-exhaustive and
imprecise. For instance, examples listed
in paragraph 21 of what may be
considered nonviolent, isolated offenses
(e.g., breaking and entering, vandalism,
or driving under the influence) may be
classified as violent offenses in some
states. Including these examples as part
of codified regulatory text may
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inadvertently lead to more confusion
than clarity.
Under proposed § 236.3(i)(2),
consistent with FSA paragraph 23, DHS
would place a minor in a less restrictive
alternative if such an alternative is
available and appropriate in the
circumstances, even if the provisions of
section 236.3(i)(1) apply. Finally, as
provided under paragraph 6 of the FSA,
proposed § 236.3(i)(3) would provide
that, unless a secure facility is
appropriate pursuant to proposed
§ 236.3(i)(1) and (2), DHS facilities used
for the detention of minors would be
non-secure facilities. This proposed
paragraph, like FSA paragraph 32(C),
provides that agreements for the
placement of minors in non-INS
facilities shall permit attorney-client
visits. Proposed § 236.3(i)(2) explains
that the secure facilities used by DHS to
detain non-UAC minors will also permit
attorney-client visits pursuant to
applicable facility rules and regulations.
Proposed § 236.3(i)(3) sets forth
concepts also articulated in FSA
paragraphs 12, 14, and 19, that unless a
detention in a secure facility is
otherwise required, facilities used for
the detention of minors shall be nonsecure.
Proposed § 236.3(i)(4) would set out
the standards for ‘‘licensed programs,’’
as in paragraphs 6 and 19 of the FSA.
While the proposed rule would not
define ‘‘licensed program,’’ DHS
proposes that all non-secure facilities
used for the detention of non-UAC
minors would abide by these standards.
These standards mirror the
requirements of Exhibit 1 of the FSA
and the current ICE Family Residential
Standards. In addition, the standards in
proposed paragraph (i)(4) would serve
as a baseline of what would be required
of a facility audited by a third-party
when licensing by the state, county, or
municipality is otherwise unavailable,
pursuant to proposed paragraph (b)(9) of
this section. At a minimum, these
standards must include, but are not
limited to, proper physical care,
including living accommodations, food,
clothing, routine medical and dental
care, family planning services,
emergency care (including a screening
for infectious disease) within 48 hours
of admission, a needs assessment
including both educational and special
needs assessments, educational services
including instruction in the English
language, appropriate foreign language
reading materials for leisure time
reading, recreation and leisure time
activities, mental health services, group
counseling, orientation including legal
assistance that is available, access to
religious services of the minor’s choice,
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visitation and contact with family
members, a reasonable right to privacy
of the minor, and legal and family
reunification services. Finally, these
standards, like FSA paragraph 32(C),
require that agreements for placement of
minors in non-INS facilities shall permit
attorney-client visits. Proposed
paragraph 236.3(i)(4) makes clear that
DHS permits attorney-client visits
pursuant to applicable facility rules and
regulations in all licensed, non-secure
facilities in which DHS places non-UAC
minors.
Related to the requirements placed on
facilities used for the detention of
minors, but not included in the Exhibit
1 standards, is the requirement found at
FSA paragraph 19. FSA paragraph 19
permits ‘‘licensed programs’’ to transfer
temporary physical custody of minors
prior to securing permission from the
Government in the event of an
emergency, provided that they notify
the Government as soon as practicable,
but in all cases within 8 hours.
Proposed paragraph 236.3(i)(5) does the
same, although applies it to ‘‘licensed,
non-secure facilities,’’ instead of
‘‘licensed programs,’’ for reasons
explained above.
Proposed 8 CFR 236.3(j)—Release of
Minors From DHS Custody
The current regulations at § 236.3(b)
address the release of juveniles when a
determination is made that such
juveniles may be released on bond,
parole, or on their own recognizance.
Provided detention of a juvenile is not
required to secure the juvenile’s
appearance before DHS or the
immigration court, and is not necessary
to ensure the juvenile’s safety or that of
others, the current regulations allow a
juvenile to be released to a parent, legal
guardian, or an adult relative who is not
currently in immigration detention.
Current paragraph (b) goes on to state
that if the parent, legal guardian, or
relative is located at a place far from the
current location of the juvenile, the
relative can secure the release of the
juvenile at the closest DHS office to that
relative. The issue of transportation of
the juvenile to the relative once release
is secured is not discussed in the
current regulation.
FSA paragraph 14 requires DHS to
release a minor without unnecessary
delay when DHS determines that the
detention of the minor is not required
either to secure timely appearance
before DHS or an immigration judge, or
to ensure the minor’s safety or that of
others. FSA paragraph 14 also provides
a list of custodians to whom a minor
may be released: A parent; legal
guardian; adult relative (brother, sister,
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aunt, uncle, or grandparent); an adult
individual or entity designated by the
parent or legal guardian as capable and
willing to care for the minor’s wellbeing; a licensed program; or an adult
individual or entity seeking custody
when it appears that no other likely
alternative to long term detention is
available and family reunification is not
a reasonable possibility. FSA paragraph
26 states that the Government shall
assist in making transportation
arrangements to the office nearest the
location of the person or facility to
whom a minor is to be released
pursuant to paragraph 14. Despite the
language of the current regulations and
the FSA, pursuant to the TVPRA and
the HSA, DHS does not have the
authority to release a minor to anyone
other than HHS or a parent or legal
guardian. Therefore, in order to comply
with both paragraph 14 and the TVPRA,
DHS may be required, in some
situations, to transfer a child to HHS
when it is necessary to continue to
detain a parent or legal guardian. DHS
typically has discretion under existing
authorities to simultaneously parole the
child and the parent or legal guardian,
which would remain unchanged.19
The proposed regulation at § 236.3(j)
would amend the approach laid out in
current § 236.3(b), and make it
consistent with the requirements of the
TVPRA and the HSA (enacted after the
regulation was originally promulgated),
and executive orders, as well as with the
current operational environment, which
has also changed since the provision’s
original promulgation. With the
exception of removing the list of
individuals to whom a minor may be
released, as described above, the rule
largely incorporates the text of
paragraph 14. However, the proposed
rule would align the FSA paragraph 14
standards with existing statutes and
regulations, and thus permit DHS to
exercise its existing discretionary
authorities governing release.
Aliens, including minors in family
units, who are subject to expedited
removal and who have not been found
to have a credible fear or are still
pending a credible fear determination
are subject to mandatory detention. 8
U.S.C. 1225(b)(1)(B)(iii)(IV). DHS,
however, retains the discretion to
release such aliens on parole, based on
19 This rule would delete a reference to such
discretion at current 8 CFR 236.3(b)(2), but such
reference is unnecessary to ensure DHS discretion
to effect simultaneous release. For instance, in the
expedited removal context, DHS may parole the
parent or legal guardian pursuant to the standards
at 8 CFR part 235. And other parole standards are
contained at 8 CFR 212.5. There are also other tools
available to effect simultaneous release, such as
bond.
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a case-by-case determination that parole
is for an ‘‘urgent humanitarian need or
significant public benefit.’’ Id.
1182(d)(5)(A). Pursuant to the
regulations, aliens who are in expedited
removal proceedings and are pending a
credible fear determination or who have
been found not to have such fear,
release on parole can only satisfy this
standard when there is a medical
necessity or a law enforcement need. 8
CFR 235.3(b)(4)(ii), (b)(2)(iii). Nothing
indicates that, by entering into the FSA,
the Government intended to subvert the
intent of Congress with regard to the
detention of minors in family units,
allowing for their release into the
United States simply based on
consideration of those factors listed in
paragraph 14 of the FSA.20
The intended effect of the draft rule
is to change current practice and the
text of FSA paragraph 14 to affirm that
parole is within the discretion of DHS
as intended by statute. For example,
minors in expedited removal will be
subject to the heightened standard in
the 8 CFR 235.3(b). As indicated above,
DHS is proposing to remove the
reference to 8 CFR 235.3(b) in section
212.5(b) to make clear that the parole
standard that applies to those in
expedited removal is found in section
235.3 and not 212.5. Moreover, DHS
will not make universal parole
determinations for all minors placed
into FRCs.
For individuals not in expedited
removal proceedings, parole is available
subject to the generally applicable
parole regulation. See 8 CFR 212.5(b);
see also 62 FR 10312, 10320 (1997). For
those aliens in expedited removal who
are found to have a credible fear and
referred for proceeding under section
240 of the INA, parole, bond, or release
on recognizance or other conditions are
available, depending on the particular
circumstances of the alien’s entry.
Aliens who are eligible for release on
bond, or release on their own
recognizance or other conditions, the
availability of such release depends on
whether the alien can establish he or
she is not a flight risk or a danger to the
community. Matter of Patel, 15 I&N Dec.
20 The U.S. District Court for the Central District
of California has rejected this argument, but in
doing so, it did not consider the regulatory
provisions at 8 CFR 235.3. Flores v. Sessions, No.
2:85–cv–04544, at 25 n.18 (C.D. Cal. June 27, 2017).
That decision requires that ICE must ignore
Congress’s plain intent with regard to the
availability of parole for aliens in expedited
removal proceedings and in some instances must
consider parole for individuals subject to final
orders of removal. The appeal from this decision is
currently pending before the U.S. Court of Appeals
for the Ninth Circuit. See Flores v. Sessions, No.
17–56297 (9th Cir.) (docketed Aug. 28, 2017).
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666 (BIA 1976). Paragraph 14 similarly
states that DHS makes a determination
that detention of a minor is not
‘‘required to secure his or her timely
appearance before the INS or the
immigration court, or to ensure the
minor’s safety or that of others.’’ FSA
paragraph 14. Both the FSA and custody
standards applicable to aliens eligible
for release on bond or on recognizance
have a preference for release if an alien
makes the requisite showing that they
are not a flight risk or a danger to the
community. Id.; see also Matter of Patel.
15 I&N Dec at 666. (‘‘An alien generally
is not and should not be detained or
required to post bond except on a
finding that he is a threat to the national
security, or that he is a poor bail risk.’’).
This is the same standard used under
paragraph 14 of the FSA; thus the text
in proposed paragraph (j) would not
reflect a substantive change in the initial
custody determinations made by DHS
for those minors eligible for such
determinations.
Once it is determined that the
applicable statutes and regulations
permit release, proposed § 236.3(j)
would permit release of a minor only to
a parent or legal guardian who is
available to provide care and custody, in
accordance with the TVPRA, using the
same factors for determining whether
release is appropriate as are contained
in paragraph 14. Included in the
relevant factors would typically be
consideration of whether detention is
‘‘required either to secure his or her
timely appearance before [DHS] or the
immigration court, or to ensure the
minor’s safety or that of others.’’ DHS
also considers family unity when
evaluating whether release of a minor is
appropriate. This approach is consistent
with the President’s June 20, 2018,
Executive Order 13841, ‘‘Affording
Congress an Opportunity to Address
Family Separation,’’ which identifies a
policy of ‘‘maintain[ing] family unity,
including by detaining alien families
together where appropriate and
consistent with law and available
resources.’’ 21 Moreover, in most cases,
the parent is in the best position to
represent the minor’s rights and wishes
and can help the minor to prepare his
or her case. It is also more expedient for
the family, if the cases are interrelated,
to have a single proceeding adjudicated
in the same location, by the same
adjudicator.
When determining whether an
individual is a parent or legal guardian,
DHS would use all available evidence,
such as birth certificates or other
available documentation, to ensure the
21 E.O.
13841 (June 20, 2018), 83 FR 29435.
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parental relationship or legal
guardianship is bona fide. If the
relationship cannot be established, the
juvenile would be treated as a UAC and
would be transferred into HHS custody.
If the relationship is established, but the
parent or legal guardian lives far away,
the proposed regulations use the FSA
paragraph 26 language, stating that DHS
shall assist with making arrangements
for transportation and maintains the
discretion to actually provide
transportation to the DHS office nearest
the parent or legal guardian.
Finally, the proposed rule would not
include provisions parallel to the
requirements in paragraphs 15 or 16
related to release from custody. These
requirements have been superseded in
part by the TVPRA, under which DHS
cannot release a juvenile to anyone
other than a parent or legal guardian.
Further, parents have no affirmative
right of release under the provisions of
the FSA. Therefore, if DHS determines
that the accompanying parent should be
detained, releasing a minor under these
circumstances would be either a release
to a parent who is not currently in
detention, or, in all other cases, a
transfer to HHS custody, rather than a
release from custody as envisioned
under the FSA. In addition, the
requirements of paragraphs 15 and 16,
which are primarily for the
Government’s benefit, are not currently
implemented.
Proposed 8 CFR 236.3(k)—Procedures
Upon Transfer
Current 8 CFR 236.3 does not set out
any procedures to specifically govern
the transfer of minors. FSA paragraph
27 provides that a minor who is
transferred from a placement in one
‘‘licensed program’’ to another shall be
transferred with his/her possessions and
legal papers, unless the possessions
exceed the amount permitted by
carriers, in which case the possessions
will be shipped to the minor in a timely
manner. The proposed regulations at
§ 236.3(k) include the same requirement
for the transfer of possessions when a
minor who is not a UAC is transferred
between licensed, non-secure facilities.
While DHS understands paragraph 27 of
the FSA to, in practice, refer to transfer
between ICE facilities (the only DHS
facilities that qualify as ‘‘placements’’ in
‘‘licensed programs,’’ under the
meaning of the FSA), minors are
generally transferred with their
possessions if they are moving between
CBP facilities, or from a CBP facility to
an ICE facility.
Paragraph 27 of the FSA also provides
that no minor represented by counsel
shall be transferred without advance
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notice to such counsel except in
unusual and compelling circumstances.
The proposed regulations also provide
that if a minor or UAC is represented by
counsel, notice to counsel will be
provided prior to any transfer of a minor
or UAC from one ICE placement to
another, or from an ICE placement to an
ORR placement, unless unusual and
compelling reasons, such as safety or
escape-risk, exist, in which case counsel
will receive notification within 24 hours
of transfer.
Proposed 8 CFR 236.3(l)—Notice to
Parent of Refusal of Release or
Application for Relief
The current regulations provide that if
a parent of a detained juvenile can be
located, and is otherwise suitable to
receive custody of the juvenile, and the
juvenile indicates a refusal to be
released to his or her parent, the
parent(s) shall be notified of the
juvenile’s refusal to be released to the
parent(s), and the parent(s) shall be
afforded the opportunity to present their
views before a custody determination is
made (§ 236.3(e)). Similarly, the current
regulations provide that if a juvenile
seeks release from detention, voluntary
departure, parole, or any form of relief
from removal, where it appears that the
grant of such relief may effectively
terminate some interest inherent in the
parent-child relationship and/or the
juvenile’s rights and interests are
adverse to those of the parent, and the
parent is presently residing in the
United States, the parent shall be given
notice of the juvenile’s application for
relief, and shall be afforded an
opportunity to present his or her views
and assert his or her interest before a
determination is made as to the merits
of the request for relief (§ 236.3(f)). In
both instances, the parents are given an
opportunity to present their views to the
district director, Director of the Office of
Juvenile Affairs, or an immigration
judge.
The FSA does not discuss any
necessary notification to parents of a
juvenile’s refusal to be released to a
parent or a juvenile’s application for
relief from removal. DHS has reviewed
the current regulatory provision and is
proposing amendments to this
paragraph to maintain the goals of this
type of notification while reflecting the
current distribution of responsibilities
vis-a`-vis juveniles between DHS
components and DOJ EOIR. The
language of the current and proposed
regulation appropriately protects
parental rights while balancing a
juvenile’s potential desire to take an
action adverse to the wishes of his/her
parent.
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Given the current legal environment
and operational practices, ICE and CBP
would seldom, if ever, be responsible
for providing any type of parental
notification as required by 236.3(e) or
(f). For instance, if a minor seeks release
from ICE detention, ICE would only be
required to notify that minor’s parent if
the parent is presently residing in the
United States and the minor’s release
would terminate some interest inherent
in the parent-child relationship. Yet
even in this scenario, because DHS
cannot release a minor to anyone other
than a parent or legal guardian as
discussed above, it seems unlikely that
such release would ‘‘terminate some
interest inherent in the parent-child
relationship’’ as described in current
§ 236.3(f). In practice, USCIS and EOIR
are the entities most likely to be
required to provide parental notification
due to a potential termination of an
interest inherent in the parent-child
relationship, because USCIS
adjudicators and EOIR immigration
judges more frequently grant relief from
removal that could impact a parentchild relationship. The proposed DHS
regulations at 236.3(l) would remove
language authorizing parents to present
their views to immigration judges if
their child refuses to be released into
their custody, because currently
immigration judges do not set
conditions of release, and therefore do
not decide to whom a minor or UAC
will be released. However, the change
does not prevent parents from
presenting their views to DHS. Refusal
of release is primarily an issue that
affects DHS and HHS, rather than DOJ.
In addition, certain types of requests
listed in proposed 236.3(l) (i.e., parole)
would be addressed to DHS alone, and
an immigration judge would not have
jurisdiction over such requests.
The proposed changes to current
sections 236(e) and (f) (in proposed
§ 236.3(l)) would clarify the actual scope
of DHS’s regulations, but would not
represent a change in practice. The
proposed rule would maintain parents’
right to be notified and present their
views to DHS (but not an immigration
judge) if a minor or UAC in DHS
custody refuses to be released to that
parent, if a grant of relief might
terminate some parent-child
relationship interests, or where the
child’s interests are adverse to those of
the parent.
In addition, the proposed rule would
not affect the EOIR notice requirement
currently contained at 8 CFR 1236.3(f)
for applications for relief.
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Proposed 8 CFR 236.3(m)—Bond
Hearings
The current regulations make no
provision for bond hearings by
immigration judges for minors as FSA
paragraph 24(A) has been interpreted to
require. Paragraph 24(A), states that a
minor in ‘‘deportation proceedings’’
shall be afforded a bond
redetermination unless he or she refuses
such a determination. The proposed
regulations at § 236.3(m) provide for
review of DHS bond determinations by
immigration judges to the extent
permitted by 8 CFR 1003.19, but only
for those minors: (1) Who are in removal
proceedings under INA section 240, 8
U.S.C. 1229a; and (2) who are in DHS
custody. Those minors who are not in
section 240 proceedings are ineligible to
seek review by an immigration judge of
their DHS custody determination.
DHS proposes this paragraph to
provide for bond hearings as under FSA
paragraph 24(A), while updating the
language to be consistent with
developments in immigration law since
the FSA was signed, including the
TVPRA. FSA paragraph 24(A) refers to
minors in ‘‘deportation proceedings.’’
The term ‘‘deportation proceedings,’’
however, is no longer used in
immigration law due to the enactment
of IIRIRA in 1996. Prior to IIRIRA’s
enactment, the INS conducted two types
of proceedings for aliens: ‘‘exclusion’’
proceedings and ‘‘deportation’’
proceedings. Section 304 of IIRIRA,
however, changed the types of
proceedings available to aliens under
the INA, and what were previously
known as ‘‘deportation’’ proceedings
became ‘‘removal’’ proceedings. See
INA sec. 240, 8 U.S.C. 1229a. IIRIRA
also amended INA section 235 to
provide for expedited removal
proceedings for certain applicants for
admission who would have previously
been subject to ‘‘exclusion’’
proceedings. See INA sec. 235(b), 8
U.S.C. 1225(b). Thus, DHS has proposed
to update this language. Additionally,
the proposed rule would clarify that this
provision applies only to minors in DHS
custody, in accordance with the TVPRA.
Proposed 8 CFR 236.3(n)—Retaking
Custody of a Previously Released Minor
The current regulations have no
provisions for reassuming custody of
previously released minors if they
become an escape-risk, become a danger
to the community, or are issued a final
order of removal after being released.
The proposed regulations at § 236.3(n)
would provide for this scenario. The
regulations also explain that DHS may
take a minor into custody if there is no
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longer a parent or legal guardian
available to care for the minor, at which
point the minor will be treated as a UAC
and DHS will transfer him or her to
HHS.
Proposed 8 CFR 236.3(o)—Monitoring
The current regulations at § 236.3(c)
describe the duties of the Juvenile
Coordinator, including the
responsibility of locating suitable
placements for juveniles. Paragraph
28(A) of the FSA also includes a
provision for a Juvenile Coordinator, but
places more reporting and monitoring
obligations on the Coordinator than
currently exist in the regulations. The
proposed regulations eliminate the
requirement in the current regulations
that the Juvenile Coordinator locate a
suitable placement for minors, as these
duties are generally exercised by
immigration officers and other
employees at DHS. Section 236.3(o),
however, is being proposed to provide
for monitoring, as under paragraph
28(A) of the FSA, by proposing two
Juvenile Coordinators—one for ICE and
one for CBP—and charges each with
monitoring statistics about UACs and
minors who remain in DHS custody for
longer than 72 hours. The statistical
information may include, but would not
be limited to, biographical information,
dates of custody, placement, transfers,
removals, or releases from custody. This
information does not include
immigration status or hearing dates, as
referenced in FSA paragraph 28(A),
because the import of this data for
monitoring purposes is not immediately
apparent. The plain language meaning
of ‘‘immigration status’’ of particular
aliens in DHS custody is not relevant to
monitoring compliance with detention
or holding condition requirements. It is
only relevant to whether DHS is able to
detain an individual. It is unclear what
other meaning of the term ‘‘immigration
status’’ could be relevant to monitoring
compliance with these regulations. The
hearing dates for aliens in DHS custody,
which are not set by DHS and are
frequently subject to change, are also
not directly relevant to the monitoring
of the conditions of detention for a
minor alien. The juvenile coordinators
may collect such data, if appropriate.
The juvenile coordinators may also
review additional data points should
they deem it appropriate given
operational changes and other
considerations.
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B. HHS Regulations
Proposed 45 CFR Part 410, Subpart A—
Care and Placement of Unaccompanied
Alien Children
This subpart states the purpose of this
regulation and the general principles
behind it, and sets standards for the care
and placement of UACs as discussed
below. ORR uses the term ‘‘placement’’
to refer to assigning UACs to facilities
that ORR operates or arranges through a
grant or contract, or assigning them to
ORR-funded foster care. ORR uses the
term ‘‘release’’ to refer to the release of
UACs from ORR custody into the
custody of an approved sponsor.
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Proposed 45 CFR 410.100—Scope of
This Part
Section 410.100 discusses what is
covered under this part. Specifically, it
states that this part covers the care,
custody, and placement of UACs
pursuant to section 462 of the HSA and
section 235 of the TVPRA, and in light
of the FSA. The proposed rule would
make clear that the purpose of this rule
is not to govern or describe the entire
program, nor is it to implement either
the HSA or the TVPRA in their entirety.
Rather, the purpose of this rule is to
implement the relevant and substantive
terms of the FSA, and this rulemaking
will apply provisions of the HSA and
TVPRA only where such authorities
would supersede or alter an FSA
provision.
Proposed 45 CFR 410.101—Definitions
Section 410.101 states the definitions
that apply to this part. Notably, the
definition of UAC is from the HSA. See
6 U.S.C. 279(g)(2); 8 U.S.C. 1232(g). The
regulation uses the term ‘‘staff secure
facility’’ in the same sense as the FSA
uses the term ‘‘medium security
facility.’’ ‘‘Shelter’’ includes facilities
defined as ‘‘licensed facilities’’ under
the FSA, and also includes staff secure
facilities, i.e., medium security facilities
as defined by the FSA. Other types of
shelters might also be licensed, such as
long term and transitional foster care
facilities. The FSA does not define
‘‘secure facility,’’ but this regulation
proposes a definition consistent with
the provisions of the FSA applying to
secure facilities. These facilities may be
a state or county juvenile detention
facility or another form of secure ORR
detention facility (such as a Residential
Treatment Center), or a facility with an
ORR contract or cooperative agreement
having separate accommodations for
minors. The definition uses the term
‘‘cooperative agreement,’’ as ORR uses
cooperative agreements for the majority
of its shelters, pursuant to 8 U.S.C.
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1232(i). The definition recognizes that
under the FSA, a secure facility does not
need to meet the licensed facility
provisions that would apply to other
shelters.
Section 410.101 defines
unaccompanied alien child according to
the definition set forth in the HSA. It,
as well as the TVPRA, only gives ORR
authority to provide care and custody of
individuals who meet that definition.
The statutes, however, do not set forth
a process for determining whether an
individual meets the definition of a
UAC. Similar to proposed 8 CFR
236.3(d), § 410.101 would make clear
that ORR’s determination of whether a
particular person is a UAC is an ongoing
determination that may change based on
the facts available to ORR.
Proposed 45 CFR 410.102—ORR Care
and Placement of Unaccompanied Alien
Children
Section 410.102 specifies the children
for whom ORR provides care, custody,
and placement. The regulation specifies
that DHS handles immigration benefits
and enforcement. The INS entered into
the FSA prior to the enactment of the
HSA and TVPRA, which transferred the
care, and then custody, of the majority
of UACs to ORR. The HSA recognizes
that ORR does not have responsibility
for adjudicating benefit determinations
under the INA. This part recognizes the
general principles of the FSA that while
in custody, UACs shall be treated with
dignity, respect, and special concern for
their particular vulnerability.
Proposed 45 CFR Part 410, Subpart B—
Determining the Placement of an
Unaccompanied Alien Child
Proposed 45 CFR 410.200—Purpose of
This Subpart
As stated in§ 410.200, this subpart
sets forth factors that ORR considers
when placing UACs.
Proposed 45 CFR 410.201—
Considerations Generally Applicable to
the Placement of an Unaccompanied
Alien Child
Section 410.201 addresses the
considerations that generally apply to
the placement of UAC. The provision
generally parallels the FSA
requirements. The provision notes that
ORR makes reasonable efforts to provide
placements in the geographic areas
where DHS apprehends the majority of
UACs. ORR complies with this
provision, as ORR maintains the highest
number of UAC beds in the state of
Texas where most UACs are currently
apprehended.
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Proposed 45 CFR 410.202—Placement
of an Unaccompanied Alien Child in a
Licensed Program
Section 410.202 states that ORR
places a UAC into a licensed program
promptly after a UAC is referred to ORR
legal custody, except in certain
enumerated circumstances. See 8
U.S.C.1232(c)(2)(A). The FSA also
recognizes circumstances where a UAC
is not promptly, or is not at all, placed
in a licensed program. These
circumstances include emergencies or
an influx as defined in § 410.101 (in
which case the UAC shall be placed in
a licensed program as expeditiously as
possible); where the UAC meets the
criteria for placement in a secure
facility; and as otherwise required by
any court decree or court-approved
settlement. Like the DHS portion of this
proposed rule, proposed § 410.202 does
not include the exception, which
appears at paragraph 12(A)(4) of the
FSA, that allows transfer within 5 days
instead of 3 days in cases involving
transport from remote areas or where an
alien speaks an ‘‘unusual’’ language that
requires the Government to locate an
interpreter. As noted above, DHS has
matured its operations such that these
factors no longer materially delay
transfer.
Proposed 45 CFR 410.203—Criteria for
Placing an Unaccompanied Alien Child
in a Secure Facility
Section 410.203 sets forth criteria for
placing UACs in secure facilities. This
part is consistent with the FSA criteria,
except that under the TVPRA, ‘‘[a] child
shall not be placed in a secure facility
absent a determination that the child
poses a danger to self or others or has
been charged with having committed a
criminal offense.’’ 8 U.S.C.
1232(c)(2)(A). With respect to these
regulations, therefore, the TVPRA
removes the factor of being an escape
risk, which is permissible grounds
under the FSA, as a ground upon which
ORR may place a UAC in a secure
facility.
In addition, HHS chose not to include
in the proposed regulatory text the
specific examples of behavior or
offenses that could result in the secure
detention of a UAC, as they appear in
paragraph 21 of the FSA, because the
examples are non-exhaustive and
imprecise. For instance, examples listed
in paragraph 21 of what may be
considered nonviolent, isolated offenses
(e.g., breaking and entering, vandalism,
or driving under the influence) could be
violent offenses in certain
circumstances depending upon the
actions accompanying them. In
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addition, state law may classify these
offenses as violent. Including these
examples as part of codified regulatory
text may inadvertently lead to more
confusion rather than clarity, and
eliminate the ability to make case-bycase determinations of the violence
associated with a particular act.
Under the proposed regulations, a
UAC may be placed in a secure facility
if ORR determines that the UAC:
• Has been charged with, is
chargeable, or has been convicted of a
crime; or is the subject of delinquency
proceedings, has been adjudicated
delinquent, or is chargeable with a
delinquent act; and where ORR assesses
that the crimes or delinquent acts were
not:
Æ Isolated offenses that (1) were not
within a pattern or practice of criminal
activity and (2) did not involve violence
against a person, or the use or carrying
of a weapon; or
Æ petty offenses, which are not
considered grounds for a stricter means
of detention in any case.
‘‘Chargeable’’ means that ORR has
probable cause to believe that the UAC
has committed a specified offense.
• While in DHS or ORR’s custody or
while in the presence of an immigration
officer, has committed, or has made
credible threats to commit, a violent or
malicious act (whether directed at
himself/herself or others.). Note: that
because the FSA states that such acts
would have occurred ‘‘while in INS
custody’’ or ‘‘in the presence of an INS
officer,’’ we propose that such activities
in either DHS or HHS custody or in the
presence of an ‘‘immigration officer’’
would be evaluated.
• Has engaged while in a licensed
program in conduct that has proven to
be unacceptably disruptive of the
normal functioning of the licensed
program in which the UAC is placed
such that transfer is necessary to ensure
the welfare of the UAC or others, as
determined by the staff of the licensed
program.
In addition, ORR proposes the following
as warranting placement in a secure
facility, even though the FSA does not
specifically mention such criteria.
• First, if a UAC engages in
unacceptably disruptive behavior that
interferes with the normal functioning
of a ‘‘staff secure’’ shelter, then the UAC
may be transferred to secure facility. As
written, the FSA looks only to such
disruptive behavior when it occurs in a
‘‘licensed’’ facility—which under the
FSA does not include in its definition
staff-secure facilities—even though the
vast majority of such facilities receive
the same licenses as non-secure shelters.
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However, under this rule, UACs could
be immediately transferred to a secure
facility for disruptive behavior in a nonsecure shelter, without the means to
evaluate further disruption in a staff
secure setting. In addition, allowing for
evaluation while in staff-secure care
allows HHS to protect the other children
residing within such shelter; it allows
HHS to move one UAC who is
disrupting the operations of the staff
secure facility and transfer him or her to
a more restrictive level of care.
• Second, the proposed rule adds to
the list of behaviors that may be
considered unacceptably disruptive.
Examples provided in the FSA at
paragraph 21 are: Drug or alcohol abuse,
stealing, fighting, intimidation of others,
etc. The agreement specifically says that
the list is not exhaustive. Therefore, we
propose to add to this list ‘‘displays
sexual predatory behavior.’’
• Finally, in keeping with the July 30
Order in Flores v. Sessions, the
proposed rule states that placement in a
secure RTC may not occur unless a
licensed psychologist or psychiatrist
determines that the UAC poses a risk of
harm to self or others.
Section 410.203 also sets forth review
and approval of the decision to place a
UAC in a secure facility consistent with
the FSA. The FSA states that the
determination to place a minor in a
secure facility shall be reviewed and
approved by the ‘‘regional juvenile
coordinator.’’ This proposed rule uses
the term ‘‘Federal Field Specialist,’’ as
this is the official closest to such
juvenile coordinator for ORR. (Note:
Although not covered in this proposed
rule, ORR also recognizes that the
TVPRA at 8 U.S.C. 1232(c)(2)(A)
delegates to the Secretary of HHS the
requirement for prescribing procedures
governing agency review, on a monthly
basis, of secure placements. ORR directs
readers to sections 1.4.2. and 1.4.7 of the
ORR Policy Guide (available at: https://
www.acf.hhs.gov/orr/resource/childrenentering-the-united-statesunaccompanied) for these procedurals
under the TVPRA.)
Proposed 45 CFR 410.204—
Considerations When Determining
Whether an Unaccompanied Alien
Child is an Escape Risk
Section 410.204 describes the
considerations ORR takes into account
when determining whether a UAC is an
escape risk. This part is consistent with
how the term ‘‘escape risk’’ is used in
the FSA. The TVPRA removes the factor
of being an escape risk as a ground upon
which ORR may place a UAC in a
secure facility, even though it
constitutes permissible grounds under
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the FSA. The factor of escape risk,
however, is still relevant to the
evaluation of transfers between ORR
facilities under the FSA as being an
escape risk might cause a UAC to be
stepped up from a non-secure level of
care to a staff secure level of care where
there is a higher staff-UAC ratio and a
secure perimeter at the facility. Notably,
an escape risk differs from a ‘‘risk of
flight,’’ which is a term of art used in
immigration law regarding an alien’s
risk of not appearing for his or her
immigration proceedings.
Proposed 45 CFR 410.205—
Applicability of Section 410.203 for
Placement in a Secure Facility
Section 410.205 provides that ORR
does not place a UAC in a secure facility
pursuant to § 410.203 if less restrictive
alternatives, such as a staff secure
facility or another licensed program, are
available and appropriate in the
circumstances.
Proposed 45 CFR 410.206—Information
for Unaccompanied Alien Children
Concerning the Reasons for His or Her
Placement in a Secure or Staff Secure
Facility
Section 410.206 specifies that, within
a reasonable period of time, ORR
provides each UAC placed in or
transferred to a secure or staff secure
facility with a notice of the reasons for
the placement in a language the UAC
understands.
Proposed 45 CFR 410.207—Custody of
an Unaccompanied Alien Child Placed
Pursuant to This Subpart
Section 410.207 specifies who has
custody of a UAC under subpart B of
these rules. The regulation specifies that
upon release to an approved sponsor, a
UAC is no longer in the custody of ORR.
ORR would continue to have ongoing
monitoring responsibilities under the
HSA and TVPRA, but would not be the
legal or physical custodian. See, e.g., 6
U.S.C. 279(b)(1)(L); 8 U.S.C.
1232(c)(3)(B). This interpretation
accords with ORR’s longstanding
interpretation, as well as provisions of
the FSA (see e.g., paragraphs 15 through
17, discussing ‘‘release’’ from custody).
This provision recognizes that once a
UAC is released, he or she is outside the
custody of HHS and ORR.
Proposed 45 CFR 410.208—Special
Needs Minors
Section 410.208 describes ORR’s
policy regarding placement of a special
needs minor. Note that an RTC may be
considered a secure level of care and is
discussed in section 410.203 of this
Part.
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Proposed 45 CFR 410.209—Procedures
During an Emergency or Influx
Section 410.209 describes the
procedures ORR follows during an
emergency or influx. The FSA defines
‘‘emergency’’ and ‘‘influx.’’ HHS
proposes to incorporate those
definitions into its regulations with
minor changes, consistent with the
definitions in proposed 8 CFR 236.3. In
addition, the FSA states that in the case
of an emergency or influx of minors into
the United States, UACs 22 should be
placed in a licensed program as
‘‘expeditiously as possible.’’
However, as DHS does, ORR also
proposes a written plan describing the
reasonable efforts it will take to place all
UACs as expeditiously as possible into
a licensed shelter when there is an
influx or emergency consistent with
proposed 410.209.
Proposed 45 CFR 410 Subpart C,
Releasing an Unaccompanied Alien
Child From ORR Custody
Proposed 45 CFR 410.300—Purpose of
This Subpart
As described in § 410.300, the
purpose of this subpart is to address the
policies and procedures used to release
a UAC from ORR custody to an
approved sponsor.
Proposed 45 CFR 410.301—Sponsors to
Whom ORR Releases an
Unaccompanied Alien Child
As specified in 410.301, ORR releases
a UAC to a sponsor without unnecessary
delay when ORR determines that
continued ORR custody of the UAC is
not required either to secure the UAC’s
timely appearance before DHS or the
immigration courts, or to ensure the
UAC’s safety or the safety of others.
Section 410.301 also contains the list
of individuals (and entities) to whom
ORR releases a UAC. ORR refers to the
individuals and entities in this list as
‘‘sponsors,’’ regardless of their specific
relationship with the UAC. The list
follows the order of preference set out
in the FSA.
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Proposed 45 CFR 410.302—Sponsor
Suitability Assessment Process
Requirements Leading to Release of an
Unaccompanied Alien Child From ORR
Custody to a Sponsor
Section 410.302 outlines the process
requirements leading to release of a
22 While the text of the FSA only uses the term
‘‘minors,’’ HHS has interpreted this term to include
UACs, who may or may not meet the definition of
‘‘minor’’ in the FSA, given the subsequent
enactment of the TVPRA, and the fact that HHS
does not have custody of juveniles who are not
UACs.
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UAC from ORR custody to a sponsor
(also referred to as ‘‘custodian’’). The
FSA at paragraph 17 allows ORR the
discretion to require a suitability
assessment prior to release. Likewise,
the TVPRA provides that ORR may not
release a UAC to a potential sponsor
unless ORR makes a determination that
the proposed custodian is ‘‘capable of
providing for the child’s physical and
mental well-being. Such determination
shall, at a minimum, include
verification of the custodian’s identity
and relationship to the child, if any, as
well as an independent finding that the
individual has not engaged in any
activity that would indicate a potential
risk to the child.’’ 8 U.S.C.
1232(c)(3)(A). As such, this proposed
rule requires a background check,
including at least a verification of
identity for potential sponsors in all
circumstances.
Like the FSA, the proposed rule also
allows for the suitability assessment to
include an investigation of the living
conditions in which the UAC would be
placed and the standard of care he or
she would receive, interviews of
household members, a home visit, and
follow-up visits after release.
Furthermore, where the TVPRA requires
a home study, as specified in 8 U.S.C.
1232(c)(3)(B), the proposed regulations
acknowledge such requirement.
The FSA says that the proposed
sponsor must agree to the conditions of
release by signing a custodial affidavit
(Form I–134) and release agreement.
However, the Form I–134 is a DHS form,
and ORR does not use such form.
Therefore, this proposed rule would
have the sponsor sign an affirmation of
abiding by the sponsor care agreement,
which is the historical agreement and
accompanying form ORR has used so
that the sponsor acknowledges his or
her responsibilities.
For many years the suitability
assessment has involved prospective
sponsors and household members to be
fingerprinted and for background checks
to be run on their biometric and
biographical data to ensure that release
of a UAC to prospective sponsors would
be safe. Fingerprinting of potential
sponsors and household members is
consistent with child welfare
provisions. For example, all states
require background checks for
prospective foster care and adoptive
parents, and kinship caregivers typically
must meet most of these same
requirements. See ‘‘Background Checks
for Prospective Foster, Adoptive, and
Kinship Caregivers,’’ available at:
https://www.childwelfare.gov/pubPDFs/
background.pdf#page=2&view=Who
needs background checks (last visited
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Aug. 4, 2018). As of the time of the
publication of the report, in 48 states, all
adults residing in the home also were
subject to background checks. A
criminal records check for adult
sponsors and other household members
will check the individual’s name in
State, local or Federal law enforcement
agencies’ records, including databases of
records for any history of criminal
convictions. And, nearly all states
require a check of national criminal
records. See also 42 U.S.C. 671(a)(20)
(providing that states receiving federal
funding for foster care and adoption
assistance provide ‘‘procedures for
criminal records checks, including
fingerprint-based checks of national
crime information databases (as defined
in section 534(e)(3)(A) 1 of title 28), for
any prospective foster or adoptive
parent before the foster or adoptive
parent may be finally approved for
placement of a child . . . .’’) In many,
if not most cases, as well, while a
sponsor may be a biological parent, the
child arrived unaccompanied, and may
not have lived with the parent for much
or a significant portion of his or her
childhood.
Section 410.302(e) lists the conditions
and principles of release.
ORR also invites public comment on
whether to set forth in the final rule
ORR’s general policies concerning the
following:
• Requirements for home studies (see
8 U.S.C. 1232(c)(3)(B) for statutory
requirements for a home study);
• Denial of release to a prospective
sponsor, criteria for such denial, and
appeal; and
• Post-release services requirements.
Note: in accordance with the Flores v.
Sessions July 30, 2018 Court order, ORR
states in the preamble that it will not
have a blanket policy of requiring postrelease services to be scheduled prior to
release—for those UACs who required a
home study—but will evaluate such
situations on case-by-case basis, based
on the particularized needs of the UAC
as well as the evaluation of the sponsor,
and whether the suitability of the
sponsor may depend upon having postrelease services in place prior to any
release. Because this statement reflects
an interpretation of what may constitute
an ‘‘unnecessary’’ delay of release, it is
not necessary to include the policy on
post-release services being in place,
discussed above, explicitly in the
regulation text, as the requirement for
release without ‘‘unnecessary delay’’ is
already included in the substantive rule.
Current policies are set forth in the UAC
Policy Guide available at https://
www.acf.hhs.gov/orr/resource/children-
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entering-the-united-statesunaccompanied at: §§ 2.4 through 2.7.
Proposed 45 CFR 410 Subpart D—What
Standards Must Licensed Programs
Meet?
Proposed 45 CFR 410.400—Purpose of
This Subpart
As stated at § 410.400, this subpart
covers the standards that licensed
programs must meet in keeping with the
FSA, as set out in the principles of the
FSA, including the general principles of
the settlement agreement of treating all
minors in custody with dignity, respect,
and special concern for their particular
vulnerability.
Proposed 45 CFR 410.401—
Applicability of This Subpart
Section 410.401 states that the subpart
applies to all licensed programs.
Proposed 45 CFR 410.402—Minimum
Standards Applicable to Licensed
Programs
Section 410.402 reflects the minimum
standards of care listed in Exhibit 1 of
the FSA. ORR expects licensed
programs to easily meet those minimum
standards and, in addition, to strive to
provide additional care and services to
the UACs in their care. The
requirements of 410.402 are consistent
with the Flores v. Sessions Court Order
of July 30, 2018, as they require that
licensed programs comply with
applicable state child welfare laws and
regulations, and that UACs be permitted
to ‘‘talk privately on the phone, as
permitted by the house rules and
regulations.’’
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Proposed 45 CFR 410.403—Ensuring
That Licensed Programs are Providing
Services as Required by These
Regulations
Section 410.403 describes how ORR
ensures that licensed programs are
providing services as required by these
regulations. As stated in this section, to
ensure that licensed programs
continually meet the minimum
standards and are consistent in their
provision of services, ORR monitors
compliance with these rules. The FSA
does not contain standards for how
often monitoring shall occur, and this
regulation does not propose to do so. At
present, ORR provides further
information on such monitoring in
section 5.5 of the ORR Policy Guide
(available at: https://www.acf.hhs.gov/
orr/resource/children-entering-theunited-states-unaccompanied-section5#5.5).
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Proposed 45 CFR 410 Subpart E—
Provisions for Transportation of an
Unaccompanied Alien Child
This subpart concerns the safe
transportation of a UAC while he or she
is in ORR’s custody.
Proposed 45 CFR 410.500—Purpose of
This Subpart
Section 410.500 describes how
transportation is conducted for a UAC
in ORR’s custody. The FSA has two
provisions that govern transportation
specifically, which are incorporated in
this proposed rule at § 410.501. First, a
UAC cannot be transported with
unrelated detained adults. Second, ORR
assists in making transportation
arrangements when ORR plans to
release a UAC under the sponsor
suitability provisions, and ORR may, in
its discretion, provide transportation to
a UAC.
Proposed 45 CFR 410 Subpart F,
Transfer of an Unaccompanied Alien
Child
This subpart sets forth the provisions
for transferring a UAC between HHS
facilities. In some cases, ORR may need
to change the placement of a UAC. This
may occur for a variety of reasons,
including a lack of detailed information
at the time of apprehension, a change in
the availability of licensed placements,
or a change in the UAC’s behavior,
mental health situation, or immigration
case.
Proposed 45 CFR 410.600—Principles
Applicable to Transfer of an
Unaccompanied Alien Child
Section 410.600 sets out the
principles that apply to the transfer of
a UAC between HHS facilities. The
transfer of a UAC under the FSA
concerns mainly two issues: (1) That a
UAC is transferred with all his or her
possessions and legal papers, and (2)
that the UAC’s attorney, if the UAC has
one, is notified prior to a transfer, with
some exceptions. This rule adopts the
FSA provisions concerning transfer of a
UAC.
Proposed 45 CFR 410 Subpart G—Age
Determinations
This subpart concerns age
determinations for UACs.
Proposed 45 CFR 410.700—Conducting
Age Determinations
Section 410.700 incorporates both the
provisions of the TVPRA, 8 U.S.C.
1232(b)(4), and the requirements of the
FSA, in setting forth standards for age
determinations. These take into account
multiple forms of evidence, including
the non-exclusive use of radiographs,
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and may involve medical, dental, or
other appropriate procedures to verify
age.
Proposed 45 CFR 410.701—Treatment of
an Individual Who Appears To Be an
Adult
Section 410.701 also accords with the
FSA and the TVPRA, and states that if
the procedures of § 410.700 would
result in a reasonable person concluding
that an individual is an adult, despite
his or her claim to be a minor, ORR
must treat such person as an adult for
all purposes. As with 410.700, ORR may
take into account multiple forms of
evidence, including the non-exclusive
use of radiographs, and may require
such an individual to submit to a
medical or dental examination
conducted by a medical professional or
other appropriate procedures to verify
age.
Proposed 45 CFR 410 Subpart H,
Unaccompanied Alien Children’s
Objections to ORR Determinations
This subpart concerns objections of a
UAC to ORR placement.
Proposed 45 CFR 410.800–801—
Procedures
While the FSA at Paragraph 24(B) and
24(C) contains procedures for judicial
review of a UAC’s placement in shelter
(including in secure or staff-secure), and
a standard of review, the agreement is
clear that a reviewing federal district
court must have both ‘‘jurisdiction and
venue.’’ Also, once these regulations are
finalized and the FSA is terminated, it
would be even clearer that any review
by judicial action must occur under a
statute where the government has
waived sovereign immunity, such as the
Administrative Procedure Act.
Therefore, we are not proposing
regulations for most of paragraphs 24(B)
and 24(C) of the FSA, although we do
propose that all UACs will continue to
receive a notice stating as follows:
‘‘ORR usually houses persons under
the age of 18 in an open setting, such
as a foster or group home, and not in
detention facilities. If you believe that
you have not been properly placed or
that you have been treated improperly,
you may call a lawyer to seek assistance.
If you cannot afford a lawyer, you may
call one from the list of free legal
services given to you with this form.’’
The proposed rule also contains a
requirement parallel to that of the FSA
that when UACs are placed in a more
restrictive level of care, such as a secure
or staff secure facility, they receive a
notice—within a reasonable period of
time—explaining the reasons for
housing them in the more restrictive
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level of care. In addition, the proposed
rule is consistent with the July 30, 2018
order of the Flores court by stating that
the notice must be in a language the
UAC understands.
Finally, consistent with the FSA, the
proposed provision requires that ORR
promptly provide each UAC not
released with a list of free legal services
providers compiled by ORR and that is
provided to UAC as part of a Legal
Resource Guide for UAC (unless
previously given to the UAC).
Proposed 45 CFR 410.810 ‘‘810
Hearings’’
The proposed rule makes no
provision for immigration judges
employed by the DOJ to conduct bond
redetermination hearings for UACs
under paragraph 24(A) of the FSA. It is
not clear statutory authority for DOJ to
conduct such hearings still exists, and
indeed DOJ argued in the Ninth Circuit
that it does not. In the HSA, Congress
assigned responsibility for the ‘‘care and
placement’’ of UACs to HHS’s ORR, and
specifically barred ORR from requiring
‘‘that a bond be posted for [a UAC] who
is released to a qualified sponsor.’’ 6
U.S.C. 279(b)(1)(A), (4). In the TVPRA,
Congress reaffirmed HHS’s
responsibility for the custody and
placement of UACs. 8 U.S.C. 1232(b)(1),
(c). The TVPRA also imposed detailed
requirements governing ORR’s release of
UACs to proposed custodians—
including, for example, a provision
authorizing ORR to consider a UAC’s
dangerousness and risk of flight in
making placement decisions. 8 U.S.C.
1232(c)(2)(A). Congress thus appears to
have vested HHS, not DOJ, with control
over the custody and release of UACs,
and to have deliberately omitted any
role for immigration judges in this area.
In Flores v. Sessions, the U.S. Court
of Appeals for the Ninth Circuit
nonetheless concluded that neither the
HSA nor the TVPRA superseded the
FSA’s bond-hearing provision. 862 F.3d
at 881. But the court did not identify
any affirmative statutory authority for
immigration judges employed by DOJ to
conduct the bond hearings for UACs
required by paragraph 24(A) of the FSA.
‘‘[A]n agency literally has no power to
act . . . unless and until Congress
confers power upon it.’’ La. Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 374
(1986). HHS, however, as the legal
custodian of UACs who are in federal
custody, clearly has the authority to
conduct the hearings envisioned by the
FSA and in accordance with the court’s
ruling in Flores v. Sessions. It also is
more sensible, as a policy matter, for the
same agency (HHS) charged with
responsibility for custody and care of
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UACs also to conduct the hearings
envisioned by the FSA.
This rule in turn proposes HHS
regulations to afford the same type of
hearing paragraph 24(A) calls for, and to
recognize the transfer of responsibility
of care and custody of UAC from the
former INS to HHS ORR. Specifically,
rather than providing for DOJ-employed
immigration judges to preside over these
hearings, this rule includes provisions
whereby HHS would create an
independent hearing officer process that
would be guided by the immigration
judge bond hearing process currently in
place for UACs under the FSA. The
basic idea would be to provide
essentially the same substantive
protections, but through a neutral
adjudicator at HHS rather than DOJ.
This proposed rule implements the
FSA’s substantive protections, and
responds to the HSA and TVPRA and
the transfer of responsibility for UACs,
when they are in government custody,
to HHS. The reasonable method of
reconciling paragraph 24(A) of the FSA
with the HSA and TVPRA, is for the
Secretary of HHS to appoint an
independent hearing officer or officers
who would conduct the hearings
envisioned by the FSA for those UAC
who qualify for such review.
Under this proposal, the Secretary
would appoint independent hearing
officers to determine whether a UAC, if
released, would present a danger to
community (or flight risk). The hearing
officer would not have the authority to
release a UAC, as the Flores court has
already recognized that Paragraph 24(A)
of the FSA does not permit a
determination over the suitability of a
sponsor. Specifically, in reviewing this
issue, the Ninth Circuit explained ‘‘as
was the case when the Flores Settlement
first went into effect, [a bond hearing]
permits a system under which
unaccompanied minors will receive
bond hearings, but the decision of the
immigration judge will not be the sole
factor in determining whether and to
whose custody they will be released.
Immigration judges may assess whether
a minor should remain detained or
otherwise in the government’s custody,
but there must still be a separate
decision with respect to the
implementation of the child’s
appropriate care and custody.’’ Flores,
862 F.3d at 878. Similarly, the district
court stated: ‘‘To be sure, the TVPRA
addresses the safety and secure
placement of unaccompanied children
. . . . But identifying appropriate
custodians and facilities for an
unaccompanied child is not the same as
answering the threshold question of
whether the child should be detained in
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the first place—that is for an
immigration judge at a bond hearing to
decide . . . . Assuming an immigration
judge reduces a child’s bond, or decides
he or she presents no flight risk or
danger such that he needs to remain in
HHS/ORR custody, HHS can still
exercise its coordination and placement
duties under the TVPRA.’’ Flores v.
Lynch, No. CV 85–4544 DMG at 6 (C.D.
Cal. Jan. 20, 2017).
Thus, the hearing officer would
decide only the issues presented by
paragraph 24(A) of the FSA—whether
the UAC would present a danger to the
community or a risk of flight (that is, not
appearing for his or her immigration
hearing) if released. For the majority of
children in ORR custody, ORR has
determined they are not a danger and
therefore has placed them in shelters,
group homes, and in some cases, staff
secure facilities. For these children, a
hearing is not necessary or even
beneficial, and would simply be a
misuse of limited government resources.
However, for some children placed in
secure facilities, the hearing may assist
them in ultimately being released from
ORR custody in the event a suitable
sponsor is or becomes available.
As is the case now, under section 2.9
of the ORR Policy Guide (available at:
https://www.acf.hhs.gov/orr/resource/
children-entering-the-united-statesunaccompanied-section-2#2.9), the
hearing officer’s decision that the UAC
is not a danger to the community will
supersede an ORR determination on that
question. While currently, immigration
judge decisions on such issues may be
appealed to the Board of Immigration
Appeals (BIA), HHS does not have a
two-tier administrative appellate system
that mirrors the immigration judge-BIA
hierarchy. To provide similar
protections without such a rigid
hierarchy, this proposed rule would
allow appeal to the Assistant Secretary
of ACF (if the appeal is received by the
Assistant Secretary within 30 days of
the original hearing officer decision).
The Assistant Secretary would review
factual determinations using a clearly
erroneous standard, and review legal
determinations on a de novo basis. In
such cases, where ORR appeals to the
Assistant Secretary of ACF, there would
be no stay of the hearing officer’s
decision unless the Assistant Secretary
finds, within 5 business days of the
hearing officer decision, that a failure to
stay the decision would result in a
significant danger to the community
presented by the UAC. The written stay
decision would be based on clear
behaviors of the UAC while in care,
and/or documented criminal or juvenile
behavior records from the UAC.
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Otherwise, a hearing officer’s decision
that a UAC would not be dangerous (or
a flight risk) if released, would mean
that as soon as ORR determined a
suitable sponsor (or if ORR has done so
already) it must release in accordance
with its ordinary procedures on release.
Under current Flores hearing rules,
and in accordance with the Flores
district court’s order analogizing Flores
hearings to bond hearings for adults,
immigration judges apply the standard
of Matter of Guerra, 24 I&N Dec. 37 (BIA
2006).23 Thus, the burden is on the UAC
to demonstrate that he or she would not
be a danger to the community (or flight
risk) if released. However, due to the
unique vulnerabilities of children and
subsequent enactment of the TVPRA,
we request comments on whether the
burden of proof should be on ORR to
demonstrate that the UAC would be a
danger or flight risk if released. As is the
case currently, the standard would be a
‘‘preponderance’’ of the evidence.
ORR also would take into
consideration the hearing officer’s
decision on a UAC’s level of danger
when assessing the UAC’s placement
and conditions of placement, but the
hearing officer would not have the
authority to order a particular
placement for a UAC.
Requests for a hearing under this
section (an ‘‘810 hearing’’) could be
made by the child in ORR care, by a
legal representative of the child, or by
parents/legal guardians on their child’s
behalf. These parties could submit a
written request for the 810 hearing to
the care provider using the ORR form
(See https://www.acf.hhs.gov/sites/
default/files/orr/request_for_a_flores_
bond_hearing_01_03_2018e.pdf (last
visited Aug. 12, 2018)), or through a
separate written request that provides
the information requested in the form.
ORR would provide a notice of the right
to request the 810 hearing to UACs in
secure and staff secure facilities. ORR
also expects that the hearing officer
would create a process for UACs or their
representatives to directly request a
hearing to determine danger (or flight
risk). During the 810 hearing, the UAC
could choose to be represented by a
person of his or her choosing, at no cost
to the government. The UAC could
present oral and written evidence to the
hearing officer and could appear by
video or teleconference. ORR could also
choose to present evidence either in
writing, or by appearing in person, or by
video or teleconference.
23 The Flores District Court specifically cited the
law of 8 U.S.C. 1226 and 8 CFR 1003.19, 1236.1(d).
See Flores v. Sessions, 2:85–cv–04544, supra at 2,
6.
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Because the 810 hearing process
would be unique to ORR and HHS, if a
UAC turns 18 years old during the
pendency of the hearing, the
deliberations would have no effect on
DHS detention (if any).
If the hearing officer determines that
the UAC would be a danger to the
community (or a flight risk) if released,
the decision would be final unless the
UAC later demonstrates a material
change in circumstances to support a
second request for a hearing. Similarly,
because ORR may not have yet located
a suitable sponsor at the time a hearing
officer issues a decision, ORR may find
that circumstances have changed by the
time a sponsor is found such that the
original hearing officer decision should
no longer apply. Therefore, the
proposed regulation states that ORR
may request the hearing officer to make
a new determination if at least one
month has passed since the original
decision, and ORR can show that a
material change in circumstances means
the UAC should no longer be released
due to danger (or flight risk).
HHS invites public comment on
whether the hearing officers for the 810
hearings should be employed by the
Departmental Appeals Board, either as
Administrative Law Judges or hearing
officers, or whether HHS would create
a separate office for hearings, similar to
the Office of Hearings in the Centers for
Medicare & Medicaid Services. See
https://www.cms.gov/About-CMS/
Agency-Information/CMSLeadership/
Office_OHI.html.
Furthermore, while the FSA contains
procedures for judicial review of a
UAC’s placement in a secure or staffsecure shelter, and a standard of review,
once these regulations are finalized and
the FSA is vacated, any review by
judicial actions would occur in
accordance with the Administrative
Procedure Act and any other applicable
Federal statute. Therefore, we are not
proposing regulations for most of
paragraphs 24(B) and 24(C) of the FSA.
VI. Statutory and Regulatory
Requirements
The Departments have considered
numerous statutes and executive orders
related to rulemaking. The following
sections summarize our analyses based
on a number of these statutes and
executive orders.
A. Executive Orders 12866 and 13563:
Regulatory Review
Executive Orders 12866 (‘‘Regulatory
Planning and Review’’) and 13563
(‘‘Improving Regulation and Regulatory
Review’’) direct agencies to assess the
costs and benefits of available regulatory
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alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. OMB has
designated this rule a significant
regulatory action, although not an
economically significant regulatory
action, under Executive Order 12866.
Accordingly, OMB has reviewed this
regulation.
(1) Background and Purpose of the
Proposed Rule
These proposed regulations aim to
terminate the FSA. They would codify
current requirements of the FSA and
court orders enforcing terms of the FSA,
as well as relevant provisions of the
HSA and TVPRA. The Federal
government’s care of minors and UACs
has complied with the FSA and related
court orders for over 20 years, and
complies with the HSA and TVPRA.
The proposed rule applies to minors
and UACs encountered by DHS, and in
some cases, their families. CBP and ICE
encounter minors and UACs in different
manners. CBP generally encounters
minors and UACs at the border.
Generally, ICE encounters minors either
upon transfer from CBP to an FRC, or
during interior enforcement actions. ICE
generally encounters UACs when they
are transferred from CBP custody to
ORR custody, as well as during interior
enforcement actions.
CBP
CBP’s facilities at Border Patrol
stations and ports of entry (POEs) are
processing centers, designed for the
temporary holding of individuals. CBP
facilities are designed to meet the
primary mission of CBP, which is to
facilitate legitimate travel and trade.
CBP’s facilities are not designed, nor are
there services in place, to accommodate
large numbers of minors and UACs
waiting for transfer to ICE or ORR, even
for the limited period for which CBP is
generally expected to have custody of
minors and UACs, generally 72 hours or
less. All minors and UACs in CBP
facilities are provided access to safe and
sanitary facilities; functioning toilets
and sinks; food; drinking water;
emergency medical assistance, as
appropriate; and adequate temperature
control and ventilation. To ensure their
safety and well-being, UACs in CBP
facilities are supervised and are
generally segregated from unrelated
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adults; older, unrelated UACs are
generally segregated by gender.
CBP has apprehended or encountered
61,610 minors accompanied by their
parent(s) or legal guardian(s) (defined as
a ‘‘family unit’’), and 55,090 UACs on
average annually for the last three fiscal
years. In Fiscal Year 2017, CBP
apprehended or encountered
approximately 105,000 aliens as part of
a family unit. Table 2 shows the annual
45511
number of accompanied minors (that is,
minors accompanied by their parent(s)
or legal guardian(s)) and UACs CBP has
apprehended or encountered in Fiscal
Years (FYs) 2010 through 2017.
TABLE 2—U.S. CUSTOMS AND BORDER PROTECTION ACCOMPANIED MINORS AND UNACCOMPANIED ALIEN CHILDREN
NATIONWIDE APPREHENSIONS AND ENCOUNTERS FY 2010–FY 2017
Accompanied
minors
Fiscal year
2010
2011
2012
2013
2014
2015
2016
2017
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
CBP makes a case by case
determination as to whether an alien is
a UAC based upon the information and
evidence available at the time of
encounter. When making this
determination, CBP refers to section
462(g)(2) of the HSA, which defines a
UAC as a child who— (A) has no lawful
immigration status in the United States;
(B) has not attained 18 years of age; and
(C) with respect to whom— (i) there is
no parent or legal guardian in the
United States; or (ii) no parent or legal
guardian in the United States is
available to provide care and physical
custody.
Once CBP determines that an alien is
a UAC, CBP must process the UAC
consistent with the provisions of the
TVPRA, which requires the transfer of a
UAC who is not statutorily eligible to
withdraw his or her application for
admission into the custody of ORR
within 72 hours of determining that the
juvenile meets the definition of a UAC,
except in exceptional circumstances.
If, upon apprehension or encounter,
CBP determines that an alien is a minor
who is part of a family unit, the family
unit is processed accordingly and
transferred out of CBP custody. If
appropriate, the family unit may be
transferred to an ICE FRC. If the FSA
were not in place, CBP would still make
a determination of whether an alien was
a UAC or part of a family unit upon
encountering an alien, in order to
determine appropriate removal
proceedings pursuant to the TVPRA.
UACs
22,937
13,966
13,314
17,581
55,644
45,403
74,798
64,628
Total
19,234
17,802
27,031
41,865
73,421
44,910
71,067
49,292
42,171
31,768
40,345
59,446
129,065
90,313
145,865
113,920
ICE
When ICE encounters a juvenile
during an interior enforcement action,
ICE performs an interview to determine
the juvenile’s nationality, immigration
status, and age. Pursuant to the TVPRA,
an alien who has been encountered and
has no lawful immigration status in the
United States, has not attained 18 years
of age, and has no parent or legal
guardian in the United States available
to provide care and physical custody
will be classified as a UAC. The number
of juvenile arrests made by ICE is
significantly smaller than CBP across all
fiscal years as shown in Table 3. An
individual would have to be arrested to
be booked into an FRC.
TABLE 3—FY 14–FY 17 JUVENILE BOOK-INS WITH ICE AS ARRESTING AGENCY
Book-ins of
accompanied
minors
Fiscal year
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2014
2015
2016
2017
.........................................................................................................................................................................
.........................................................................................................................................................................
.........................................................................................................................................................................
.........................................................................................................................................................................
Once ICE determines that an alien is
a UAC, ICE must process the UAC
consistent with the provisions of the
TVPRA, which requires the transfer of a
UAC into the custody of ORR within 72
hours of determining that the juvenile
meets the definition of a UAC, except in
exceptional circumstances.
At the time that the FSA was agreed
to in 1997, INS generally did not detain
alien family units. Instead, family units
apprehended or encountered at the
border were generally released. When a
decision was made to detain an adult
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family member, the other family
members were generally separated from
that adult. However, beginning in 2001,
in an effort to maintain family unity,
INS began opening FRCs to
accommodate families who were
seeking asylum but whose cases had
been drawn out. INS initially opened
what today is the Berks Family
Residential Center (Berks) in Berks,
Pennsylvania, in 2001. ICE also
operated the T. Don Hutto mediumsecurity facility in Taylor, Texas as an
FRC from 2006 to 2009. In response to
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3
8
108
123
UAC
Book-ins
285
200
164
292
the influx of UACs and family units in
2014 in the Rio Grande Valley, ICE
opened family residential centers in
Artesia, New Mexico in June of 2014;
Karnes County, Texas in July of 2014;
and Dilley, Texas in December of 2014.
The Artesia facility, which was
intended as a temporary facility while
more permanent facilities were
contracted for and established, was
closed on December 31, 2014.
The South Texas Family Residential
Center in Dilley, Texas (Dilley) has
2,400 beds, Berks has 96 beds, and the
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Karnes County Residential Center in
Karnes County, Texas (Karnes) has 830
beds. The capacity of the three FRCs
provide for a total of 3,326 beds. As a
practical matter, given varying family
sizes and compositions, and housing
standards, not every available bed will
be filled at any given time, and the
facilities may still be considered to be
at capacity even if every available bed
is not filled. ICE did not maintain a
consistent system of records of FRC
intakes until July 2014. Since 2015,
there has been an annual average of
31,458 intakes of adults and minors at
the FRCs. The count of FRC intakes
from July 2014 through FY 2017 is
shown in Table 4.
TABLE 4—FAMILY RESIDENTIAL CENTER (FRC) INTAKES FY 2014–FY 2017
FRC
intakes
Fiscal year
Q4 2014 * .....................................................................................................................................
2015 .............................................................................................................................................
2016 .............................................................................................................................................
2017 .............................................................................................................................................
FRC adult
intakes
1,589
13,206
43,342
37,825
711
5,964
19,452
17,219
FRC minor
intakes
878
7,242
23,890
20,606
* 2014 only includes the fourth quarter of FY 2014: July, August, and September.
As previously discussed, due to court
decisions in 2015 and 2017, DHS
ordinarily uses its FRCs for the
detention of non-UAC minors and their
accompanying parent(s) or legal
guardian(s) for periods of up to
approximately 20 days. Since 2016, the
average number of days from the bookin date to the release date at all FRCs for
both minors and adults has been less
than 15 days. Table 5 shows the average
number of days from book-in date to
release date at FRCs for FY 2014
through FY 2017, based on releases by
fiscal year. Data on releases are available
for all four quarters of FY 2014.
TABLE 5—AVERAGE NUMBER OF DAYS FROM BOOK-IN DATE TO RELEASE DATE AT FAMILY RESIDENTIAL CENTERS FY
2014–FY 2017
Average
number
of days
Fiscal year
2014
2015
2016
2017
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
Table 6 shows the reasons for the
release of adults and minors from FRCs
in FY 2017. As it indicates, the large
majority of such individuals were
released on an order of their own
recognizance or paroled.
TABLE 6—FY 2017 REASONS FOR
RELEASE
[Adults and minors]
Reason for release
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Removals
Q4 2014 * ..............................
2015 ......................................
2016 ......................................
2017 ......................................
390
430
724
977
The FSA does not impose
requirements on secure facilities used
for the detention of juveniles. Juveniles
may be placed in secure facilities if they
meet the criteria listed in paragraph 21
of the FSA.
The proposed rule also applies to
UACs who have been transferred to
HHS care. Upon referral, HHS promptly
places UACs in the least restrictive
setting that is in the best interests of the
child, taking into consideration danger
to self, danger to the community, and
24 For the purposes of this table, Voluntary Return
refers to the DHS grant of permission for an alien
to depart the United States, while Voluntary
18:16 Sep 06, 2018
Fiscal year
HHS
Table 7 shows the number of adults
and minors removed from the United
States from FRCs since FY 2014.
Removals include returns. Returns
include Voluntary Departures
(including Voluntary Returns) 24 and
Withdrawals Under Docket Control.
VerDate Sep<11>2014
[Adults and minors]
* 2014 only includes the fourth quarter of FY
2014: July, August, and September.
Percent
Order of Recognizance ........
Paroled .................................
Order of Supervision ............
Bonded Out ..........................
Prosecutorial Discretion ........
TABLE 7—REMOVALS FROM FRCS FY
2014–FY 2017
Departure refers to the immigration judge’s grant of
permission for an alien to depart the United States.
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Average days
for minors
(<18 years
old)
Average days
for adults
(≥18 years
old)
46.7
43.1
13.6
14.2
48.4
44.0
13.6
14.1
47.4
43.5
13.6
14.2
risk of flight. HHS takes into
consideration the unique nature of each
child’s situation and incorporates child
welfare principles when making
placement and release decisions that are
in the best interest of the child.
HHS places UACs in a network of
over 100 shelters in 17 states. For its
first nine years at HHS, fewer than 8,000
UACs were served annually in this
program. Since FY 2012, this number
has jumped dramatically, with a total of
13,625 children referred to HHS by the
end of FY 2012. Between FY 2012 and
FY 2018—Year To Date (YTD) (June),
HHS has received a total of 267,354
UACs.
TABLE 8—UAC REFERRALS TO HHS
FY 2008–FY 2017
Fiscal year
2008
2009
2010
2011
2012
2013
2014
2015
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......................................
......................................
......................................
......................................
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6,658
6,089
7,383
6,560
13,625
24,668
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legislation transferring the
responsibility for the care and custody
of UACs, including some of the material
terms of the FSA, to ORR, as well as the
Fiscal year
Referrals
substantive terms of the 2008 TVPRA.
2016 ......................................
59,170 Finally, it includes the July 6, 2016
2017 ......................................
40,810 decision of the Ninth Circuit affirming
the district court’s finding that the FSA
For FY 2018—YTD (June) the average ‘‘unambiguously’’ applies to both
length of stay (the time a child is in
accompanied and unaccompanied
custody from the time of admission to
minors, and that such minors shall not
the time of discharge) for UACs in the
be detained in unlicensed and secure
program is approximately 50 days. In
facilities that do not meet the
FY 2018—June ’18 the average length of requirements of the FSA. See Flores v.
care (the time a child has been in
Lynch, 828 F.3d 898 (9th Cir. 2016). The
custody, since the time of admission) for section below discusses some examples
UACs in ORR care is approximately 58
of the current cost for the Departments’
days. The overwhelming majority, over
operations and procedures under the
90 percent, of UACs are released to
baseline. Because the costs described
suitable sponsors who are family
below are already being incurred, they
members within the United States.
are not costs of this rule.
UACs that are not released to a sponsor
typically: Age out or receive an order of DHS
removal and are transferred to DHS; are
CBP incurs costs to comply with the
granted voluntary departure and
FSA, including those related to facility
likewise transferred to DHS for removal; configurations, custodial requirements,
or, obtain immigration legal relief and
and compliance monitoring. To comply
are no longer eligible for placement in
with the terms of the FSA, for example,
CBP reallocates space in its facilities to
ORR’s UAC program.
allow for separate holding areas for
TABLE 9—PERCENTAGE OF UACS BY families and/or UACs. Pursuant to the
FSA, CBP provides minors and UACs
DISCHARGE TYPE FY 18
access to food; drinking water;
[Through June 30th]
functioning toilets and sinks; adequate
temperature and ventilation; emergency
Percentage
of
Discharge type
medical care, if needed; and safe and
UACs
sanitary facilities, which impose costs
Age Out ................................
3.5 on CBP. Related costs include, for
Age Redetermination ............
2.3 example, the purchase of food; bottled
Immigration Relief Granted ..
0.2
water; first aid kits; blankets, mats, or
Local Law Enforcement ........
0.0
Ordered Removed ................
0.2 cots; and age-appropriate transport and
Other .....................................
0.3 bedding. To ensure compliance with the
Runaway from Facility ..........
0.4 FSA, CBP has added fields in its
Runaway on Field Trip .........
0.1 electronic systems of records, so that
Reunified (Individual SponCBP officers and Border Patrol agents
sor) ....................................
90.0 can continuously record the conditions
Reunified (Program/Facility)
1.3 of the hold rooms and all custodial
Voluntary Departure .............
1.9 activities related to each minor or UAC,
Total ..................................
100.0 such as medical care provided, welfare
checks conducted, and any separation
from accompanying family members.
(2) Baseline of Current Costs
CBP has experienced other baseline
In order to properly evaluate the
costs from its national and field office
benefits and costs of regulations,
Juvenile Coordinators. Under current
agencies must evaluate the costs and
practice, the national CBP Juvenile
benefits against a baseline. OMB
Coordinator oversees agency
Circular A–4 defines the ‘‘no action’’
compliance with applicable law and
baseline as ‘‘the best assessment of the
policy related to the treatment of minors
way the world would look absent the
and UACs in CBP custody. The national
proposed action.’’ The Departments
CBP Juvenile Coordinator monitors CBP
consider their current operations and
facilities and processes through site
procedures for implementing the terms
visits and review of juvenile custodial
of the FSA, the HSA, and the TVPRA to records. Along with the national CBP
be the baseline for this analysis, from
Juvenile Coordinator role, CBP has field
which they estimate the costs and
office and sector Juvenile Coordinators
benefits of the proposed rule. The
who are responsible for managing all
baseline encompasses the FSA that was
policies on the processing of juveniles
approved by the court on January 28,
within CBP facilities, coordinating
1997. It also encompasses the 2002 HSA within CBP and across DHS components
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TABLE 8—UAC REFERRALS TO HHS
FY 2008–FY 2017—Continued
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45513
to ensure the expeditious placement and
transport of juveniles placed into
removal proceedings by CBP, and
informing CBP operational offices of any
policy updates related to the processing
of juveniles (e.g., through
correspondence, training presentations).
Moreover, CBP’s Juvenile Coordinators
serve as internal and external agency
liaisons for all juvenile processing
matters.
CBP’s baseline costs also include the
use of translation services, including
contracts for telephonic interpretation
services.
ICE also incurs facility costs to
comply with the FSA. The costs of
operation and maintenance of the ICE
FRCs for FY 2015–2017 are listed in
Table 10, provided by the ICE Office of
Acquisition Management. The costs
account for the implementation of the
FSA requirements, including the cost
for the facility operators to abide by all
relevant state standards. Two of the
FRCs are operated by private
contractors, while one is operated by a
local government, under contract with
ICE. These are the amounts that have
been paid to private contractors or to the
local government to include beds,
guards, health care, and education.
TABLE 10—CURRENT COSTS FOR
FRCS
Fiscal year
2015 ......................................
2016 ......................................
2017 ......................................
FRC costs
$323,264,774
312,202,420
231,915,415
The FRC costs are fixed-price
agreements with variable costs added on
a monthly basis. Overall, the fixed-price
agreements are not dependent on the
number of detainees present or length of
stay, with some exceptions. At Berks,
the contract includes a per-person fee
charged in addition to the monthly fixed
rate. At two of the FRCs, Berks and
Karnes, education is provided per the
standards of a licensed program set forth
in the FSA, at a per-student, per-day
cost. Since FRCs are currently at limited
available capacity and the configuration
of limited available capacity varies from
day to day across all FRCs, the number
of children and adults vary at Berks day
to day and the number of children at
Karnes vary day to day. Thus, these
costs charged to ICE vary from month to
month.
In addition to the above example of
current costs to operate the FRCs, or the
baseline cost, DHS (particularly CBP
and ICE) incurs costs to process,
transfer, and provide transportation of
minors and UACs from the point of
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apprehension to DHS facilities; from the
point of apprehension or from a DHS
facility to HHS facilities; between
facilities; for the purposes of release; or
for all other circumstances, in
compliance with the FSA, HSA, and
TVPRA.
The baseline costs also include bond
hearing for minors and family units who
are eligible for such hearings. When a
minor or family unit seeks a bond, ICE
officers must review the request and
evaluate the individuals’ eligibility as
well as, where appropriate, set the
initial bond amount. Further, should the
minor or family unit seek a bond
redetermination hearing before an
immigration judge, ICE must transport
or otherwise arrange for the individuals
to appear before the immigration court.
ICE’s baseline costs also include the
use of translation services, including
contracts for telephonic interpretation
services.
ICE also incurs baseline costs related
to its Juvenile and Family Residential
Management Unit (JFRMU), which was
created in 2007. JFRMU manages ICE’s
policies affecting alien juveniles and
families. The role of ICE’s Juvenile
Coordinator is within JFRMU and is not
a collateral duty. JFRMU consists of
specialized federal staff, as well as
contract subject matter experts in the
fields of child psychology, child
development, education, medicine, and
conditions of confinement. JFRMU
establishes policies on the management
of family custody, UACs pending
transfer to the ORR, and UACs applying
for Special Immigrant Juvenile specific
consent. JFRMU continues to pursue
uniform operations throughout its
program through implementation of
family residential standards. These
standards are continually reviewed and
revised as needed to ensure the safety
and welfare of families awaiting an
immigration decision while housed in a
family residential facility. DHS
conducts an inspection of each FRC at
least annually to confirm that the
facility is in compliance with ICE
Family Residential Standards.
The baseline costs include the
monitoring of FSA compliance and
reporting to the court. Since 2007,
JFRMU has submitted Flores Reports
annually, bi-annually, or monthly for
submission to the court through DOJ.
HHS
HHS’ baseline costs were $1.4 billion
in FY 2017. HHS funds private nonprofit and for-profit agencies to provide
shelter, counseling, medical care, legal
services, and other support services to
UACs in custody. Funding levels for
non-profit organizations totaled
$912,963,474 in FY 2017. Funding
levels for for-profit agencies totaled
$141,509,819 in FY 2017. Program
funded facilities receive grants or
contracts to provide shelter, including
therapeutic care, foster care, shelter
with increased staff supervision, and
secure detention care. The majority of
program costs (approximately 80
percent) are for bed capacity care. Other
services for UACs, such as medical care,
background checks, and family
reunification services, make up
approximately 15 percent of the budget.
In addition, some funding is provided
for limited post-release services to
certain UACs. Administrative expenses
to carry out the program total
approximately five percent of the
budget.
In FY 2016, HHS total approved
funding for the UAC program was
$743,538,991, with $224,665,994 going
to influx programming. In FY 2017, the
total funding was $912,963,474, with
$141,509,819 for influx.
These are examples of the types of
costs the Departments incur under
current operations, and are not a result
of this rule.
(3) Costs
This rulemaking would implement
the relevant and substantive terms of the
FSA, with limited changes necessary to
implement closely related provisions of
the HSA and TVPRA, and to ensure that
the regulations set forth a sustainable
operational model of immigration
enforcement. This section assesses the
cost of proposed changes to the current
operational environment.
The primary source of new costs for
the proposed rule would be as a result
of the proposed alternative licensing
process, changes to ICE parole
determination practices to align them
with applicable statutory and regulatory
authority, and the costs of shifting
hearings from DOJ to HHS. The
proposed alternative license for FRCs
and changes to parole determination
practices may result in additional or
longer detention for certain minors, but
DHS is unable to estimate the costs of
this to the Government or to the
individuals being detained because we
are not sure how many individuals will
be detained at FRCs after this rule is
effective or for how much longer
individuals may be detained because
there are so many other variables to
consider. The Departments seek
comment on how these costs might be
reasonably estimated, given the
uncertainties.
Table 11 shows the proposed changes
to the DHS current operational status
compared to the FSA. It contains a
preliminary, high-level overview of how
the proposed rule would change DHS’s
current operations, for purposes of the
economic analysis. The table does not
provide a comprehensive description of
all proposed provisions and their basis
and purpose.
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TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS
FSA
paragraph No.
Description of FSA provision
DHS cite
(8 CFR)
DHS change from current practice
1, 2, 3 .................
‘‘Party, ‘‘plaintiff’’ and ‘‘class member’’ definitions.
N/A ....................
4 .........................
5 .........................
6 .........................
‘‘Minor’’ definition ..........................
‘‘Emancipated minor’’ definition ....
‘‘Licensed program’’ definition ......
236.3(b)(1) ........
236.3(b)(1)(i) .....
236.3(b)(9) ........
None. (Note: These definitions are only relevant to the FSA insofar
as the FSA exists in the form of a consent decree. Following promulgation of a final rule, the definitions would no longer be relevant. As a result, the proposed rule does not include these definitions.)
None.
None.
FSA defines a ‘‘licensed program’’ as one licensed by an appropriate State agency. DHS would not define ‘‘licensed program,’’
but instead would define a ‘‘licensed facility’’ as an ICE detention
facility that is licensed by the state, county, or municipality in
which it is located. DHS would also add an alternative licensing
scheme for family residential centers (FRCs), if the state, county,
or municipality where the facility is located does not have a licensing scheme for such facilities.
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TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued
FSA
paragraph No.
Description of FSA provision
DHS cite
(8 CFR)
DHS change from current practice
6+ Exhibit 1 ........
Exhibit 1, standards of a licensed
program.
236.3(i)(4) ..........
7 .........................
‘‘Special needs minor’’ definition
and standard.
‘‘Medium security facility’’ definition.
236.3(b)(2) ........
DHS provides requirements that licensed facilities must meet. (Note:
Compared with Exhibit 1, these requirements contain a slightly
broadened educational services description to capture current operations and added that program design should be appropriate for
length of stay (see (i)(4)(iv)); amended ‘‘family reunification services’’ provision to more appropriately offer communication with
adult relatives in the U.S. and internationally, since DHS only has
custody of accompanied minors so reunification is unnecessary
(see proposed 236.3(i)(4)(iii)(H)).)
None.
9 .........................
Scope of Settlement Agreement,
Effective Date, and Publication.
N/A ....................
10 .......................
Class Definition .............................
N/A ....................
11 .......................
Place each detained minor in
least restrictive setting appropriate for age and special
needs. No requirement to release to any person who may
harm or neglect the minor or fail
to present minor before the immigration court.
The INS treats, and shall continue
to treat, all minors in its custody
with dignity, respect and special
concern for their particular vulnerability as minors.
Expeditiously process the minor ..
236.3(g)(2)(i), (i),
(j)(4).
None. (Note: DHS only has secure or non-secure facilities, so a definition of ‘‘medium security facility’’ is unnecessary. As a result,
the proposed rule lacks such a definition, even though the FSA
contains one.)
None. (Note: This provision imposes a series of deadlines that
passed years ago, and/or do not impose obligations on the parties
that continue following termination of the FSA. As a result, the
proposed rule does not include this provision.)
None. (Note: Provision is specific to the litigation and is not a relevant or substantive term of the FSA, and is not included in the
rule.)
None. (Note: 236.3(j) tracks FSA paragraph14, which is consistent
with FSA paragraph 11 but uses different terms.)
236.3(a)(1) ........
None.
236.3(e), (f), &
(g)(2)(i).
Shall provide the minor with notice of rights.
Facilities must be safe and sanitary including toilets and sinks,
water and food, medical assistance for emergencies, temperature control and ventilation,
adequate supervision to protect
minor from others.
Contact with family members who
were arrested with the minor.
236.3(g)(1)(i) .....
None. (Note: The proposed rule reflects the fact that the TVPRA
(rather than the FSA) governs the processing and transfer of
UACs. The proposed rule also makes clear that generally, unless
an emergency or influx ceases to exist, the transfer timelines associated with an emergency or influx continue to apply for nonUAC minors.)
None.
236.3(g)(2)(i) .....
None
236.3(g)(2)(i) .....
Segregate unaccompanied minors
from unrelated adults, unless
not immediately possible (in
which case an unaccompanied
minor may not be held with an
unrelated adult for more than
24 hours).
236.3(g)(2)(i) .....
None. (Note: The proposed rule contains a slightly different standard
than appears in the FSA. The proposed rule provides for contact
with family members apprehended with both minors and UACs.
Additionally, the proposed rule invokes operational feasibility and
consideration of the safety or well-being of the minor or UAC in
facilitating contact. The FSA generally prioritizes the safety and
well-being of the minor and that of others, but does not include
these provisos.)
None. (Note: The proposed rule would allow UACs to be held with
unrelated adults for no more than 24 hours except in cases of
emergency or other exigent circumstances.)
8 .........................
11 .......................
12(A) ...................
12(A) ...................
12(A) ...................
12(A) ...................
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TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued
FSA
paragraph No.
Description of FSA provision
DHS cite
(8 CFR)
DHS change from current practice
Transfer in a timely manner:
Three days to five days max
with exceptions, such as emergency or influx, which requires
placement as expeditiously as
possible.
Transfer within 5 days instead of
3 days in cases involving transport from remote areas or
where an alien speaks an ‘‘unusual’’ language.
Written plan for ‘‘emergency’’ or
‘‘influx’’.
236.3(b)(5),
(b)(10), (e)(1).
None. (Note: Following the TVPRA, the transfer provisions in FSA
paragraph 12(A) apply to DHS only for accompanied minors. In
addition, the proposed rule’s definition of ‘‘emergency’’ clarifies
that an emergency may create adequate cause to depart from
any provision of proposed 236.3, not just the transfer timeline.)
N/A ....................
None. (Note: Although DHS is not proposing a change in practice, it
does not propose to codify this exception from the FSA in proposed 236.3(e) because operational improvements have rendered
the exception unnecessary.)
236.3(e)(2) ........
13 .......................
Age determination ........................
236.3(c) .............
14 .......................
Release from custody where the
INS determines that the detention of the minor is not required
either to secure his or her timely appearance before the INS
or the immigration court, or to
ensure the minor’s safety or
that of others. Release is to, in
order of preference: parent,
legal guardian, adult relative,
adult or entity, licensed program, adult seeking custody.
Before release from custody,
Form I–134 and agreement to
certain terms must be executed. If emergency, then minor
can be transferred temporarily
to custodian but must notify INS
in 72 hours.
INS may terminate the custody if
terms are not met.
236.3(j) (release
generally).
None. (Note: Like the FSA, the proposed rule requires a written
plan. The written plan is contained in a range of guidance documents.)
None. (Note: The proposed rule includes a ‘‘totality of the circumstances’’ standard; the FSA does not contain a standard that
conflicts with ‘‘totality of the circumstances.’’)
The proposed rule adds that any decision to release must follow a
determination that such release is permitted by law, including parole regulations. In addition, the proposed rule does not codify the
list of individuals to whom a non-UAC minor can be released, because the TVPRA has overtaken this provision. Per the TVPRA,
DHS does not have the authority to release juveniles to non-parents or legal guardians. Under the TVPRA, DHS may release a
juvenile to a parent or legal guardian only.
17 .......................
Positive suitability assessment .....
N/A ....................
18 .......................
INS or licensed program must
make and record the prompt
and continuous efforts on its
part toward family reunification
efforts and release of minor
consistent with FSA paragraph
14.
INS custody in licensed facilities
until release or until immigration
proceedings are concluded.
Temporary transfers in event of
an emergency.
INS must publish a ‘‘Program Announcement’’ within 60 Days of
the FSA’s approval.
Transfer to a suitable State or
county juvenile detention facility
if a minor has been charged or
convicted of a crime with exceptions.
Escape risk definition ...................
Least restrictive placement of minors available and appropriate.
236.3(i)(2) ..........
12(A), 12(A)(1)–
(3), 12(B).
12(A)(4) ..............
12(C) ..................
15 .......................
16 .......................
19 .......................
20 .......................
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21 .......................
22 .......................
23 .......................
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N/A ....................
None. (Note: The proposed rule does not codify this portion of the
FSA, because (1) the TVPRA has overtaken this provision in part,
and (2) these requirements, which are primarily for DHS’s benefit,
are not currently implemented.)
N/A ....................
236.3(j) ..............
None. (Note: The proposed rule does not codify this portion of the
FSA, because (1) the TVPRA has overtaken this provision in part,
and (2) these requirements, which are primarily for DHS’s benefit,
are not currently implemented.)
None. (Note: The proposed rule does not codify this portion of the
FSA, because the TVPRA has overtaken this provision. Per the
TVPRA, DHS does not have the authority to release minors to
non-parents/legal guardians.)
None.
236.3(i), (i)(5) ....
None.
N/A ....................
None. (Note: This provision imposes a deadline that passed years
ago. As a result, the proposed rule does not include this provision.)
None. (Note: The proposed rule clarifies some of the exceptions to
secure detention, consistent with current practice and in line with
the intent underlying FSA paragraph 21(A)(i)–(ii). The proposed
rule also removes the specific examples used in FSA.)
236.3(i)(1) ..........
236.3(b)(6) ........
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None. (Note: the proposed rule uses final order of ‘‘removal’’ rather
than deportation or exclusion, and considers past absconding
from state or federal custody; and not just DHS or HHS custody.)
None.
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TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued
FSA
paragraph No.
Description of FSA provision
DHS cite
(8 CFR)
DHS change from current practice
24(A) ...................
Bond redetermination hearing afforded.
236.3(m) ............
24(B) ...................
Judicial review of placement in a
particular type of facility permitted or that facility does not
comply with standards in Ex. 1.
Notice of reasons provided to
minor not in a licensed program/judicial review.
All minors ‘‘not released’’ shall be
given Form I–770, notice of
right to judicial review, and list
of free legal services.
N/A ....................
None. (Note: The proposed rule adds language to specifically exclude those aliens for which IJs do not have jurisdiction, as provided in 8 CFR 1003.19.)
None. (Note: The proposed rule does not expressly provide for judicial review of placement/compliance, but does not expressly bar
such review.)
24(E) ...................
Additional information on precursors to seeking judicial review.
N/A ....................
25 .......................
Unaccompanied minors in INS
custody should not be transported in vehicles with detained
adults except when transport is
from place of arrest/apprehension to an INS office, or when
separate transportation would
otherwise be impractical.
Provide assistance in making
transportation arrangement for
release of minor to person or
facility to whom released.
Transfer between placements with
possessions, notice to counsel.
INS Juvenile Coordinator to monitor compliance with FSA and
maintain records on all minors
placed in proceedings and remain in custody for longer than
72 hours.
Plaintiffs’ counsel may contact
INS Juvenile Coordinator to request an investigation on why a
minor has not been released.
Plaintiffs’ counsel must be provided information pursuant to
FSA paragraph 28 on a semiannual basis; Plaintiffs’ counsel
have the opportunity to submit
questions.
INS Juvenile Coordinator must report to the court annually.
236.3(f)(4) .........
Defendants can request a substantial compliance determination after one year of the FSA.
Attorney-client visits with class
members allowed for Plaintiffs’
counsel at a facility.
N/A ....................
24(C) ..................
24(D) ..................
26 .......................
27 .......................
28(A) ...................
28(B) ...................
29 .......................
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30 .......................
31 .......................
32(A), (B), and
(D).
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N/A ....................
None.
236.3(g)(1) ........
None. (Note: The proposed rule requires DHS to provide the notice
of right to judicial review and list of counsel to those minors who
are not UACs and who are transferred to or remain in a DHS detention facility. The corresponding FSA provisions apply to minors
‘‘not released.’’ The difference in scope is a result of the TVPRA
and reflects the relationship between Paragraph 12(A), which applies to the provision of certain rights (largely contained on the I–
770) immediately following arrest, and Paragraph 28(D), which
applies to all minors who are ‘‘not released,’’ and so are detained
by DHS. The language does not reflect a change in practice. The
proposed rule also includes more detailed language with respect
to the Form I–770 than the FSA; this language comes from current 8 CFR 236.3, and is consistent with the requirements of
Paragraph 12(A).)
None. (Note: Responsibilities of the minor prior to bringing litigation
are not relevant or substantive terms of the FSA, and are not included in the rule.)
None. (Note: Proposed rule makes a clarifying change: the proposed rule adds ‘‘or unavailable’’ as an exception to ‘‘impractical.’’)
236.3(j)(3) ..........
None. (Note: The proposed rule would remove the reference to release to a ‘‘facility.’’ DHS releases minors only to a parent or legal
guardian; a referral to HHS is a transfer, not a release.)
236.3(k) .............
None.
236.3(o) .............
None. (Note: The proposed rule requires collection of relevant data
for purposes of monitoring compliance. The list of data points is
similar to the list in 28(A) but not identical.)
N/A ....................
This provision would no longer apply following termination of
FSA. (Note: Special provisions for Plaintiffs’ counsel are not
evant or substantive terms of the FSA, and are not included in
rule.)
This provision would no longer apply following termination of
FSA. (Note: Special provisions for Plaintiffs’ counsel are not
evant or substantive terms of the FSA, and are not included in
rule.)
N/A ....................
N/A ....................
N/A ....................
Frm 00033
Fmt 4701
the
relthe
the
relthe
This provision would no longer apply following termination of the
FSA. (Note: Special provisions for reporting to the court are not
relevant or substantive terms of the FSA, and are not included in
the rule.)
None. (Note: This provision imposed a timeframe related to court
supervision of the FSA. As a result, the proposed rule does not
include this provision.)
Special provisions for Plaintiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the rule.
Sfmt 4702
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TABLE 11—FSA AND DHS CURRENT OPERATIONAL STATUS—Continued
FSA
paragraph No.
Description of FSA provision
DHS cite
(8 CFR)
DHS change from current practice
32(C) ..................
236.3(i)(4)(xv) ....
None. (Note: Special provisions for Plaintiffs’ counsel are not relevant or substantive terms of the FSA, so the reference to class
counsel is not included in the rule.)
N/A ....................
Special provisions for Plaintiffs’ counsel are not relevant or substantive terms of the FSA, and are not included in the rule.
N/A ....................
36 .......................
Agreements for the placement of
minors in non-INS facilities shall
permit attorney-client visits, including by class counsel.
Plaintiffs’ counsel allowed to request access to, and visit licensed program facility or medium security facility or detention facility.
INS employees must be trained
on FSA within 120 days of court
approval.
Dismissal of action after court has
determined substantial compliance.
Reservation of Rights ...................
37 .......................
Notice and Dispute Resolution .....
N/A ....................
38 .......................
Publicity—joint press conference
N/A ....................
39 .......................
Attorneys’ Fees and Costs ...........
N/A ....................
40 .......................
Termination 45 days after publication of final rule.
Representations and Warranty .....
N/A ....................
None. (Note: This provision imposed a deadline that passed years
ago. As a result, the proposed rule does not include this provision.)
None. (Note: Provisions specific to terminating the action are not relevant or substantive terms of the FSA, and are not included in the
rule.)
None. (Note: This provision is only relevant to the FSA insofar as
the FSA exists in the form of a consent decree. Following promulgation of a final rule, it would no longer be relevant. As a result,
the proposed rule does not include this provision.)
None. (Note: This provision provides for ongoing enforcement of the
FSA by the district court. As a result, the proposed rule does not
include this provision.)
None. (Note: This provision relates to an event that occurred years
ago. As a result, the proposed rule does not include this provision.)
None. (Note: This provision imposed a deadline that passed years
ago. As a result, the proposed rule does not include this provision.)
None. (Note: Provisions specific to terminating the FSA are not relevant or substantive terms, and are not included in the rule.)
None. (Note: This provision is only relevant to the FSA insofar as
the FSA exists in the form of a consent decree. Following promulgation of a final rule, it would no longer be relevant. As a result,
the proposed rule does not include this provision.)
33 .......................
34 .......................
35 .......................
41 .......................
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DHS
A primary source of new costs for the
proposed rule would be as a result of
the proposed alternative licensing
process. To codify the requirements of
the FSA, DHS is proposing in this rule
that facilities that hold minors obtain
state, county, or municipal licensing
where appropriate licenses are
available. If no such licensing regime is
available, however, DHS proposes that it
will employ an outside entity to ensure
that the facility complies with family
residential standards established by ICE
and that meet the requirements for
licensing under the FSA, thus fulfilling
the intent of obtaining a license from a
state or local agency. That would thus
provide effectively the same substantive
assurances that the state-licensing
requirement exists to provide. ICE
currently meets the proposed licensing
requirements by requiring FRCs to
adhere to the Family Residential
Standards and monitoring the FRCs’
compliance through an existing
contract. Thus, DHS would not incur
additional costs in fulfilling the
requirements of the proposed alternative
licensing scheme. However, most states
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N/A ....................
N/A ....................
N/A ....................
do not offer licensing for facilities like
the FRCs.25 Therefore, to meet the terms
of the FSA, minors who are not UACs
are generally held in FRCs for less than
20 days (see Table 5). As all FRCs would
be licensed, or considered licensed,
under this proposed rule, the proposed
rule may result in extending detention
of some minors, and their
accompanying parent or legal guardian,
in FRCs beyond 20 days. An increase in
the average length of detention may
increase the variable contract costs paid
by ICE to the private contractor and
government entity who operate and
maintain the FRCs, as compared to the
current operational environment.
ICE is unable to estimate how long
detention would be extended for some
categories of minors and their
accompanying adults in FRCs due to
this proposed rule. The average length
of stay in the past is not a reliable
source for future projections. The
average length of stay prior to the court
decisions in 2015 and 2017 reflect other
policy decisions that will not be directly
affected by this proposed rule. In
25 See the discussion of the definition of
‘‘licensed facility’’ supra.
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addition, the number of days some
minors and their accompanying adults
may be detained depends on several
factors, including a number of factors
that are beyond the scope of this
proposed rule. Among other factors,
these may include the number of minors
and their accompanying adults who
arrive in a facility on a given day; the
timing and outcome of immigration
court proceedings before an immigration
judge; whether an individual is eligible
for parole or bond; issuance of travel
documents by foreign governments;
transportation schedule and availability;
the availability of bed space in an FRC;
and other laws, regulations, guidance,
and policies regarding removal not
subject to this proposed rule.
Although DHS cannot reliably predict
the increased average length of stay for
affected minors and their accompanying
adults in FRCs, DHS recognizes that
generally only certain groups of aliens
are likely to have their length of stay in
an FRC increased as a result of this
proposed rule, among other factors. For
instance, aliens who have received a
positive credible fear determination,
and who are not suitable for parole, may
be held throughout their asylum
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not paroled or released on order of their
own recognizance (131), plus the
number of such minors who had
negative credible fear determinations
(349), plus administratively closed cases
(1,465), plus those who were released
and either had final orders of removals
at the time of their release or
subsequently received final orders
following their release (842), or 2,787.
While the above analysis reflects the
number of minors in these groups in the
FY 2017, DHS is unable to forecast the
future total number of such minors.
The remaining factor in estimating the
costs that are attributed to a potentially
increased length of stay for these groups
of minors and their accompanying
parent or legal guardian are the variable
contract costs paid by ICE to the private
contractor and government entity who
operate and maintain the FRCs. The
TABLE 12—FY 2017 MINORS AT
FRCS WHO WENT THROUGH CRED- fixed and variable contract costs were
obtained from ICE Office of Acquisition
IBLE FEAR SCREENING PROCESS
Management. For Berks, there is a $16
Number of per-person, per-day fee in addition to
the monthly fixed contract rate.
minors at
FRCs
Assuming that the contract terms are the
same in the future, an increased number
Positive Credible Fear Deterof days that all individuals would be at
minations .................................
14,993
an FRC may also increase this total
Negative Credible Fear Determinations .................................
349 variable fee amount. Due to the
uncertainty surrounding estimating an
Immigration Judge Review
Requested ........................
317 increased length of stay and the number
of aliens this may affect, the total
Immigration Judge Review
Not Requested .................
32 incremental cost of this per day per
Administratively Closed ..............
1,465 person fee is not estimated.
Educational services are provided at
Of the 14,993 minors shown in Table
the Berks and Karnes FRCs at a variable
12 who had positive credible fear
cost per-student, per-day. The cost at
determinations, about 99 percent were
Karnes is $75 per-student, per-day, and
paroled or released on their own
at Berks the cost is $79 per-student, perrecognizance. The remaining one
day. There is a fixed monthly cost for
percent of minors are those in categories educational services at Dilley of
that might have their length of stay in
$342,083; it is not dependent on the
an FRC increased due to this proposed
number of students per day.
rule.
Assuming again that future contract
Separate from the population of
terms are the same, the total education
minors referenced in Table 12, members cost may increase if certain aliens, like
of a family unit with administratively
the groups described above, are
final orders of removal, once this rule
detained longer. However, the
has been finalized, are likely to be held
incremental variable education cost is
until removed. 842 such minors who
not estimated because of the uncertainty
were detained and released at FRCs
surrounding the factors that make up
during FY 2017 either had final orders
the estimate of the average length of stay
of removal at the time of their release or and the number of minors that may have
subsequently received final orders of
an increased length of stay.
This rule also proposes to change
removal following their release within
the same FY. Minors like these 842 may current ICE practices for parole
determinations to align them with
be held in detention longer as a result
applicable statutory and regulatory
of this rule. While DHS generally
authority. ICE is currently complying
expects an increase in the average
with the June 27, 2017 court order while
length of stay to affect only these
groups, there may be others that may be it is on appeal. In complying, every
detained minor in expedited removal
affected.
In FY 2017, the total number of
proceedings and awaiting a credible fear
minors who might have been detained
determination or determined not to have
longer at an FRC is estimated to be the
a credible fear receives an
number of minors in an FRC who were
individualized parole determination
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proceedings. Likewise, aliens who have
received a negative credible fear
determination, have requested review of
the determination by an immigration
judge and had the negative
determination upheld, and are awaiting
removal, are likely to be held until
removal can be effectuated. In FY 2017,
16,807 minors in FRCs went through the
credible fear screening process and were
released. Table 12 shows for FY 2017
the number of minors who went through
the credible fear screening process who
were released from FRCs. It does not
include those minors who were
removed while detained at an FRC.
Those minors who were removed from
an FRC would not have their lengths of
stay increased pursuant to the changes
proposed in this rule.
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45519
under the considerations laid out in 8
CFR 212.5(b), which considers only
whether the minor is a flight risk.
However, ICE proposes to revert to its
practice prior to the 2017 court order for
those minors in expedited removal
proceedings, using its parole authorities
under 8 CFR 235.3 sparingly for this
category of aliens, as intended by
Congress. See 8 U.S.C.
1225(b)(1)(B)(iii)(IV) (‘‘Any alien subject
to [expedited removal] shall be detained
pending a final determination of
credible fear of persecution and, if
found not to have such a fear, until
removed.’’). Under this standard, for
aliens who are in expedited removal
proceedings and are pending a credible
fear determination or who have been
found not to have such fear, release on
parole can only satisfy this standard
when there is a medical necessity or a
law enforcement need. Accordingly, this
change may result in fewer such minors
or their accompanying parent or legal
guardians being released on parole.
Aliens in expedited removal
proceedings are not generally detained
in mandatory custody for long periods
of time. Either a removal order is issued
within a short amount of time or a
Notice to Appear is issued, which may
make the alien eligible for various forms
of release. Consequently, DHS does not
anticipate that these changes will result
in extended periods of detention for
minors who are in expedited removal
proceedings.
At this time, ICE is unable to
determine how the number of FRCs may
change due to this proposed rule. There
are many factors that would be
considered in opening a new FRC, some
of which are outside the scope of this
proposed regulation, such as whether
such a facility would be appropriate,
based on the population of aliens
crossing the border, anticipated
capacity, projected average daily
population, and projected costs.
With respect to CBP, the proposed
rule is not anticipated to have an impact
on current operations because CBP is
currently implementing the relevant and
substantive terms of the FSA, the HSA,
and the TVPRA.
HHS
HHS has complied with the FSA for
over 20 years. The proposed rule would
codify current HHS compliance with the
FSA, court orders, and statutes.
Accordingly, HHS does not expect this
proposed rule to impose any additional
costs, beyond those costs incurred by
the Federal Government to establish the
810 Hearings process within HHS.
This rule will shift responsibility for
custody redetermination hearings for
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UACs, now proposed to be referred to as
810 hearings, from DOJ to HHS. We
estimate that some resources will be
required to implement this shift. We
believe that this burden will fall on DOJ
and HHS staff, and we estimate that it
will require approximately 2,000–4,000
hours to implement. This estimate
reflects six to 12 staff working full-time
for two months to create the new
system. After this shift in responsibility
has been implemented, we estimate that
the rule will lead to no change in net
resources required for 810 hearings, and
therefore estimate no incremental costs
or savings. We seek public comment on
these estimates.
(4) Benefits
The primary benefit of the proposed
rule would be to ensure that applicable
regulations reflect the current
conditions of DHS detention, release,
and treatment of minors and UACs, in
accordance with the relevant and
substantive terms of the FSA, the HSA,
and the TVPRA.
Without codifying the FSA as
proposed in this rule, family detention
is a less effective tool to meet the
enforcement mission of ICE. In many
cases, families do not appear for
immigration court hearings after being
released from an FRC, and even when
they do, many more fail to comply with
the lawfully issued removal orders from
the immigration courts and some
families engage in dilatory legal tactics
when ICE works to enforce those orders.
By departing from the FSA in limited
cases to reflect the intervening statutory
and operational changes, ICE is
reflecting its existing discretion to
detain families together, as appropriate,
given enforcement needs, which will
ensure that family detention remains an
effective enforcement tool.
HHS, having not been an original
party to the FSA but having inherited
some of its requirements, likewise
benefits from the current operational
environment with proposed rules that
clearly delineate ORR’s responsibilities
from that of other Federal partners.
Additionally, the proposed codification
of the FSA terms, specifically the
minimum standards for licensed
facilities and the release process ensures
a measure of consistency across the
programs network of state licensed
facilities.
The regulations are also designed to
eliminate judicial management, through
the FSA, of functions Congress
delegated to the executive branch.
(5) Conclusion
This proposed rule reflects current
requirements to comply with the FSA,
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court orders, the HSA, and the TVPRA.
The Departments consider current
operations and procedures for
implementing the terms of the FSA, the
HSA, and the TVPRA to be the baseline
for this analysis. Because these costs are
already being incurred, they are not
costs of this rule. The primary source of
new costs for the proposed rule would
be a result of the proposed alternative
licensing process, changes to current
ICE parole determination practices to
align them with applicable statutory and
regulatory authority, and the costs of
shifting hearings from DOJ to HHS. ICE
expects the proposed alternative
licensing process and changes to current
parole determination practices to extend
detention of certain minors in FRCs.
This may result in additional or longer
detentions for certain minors, increasing
annual variable costs paid by ICE to the
operators of Berks and Karnes and costs
to the individuals being detained, but
due to the uncertainty surrounding
estimating an increased length of stay
and the number of aliens this may
affect, this incremental cost is not
quantified.
(6) Alternatives
No Regulatory Action
The Departments considered not
promulgating this rule. The
Departments had been engaged in this
alternative prior to proposing this rule,
which has required the Government to
adhere to the terms of the FSA, as
interpreted by the courts, which also
rejected the Government’s efforts to
amend the FSA to help it better conform
to existing legal and operational
realities. Continuing with this
alternative would likely require the
Government to operate through nonregulatory means in an uncertain
environment subject to currently
unknown future court interpretations of
the FSA that may be difficult or
operationally impracticable to
implement and that could otherwise
hamper operations. The Departments
reject this alternative because past
successful motions to enforce the
Agreement have consistently expanded
the FSA beyond what the Departments
believe was its original and intended
scope and imposed operationally
impracticable or effectively impossible
requirements not intended by the
parties to the FSA and in tension with
(if not incompatible with) current legal
authorities. The Departments also reject
this alternative because it does not
address the current conflict between
certain portions of the FSA and the HSA
and TVPRA.
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Comprehensive FSA/TVPRA/Asylum
Regulation
The Departments considered
proposing within this regulatory action
additional regulations addressing
further areas of authority under the
TVPRA, to include those related to
asylum proceedings for UACs. The
Departments rejected this alternative in
order to solely focus this regulatory
action on implementing the terms of the
FSA, and provisions of the HSA and
TVPRA where they necessarily intersect
with the FSA’s provisions. And,
promulgating this more targeted
regulation does not preclude the
Departments from subsequently issuing
regulations to address broader issues.
Promulgate Regulations—Preferred
Alternative
Legacy INS’s successors are obligated
under the FSA to initiate action to
publish the relevant and substantive
terms of the FSA as regulations. In the
2001 Stipulation, the parties agreed to a
termination of the FSA ‘‘45 days
following the defendants’ publication of
final regulations implementing this
Agreement.’’ Under this alternative, the
Departments are proposing to publish
the relevant and substantive terms of the
FSA as regulations, while maintaining
the operational flexibility necessary to
continue operations and ensuring that
minors and UACs continue to be treated
in accordance with the FSA, the HSA,
and the TVPRA.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601–612, as amended,
requires federal agencies to consider the
potential impact of regulations on small
entities during rulemaking. The term
‘‘small entities’’ comprises small
business, not-for-profit organizations
that are independently owned and
operated and are not dominant in their
fields, and governmental jurisdictions
with populations of less than 50,000.
Individuals are not considered by the
RFA to be a small entity.
An initial regulatory flexibility
analysis follows.
(1) A description of the reasons why
the action by the agency is being
considered.
The purpose of this action is to
promulgate regulations that implement
the relevant and substantive terms of the
FSA. This proposed rule would
implement the relevant and substantive
terms of the FSA and provisions of the
HSA and TVPRA where they necessarily
intersect with the FSA’s provisions.
Publication of final regulations would
result in termination of the FSA, as
provided for in FSA paragraph 40.
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(2) A succinct statement of the
objectives of, and legal basis for, the
proposed rule.
The main purpose of this action is to
promulgate regulations that implement
the relevant and substantive terms of the
FSA. The FSA provides standards for
the detention, treatment, and transfer of
minors and UACs. The Secretary of
Homeland Security derives her
authority to promulgate these proposed
regulatory amendments primarily from
the Immigration and Nationality Act
(INA or Act), as amended, 8 U.S.C. 1101
et seq. The Secretary may ‘‘establish
such regulations’’ as she deems
necessary for carrying out her
authorities under the INA. INA sec.
103(a)(3), 8 U.S.C. 1103(a)(3). In
addition, section 462 of the HSA and
section 235 of the TVPRA prescribe
substantive requirements and
procedural safeguards to be
implemented by DHS and HHS with
respect to UACs. And court decisions
have dictated how the FSA is to be
implemented. See, e.g., Flores v.
Sessions, 862 F.3d 863 (9th Cir. 2017);
Flores v. Lynch, 828 F.3d 898 (9th Cir.
2016); Flores v. Sessions, No. 2:85–cv–
04544 (C.D. Cal. June 27, 2017).
Section 462 of the HSA also
transferred to the ORR Director
‘‘functions under the immigration laws
of the United States with respect to the
care of unaccompanied alien children
that were vested by statute in, or
performed by, the Commissioner of
Immigration and Naturalization.’’ 6
U.S.C. 279(a). The ORR Director may,
for purposes of performing a function
transferred by this section, ‘‘exercise all
authorities under any other provision of
law that were available with respect to
the performance of that function to the
official responsible for the performance
of the function’’ immediately before the
transfer of the program. 6 U.S.C.
279(f)(1).
Consistent with provisions in the
HSA, and 8 U.S.C. 1232(a), the TVPRA
places the responsibility for the care and
custody of UACs with the Secretary of
Health and Human Services. Prior to the
transfer of the program, the
Commissioner of Immigration and
Naturalization, through a delegation
from the Attorney General, had
authority ‘‘to establish such regulations
. . . as he deems necessary for carrying
out his authority under the provisions of
this Act.’’ INA sec. 103(a)(3), 8 U.S.C.
1103(a)(3) (2002); 8 CFR 2.1 (2002). In
accordance with the relevant savings
and transfer provisions of the HSA, see
6 U.S.C. 279, 552, 557; see also 8 U.S.C.
1232(b)(1); the ORR Director now
possesses the authority to promulgate
regulations concerning ORR’s
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administration of its responsibilities
under the HSA and TVPRA.
(3) A description of and, where
feasible, an estimate of the number of
small entities to which the proposed
rule will apply.
This proposed rule would directly
regulate DHS and HHS. DHS contracts
with private contractors and a local
government to operate and maintain
FRCs, and with private contractors to
provide transportation of minors and
UACs. This rule would indirectly affect
these entities to the extent that DHS
contracts with them under the terms
necessary to fulfill the FSA. To the
degree this rule increases contract costs
to DHS private contractors, it would be
incurred by the Federal Government in
the cost paid by the contract. Similarly,
as of June 2018, HHS is funding nonprofit organizations to provide shelter,
counseling, medical care, legal services,
and other support services to UACs in
custody. HHS does not believe this rule
would increase costs to any of their
grantees.
ICE currently contracts with three
operators of FRCs, two of which are
businesses and the other a local
governmental jurisdiction. ICE and CBP
also each have one contractor that
provides transportation. To determine if
the private contractors that operate and
maintain FRCs and the private
contractors that provide transportation
are small entities, DHS references the
Small Business Administration (SBA)
size standards represented by business
average annual receipts. SBA’s Table of
Small Business Size Standards is
matched to the North American
Industry Classification System (NAICS)
for these industries.26 To determine if
the local government that operates and
maintains an FRC is a small entity, DHS
applies the 50,000 size standard for
governmental jurisdictions.
DHS finds that the revenue of the
private contractors that operate and
maintain two of the three FRCs to be
greater than the SBA size standard of
the industry represented by NAICS
531110: Lessors of Residential Buildings
and Dwellings. The size standard
classified by the SBA is $38.5 million
for lessors of buildings space to the
Federal Government by Owners.27 The
county population of the local
government that operates and maintains
the other FRC is over 50,000, based on
26 U.S. Small Business Administration, Tables of
Small Business Size Standards Matched to NAICS
Codes (Oct. 1, 2017), available at https://
www.sba.gov/sites/default/files/files/Size_
Standards_Table_2017.xlsx.
27 DHS obtained NAICS codes and 2016 annual
sales data from Hoovers.com.
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45521
2017 U.S. Census Bureau annual
resident population estimates.28
DHS finds that the revenue of the two
private contractors that provide
transportation to minors, in some cases
their family members, and to UACs for
DHS to be greater than the SBA size
standard of these industries.29 The SBA
size standard for NAICS 561210
Facilities Support Services is $38.5
million. The SBA size standards for
NAICS 561612 Security Guards and
Patrol Services is $20.3 million.
Currently, HHS funds 37 grantees to
provide services to UACs. HHS finds
that all 37 current grantees are nonprofits that do not appear to be
dominant in their field. Consequently,
HHS believes all 37 grantees are likely
to be small entities for the purposes of
the RFA.
The proposed changes to DHS and
HHS regulations would not directly
impact any small entities.
(4) A description of the projected
reporting, recordkeeping, and other
compliance requirements of the
proposed rule, including an estimate of
the classes of small entities which will
be subject to the requirement and the
type of professional skills necessary for
preparation of the report or record.
The proposed rule would codify the
relevant and substantive terms of the
FSA. ICE believes the FRCs, which are
operated and maintained by private
contractors or a local government,
comply with these provisions, and will
continue to comply through future
contract renewals. To the extent this
rule increases variable contract costs,
such as a per student per day education
cost, to any detention facilities, the cost
increases would be passed along to the
Federal Government in the cost paid for
the contract. However, DHS cannot say
with certainty how much, if any,
increase in variable education costs
would result from this rule.
A primary source of new costs for the
proposed rule would be as a result of
the proposed alternative licensing
process. ICE currently fulfills the
requirements being proposed as an
alternative to licensing through its
existing FRC contracts. To codify the
requirements of the FSA, DHS is
proposing in this rule that facilities that
hold minors obtain state, county, or
municipal licensing where appropriate
licenses are available. If no such
licensing regime is available, however,
DHS proposes that it will employ an
28 Annual Estimates of the Resident Population:
April 1, 2010 to July 1, 2017. Source: U.S. Census
Bureau, Population Division.
29 DHS obtained NAICS codes and 2016 annual
sales data from Hoovers.com and
ReferenceUSA.com.
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outside entity to ensure that the facility
complies with family residential
standards established by ICE and that
meet the requirements for licensing
under the FSA. That would fulfill the
goals of obtaining a license from a state
or local agency. Most states do not offer
licensing for facilities like the FRCs.30
Therefore, to meet the terms of the FSA,
minors are generally held in FRCs for
less than 20 days (see Table 5). As all
FRCs would be licensed under this
proposed rule, the proposed rule may
result in extending detention of some
minors and their accompanying parent
or legal guardian in FRCs beyond 20
days. Additionally, this rule would
change ICE parole determination
practices, which may result in fewer
aliens being paroled.
An increase in the average length of
detention may increase the variable
costs paid by ICE to the private
contractors who operate and maintain
Berks and Karnes, as compared to the
current operational environment. Due to
many uncertainties surrounding the
forecast, DHS is unable to estimate the
incremental variable costs due to this
proposed rule. Refer to Section VI.A.
Executive Orders 12866 and 13563:
Regulatory Review for the description of
the uncertainties.
As discussed above, DHS would incur
these potential costs through the cost
paid for the contract with these
facilities.
There are no cost impacts on the
contracts for providing transportation
because this rule codifies current
operations.
The Departments request information
and data from the public that would
assist in better understanding the direct
effects of this proposed rule on small
entities. Members of the public should
submit a comment, as described in this
proposed rule under Public
Participation, if they think that their
business, organization, or governmental
jurisdiction qualifies as a small entity
and that this proposed rule would have
a significant economic impact on it. It
would be helpful if commenters provide
as much information as possible as to
why this proposed rule would create an
impact on small businesses.
(5) Identification, to the extent
practicable, of all relevant federal rules
that may duplicate, overlap or conflict
with the proposed rule.
The Departments are unaware of any
relevant Federal rule that may
duplicate, overlap, or conflict with the
proposed rule.
30 See the discussion of the definition of
‘‘licensed facility’’ supra.
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(6) Description of any significant
alternatives to the proposed rule which
accomplish the stated objectives of
applicable statutes and which minimize
any significant economic impact of the
proposed rule on small entities.
The Departments are not aware any
alternatives to the proposed rule which
accomplish the stated objectives that
would minimize economic impact of the
proposed rule on small entities. DHS
requests comments and also seeks
alternatives from the public that will
accomplish the same objectives and
minimize the proposed rule’s economic
impact on small entities.
C. Small Business Regulatory
Enforcement Fairness Act of 1996
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104–
121, 110 Stat. 847, 858–59, we want to
assist small entities in understanding
this proposed rule so that they can
better evaluate its effects on them and
participate in the rulemaking. If the
proposed rule would affect your small
business, organization, or governmental
jurisdiction and you have questions
concerning its provisions or options for
compliance, please consult ICE or ORR,
as appropriate, using the contact
information provided in the FOR
FURTHER INFORMATION section above.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA), Public Law 104–4, 109
Stat. 48 (codified at 2 U.S.C. 1501 et
seq.), is intended, among other things, to
curb the practice of imposing unfunded
Federal mandates on State, local, and
tribal governments. Title II of the Act
requires each Federal agency to prepare
a written statement assessing the effects
of any Federal mandate in a proposed or
final agency rule that may result in the
expenditure of $100 million or more
(adjusted annually for inflation) in any
1 year by State, local, and tribal
governments, in the aggregate, or by the
private sector. 2 U.S.C. 1532(a). The
value equivalent of $100 million in 1995
adjusted for inflation to 2017 levels by
the Consumer Price Index for All Urban
Consumer (CPI–U) is $161 million.
This rule does not exceed the $100
million expenditure threshold in any 1
year when adjusted for inflation.
Though this rule would not result in
such an expenditure, we do discuss the
effects of this rule elsewhere in this
preamble. Additionally, UMRA
excludes from its definitions of ‘‘Federal
intergovernmental mandate,’’ and
‘‘Federal private sector mandate’’ those
regulations imposing an enforceable
duty on other levels of government or
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the private sector which are a
‘‘condition of Federal assistance.’’ 2
U.S.C. 658(5)(A)(i)(I), (7)(A)(i). The FSA
provides the Departments with no direct
authority to mandate binding standards
on facilities of state and local
governments or on operations of private
sector entities. Instead, these
requirements would impact such
governments or entities only to the
extent that they make voluntary
decisions to contract with the
Departments. Compliance with any
standards that are not already otherwise
in place resulting from this rule would
be a condition of ongoing Federal
assistance through such arrangements.
Therefore, this rulemaking contains
neither a federal intergovernmental
mandate nor a private sector mandate.
E. Congressional Review Act
The Office of Information and
Regulatory Affairs has determined that
this rulemaking is not a major rule, as
defined by 5 U.S.C. 804, for purposes of
congressional review of agency
rulemaking pursuant to the
Congressional Review Act, Public Law
104–121, sec. 251, 110 Stat. 868, 873
(codified at 5 U.S.C. 804). This
rulemaking would not result in an
annual effect on the economy of $100
million or more; a major increase in
costs or prices; or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based companies to
compete with foreign-based companies
in domestic and export markets. If this
rule is implemented as proposed, a
report about the issuance of the final
rule will be submitted to Congress and
the Comptroller General of the United
States prior to its effective date.
F. Paperwork Reduction Act
All Departments are required to
submit to OMB for review and approval,
any reporting or recordkeeping
requirements inherent in a rule under
the Paperwork Reduction Act of 1995,
Public Law 104–13, 109 Stat. 163 (1995)
(codified at 44 U.S.C. 3501 et seq.). This
proposed rule does not create or change
a collection of information, therefore, is
not subject to the Paperwork Reduction
Act requirements.
However, as required by the
Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), ACF submitted a copy
of this section to the Office of
Management and Budget (OMB) for its
review. This proposed rule complies
with settlement agreements, court
orders, and statutory requirements, most
of whose terms have been in place for
over 20 years. This proposed rule would
not require additional information
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collection requirements beyond those
requirements. The reporting
requirements associated with those
practices have been approved under the
requirements of the Paperwork
Reduction Act and in accordance with
5 CFR part 1320. ACF received
conditional approval from OMB for use
of its forms on October 19, 2015, with
an expiration date of October 31, 2018
(OMB Control Number 0970–0278).
Separately, ACF received approval from
OMB for its placement and service
forms on July 6, 2017, with an
expiration date of July 31, 2020 (OMB
Control Number 0970–0498); a form
associated with the specific consent
process is currently pending approval
with OMB (OMB Control Number 0970–
0385).
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G. Executive Order 13132: Federalism
This proposed rule would not have
substantial direct effects on the States,
on the relationship between the
National Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. This proposed
rule implements the FSA by codifying
the Departments’ practices that comply
with the terms of the FSA and relevant
law for the processing, transfer, and care
and custody of alien juveniles. In
codifying these practices, the
Departments were mindful of their
obligations to meet the requirements of
the FSA while also minimizing conflicts
between State law and Federal interests.
Insofar, however, as the proposed rule
sets forth standards that might apply to
immigration detention facilities and
holding facilities operated by contract
with State and local governments and
private entities, this proposed rule has
the potential to affect the States,
although it would not affect the
relationship between the National
Government and the States or the
distribution of power and
responsibilities among the various
levels of government and private
entities. With respect to the State and
local agencies, as well as the private
entities, that contract with DHS and
operate these facilities across the
country, the FSA provides DHS with no
direct authority to mandate binding
standards on their facilities. Instead,
these requirements will impact the
State, local, and private entities only to
the extent that they make voluntary
decisions to contract with DHS for the
processing, transportation, care, or
custody of alien juveniles. This
approach is fully consistent with DHS’s
historical relationship to State and local
agencies in this context.
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Typically HHS enters into cooperative
agreements or contracts with non-profit
organizations to provide shelter, care,
and physical custody for UACs in a
facility licensed by the appropriate State
or local licensing authority. Where HHS
enters into cooperative agreements or
contacts with a state licensed facility,
ORR requires that the non-profit
organization administering the facility
abide by all applicable State or local
licensing regulations and laws. ORR
designed agency policies and proposed
regulations as well as the terms of HHS
cooperative agreements and contracts
with the agency’s grantees/contractors
to complement appropriate State and
licensing rules, not supplant or replace
the requirements.
Therefore, in accordance with section
6 of Executive Order 13132, it is
determined that this proposed rule does
not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
Notwithstanding the determination
that the formal consultation process
described in Executive Order 13132 is
not required for this rule, the
Departments welcome any comments
from representatives of State and local
juvenile or family residential facilities—
among other individuals and groups—
during the course of this rulemaking.
H. Executive Order 12988: Civil Justice
Reform
This proposed rule meets the
applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
Executive Order 13211 requires
agencies to consider the impact of rules
that significantly impact the supply,
distribution, and use of energy. DHS has
reviewed this proposed rule and
determined that it is not a ‘‘significant
energy action’’ under the order because,
while it is a ‘‘significant regulatory
action’’ under Executive Order 12866, it
does not have a significant adverse
effect on the supply, distribution, or use
of energy. The Administrator of the
Office of Information and Regulatory
Affairs has not designated it as a
significant energy action. Therefore, this
proposed rule does not require a
Statement of Energy Effects under
Executive Order 13211.
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45523
J. National Environmental Policy Act
(NEPA)
The U.S. Department of Homeland
Security Management Directive (MD)
023–01 Revision Number 01 and
Instruction Manual (IM) 023–01–001–01
Revision Number 01 establish
procedures that DHS and its
Components use to implement the
requirements of the National
Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321–4375, and the
Council on Environmental Quality
(CEQ) regulations for implementing
NEPA, 40 CFR parts 1500–1508.
The CEQ regulations allow federal
agencies to establish categories of
actions that do not individually or
cumulatively have a significant effect on
the human environment and, therefore,
do not require an Environmental
Assessment or Environmental Impact
Statement. 40 CFR 1508.4. The IM 023–
01–001–01, Rev. 01 lists the Categorical
Exclusions that DHS has found to have
no such effect. IM 023–01–001–01 Rev.
01, Appendix A, Table 1.
For an action to be categorically
excluded, IM 023–01–001–01 Rev. 01
requires the action to satisfy each of the
following three conditions:
(1) The entire action clearly fits
within one or more of the Categorical
Exclusions;
(2) The action is not a piece of a larger
action; and
(3) No extraordinary circumstances
exist that create the potential for a
significant environmental effect. IM
023–01–001–01 Rev. 01 § V(B)(2)(a)–(c).
Certain categories of proposed actions
included in the Categorically Excluded
actions list have a greater potential to
involve extraordinary circumstances
and require the preparation of a Record
of Environmental Consideration to
document the NEPA analysis. IM 023–
01–001–01 Rev. 01 § V(B)(2).
This proposed rule would implement
the relevant and substantive terms of the
FSA, with such limited changes as are
necessary to implement closely related
provisions of the HSA and the TVPRA,
and to ensure that the regulations set
forth a sustainable operational model.
The proposed rule would implement
regulations to ensure the humane
detention of alien juveniles, and satisfy
the goals of the FSA, in a manner that
is workable and enforceable.
DHS analyzed this proposed rule
under MD 023–01 Rev. 01 and IM 023–
01–001–01 Rev. 01. DHS has made a
preliminary determination that this
action is one of a category of actions that
do not individually or cumulatively
have a significant effect on the human
environment. This proposed rule clearly
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fits within the Categorical Exclusions
found in IM 023–01–001–01 Rev. 01,
Appendix A, Table 1, number A3(b) and
A3(d). A3(b) reads as: The
‘‘Promulgation of rules . . . that
implement, without substantive change,
statutory or regulatory requirements.’’
A3(d) reads as: The ‘‘Promulgation of
rules . . . that interpret or amend an
existing regulation without changing its
environmental effect.’’ This proposed
rule is not part of a larger action. This
proposed rule presents no extraordinary
circumstances creating the potential for
significant environmental effects.
Therefore, this proposed rule is
categorically excluded from further
NEPA review.
For purposes of the joint NPRM,
ORR’s functions are categorically
exempted from NEPA requirements as
ORR’s state licensed facilities are
operated under social service grants.
While the exception specifically
excludes ‘‘projects involving
construction, renovation, or changes in
land use,’’ ORR is generally precluded
from initiating these types of projects
directly for traditional shelter care in
state licensed facilities, as the agency
lacks construction authority.
The Departments seek any comments
or information that may lead to the
discovery of any significant
environmental effects from this
proposed rule.
K. Executive Order 12630:
Governmental Actions and Interference
With Constitutionally Protected Property
Rights
This proposed rule would not cause a
taking of private property or otherwise
have taking implications under
Executive Order 12630, Governmental
Actions and Interference with
Constitutionally Protected Property
Rights.
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L. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
Executive Order 13045 requires
agencies to consider the impacts of
environmental health risk or safety risk
that may disproportionately affect
children. The Departments have
reviewed this proposed rule and
determined that this rule is not an
economically significant rule and would
not create an environmental risk to
health or risk to safety that may
disproportionately affect children.
Therefore, the Departments have not
prepared a statement under this
executive order.
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M. National Technology Transfer and
Advancement Act
Administrative practice and procedure,
Aliens, Immigration.
The National Technology Transfer
and Advancement Act of 1995 (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through OMB, with
an explanation of why using these
standards would be inconsistent with
applicable law or otherwise
impracticable. Voluntary consensus
standards are technical standards (e.g.,
specifications of materials, performance,
design, or operation; test methods;
sampling procedures; and related
management systems practices) that are
developed or adopted by voluntary
consensus standards bodies. This
proposed rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
45 CFR Part 410
N. Family Assessment
The Departments have reviewed this
proposed rule in accordance with the
requirements of section 654 of the
Treasury General Appropriations Act,
1999, Public Law 105–277. With respect
to the criteria specified in section
654(c)(1), insofar as the proposed rule
may ensure the continued availability of
FRCs notwithstanding the lack of state
licensure, the proposed rule may in
some respects strengthen the stability of
the family and the authority and rights
of parents in the education, nurture, and
supervision of their children, within the
immigration detention context. The rule
would also codify in regulation certain
statutory policies with respect to the
treatment of UACs. In general, however,
as proposed, these regulations would
not have an impact on family well-being
as defined in this legislation. With
respect to family well-being, this
proposed rule codifies current
requirements of settlement agreements,
court orders, and statutes, most of
whose terms have been in place for over
20 years, as well as HHS’s related
authorities.
VII. List of Subjects and Regulatory
Amendments
List of Subjects
8 CFR Part 212
Administrative practice and
procedure, Aliens, Immigration,
Passports and visas, Reporting and
recordkeeping requirements.
8 CFR Part 236
Apprehension and detention of
inadmissible and deportable aliens,
Removal of aliens ordered removed,
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Administrative practice and
procedure, Child welfare, Immigration,
Unaccompanied alien children,
Reporting and recordkeeping
requirements.
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Chapter I
For the reasons set forth in the
preamble, parts 212 and 236 of chapter
I are proposed to be amended as
follows:
PART 212—DOCUMENTARY
REQUIREMENTS; NONIMMIGRANTS;
WAIVERS; ADMISSION OF CERTAIN
INADMISSIBLE ALIENS; PAROLE
1. The authority citation for part 212
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1181,
1182, 1203, 1225, 1257; 8 CFR part 2.
2. In § 212.5, revise paragraphs (b)
introductory text and (b)(3) to read as
follows:
■
§ 212.5 Parole of aliens into the United
States.
*
*
*
*
*
(b) The parole of aliens within the
following groups who have been or are
detained in accordance with § 235.3(c)
of this chapter would generally be
justified only on a case-by-case basis for
‘‘urgent humanitarian reasons or
‘‘significant public benefit,’’ provided
the aliens present neither a security risk
nor a risk of absconding:
*
*
*
*
*
(3) Aliens who are defined as minors
in § 236.3(b) of this chapter and are in
DHS custody. The Executive Assistant
Director, Enforcement and Removal
Operations; directors of field operations;
field office directors, deputy field office
directors; or chief patrol agents shall
follow the guidelines set forth in
§ 236.3(j) of this chapter and paragraphs
(b)(3)(i) through (ii) of this section in
determining under what conditions a
minor should be paroled from
detention:
(i) Minors may be released to a parent
or legal guardian not in detention.
(ii) Minors may be released with an
accompanying parent or legal guardian
who is in detention.
*
*
*
*
*
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PART 236—APPREHENSION AND
DETENTION OF INADMISSIBLE AND
DEPORTABLE ALIENS; REMOVAL OF
ALIENS ORDERED REMOVED
3. The authority citation for part 236
is revised to read as follows:
■
Authority: 5 U.S.C. 301, 552, 552a; 6 U.S.C.
112(a)(2), 112(a)(3), 112(b)(1), 112(e), 202,
251, 279, 291; 8 U.S.C. 1103, 1182, 1224,
1225, 1226, 1227, 1231, 1232, 1357, 1362; 18
U.S.C. 4002, 4013(c)(4); 8 CFR part 2.
4. Section 236.3 is revised to read as
follows:
■
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§ 236.3 Processing, detention, and release
of alien minors.
(a) Generally. (1) DHS treats all
minors and UACs in its custody with
dignity, respect and special concern for
their particular vulnerability.
(2) The provisions of this section
apply to all minors in the legal custody
of DHS, including minors who are
subject to the mandatory detention
provisions of the INA and applicable
regulations, to the extent authorized by
law.
(b) Definitions. For the purposes of
this section:
(1) Minor means any alien who has
not attained eighteen (18) years of age
and has not been:
(i) Emancipated in an appropriate
state judicial proceeding; or
(ii) Incarcerated due to a conviction
for a criminal offense in which he or she
was tried as an adult.
(2) Special Needs Minor means a
minor whose mental and/or physical
condition requires special services and
treatment as identified during an
individualized needs assessment as
referenced in paragraph (i)(4)(iii) of this
section. A minor may have special
needs due to drug or alcohol abuse,
serious emotional disturbance, mental
illness or retardation, or a physical
condition or chronic illness that
requires special services or treatment. A
minor who has suffered serious neglect
or abuse may be considered a minor
with special needs if the minor requires
special services or treatment as a result
of the neglect or abuse.
(3) Unaccompanied Alien Child
(UAC) has the meaning provided in 6
U.S.C. 279(g)(2), that is, a child who has
no lawful immigration status in the
United States and who has not attained
18 years of age; and with respect to
whom: There is no parent or legal
guardian present in the United States; or
no parent or legal guardian in the
United States is available to provide
care and physical custody. An
individual may meet the definition of
UAC without meeting the definition of
minor.
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(4) Custody means within the physical
and legal control of an institution or
person.
(5) Emergency means an act or event
(including, but not limited to, a natural
disaster, facility fire, civil disturbance,
or medical or public health concerns at
one or more facilities) that prevents
timely transport or placement of minors,
or impacts other conditions provided by
this section.
(6) Escape-risk means that there is a
serious risk that the minor will attempt
to escape from custody. Factors to
consider when determining whether a
minor is an escape-risk include, but are
not limited to, whether:
(i) The minor is currently subject to a
final order of removal;
(ii) The minor’s immigration history
includes: A prior breach of bond, a
failure to appear before DHS or the
immigration courts, evidence that the
minor is indebted to organized
smugglers for his transport, or a
voluntary departure or previous removal
from the United States pursuant to a
final order of removal; or
(iii) The minor has previously
absconded or attempted to abscond from
state or federal custody.
(7) Family unit means a group of two
or more aliens consisting of a minor or
minors accompanied by his/her/their
adult parent(s) or legal guardian(s). In
determining the existence of a parental
relationship or a legal guardianship for
purposes of this definition, DHS will
consider all available reliable evidence.
If DHS determines that there is
insufficient reliable evidence available
that confirms the relationship, the
minor will be treated as a UAC.
(8) Family Residential Center means a
facility used by ICE for the detention of
Family Units.
(9) Licensed Facility means an ICE
detention facility that is licensed by the
state, county, or municipality in which
it is located, if such a licensing scheme
exists. Licensed facilities shall comply
with all applicable state child welfare
laws and regulations and all state and
local building, fire, health, and safety
codes. If a licensing scheme for the
detention of minors accompanied by a
parent or legal guardian is not available
in the state, county, or municipality in
which an ICE detention facility is
located, DHS shall employ an entity
outside of DHS that has relevant audit
experience to ensure compliance with
the family residential standards
established by ICE.
(10) Influx means a situation in which
there are, at any given time, more than
130 minors or UACs eligible for
placement in a licensed facility under
this section or corresponding provisions
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of ORR regulations, including those who
have been so placed or are awaiting
such placement.
(11) Non-Secure Facility means a
facility that meets the definition of nonsecure in the state in which the facility
is located. If no such definition of nonsecure exists under state law, a DHS
facility shall be deemed non-secure if
egress from a portion of the facility’s
building is not prohibited through
internal locks within the building or
exterior locks and egress from the
facility’s premises is not prohibited
through secure fencing around the
perimeter of the building.
(12) Office of Refugee Resettlement
(ORR) means the U.S. Department of
Health and Human Services,
Administration for Children and
Families, Office of Refugee
Resettlement.
(c) Age Determination. (1) For
purposes of exercising the authorities
described in this part, DHS shall
determine the age of an alien in
accordance with 8 U.S.C. 1232(b)(4).
Age determination decisions shall be
based upon the totality of the evidence
and circumstances.
(2) If a reasonable person would
conclude that an individual is an adult,
despite his or her claim to be under the
age of 18, DHS may treat such person as
an adult for all purposes, including
confinement and release on bond,
recognizance, or other conditions of
release. In making this determination,
an immigration officer may require such
an individual to submit to a medical or
dental examination conducted by a
medical professional or other
appropriate procedures to verify his or
her age.
(3) If an individual previously
considered to have been an adult is
subsequently determined to be a under
the age of 18, DHS will then treat such
individual as a minor or UAC as
prescribed by this section.
(d) Determining whether an alien is a
UAC. (1) Immigration officers will make
a determination as to whether an alien
under the age of 18 is a UAC at the time
of encounter or apprehension and prior
to the detention or release of such alien.
(2) When an alien previously
determined to have been a UAC has
reached the age of 18, when a parent or
legal guardian in the United States is
available to provide care and physical
custody for such an alien, or when such
alien has obtained lawful immigration
status, the alien is no longer a UAC. An
alien who is no longer a UAC is not
eligible to receive legal protections
limited to UACs under the relevant
sections of the Act. Nothing in this
paragraph affects USCIS’ independent
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determination of its initial jurisdiction
over asylum applications filed by UACs
pursuant to section 208(b)(3)(C) of the
Act.
(3) Age-out procedures. When an
alien previously determined to have
been a UAC is no longer a UAC because
he or she turns eighteen years old,
relevant ORR and ICE procedures shall
apply.
(e) Transfer of minors who are not
UACs from one facility to another. (1) In
the case of an influx or emergency, as
defined in paragraph (b) of this section,
DHS will transfer a minor who is not a
UAC, and who does not meet the
criteria for secure detention pursuant to
paragraph (i)(1)of this section, to a
licensed facility as defined in paragraph
(b)(9) of this section, which is nonsecure, as expeditiously as possible.
Otherwise, to the extent consistent with
law or court order, DHS will transfer
such minor within three (3) days, if the
minor was apprehended in a district in
which a licensed program is located, or
within five (5) days in all other cases.
(2) In the case of an emergency or
influx, DHS will abide by written
guidance detailing all reasonable efforts
that it will take to transfer all minors
who are not UACs as expeditiously as
possible.
(f) Transfer of UACs from DHS to
HHS. (1) All UACs apprehended by
DHS, except those who are subject to
the terms of 8 U.S.C. 1232(a)(2), will be
transferred to ORR for care, custody,
and placement in accordance with 6
U.S.C. 279 and 8 U.S.C. 1232.
(2) DHS will notify ORR within 48
hours upon the apprehension or
discovery of a UAC or any claim or
suspicion that an unaccompanied alien
detained in DHS custody is under 18
years of age.
(3) Unless exceptional circumstances
are present, DHS will transfer custody of
a UAC as soon as practicable after
receiving notification of an ORR
placement, but no later than 72 hours
after determining that the minor is a
UAC per paragraph (d) of this section.
In the case of exceptional
circumstances, DHS will abide by
written guidance detailing the efforts
that it will take to transfer all UACs as
required by law.
(4) Conditions of transfer. (i) A UAC
will not be transported with an
unrelated detained adult(s) unless the
UAC is being transported from the place
of apprehension to a DHS facility or if
separate transportation is otherwise
impractical or unavailable.
(ii) When separate transportation is
impractical or unavailable, necessary
precautions will be taken to ensure the
UAC’s safety, security, and well-being.
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If a UAC is transported with any
unrelated detained adult(s), DHS will
separate the UAC from the unrelated
adult(s) to the extent operationally
feasible and take necessary precautions
for protection of the UAC’s safety,
security, and well-being.
(g) DHS procedures in the
apprehension and processing of minors
or UACs.
(1) Processing. (i) Notice of rights and
request for disposition. Every minor or
UAC who enters DHS custody,
including minors and UACs who
request voluntary departure or request
to withdraw their application for
admission, will be issued a Form I–770,
Notice of Rights and Request for
Disposition, which will include a
statement that the minor or UAC may
make a telephone call to a parent, close
relative, or friend. If the minor or UAC
is believed to be less than 14 years of
age, or is unable to comprehend the
information contained in the Form I–
770, the notice shall be read and
explained to the minor or UAC in a
language and manner that he or she
understands. In the event that a minor
or UAC is no longer amenable to
voluntary departure or to a withdrawal
of an application for admission, the
minor or UAC will be issued a new
Form I–770 or the Form I–770 will be
updated, as needed.
(ii) Notice of Right to Judicial Review.
Every minor who is not a UAC who is
transferred to or remains in a DHS
detention facility will be provided with
a Notice of Right to Judicial Review,
which informs the minor of his or her
right to seek judicial review in United
States District Court with jurisdiction
and venue over the matter if the minor
believes that his or her detention does
not comply with the terms of paragraph
(i) of this section.
(iii) Current List of Counsel. Every
minor who is not a UAC who is
transferred to or remains in a DHS
detention facility will be provided the
free legal service provider list, prepared
pursuant to section 239(b)(2) of the Act.
(2) DHS custodial care immediately
following apprehension. (i) Following
the apprehension of a minor or UAC,
DHS will process the minor or UAC as
expeditiously as possible. Consistent
with 6 CFR 115.114, minors and UACs
shall be held in the least restrictive
setting appropriate to the minor or
UAC’s age and special needs, provided
that such setting is consistent with the
need to protect the minor or UAC’s
well-being and that of others, as well as
with any other laws, regulations, or
legal requirements. DHS will hold
minors and UACs in facilities that are
safe and sanitary and that are consistent
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with DHS’s concern for their particular
vulnerability. Facilities will provide
access to toilets and sinks, drinking
water and food as appropriate, access to
emergency medical assistance as
needed, and adequate temperature and
ventilation. DHS will provide adequate
supervision and will provide contact
with family members arrested with the
minor or UAC in consideration of the
safety and well-being of the minor or
UAC, and operational feasibility. UACs
generally will be held separately from
unrelated adult detainees in accordance
with 6 CFR 115.14(b) and 6 CFR
115.114(b). In the event that such
separation is not immediately possible,
UACs in facilities covered by 6 CFR
115.114 may be housed with an
unrelated adult for no more than 24
hours except in the case of an
emergency or other exigent
circumstances.
(ii) Consistent with the statutory
requirements, DHS will transfer UACs
to HHS in accordance with the
procedures described in paragraph (f) of
this section.
(h) Detention of family units. DHS’s
policy is to maintain family unity,
including by detaining families together
where appropriate and consistent with
law and available resources. If DHS
determines that detention of a family
unit is required by law, or is otherwise
appropriate, the family unit may be
transferred to a Family Residential
Center which is a licensed facility and
non-secure.
(i) Detention of minors who are not
UACs in DHS custody. In any case in
which DHS does not release a minor
who is not a UAC, said minor shall
remain in DHS detention. Consistent
with 6 CFR 115.14, minors shall be
detained in the least restrictive setting
appropriate to the minor’s age and
special needs, provided that such
setting is consistent with the need to
ensure the minor’s timely appearance
before DHS and the immigration courts
and to protect the minor’s well-being
and that of others, as well as with any
other laws, regulations, or legal
requirements. The minor shall be placed
temporarily in a licensed facility, which
will be non-secure, until such time as
release can be effected or until the
minor’s immigration proceedings are
concluded, whichever occurs earlier. If
immigration proceedings are concluded
and result in a final order of removal,
DHS will detain the minor for the
purpose of removal. If immigration
proceedings result in a grant of relief or
protection from removal where both
parties have waived appeal or the
appeal period defined in 8 CFR
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1003.38(b) has expired, DHS will release
the minor.
(1) A minor who is not a UAC
referenced under this paragraph may be
held in or transferred to a suitable state
or county juvenile detention facility, or
a secure DHS detention facility, or DHS
contracted facility having separate
accommodations for minors, whenever
the Field Office Director and the ICE
supervisory or management personnel
have probable cause to believe that the
minor:
(i) Has been charged with, is
chargeable with, or has been convicted
of a crime or crimes, or is the subject of
delinquency proceedings, has been
adjudicated delinquent, or is chargeable
with a delinquent act or acts, that fit
within a pattern or practice of criminal
activity;
(ii) Has been charged with, is
chargeable with, or has been convicted
of a crime or crimes, or is the subject of
delinquency proceedings, has been
adjudicated delinquent, or is chargeable
with a delinquent act or acts, that
involve violence against a person or the
use or carrying of a weapon;
(iii) Has committed, or has made
credible threats to commit, a violent or
malicious act (whether directed at
himself or others) while in federal or
state government custody or while in
the presence of an immigration officer;
(iv) Has engaged, while in the
licensed facility, in conduct that has
proven to be unacceptably disruptive of
the normal functioning of the licensed
facility in which the minor has been
placed and transfer to another facility is
necessary to ensure the welfare of the
minor or others, as determined by the
staff of the licensed facility;
(v) Is determined to be an escape-risk
pursuant to paragraph (b)(6) of this
section; or
(vi) Must be held in a secure facility
for his or her own safety.
(2) DHS will not place a minor who
is not a UAC in a secure facility
pursuant to paragraph (i)(1) if there are
less restrictive alternatives that are
available and appropriate in the
circumstances, such as transfer to a
facility which would provide intensive
staff supervision and counseling
services or another licensed facility. All
determinations to place a minor in a
secure facility will be reviewed and
approved by the Juvenile Coordinator
referenced in paragraph (o) of this
section. Secure facilities shall permit
attorney-client visits in accordance with
applicable facility rules and regulations.
(3) Non-secure facility. Unless a
secure facility is otherwise authorized
pursuant to this section, ICE facilities
used for the detention of minors who
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are not UACs shall be non-secure
facilities.
(4) Standards. Non-secure, licensed
ICE facilities to which minors who are
not UACs are transferred pursuant to the
procedures in paragraph (e) of this
section shall abide by applicable
standards established by ICE. At a
minimum, such standards shall include
provisions or arrangements for the
following services for each minor who
is not a UAC in its care:
(i) Proper physical care and
maintenance, including suitable living,
accommodations, food, appropriate
clothing, and personal grooming items;
(ii) Appropriate routine medical and
dental care, family planning services,
and emergency health care services,
including a complete medical
examination (including screening for
infectious disease) within 48 hours of
admission, excluding weekends and
holidays, unless the minor was recently
examined at another facility;
appropriate immunizations in
accordance with the U.S. Public Health
Service (PHS), Centers for Disease
Control and Prevention; administration
of prescribed medication and special
diets; appropriate mental health
interventions when necessary;
(iii) An individualized needs
assessment which includes:
(A) Various initial intake forms;
(B) Essential data relating to the
identification and history of the minor
and family;
(C) Identification of the minor’s
special needs including any specific
problem(s) which appear to require
immediate intervention;
(D) An educational assessment and
plan;
(E) An assessment of family
relationships and interaction with
adults, peers and authority figures;
(F) A statement of religious preference
and practice;
(G) An assessment of the minor’s
personal goals, strengths and
weaknesses; and
(H) Identifying information regarding
immediate family members, other
relatives, godparents, or friends who
may be residing in the United States and
may be able to assist in family
reunification;
(iv) Educational services appropriate
to the minor’s level of development and
communication skills in a structured
classroom setting, Monday through
Friday, which concentrates primarily on
the development of basic academic
competencies and secondarily on
English Language Training (ELT). The
educational program should include
subjects similar to those found in U.S.
programs and include science, social
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45527
studies, math, reading, writing, and
physical education. The program design
should be appropriate for the minor’s
estimated length of stay and can include
the necessary skills appropriate for
transition into a U.S. school district.
The program should also include
acculturation and adaptation services
which include information regarding
the development of social and interpersonal skills that contribute to those
abilities as age appropriate;
(v) Appropriate reading materials in
languages other than English for use
during the minor’s leisure time;
(vi) Activities according to a
recreation and leisure time plan which
shall include daily outdoor activity,
weather permitting, at least one hour
per day of large muscle activity and one
hour per day of structured leisure time
activities (this should not include time
spent watching television). Activities
should be increased to a total of three
hours on days when school is not in
session;
(vii) At least one individual
counseling session or mental health
wellness interaction (if the minor does
not want to participate in a counseling
session) per week conducted by trained
social work staff with the specific
objectives of reviewing the minor’s
progress, establishing new short-term
objectives, and addressing both the
developmental and crisis-related needs
of each minor;
(viii) Group counseling sessions at
least twice a week. This is usually an
informal process and takes place with
all the minors present and can be held
in conjunction with other structured
activities. It is a time when new minors
present in the facility are given the
opportunity to get acquainted with the
staff, other children, and the rules of the
program. It is an open forum where
everyone gets a chance to speak. Daily
program management is discussed and
decisions are made about recreational
activities, etc. It is a time for staff and
minors to discuss whatever is on their
minds and to resolve problems;
(ix) Upon admission, a
comprehensive orientation regarding
program intent, services, rules (written
and verbal), expectations and the
availability of legal assistance;
(x) Whenever possible, access to
religious services of the minor’s choice;
(xi) Visitation and contact with family
members (regardless of their
immigration status) which is structured
to encourage such visitation. The staff
shall respect the minor’s privacy while
reasonably preventing the unauthorized
release of the minor and preventing the
transfer of contraband;
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(xii) A reasonable right to privacy,
which shall include the right to:
(A) Wear his or her own clothes,
when available;
(B) Retain a private space in the
residential facility for the storage of
personal belongings;
(C) Talk privately on the phone, as
permitted by applicable facility rules
and regulations;
(D) Visit privately with guests, as
permitted by applicable facility rules
and regulations; and
(E) Receive and send uncensored mail
unless there is a reasonable belief that
the mail contains contraband.
(xiii) When necessary,
communication with adult relatives
living in the United States and in
foreign countries regarding legal issues
related to the release and/or removal of
the minor;
(xiv) Legal services information
regarding the availability of free legal
assistance, the right to be represented by
counsel at no expense to the
Government, the right to apply for
asylum or to request voluntary
departure; and
(xv) Attorney-client visits in
accordance with applicable facility rules
and regulations.
(5) In the event of an emergency, a
licensed, non-secure facility described
in paragraph (i) of this section may
transfer temporary physical custody of a
minor prior to securing permission from
DHS, but shall notify DHS of the
transfer as soon as is practicable
thereafter, but in all cases within 8
hours.
(j) Release of minors from DHS
custody. DHS will make and record
prompt and continuous efforts on its
part toward the release of the minor. If
DHS determines that detention of a
minor who is not a UAC is not required
to secure the minor’s timely appearance
before DHS or the immigration court, or
to ensure the minor’s safety or the safety
of others, the minor may be released, as
provided under existing statutes and
regulations, pursuant to the procedures
set forth in this paragraph.
(1) DHS will release a minor from
custody to a parent or legal guardian
who is available to provide care and
physical custody.
(2) Prior to releasing to a parent or
legal guardian, DHS will use all
available reliable evidence to determine
whether the relationship is bona fide. If
no reliable evidence is available that
confirms the relationship, the minor
will be treated as a UAC and transferred
into the custody of HHS as outlined in
paragraph (f) of this section.
(3) For minors in DHS custody, DHS
shall assist without undue delay in
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making transportation arrangements to
the DHS office nearest the location of
the person to whom a minor is to be
released. DHS may, in its discretion,
provide transportation to minors.
(4) Nothing herein shall require DHS
to release a minor to any person or
agency whom DHS has reason to believe
may harm or neglect the minor or fail
to present him or her before DHS or the
immigration courts when requested to
do so.
(k) Procedures upon transfer.—(1)
Possessions. Whenever a minor or UAC
is transferred from one ICE placement to
another, or from an ICE placement to an
ORR placement, he or she will be
transferred with all possessions and
legal papers; provided, however, that if
the minor or UAC’s possessions exceed
the amount normally permitted by the
carrier in use, the possessions shall be
shipped to the minor or UAC in a timely
manner.
(2) Notice to counsel. A minor or UAC
who is represented will not be
transferred from one ICE placement to
another, or from an ICE placement to an
ORR placement, until notice is provided
to his or her counsel, except in unusual
and compelling circumstances, such as
where the safety of the minor or UAC
or others is threatened or the minor or
UAC has been determined to be an
escape-risk, or where counsel has
waived such notice. In unusual and
compelling circumstances, notice will
be sent to counsel within 24 hours
following the transfer.
(l) Notice to parent of refusal of
release or application for relief. (1) A
parent shall be notified of any of the
following requests if the parent is
present in the United States and can
reasonably be contacted, unless such
notification is otherwise prohibited by
law or DHS determines that notification
of the parent would pose a risk to the
minor’s safety or well-being:
(i) A minor or UAC in DHS custody
refuses to be released to his or her
parent; or
(ii) A minor or a UAC seeks release
from DHS custody or seeks voluntary
departure or a withdrawal of an
application for admission, parole, or any
form of relief from removal before DHS,
and that the grant of such request or
relief may effectively terminate some
interest inherent in the parent-child
relationship and/or the minor or UAC’s
rights and interests are adverse with
those of the parent.
(2) Upon notification, the parent will
be afforded an opportunity to present
his or her views and assert his or her
interest to DHS before a determination
is made as to the merits of the request
for relief.
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(m) Bond hearings. Bond
determinations made by DHS for minors
who are in removal proceedings
pursuant to section 240 of the Act and
who are also in DHS custody may be
reviewed by an immigration judge
pursuant to 8 CFR part 1236 to the
extent permitted by 8 CFR 1003.19.
Minors in DHS custody who are not in
section 240 proceedings are ineligible to
seek review by an immigration judge of
their DHS custody determinations.
(n) Retaking custody of a previously
released minor. (1) In addition to the
ability to make a UAC determination
upon each encounter as set forth in
paragraph (c) of this section, DHS may
take a minor back into custody if there
is a material change in circumstances
indicating the minor is an escape-risk, a
danger to the community, or has a final
order of removal. If the minor is
accompanied, DHS shall place the
minor in accordance with paragraphs (e)
and (i) of this section. If the minor is a
UAC, DHS shall transfer the minor into
HHS custody in accordance with
paragraph (e) of this section.
(2) DHS may take a minor back into
custody if there is no longer a parent or
legal guardian available to care for the
minor. In these cases, DHS will treat the
minor as a UAC and transfer custody to
HHS as outlined in paragraph (e) of this
section.
(3) Minors who are not UACs and
who are taken back into DHS custody
may request a custody redetermination
hearing in accordance with paragraph
(m) of this section and to the extent
permitted by 8 CFR 1003.19 .
(o) Monitoring. (1) CBP and ICE each
shall identify a Juvenile Coordinator for
the purpose of monitoring compliance
with the terms of this section.
(2) The Juvenile Coordinators shall
collect and periodically examine
relevant statistical information about
UACs and minors who remain in CBP
or ICE custody for longer than 72 hours.
Such statistical information may
include but not necessarily be limited
to:
(i) Biographical information;
(ii) Dates of custody; and
(iii) Placements, transfers, removals,
or releases from custody, including the
reasons for a particular placement.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
45 CFR Chapter IV
For the reasons set forth in the
preamble, part 410 of Chapter IV of title
45 of the Code of Federal Regulations is
proposed to be amended as follows:
■ 10. Add part 410 to read as follows:
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410.700 Conducting age determinations
410.701 Treatment of an individual who
appears to be an adult
PART 410—CARE AND PLACEMENT
OF UNACCOMPANIED ALIEN
CHILDREN
Subpart H—Unaccompanied Alien
Children’s Objections to ORR
Determinations
Sec.
410.800 Purpose of this Subpart
410.801 Procedures
410.810 Hearings
Subpart A—Care and Placement of
Unaccompanied Alien Children
Sec.
410.100 Scope of this part
410.101 Definitions
410.102 ORR care and placement of
unaccompanied alien children
Subpart B—Determining the Placement of
an Unaccompanied Alien Child
Sec.
410.200 Purpose of this subpart
410.201 Considerations generally
applicable to the placement of an
unaccompanied alien child
410.202 Placement of an unaccompanied
alien child in a licensed program
410.203 Criteria for placing an
unaccompanied alien child in a secure
facility
410.204 Considerations when determining
whether an unaccompanied alien child
is an escape risk
410.205 Applicability of § 410.203 for
placement in a secure facility
410.206 Information for unaccompanied
alien children concerning the reasons for
his or her placement in a secure or staff
secure facility
410.207 Custody of an unaccompanied
alien child placed pursuant to this
subpart
410.208 Special needs minors
410.209 Procedures during an emergency or
influx
Subpart C—Releasing an Unaccompanied
Alien Child From ORR Custody
Sec.
410.300 Purpose of this subpart
410.301 Sponsors to whom ORR releases an
unaccompanied alien child
410.302 Sponsor suitability assessment
process requirements leading to release
of an unaccompanied alien child from
ORR custody to a sponsor
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Subpart D—Licensed Programs
Sec.
410.400 Purpose of this subpart
410.401 Applicability of this subpart
410.402 Minimum standards applicable to
licensed programs
410.403 Ensuring that licensed programs
are providing services as required by
these regulations
Subpart E—Transportation of an
Unaccompanied Alien Child
Sec.
410.500 Conducting transportation for an
unaccompanied alien child in ORR’s
custody
Subpart F—Transfer of an Unaccompanied
Alien Child
Sec.
410.600 Principles applicable to transfer of
an unaccompanied alien child
Subpart G—Age Determinations
Sec.
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Authority: 6 U.S.C. 279, 8 U.S.C.
1103(a)(3), 8 U.S.C. 1232.
Subpart A—Care and Placement of
Unaccompanied Alien Children
§ 410.100
Scope of this part.
This part governs those aspects of the
care, custody, and placement of
unaccompanied alien children (UACs)
agreed to in the settlement agreement
reached in Jenny Lisette Flores v. Janet
Reno, Attorney General of the United
States, Case No. CV 85–4544–RJK (C.D.
Cal. 1996). ORR operates the UAC
program as authorized by section 462 of
the Homeland Security Act of 2002,
Public Law 107–296, 6 U.S.C. 279, and
section 235 of the William Wilberforce
Trafficking Victims Protection
Reauthorization Act of 2008, Public Law
110–457, 8 U.S.C. 1232. This part does
not govern or describe the entire
program.
§ 410.101
Definitions.
DHS means the Department of
Homeland Security.
Director means the Director of the
Office of Refugee Resettlement (ORR),
Administration for Children and
Families, Department of Health and
Human Services.
Emergency means an act or event
(including, but not limited to, a natural
disaster, facility fire, civil disturbance,
or medical or public health concerns at
one or more facilities) that prevents
timely transport or placement of UACs,
or impacts other conditions provided by
this part.
Escape risk means there is a serious
risk that an unaccompanied alien child
(UAC) will attempt to escape from
custody.
Influx means a situation in which
there are, at any given time, more than
130 minors or UACs eligible for
placement in a licensed facility under
this part or corresponding provisions of
DHS regulations, including those who
have been so placed or are awaiting
such placement.
Licensed program means any
program, agency, or organization that is
licensed by an appropriate State agency
to provide residential, group, or foster
care services for dependent children,
including a program operating group
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45529
homes, foster homes, or facilities for
special needs UAC. A licensed program
must meet the standards set forth in
§ 410.402 of this part. All homes and
facilities operated by a licensed
program, including facilities for special
needs minors, are non-secure as
required under State law. However, a
facility for special needs minors may
maintain that level of security permitted
under State law which is necessary for
the protection of a UAC or others in
appropriate circumstances, e.g., cases in
which a UAC has drug or alcohol
problems or is mentally ill.
ORR means the Office of Refugee
Resettlement, Administration for
Children and Families, Department of
Health and Human Services.
Secure facility means a State or
county juvenile detention facility or a
secure ORR detention facility, or a
facility with an ORR contract or
cooperative agreement having separate
accommodations for minors. A secure
facility does not need to meet the
requirements of § 410.402, and is not
defined as a ‘‘licensed program’’ or
‘‘shelter’’ under this Part.
Shelter means a licensed program that
meets the standards set forth in
§ 410.402 of this part.
Special needs minor means a UAC
whose mental and/or physical condition
requires special services and treatment
by staff. A UAC may have special needs
due to drug or alcohol abuse, serious
emotional disturbance, mental illness or
retardation, or a physical condition or
chronic illness that requires special
services or treatment. A UAC who has
suffered serious neglect or abuse may be
considered a special needs minor if the
UAC requires special services or
treatment as a result of neglect or abuse.
Sponsor, also referred to as custodian,
means an individual (or entity) to whom
ORR releases a UAC out of ORR
custody.
Staff secure facility means a facility
that is operated by a program, agency or
organization licensed by an appropriate
State agency and that meets the
standards for licensed programs set
forth in § 410.402 of this part. A staff
secure facility is designed for a UAC
who requires close supervision but does
not need placement in a secure facility.
It provides 24-hour awake supervision,
custody, care, and treatment. It
maintains stricter security measures,
such as intensive staff supervision, than
a shelter in order to control problem
behavior and to prevent escape. A staff
secure facility may have a secure
perimeter but is not equipped internally
with major restraining construction or
procedures typically associated with
correctional facilities.
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Unaccompanied alien child (UAC)
means an individual who: Has no lawful
immigration status in the United States;
has not attained 18 years of age; and
with respect to whom: There is no
parent or legal guardian in the United
States; or no parent or legal guardian in
the United States is available to provide
care and physical custody. When an
alien previously determined to have
been a UAC has reached the age of 18,
when a parent or legal guardian in the
United States is available to provide
care and physical custody for such an
alien, or when such alien has obtained
lawful immigration status, the alien is
no longer a UAC. An alien who is no
longer a UAC is not eligible to receive
legal protections limited to UACs.
§ 410.102 ORR care and placement of
unaccompanied alien children.
ORR coordinates and implements the
care and placement of UAC who are in
ORR custody by reason of their
immigration status.
For all UAC in ORR custody, DHS and
DOJ handle other matters, including
immigration benefits and enforcement
matters, as set forth in their respective
statutes, regulations and other
authorities.
ORR shall hold UACs in facilities that
are safe and sanitary and that are
consistent with ORR’s concern for the
particular vulnerability of minors.
Within all placements, UAC shall be
treated with dignity, respect, and
special concern for their particular
vulnerability.
Subpart B—Determining the Placement
of an Unaccompanied Alien Child
§ 410.200
Purpose of this subpart.
This subpart sets forth what ORR
considers when placing a UAC in a
particular ORR facility, in accordance
with the Flores settlement agreement.
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§ 410.201 Considerations generally
applicable to the placement of an
unaccompanied alien child.
(a) ORR places each UAC in the least
restrictive setting that is in the best
interest of the child and appropriate to
the UAC’s age and special needs,
provided that such setting is consistent
with its interests to ensure the UAC’s
timely appearance before DHS and the
immigration courts and to protect the
UAC’s well-being and that of others.
(b) ORR separates UAC from
delinquent offenders.
(c) ORR makes reasonable efforts to
provide placements in those
geographical areas where DHS
apprehends the majority of UAC.
(d) Facilities where ORR places UAC
will provide access to toilets and sinks,
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drinking water and food as appropriate,
medical assistance if the UAC is in need
of emergency services, adequate
temperature control and ventilation,
adequate supervision to protect UAC
from others, and contact with family
members who were arrested with the
minor.
(e) If there is no appropriate licensed
program immediately available for
placement of a UAC pursuant to Subpart
B, and no one to whom ORR may
release the UAC pursuant to Subpart C,
the UAC may be placed in an ORRcontracted facility, having separate
accommodations for minors, or a State
or county juvenile detention facility. In
addition to the requirement that UAC
shall be separated from delinquent
offenders, every effort must be taken to
ensure that the safety and well-being of
the UAC detained in these facilities are
satisfactorily provided for by the staff.
ORR makes all reasonable efforts to
place each UAC in a licensed program
as expeditiously as possible.
(f) ORR makes and records the prompt
and continuous efforts on its part
toward family reunification. ORR
continues such efforts at family
reunification for as long as the minor is
in ORR custody.
§ 410.202 Placement of an unaccompanied
alien child in a licensed program.
(a) ORR places UAC into a licensed
program promptly after a UAC is
transferred to ORR legal custody, except
in the following circumstances:
(1) UAC meeting the criteria for
placement in a secure facility set forth
in § 410.203 of this part;
(2) As otherwise required by any court
decree or court-approved settlement; or,
(3) In the event of an emergency or
influx of UAC into the United States, in
which case ORR places the UAC as
expeditiously as possible in accordance
with § 410.209 of this part; or
(4) If a reasonable person would
conclude that the UAC is an adult
despite his or her claims to be a minor.
§ 410.203 Criteria for placing an
unaccompanied alien child in a secure
facility.
(a) Notwithstanding § 410.202 of this
part, ORR may place a UAC in a secure
facility if the UAC:
(1) Has been charged with, is
chargeable, or has been convicted of a
crime, or is the subject of delinquency
proceedings, has been adjudicated
delinquent, or is chargeable with a
delinquent act, and where ORR deems
those circumstances demonstrate that
the UAC poses a danger to self or others.
‘‘Chargeable’’ means that ORR has
probable cause to believe that the UAC
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has committed a specified offense. This
provision does not apply to a UAC
whose offense is:
(i) An isolated offense that was not
within a pattern or practice of criminal
activity and did not involve violence
against a person or the use or carrying
of a weapon; or
(ii) A petty offense, which is not
considered grounds for stricter means of
detention in any case;
(2) While in DHS or ORR’s custody or
while in the presence of an immigration
officer, has committed, or has made
credible threats to commit, a violent or
malicious act (whether directed at
himself/herself or others);
(3) Has engaged, while in a licensed
program or staff secure facility, in
conduct that has proven to be
unacceptably disruptive of the normal
functioning of the licensed program or
staff secure facility in which he or she
has been placed and removal is
necessary to ensure the welfare of the
UAC or others, as determined by the
staff of the licensed program or staff
secure facility (e.g., drug or alcohol
abuse, stealing, fighting, intimidation of
others, or sexually predatory behavior),
and ORR determines the UAC poses a
danger to self or others based on such
conduct;
(4) For purposes of placement in a
secure RTC, if a licensed psychologist or
psychiatrist determines that the UAC
poses a risk of harm to self or others.
(5) Is otherwise a danger to self or
others.
(b) ORR Federal Field Specialists
review and approve all placements of
UAC in secure facilities consistent with
legal requirements.
§ 410.204 Considerations when
determining whether an unaccompanied
alien child is an escape risk.
When determining whether a UAC is
an escape risk, ORR considers, among
other factors, whether:
(a) The UAC is currently under a final
order of removal;
(b) The UAC’s immigration history
includes:
(1) A prior breach of a bond;
(2) A failure to appear before DHS or
the immigration court;
(3) Evidence that the UAC is indebted
to organized smugglers for his or her
transport; or
(4) A voluntary departure or a
previous removal from the United States
pursuant to a final order of removal; and
(c) The UAC has previously
absconded or attempted to abscond from
state or federal custody.
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§ 410.205 Applicability of § 410.203 for
placement in a secure facility.
ORR does not place a UAC in a secure
facility pursuant to § 410.203 of this part
if less restrictive alternatives are
available and appropriate under the
circumstances. ORR may place a UAC in
a staff secure facility or another licensed
program as an alternative to a secure
facility.
§ 410.206 Information for unaccompanied
alien children concerning the reasons for
his or her placement in a secure or staff
secure facility.
Within a reasonable period of time,
ORR provides each UAC placed or
transferred to a secure or staff secure
facility with a notice of the reasons for
the placement in a language the UAC
understands.
§ 410.207 Custody of an unaccompanied
alien child placed pursuant to this subpart.
A UAC who is placed in a licensed
program pursuant to this subpart
remains in the custody of ORR, and may
only be transferred or released under its
authority. However, in the event of an
emergency, a licensed program may
transfer temporarily the physical
placement of a UAC prior to securing
permission from ORR, but must notify
ORR of the transfer as soon as possible,
but in all cases within eight hours of the
transfer. Upon release to an approved
sponsor, a UAC is no longer in the
custody of ORR.
§ 410.208
Special needs minors.
ORR assesses each UAC to determine
if he or she has special needs, and if so,
places the UAC, whenever possible, in
a licensed program in which ORR places
unaccompanied alien children without
special needs, but which provides
services and treatment for such special
needs.
daltland on DSKBBV9HB2PROD with PROPOSALS2
§ 410.209 Procedures during an
emergency or influx.
In the event of an emergency or influx
that prevents the prompt placement of
UAC in licensed programs, ORR makes
all reasonable efforts to place each UAC
in a licensed program as expeditiously
as possible using the following
procedures:
(a) ORR maintains an emergency
placement list of at least 80 beds at
programs licensed by an appropriate
state agency that are potentially
available to accept emergency
placements.
(b) ORR implements its contingency
plan on emergencies and influxes.
(c) Within one business day of the
emergency or influx, ORR, if necessary,
contacts the programs on the emergency
placement list to determine available
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placements. To the extent practicable,
ORR will attempt to locate emergency
placements in geographic areas where
culturally and linguistically appropriate
community services are available.
(d) In the event that the number of
UAC needing placement exceeds the
available appropriate placements on the
emergency placement list, ORR works
with governmental and
nongovernmental organizations to locate
additional placements through licensed
programs, county social services
departments, and foster family agencies.
(e) ORR maintains a list of UAC
affected by the emergency or influx
including each UAC’s:
(1) Name;
(2) Date and country of birth;
(3) Date of placement in ORR’s
custody; and
(4) Place and date of current
placement.
(f) Each year ORR reevaluates the
number of regular placements needed
for UAC to determine whether the
number of regular placements should be
adjusted to accommodate an increased
or decreased number of UAC eligible for
placement in licensed programs.
Subpart C—Releasing an
Unaccompanied Alien Child From ORR
Custody
§ 410.300
Purpose of this subpart.
This subpart covers the policies and
procedures used to release, without
unnecessary delay, a UAC from ORR
custody to an approved sponsor.
§ 410.301 Sponsors to whom ORR
releases an unaccompanied alien child.
(a) ORR releases a UAC to an
approved sponsor without unnecessary
delay, but may continue to retain
custody of a UAC if ORR determines
that continued custody is necessary to
ensure the UAC’s safety or the safety of
others, or that continued custody is
required to secure the UAC’s timely
appearance before DHS or the
immigration courts.
(b) When ORR releases a UAC without
unnecessary delay to an approved
sponsor, it releases in the following
order of preference:
(1) A parent;
(2) A legal guardian;
(3) An adult relative (brother, sister,
aunt, uncle, or grandparent);
(4) An adult individual or entity
designated by the parent or legal
guardian as capable and willing to care
for the UAC’s well-being in:
(i) A declaration signed under penalty
of perjury before an immigration or
consular officer, or
(ii) Such other document that
establishes to the satisfaction of ORR, in
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45531
its discretion, the affiant’s parental
relationship or guardianship;
(5) A licensed program willing to
accept legal custody; or
(6) An adult individual or entity
seeking custody, in the discretion of
ORR, when it appears that there is no
other likely alternative to long term
custody, and family reunification does
not appear to be a reasonable
possibility.
§ 410.302 Sponsor suitability assessment
process requirements leading to release of
an unaccompanied alien child from Federal
custody to a proposed sponsor.
(a) The licensed program providing
care for the UAC shall make and record
the prompt and continuous efforts on its
part towards family reunification and
the release of the UAC pursuant to the
provisions of this section.
(b) ORR requires a background check,
including verification of identity and
which may include verification of
employment of the individuals offering
support, prior to release.
(c) ORR also may require further
suitability assessment, which may
include interviews of members of the
household, investigation of the living
conditions in which the UAC would be
placed and the standard of care he or
she would receive, a home visit, a
fingerprint-based background and
criminal records check on the
prospective sponsor and on adult
residents of the prospective sponsor’s
household, and follow-up visits after
release. Any such assessment also takes
into consideration the wishes and
concerns of the UAC.
(d) If the conditions identified in
TVPRA at 8 U.S.C. 1232(c)(3)(B) are
met, and require a home study, no
release to a sponsor may occur in the
absence of such a home study.
(e) The proposed sponsor must sign
an affidavit of support and a custodial
release agreement of the conditions of
release. The custodial release agreement
requires that the sponsor:
(1) Provide for the UAC’s physical,
mental, and financial well-being;
(2) Ensure the UAC’s presence at all
future proceedings before DHS and the
immigration courts;
(3) Ensure the UAC reports for
removal from the United States if so
ordered;
(4) Notify ORR, DHS, and the
Executive Office for Immigration
Review of any change of address within
five days following a move;
(5) Notify ORR and DHS at least five
days prior to the sponsor’s departure
from the United States, whether the
departure is voluntary or pursuant to a
grant of voluntary departure or an order
of removal;
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(6) Notify ORR and DHS if
dependency proceedings involving the
UAC are initiated and also notify the
dependency court of any immigration
proceedings pending against the UAC;
(7) Receive written permission from
ORR if the sponsor decides to transfer
legal custody of the UAC to someone
else. Also, in the event of an emergency
(e.g., serious illness or destruction of the
home), a sponsor may transfer
temporary physical custody of the UAC
prior to securing permission from ORR,
but the sponsor must notify ORR as
soon as possible and no later than 72
hours after the transfer; and
(8) Notify ORR and DHS as soon as
possible and no later than 24 hours of
learning that the UAC has disappeared,
has been threatened, or has been
contacted in any way by an individual
or individuals believed to represent an
immigrant smuggling syndicate or
organized crime.
(f) ORR is not required to release a
UAC to any person or agency it has
reason to believe may harm or neglect
the UAC or fail to present him or her
before DHS or the immigration courts
when requested to do so.
Subpart D—Licensed Programs
§ 410.400
Purpose of this subpart.
This subpart covers the standards that
licensed programs must meet in keeping
with the principles UACs in custody
with dignity, respect and special
concern for their particular vulnerability
§ 410.401
Applicability of this subpart.
This subpart applies to all licensed
programs, regardless of whether they are
providing care in shelters, staff secure
facilities, residential treatment centers,
or foster care and group home settings.
daltland on DSKBBV9HB2PROD with PROPOSALS2
§ 410.402 Minimum standards applicable
to licensed programs.
Licensed programs must:
(a) Be licensed by an appropriate State
agency to provide residential, group, or
foster care services for dependent
children.
(b) Comply with all applicable state
child welfare laws and regulations and
all state and local building, fire, health
and safety codes;
(c) Provide or arrange for the
following services for each UAC in care,
including:
(1) Proper physical care and
maintenance, including suitable living
accommodations, food, appropriate
clothing, and personal grooming items;
(2) Appropriate routine medical and
dental care, family planning services,
and emergency health care services,
including a complete medical
examination (including screening for
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infectious disease) within 48 hours of
admission, excluding weekends and
holidays, unless the UAC was recently
examined at another facility;
appropriate immunizations in
accordance with the U.S. Public Health
Service (PHS), Center for Disease
Control; administration of prescribed
medication and special diets;
appropriate mental health interventions
when necessary;
(3) An individualized needs
assessment that must include:
(i) Various initial intake forms;
(ii) Essential data relating to the
identification and history of the UAC
and family;
(iii) Identification of the UAC’s
special needs including any specific
problems that appear to require
immediate intervention;
(iv) An educational assessment and
plan;
(v) An assessment of family
relationships and interaction with
adults, peers and authority figures;
(vi) A statement of religious
preference and practice;
(vii) An assessment of the UAC’s
personal goals, strengths and
weaknesses; and
(viii) Identifying information
regarding immediate family members,
other relatives, godparents or friends
who may be residing in the United
States and may be able to assist in
family reunification; and
(4) Educational services appropriate
to the UAC’s level of development and
communication skills in a structured
classroom setting, Monday through
Friday, which concentrate primarily on
the development of basic academic
competencies and secondarily on
English Language Training (ELT),
including:
(i) Instruction and educational and
other reading materials in such
languages as needed;
(ii) Instruction in basic academic
areas that include science, social
studies, math, reading, writing, and
physical education; and
(iii) The provision to a UAC of
appropriate reading materials in
languages other than English for use
during the UAC’s leisure time;
(5) Activities according to a recreation
and leisure time plan that include daily
outdoor activity, weather permitting, at
least one hour per day of large muscle
activity and one hour per day of
structured leisure time activities, which
do not include time spent watching
television. Activities must be increased
to at least three hours on days when
school is not in session;
(6) At least one individual counseling
session per week conducted by trained
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social work staff with the specific
objectives of reviewing the UAC’s
progress, establishing new short-term
objectives, and addressing both the
developmental and crisis-related needs
of each UAC;
(7) Group counseling sessions at least
twice a week. This is usually an
informal process and takes place with
all the UACs present. This is a time
when new UACs are given the
opportunity to get acquainted with the
staff, other children, and the rules of the
program. It is an open forum where
everyone gets a chance to speak. Daily
program management is discussed and
decisions are made about recreational
and other program activities, etc. This is
a time for staff and UACs to discuss
whatever is on their minds and to
resolve problems;
(8) Acculturation and adaptation
services that include information
regarding the development of social and
inter-personal skills that contribute to
those abilities necessary to live
independently and responsibly;
(9) Upon admission, a comprehensive
orientation regarding program intent,
services, rules (provided in writing and
verbally), expectations and the
availability of legal assistance;
(10) Whenever possible, access to
religious services of the UAC’s choice;
(11) Visitation and contact with
family members (regardless of their
immigration status) which is structured
to encourage such visitation. The staff
must respect the UAC’s privacy while
reasonably preventing the unauthorized
release of the UAC;
(12) A reasonable right to privacy,
which must include the right to:
(i) Wear his or her own clothes, when
available;
(ii) Retain a private space in the
residential facility, group or foster home
for the storage of personal belongings;
(iii) Talk privately on the phone, as
permitted by the house rules and
regulations;
(iv) Visit privately with guests, as
permitted by the house rules and
regulations; and
(v) Receive and send uncensored mail
unless there is a reasonable belief that
the mail contains contraband;
(13) Family reunification services
designed to identify relatives in the
United States as well as in foreign
countries and assistance in obtaining
legal guardianship when necessary for
release of the UAC; and
(14) Legal services information
regarding the availability of free legal
assistance, the right to be represented by
counsel at no expense to the
government, the right to a removal
hearing before an immigration judge, the
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right to apply for asylum or to request
voluntary departure in lieu of removal;
(d) Deliver services in a manner that
is sensitive to the age, culture, native
language and the complex needs of each
UAC;
(e) Formulate program rules and
discipline standards with consideration
for the range of ages and maturity in the
program and that are culturally sensitive
to the needs of each UAC to ensure the
following:
(1) UAC must not be subjected to
corporal punishment, humiliation,
mental abuse, or punitive interference
with the daily functions of living, such
as eating or sleeping: and
(2) Any sanctions employed must not:
(i) Adversely affect either a UAC’s
health, or physical or psychological
well-being; or
(ii) Deny UAC regular meals,
sufficient sleep, exercise, medical care,
correspondence privileges, or legal
assistance;
(f) Develop a comprehensive and
realistic individual plan for the care of
each UAC in accordance with the UAC’s
needs as determined by the
individualized needs assessment.
Individual plans must be implemented
and closely coordinated through an
operative case management system;
(g) Develop, maintain and safeguard
individual client case records. Licensed
programs must develop a system of
accountability that preserves the
confidentiality of client information and
protects the records from unauthorized
use or disclosure; and
(h) Maintain adequate records and
make regular reports as required by ORR
that permit ORR to monitor and enforce
these regulations and other
requirements and standards as ORR may
determine are in the interests of the
UAC.
§ 410.403 Ensuring that licensed programs
are providing services as required by these
regulations.
ORR monitors compliance with the
terms of these regulations.
Subpart E—Transportation of an
Unaccompanied Alien Child
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§ 410.500 Conducting transportation for an
unaccompanied alien child in ORR’s
custody.
(a) ORR does not transport UAC with
adult detainees.
(b) When ORR plans to release a UAC
from its custody under the family
reunification provisions at sections
410.201 and 410.302 of this part, ORR
assists without undue delay in making
transportation arrangements. ORR may,
in its discretion, provide transportation
to UAC.
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Subpart F—Provisions for Transfer of
an Unaccompanied Alien Child
§ 410.600 Principles applicable to transfer
of an unaccompanied alien child.
(a) ORR transfers a UAC from one
placement to another with all of his or
her possessions and legal papers. ORR
takes all necessary precautions for the
protection of UACs during
transportation with adults.
(b) If the UAC’s possessions exceed
the amount permitted normally by the
carrier in use, the possessions are
shipped to the UAC in a timely manner.
(c) ORR does not transfer a UAC who
is represented by counsel without
advance notice to his or her legal
counsel. However, ORR may provide
notice to counsel within 24 hours of the
transfer in unusual and compelling
circumstances such as:
(1) Where the safety of the UAC or
others has been threatened;
(2) The UAC has been determined to
be an escape risk consistent with
§ 410.204 of this part; or
(3) Where counsel has waived such
notice.
Subpart G—Age Determinations
§ 410.700
Conducting age determinations.
Procedures for determining the age of
an individual must take into account
multiple forms of evidence, including
the non-exclusive use of radiographs, to
determine the age of the individual.
ORR may require an individual in
ORR’s custody to submit to a medical or
dental examination conducted by a
medical professional or to submit to
other appropriate procedures to verify
his or her age. If ORR subsequently
determines that such an individual is a
UAC, he or she will be treated in
accordance with ORR’s UAC regulations
for all purposes.
§ 410.701 Treatment of an individual who
appears to be an adult.
If, the procedures in § 410.700 would
result in a reasonable person concluding
that an individual is an adult, despite
his or her claim to be under the age of
18, ORR must treat such person as an
adult for all purposes.
Subpart H—Unaccompanied Alien
Children’s Objections to ORR
Determinations
§ 410.800
Purpose of this subpart.
This subpart concerns UACs’
objections to ORR placement.
§ 410.801
Procedures.
(a) For UACs not placed in licensed
programs, ORR shall—within a
reasonable period of time—provide a
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45533
notice of the reasons for housing the
minor in secure or staff secure facility.
Such notice shall be in a language the
UAC understands.
(b) ORR shall promptly provide each
UAC not released with:
(i) A list of free legal services
providers compiled by ORR and that is
provided to UAC as part of a Legal
Resource Guide for UAC (unless
previously given to the UAC); and
(ii) The following explanation of the
right of potential review: ORR usually
houses persons under the age of 18 in
an open setting, such as a foster or
group home, and not in detention
facilities. If you believe that you have
not been properly placed or that you
have been treated improperly, you may
call a lawyer to seek assistance. If you
cannot afford a lawyer, you may call one
from the list of free legal services given
to you with this form.
§ 410.810
Hearings
(a) A UAC may request that an
independent hearing officer employed
by HHS determine, through a written
decision, whether the UAC would
present a risk of danger to the
community or risk of flight if released.
(1) Requests under this section may be
made by the UAC, his or her legal
representative, or his or her parent or
legal guardian.
(2) UACs placed in secure or staff
secure facilities will receive a notice of
the procedures under this section and
may use a form provided to them to
make a written request for a hearing
under this section.
(b) In hearings conducted under this
section, the burden is on the UAC to
show that he or she will not be a danger
to the community (or risk of flight) if
released, using a preponderance of the
evidence standard.
(c) In hearings under this section, the
UAC may be represented by a person of
his or her choosing, at no cost to the
government. The UAC may present oral
and written evidence to the hearing
officer and may appear by video or
teleconference. ORR may also choose to
present evidence either in writing, or by
appearing in person, or by video or
teleconference.
(d) A hearing officer’s decision that a
UAC would not be a danger to the
community (or risk of flight) if released
is binding upon ORR, unless the
provisions of paragraph (e) of this
section apply.
(e) A hearing officer’s decision under
this section may be appealed to the
Assistant Secretary of the
Administration for Children and
Families. Any such appeal request shall
be in writing, and must be received
E:\FR\FM\07SEP2.SGM
07SEP2
45534
Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules
daltland on DSKBBV9HB2PROD with PROPOSALS2
within 30 days of the hearing officer
decision. The Assistant Secretary will
reverse a hearing officer decision only if
there is a clear error of fact, or if the
decision includes an error of law.
Appeal to the Assistant Secretary shall
not effect a stay of the hearing officer’s
decision to release the UAC, unless
within five business days of such
hearing officer decision, the Assistant
Secretary issues a decision in writing
that release of the UAC would result in
a significant danger to the community.
Such a stay decision must include a
description of behaviors of the UAC
while in care and/or documented
criminal or juvenile behavior records
VerDate Sep<11>2014
18:16 Sep 06, 2018
Jkt 244001
from the UAC demonstrating that the
UAC would present a danger to
community if released.
(f) Decisions under this section are
final and binding on the Department,
and a UAC may only seek another
hearing under this section if the UAC
can demonstrate a material change in
circumstances. Similarly, ORR may
request the hearing officer to make a
new determination under this section if
at least one month has passed since the
original decision, and ORR can show
that a material change in circumstances
means the UAC should no longer be
released.
(g) This section cannot be used to
determine whether a UAC has a suitable
PO 00000
Frm 00050
Fmt 4701
Sfmt 9990
sponsor, and neither the hearing officer
nor the Assistant Secretary may order
the UAC released.
(h) This section may not be invoked
to determine the UAC’s placement
while in ORR custody. Nor may this
section be invoked to determine level of
custody for the UAC.
Kirstjen M. Nielsen,
Secretary, Department of Homeland Security.
Alex M. Azar II,
Secretary, Department of Health and Human
Services.
[FR Doc. 2018–19052 Filed 9–6–18; 8:45 am]
BILLING CODE 9111–28–P; 4184–45–P
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]]>Agencies
[Federal Register Volume 83, Number 174 (Friday, September 7, 2018)]
[Proposed Rules]
[Pages 45486-45534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-19052]
[[Page 45485]]
Vol. 83
Friday,
No. 174
September 7, 2018
Part II
Department of Homeland Security
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8 CFR Parts 212 and 236
Department of Health and Human Services
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45 CFR Part 410
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Apprehension, Processing, Care, and Custody of Alien Minors and
Unaccompanied Alien Children; Proposed Rule
Federal Register / Vol. 83 , No. 174 / Friday, September 7, 2018 /
Proposed Rules
[[Page 45486]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 212 and 236
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 410
[DHS Docket No. ICEB-2018-0002]
RIN 1653-AA75, 0970-AC42
Apprehension, Processing, Care, and Custody of Alien Minors and
Unaccompanied Alien Children
AGENCY: U.S. Immigration and Customs Enforcement (ICE), U.S. Department
of Homeland Security (DHS); U.S. Citizenship and Immigration Services
(USCIS), DHS; U.S. Customs and Border Protection (CBP), DHS; Office of
Refugee Resettlement (ORR), Administration for Children and Families
(ACF), U.S. Department of Health and Human Services (HHS).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Homeland Security (DHS) and the
Department of Health and Human Services (HHS) (``the Departments'')
propose to amend regulations relating to the apprehension, processing,
care, custody, and release of alien juveniles. In 1985, plaintiffs in a
class action lawsuit, Flores v. Reno, challenged the policies of the
legacy Immigration and Naturalization Service (INS) relating to the
detention, processing, and release of alien juveniles. The parties
reached a settlement agreement, referred to as the Flores Settlement
Agreement (FSA). The FSA, as modified in 2001, provides that it will
terminate forty-five days after publication of final regulations
implementing the agreement. The rule would adopt in regulations
provisions that parallel the relevant and substantive terms of the FSA,
consistent with the HSA and TVPRA, with some modifications discussed
further below to reflect intervening statutory and operational changes
while still providing similar substantive protections and standards. It
therefore would terminate the FSA. The rule would satisfy the basic
purpose of the FSA in ensuring that all juveniles in the government's
custody are treated with dignity, respect, and special concern for
their particular vulnerability as minors, while doing so in a manner
that is workable in light of subsequent changes. The rule would also
implement closely related provisions of the HSA and TVPRA.
Most prominently, the rule would create an alternative to the
existing licensed program requirement for family residential centers,
so that ICE may use appropriate facilities to detain family units
together during their immigration proceedings, consistent with
applicable law.
DATES: Written comments and related material must be submitted on or
before November 6, 2018.
ADDRESSES: You may submit comments on the entirety of this proposed
rule package identified by DHS Docket No. ICEB-2018-0002, by any one of
the following methods:
Federal eRulemaking Portal (preferred): https://www.regulations.gov. Follow the website instructions for submitting
comments.
Email: [email protected]. Include DHS Docket No.
ICEB-2018-0002 in the subject line of the message.
Mail: Debbie Seguin, Assistant Director, Office of Policy,
U.S. Immigration and Customs Enforcement, Department of Homeland
Security, 500 12th Street SW, Washington, DC 20536. To ensure proper
handling, include DHS Docket No. ICEB-2018-0002 in your correspondence.
Mail must be postmarked by the comment submission deadline.
Hand Delivery/Courier: Visitor Entrance, U.S. Immigration
and Enforcement, Department of Homeland Security, 500 12th Street SW,
Washington, DC 20536.
Instructions: All comments submitted outside of the Federal
eRulemaking Portal must include the docket number for this rulemaking.
All comments received may be posted without change to the Federal
eRulemaking Portal at https://www.regulations.gov, including any
personal or commercial information provided. For detailed instructions
on sending comments and additional information on the rulemaking
process, see the ``Public Participation'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
For DHS: Debbie Seguin, Assistant Director, Office of Policy, U.S.
Immigration and Enforcement, Department of Homeland Security, 500 12th
Street SW, Washington, DC 20536. Telephone 202-732-6960 (not a toll-
free number).
For HHS: Division of Policy, Office of the Director, Office of
Refugee Resettlement, Administration for Children and Families, by
email at [email protected]. Do not email comments on the proposed
rule to this address. Office of Refugee Resettlement, 330 C Street SW,
Washington, DC 20201. Telephone 202-401-9246.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Table of Abbreviations
III. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Costs and Benefits
IV. Background and Purpose
A. History
B. Authority
1. Statutory and Regulatory Authority
2. Flores Settlement Agreement Implementation
3. Recent Court Orders
C. Basis and Purpose of Regulatory Action
1. Need for Regulations Implementing the Relevant and
Substantive Terms of the FSA
2. Purpose of the Regulations
V. Discussion of Elements of the Proposed Rule
A. DHS Regulations
B. HHS Regulations
VI. Statutory and Regulatory Requirements
A. Executive Orders 12866 and 13563: Regulatory Review
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Unfunded Mandates Reform Act of 1995
E. Congressional Review Act
F. Paperwork Reduction Act
G. Executive Order 13132: Federalism
H. Executive Order 12988: Civil Justice Reform
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Environmental Policy Act (NEPA)
K. Executive Order 12630: Governmental Actions and Interference
With Constitutionally Protected Property Rights
L. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
M. National Technology Transfer and Advancement Act
N. Family Assessment
VII. List of Subjects and Regulatory Amendments
I. Public Participation
We encourage all interested parties to participate in this
rulemaking by submitting written comments, views, and data on all
aspects of this proposed rule. The Departments also invite comments
that relate to the economic, environmental, or federalism effects that
might result from this proposed rule. All comments received will be
posted, without change, to https://
[[Page 45487]]
www.regulations.gov as part of the public record and will include any
personal or commercial information you provide.
A. Submitting Comments
All comments must be submitted in English, or an English
translation must be provided. Comments that will provide the most
assistance to the Departments will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change. If you submit comments, please indicate the specific section of
this document to which each comment applies, and provide a reason for
each suggestion or recommendation. As this rule is being promulgated by
two Departments, it is especially helpful if your comment, and each
relevant part of that comment, indicates a specific section to which it
applies, or at a minimum each specific Department or Departments to
which it is addressed. In this way, the comment may be better
understood and distributed to the appropriate Department for response.
You may submit your comments and materials online or by mail, but
please use only one of these means. If you submit a comment online via
https://www.regulations.gov, it will be considered received when it is
received at the Docket Management Facility.
Instructions: To submit your comments online, go to https://www.regulations.gov, and insert ``ICEB-2018-0002'' in the ``Search''
box. Click on the ``Comment Now!'' box and input your comment in the
text box provided. Click the ``Continue'' box, and if you are satisfied
with your comment, follow the prompts to submit it. If you submit your
comments by mail, you must include DHS Docket No. ICEB-2018-0002, and
submit them in an unbound format, no larger than 8\1/2\ by 11 inches,
suitable for copying and electronic scanning and filing. If you submit
comments by mail and would like to know that they reached the facility,
please enclose a stamped, self-addressed postcard or envelope.
Regardless of the method used for submitting comments or material,
all submissions will be posted, without change, to the Federal
eRulemaking Portal at https://www.regulations.gov, and will include any
personal or commercial information you provide. Therefore, submitting
this information makes it public. You may wish to consider limiting the
amount of personal or commercial information that you provide in any
voluntary public comment submission you make to the Departments. The
Departments may withhold information provided in comments from public
viewing that is determined may impact the privacy of an individual or
is offensive. For additional information, please read the ``Privacy and
Security Notice'' that is available via the link in the footer of
https://www.regulations.gov.
We will consider all comments and materials received during the
comment period and may change this rule based on your comments.
Note: The Departments will only consider comments timely
submitted to the docket for this rulemaking. In light of the period
of time that has elapsed since the 1998 DOJ proposed rule on this
topic, the Departments have established a new docket for this
rulemaking. Comments submitted to the Departments on this topic
prior to opening of the docket for this proposed rule will not be
incorporated into the docket for this rulemaking; commenters should
resubmit those comments, with necessary updates, as appropriate.
B. Viewing Comments and Documents
Docket: To view comments, as well as documents mentioned in this
preamble as being available in the docket, go to https://www.regulations.gov and insert ``ICEB-2018-0002'' in the ``Search''
box. Click on the ``Open Docket Folder,'' and you can click on ``View
Comment'' or ``View All'' under the ``Comments'' section of the page.
Individuals without internet access can make alternate arrangements for
viewing comments and documents related to this rulemaking by contacting
ICE through the FOR FURTHER INFORMATION CONTACT section above. You may
also sign up for email alerts on the online docket to be notified when
comments are posted or a final rule is published.
C. Privacy Act
As stated in the Submitting Comments section above, please be aware
that anyone can search the electronic form of comments received into
any of our dockets by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor union, etc.).
II. Table of Abbreviations
ACF--Administration for Children and Families
BPA--U.S. Border Patrol Agent
CBP--U.S. Customs and Border Protection
CBPO--U.S. Customs and Border Protection Officer
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
EOIR--Executive Office for Immigration Review
FRC--Family Residential Center
FSA--Flores Settlement Agreement
HHS--U.S. Department of Health and Human Services
HSA--Homeland Security Act of 2002
ICE--U.S. Immigration and Customs Enforcement
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
JFRMU--Juvenile and Family Residential Management Unit
OFO--U.S. Customs and Border Protection, Office of Field Operations
OMB--Office of Management and Budget
ORR--Office of Refugee Resettlement, U.S. Department of Health and
Human Services
TVPRA--William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UAC(s)--Unaccompanied Alien Child(ren)
USCIS--U.S. Citizenship and Immigration Services
USBP--U.S. Border Patrol, U.S. Customs and Border Protection
III. Executive Summary
A. Purpose of the Regulatory Action
This rulemaking would implement the relevant and substantive terms
of the Flores Settlement Agreement (FSA), with such limited changes as
are necessary to implement closely-related provisions of the Homeland
Security Act of 2002 (HSA), Public Law 107-296, sec. 462, 116 Stat.
2135, 2202, and the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA), Public Law 110-457, title II,
subtitle D, 122 Stat. 5044. The proposed regulations would take account
of certain changed circumstances, ensure that the regulations
accomplish a sound and proper implementation of governing federal
statutes, and set forth a sustainable operational model of immigration
enforcement. For example, one operational shift under the FSA has been
the extension of the agreement to apply to accompanied minors, i.e.,
juveniles who arrive at the border with their parents or legal
guardians. That has created a series of operational difficulties, most
notably with respect to a state-licensing requirement for a family
residential center (FRC) in which such parents/legal guardians and
children may be placed during immigration proceedings. Additionally,
changes to the operational environment since 1997, as well as the
enactment of the HSA and the TVPRA, have rendered some of the
substantive terms of the FSA outdated, similarly making compliance with
the HSA, the TVPRA, other immigration laws, and the FSA problematic
without some modification of the literal text of the FSA. These
provisions are designed, however, so that they still implement the
substantive
[[Page 45488]]
and underlying purpose of the FSA, by ensuring that juveniles are
provided materially identical protections as under the FSA itself.
Therefore, the Departments are proposing these regulations to allow the
public to comment on our proposed framework for compliance with the
FSA, consistent with current law.
From a practical perspective, one of the most important changes
from the literal text of the FSA would be the licensing requirement
that applies to programs in which minors may be detained during
immigration proceedings. Under the FSA, such facilities must be
licensed ``by an appropriate State agency . . . for dependent
children.'' FSA paragraph 6. That requirement is sensible for
unaccompanied alien children, because all States have licensing schemes
for the housing of unaccompanied juveniles who are by definition
``dependent children,'' and accordingly the rule would not change that
requirement for those juveniles. But the need for the license to come
specifically from a ``state agency'' (rather than a federal agency) is
problematic now that the FSA has been held to apply to accompanied
minors, including those held at FRCs, because States generally do not
have licensing schemes for facilities to hold minors who are together
with their parents or legal guardians, and therefore are by definition
not ``dependent children.'' The application of the FSA's requirement
for ``state'' licensing to accompanied minors can effectively require
DHS to release minors from detention in a non-state-licensed facility
even if the parent/legal guardian and child would otherwise continue to
be detained together during their removal proceedings, consistent with
applicable law. The rule here would eliminate that barrier to the
continued use of FRCs, by creating an alternative federal licensing
scheme for such facilities. The goal is to provide materially identical
assurances about the conditions of such facilities, and thus to
implement the underlying purpose of the FSA's licensing requirement,
and in turn to allow families to remain together during their
immigration proceedings.
B. Legal Authority
The Secretary of Homeland Security derives her authority to
promulgate these proposed regulatory amendments primarily from the
Immigration and Nationality Act (INA or Act), as amended, 8 U.S.C. 1101
et seq. The Secretary may ``establish such regulations'' as she deems
necessary for carrying out her authorities under the INA. INA sec.
103(a)(3), 8 U.S.C. 1103(a)(3). In addition, section 462 of the HSA and
section 235 of the TVPRA prescribe substantive requirements and
procedural safeguards to be implemented by DHS and HHS with respect to
unaccompanied alien children (UACs). There have also been a series of
court decisions arising out of the FSA. See, e.g., Flores v. Sessions,
862 F.3d 863 (9th Cir. 2017); Flores v. Lynch, 828 F.3d 898 (9th Cir.
2016); Flores v. Sessions, No. 2:85-cv-04544 (C.D. Cal. June 27, 2017).
Section 462 of the HSA also transferred to the Office of Refugee
Resettlement (ORR) Director ``functions under the immigration laws of
the United States with respect to the care of unaccompanied alien
children that were vested by statute in, or performed by, the
Commissioner of Immigration and Naturalization.'' 6 U.S.C. 279(a). The
ORR Director may, for purposes of performing a function transferred by
this section, ``exercise all authorities under any other provision of
law that were available with respect to the performance of that
function to the official responsible for the performance of the
function'' immediately before the transfer of the program. 6 U.S.C.
279(f)(1).
Consistent with provisions in the HSA, the TVPRA places the
responsibility for the care and custody of all UACs who are not
eligible to be repatriated to a contiguous country with the Secretary
of Health and Human Services.\1\ Prior to the transfer of the program,
the Commissioner of Immigration and Naturalization, through a
delegation from the Attorney General, had authority ``to establish such
regulations . . . as he deems necessary for carrying out his authority
under the provisions of this Act.'' INA sec. 103(a)(3), 8 U.S.C.
1103(a)(3) (2002); 8 CFR 2.1 (2002). In accordance with the relevant
savings and transfer provisions of the HSA, see 6 U.S.C. 279, 552, 557;
see also 8 U.S.C. 1232(b)(1), the ORR Director now possesses the
authority to promulgate regulations concerning ORR's administration of
its responsibilities under the HSA and TVPRA, and the FSA at paragraph
40, as well, specifically envisions promulgation of such regulations.
---------------------------------------------------------------------------
\1\ Some UACs from contiguous countries may be permitted to
withdraw their application for admission and be repatriated. These
UACs are not referred to HHS. 8 U.S.C. 1232(a)(2).
---------------------------------------------------------------------------
C. Costs and Benefits
This proposed rule would implement the FSA by putting in regulatory
form measures that materially parallel its standards and protections,
and also by codifying the current requirements for complying with the
FSA, the HSA, and TVPRA. U.S. Customs and Border Protection (CBP) and
U.S. Immigration and Customs Enforcement (ICE) encounter minors and
UACs in different manners. CBP generally encounters UACs and minors at
the border. In Fiscal Year (FY) 2017, CBP apprehended 113,920
juveniles.\2\ Generally, ICE encounters minors either upon transfer
from CBP to a family residential center (FRC), or during interior
enforcement actions. In FY 2017, 37,825 family members were booked into
ICE's three FRCs, 20,606 of whom were minors. ICE generally encounters
UACs when it transports UACs who are transferred out of CBP custody to
ORR custody, as well as during interior enforcement actions.
---------------------------------------------------------------------------
\2\ Throughout this Notice of Proposed Rulemaking, the
Departments generally use the term ``juvenile'' to refer to any
alien under the age of 18. For further explanation, see below for
discussion of the terms ``juvenile,'' ``minor,'' and ``unaccompanied
alien child (UAC).''
---------------------------------------------------------------------------
The Departments consider their current operations and procedures
for implementing the terms of the FSA, the HSA, and the TVPRA to be the
baseline for the analysis of costs and benefits. DHS already incurs the
costs for these operations; therefore, they are not costs of this
proposed rule. A primary source of new costs for the proposed rule
would be a result of the proposed alternative licensing process, which
would allow ICE to continue detaining some minors along with their
accompanying parent or legal guardian in FRCs. ICE also is proposing
changes to its current practice for parole determinations to align them
with applicable statutory and regulatory authority, which may result in
fewer minors or their accompanying parent or legal guardian released on
parole. These changes may increase variable annual FRC costs paid by
ICE. While DHS acknowledges that this rule may result in additional or
longer detention for certain minors, DHS is unsure how many individuals
will be detained at FRCs after this rule is effective or for how much
longer individuals may be detained because there are so many other
variables to consider. Therefore, DHS is unable to provide a quantified
estimate of any increased FRC costs. DHS is also unable to provide an
estimate of the cost of any increased detention on the individuals
being detained. HHS does not anticipate significant new costs
associated with this rule, although it will assume some costs from the
Department of Justice related to hearings for UACs, with potential
associated start-up costs.
[[Page 45489]]
The primary benefit of the proposed rule would be to implement the
FSA in regulations, and in turn to terminate the agreement as
contemplated by the FSA itself. The result would be to provide for the
sound administration of the detention and custody of alien minors and
UACs to be carried out fully, pursuant to the INA, HSA, TVPRA, and
existing regulations issued by the Departments responsible for
administering those statutes, rather than partially carried out via a
decades-old settlement agreement. The rule would ensure that applicable
regulations reflect the Departments' current operations with respect to
minors and UACs in accordance with the relevant and substantive terms
of the FSA and the TVPRA, as well as the INA. Further, by modifying the
literal text of the FSA in limited cases to reflect and respond to
intervening statutory and operational changes, DHS will ensure that it
retains discretion to detain families, as appropriate and pursuant to
its statutory and regulatory authorities, to meet its enforcement
needs, but while still providing similar protections to minors. HHS was
not an original party to the FSA and instead inherited administration
of some of its provisions. The proposed rule similarly benefit HHS as
it clearly delineates ORR's responsibilities from that of other Federal
partners. Additionally, the proposed implementation of the FSA's
substantive provisions, specifically the minimum standards for licensed
facilities and the release process, would provide clear standards for
the program's network of state licensed facilities.
IV. Background and Purpose
A. History
Prior to the enactment of the HSA, the Attorney General and the
legacy INS had the primary authority to administer and enforce the
immigration laws. In the period leading up to the Flores litigation in
the mid-1980s, the general nationwide INS policy, based on regulations
promulgated in 1963 and the Juvenile Justice and Delinquency Prevention
Act of 1974, was that alien juveniles could petition an immigration
judge for release from INS custody if an order of deportation was not
final. See Reno v. Flores, 507 U.S. 292, 324-25 (1993). In 1984, the
Western Region of the INS implemented a different release policy for
juveniles, and the INS later adopted that policy nationwide. Under that
policy, juveniles could only be released to a parent or a legal
guardian. The rationale for the policy was two-fold: (1) To protect the
juvenile's welfare and safety, and (2) to shield the INS from possible
legal liability. The policy allowed alien juveniles to be released to
other adults only in unusual and extraordinary cases at the discretion
of the District Director or Chief Patrol Agent. See Flores v. Meese,
942 F.2d 1352 (9th Cir. 1991) (en banc).
On July 11, 1985, four alien juveniles filed a class action lawsuit
in the U.S. District Court for the Central District of California,
Flores v. Meese, No. 85-4544 (C.D. Cal. filed July 11, 1985). The case
``ar[ose] out of the INS's efforts to deal with the growing number of
alien children entering the United States by themselves or without
their parents (unaccompanied alien minors).'' Flores v. Meese, 934 F.2d
991, 993 (9th Cir. 1990). The class was defined to consist of ``all
persons under the age of eighteen (18) years who have been, are, or
will be arrested and detained pursuant to 8 U.S.C. 1252 by the INS
within the INS' Western Region and who have been, are, or will be
denied release from INS custody because a parent or legal guardian
fails to personally appear to take custody of them.'' Id. at 994.). The
Flores litigation challenged ``(a) the [INS] policy to condition
juveniles' release on bail on their parents' or legal guardians'
surrendering to INS agents for interrogation and deportation; (b) the
procedures employed by the INS in imposing a condition on juveniles'
bail that their parents' or legal guardians' [sic] surrender to INS
agents for interrogation and deportation; and (c) the conditions
maintained by the INS in facilities where juveniles are incarcerated.''
See Flores Compl. paragraph 1. The plaintiffs claimed that the INS's
release and bond practices and policies violated, among other things,
the INA, the Administrative Procedure Act, and the Due Process Clause
and Equal Protection Guarantee under the Fifth Amendment. See id.
paragraphs 66-69.
Prior to a ruling on any of the issues, on November 30, 1987, the
parties entered into a Memorandum of Understanding (MOU) on the
conditions of detention. The MOU stated that minors in INS custody for
more than 72 hours following arrest would be housed in facilities that
met or exceeded the standards set forth in the April 29, 1987, U.S.
Department of Justice Notice of Funding in the Federal Register and in
the document ``Alien Minors Shelter Care Program--Description and
Requirements.'' See Notice of Availability of Funding for Cooperative
Agreements; Shelter Care and Other Related Services to Alien Minors, 52
FR 15569, 15570 (Apr. 29, 1987). The Notice provided that eligible
grant applicants for the funding described in the Notice included
organizations that were ``appropriately licensed or can expeditiously
meet applicable state licensing requirements for the provision of
shelter care, foster care, group care and other related services to
dependent children . . . .'' Id.
At approximately the same time that the MOU was executed, the INS
published a proposed rule on the Detention and Release of Juveniles to
amend 8 CFR parts 212 and 242. See 52 FR 38245 (Oct. 15, 1987). The
stated purpose of the rule was ``to codify the [INS] policy regarding
detention and release of juvenile aliens and to provide a single policy
for juveniles in both deportation and exclusion proceedings.'' The INS
issued a final rule in May 1988. 53 FR 17449 (May 17, 1988). The rule
provided for release to a parent, guardian, or other relative, and
discretionary release to other adults. See 53 FR at 17451. It also
provided that when adults are in detention, INS would consider release
of the adult and parent. Id.
On May 24, 1988, the district court where the original Flores case
was filed held that the recently codified INS regulation, 8 CFR 242.24
(1988), governing the release of detained alien minors, violated
substantive due process, and ordered modifications to the regulation.
The district court also held that INS release and bond procedures for
detained minors in deportation proceedings fell short of the
requirements of procedural due process, and therefore ordered the INS
``forthwith'' to provide to any minor in custody an ``administrative
hearing to determine probable cause for his arrest and the need for any
restrictions placed upon his release.'' Flores v. Meese, 934 F.2d 991,
993 (9th Cir. 1990) (quoting the district court). The INS appealed, and
the Ninth Circuit reversed the district court's holdings that the INS
exceeded its statutory authority in promulgating 8 CFR 242.24 and that
the regulation violated substantive due process. The Ninth Circuit also
reversed the district court's procedural due process holding,
identified the legal standard that the district court should have
applied, and remanded the issue for the district court to further
explore the issue. Id. at 1013. On rehearing en banc, however, the
Ninth Circuit vacated the original panel's opinion, affirmed the
district court's holding, and held that INS's regulation was invalid
because the regulation violated the alien child's due process and
habeas corpus rights, and detention where the alien child was otherwise
eligible for release on bond or recognizance to a custodian
[[Page 45490]]
served no legitimate purpose of the INS. Flores v. Meese, 942 F.2d 1352
(9th Cir. 1991) (en banc) (``The district court correctly held that the
blanket detention policy is unlawful. The district court's order
appropriately requires children to be released to a responsible adult
where no relative or legal guardian is available, and mandates a
hearing before an immigration judge for the determination of the terms
and conditions of release.'').
The INS appealed, and in 1993, the U.S. Supreme Court rejected
Plaintiffs' facial challenge to the constitutionality of the INS's
regulation concerning the care of alien juveniles. Reno v. Flores, 507
U.S. 292 (1993). The Supreme Court held that the regulations did not
violate any substantive or procedural due process rights or equal
protection principles. Id. at 306, 309. According to the Court, the
regulations did not exceed the scope of the Attorney General's
discretion under the INA to continue custody over arrested aliens,
because the challenged regulations rationally pursued the lawful
purpose of protecting the welfare of such juveniles. Id. at 315.
The regulations promulgated in 1988 have remained in effect since
publication, but were moved to 8 CFR 236.3 in 1997. See 62 FR 10312,
10360 (Mar. 6, 1997). They were amended in 2002 when the authority to
decide issues concerning the detention and release of juveniles was
moved to the Director of the Office of Juvenile Affairs from the
District Directors and Chief Patrol Agents. See 67 FR 39255, 39258
(June 7, 2002).
The Supreme Court decision in Reno v. Flores only resolved one of
the issues in the case. The district court approved the FSA on January
28, 1997. In 1998, the INS published a proposed rule having a basis in
the substantive terms of the FSA, entitled Processing, Detention, and
Release of Juveniles. See 63 FR 39759 (July 24, 1998). In 2001 the
parties added a stipulation in the FSA, which terminates the FSA ``45
days following defendants' publication of final regulations
implementing t[he] Agreement.'' Stipulated Settlement Agreement
paragraph 40 [hereinafter FSA], Flores v. Reno, No. CV 85-4544-RJK(Px)
(C.D. Cal. Dec. 7, 2001). In January 2002, the INS reopened the comment
period on the 1998 proposed rule, 67 FR 1670 (Jan. 14, 2002), but the
rulemaking was ultimately abandoned. The U.S. District Court for the
Central District of California has continued to rule on various motions
filed in the case and oversee enforcement of the MOU and later the FSA.
Whereas only one Department was involved in the creation of the
FSA, three Departments now implement the FSA's substantive terms. After
the 2001 Stipulation, Congress enacted the HSA and the TVPRA, both of
which impact the treatment of alien juveniles. Among other changes, the
HSA created DHS and, along with the TVPRA, transferred the functions
under the immigration laws with respect to the care and then custody of
UACs referred by other Federal agencies to HHS ORR. The TVPRA also
further regulated the Departments' respective roles with respect to
UACs. See 6 U.S.C. 111(a), 279; 8 U.S.C. 1232(b)(1).
To summarize those roles under the current statutory framework: DHS
apprehends, provides care and custody for, transfers, and removes alien
minors; DHS apprehends, transfers, and removes UACs; and ORR provides
for care and custody of UACs who are in federal custody (other than
those permitted to withdraw their application for admission) referred
to ORR by other Departments. DHS and HHS are therefore now proposing to
issue regulations implementing the relevant and substantive terms of
the FSA, consistent with the HSA and TVPRA, and in turn to terminate
the FSA.
B. Authority
1. Statutory and Regulatory Authority
a. Immigration and Nationality Act and the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996
The INA, as amended, provides the primary authority for DHS to
detain certain aliens for violations of the immigration laws. Congress
expanded legacy INS's detention authority in IIRIRA, Public Law 104-
208, 110 Stat. 3009. In that legislation, Congress amended the INA by
providing that certain aliens were subject to either mandatory or
discretionary detention by the INS. This authorization flowed to DHS
after the reorganization under the HSA. Specifically, DHS's authority
to detain certain aliens comes from sections 235, 236, and 241 of the
INA, 8 U.S.C. 1225, 1226, and 1231. Section 235 of the INA, 8 U.S.C.
1225, provides that applicants for admission to the United States,
including those subject to expedited removal, shall be detained during
their removal proceedings, although such aliens may be released on
parole in limited circumstances, consistent with the statutory standard
set forth in 8 U.S.C. 1182(d)(5) and standards set forth in the
regulations. Section 236 of the INA, 8 U.S.C. 1226, provides the
authority to arrest and detain an alien pending a decision on whether
the alien is to be removed from the United States, and section 241, 8
U.S.C. 1231, authorizes the detention of aliens during the period
following the issuance of a final order of removal. Other provisions of
the INA also mandate detention of certain classes of individuals, such
as criminal aliens.
b. Homeland Security Act of 2002
As noted, the HSA, Public Law 107-296, 116 Stat. 2135, transferred
most of the functions of the INS from DOJ to the newly-created DHS. DHS
and its various components are responsible for border security,
interior immigration enforcement, and immigration benefits
adjudication, among other duties. DOJ's EOIR retained its pre-existing
functions relating to the immigration and naturalization of aliens,
including conducting removal proceedings and adjudicating defensive
filings of asylum claims.
The functions regarding care of UACs were transferred from the INS
to ORR. The HSA states ORR shall be responsible to coordinate and
implement the care and placement of UACs who are in Federal custody by
reason of their immigration status. ORR was also tasked with
identifying a sufficient number of qualified individuals, entities, and
facilities to house UACs, and with ensuring that the interests of the
child are considered in decisions and actions relating to his or her
care and custody.
c. William Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008
Section 235 of the William Wilberforce Trafficking Victims
Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457,
Title II, Subtitle D, 122 Stat. 5044 (codified in principal part at 8
U.S.C. 1232), then stated that consistent with the HSA, and except as
otherwise provided with respect to certain UAC from contiguous
countries (see 8 U.S.C. 1232(a)), the care and custody of all UAC,
including responsibility for their detention, where appropriate, shall
be the responsibility of HHS. The TVPRA, among other things, requires
federal agencies to notify HHS within 48 hours of apprehending or
discovering a UAC, or receiving a claim or having suspicion that an
alien in their custody is an unaccompanied minor under 18 years of age.
8 U.S.C. 1232(b)(2). The TVPRA further requires that, absent
exceptional circumstances, any federal agency transfer a UAC to the
care and custody of HHS within 72 hours of determining that an alien in
its custody is a UAC. 8 U.S.C. 1232(b)(3).
The Secretary of HHS delegated the authority under the TVPRA to the
[[Page 45491]]
Assistant Secretary for Children and Families, 74 FR 14564 (2009), who
in turn delegated the authority to the ORR Director, 74 FR 1232 (2009).
2. Flores Settlement Agreement Implementation
As discussed above, in 1996 the U.S. Government and Flores
plaintiffs entered into the FSA to resolve nationwide the ongoing
litigation concerning the INS's detention regulations for alien minors.
The FSA was executed on behalf of the Government on September 16, 1996.
The U.S. District Court for the Central District of California approved
the FSA on January 28, 1997. The FSA became effective upon its approval
by the district court, and provided for continued oversight by that
court.
Paragraph 9 of the FSA explains its purpose: To establish a
``nationwide policy for the detention, release, and treatment of minors
in the custody of the INS.'' Paragraph 4 defines a ``minor'' as ``any
person under the age of eighteen (18) years who is detained in the
legal custody of the INS,'' but the definition excludes minors who have
been emancipated or incarcerated due to a criminal conviction as an
adult. The FSA established procedures and conditions for processing,
transportation, and detention following apprehension, and set forth the
procedures and practices that the parties agreed should govern the
INS's discretionary decisions to release or detain minors and to whom
they should or may be released.
The FSA was originally set to expire within five years, but on
December 7, 2001, the Parties agreed to a termination date of ``45 days
following defendants' publication of final regulations implementing
this Agreement.'' A copy of the FSA and the 2001 Stipulation is
available in the docket for this rulemaking. The primary purpose of the
regulations is to ``implement[] the Agreement,'' and in turn to
terminate the FSA.
3. Recent Court Orders
a. Motion To Enforce I
On January 26, 2004, Plaintiffs filed their first motion to enforce
the agreement, alleging, among other things, that CBP and ICE: (1)
Regularly failed to release class members \3\ to caregivers other than
parents when parents refuse to appear; (2) routinely failed to place
detained class members in the least restrictive setting; (3) failed to
provide class members adequate education and mental health services,
and (4) exposed class members to dangerous and unhealthy conditions.
Ultimately, after a lengthy discovery process in which the government
provided Plaintiffs numerous documents related to the government's
compliance with the FSA, Plaintiffs filed a Notice of Withdrawal of
Motion to Enforce Settlement on November 14, 2005. The court dismissed
the matter on May 10, 2006.
---------------------------------------------------------------------------
\3\ In this context, ``class members'' means minors (as defined
in the FSA), including both UACs and accompanied minors.
---------------------------------------------------------------------------
b. Motion To Enforce II
On February 2, 2015, Plaintiffs filed a second motion to enforce
the agreement, alleging that CBP and ICE were in violation of the FSA
because: (1) ICE's supposed no-release policy--i.e., an alleged policy
of detaining all female-headed families, including children, for as
long as it takes to determine whether they are entitled to remain in
the United States--violated the FSA; (2) ICE's routine confinement of
class members in secure, unlicensed facilities breached the Agreement;
and (3) CBP exposed class members to harsh and substandard conditions,
in violation of the Agreement.
On July 24, 2015, the district court granted Plaintiffs' second
motion to enforce and denied Defendant DHS's contemporaneous motion to
modify the agreement. Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal.
2015). The court found: (1) The FSA applied to all alien minors in
government custody, including those accompanied by their parents or
legal guardians; (2) ICE's blanket no-release policy with respect to
minors accompanied by their mothers was a material breach of the FSA;
(3) the FSA requires Defendant DHS to release minors with their
accompanying parent or legal guardian unless this would create a
significant flight risk or a safety risk; (4) DHS housing minors in
secure and non-licensed FRCs violated the FSA; and (5) CBP violated the
FSA by holding minors and UACs in facilities that were not safe and
sanitary. Id.
On August 21, 2015, the court denied the Government's motion to
reconsider and issued a subsequent remedial order for DHS to implement
six remedies. Flores v. Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015). In
the decision, the court clarified that, as provided in FSA paragraph
12(A), in the event of an emergency or influx, DHS need not transfer
minors to a ``licensed program'' pursuant to the 3- and 5-day
requirements of paragraph 12(A), but must transfer such minors ``as
expeditiously as possible.'' In the decision, the court referenced the
Government's assertion that DHS, on average, would detain minors who
are not UACs for 20 days--the general length of time required to
complete credible and reasonable fear processing at that time for
aliens in expedited removal. The court agreed that if 20 days was ``as
fast as [the Government] . . . can possibly go,'' the Government's
practice of holding accompanied minors in its FRCs, even if not
``licensed'' and ``non-secure'' per FSA paragraph 19, may be within the
parameters of FSA paragraph 12(A). Id. at 914. In a decision issued on
July 6, 2016, the Ninth Circuit agreed with the district court that
during an emergency or influx, minors must be transferred ``as
expeditiously as possible'' to a non-secure, licensed facility. Flores
v. Lynch, 828 F.3d. 898, 902-03 (9th Cir. 2016). The Ninth Circuit
affirmed the district court's holding that the FSA ``unambiguously''
applies to all alien minors and UACs in government custody \4\ and
concluded the district court did not abuse its discretion in denying
the Government's motion to modify the FSA. The Ninth Circuit, however,
reversed the district court's determination that the FSA required the
release of accompanying parents. Id.
---------------------------------------------------------------------------
\4\ DHS continues to maintain that the terms of the FSA were
intended to apply only to those alien children who were
unaccompanied. In its brief opposing the Plaintiffs' Motion to
Enforce II, DHS pointed out that the FSA was entered into for the
purpose of settling a lawsuit challenging the constitutionality of
the Government's policies, practices, and regulations regarding the
detention and release of unaccompanied minors. See Def.'s Resp. in
Opp'n to Mot. To Enforce Settlement of Class Action at 11, Flores v.
Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015) (No. CV 58-4544). This
proposed rule, however, covers both accompanied and unaccompanied
minors.
---------------------------------------------------------------------------
c. Motion To Enforce III
On May 17, 2016, plaintiffs filed a third motion to enforce the
agreement, claiming that DHS continued to violate the agreement by: (1)
Holding class members in CBP facilities that did not meet the
requirements of the FSA; (2) failing to advise class members of their
rights under the FSA; (3) making no efforts to release or reunify class
members with family members; (4) holding class members routinely with
unrelated adults; (5) detaining class members for weeks or months in
secure, unlicensed facilities in violation of the FSA; and (6)
interfering with class members' right to counsel. The Government filed
a response on June 3, 2016.
On June 27, 2017, the district court issued an opinion concluding
that ICE had not complied with the FSA because it had failed to advise
class members of their rights under the FSA, failed to make continuous
efforts to release class
[[Page 45492]]
members, and failed to release class members as required by FSA
paragraphs 12(A) and 14. The Court also found that FRCs were unlicensed
and secure. Flores v. Sessions, No. 2:85-cv-04544 (C.D. Cal. June 27,
2017). The district court, however, rejected the claims that ICE had
impermissibly detained class members with unrelated adults and
interfered with class members' right to counsel.
The district court also concluded that CBP acted in violation of
the FSA in the Rio Grande Valley Border Patrol Sector. The court
pointed to allegations that CBP failed to provide class members
adequate access to food and water, detained class members in conditions
that were not safe and sanitary, and failed to keep the temperature of
the holding cells within a reasonable range. The court ordered the
appointment of a Juvenile Coordinator for ICE and CBP, responsible for
monitoring the agencies' compliance with the Agreement. The
Government's appeal of that decision remains pending. See Flores v.
Sessions, No. 17-56297 (9th Cir.) (docketed Aug. 28, 2017). On July 27,
2018, the district court ordered the appointment of an independent
monitor to oversee compliance with the June 27, 2017 Order.
d. Motion To Enforce IV
On August 12, 2016, Plaintiffs filed a fourth motion to enforce the
agreement, claiming that ORR violated the agreement by failing to
provide UACs in ORR custody with a bond redetermination hearing by an
immigration judge. The Government argued that the HSA and the TVPRA
effectively superseded the FSA's bond-hearing requirement with respect
to UACs, that only HHS could determine the suitability of a sponsor
(thus determining release), and that immigration judges lacked
jurisdiction over UACs in ORR custody. The district court agreed that
only HHS could determine the suitability of a sponsor, but disagreed
that subsequent laws fully superseded the FSA.
On January 20, 2017, the court found that HHS breached the FSA by
denying UACs the right to a bond hearing as provided for in the FSA.
Flores v. Lynch, No. 2:85-cv-04544, 2017 WL 6049373 (C.D. Cal. Jan. 20,
2017). The Government appealed to the Ninth Circuit. On July 5, 2017,
the Ninth Circuit affirmed the district court's ruling. The Ninth
Circuit reasoned that if Congress had intended to terminate the
settlement agreement in whole or in part through passage of the HSA or
TVPRA, it would have said so specifically. Flores v. Sessions, 862 F.3d
863 (9th Cir. 2017). The Government did not seek further review of this
decision.
e. Motion To Enforce V
On April 16, 2018, Plaintiffs filed a fifth motion to enforce the
agreement, claiming ORR unlawfully denied class members licensed
placements, unlawfully medicated youth without parental authorization,
and peremptorily extended minors' detention on suspicion that available
custodians may be unfit. On July 30, 2018, the district court issued an
Order. Flores v. Sessions, 2:85-cv-04544-DMG-AGR (ECF No. 470, Jul. 30,
2018).\5\ The Order discussed the Shiloh Residential Treatment Center
and placement therein, as well as informed consent for psychotropic
drugs in such Center; placement in secure facilities; notice of
placement in secure and staff-secure facilities; Director-level review
of children previously placed in secure or staff-secure facilities and
other issues. Readers should refer to the full Order for details.
---------------------------------------------------------------------------
\5\ The Department of Justice has not yet decided whether to
appeal the July 30 order.
---------------------------------------------------------------------------
f. Motion for Relief
On June 21, 2018, in accordance with the President's June 20, 2018,
Executive Order ``Affording Congress an Opportunity to Address Family
Separation,'' the Government sought limited emergency relief from two
provisions of the FSA--the release provision of Paragraph 14, as well
as the licensing requirements of Paragraph 19. This relief was sought
in order to permit DHS to detain alien family units together for the
pendency of their immigration proceedings. The court denied this motion
on July 9, 2018.
This Motion to Modify sought relief consistent with this proposed
rule, although this rule includes some affirmative proposals (like the
federal-licensing regime) that were not at issue in that motion. For
example, as discussed below, by creating a federal licensing scheme for
FRCs, the proposed rule would eliminate a barrier to keeping family
units in detention during their immigration proceedings, consistent
with all applicable law while still providing similar substantive
protections to minors.\6\
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\6\ At the time of the publication of this proposed rule, the
issue of family separation and reunification is the subject of
litigation in multiple jurisdictions. This proposed rule is not
intended to directly address matters related to that litigation. A
significant purpose of the proposed rule with regard to accompanied
minors is to allow decisions regarding the detention of families to
be made together as a unit, under a single legal regime, and without
having a disparate legal regime applicable to the parent versus the
child.
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C. Basis and Purpose of Regulatory Action
1. Need for Regulations Implementing the Relevant and Substantive Terms
of the FSA
Under the requirements of the FSA, when DHS apprehends an alien
parent or legal guardian with his or her child(ren) either illegally
entering the United States between the ports of entry or found
inadmissible at a port of entry, it has, following initiation of
removal proceedings, three primary options for purposes of immigration
custody: (1) Parole all family members into the United States; (2)
detain the parent(s) or legal guardian(s) and either release the
juvenile to another parent or legal guardian or transfer them to HHS to
be treated as an UAC; or (3) detain the family unit together by placing
them at an appropriate FRC during their immigration proceedings. The
practical implications of the FSA, including the lack of state
licensing for FRCs, have effectively prevented the Government from
using the third option for more than a limited period of time. This
rule would, when finalized, eliminate that barrier and allow for the
full range of options at each stage of proceedings.
On June 20, 2018, the President issued Executive Order 13841
specifying that ``[i]t is . . . the policy of this Administration to
maintain family unity, including by detaining alien families together
where appropriate and consistent with law and available resources.''
E.O. 13841 sec. 1, 83 FR 29435. The President further provided that the
Secretary of Homeland Security (Secretary), shall, to the extent
permitted by law and subject to the availability of appropriations,
maintain custody of alien families during the pendency of any . . .
immigration proceedings involving their members.'' Id. sec. 3. The
President further directed agency components to make available
additional facilities for housing families. Id. sec. 3(c), (d). And the
President provided that the Attorney General ``shall, to the extent
practicable, prioritize the adjudication of cases involving detained
families.'' Id. sec. 4.
There are several advantages to maintaining family unity during
immigration proceedings. Those include the interest in the child being
with and under the considerate care of the parent, the strong interest
parents have in caring for their children, the guidance parents can
provide to children during immigration proceedings and the manner in
which keeping families together facilitates communications among family
members, the consolidation of the family members'
[[Page 45493]]
removal proceedings, and to facilitate the physical removal of a family
together as a unit if immigration relief is unavailable. But the
practical implications of the FSA, and in particular the lack of state
licensing for FRCs and the release requirements for minors, have
effectively prevented the Government from using family detention for
more than a limited period of time, and in turn often led to the
release of families. That combination of factors may create a powerful
incentive for adults to bring juveniles on the dangerous journey to the
United States and then put them in further danger by illegally crossing
the United States border--in the hope, whether correct or not, that
having a juvenile will result in an immediate release into the United
States. At the same time, the second choice--that of separating family
members so the adult may be held in detention pending immigration
proceedings--is to be avoided when possible, and has generated
significant litigation. See Ms. L v. ICE, No. 18-428 (S.D. Cal.).
This rule serves to clear the way for the sensible use of family
residential centers when it is lawful and appropriate. In particular,
it would create a federal licensing process to resolve the current
problem caused by a state-licensing requirement that is ill-suited to
family detention, and it would allow for compatible treatment of a
family unit in immigration custody and proceedings by eliminating
barriers to that compatibility imposed by the FSA. Further, it would
eliminate the disparate legal regime that currently applies to
decisions to detain a family unit, with one regime applying to the
minor (the FSA, including the state-licensing requirement and release
provisions under FSA paragraph 14) and another regime applying to the
parent (the existing statutes and regulations governing release on bond
or parole under the relevant circumstances). That disparate regime
creates problems for maintaining family unity while also enforcing the
immigration laws. Instead, the proposed rule would ensure that a single
regime applies to the family unit, namely, the existing statutes and
regulations governing release on bond or parole.
This rule would allow for detention at FRCs for the pendency of
immigration proceedings (subject to all applicable statutes and
regulations governing their detention or release) in order to permit
families to be detained together and parents not be separated from
their children. It is important that family detention be a viable
option not only for the numerous benefits that family unity provides
for both the family and the administration of the INA, but also due to
the significant and ongoing influx of adults who have made the choice
to enter the United States illegally with juveniles or make the
dangerous overland journey to the border with juveniles, a practice
that puts juveniles at significant risk of harm. The expectation that
adults with juveniles will remain in the United States outside of
immigration detention may incentivize these risky practices.
In the summer of 2014, an unprecedented number of family units from
Central America illegally entered or were found inadmissible to the
United States. In Fiscal Year 2013, the total number of family units
apprehended entering the United States illegally on the Southwest
Border was 14,855. By Fiscal Year 2014, that figure had increased to
68,445. See https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP%20Total%20Monthly%20Family%20Units%20by%20Sector%2C%20FY13-FY17.pdf.
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\7\ See https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP%20Total%20Monthly%20Family%20Units%20by%20Sector%2C%20FY13-FY17.pdf (last visited August 17, 2018) See also https://www.cbp.gov/newsroom/stats/sw-border-migration (last visited August
17, 2018).
Table 1--Family Unit Apprehensions at the Southwest Border by Fiscal
Year 7
------------------------------------------------------------------------
Family unit
apprehensions
Fiscal Year at the
Southwest
Border
------------------------------------------------------------------------
2013.................................................... 14,855
2014.................................................... 68,445
2015.................................................... 39,838
2016.................................................... 77,674
2017.................................................... 75,622
2018 *.................................................. 77,802
------------------------------------------------------------------------
* Partial year data for FY 2018; does not include August and September.
Prior to 2014, the only option available to the Government for the
large majority of family units entering the United States was the first
option described above--i.e., to issue the family a Notice to Appear
and release the alien family to temporarily remain in the United States
pending their removal proceedings. Thus, when an unprecedented number
of families decided to undertake the dangerous journey to the United
States in 2014, DHS officials faced an urgent humanitarian situation.
DHS encountered numerous alien families and juveniles who were hungry,
thirsty, exhausted, scared, vulnerable, and at times in need of medical
attention, with some also having been beaten, starved, sexually
assaulted or worse during their journey to the United States.
DHS mounted a multi-pronged response to this situation. As one part
of this response, DHS placed families at existing FRCs and oversaw the
construction of appropriate facilities to detain family units together,
in a safe and humane environment, during the pendency of their
immigration proceedings, which typically involved expedited removal.
Although it is difficult to definitively prove a causal link given the
many factors that influence migration, DHS's assessment is that this
change helped stem the border crisis, as it correlated with a
significant drop in family migration: Family unit apprehensions on the
Southwest Border dropped from 68,445 in Fiscal Year 2014 to 39,838 in
Fiscal Year 2015.
Although the border crisis prompted DHS to hold family units
together, DHS quickly faced legal challenges asserting that the FSA
applied to accompanied minors and that family detention did not comply
with the provisions of the FSA. In July 2015, a federal court rejected
the Government's interpretation of the FSA to permit family residential
centers, and declined to modify the FSA to allow DHS to address this
significant influx of family units crossing the border and permit
family detention. See Flores v. Lynch, 828 F.3d 898, 909-10 (9th Cir.
2016). The Government had explained to the court that doing so would
``mak[e] it impossible for ICE to house families at ICE [FRCs], and to
instead require ICE to separate accompanied children from their parents
or legal guardians.'' Flores v. Lynch, No. 85-4544, Defendants'
Opposition to Motion to Enforce, ECF 121 at 17 (C.D. Cal. Feb. 27,
2015).
When the FSA was found to apply to accompanied minors--an
interpretation with which the Government continues to disagree--the
agencies faced new practical problems. The FSA requires DHS to transfer
minors to a non-secure, licensed facility ``as expeditiously as
possible,'' and further provides that a ``licensed'' facility is one
that is ``licensed by a State agency.'' FSA paragraphs 6, 12(A). That
prompted significant and ongoing litigation regarding the ability to
obtain state licensing of FRCs, as many States did not have, and have
not succeeded in putting in place, licensing schemes governing
facilities that hold family units together. That litigation severely
limited the ability to maintain detention of families together. Again,
although it
[[Page 45494]]
is difficult to definitively prove the causal link, DHS's assessment is
that the link is real, as those limitations correlated with a sharp
increase in family migration: The number of family unit apprehensions
by CBP again spiked--from 39,838 in Fiscal Year 2015 to the highest
level ever, 77,674 in Fiscal Year 2016. The number of such
apprehensions along the Southwest Border has continued to rise, and has
now reached 77,802 in Fiscal Year 2018, with two months remaining in
the fiscal year and a rate of nearly 10,000 per month for the past four
months. See Southwest Border Migration 2018, https://www.cbp.gov/newsroom/stats/sw-border-migration.
As long as the licensing must come from a state specifically
(rather than from the federal government), DHS's ability to effectively
use family detention is limited. A federal program (especially
immigration enforcement) that the Constitution and Congress commit to
federal discretion should not depend on state licensing, particularly
when a well-established state licensing scheme does not already exist.
In order to avoid separating family units, DHS needs to release adult
family members in cases where detention would otherwise be mandatory
and DHS determines parole is not appropriate, or in cases where DHS
and/or immigration courts believe detention of the parent is needed to
ensure appearance at future removal proceedings or to prevent danger to
the community.\8\ Because of ongoing litigation concerning state
licensure for FRCs, ICE rarely is able to hold family units for longer
than approximately 20 days. The result is that many families are
released in the interior of the United States. While statistics
specific to family units have not been compiled, the reality is that a
significant number of aliens who are not in detention either fail to
appear at the required proceedings or never actually seek asylum
relief, thus remaining illegally in the United States. See https://www.justice.gov/eoir/file/1083096/download (in FY 2018 to date, 26
percent of case completions for individual case completions are in
absentia orders, and 53 percent of case completions for unaccompanied
minors are in absentia orders).
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\8\ Current parole regulations address parole, including for
juveniles in custody as well as parole for aliens subject to
expedited removal. See 8 CFR 212.5(b)(3) (parole for juveniles); 8
CFR 235.3(b)(2)(iii), (b)(4)(ii) (limiting parole for those in
expedited removal proceedings). While DHS proposes amendments to
section 212.5(b) as a part of this regulation, this regulation is
not intended to address or alter the standards contained in sections
212.5(b) or 235.3(b). To the extent that paragraph 14 of the FSA has
been interpreted to require application of the juvenile parole
regulation to release during expedited removal proceedings, see
Flores v. Sessions, Order at 23-27 (June 27, 2017), this regulation
is intended to permit detention in FRCs in lieu of release (except
where parole is appropriate under 8 CFR 235.3(b)(2)(iii) or
(b)(4)(ii)) in order to avoid the need to separate or release
families in these circumstances.
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As described above, there have been several important changes in
law and circumstance since FSA was executed: (1) A significantly
changed agency structure addressing the care and custody of juveniles,
including the development of FRCs that provide appropriate treatment
for minors while allowing them to be held together with their families;
(2) a new statutory framework that governs the treatment of UACs; (3)
significant increases in the number of families and UACs crossing the
border since 1997, thus affecting immigration enforcement priorities
and national security; and (4) further recognition of the importance of
keeping families together during immigration proceedings when
appropriate and the legal and practical implications of not providing
uniform proceedings for family units in these circumstances. The
agencies have thus determined that it is necessary to put into place
regulations that comply with the relevant and substantive terms of the
FSA regarding the conditions for custodial settings for minors, but,
through federal licensing, will provide the flexibility necessary to
protect the public safety and enforce the immigration laws given
current challenges that did not exist when the FSA was executed. This
proposed rule will provide DHS with the option of keeping families who
must or should be detained together at appropriately licensed FRCs for
the time needed to complete immigration proceedings, subject to the
sound implementation of existing statutes and regulations governing
release on parole or bond.
2. Purpose of the Regulations
The primary purpose of this action is to promulgate regulations
that would ultimately lead to the termination of the FSA, as provided
for in FSA paragraph 40. This proposed rule would implement the
relevant and substantive terms of the FSA and provisions of the HSA and
TVPRA where they necessarily intersect with the FSA's provisions. The
rule would also make some modifications to the literal text of the FSA,
but while providing similar substantive protections to juveniles. For
example, the rule would allow for detention of families together in
federally-licensed programs (rather than facilities licensed
specifically by a state). States generally do not have licensing
schemes for family residential centers. Thus, the literal text of the
FSA currently imposes a limitation on DHS's ability to detain family
units together in a FRC during their immigration proceedings,
consistent with applicable law. The federal licensing scheme in turn
would provide similar substantive protections regarding the conditions
of such facilities, and thus implement the underlying purpose of the
state-licensing requirement.
This rule is proposed under the FSA's guiding principle that the
Government treats, and shall continue to treat, all juveniles in its
custody with dignity, respect, and special concern for their particular
vulnerability as minors.
The current DHS regulations on the detention and release of aliens
under the age of 18 found at 8 CFR 236.3 have not been substantively
updated since their promulgation in 1988.\9\ DHS therefore proposes to
revise 8 CFR 236.3 to promulgate the relevant and substantive terms of
the FSA as regulations. In addition, there are currently no HHS
regulations on this topic. HHS proposes a new 45 CFR part 410 for the
same reason.
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\9\ See Detention and Release of Juveniles, 53 FR 17449 (May 17,
1998). When published as a final rule, the provisions applying to
the detention and release of juveniles were originally placed in 8
CFR 242.24. After Congress passed IIRIRA, the former INS published a
final rule updating several immigration-related provisions of the
CFR and moved these provisions from section 242.24 of Title 8 to
Sec. 236.3. See Inspection and Expedited Removal of Aliens;
Detention and Removal of Aliens; Conduct of Removal Proceedings;
Asylum proceedings, 62 FR 10312 (Mar. 6, 1997).
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As noted, the proposed regulations would implement the relevant and
substantive terms of the FSA and related statutory provisions. Separate
from the FSA, DHS has over time developed various policies and other
sub-regulatory documents that address issues related to DHS custody of
minor aliens and UACs.\10\ In considering these proposed regulations,
DHS reviewed such policies, and determined that the proposed
regulations are compatible with them. Current policies on the
detention, apprehension, and transportation of minors and UACs
generally would not, therefore, need to be altered to bring them into
conformity with the proposed rule. This rule is not, however, intended
to displace or otherwise codify such policies and procedures.
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\10\ See, e.g., ICE, Family Residential Standards, https://www.ice.gov/detention-standards/family-residential (last visited May
1, 2018); CBP, National Standards on Transport, Escort, Detention,
and Search (Oct. 2015), https://www.cbp.gov/sites/default/files/assets/documents/2017-Sep/CBP%20TEDS%20Policy%20Oct2015.pdf (last
visited May 1, 2018).
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Finally, this proposed rule excludes those provisions of the FSA
that are
[[Page 45495]]
relevant solely by virtue of the FSA's existence as a settlement
agreement. For instance, the FSA contains a number of special
provisions that relate specifically to class counsel and the
supervising court with respect to the Departments' compliance with the
FSA. Following termination of the FSA, such provisions will no longer
be necessary, because compliance with the published regulations will
replace compliance with the settlement agreement. As a result, they are
not included in this proposed rule.\11\
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\11\ For instance, paragraphs 32(A), (B), and (D), and 33 of the
FSA grants Flores class counsel special access to covered minors and
to certain facilities that hold such minors; it is unnecessary to
codify these provisions in regulation. Similarly, paragraphs 29 to
31 include special reporting requirements with respect to class
counsel and the supervising court; reporting to these entities would
be unnecessary following termination of the FSA.
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V. Discussion of Elements of the Proposed Rule
As stated above, the purpose of this rule is to terminate the FSA
by to promulgating regulations that implement it, with minor
modifications to reflect changes in governing law and the operational
realities on the ground. These proposed regulations, therefore, largely
replicate the language of the FSA for publication in the Code of
Federal Regulations. The Departments propose some modifications to the
literal text of the FSA, however, to ensure the Government continues to
comply with the underlying goals of the FSA in a legal and operational
environment that has significantly changed since the FSA was signed
over 20 years ago.
The Departments have different responsibilities vis-[agrave]-vis
implementation of the FSA, and so each Department's proposed regulatory
text seeks to address these various responsibilities. DHS's proposed
regulations seek to establish procedures for the apprehension,
processing, care, custody, and release of alien minors, consistent with
its obligations under the FSA. While the following sections explain why
the proposed regulations do not adopt the literal text of the FSA in
certain circumstances, one notable change is the proposal for an
alternative licensing process that would allow FRCs to be considered
``licensed programs'' under FSA paragraph 6, and thus suitable for the
detention of non-UAC minors, along with their accompanying parents or
legal guardians, for longer periods of time than they are currently
used. DHS proposes these changes to allow the Department to fully and
consistently apply the law to all aliens who are subject to detention,
so that aliens do not have the opportunity to abscond from DHS custody
simply because they were encountered with children.
HHS's proposed regulations seek to establish procedures for the
processing, care, custody, and release of certain UACs that by law are
subject to the care and custody of ORR.
A. DHS Regulations
DHS proposes to make edits to current section 212.5 primarily to
ensure that the terminology used in that section is consistent with the
language used in the additional proposed amendments codifying the FSA,
explained below. DHS proposes to remove the term ``juvenile'' from 8
CFR 212.5(b) and replace it with ``minor in DHS custody,'' as the
proposed amendments to 8 CFR 236.3 remove the term ``juvenile,'' from
its definitions section.
DHS also proposes to remove the words ``relative,'' ``brother,''
``sister,'' ``aunt,'' ``uncle,'' ``or grandparent,'' and replace these
terms with ``parent or legal guardian.'' Given that, pursuant to the
HSA and TVPRA, DHS does not have the legal authority to release a
juvenile in its custody to anyone other than a parent or legal
guardian,\12\ allowing these terms to remain in the regulatory text
improperly implies that DHS will engage in an activity not authorized
by statute, i.e. releasing a minor on parole into the custody of
someone other than a parent or legal guardian. Further, DHS is
proposing to remove paragraph (b)(3)(iii) in its entirety due to the
same constraints on its legal authority to release minors to
individuals who are not parents or legal guardians. DHS is also
proposing to replace the term ``Director, Deportation and Removal,''
with ``Executive Assistant Director, Enforcement and Removal
Operations,'' to reflect the current title of the position used within
DHS.
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\12\ See further explanation infra under discussion of proposed
236.3(g), including note 20.
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DHS is also proposing to remove the cross-reference to section
235.3(b) as it currently appears in section 212.5(b), to eliminate an
ambiguity and to codify its longstanding understanding of how certain
provisions in section 235.3(b) relating to parole of aliens in
expedited removal proceedings apply to minors. In particular,
eliminating that cross reference would make it clear that the
provisions in section 235.3(b) governing parole of an aliens in
expedited removal apply to all such aliens, and not merely adults. The
current cross-reference to section 235.3(b) is confusing, however,
because it suggests that the more flexible standard in section 212.5(b)
might override those provisions when a minor is in expedited removal.
DHS disagrees with that interpretation of its current regulations,
which, among other things, is in tension with the text of the relevant
statutory provision. See 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (``Any alien
subject to [expedited removal] shall be detained pending a final
determination of credible fear of persecution and, if found not to have
such a fear, until removed.''). DHS is accordingly amending section
212.5(b) to codify its understanding and to eliminate the ambiguity and
any potential tension with the statute. This change is discussed more
fully below.'' DHS proposes to revise its current regulations on the
detention and release of minor aliens by replacing section 236.3 in its
entirety. Proposed paragraph 236.3(a)(1) codifies the FSA's general
policy statement, found in paragraph 11 of the FSA, that minors and
UACs in DHS custody shall be treated with dignity, respect, and special
concern for their particular vulnerability.
Current section 236.3 on the ``Detention and release of juveniles''
is silent with respect to whether its provisions apply to aliens
detained under mandatory or discretionary legal authorities. This
distinction is often meaningful in immigration law because the
authority under which aliens are detained may dictate which regulations
apply to those detained aliens. However, the FSA does not distinguish
the applicability of its provisions as between aliens held under
mandatory or discretionary legal authorities. Proposed Sec.
236.3(a)(2), therefore, provides that the provisions of the section
apply equally to those minors who are subject to mandatory detention as
those subject to discretionary detention, to the extent authorized by
law.
Proposed 8 CFR 236.3(b)--Definitions
The current regulations at section 236.3(a) contain a single
definition of the term ``juvenile,'' which is defined as any alien
under the age of 18. The FSA does not use the term ``juvenile,'' but it
contains several other terms of art that must be defined in DHS
regulations to parallel the terms of the agreement. This proposed rule,
therefore, removes the term ``juvenile'' from the definitions in
section 236.3 and adds several other definitions that are either
explicitly written into the FSA or are necessary to understanding the
FSA's provisions, given the changes in law that have occurred since the
FSA's signing.
Minor and UAC. Proposed Sec. 236.3(b) removes the definition of
``juvenile,'' because the term, defined as any alien under the age of
18, is too broad to be
[[Page 45496]]
a useful definition for the purposes of this proposed rule. Instead,
proposed Sec. 236.3(b) replaces the term ``juvenile'' with two
definitions: ``minor,'' as it is defined in the FSA, and unaccompanied
alien child (UAC), as it is defined in 6 U.S.C. 279(g)(2). The
distinction between these two groups of juveniles became legally
relevant for DHS's actions because the TVPRA authorizes only ORR to be
responsible for the care and custody of UACs. See 6 U.S.C. 279(b)(1); 8
U.S.C. 1232(b)(1).
The definitions of minor and UAC are not mutually exclusive,
because although most UACs will also meet the definition of minor, some
will not. For instance, an alien juvenile who has been legally
emancipated does not meet the definition of a minor as set out in the
FSA, so the provisions of this proposed rule would not apply to that
juvenile. The definition of UAC, however, does not exclude emancipated
juveniles. Thus, if an immigration officer encounters any alien
juvenile (regardless of whether such juvenile has been emancipated) who
has no lawful immigration status, has not attained 18 years of age, and
has no parent or legal guardian present in the United States or no
parent or legal guardian is available to provide care and physical
custody for that juvenile, the juvenile meets the definition of a UAC,
and the immigration officer must transfer the juvenile to HHS as set
forth under this rule. While the proposed rule does not include a
definition of juvenile, this preamble uses the term juvenile to mean
any alien under the age of 18.
Emergency and Influx. The FSA also includes definitions of
``emergency'' and ``influx,'' to explain the circumstances under which
the FSA permits the Government more than three or five days to transfer
juveniles to licensed programs. The proposed rule would add definitions
of both ``emergency'' and ``influx'' to the regulations in the
definitions section at 236.3(b), capturing the relevant and substantive
terms of paragraph 12(B) of the FSA. The proposed definition of
emergency largely tracks the existing text of the FSA, except that it
reflects DHS's recognition that emergencies may not only delay
placement of minors, but could also delay compliance with other
provisions of this proposed rule, or excuse noncompliance on a
temporary basis. For example, access to a snack or meal may be delayed
if a minor is being transported from a facility in the path of a major
hurricane to another facility in a safer location and that
transportation happens during a time when the minor would have access
to a snack or meal. Once at a safe location or the emergency otherwise
abates, the schedule would return to normal for those minors. Under
current procedures, the disruption of the scheduled items due to the
emergency, and the cause of the delay, would be noted in the applicable
system of records for those minors who were impacted.
The impact, severity, and timing of a given emergency situation
dictate the operational feasibility of providing certain items to
minors, and thus the regulations cannot contain every possible reality
DHS will face. Thus, the definition of ``emergency'' is flexible and
designed to cover a wide range of possible emergencies.
The FSA defines an influx as a situation where legacy ``INS has, at
any given time, more than 130 minors eligible for placement in a
licensed program under Paragraph 19, including those who have been so
placed or are awaiting such placement.'' Accordingly, as proposed, DHS
would adopt this definition of ``influx'' without change, except to
reflect the transfer of responsibilities from legacy INS to DHS and
ORR, and to reflect that DHS maintains custody of minors, as defined in
this section, and, for the short period pending their transfer to ORR,
UACs.
However, DHS regularly has more than 130 minors and UACs in custody
who are eligible for placement in a licensed program, and for years has
been operating at the current FSA definition of ``influx.'' DHS
nonetheless believes that this defined term continues to be useful in
the context in which it is used. As reflected in the discussion of
proposed Sec. 236.3(e) below, the main implication of the threshold
for an ``influx'' is that in general, under the FSA, DHS is required to
transfer non-UAC minors to licensed facilities ``as expeditiously as
possible'' rather than within either a 3- or a 5-day timeframe, because
DHS is currently operating under an influx. Notably, the FSA's transfer
timeframes no longer control for DHS operations with respect to UACs--
the TVPRA requires that UACs be transferred out of DHS custody within
72 hours of determining that the alien is a UAC, absent exceptional
circumstances. As a result, although the number of UACs in custody
could impact whether DHS is operating under an ``influx,'' the transfer
of UACs to ORR remains governed by the requirements of the TVPRA at all
times. Given current operational realities, the ``as expeditiously as
possible'' timeframe contained in the FSA remains appropriate and
consistent with DHS's goal to expeditiously transfer minors who are not
UACs. DHS also notes that even under this standard, i.e., even in
current ``influx'' conditions, CBP generally transfers minors who are
not UACs out of its facilities within 3 to 5 days.
DHS nonetheless welcomes public comment on whether it would be
appropriate to revise the definition of influx to better reflect
current operational realities. For instance, DHS could define an influx
as a situation in which DHS determines that significantly more minors
or UACs are awaiting transfer than facility space is available to
accommodate them, which prevents or delays timely transport or
placement of minors or impacts other conditions provided by the
regulations. This definition may effectively codify the relevant and
substantive terms of the FSA in today's context. It would also allow
for flexibility across the national operations of DHS, without imposing
a hard numerical trigger for when the definition of ``influx'' applies.
Under this option, DHS would not be operating under an ``influx'' as a
steady state, as the FSA's definition of influx currently requires;
instead, an influx would only exist when there is a significant number
of minors or UACs compared to available bed space in licensed
facilities, and that the surrounding circumstances prevent or delay the
timely transport or placement of minors or impact other conditions
provided by the regulations. A single factor alone would not trigger
such a provision.
Licensed Facility and Non-Secure. Paragraph 6 of the FSA defines
``licensed program'' as a program, agency, or organization that is
``licensed by a State agency to provide residential, group, or foster
care services for dependent children.'' Under paragraph 6, a ``licensed
program'' as used in the agreement must generally be ``non-secure,''
except in certain cases for special needs minors. The proposed rule in
section 236.3(b)(9) & (b)(11) includes definitions of ``licensed
facility'' and ``non-secure'' to conform as closely as possible to the
terms and purpose of the FSA while responding to operational realities
of ICE's temporary detention of minors. To parallel the provisions of
FSA paragraph 6, DHS is proposing that facilities that temporarily
detain minors obtain licensing where appropriate licenses are available
from a state, county, or municipality in which the facility is located.
However, most states do not offer licensing for facilities like
these FRCs, i.e., locations that house minors together with their
parents or legal guardians. And those states that have previously
offered licensing for FRCs have had their licensing schemes challenged
(and in at least one case invalidated) through
[[Page 45497]]
litigation.\13\ That has imposed a barrier to the continued use of
FRCs: It is difficult to continue to detain a family in a state-
licensed facility, so continued application of a state-licensing
requirement can effectively require DHS to release children (but not
their parents) from the FRC. The proposed rule would eliminate that
barrier to the continued use of FRCs by creating an alternative federal
licensing scheme for such detention. The goal is to provide materially
identical assurances about the conditions of confinement at that
facility, and thus to implement the underlying purpose of the FSA's
licensing requirement. It would in turn allow decisions regarding the
detention of families to be made together as a unit, under a single
legal regime (the background rules regarding detention and release),
rather than under two different regimes (one applicable to the parent
and another to the child).
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\13\ See, e.g., Grassroots Leadership, Inc. v. Tex. Dep't of
Family and Protective Servs., No. D-1-GN-15-004336 (Tex. Dist. Ct.
amended final judgment Dec. 2, 2016) (finding regulatory scheme for
FRCs invalid); Commonwealth of Pa., Dep't of Human Servs.,
Adjudication and Order, Pa. Dep't of Human Servs., Bureau of
Hearings and Appeals, BHA Docket No. 061-16-0003 (Apr. 20, 2017)
(ordering the Pennsylvania Department of Human Services to rescind
its revocation of the license for Berks).
---------------------------------------------------------------------------
Specifically, DHS proposes that if no such licensing scheme is
available in a given jurisdiction, a facility will be considered
licensed if DHS employs an outside entity to ensure that the facility
complies with family residential standards established by ICE. This
alternative licensing process is being proposed to enable DHS to house
minors together with their parents or legal guardians in FRCs, subject
to appropriate standards and oversight, even in jurisdictions in which
an applicable licensing regime is unavailable. By providing an
alternative to state licensure where such licensure is unavailable, DHS
would appropriately preserve its ability to detain minors together with
their parents or legal guardians throughout the removal process, if DHS
decides, consistent with the standards in the proposed rule and
applicable statutes and regulations, that it is necessary or
appropriate to maintain custody for more than a brief period. Moreover,
the alternative federal licensing scheme would provide effectively the
same substantive protections that the state-licensing requirement
exists to provide, and accordingly fulfill the underlying purpose of
the state-licensing requirement under the FSA. And by requiring DHS to
hire an auditor to ensure compliance with ICE's detention standards,
DHS's alternative licensing process would mirror analogous state
licensure processes for detention centers and achieve the goals of
state licensure by providing third-party oversight of a facility's
compliance with an established set of standards.
Finally, while the FSA uses the term ``non-secure,'' as a part of
the definition of a licensed program, the FSA does not define this
term. The proposed rule provides a definition of non-secure to provide
clarity on the use of this term in the immigration detention context.
Like the availability of a license for FRCs, the definition of a non-
secure facility may vary by state or locality. Accordingly, DHS
proposes that a facility will be deemed non-secure if it meets its
state's or locality's definition, but if no such definition is provided
by the state or locality, the proposed rule provides that a facility
will be deemed non-secure if it meets an alternative definition derived
from Pennsylvania's definition of secure care.\14\
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\14\ See Pa. Code 3800.5 (describing ``secure care'' as that
which is provided in a 24-hour living setting for delinquent
children from which ``voluntary egress'' is prohibited from the
building through internal or exterior locks or from the premises
through secure, perimeter fencing). DHS chose to use Pennsylvania's
definition as a starting point for this proposed definition because
of the three family residential centers (FRCs) currently in
operation, the facility located in Berks County, PA, is the longest
operating of the FRCs.
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Other definitions. The FSA also contains definitions of the terms
``special needs minor'' and ``escape-risk,'' which DHS proposes to
adopt.\15\ DHS does not propose to adopt the FSA's term ``medium
security facility'' because DHS does not maintain any medium security
facilities for the temporary detention of minors, and the definition is
now unnecessary. The proposed rule does, however, add definitions of
the terms ``custody,'' ``family unit,'' and ``family residential
center'' because the enactment of the TVPRA and current DHS detention
practices require the use of these terms to accurately describe the
requirements and processes necessary in the apprehension, processing,
care, and custody of alien juveniles.
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\15\ The FSA's definition of ``escape-risk'' allows
consideration of, inter alia, whether ``the minor has previously
absconded or attempted to abscond from INS custody.'' This proposed
rule would specifically identify absconding from any federal or
state custody as a relevant factor, not just the custody of INS or
its successor agencies. This change is consistent with the FSA,
which provides only a non-exhaustive list of considerations.
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Proposed 8 CFR 236.3(c)--Age Determination
Determining the age of an alien is not discussed in the current
regulations, but is essential for DHS to apply the appropriate
provisions of the FSA and the TVPRA to an alien in its custody.
Paragraph 13 of the FSA provides a ``reasonable person'' standard for
determining whether a detained alien is an adult or a minor. Paragraph
13 also allows medical or dental examinations by a medical
professional, or other appropriate procedures, for purposes of age
verification. Proposed 8 CFR 236.3(c) would incorporate the FSA's
``reasonable person'' standard and the FSA's standards with respect to
medical and dental examinations, and would also be consistent with the
TVPRA's standards for determining whether an alien is under or over the
age of 18. The proposed rule would add that age determinations must be
based on the totality of the evidence and circumstances.
Proposed 8 CFR 236.3(d)--Determining Whether an Alien Is a UAC
The current regulations make no distinction between UACs and other
minors. While no distinction is included in the language of the FSA,
such a distinction is made necessary by the HSA and TVPRA, as explained
above. Accordingly, proposed 8 CFR 236.3(d) would explain when DHS
makes a determination whether an alien juvenile is a UAC. Under the
proposed rule, immigration officers will make a determination of
whether an alien meets the definition of a UAC each time they encounter
the alien. Therefore, even though an alien may have been previously
determined to be a UAC, the alien may no longer meet the statutory
definition of a UAC if the alien reaches the age of 18, acquires legal
status, or if a parent or legal guardian is available in the United
States to provide care and physical custody. The proposed paragraph
also highlights that, once an alien no longer meets the definition of a
UAC, the legal protections afforded only to UACs under the law cease to
apply.
Proposed 8 CFR 236.3(e)--Transfer of Minors Who Are Not UACs From One
Facility to Another
This section of the proposed rule would address the FSA's
requirement that minors and UACs be transferred to and placed in
``licensed programs.'' Paragraph 12(A) of the FSA requires DHS to place
in a licensed program those minors who are not released. As mentioned
above, the FSA defines a licensed program as a program, agency, or
organization that is ``licensed by a State agency to provide
residential, group, or foster care services for dependent children.''
Facilities operated by licensed programs must be non-
[[Page 45498]]
secure, unless it is appropriate to house such minors in secure
detention facilities. Currently, the only non-secure facilities in
which ICE detains minors who are not UACs are the FRCs.\16\ When
appropriate, ICE places minors in FRCs together with their parents or
legal guardians until ICE can release the minor.
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\16\ The Flores district court has held that ICE FRCs are
secure; the Government has appealed that decision. See Flores v.
Sessions, No. 2:85-cv-04544 (C.D. Cal. June 27, 2017), appeal
pending, No. 17-56297 (9th Cir.) (docketed Aug. 28, 2017).
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As discussed above in connection with the proposed definition of
``licensed facility'' in proposed Sec. 236.3(b)(9), this proposed rule
would create an alternative system of regulating facilities, in lieu of
state licensure. This system would allow ICE to make decisions
regarding the detention of families together as a unit, under the
applicable legal standard, while fulfilling the goals of state
licensure by ensuring independent oversight of FRCs.
FSA paragraph 12(A) provides that legacy ``INS will transfer a
minor from a placement under this paragraph to a placement under
Paragraph 19 [i.e., a licensed program] . . . within three (3) days, if
the minor was apprehended in an INS district in which a licensed
program is located and has space available; or (ii) within five (5)
days in all other cases; except'' in certain circumstances, including
``in the event of an emergency or influx of minors into the United
States, in which case the INS shall place all minors pursuant to
Paragraph 19 as expeditiously as possible.'' As noted in the discussion
above regarding the FSA's definition of ``influx,'' DHS has
continuously been dealing with an ``influx'' of minors, as that term is
defined in the FSA. Accordingly, the proposed transfer provision in
section 236.3(e) would make ``as expeditiously as possible'' the
default for transferring minors who are not UACs to a licensed
facility, but notes that if an emergency or influx, as defined in the
regulations, does not exist, the FSA's ``default'' 3- and 5-day
timeframes apply.
The revised order of the text (i.e., making clear that in general
the ``as expeditiously as possible'' standard applies, except where an
emergency or influx does not exist) is consistent with the goal of DHS
operational offices to transfer all minors who are not UACs as
expeditiously as possible, given operational realities. This proposed
amendment adds clarity, but does not change the timeframes that have
applied with respect to non-UAC minors for two decades under the FSA.
This provision would not retain two additional exceptions to the 3-
day transfer timeframe. First, the exception at Paragraph 12(A)(2),
requiring transfer in the timeline provided by ``any court decree or
court-approved settlement,'' is not needed, as a court order would
govern in any event. Second, the exception at paragraph 12(A)(4) of the
FSA, allowing transfer within 5 days instead of 3 days in cases
involving transport from remote areas or where an alien speaks an
``unusual'' language that requires the Government to locate an
interpreter, is not included. DHS has matured its operations such that
these factors no longer materially delay transfer.
Proposed Sec. 236.3(e) would apply only to the transfer of non-UAC
minors to licensed facilities because, following passage of the TVPRA,
DHS transfers to ORR UACs who are not able to withdraw their
application for admission in accordance with that Act. See 8 U.S.C.
1232(a)-(b). Therefore, the timeline of the transfer of UACs from DHS
to HHS is governed exclusively by the TVPRA.
Finally, under the proposed rule, as under FSA paragraph 12(c), DHS
would continue to maintain a written plan describing the reasonable
efforts it will take to place all minors who are not UACs as
expeditiously as possible pursuant to FSA paragraph 12(C). (This would
include placement in a federally-licensed FRC.) CBP and ICE have
maintained such a plan through internal guidance for law enforcement
operations.
Proposed 8 CFR 236.3(f)--Transfer of UACs From DHS to ORR
The current regulations also do not address the transfer of UACs
from DHS to ORR care and custody under the TVPRA. The FSA is also
silent on this topic because the FSA does not distinguish between
minors and UACs. Given the passage of the TVPRA and its specific
requirements related to the transfer of UACs, the proposed regulations
at section 236.3(f) track the TVPRA requirements. Specifically, the
proposed regulations at section 236.3(f) prescribe procedures for
transferring UACs to the care and custody of ORR within 72 hours
(absent exceptional circumstances) of determining that an alien is a
UAC. See section 235(b)(3) of the TVPRA, 8 U.S.C. 1232(b)(3). Section
236.3(f) would also reflect the general requirement under section
235(b)(2) (8 U.S.C. 1232(b)(2)) that DHS notify ORR within 48 hours
that an apprehended individual is a UAC. While these timelines differ
from those provided in the FSA, and differ from those applicable to
minors who are not UACs, as described in paragraph 236.3(e), these
timelines implement DHS's specific requirements applicable to UACs, as
provided in the TVPRA.
Pursuant to the FSA, UACs, like accompanied minors, must be
transferred to a licensed program within the 3- and 5-day timeframes
provided by Paragraph 12(A), or, in an emergency or influx, ``as
expeditiously as possible.'' The TVPRA timeline for the transfer of
UACs to HHS does not address the requirements of Paragraph 12(A) with
respect to the transfer of UACs to licensed programs. However, HHS now
has the authority to provide care and custody of UACs referred to it,
and thus, HHS ensures that a referred UAC is placed in an appropriate
licensed program, when required under the TVPRA and the FSA. See 8
U.S.C. 1232(c)(2)(A) (requiring HHS to ``promptly'' place UACs ``in the
least restrictive setting that is in the best interest of the child'').
Accordingly, HHS has addressed this requirement in its proposed rule.
In this rule, DHS addresses only the transfer of UACs to HHS, which is
governed exclusively by the TVPRA.
The current regulations do not speak to the necessary conditions
during the transfer of UACs between DHS and HHS facilities, although
such conditions are addressed by paragraph 25 of the FSA. Consistent
with paragraph 25 of the FSA, the proposed regulations stipulate that
UACs will not be transported with unrelated detained adults except upon
initial apprehension when being transferred to a DHS facility, or if
separate transportation is impractical or unavailable.\17\ In such
cases, precautions will be taken to ensure the safety, security, and
well-being of the UAC.
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\17\ The FSA includes ``impractical'' but not ``unavailable.''
DHS considers the addition of ``or unavailable'' to be a
clarification of the current standard, and not a substantive change.
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For the safety and security of UACs and whenever operationally
feasible, ICE and CBP currently make every attempt to transport and
hold UACs separately from unrelated adults. As an example, CBP's U.S.
Border Patrol (USBP) strives to transport UACs and unrelated adults in
separate vehicles. However, given the various environments in which
USBP operates, such as remote desert locations, separate transportation
for UACs from place of apprehension to a USBP station is not always
feasible or practical. In these cases, USBP strives to transport the
UAC in a manner where she or he can be monitored. There are numerous
[[Page 45499]]
factors that dictate the way in which a UAC will be transported with
unrelated adults. However, at a minimum CBP always assesses the mental
capacity, age, and gender of the UAC to ensure that the most safe and
secure setting is available.
Proposed 8 CFR 236.3(g)--DHS Procedures in the Apprehension and
Processing of Minors or UACs
Current section 236.3(g) provides that each juvenile apprehended in
the immediate vicinity of the border who permanently resides in Mexico
or Canada shall be informed, prior to the presentation of the voluntary
departure form or being allowed to withdraw his or her application for
admission, that he or she may make a telephone call to a parent, close
relative, a friend, or organization on the free legal services list.
The current regulation also provides that if the juvenile does not
reside in Mexico or Canada, that juvenile must in fact communicate with
a parent, adult relative, friend, or with an organization found on the
free legal services list prior to presentation of the voluntary
departure form.
In addition, the current regulations at 8 CFR 236.3(h) provide for
alien juveniles to be given a Form I-770 Notice of Rights and
Disposition, which will be read and explained to the juvenile in a
language the juvenile understands if he or she is less than 14 years of
age. This paragraph further provides that, in the event that a juvenile
who has requested a hearing pursuant to the Form I-770 subsequently
decides to accept voluntary departure or is allowed to withdraw his or
her application for admission, a new Form I-770 shall be given to, and
signed by the juvenile.
The former INS promulgated much of 8 CFR 236.3 to implement the
U.S. District Court for the Central District of California's order in
Perez-Funez v. Dist. Dir., INS, 619 F. Supp. 656 (C.D. Cal. 1985),
which required INS to afford certain procedural safeguards to
unaccompanied juveniles who are taken into immigration custody prior to
permitting voluntary departure. See 53 FR 17449 (May 17, 1988).
Paragraph 12(A) of the FSA provides that whenever the Government
takes a minor or UAC into custody, it shall expeditiously process the
minor or UAC and shall provide the minor or UAC with a notice of
rights, including the right to a bond redetermination hearing, if
applicable. Under paragraph 24(D) of the FSA, DHS promptly provides all
non-UAC minors who are not released with a Form I-770, an explanation
of the right of judicial review, and a list of free legal services. The
proposed rule's section 236.3(g) would retain the provisions related to
the presentation of the Form I-770, explanation of the right of
judicial review, and the list of free legal services, as set out in
current regulations and the FSA.
The proposed regulations at 8 CFR 236.3(g)(1) would change the
regulatory text to reflect current operations, but also preserve the
intent of these regulations and FSA paragraphs 12(A) and 24(D), and
would continue to comply with Perez-Funez. Specifically, proposed Sec.
236.3(g)(1)(i) would update the requirements related to the Form I-770
to reflect Paragraph 12(A) and current operational realities. It also
would make minor clarifications to the current regulatory language by
adding that the Form I-770 can be provided in a language ``and manner''
the minor or UAC understands. FSA Paragraph 12(A) requires that all
minors in DHS custody, even those who request to withdraw their
application for admission or request voluntary departure (which
includes voluntary departure, as described at 8 CFR 240.25(a),
sometimes referred to as a ``voluntary return''), will be provided with
a notice of rights.
Pursuant to the requirements of the current regulations and FSA
Paragraph 12(A), CBP currently provides an I-770 to each minor or UAC
during processing. If, after processing, CBP determines that a minor or
UAC who was processed for a voluntary departure or a withdrawal of his
or her application for admission is no longer amenable to such a
disposition because, for instance, the minor or UAC is no longer
eligible for voluntary departure, CBP will re-process the minor or UAC
for a more appropriate disposition, such as the issuance of a Notice to
Appear before an immigration judge. When the minor or UAC is
reprocessed, the minor or UAC is issued a new I-770, or the original
one is updated accordingly. By issuing a new I-770, or updating the
original one, CBP ensures that, in situations in which it is
appropriate to change a minor or UAC's immigration disposition, the
minor or UAC continues to remain aware of his or her rights. In
addition, CBP generally provides a minor or UAC who is being processed
for a Notice to Appear with the list of free legal service providers.
Proposed 8 CFR 236.3(g) would provide that minors or UACs who enter
DHS custody will be provided an I-770 that will include a statement
that the minor or UAC may make a telephone call to a parent, close
relative, or friend. The proposed rule would specifically address the
list of free legal service providers at proposed Sec.
236.3(g)(1)(iii), which would apply to every minor who is not a UAC who
is transferred to or remains in a DHS detention facility.
In addition, pursuant to the TVPRA, DHS currently screens all UACs
from contiguous countries to determine whether such a UAC may be
permitted to withdraw his or her application for admission. As part of
this screening, the UAC is provided with an I-770 Notice of Rights.
UACs from non-contiguous countries are not permitted to withdraw their
application for admission, but are similarly provided with the I-770
Notice of Rights. These TVPRA requirements similarly ensure that the
due process concerns identified by the court in Perez-Funez are
adequately addressed.
Proposed Sec. 236.3(g)(1)(i) also does not include the requirement
in current section 8 CFR 236.3(g) that a juvenile who does not reside
in Mexico or Canada must in fact communicate with a parent, adult
relative, friend, or with an organization found on the free legal
services list prior to presentation of the voluntary departure form.
However, the passage of the TVPRA has made this requirement no longer
necessary. Specifically, pursuant to the TVRPA, only UACs who reside
permanently in Mexico or Canada are permitted to withdraw their
application for admission. 8 U.S.C. 1232(a)(2). Additionally, any minor
who is not a UAC, but who is accompanied by a parent or legal guardian
who is permitted to voluntarily depart the United States or withdraw
his or her application for admission as a member of a family unit
would, in general, be undertaking such action along with his or her
accompanying parent or legal guardian. Therefore, the minor would, by
default, have an opportunity to communicate with his or her parent or
legal guardian at that time.
Proposed Sec. 236.3(g)(1)(i) relates only to situations in which
DHS processes a minor or UAC. Thus, it does not address situations in
which a minor or UAC is in immigration proceedings before an
immigration judge. For example, this regulation does not address a
situation in which a minor or UAC has been granted voluntary departure
by an immigration judge, but then subsequently requests to proceed to a
hearing. In such a situation, DHS envisions that, consistent with
current practice, the immigration judge would provide the minor or UAC
with an appropriate advisal of rights.
Similarly, proposed Sec. Sec. 236.3(g)(1)(ii) and (g)(1)(iii)
would reflect the requirements in Paragraph 24(D) of the FSA related to
the provision of the notice of judicial review and the notice
[[Page 45500]]
of free legal service providers. Specifically, proposed Sec.
236.3(g)(1)(ii) would provide that every minor who is not a UAC who
remains in or is transferred to a DHS detention facility will be
provided with the Notice of Right to Seek Judicial Review, as is
provided in FSA Paragraph 24(D) and Exhibit 6. Similarly, proposed
Sec. 236.3(g)(1)(iii) would provide that such minors will be provided
with the list of free legal service providers, as provided in FSA
Paragraph 24(D).
Proposed Sec. 236.3(g)(2) discusses DHS's custodial care of a
minor or UAC immediately following apprehension. Therefore, this
paragraph applies, in general, to the time that a minor or UAC remains
in a CBP facility prior to being transferred to ICE or to HHS. This
paragraph parallels the requirements of FSA paragraphs 11 and 12(A).
For instance, paragraph (g)(2), like the FSA, would require that minors
and UACs shall be held in the least restrictive setting appropriate to
the minor or UAC's age and special needs, provided that such setting is
consistent with the need to protect the minor or UAC's well-being and
that of others, as well as with any other laws, regulations, or legal
requirements. The proposed rule would also include a cross-reference to
DHS's regulations at 6 CFR 115.114, dealing specifically with sexual
abuse and assault prevention for juvenile and family detainees in DHS's
short-term holding facilities.
Proposed paragraph (g)(2), like the FSA, would require that minors
and UACs be housed in facilities that are safe and sanitary, and that
the facilities provide access to toilets and sinks, drinking water and
food as appropriate, access to emergency medical assistance as needed,
and adequate temperature and ventilation.
Consistent with FSA paragraphs 11 and 12(A), proposed paragraph
(g)(2)(i) provides for contact between a minor or UAC and family
members arrested with the minor or UAC. Following arrest of a minor or
UAC and accompanying family members, CBP transports all individuals to
a CBP facility for processing. During the time that the family group
spends at the facility, CBP provides contact between the minor or UAC
and all accompanying family members, absent concerns about the safety
of the minor or UAC. This paragraph, therefore, addresses only the
issue of contact between family members while they remain in CBP
custody. The proposed rule is more detailed than FSA paragraph 12(A),
insofar as it states, consistent with FSA paragraph 11, that the safety
and well-being of the minor or UAC and operational feasibility are
relevant considerations when allowing such contact. This is consistent
with FSA paragraph 11, which requires that the setting of a juvenile's
detention or holding be consistent with a range of factors, including
the need to protect the juvenile's well-being or that of others. It is
also consistent with DHS's regulations on the prevention of sexual
abuse and assault in its facilities. See 6 CFR 115.14, 115.114.
DHS's use of the term ``operationally feasible'' in this paragraph
does not mean ``possible,'' but is intended to indicate that there may
be limited short-term circumstances in which, while a minor or UAC
remains together with family members in the same CBP facility,
providing such contact would place an undue burden on agency
operations. For instance, if a family member arrested with a minor or
UAC requires short-term, immediate medical attention, CBP may be
required to temporarily limit contact between that family member and
the minor or UAC, in order to provide appropriate medical treatment.
Or, CBP may have a legitimate law enforcement reason to temporarily
limit contact between a minor or UAC and accompanying family members,
such as when CBP decides it is in the minor or UAC's best interest to
interview all family members separately. However, CBP will provide
contact with family members arrested with the minor or UAC, and/or will
hold accompanied minors in the same hold rooms as their accompanying
family members, if doing so is consistent with the minor or UAC's
safety and well-being and does not place an undue burden on agency
operations.
Similarly, the proposed regulations would contain the same limit as
the FSA on the amount of time UACs can be housed with an unrelated
adult (no more than 24 hours), but the proposed regulations would
explicitly allow DHS to depart from this standard in emergencies or
other exigent circumstances, to the extent consistent with 6 CFR
115.14(b) and 115.114(b). For example, it may be necessary to house
UACs with unrelated adults for more than 24 hours during a weather-
related disaster such as hurricanes in southern Texas, or if an
outbreak of a communicable disease such as scabies or chicken pox at a
facility requires the temporary commingling of the detainee population.
Appropriate consideration is given to age, mental condition, physical
condition, and other factors when placing UACs into space with
unrelated adults.
Where a juvenile is apprehended with his or her parent or legal
guardian, the current regulations indicate that such parent or legal
guardian may swear out an affidavit designating a person to whom the
juvenile may be released. 8 CFR 236.3(b)(3). Since the passage of the
TVPRA, however, DHS no longer has the authority to release a juvenile
to someone who is not a parent or legal guardian, so this provision
must be amended.\18\ If a parent or legal guardian is unavailable to
provide care and physical custody for an alien under the age of 18, and
the alien has no lawful status in the United States, the alien meets
the definition of a UAC. 6 U.S.C. 279(g). Under section 235(b)(3) of
the TVPRA (8 U.S.C. 1232(b)(3)), DHS must transfer UACs to HHS custody
within 72 hours of determining that a juvenile is a UAC, absent
exceptional circumstances. Thus, a parent or legal guardian must be
available for a minor without lawful status in DHS custody for DHS to
release that minor. The proposed rule would therefore remove the
current regulatory language at 8 CFR 236.3(b)(3) authorizing a parent
or legal guardian to swear an affidavit authorizing the release of the
minor to anyone who is not also a parent or legal guardian.
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\18\ Pursuant to the requirements of the HSA and TVPRA, only HHS
has the authority to release a minor to a non-parent or legal
guardian, through the process of finding a sponsor for a UAC. See 8
U.S.C. 1232.
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Proposed 8 CFR 236.3(h)--Detention of Family Units
DHS's policy, consistent with E.O. 13841, is to maintain family
unity, including by detaining families together where appropriate and
consistent with law and available resources. The current regulations,
however, do not address the detention of non-UAC minors together with
their parents or legal guardians as ``family units'' while in the
custody of DHS. Similarly, while the FSA considers that juveniles may
be initially held with related family members, the FSA does not address
whether the Government may continue to hold minors together with their
parents or legal guardians after transfer to a ``licensed program.''
The proposed regulations in the new section 236.3(h) would set out
requirements that must be met for a family to be detained together in
an FRC. Per the definitions in proposed paragraph (b), and in
accordance with the TVPRA, only minors, not UACs, would be held in DHS
custody at an FRC.
The intention of this proposed paragraph is to clarify that DHS
may, pursuant to its existing legal authorities, see, e.g., INA sec.
235(b), (b)(1)(B), (b)(1)(B)(iii)(I); 236; 241(a), detain
[[Page 45501]]
members of a family unit together. Nothing in this proposed rule
impacts DHS's existing detention authority. Because the current
regulations do not address detaining non-UAC minors together with their
parents or legal guardians as family units, the current regulations
also do not explicitly consider what may happen when DHS continues to
detain a parent or legal guardian, but could otherwise release a non-
UAC minor. Current immigration law describes several situations in
which an individual alien may not be released from detention,
regardless of whether that alien is part of a family unit. See, e.g.,
INA sec. 235(b), (b)(1)(B), (b)(1)(B)(iii)(IV); 241(a).
If the parent or legal guardian of a family unit is subject to
mandatory detention, but the non-UAC minor of the family unit is
otherwise eligible for release, DHS must continue to detain the parent
or legal guardian, consistent with applicable law and policy.
Proposed 8 CFR 236.3(i)--Detention of Minors Who Are Not UACs in DHS
Custody
The current regulations contain one short paragraph about juvenile
detention, stating that DHS may detain a juvenile if such detention is
``necessary, for such interim period of time as is required to locate
suitable placement for the juvenile'' either with a parent, legal
guardian, adult relative, or other suitable custodian or custodial
facility. 8 CFR 236.3(d). As explained several times throughout this
preamble, the FSA contains significant detail about requirements for
DHS to detain juveniles, including a list of requirements for
conditions of detention in the FSA's Exhibit 1. The proposed
regulations at section 236.3(i) would completely replace the current
regulations at section 236.3(d) with respect to the detention of minors
who are not UACs.
The current regulations require that juveniles who are detained by
DHS be housed in detention facilities that have separate accommodations
for juveniles. See 8 CFR 236.3(d). In addition, 6 CFR 115.14, first
promulgated in 2014, provides that minors are detained in the least
restrictive setting appropriate for the minor's age and needs. That
regulation tracks FSA paragraph 11. Accordingly, this proposed rule
would cross-reference that regulation and expand on it. Additionally,
the proposed regulations would make clear that minors are placed
temporarily in a licensed facility, as defined in paragraph (b) of
proposed Sec. 236.3, until release can be effectuated as described in
proposed Sec. 236.3(j).
The proposed regulations at Sec. 236.3(i)(1) would provide, like
paragraph 21 of the FSA, that minors who are not UACs must be
transferred to state or county juvenile detention facilities, a secure
DHS detention facility, or a DHS-contracted facility having separate
accommodations for minors if they meet certain criteria. A non-UAC
minor may be placed in one of these facilities because the minor is
charged with, is chargeable with, or convicted of a crime or has been
charged with, is chargeable with, is the subject to delinquency
proceedings or has been adjudicated as delinquent. There is an
exception for petty offenses, and another exception for when the
offense is isolated, not within a pattern or practice of criminal
activity, does not involve violence against a person, and does not
involve the use or carrying of a weapon. DHS has retained these
exceptions in the proposed rule, but has reworded them in the
affirmative for clarity. Rather than explain when DHS would not use
secure detention (such as the exception to secure detention for petty
offenses in paragraph 21(A)(ii) of the FSA), the proposed rule would
more clearly explain when DHS would use secure detention. As a
consequence of these changes, there may be some isolated, non-violent
offenses that, although not ``petty'' as defined in paragraph 21(A)(ii)
of the FSA, are insufficient cause to place a minor in secure
detention. These clarifications are consistent with DHS's current
practice, and are consistent with the intent underlying FSA paragraph
21.
Also included in the FSA's list of reasons to house a minor in a
secure facility are committing, or making credible threats to commit, a
violent or malicious act while in custody or while in the presence of
an immigration officer; engaging, while in a licensed facility, in
certain conduct that is unacceptably disruptive of the normal
functioning of the licensed facility; being an escape risk; or for the
minor's own security. DHS chose not to include in the proposed
regulatory text the specific examples of behavior or offenses that
could result in the secure detention of a minor, as they appear in FSA
paragraph 21, because the examples are non-exhaustive and imprecise.
For instance, examples listed in paragraph 21 of what may be considered
nonviolent, isolated offenses (e.g., breaking and entering, vandalism,
or driving under the influence) may be classified as violent offenses
in some states. Including these examples as part of codified regulatory
text may inadvertently lead to more confusion than clarity.
Under proposed Sec. 236.3(i)(2), consistent with FSA paragraph 23,
DHS would place a minor in a less restrictive alternative if such an
alternative is available and appropriate in the circumstances, even if
the provisions of section 236.3(i)(1) apply. Finally, as provided under
paragraph 6 of the FSA, proposed Sec. 236.3(i)(3) would provide that,
unless a secure facility is appropriate pursuant to proposed Sec.
236.3(i)(1) and (2), DHS facilities used for the detention of minors
would be non-secure facilities. This proposed paragraph, like FSA
paragraph 32(C), provides that agreements for the placement of minors
in non-INS facilities shall permit attorney-client visits. Proposed
Sec. 236.3(i)(2) explains that the secure facilities used by DHS to
detain non-UAC minors will also permit attorney-client visits pursuant
to applicable facility rules and regulations.
Proposed Sec. 236.3(i)(3) sets forth concepts also articulated in
FSA paragraphs 12, 14, and 19, that unless a detention in a secure
facility is otherwise required, facilities used for the detention of
minors shall be non-secure.
Proposed Sec. 236.3(i)(4) would set out the standards for
``licensed programs,'' as in paragraphs 6 and 19 of the FSA. While the
proposed rule would not define ``licensed program,'' DHS proposes that
all non-secure facilities used for the detention of non-UAC minors
would abide by these standards. These standards mirror the requirements
of Exhibit 1 of the FSA and the current ICE Family Residential
Standards. In addition, the standards in proposed paragraph (i)(4)
would serve as a baseline of what would be required of a facility
audited by a third-party when licensing by the state, county, or
municipality is otherwise unavailable, pursuant to proposed paragraph
(b)(9) of this section. At a minimum, these standards must include, but
are not limited to, proper physical care, including living
accommodations, food, clothing, routine medical and dental care, family
planning services, emergency care (including a screening for infectious
disease) within 48 hours of admission, a needs assessment including
both educational and special needs assessments, educational services
including instruction in the English language, appropriate foreign
language reading materials for leisure time reading, recreation and
leisure time activities, mental health services, group counseling,
orientation including legal assistance that is available, access to
religious services of the minor's choice,
[[Page 45502]]
visitation and contact with family members, a reasonable right to
privacy of the minor, and legal and family reunification services.
Finally, these standards, like FSA paragraph 32(C), require that
agreements for placement of minors in non-INS facilities shall permit
attorney-client visits. Proposed paragraph 236.3(i)(4) makes clear that
DHS permits attorney-client visits pursuant to applicable facility
rules and regulations in all licensed, non-secure facilities in which
DHS places non-UAC minors.
Related to the requirements placed on facilities used for the
detention of minors, but not included in the Exhibit 1 standards, is
the requirement found at FSA paragraph 19. FSA paragraph 19 permits
``licensed programs'' to transfer temporary physical custody of minors
prior to securing permission from the Government in the event of an
emergency, provided that they notify the Government as soon as
practicable, but in all cases within 8 hours. Proposed paragraph
236.3(i)(5) does the same, although applies it to ``licensed, non-
secure facilities,'' instead of ``licensed programs,'' for reasons
explained above.
Proposed 8 CFR 236.3(j)--Release of Minors From DHS Custody
The current regulations at Sec. 236.3(b) address the release of
juveniles when a determination is made that such juveniles may be
released on bond, parole, or on their own recognizance. Provided
detention of a juvenile is not required to secure the juvenile's
appearance before DHS or the immigration court, and is not necessary to
ensure the juvenile's safety or that of others, the current regulations
allow a juvenile to be released to a parent, legal guardian, or an
adult relative who is not currently in immigration detention. Current
paragraph (b) goes on to state that if the parent, legal guardian, or
relative is located at a place far from the current location of the
juvenile, the relative can secure the release of the juvenile at the
closest DHS office to that relative. The issue of transportation of the
juvenile to the relative once release is secured is not discussed in
the current regulation.
FSA paragraph 14 requires DHS to release a minor without
unnecessary delay when DHS determines that the detention of the minor
is not required either to secure timely appearance before DHS or an
immigration judge, or to ensure the minor's safety or that of others.
FSA paragraph 14 also provides a list of custodians to whom a minor may
be released: A parent; legal guardian; adult relative (brother, sister,
aunt, uncle, or grandparent); an adult individual or entity designated
by the parent or legal guardian as capable and willing to care for the
minor's well-being; a licensed program; or an adult individual or
entity seeking custody when it appears that no other likely alternative
to long term detention is available and family reunification is not a
reasonable possibility. FSA paragraph 26 states that the Government
shall assist in making transportation arrangements to the office
nearest the location of the person or facility to whom a minor is to be
released pursuant to paragraph 14. Despite the language of the current
regulations and the FSA, pursuant to the TVPRA and the HSA, DHS does
not have the authority to release a minor to anyone other than HHS or a
parent or legal guardian. Therefore, in order to comply with both
paragraph 14 and the TVPRA, DHS may be required, in some situations, to
transfer a child to HHS when it is necessary to continue to detain a
parent or legal guardian. DHS typically has discretion under existing
authorities to simultaneously parole the child and the parent or legal
guardian, which would remain unchanged.\19\
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\19\ This rule would delete a reference to such discretion at
current 8 CFR 236.3(b)(2), but such reference is unnecessary to
ensure DHS discretion to effect simultaneous release. For instance,
in the expedited removal context, DHS may parole the parent or legal
guardian pursuant to the standards at 8 CFR part 235. And other
parole standards are contained at 8 CFR 212.5. There are also other
tools available to effect simultaneous release, such as bond.
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The proposed regulation at Sec. 236.3(j) would amend the approach
laid out in current Sec. 236.3(b), and make it consistent with the
requirements of the TVPRA and the HSA (enacted after the regulation was
originally promulgated), and executive orders, as well as with the
current operational environment, which has also changed since the
provision's original promulgation. With the exception of removing the
list of individuals to whom a minor may be released, as described
above, the rule largely incorporates the text of paragraph 14. However,
the proposed rule would align the FSA paragraph 14 standards with
existing statutes and regulations, and thus permit DHS to exercise its
existing discretionary authorities governing release.
Aliens, including minors in family units, who are subject to
expedited removal and who have not been found to have a credible fear
or are still pending a credible fear determination are subject to
mandatory detention. 8 U.S.C. 1225(b)(1)(B)(iii)(IV). DHS, however,
retains the discretion to release such aliens on parole, based on a
case-by-case determination that parole is for an ``urgent humanitarian
need or significant public benefit.'' Id. 1182(d)(5)(A). Pursuant to
the regulations, aliens who are in expedited removal proceedings and
are pending a credible fear determination or who have been found not to
have such fear, release on parole can only satisfy this standard when
there is a medical necessity or a law enforcement need. 8 CFR
235.3(b)(4)(ii), (b)(2)(iii). Nothing indicates that, by entering into
the FSA, the Government intended to subvert the intent of Congress with
regard to the detention of minors in family units, allowing for their
release into the United States simply based on consideration of those
factors listed in paragraph 14 of the FSA.\20\
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\20\ The U.S. District Court for the Central District of
California has rejected this argument, but in doing so, it did not
consider the regulatory provisions at 8 CFR 235.3. Flores v.
Sessions, No. 2:85-cv-04544, at 25 n.18 (C.D. Cal. June 27, 2017).
That decision requires that ICE must ignore Congress's plain intent
with regard to the availability of parole for aliens in expedited
removal proceedings and in some instances must consider parole for
individuals subject to final orders of removal. The appeal from this
decision is currently pending before the U.S. Court of Appeals for
the Ninth Circuit. See Flores v. Sessions, No. 17-56297 (9th Cir.)
(docketed Aug. 28, 2017).
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The intended effect of the draft rule is to change current practice
and the text of FSA paragraph 14 to affirm that parole is within the
discretion of DHS as intended by statute. For example, minors in
expedited removal will be subject to the heightened standard in the 8
CFR 235.3(b). As indicated above, DHS is proposing to remove the
reference to 8 CFR 235.3(b) in section 212.5(b) to make clear that the
parole standard that applies to those in expedited removal is found in
section 235.3 and not 212.5. Moreover, DHS will not make universal
parole determinations for all minors placed into FRCs.
For individuals not in expedited removal proceedings, parole is
available subject to the generally applicable parole regulation. See 8
CFR 212.5(b); see also 62 FR 10312, 10320 (1997). For those aliens in
expedited removal who are found to have a credible fear and referred
for proceeding under section 240 of the INA, parole, bond, or release
on recognizance or other conditions are available, depending on the
particular circumstances of the alien's entry.
Aliens who are eligible for release on bond, or release on their
own recognizance or other conditions, the availability of such release
depends on whether the alien can establish he or she is not a flight
risk or a danger to the community. Matter of Patel, 15 I&N Dec.
[[Page 45503]]
666 (BIA 1976). Paragraph 14 similarly states that DHS makes a
determination that detention of a minor is not ``required to secure his
or her timely appearance before the INS or the immigration court, or to
ensure the minor's safety or that of others.'' FSA paragraph 14. Both
the FSA and custody standards applicable to aliens eligible for release
on bond or on recognizance have a preference for release if an alien
makes the requisite showing that they are not a flight risk or a danger
to the community. Id.; see also Matter of Patel. 15 I&N Dec at 666.
(``An alien generally is not and should not be detained or required to
post bond except on a finding that he is a threat to the national
security, or that he is a poor bail risk.''). This is the same standard
used under paragraph 14 of the FSA; thus the text in proposed paragraph
(j) would not reflect a substantive change in the initial custody
determinations made by DHS for those minors eligible for such
determinations.
Once it is determined that the applicable statutes and regulations
permit release, proposed Sec. 236.3(j) would permit release of a minor
only to a parent or legal guardian who is available to provide care and
custody, in accordance with the TVPRA, using the same factors for
determining whether release is appropriate as are contained in
paragraph 14. Included in the relevant factors would typically be
consideration of whether detention is ``required either to secure his
or her timely appearance before [DHS] or the immigration court, or to
ensure the minor's safety or that of others.'' DHS also considers
family unity when evaluating whether release of a minor is appropriate.
This approach is consistent with the President's June 20, 2018,
Executive Order 13841, ``Affording Congress an Opportunity to Address
Family Separation,'' which identifies a policy of ``maintain[ing]
family unity, including by detaining alien families together where
appropriate and consistent with law and available resources.'' \21\
Moreover, in most cases, the parent is in the best position to
represent the minor's rights and wishes and can help the minor to
prepare his or her case. It is also more expedient for the family, if
the cases are interrelated, to have a single proceeding adjudicated in
the same location, by the same adjudicator.
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\21\ E.O. 13841 (June 20, 2018), 83 FR 29435.
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When determining whether an individual is a parent or legal
guardian, DHS would use all available evidence, such as birth
certificates or other available documentation, to ensure the parental
relationship or legal guardianship is bona fide. If the relationship
cannot be established, the juvenile would be treated as a UAC and would
be transferred into HHS custody. If the relationship is established,
but the parent or legal guardian lives far away, the proposed
regulations use the FSA paragraph 26 language, stating that DHS shall
assist with making arrangements for transportation and maintains the
discretion to actually provide transportation to the DHS office nearest
the parent or legal guardian.
Finally, the proposed rule would not include provisions parallel to
the requirements in paragraphs 15 or 16 related to release from
custody. These requirements have been superseded in part by the TVPRA,
under which DHS cannot release a juvenile to anyone other than a parent
or legal guardian. Further, parents have no affirmative right of
release under the provisions of the FSA. Therefore, if DHS determines
that the accompanying parent should be detained, releasing a minor
under these circumstances would be either a release to a parent who is
not currently in detention, or, in all other cases, a transfer to HHS
custody, rather than a release from custody as envisioned under the
FSA. In addition, the requirements of paragraphs 15 and 16, which are
primarily for the Government's benefit, are not currently implemented.
Proposed 8 CFR 236.3(k)--Procedures Upon Transfer
Current 8 CFR 236.3 does not set out any procedures to specifically
govern the transfer of minors. FSA paragraph 27 provides that a minor
who is transferred from a placement in one ``licensed program'' to
another shall be transferred with his/her possessions and legal papers,
unless the possessions exceed the amount permitted by carriers, in
which case the possessions will be shipped to the minor in a timely
manner. The proposed regulations at Sec. 236.3(k) include the same
requirement for the transfer of possessions when a minor who is not a
UAC is transferred between licensed, non-secure facilities. While DHS
understands paragraph 27 of the FSA to, in practice, refer to transfer
between ICE facilities (the only DHS facilities that qualify as
``placements'' in ``licensed programs,'' under the meaning of the FSA),
minors are generally transferred with their possessions if they are
moving between CBP facilities, or from a CBP facility to an ICE
facility.
Paragraph 27 of the FSA also provides that no minor represented by
counsel shall be transferred without advance notice to such counsel
except in unusual and compelling circumstances. The proposed
regulations also provide that if a minor or UAC is represented by
counsel, notice to counsel will be provided prior to any transfer of a
minor or UAC from one ICE placement to another, or from an ICE
placement to an ORR placement, unless unusual and compelling reasons,
such as safety or escape-risk, exist, in which case counsel will
receive notification within 24 hours of transfer.
Proposed 8 CFR 236.3(l)--Notice to Parent of Refusal of Release or
Application for Relief
The current regulations provide that if a parent of a detained
juvenile can be located, and is otherwise suitable to receive custody
of the juvenile, and the juvenile indicates a refusal to be released to
his or her parent, the parent(s) shall be notified of the juvenile's
refusal to be released to the parent(s), and the parent(s) shall be
afforded the opportunity to present their views before a custody
determination is made (Sec. 236.3(e)). Similarly, the current
regulations provide that if a juvenile seeks release from detention,
voluntary departure, parole, or any form of relief from removal, where
it appears that the grant of such relief may effectively terminate some
interest inherent in the parent-child relationship and/or the
juvenile's rights and interests are adverse to those of the parent, and
the parent is presently residing in the United States, the parent shall
be given notice of the juvenile's application for relief, and shall be
afforded an opportunity to present his or her views and assert his or
her interest before a determination is made as to the merits of the
request for relief (Sec. 236.3(f)). In both instances, the parents are
given an opportunity to present their views to the district director,
Director of the Office of Juvenile Affairs, or an immigration judge.
The FSA does not discuss any necessary notification to parents of a
juvenile's refusal to be released to a parent or a juvenile's
application for relief from removal. DHS has reviewed the current
regulatory provision and is proposing amendments to this paragraph to
maintain the goals of this type of notification while reflecting the
current distribution of responsibilities vis-[agrave]-vis juveniles
between DHS components and DOJ EOIR. The language of the current and
proposed regulation appropriately protects parental rights while
balancing a juvenile's potential desire to take an action adverse to
the wishes of his/her parent.
[[Page 45504]]
Given the current legal environment and operational practices, ICE
and CBP would seldom, if ever, be responsible for providing any type of
parental notification as required by 236.3(e) or (f). For instance, if
a minor seeks release from ICE detention, ICE would only be required to
notify that minor's parent if the parent is presently residing in the
United States and the minor's release would terminate some interest
inherent in the parent-child relationship. Yet even in this scenario,
because DHS cannot release a minor to anyone other than a parent or
legal guardian as discussed above, it seems unlikely that such release
would ``terminate some interest inherent in the parent-child
relationship'' as described in current Sec. 236.3(f). In practice,
USCIS and EOIR are the entities most likely to be required to provide
parental notification due to a potential termination of an interest
inherent in the parent-child relationship, because USCIS adjudicators
and EOIR immigration judges more frequently grant relief from removal
that could impact a parent-child relationship. The proposed DHS
regulations at 236.3(l) would remove language authorizing parents to
present their views to immigration judges if their child refuses to be
released into their custody, because currently immigration judges do
not set conditions of release, and therefore do not decide to whom a
minor or UAC will be released. However, the change does not prevent
parents from presenting their views to DHS. Refusal of release is
primarily an issue that affects DHS and HHS, rather than DOJ. In
addition, certain types of requests listed in proposed 236.3(l) (i.e.,
parole) would be addressed to DHS alone, and an immigration judge would
not have jurisdiction over such requests.
The proposed changes to current sections 236(e) and (f) (in
proposed Sec. 236.3(l)) would clarify the actual scope of DHS's
regulations, but would not represent a change in practice. The proposed
rule would maintain parents' right to be notified and present their
views to DHS (but not an immigration judge) if a minor or UAC in DHS
custody refuses to be released to that parent, if a grant of relief
might terminate some parent-child relationship interests, or where the
child's interests are adverse to those of the parent.
In addition, the proposed rule would not affect the EOIR notice
requirement currently contained at 8 CFR 1236.3(f) for applications for
relief.
Proposed 8 CFR 236.3(m)--Bond Hearings
The current regulations make no provision for bond hearings by
immigration judges for minors as FSA paragraph 24(A) has been
interpreted to require. Paragraph 24(A), states that a minor in
``deportation proceedings'' shall be afforded a bond redetermination
unless he or she refuses such a determination. The proposed regulations
at Sec. 236.3(m) provide for review of DHS bond determinations by
immigration judges to the extent permitted by 8 CFR 1003.19, but only
for those minors: (1) Who are in removal proceedings under INA section
240, 8 U.S.C. 1229a; and (2) who are in DHS custody. Those minors who
are not in section 240 proceedings are ineligible to seek review by an
immigration judge of their DHS custody determination.
DHS proposes this paragraph to provide for bond hearings as under
FSA paragraph 24(A), while updating the language to be consistent with
developments in immigration law since the FSA was signed, including the
TVPRA. FSA paragraph 24(A) refers to minors in ``deportation
proceedings.'' The term ``deportation proceedings,'' however, is no
longer used in immigration law due to the enactment of IIRIRA in 1996.
Prior to IIRIRA's enactment, the INS conducted two types of proceedings
for aliens: ``exclusion'' proceedings and ``deportation'' proceedings.
Section 304 of IIRIRA, however, changed the types of proceedings
available to aliens under the INA, and what were previously known as
``deportation'' proceedings became ``removal'' proceedings. See INA
sec. 240, 8 U.S.C. 1229a. IIRIRA also amended INA section 235 to
provide for expedited removal proceedings for certain applicants for
admission who would have previously been subject to ``exclusion''
proceedings. See INA sec. 235(b), 8 U.S.C. 1225(b). Thus, DHS has
proposed to update this language. Additionally, the proposed rule would
clarify that this provision applies only to minors in DHS custody, in
accordance with the TVPRA.
Proposed 8 CFR 236.3(n)--Retaking Custody of a Previously Released
Minor
The current regulations have no provisions for reassuming custody
of previously released minors if they become an escape-risk, become a
danger to the community, or are issued a final order of removal after
being released. The proposed regulations at Sec. 236.3(n) would
provide for this scenario. The regulations also explain that DHS may
take a minor into custody if there is no longer a parent or legal
guardian available to care for the minor, at which point the minor will
be treated as a UAC and DHS will transfer him or her to HHS.
Proposed 8 CFR 236.3(o)--Monitoring
The current regulations at Sec. 236.3(c) describe the duties of
the Juvenile Coordinator, including the responsibility of locating
suitable placements for juveniles. Paragraph 28(A) of the FSA also
includes a provision for a Juvenile Coordinator, but places more
reporting and monitoring obligations on the Coordinator than currently
exist in the regulations. The proposed regulations eliminate the
requirement in the current regulations that the Juvenile Coordinator
locate a suitable placement for minors, as these duties are generally
exercised by immigration officers and other employees at DHS. Section
236.3(o), however, is being proposed to provide for monitoring, as
under paragraph 28(A) of the FSA, by proposing two Juvenile
Coordinators--one for ICE and one for CBP--and charges each with
monitoring statistics about UACs and minors who remain in DHS custody
for longer than 72 hours. The statistical information may include, but
would not be limited to, biographical information, dates of custody,
placement, transfers, removals, or releases from custody. This
information does not include immigration status or hearing dates, as
referenced in FSA paragraph 28(A), because the import of this data for
monitoring purposes is not immediately apparent. The plain language
meaning of ``immigration status'' of particular aliens in DHS custody
is not relevant to monitoring compliance with detention or holding
condition requirements. It is only relevant to whether DHS is able to
detain an individual. It is unclear what other meaning of the term
``immigration status'' could be relevant to monitoring compliance with
these regulations. The hearing dates for aliens in DHS custody, which
are not set by DHS and are frequently subject to change, are also not
directly relevant to the monitoring of the conditions of detention for
a minor alien. The juvenile coordinators may collect such data, if
appropriate. The juvenile coordinators may also review additional data
points should they deem it appropriate given operational changes and
other considerations.
[[Page 45505]]
B. HHS Regulations
Proposed 45 CFR Part 410, Subpart A--Care and Placement of
Unaccompanied Alien Children
This subpart states the purpose of this regulation and the general
principles behind it, and sets standards for the care and placement of
UACs as discussed below. ORR uses the term ``placement'' to refer to
assigning UACs to facilities that ORR operates or arranges through a
grant or contract, or assigning them to ORR-funded foster care. ORR
uses the term ``release'' to refer to the release of UACs from ORR
custody into the custody of an approved sponsor.
Proposed 45 CFR 410.100--Scope of This Part
Section 410.100 discusses what is covered under this part.
Specifically, it states that this part covers the care, custody, and
placement of UACs pursuant to section 462 of the HSA and section 235 of
the TVPRA, and in light of the FSA. The proposed rule would make clear
that the purpose of this rule is not to govern or describe the entire
program, nor is it to implement either the HSA or the TVPRA in their
entirety. Rather, the purpose of this rule is to implement the relevant
and substantive terms of the FSA, and this rulemaking will apply
provisions of the HSA and TVPRA only where such authorities would
supersede or alter an FSA provision.
Proposed 45 CFR 410.101--Definitions
Section 410.101 states the definitions that apply to this part.
Notably, the definition of UAC is from the HSA. See 6 U.S.C. 279(g)(2);
8 U.S.C. 1232(g). The regulation uses the term ``staff secure
facility'' in the same sense as the FSA uses the term ``medium security
facility.'' ``Shelter'' includes facilities defined as ``licensed
facilities'' under the FSA, and also includes staff secure facilities,
i.e., medium security facilities as defined by the FSA. Other types of
shelters might also be licensed, such as long term and transitional
foster care facilities. The FSA does not define ``secure facility,''
but this regulation proposes a definition consistent with the
provisions of the FSA applying to secure facilities. These facilities
may be a state or county juvenile detention facility or another form of
secure ORR detention facility (such as a Residential Treatment Center),
or a facility with an ORR contract or cooperative agreement having
separate accommodations for minors. The definition uses the term
``cooperative agreement,'' as ORR uses cooperative agreements for the
majority of its shelters, pursuant to 8 U.S.C. 1232(i). The definition
recognizes that under the FSA, a secure facility does not need to meet
the licensed facility provisions that would apply to other shelters.
Section 410.101 defines unaccompanied alien child according to the
definition set forth in the HSA. It, as well as the TVPRA, only gives
ORR authority to provide care and custody of individuals who meet that
definition. The statutes, however, do not set forth a process for
determining whether an individual meets the definition of a UAC.
Similar to proposed 8 CFR 236.3(d), Sec. 410.101 would make clear that
ORR's determination of whether a particular person is a UAC is an
ongoing determination that may change based on the facts available to
ORR.
Proposed 45 CFR 410.102--ORR Care and Placement of Unaccompanied Alien
Children
Section 410.102 specifies the children for whom ORR provides care,
custody, and placement. The regulation specifies that DHS handles
immigration benefits and enforcement. The INS entered into the FSA
prior to the enactment of the HSA and TVPRA, which transferred the
care, and then custody, of the majority of UACs to ORR. The HSA
recognizes that ORR does not have responsibility for adjudicating
benefit determinations under the INA. This part recognizes the general
principles of the FSA that while in custody, UACs shall be treated with
dignity, respect, and special concern for their particular
vulnerability.
Proposed 45 CFR Part 410, Subpart B--Determining the Placement of an
Unaccompanied Alien Child
Proposed 45 CFR 410.200--Purpose of This Subpart
As stated inSec. 410.200, this subpart sets forth factors that ORR
considers when placing UACs.
Proposed 45 CFR 410.201--Considerations Generally Applicable to the
Placement of an Unaccompanied Alien Child
Section 410.201 addresses the considerations that generally apply
to the placement of UAC. The provision generally parallels the FSA
requirements. The provision notes that ORR makes reasonable efforts to
provide placements in the geographic areas where DHS apprehends the
majority of UACs. ORR complies with this provision, as ORR maintains
the highest number of UAC beds in the state of Texas where most UACs
are currently apprehended.
Proposed 45 CFR 410.202--Placement of an Unaccompanied Alien Child in a
Licensed Program
Section 410.202 states that ORR places a UAC into a licensed
program promptly after a UAC is referred to ORR legal custody, except
in certain enumerated circumstances. See 8 U.S.C.1232(c)(2)(A). The FSA
also recognizes circumstances where a UAC is not promptly, or is not at
all, placed in a licensed program. These circumstances include
emergencies or an influx as defined in Sec. 410.101 (in which case the
UAC shall be placed in a licensed program as expeditiously as
possible); where the UAC meets the criteria for placement in a secure
facility; and as otherwise required by any court decree or court-
approved settlement. Like the DHS portion of this proposed rule,
proposed Sec. 410.202 does not include the exception, which appears at
paragraph 12(A)(4) of the FSA, that allows transfer within 5 days
instead of 3 days in cases involving transport from remote areas or
where an alien speaks an ``unusual'' language that requires the
Government to locate an interpreter. As noted above, DHS has matured
its operations such that these factors no longer materially delay
transfer.
Proposed 45 CFR 410.203--Criteria for Placing an Unaccompanied Alien
Child in a Secure Facility
Section 410.203 sets forth criteria for placing UACs in secure
facilities. This part is consistent with the FSA criteria, except that
under the TVPRA, ``[a] child shall not be placed in a secure facility
absent a determination that the child poses a danger to self or others
or has been charged with having committed a criminal offense.'' 8
U.S.C. 1232(c)(2)(A). With respect to these regulations, therefore, the
TVPRA removes the factor of being an escape risk, which is permissible
grounds under the FSA, as a ground upon which ORR may place a UAC in a
secure facility.
In addition, HHS chose not to include in the proposed regulatory
text the specific examples of behavior or offenses that could result in
the secure detention of a UAC, as they appear in paragraph 21 of the
FSA, because the examples are non-exhaustive and imprecise. For
instance, examples listed in paragraph 21 of what may be considered
nonviolent, isolated offenses (e.g., breaking and entering, vandalism,
or driving under the influence) could be violent offenses in certain
circumstances depending upon the actions accompanying them. In
[[Page 45506]]
addition, state law may classify these offenses as violent. Including
these examples as part of codified regulatory text may inadvertently
lead to more confusion rather than clarity, and eliminate the ability
to make case-by-case determinations of the violence associated with a
particular act.
Under the proposed regulations, a UAC may be placed in a secure
facility if ORR determines that the UAC:
Has been charged with, is chargeable, or has been
convicted of a crime; or is the subject of delinquency proceedings, has
been adjudicated delinquent, or is chargeable with a delinquent act;
and where ORR assesses that the crimes or delinquent acts were not:
[cir] Isolated offenses that (1) were not within a pattern or
practice of criminal activity and (2) did not involve violence against
a person, or the use or carrying of a weapon; or
[cir] petty offenses, which are not considered grounds for a
stricter means of detention in any case.
``Chargeable'' means that ORR has probable cause to believe that the
UAC has committed a specified offense.
While in DHS or ORR's custody or while in the presence of
an immigration officer, has committed, or has made credible threats to
commit, a violent or malicious act (whether directed at himself/herself
or others.). Note: that because the FSA states that such acts would
have occurred ``while in INS custody'' or ``in the presence of an INS
officer,'' we propose that such activities in either DHS or HHS custody
or in the presence of an ``immigration officer'' would be evaluated.
Has engaged while in a licensed program in conduct that
has proven to be unacceptably disruptive of the normal functioning of
the licensed program in which the UAC is placed such that transfer is
necessary to ensure the welfare of the UAC or others, as determined by
the staff of the licensed program.
In addition, ORR proposes the following as warranting placement in a
secure facility, even though the FSA does not specifically mention such
criteria.
First, if a UAC engages in unacceptably disruptive
behavior that interferes with the normal functioning of a ``staff
secure'' shelter, then the UAC may be transferred to secure facility.
As written, the FSA looks only to such disruptive behavior when it
occurs in a ``licensed'' facility--which under the FSA does not include
in its definition staff-secure facilities--even though the vast
majority of such facilities receive the same licenses as non-secure
shelters. However, under this rule, UACs could be immediately
transferred to a secure facility for disruptive behavior in a non-
secure shelter, without the means to evaluate further disruption in a
staff secure setting. In addition, allowing for evaluation while in
staff-secure care allows HHS to protect the other children residing
within such shelter; it allows HHS to move one UAC who is disrupting
the operations of the staff secure facility and transfer him or her to
a more restrictive level of care.
Second, the proposed rule adds to the list of behaviors
that may be considered unacceptably disruptive. Examples provided in
the FSA at paragraph 21 are: Drug or alcohol abuse, stealing, fighting,
intimidation of others, etc. The agreement specifically says that the
list is not exhaustive. Therefore, we propose to add to this list
``displays sexual predatory behavior.''
Finally, in keeping with the July 30 Order in Flores v.
Sessions, the proposed rule states that placement in a secure RTC may
not occur unless a licensed psychologist or psychiatrist determines
that the UAC poses a risk of harm to self or others.
Section 410.203 also sets forth review and approval of the decision
to place a UAC in a secure facility consistent with the FSA. The FSA
states that the determination to place a minor in a secure facility
shall be reviewed and approved by the ``regional juvenile
coordinator.'' This proposed rule uses the term ``Federal Field
Specialist,'' as this is the official closest to such juvenile
coordinator for ORR. (Note: Although not covered in this proposed rule,
ORR also recognizes that the TVPRA at 8 U.S.C. 1232(c)(2)(A) delegates
to the Secretary of HHS the requirement for prescribing procedures
governing agency review, on a monthly basis, of secure placements. ORR
directs readers to sections 1.4.2. and 1.4.7 of the ORR Policy Guide
(available at: https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied) for these procedurals under the
TVPRA.)
Proposed 45 CFR 410.204--Considerations When Determining Whether an
Unaccompanied Alien Child is an Escape Risk
Section 410.204 describes the considerations ORR takes into account
when determining whether a UAC is an escape risk. This part is
consistent with how the term ``escape risk'' is used in the FSA. The
TVPRA removes the factor of being an escape risk as a ground upon which
ORR may place a UAC in a secure facility, even though it constitutes
permissible grounds under the FSA. The factor of escape risk, however,
is still relevant to the evaluation of transfers between ORR facilities
under the FSA as being an escape risk might cause a UAC to be stepped
up from a non-secure level of care to a staff secure level of care
where there is a higher staff-UAC ratio and a secure perimeter at the
facility. Notably, an escape risk differs from a ``risk of flight,''
which is a term of art used in immigration law regarding an alien's
risk of not appearing for his or her immigration proceedings.
Proposed 45 CFR 410.205--Applicability of Section 410.203 for Placement
in a Secure Facility
Section 410.205 provides that ORR does not place a UAC in a secure
facility pursuant to Sec. 410.203 if less restrictive alternatives,
such as a staff secure facility or another licensed program, are
available and appropriate in the circumstances.
Proposed 45 CFR 410.206--Information for Unaccompanied Alien Children
Concerning the Reasons for His or Her Placement in a Secure or Staff
Secure Facility
Section 410.206 specifies that, within a reasonable period of time,
ORR provides each UAC placed in or transferred to a secure or staff
secure facility with a notice of the reasons for the placement in a
language the UAC understands.
Proposed 45 CFR 410.207--Custody of an Unaccompanied Alien Child Placed
Pursuant to This Subpart
Section 410.207 specifies who has custody of a UAC under subpart B
of these rules. The regulation specifies that upon release to an
approved sponsor, a UAC is no longer in the custody of ORR. ORR would
continue to have ongoing monitoring responsibilities under the HSA and
TVPRA, but would not be the legal or physical custodian. See, e.g., 6
U.S.C. 279(b)(1)(L); 8 U.S.C. 1232(c)(3)(B). This interpretation
accords with ORR's longstanding interpretation, as well as provisions
of the FSA (see e.g., paragraphs 15 through 17, discussing ``release''
from custody). This provision recognizes that once a UAC is released,
he or she is outside the custody of HHS and ORR.
Proposed 45 CFR 410.208--Special Needs Minors
Section 410.208 describes ORR's policy regarding placement of a
special needs minor. Note that an RTC may be considered a secure level
of care and is discussed in section 410.203 of this Part.
[[Page 45507]]
Proposed 45 CFR 410.209--Procedures During an Emergency or Influx
Section 410.209 describes the procedures ORR follows during an
emergency or influx. The FSA defines ``emergency'' and ``influx.'' HHS
proposes to incorporate those definitions into its regulations with
minor changes, consistent with the definitions in proposed 8 CFR 236.3.
In addition, the FSA states that in the case of an emergency or influx
of minors into the United States, UACs \22\ should be placed in a
licensed program as ``expeditiously as possible.''
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\22\ While the text of the FSA only uses the term ``minors,''
HHS has interpreted this term to include UACs, who may or may not
meet the definition of ``minor'' in the FSA, given the subsequent
enactment of the TVPRA, and the fact that HHS does not have custody
of juveniles who are not UACs.
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However, as DHS does, ORR also proposes a written plan describing
the reasonable efforts it will take to place all UACs as expeditiously
as possible into a licensed shelter when there is an influx or
emergency consistent with proposed 410.209.
Proposed 45 CFR 410 Subpart C, Releasing an Unaccompanied Alien Child
From ORR Custody
Proposed 45 CFR 410.300--Purpose of This Subpart
As described in Sec. 410.300, the purpose of this subpart is to
address the policies and procedures used to release a UAC from ORR
custody to an approved sponsor.
Proposed 45 CFR 410.301--Sponsors to Whom ORR Releases an Unaccompanied
Alien Child
As specified in 410.301, ORR releases a UAC to a sponsor without
unnecessary delay when ORR determines that continued ORR custody of the
UAC is not required either to secure the UAC's timely appearance before
DHS or the immigration courts, or to ensure the UAC's safety or the
safety of others.
Section 410.301 also contains the list of individuals (and
entities) to whom ORR releases a UAC. ORR refers to the individuals and
entities in this list as ``sponsors,'' regardless of their specific
relationship with the UAC. The list follows the order of preference set
out in the FSA.
Proposed 45 CFR 410.302--Sponsor Suitability Assessment Process
Requirements Leading to Release of an Unaccompanied Alien Child From
ORR Custody to a Sponsor
Section 410.302 outlines the process requirements leading to
release of a UAC from ORR custody to a sponsor (also referred to as
``custodian''). The FSA at paragraph 17 allows ORR the discretion to
require a suitability assessment prior to release. Likewise, the TVPRA
provides that ORR may not release a UAC to a potential sponsor unless
ORR makes a determination that the proposed custodian is ``capable of
providing for the child's physical and mental well-being. Such
determination shall, at a minimum, include verification of the
custodian's identity and relationship to the child, if any, as well as
an independent finding that the individual has not engaged in any
activity that would indicate a potential risk to the child.'' 8 U.S.C.
1232(c)(3)(A). As such, this proposed rule requires a background check,
including at least a verification of identity for potential sponsors in
all circumstances.
Like the FSA, the proposed rule also allows for the suitability
assessment to include an investigation of the living conditions in
which the UAC would be placed and the standard of care he or she would
receive, interviews of household members, a home visit, and follow-up
visits after release. Furthermore, where the TVPRA requires a home
study, as specified in 8 U.S.C. 1232(c)(3)(B), the proposed regulations
acknowledge such requirement.
The FSA says that the proposed sponsor must agree to the conditions
of release by signing a custodial affidavit (Form I-134) and release
agreement. However, the Form I-134 is a DHS form, and ORR does not use
such form. Therefore, this proposed rule would have the sponsor sign an
affirmation of abiding by the sponsor care agreement, which is the
historical agreement and accompanying form ORR has used so that the
sponsor acknowledges his or her responsibilities.
For many years the suitability assessment has involved prospective
sponsors and household members to be fingerprinted and for background
checks to be run on their biometric and biographical data to ensure
that release of a UAC to prospective sponsors would be safe.
Fingerprinting of potential sponsors and household members is
consistent with child welfare provisions. For example, all states
require background checks for prospective foster care and adoptive
parents, and kinship caregivers typically must meet most of these same
requirements. See ``Background Checks for Prospective Foster, Adoptive,
and Kinship Caregivers,'' available at: https://www.childwelfare.gov/pubPDFs/background.pdf#page=2&view=Who needs background checks (last
visited Aug. 4, 2018). As of the time of the publication of the report,
in 48 states, all adults residing in the home also were subject to
background checks. A criminal records check for adult sponsors and
other household members will check the individual's name in State,
local or Federal law enforcement agencies' records, including databases
of records for any history of criminal convictions. And, nearly all
states require a check of national criminal records. See also 42 U.S.C.
671(a)(20) (providing that states receiving federal funding for foster
care and adoption assistance provide ``procedures for criminal records
checks, including fingerprint-based checks of national crime
information databases (as defined in section 534(e)(3)(A) 1 of title
28), for any prospective foster or adoptive parent before the foster or
adoptive parent may be finally approved for placement of a child . . .
.'') In many, if not most cases, as well, while a sponsor may be a
biological parent, the child arrived unaccompanied, and may not have
lived with the parent for much or a significant portion of his or her
childhood.
Section 410.302(e) lists the conditions and principles of release.
ORR also invites public comment on whether to set forth in the
final rule ORR's general policies concerning the following:
Requirements for home studies (see 8 U.S.C. 1232(c)(3)(B)
for statutory requirements for a home study);
Denial of release to a prospective sponsor, criteria for
such denial, and appeal; and
Post-release services requirements. Note: in accordance
with the Flores v. Sessions July 30, 2018 Court order, ORR states in
the preamble that it will not have a blanket policy of requiring post-
release services to be scheduled prior to release--for those UACs who
required a home study--but will evaluate such situations on case-by-
case basis, based on the particularized needs of the UAC as well as the
evaluation of the sponsor, and whether the suitability of the sponsor
may depend upon having post-release services in place prior to any
release. Because this statement reflects an interpretation of what may
constitute an ``unnecessary'' delay of release, it is not necessary to
include the policy on post-release services being in place, discussed
above, explicitly in the regulation text, as the requirement for
release without ``unnecessary delay'' is already included in the
substantive rule.
Current policies are set forth in the UAC Policy Guide available at
https://www.acf.hhs.gov/orr/resource/children-
[[Page 45508]]
entering-the-united-states-unaccompanied at: Sec. Sec. 2.4 through
2.7.
Proposed 45 CFR 410 Subpart D--What Standards Must Licensed Programs
Meet?
Proposed 45 CFR 410.400--Purpose of This Subpart
As stated at Sec. 410.400, this subpart covers the standards that
licensed programs must meet in keeping with the FSA, as set out in the
principles of the FSA, including the general principles of the
settlement agreement of treating all minors in custody with dignity,
respect, and special concern for their particular vulnerability.
Proposed 45 CFR 410.401--Applicability of This Subpart
Section 410.401 states that the subpart applies to all licensed
programs.
Proposed 45 CFR 410.402--Minimum Standards Applicable to Licensed
Programs
Section 410.402 reflects the minimum standards of care listed in
Exhibit 1 of the FSA. ORR expects licensed programs to easily meet
those minimum standards and, in addition, to strive to provide
additional care and services to the UACs in their care. The
requirements of 410.402 are consistent with the Flores v. Sessions
Court Order of July 30, 2018, as they require that licensed programs
comply with applicable state child welfare laws and regulations, and
that UACs be permitted to ``talk privately on the phone, as permitted
by the house rules and regulations.''
Proposed 45 CFR 410.403--Ensuring That Licensed Programs are Providing
Services as Required by These Regulations
Section 410.403 describes how ORR ensures that licensed programs
are providing services as required by these regulations. As stated in
this section, to ensure that licensed programs continually meet the
minimum standards and are consistent in their provision of services,
ORR monitors compliance with these rules. The FSA does not contain
standards for how often monitoring shall occur, and this regulation
does not propose to do so. At present, ORR provides further information
on such monitoring in section 5.5 of the ORR Policy Guide (available
at: https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-5#5.5).
Proposed 45 CFR 410 Subpart E--Provisions for Transportation of an
Unaccompanied Alien Child
This subpart concerns the safe transportation of a UAC while he or
she is in ORR's custody.
Proposed 45 CFR 410.500--Purpose of This Subpart
Section 410.500 describes how transportation is conducted for a UAC
in ORR's custody. The FSA has two provisions that govern transportation
specifically, which are incorporated in this proposed rule at Sec.
410.501. First, a UAC cannot be transported with unrelated detained
adults. Second, ORR assists in making transportation arrangements when
ORR plans to release a UAC under the sponsor suitability provisions,
and ORR may, in its discretion, provide transportation to a UAC.
Proposed 45 CFR 410 Subpart F, Transfer of an Unaccompanied Alien Child
This subpart sets forth the provisions for transferring a UAC
between HHS facilities. In some cases, ORR may need to change the
placement of a UAC. This may occur for a variety of reasons, including
a lack of detailed information at the time of apprehension, a change in
the availability of licensed placements, or a change in the UAC's
behavior, mental health situation, or immigration case.
Proposed 45 CFR 410.600--Principles Applicable to Transfer of an
Unaccompanied Alien Child
Section 410.600 sets out the principles that apply to the transfer
of a UAC between HHS facilities. The transfer of a UAC under the FSA
concerns mainly two issues: (1) That a UAC is transferred with all his
or her possessions and legal papers, and (2) that the UAC's attorney,
if the UAC has one, is notified prior to a transfer, with some
exceptions. This rule adopts the FSA provisions concerning transfer of
a UAC.
Proposed 45 CFR 410 Subpart G--Age Determinations
This subpart concerns age determinations for UACs.
Proposed 45 CFR 410.700--Conducting Age Determinations
Section 410.700 incorporates both the provisions of the TVPRA, 8
U.S.C. 1232(b)(4), and the requirements of the FSA, in setting forth
standards for age determinations. These take into account multiple
forms of evidence, including the non-exclusive use of radiographs, and
may involve medical, dental, or other appropriate procedures to verify
age.
Proposed 45 CFR 410.701--Treatment of an Individual Who Appears To Be
an Adult
Section 410.701 also accords with the FSA and the TVPRA, and states
that if the procedures of Sec. 410.700 would result in a reasonable
person concluding that an individual is an adult, despite his or her
claim to be a minor, ORR must treat such person as an adult for all
purposes. As with 410.700, ORR may take into account multiple forms of
evidence, including the non-exclusive use of radiographs, and may
require such an individual to submit to a medical or dental examination
conducted by a medical professional or other appropriate procedures to
verify age.
Proposed 45 CFR 410 Subpart H, Unaccompanied Alien Children's
Objections to ORR Determinations
This subpart concerns objections of a UAC to ORR placement.
Proposed 45 CFR 410.800-801--Procedures
While the FSA at Paragraph 24(B) and 24(C) contains procedures for
judicial review of a UAC's placement in shelter (including in secure or
staff-secure), and a standard of review, the agreement is clear that a
reviewing federal district court must have both ``jurisdiction and
venue.'' Also, once these regulations are finalized and the FSA is
terminated, it would be even clearer that any review by judicial action
must occur under a statute where the government has waived sovereign
immunity, such as the Administrative Procedure Act. Therefore, we are
not proposing regulations for most of paragraphs 24(B) and 24(C) of the
FSA, although we do propose that all UACs will continue to receive a
notice stating as follows:
``ORR usually houses persons under the age of 18 in an open
setting, such as a foster or group home, and not in detention
facilities. If you believe that you have not been properly placed or
that you have been treated improperly, you may call a lawyer to seek
assistance. If you cannot afford a lawyer, you may call one from the
list of free legal services given to you with this form.''
The proposed rule also contains a requirement parallel to that of
the FSA that when UACs are placed in a more restrictive level of care,
such as a secure or staff secure facility, they receive a notice--
within a reasonable period of time--explaining the reasons for housing
them in the more restrictive
[[Page 45509]]
level of care. In addition, the proposed rule is consistent with the
July 30, 2018 order of the Flores court by stating that the notice must
be in a language the UAC understands.
Finally, consistent with the FSA, the proposed provision requires
that ORR promptly provide each UAC not released with a list of free
legal services providers compiled by ORR and that is provided to UAC as
part of a Legal Resource Guide for UAC (unless previously given to the
UAC).
Proposed 45 CFR 410.810 ``810 Hearings''
The proposed rule makes no provision for immigration judges
employed by the DOJ to conduct bond redetermination hearings for UACs
under paragraph 24(A) of the FSA. It is not clear statutory authority
for DOJ to conduct such hearings still exists, and indeed DOJ argued in
the Ninth Circuit that it does not. In the HSA, Congress assigned
responsibility for the ``care and placement'' of UACs to HHS's ORR, and
specifically barred ORR from requiring ``that a bond be posted for [a
UAC] who is released to a qualified sponsor.'' 6 U.S.C. 279(b)(1)(A),
(4). In the TVPRA, Congress reaffirmed HHS's responsibility for the
custody and placement of UACs. 8 U.S.C. 1232(b)(1), (c). The TVPRA also
imposed detailed requirements governing ORR's release of UACs to
proposed custodians--including, for example, a provision authorizing
ORR to consider a UAC's dangerousness and risk of flight in making
placement decisions. 8 U.S.C. 1232(c)(2)(A). Congress thus appears to
have vested HHS, not DOJ, with control over the custody and release of
UACs, and to have deliberately omitted any role for immigration judges
in this area.
In Flores v. Sessions, the U.S. Court of Appeals for the Ninth
Circuit nonetheless concluded that neither the HSA nor the TVPRA
superseded the FSA's bond-hearing provision. 862 F.3d at 881. But the
court did not identify any affirmative statutory authority for
immigration judges employed by DOJ to conduct the bond hearings for
UACs required by paragraph 24(A) of the FSA. ``[A]n agency literally
has no power to act . . . unless and until Congress confers power upon
it.'' La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986). HHS,
however, as the legal custodian of UACs who are in federal custody,
clearly has the authority to conduct the hearings envisioned by the FSA
and in accordance with the court's ruling in Flores v. Sessions. It
also is more sensible, as a policy matter, for the same agency (HHS)
charged with responsibility for custody and care of UACs also to
conduct the hearings envisioned by the FSA.
This rule in turn proposes HHS regulations to afford the same type
of hearing paragraph 24(A) calls for, and to recognize the transfer of
responsibility of care and custody of UAC from the former INS to HHS
ORR. Specifically, rather than providing for DOJ-employed immigration
judges to preside over these hearings, this rule includes provisions
whereby HHS would create an independent hearing officer process that
would be guided by the immigration judge bond hearing process currently
in place for UACs under the FSA. The basic idea would be to provide
essentially the same substantive protections, but through a neutral
adjudicator at HHS rather than DOJ.
This proposed rule implements the FSA's substantive protections,
and responds to the HSA and TVPRA and the transfer of responsibility
for UACs, when they are in government custody, to HHS. The reasonable
method of reconciling paragraph 24(A) of the FSA with the HSA and
TVPRA, is for the Secretary of HHS to appoint an independent hearing
officer or officers who would conduct the hearings envisioned by the
FSA for those UAC who qualify for such review.
Under this proposal, the Secretary would appoint independent
hearing officers to determine whether a UAC, if released, would present
a danger to community (or flight risk). The hearing officer would not
have the authority to release a UAC, as the Flores court has already
recognized that Paragraph 24(A) of the FSA does not permit a
determination over the suitability of a sponsor. Specifically, in
reviewing this issue, the Ninth Circuit explained ``as was the case
when the Flores Settlement first went into effect, [a bond hearing]
permits a system under which unaccompanied minors will receive bond
hearings, but the decision of the immigration judge will not be the
sole factor in determining whether and to whose custody they will be
released. Immigration judges may assess whether a minor should remain
detained or otherwise in the government's custody, but there must still
be a separate decision with respect to the implementation of the
child's appropriate care and custody.'' Flores, 862 F.3d at 878.
Similarly, the district court stated: ``To be sure, the TVPRA addresses
the safety and secure placement of unaccompanied children . . . . But
identifying appropriate custodians and facilities for an unaccompanied
child is not the same as answering the threshold question of whether
the child should be detained in the first place--that is for an
immigration judge at a bond hearing to decide . . . . Assuming an
immigration judge reduces a child's bond, or decides he or she presents
no flight risk or danger such that he needs to remain in HHS/ORR
custody, HHS can still exercise its coordination and placement duties
under the TVPRA.'' Flores v. Lynch, No. CV 85-4544 DMG at 6 (C.D. Cal.
Jan. 20, 2017).
Thus, the hearing officer would decide only the issues presented by
paragraph 24(A) of the FSA--whether the UAC would present a danger to
the community or a risk of flight (that is, not appearing for his or
her immigration hearing) if released. For the majority of children in
ORR custody, ORR has determined they are not a danger and therefore has
placed them in shelters, group homes, and in some cases, staff secure
facilities. For these children, a hearing is not necessary or even
beneficial, and would simply be a misuse of limited government
resources. However, for some children placed in secure facilities, the
hearing may assist them in ultimately being released from ORR custody
in the event a suitable sponsor is or becomes available.
As is the case now, under section 2.9 of the ORR Policy Guide
(available at: https://www.acf.hhs.gov/orr/resource/children-entering-the-united-states-unaccompanied-section-2#2.9), the hearing officer's
decision that the UAC is not a danger to the community will supersede
an ORR determination on that question. While currently, immigration
judge decisions on such issues may be appealed to the Board of
Immigration Appeals (BIA), HHS does not have a two-tier administrative
appellate system that mirrors the immigration judge-BIA hierarchy. To
provide similar protections without such a rigid hierarchy, this
proposed rule would allow appeal to the Assistant Secretary of ACF (if
the appeal is received by the Assistant Secretary within 30 days of the
original hearing officer decision). The Assistant Secretary would
review factual determinations using a clearly erroneous standard, and
review legal determinations on a de novo basis. In such cases, where
ORR appeals to the Assistant Secretary of ACF, there would be no stay
of the hearing officer's decision unless the Assistant Secretary finds,
within 5 business days of the hearing officer decision, that a failure
to stay the decision would result in a significant danger to the
community presented by the UAC. The written stay decision would be
based on clear behaviors of the UAC while in care, and/or documented
criminal or juvenile behavior records from the UAC.
[[Page 45510]]
Otherwise, a hearing officer's decision that a UAC would not be
dangerous (or a flight risk) if released, would mean that as soon as
ORR determined a suitable sponsor (or if ORR has done so already) it
must release in accordance with its ordinary procedures on release.
Under current Flores hearing rules, and in accordance with the
Flores district court's order analogizing Flores hearings to bond
hearings for adults, immigration judges apply the standard of Matter of
Guerra, 24 I&N Dec. 37 (BIA 2006).\23\ Thus, the burden is on the UAC
to demonstrate that he or she would not be a danger to the community
(or flight risk) if released. However, due to the unique
vulnerabilities of children and subsequent enactment of the TVPRA, we
request comments on whether the burden of proof should be on ORR to
demonstrate that the UAC would be a danger or flight risk if released.
As is the case currently, the standard would be a ``preponderance'' of
the evidence.
---------------------------------------------------------------------------
\23\ The Flores District Court specifically cited the law of 8
U.S.C. 1226 and 8 CFR 1003.19, 1236.1(d). See Flores v. Sessions,
2:85-cv-04544, supra at 2, 6.
---------------------------------------------------------------------------
ORR also would take into consideration the hearing officer's
decision on a UAC's level of danger when assessing the UAC's placement
and conditions of placement, but the hearing officer would not have the
authority to order a particular placement for a UAC.
Requests for a hearing under this section (an ``810 hearing'')
could be made by the child in ORR care, by a legal representative of
the child, or by parents/legal guardians on their child's behalf. These
parties could submit a written request for the 810 hearing to the care
provider using the ORR form (See https://www.acf.hhs.gov/sites/default/files/orr/request_for_a_flores_bond_hearing_01_03_2018e.pdf (last
visited Aug. 12, 2018)), or through a separate written request that
provides the information requested in the form. ORR would provide a
notice of the right to request the 810 hearing to UACs in secure and
staff secure facilities. ORR also expects that the hearing officer
would create a process for UACs or their representatives to directly
request a hearing to determine danger (or flight risk). During the 810
hearing, the UAC could choose to be represented by a person of his or
her choosing, at no cost to the government. The UAC could present oral
and written evidence to the hearing officer and could appear by video
or teleconference. ORR could also choose to present evidence either in
writing, or by appearing in person, or by video or teleconference.
Because the 810 hearing process would be unique to ORR and HHS, if
a UAC turns 18 years old during the pendency of the hearing, the
deliberations would have no effect on DHS detention (if any).
If the hearing officer determines that the UAC would be a danger to
the community (or a flight risk) if released, the decision would be
final unless the UAC later demonstrates a material change in
circumstances to support a second request for a hearing. Similarly,
because ORR may not have yet located a suitable sponsor at the time a
hearing officer issues a decision, ORR may find that circumstances have
changed by the time a sponsor is found such that the original hearing
officer decision should no longer apply. Therefore, the proposed
regulation states that ORR may request the hearing officer to make a
new determination if at least one month has passed since the original
decision, and ORR can show that a material change in circumstances
means the UAC should no longer be released due to danger (or flight
risk).
HHS invites public comment on whether the hearing officers for the
810 hearings should be employed by the Departmental Appeals Board,
either as Administrative Law Judges or hearing officers, or whether HHS
would create a separate office for hearings, similar to the Office of
Hearings in the Centers for Medicare & Medicaid Services. See https://www.cms.gov/About-CMS/Agency-Information/CMSLeadership/Office_OHI.html.
Furthermore, while the FSA contains procedures for judicial review
of a UAC's placement in a secure or staff-secure shelter, and a
standard of review, once these regulations are finalized and the FSA is
vacated, any review by judicial actions would occur in accordance with
the Administrative Procedure Act and any other applicable Federal
statute. Therefore, we are not proposing regulations for most of
paragraphs 24(B) and 24(C) of the FSA.
VI. Statutory and Regulatory Requirements
The Departments have considered numerous statutes and executive
orders related to rulemaking. The following sections summarize our
analyses based on a number of these statutes and executive orders.
A. Executive Orders 12866 and 13563: Regulatory Review
Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') direct agencies
to assess the costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health and safety effects, distributive impacts, and equity).
Executive Order 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. OMB has designated this rule a significant
regulatory action, although not an economically significant regulatory
action, under Executive Order 12866. Accordingly, OMB has reviewed this
regulation.
(1) Background and Purpose of the Proposed Rule
These proposed regulations aim to terminate the FSA. They would
codify current requirements of the FSA and court orders enforcing terms
of the FSA, as well as relevant provisions of the HSA and TVPRA. The
Federal government's care of minors and UACs has complied with the FSA
and related court orders for over 20 years, and complies with the HSA
and TVPRA.
The proposed rule applies to minors and UACs encountered by DHS,
and in some cases, their families. CBP and ICE encounter minors and
UACs in different manners. CBP generally encounters minors and UACs at
the border. Generally, ICE encounters minors either upon transfer from
CBP to an FRC, or during interior enforcement actions. ICE generally
encounters UACs when they are transferred from CBP custody to ORR
custody, as well as during interior enforcement actions.
CBP
CBP's facilities at Border Patrol stations and ports of entry
(POEs) are processing centers, designed for the temporary holding of
individuals. CBP facilities are designed to meet the primary mission of
CBP, which is to facilitate legitimate travel and trade. CBP's
facilities are not designed, nor are there services in place, to
accommodate large numbers of minors and UACs waiting for transfer to
ICE or ORR, even for the limited period for which CBP is generally
expected to have custody of minors and UACs, generally 72 hours or
less. All minors and UACs in CBP facilities are provided access to safe
and sanitary facilities; functioning toilets and sinks; food; drinking
water; emergency medical assistance, as appropriate; and adequate
temperature control and ventilation. To ensure their safety and well-
being, UACs in CBP facilities are supervised and are generally
segregated from unrelated
[[Page 45511]]
adults; older, unrelated UACs are generally segregated by gender.
CBP has apprehended or encountered 61,610 minors accompanied by
their parent(s) or legal guardian(s) (defined as a ``family unit''),
and 55,090 UACs on average annually for the last three fiscal years. In
Fiscal Year 2017, CBP apprehended or encountered approximately 105,000
aliens as part of a family unit. Table 2 shows the annual number of
accompanied minors (that is, minors accompanied by their parent(s) or
legal guardian(s)) and UACs CBP has apprehended or encountered in
Fiscal Years (FYs) 2010 through 2017.
Table 2--U.S. Customs and Border Protection Accompanied Minors and Unaccompanied Alien Children Nationwide
Apprehensions and Encounters FY 2010-FY 2017
----------------------------------------------------------------------------------------------------------------
Accompanied
Fiscal year minors UACs Total
----------------------------------------------------------------------------------------------------------------
2010............................................................ 22,937 19,234 42,171
2011............................................................ 13,966 17,802 31,768
2012............................................................ 13,314 27,031 40,345
2013............................................................ 17,581 41,865 59,446
2014............................................................ 55,644 73,421 129,065
2015............................................................ 45,403 44,910 90,313
2016............................................................ 74,798 71,067 145,865
2017............................................................ 64,628 49,292 113,920
----------------------------------------------------------------------------------------------------------------
CBP makes a case by case determination as to whether an alien is a
UAC based upon the information and evidence available at the time of
encounter. When making this determination, CBP refers to section
462(g)(2) of the HSA, which defines a UAC as a child who-- (A) has no
lawful immigration status in the United States; (B) has not attained 18
years of age; and (C) with respect to whom-- (i) there is no parent or
legal guardian in the United States; or (ii) no parent or legal
guardian in the United States is available to provide care and physical
custody.
Once CBP determines that an alien is a UAC, CBP must process the
UAC consistent with the provisions of the TVPRA, which requires the
transfer of a UAC who is not statutorily eligible to withdraw his or
her application for admission into the custody of ORR within 72 hours
of determining that the juvenile meets the definition of a UAC, except
in exceptional circumstances.
If, upon apprehension or encounter, CBP determines that an alien is
a minor who is part of a family unit, the family unit is processed
accordingly and transferred out of CBP custody. If appropriate, the
family unit may be transferred to an ICE FRC. If the FSA were not in
place, CBP would still make a determination of whether an alien was a
UAC or part of a family unit upon encountering an alien, in order to
determine appropriate removal proceedings pursuant to the TVPRA.
ICE
When ICE encounters a juvenile during an interior enforcement
action, ICE performs an interview to determine the juvenile's
nationality, immigration status, and age. Pursuant to the TVPRA, an
alien who has been encountered and has no lawful immigration status in
the United States, has not attained 18 years of age, and has no parent
or legal guardian in the United States available to provide care and
physical custody will be classified as a UAC. The number of juvenile
arrests made by ICE is significantly smaller than CBP across all fiscal
years as shown in Table 3. An individual would have to be arrested to
be booked into an FRC.
Table 3--FY 14-FY 17 Juvenile Book-Ins With ICE as Arresting Agency
------------------------------------------------------------------------
Book-ins of
Fiscal year accompanied UAC Book-ins
minors
------------------------------------------------------------------------
2014.................................... 3 285
2015.................................... 8 200
2016.................................... 108 164
2017.................................... 123 292
------------------------------------------------------------------------
Once ICE determines that an alien is a UAC, ICE must process the
UAC consistent with the provisions of the TVPRA, which requires the
transfer of a UAC into the custody of ORR within 72 hours of
determining that the juvenile meets the definition of a UAC, except in
exceptional circumstances.
At the time that the FSA was agreed to in 1997, INS generally did
not detain alien family units. Instead, family units apprehended or
encountered at the border were generally released. When a decision was
made to detain an adult family member, the other family members were
generally separated from that adult. However, beginning in 2001, in an
effort to maintain family unity, INS began opening FRCs to accommodate
families who were seeking asylum but whose cases had been drawn out.
INS initially opened what today is the Berks Family Residential Center
(Berks) in Berks, Pennsylvania, in 2001. ICE also operated the T. Don
Hutto medium-security facility in Taylor, Texas as an FRC from 2006 to
2009. In response to the influx of UACs and family units in 2014 in the
Rio Grande Valley, ICE opened family residential centers in Artesia,
New Mexico in June of 2014; Karnes County, Texas in July of 2014; and
Dilley, Texas in December of 2014. The Artesia facility, which was
intended as a temporary facility while more permanent facilities were
contracted for and established, was closed on December 31, 2014.
The South Texas Family Residential Center in Dilley, Texas (Dilley)
has 2,400 beds, Berks has 96 beds, and the
[[Page 45512]]
Karnes County Residential Center in Karnes County, Texas (Karnes) has
830 beds. The capacity of the three FRCs provide for a total of 3,326
beds. As a practical matter, given varying family sizes and
compositions, and housing standards, not every available bed will be
filled at any given time, and the facilities may still be considered to
be at capacity even if every available bed is not filled. ICE did not
maintain a consistent system of records of FRC intakes until July 2014.
Since 2015, there has been an annual average of 31,458 intakes of
adults and minors at the FRCs. The count of FRC intakes from July 2014
through FY 2017 is shown in Table 4.
Table 4--Family Residential Center (FRC) Intakes FY 2014-FY 2017
----------------------------------------------------------------------------------------------------------------
FRC adult FRC minor
Fiscal year FRC intakes intakes intakes
----------------------------------------------------------------------------------------------------------------
Q4 2014 *....................................................... 1,589 711 878
2015............................................................ 13,206 5,964 7,242
2016............................................................ 43,342 19,452 23,890
2017............................................................ 37,825 17,219 20,606
----------------------------------------------------------------------------------------------------------------
* 2014 only includes the fourth quarter of FY 2014: July, August, and September.
As previously discussed, due to court decisions in 2015 and 2017,
DHS ordinarily uses its FRCs for the detention of non-UAC minors and
their accompanying parent(s) or legal guardian(s) for periods of up to
approximately 20 days. Since 2016, the average number of days from the
book-in date to the release date at all FRCs for both minors and adults
has been less than 15 days. Table 5 shows the average number of days
from book-in date to release date at FRCs for FY 2014 through FY 2017,
based on releases by fiscal year. Data on releases are available for
all four quarters of FY 2014.
Table 5--Average Number of Days From Book-In Date to Release Date at Family Residential Centers FY 2014-FY 2017
----------------------------------------------------------------------------------------------------------------
Average days Average days
Average number for minors for adults
Fiscal year of days (<18 years (>=18 years
old) old)
----------------------------------------------------------------------------------------------------------------
2014............................................................ 47.4 46.7 48.4
2015............................................................ 43.5 43.1 44.0
2016............................................................ 13.6 13.6 13.6
2017............................................................ 14.2 14.2 14.1
----------------------------------------------------------------------------------------------------------------
Table 6 shows the reasons for the release of adults and minors from
FRCs in FY 2017. As it indicates, the large majority of such
individuals were released on an order of their own recognizance or
paroled.
Table 6--FY 2017 Reasons for Release
[Adults and minors]
------------------------------------------------------------------------
Reason for release Percent
------------------------------------------------------------------------
Order of Recognizance................................... 76.9
Paroled................................................. 21.3
Order of Supervision.................................... 1.7
Bonded Out.............................................. 0.1
Prosecutorial Discretion................................ <0.0
------------------------------------------------------------------------
Table 7 shows the number of adults and minors removed from the
United States from FRCs since FY 2014. Removals include returns.
Returns include Voluntary Departures (including Voluntary Returns) \24\
and Withdrawals Under Docket Control.
---------------------------------------------------------------------------
\24\ For the purposes of this table, Voluntary Return refers to
the DHS grant of permission for an alien to depart the United
States, while Voluntary Departure refers to the immigration judge's
grant of permission for an alien to depart the United States.
Table 7--Removals From FRCs FY 2014-FY 2017
[Adults and minors]
------------------------------------------------------------------------
Fiscal year Removals
------------------------------------------------------------------------
Q4 2014 *............................................... 390
2015.................................................... 430
2016.................................................... 724
2017.................................................... 977
------------------------------------------------------------------------
* 2014 only includes the fourth quarter of FY 2014: July, August, and
September.
The FSA does not impose requirements on secure facilities used for
the detention of juveniles. Juveniles may be placed in secure
facilities if they meet the criteria listed in paragraph 21 of the FSA.
HHS
The proposed rule also applies to UACs who have been transferred to
HHS care. Upon referral, HHS promptly places UACs in the least
restrictive setting that is in the best interests of the child, taking
into consideration danger to self, danger to the community, and risk of
flight. HHS takes into consideration the unique nature of each child's
situation and incorporates child welfare principles when making
placement and release decisions that are in the best interest of the
child.
HHS places UACs in a network of over 100 shelters in 17 states. For
its first nine years at HHS, fewer than 8,000 UACs were served annually
in this program. Since FY 2012, this number has jumped dramatically,
with a total of 13,625 children referred to HHS by the end of FY 2012.
Between FY 2012 and FY 2018--Year To Date (YTD) (June), HHS has
received a total of 267,354 UACs.
Table 8--UAC Referrals to HHS FY 2008-FY 2017
------------------------------------------------------------------------
Fiscal year Referrals
------------------------------------------------------------------------
2008.................................................... 6,658
2009.................................................... 6,089
2010.................................................... 7,383
2011.................................................... 6,560
2012.................................................... 13,625
2013.................................................... 24,668
2014.................................................... 57,496
2015.................................................... 33,726
[[Page 45513]]
2016.................................................... 59,170
2017.................................................... 40,810
------------------------------------------------------------------------
For FY 2018--YTD (June) the average length of stay (the time a
child is in custody from the time of admission to the time of
discharge) for UACs in the program is approximately 50 days. In FY
2018--June '18 the average length of care (the time a child has been in
custody, since the time of admission) for UACs in ORR care is
approximately 58 days. The overwhelming majority, over 90 percent, of
UACs are released to suitable sponsors who are family members within
the United States. UACs that are not released to a sponsor typically:
Age out or receive an order of removal and are transferred to DHS; are
granted voluntary departure and likewise transferred to DHS for
removal; or, obtain immigration legal relief and are no longer eligible
for placement in ORR's UAC program.
Table 9--Percentage of UACs by Discharge Type FY 18
[Through June 30th]
------------------------------------------------------------------------
Percentage of
Discharge type UACs
------------------------------------------------------------------------
Age Out................................................. 3.5
Age Redetermination..................................... 2.3
Immigration Relief Granted.............................. 0.2
Local Law Enforcement................................... 0.0
Ordered Removed......................................... 0.2
Other................................................... 0.3
Runaway from Facility................................... 0.4
Runaway on Field Trip................................... 0.1
Reunified (Individual Sponsor).......................... 90.0
Reunified (Program/Facility)............................ 1.3
Voluntary Departure..................................... 1.9
---------------
Total................................................. 100.0
------------------------------------------------------------------------
(2) Baseline of Current Costs
In order to properly evaluate the benefits and costs of
regulations, agencies must evaluate the costs and benefits against a
baseline. OMB Circular A-4 defines the ``no action'' baseline as ``the
best assessment of the way the world would look absent the proposed
action.'' The Departments consider their current operations and
procedures for implementing the terms of the FSA, the HSA, and the
TVPRA to be the baseline for this analysis, from which they estimate
the costs and benefits of the proposed rule. The baseline encompasses
the FSA that was approved by the court on January 28, 1997. It also
encompasses the 2002 HSA legislation transferring the responsibility
for the care and custody of UACs, including some of the material terms
of the FSA, to ORR, as well as the substantive terms of the 2008 TVPRA.
Finally, it includes the July 6, 2016 decision of the Ninth Circuit
affirming the district court's finding that the FSA ``unambiguously''
applies to both accompanied and unaccompanied minors, and that such
minors shall not be detained in unlicensed and secure facilities that
do not meet the requirements of the FSA. See Flores v. Lynch, 828 F.3d
898 (9th Cir. 2016). The section below discusses some examples of the
current cost for the Departments' operations and procedures under the
baseline. Because the costs described below are already being incurred,
they are not costs of this rule.
DHS
CBP incurs costs to comply with the FSA, including those related to
facility configurations, custodial requirements, and compliance
monitoring. To comply with the terms of the FSA, for example, CBP
reallocates space in its facilities to allow for separate holding areas
for families and/or UACs. Pursuant to the FSA, CBP provides minors and
UACs access to food; drinking water; functioning toilets and sinks;
adequate temperature and ventilation; emergency medical care, if
needed; and safe and sanitary facilities, which impose costs on CBP.
Related costs include, for example, the purchase of food; bottled
water; first aid kits; blankets, mats, or cots; and age-appropriate
transport and bedding. To ensure compliance with the FSA, CBP has added
fields in its electronic systems of records, so that CBP officers and
Border Patrol agents can continuously record the conditions of the hold
rooms and all custodial activities related to each minor or UAC, such
as medical care provided, welfare checks conducted, and any separation
from accompanying family members.
CBP has experienced other baseline costs from its national and
field office Juvenile Coordinators. Under current practice, the
national CBP Juvenile Coordinator oversees agency compliance with
applicable law and policy related to the treatment of minors and UACs
in CBP custody. The national CBP Juvenile Coordinator monitors CBP
facilities and processes through site visits and review of juvenile
custodial records. Along with the national CBP Juvenile Coordinator
role, CBP has field office and sector Juvenile Coordinators who are
responsible for managing all policies on the processing of juveniles
within CBP facilities, coordinating within CBP and across DHS
components to ensure the expeditious placement and transport of
juveniles placed into removal proceedings by CBP, and informing CBP
operational offices of any policy updates related to the processing of
juveniles (e.g., through correspondence, training presentations).
Moreover, CBP's Juvenile Coordinators serve as internal and external
agency liaisons for all juvenile processing matters.
CBP's baseline costs also include the use of translation services,
including contracts for telephonic interpretation services.
ICE also incurs facility costs to comply with the FSA. The costs of
operation and maintenance of the ICE FRCs for FY 2015-2017 are listed
in Table 10, provided by the ICE Office of Acquisition Management. The
costs account for the implementation of the FSA requirements, including
the cost for the facility operators to abide by all relevant state
standards. Two of the FRCs are operated by private contractors, while
one is operated by a local government, under contract with ICE. These
are the amounts that have been paid to private contractors or to the
local government to include beds, guards, health care, and education.
Table 10--Current Costs for FRCs
------------------------------------------------------------------------
Fiscal year FRC costs
------------------------------------------------------------------------
2015.................................................... $323,264,774
2016.................................................... 312,202,420
2017.................................................... 231,915,415
------------------------------------------------------------------------
The FRC costs are fixed-price agreements with variable costs added
on a monthly basis. Overall, the fixed-price agreements are not
dependent on the number of detainees present or length of stay, with
some exceptions. At Berks, the contract includes a per-person fee
charged in addition to the monthly fixed rate. At two of the FRCs,
Berks and Karnes, education is provided per the standards of a licensed
program set forth in the FSA, at a per-student, per-day cost. Since
FRCs are currently at limited available capacity and the configuration
of limited available capacity varies from day to day across all FRCs,
the number of children and adults vary at Berks day to day and the
number of children at Karnes vary day to day. Thus, these costs charged
to ICE vary from month to month.
In addition to the above example of current costs to operate the
FRCs, or the baseline cost, DHS (particularly CBP and ICE) incurs costs
to process, transfer, and provide transportation of minors and UACs
from the point of
[[Page 45514]]
apprehension to DHS facilities; from the point of apprehension or from
a DHS facility to HHS facilities; between facilities; for the purposes
of release; or for all other circumstances, in compliance with the FSA,
HSA, and TVPRA.
The baseline costs also include bond hearing for minors and family
units who are eligible for such hearings. When a minor or family unit
seeks a bond, ICE officers must review the request and evaluate the
individuals' eligibility as well as, where appropriate, set the initial
bond amount. Further, should the minor or family unit seek a bond
redetermination hearing before an immigration judge, ICE must transport
or otherwise arrange for the individuals to appear before the
immigration court.
ICE's baseline costs also include the use of translation services,
including contracts for telephonic interpretation services.
ICE also incurs baseline costs related to its Juvenile and Family
Residential Management Unit (JFRMU), which was created in 2007. JFRMU
manages ICE's policies affecting alien juveniles and families. The role
of ICE's Juvenile Coordinator is within JFRMU and is not a collateral
duty. JFRMU consists of specialized federal staff, as well as contract
subject matter experts in the fields of child psychology, child
development, education, medicine, and conditions of confinement. JFRMU
establishes policies on the management of family custody, UACs pending
transfer to the ORR, and UACs applying for Special Immigrant Juvenile
specific consent. JFRMU continues to pursue uniform operations
throughout its program through implementation of family residential
standards. These standards are continually reviewed and revised as
needed to ensure the safety and welfare of families awaiting an
immigration decision while housed in a family residential facility. DHS
conducts an inspection of each FRC at least annually to confirm that
the facility is in compliance with ICE Family Residential Standards.
The baseline costs include the monitoring of FSA compliance and
reporting to the court. Since 2007, JFRMU has submitted Flores Reports
annually, bi-annually, or monthly for submission to the court through
DOJ.
HHS
HHS' baseline costs were $1.4 billion in FY 2017. HHS funds private
non-profit and for-profit agencies to provide shelter, counseling,
medical care, legal services, and other support services to UACs in
custody. Funding levels for non-profit organizations totaled
$912,963,474 in FY 2017. Funding levels for for-profit agencies totaled
$141,509,819 in FY 2017. Program funded facilities receive grants or
contracts to provide shelter, including therapeutic care, foster care,
shelter with increased staff supervision, and secure detention care.
The majority of program costs (approximately 80 percent) are for bed
capacity care. Other services for UACs, such as medical care,
background checks, and family reunification services, make up
approximately 15 percent of the budget. In addition, some funding is
provided for limited post-release services to certain UACs.
Administrative expenses to carry out the program total approximately
five percent of the budget.
In FY 2016, HHS total approved funding for the UAC program was
$743,538,991, with $224,665,994 going to influx programming. In FY
2017, the total funding was $912,963,474, with $141,509,819 for influx.
These are examples of the types of costs the Departments incur
under current operations, and are not a result of this rule.
(3) Costs
This rulemaking would implement the relevant and substantive terms
of the FSA, with limited changes necessary to implement closely related
provisions of the HSA and TVPRA, and to ensure that the regulations set
forth a sustainable operational model of immigration enforcement. This
section assesses the cost of proposed changes to the current
operational environment.
The primary source of new costs for the proposed rule would be as a
result of the proposed alternative licensing process, changes to ICE
parole determination practices to align them with applicable statutory
and regulatory authority, and the costs of shifting hearings from DOJ
to HHS. The proposed alternative license for FRCs and changes to parole
determination practices may result in additional or longer detention
for certain minors, but DHS is unable to estimate the costs of this to
the Government or to the individuals being detained because we are not
sure how many individuals will be detained at FRCs after this rule is
effective or for how much longer individuals may be detained because
there are so many other variables to consider. The Departments seek
comment on how these costs might be reasonably estimated, given the
uncertainties.
Table 11 shows the proposed changes to the DHS current operational
status compared to the FSA. It contains a preliminary, high-level
overview of how the proposed rule would change DHS's current
operations, for purposes of the economic analysis. The table does not
provide a comprehensive description of all proposed provisions and
their basis and purpose.
Table 11--FSA and DHS Current Operational Status
----------------------------------------------------------------------------------------------------------------
Description of FSA DHS change from current
FSA paragraph No. provision DHS cite (8 CFR) practice
----------------------------------------------------------------------------------------------------------------
1, 2, 3............................ ``Party, ``plaintiff'' N/A................... None. (Note: These
and ``class member'' definitions are only
definitions. relevant to the FSA
insofar as the FSA exists
in the form of a consent
decree. Following
promulgation of a final
rule, the definitions
would no longer be
relevant. As a result, the
proposed rule does not
include these
definitions.)
4.................................. ``Minor'' definition.. 236.3(b)(1)........... None.
5.................................. ``Emancipated minor'' 236.3(b)(1)(i)........ None.
definition.
6.................................. ``Licensed program'' 236.3(b)(9)........... FSA defines a ``licensed
definition. program'' as one licensed
by an appropriate State
agency. DHS would not
define ``licensed
program,'' but instead
would define a ``licensed
facility'' as an ICE
detention facility that is
licensed by the state,
county, or municipality in
which it is located. DHS
would also add an
alternative licensing
scheme for family
residential centers
(FRCs), if the state,
county, or municipality
where the facility is
located does not have a
licensing scheme for such
facilities.
[[Page 45515]]
6+ Exhibit 1....................... Exhibit 1, standards 236.3(i)(4)........... DHS provides requirements
of a licensed program. that licensed facilities
must meet. (Note: Compared
with Exhibit 1, these
requirements contain a
slightly broadened
educational services
description to capture
current operations and
added that program design
should be appropriate for
length of stay (see
(i)(4)(iv)); amended
``family reunification
services'' provision to
more appropriately offer
communication with adult
relatives in the U.S. and
internationally, since DHS
only has custody of
accompanied minors so
reunification is
unnecessary (see proposed
236.3(i)(4)(iii)(H)).)
7.................................. ``Special needs 236.3(b)(2)........... None.
minor'' definition
and standard.
8.................................. ``Medium security N/A................... None. (Note: DHS only has
facility'' definition. secure or non-secure
facilities, so a
definition of ``medium
security facility'' is
unnecessary. As a result,
the proposed rule lacks
such a definition, even
though the FSA contains
one.)
9.................................. Scope of Settlement N/A................... None. (Note: This provision
Agreement, Effective imposes a series of
Date, and Publication. deadlines that passed
years ago, and/or do not
impose obligations on the
parties that continue
following termination of
the FSA. As a result, the
proposed rule does not
include this provision.)
10................................. Class Definition...... N/A................... None. (Note: Provision is
specific to the litigation
and is not a relevant or
substantive term of the
FSA, and is not included
in the rule.)
11................................. Place each detained 236.3(g)(2)(i), (i), None. (Note: 236.3(j)
minor in least (j)(4). tracks FSA paragraph14,
restrictive setting which is consistent with
appropriate for age FSA paragraph 11 but uses
and special needs. No different terms.)
requirement to
release to any person
who may harm or
neglect the minor or
fail to present minor
before the
immigration court.
11................................. The INS treats, and 236.3(a)(1)........... None.
shall continue to
treat, all minors in
its custody with
dignity, respect and
special concern for
their particular
vulnerability as
minors.
12(A).............................. Expeditiously process 236.3(e), (f), & None. (Note: The proposed
the minor. (g)(2)(i). rule reflects the fact
that the TVPRA (rather
than the FSA) governs the
processing and transfer of
UACs. The proposed rule
also makes clear that
generally, unless an
emergency or influx ceases
to exist, the transfer
timelines associated with
an emergency or influx
continue to apply for non-
UAC minors.)
12(A).............................. Shall provide the 236.3(g)(1)(i)........ None.
minor with notice of
rights.
12(A).............................. Facilities must be 236.3(g)(2)(i)........ None
safe and sanitary
including toilets and
sinks, water and
food, medical
assistance for
emergencies,
temperature control
and ventilation,
adequate supervision
to protect minor from
others.
12(A).............................. Contact with family 236.3(g)(2)(i)........ None. (Note: The proposed
members who were rule contains a slightly
arrested with the different standard than
minor. appears in the FSA. The
proposed rule provides for
contact with family
members apprehended with
both minors and UACs.
Additionally, the proposed
rule invokes operational
feasibility and
consideration of the
safety or well-being of
the minor or UAC in
facilitating contact. The
FSA generally prioritizes
the safety and well-being
of the minor and that of
others, but does not
include these provisos.)
12(A).............................. Segregate 236.3(g)(2)(i)........ None. (Note: The proposed
unaccompanied minors rule would allow UACs to
from unrelated be held with unrelated
adults, unless not adults for no more than 24
immediately possible hours except in cases of
(in which case an emergency or other exigent
unaccompanied minor circumstances.)
may not be held with
an unrelated adult
for more than 24
hours).
[[Page 45516]]
12(A), 12(A)(1)-(3), 12(B)......... Transfer in a timely 236.3(b)(5), (b)(10), None. (Note: Following the
manner: Three days to (e)(1). TVPRA, the transfer
five days max with provisions in FSA
exceptions, such as paragraph 12(A) apply to
emergency or influx, DHS only for accompanied
which requires minors. In addition, the
placement as proposed rule's definition
expeditiously as of ``emergency'' clarifies
possible. that an emergency may
create adequate cause to
depart from any provision
of proposed 236.3, not
just the transfer
timeline.)
12(A)(4)........................... Transfer within 5 days N/A................... None. (Note: Although DHS
instead of 3 days in is not proposing a change
cases involving in practice, it does not
transport from remote propose to codify this
areas or where an exception from the FSA in
alien speaks an proposed 236.3(e) because
``unusual'' language. operational improvements
have rendered the
exception unnecessary.)
12(C).............................. Written plan for 236.3(e)(2)........... None. (Note: Like the FSA,
``emergency'' or the proposed rule requires
``influx''. a written plan. The
written plan is contained
in a range of guidance
documents.)
13................................. Age determination..... 236.3(c).............. None. (Note: The proposed
rule includes a ``totality
of the circumstances''
standard; the FSA does not
contain a standard that
conflicts with ``totality
of the circumstances.'')
14................................. Release from custody 236.3(j) (release The proposed rule adds that
where the INS generally). any decision to release
determines that the must follow a
detention of the determination that such
minor is not required release is permitted by
either to secure his law, including parole
or her timely regulations. In addition,
appearance before the the proposed rule does not
INS or the codify the list of
immigration court, or individuals to whom a non-
to ensure the minor's UAC minor can be released,
safety or that of because the TVPRA has
others. Release is overtaken this provision.
to, in order of Per the TVPRA, DHS does
preference: parent, not have the authority to
legal guardian, adult release juveniles to non-
relative, adult or parents or legal
entity, licensed guardians. Under the
program, adult TVPRA, DHS may release a
seeking custody. juvenile to a parent or
legal guardian only.
15................................. Before release from N/A................... None. (Note: The proposed
custody, Form I-134 rule does not codify this
and agreement to portion of the FSA,
certain terms must be because (1) the TVPRA has
executed. If overtaken this provision
emergency, then minor in part, and (2) these
can be transferred requirements, which are
temporarily to primarily for DHS's
custodian but must benefit, are not currently
notify INS in 72 implemented.)
hours.
16................................. INS may terminate the N/A................... None. (Note: The proposed
custody if terms are rule does not codify this
not met. portion of the FSA,
because (1) the TVPRA has
overtaken this provision
in part, and (2) these
requirements, which are
primarily for DHS's
benefit, are not currently
implemented.)
17................................. Positive suitability N/A................... None. (Note: The proposed
assessment. rule does not codify this
portion of the FSA,
because the TVPRA has
overtaken this provision.
Per the TVPRA, DHS does
not have the authority to
release minors to non-
parents/legal guardians.)
18................................. INS or licensed 236.3(j).............. None.
program must make and
record the prompt and
continuous efforts on
its part toward
family reunification
efforts and release
of minor consistent
with FSA paragraph 14.
19................................. INS custody in 236.3(i), (i)(5)...... None.
licensed facilities
until release or
until immigration
proceedings are
concluded. Temporary
transfers in event of
an emergency.
20................................. INS must publish a N/A................... None. (Note: This provision
``Program imposes a deadline that
Announcement'' within passed years ago. As a
60 Days of the FSA's result, the proposed rule
approval. does not include this
provision.)
21................................. Transfer to a suitable 236.3(i)(1)........... None. (Note: The proposed
State or county rule clarifies some of the
juvenile detention exceptions to secure
facility if a minor detention, consistent with
has been charged or current practice and in
convicted of a crime line with the intent
with exceptions. underlying FSA paragraph
21(A)(i)-(ii). The
proposed rule also removes
the specific examples used
in FSA.)
22................................. Escape risk definition 236.3(b)(6)........... None. (Note: the proposed
rule uses final order of
``removal'' rather than
deportation or exclusion,
and considers past
absconding from state or
federal custody; and not
just DHS or HHS custody.)
23................................. Least restrictive 236.3(i)(2)........... None.
placement of minors
available and
appropriate.
[[Page 45517]]
24(A).............................. Bond redetermination 236.3(m).............. None. (Note: The proposed
hearing afforded. rule adds language to
specifically exclude those
aliens for which IJs do
not have jurisdiction, as
provided in 8 CFR
1003.19.)
24(B).............................. Judicial review of N/A................... None. (Note: The proposed
placement in a rule does not expressly
particular type of provide for judicial
facility permitted or review of placement/
that facility does compliance, but does not
not comply with expressly bar such
standards in Ex. 1. review.)
24(C).............................. Notice of reasons N/A................... None.
provided to minor not
in a licensed program/
judicial review.
24(D).............................. All minors ``not 236.3(g)(1)........... None. (Note: The proposed
released'' shall be rule requires DHS to
given Form I-770, provide the notice of
notice of right to right to judicial review
judicial review, and and list of counsel to
list of free legal those minors who are not
services. UACs and who are
transferred to or remain
in a DHS detention
facility. The
corresponding FSA
provisions apply to minors
``not released.'' The
difference in scope is a
result of the TVPRA and
reflects the relationship
between Paragraph 12(A),
which applies to the
provision of certain
rights (largely contained
on the I-770) immediately
following arrest, and
Paragraph 28(D), which
applies to all minors who
are ``not released,'' and
so are detained by DHS.
The language does not
reflect a change in
practice. The proposed
rule also includes more
detailed language with
respect to the Form I-770
than the FSA; this
language comes from
current 8 CFR 236.3, and
is consistent with the
requirements of Paragraph
12(A).)
24(E).............................. Additional information N/A................... None. (Note:
on precursors to Responsibilities of the
seeking judicial minor prior to bringing
review. litigation are not
relevant or substantive
terms of the FSA, and are
not included in the rule.)
25................................. Unaccompanied minors 236.3(f)(4)........... None. (Note: Proposed rule
in INS custody should makes a clarifying change:
not be transported in the proposed rule adds
vehicles with ``or unavailable'' as an
detained adults exception to
except when transport ``impractical.'')
is from place of
arrest/apprehension
to an INS office, or
when separate
transportation would
otherwise be
impractical.
26................................. Provide assistance in 236.3(j)(3)........... None. (Note: The proposed
making transportation rule would remove the
arrangement for reference to release to a
release of minor to ``facility.'' DHS releases
person or facility to minors only to a parent or
whom released. legal guardian; a referral
to HHS is a transfer, not
a release.)
27................................. Transfer between 236.3(k).............. None.
placements with
possessions, notice
to counsel.
28(A).............................. INS Juvenile 236.3(o).............. None. (Note: The proposed
Coordinator to rule requires collection
monitor compliance of relevant data for
with FSA and maintain purposes of monitoring
records on all minors compliance. The list of
placed in proceedings data points is similar to
and remain in custody the list in 28(A) but not
for longer than 72 identical.)
hours.
28(B).............................. Plaintiffs' counsel N/A................... This provision would no
may contact INS longer apply following
Juvenile Coordinator termination of the FSA.
to request an (Note: Special provisions
investigation on why for Plaintiffs' counsel
a minor has not been are not relevant or
released. substantive terms of the
FSA, and are not included
in the rule.)
29................................. Plaintiffs' counsel N/A................... This provision would no
must be provided longer apply following
information pursuant termination of the FSA.
to FSA paragraph 28 (Note: Special provisions
on a semi-annual for Plaintiffs' counsel
basis; Plaintiffs' are not relevant or
counsel have the substantive terms of the
opportunity to submit FSA, and are not included
questions. in the rule.)
30................................. INS Juvenile N/A................... This provision would no
Coordinator must longer apply following
report to the court termination of the FSA.
annually. (Note: Special provisions
for reporting to the court
are not relevant or
substantive terms of the
FSA, and are not included
in the rule.)
31................................. Defendants can request N/A................... None. (Note: This provision
a substantial imposed a timeframe
compliance related to court
determination after supervision of the FSA. As
one year of the FSA. a result, the proposed
rule does not include this
provision.)
32(A), (B), and (D)................ Attorney-client visits N/A................... Special provisions for
with class members Plaintiffs' counsel are
allowed for not relevant or
Plaintiffs' counsel substantive terms of the
at a facility. FSA, and are not included
in the rule.
[[Page 45518]]
32(C).............................. Agreements for the 236.3(i)(4)(xv)....... None. (Note: Special
placement of minors provisions for Plaintiffs'
in non-INS facilities counsel are not relevant
shall permit attorney- or substantive terms of
client visits, the FSA, so the reference
including by class to class counsel is not
counsel. included in the rule.)
33................................. Plaintiffs' counsel N/A................... Special provisions for
allowed to request Plaintiffs' counsel are
access to, and visit not relevant or
licensed program substantive terms of the
facility or medium FSA, and are not included
security facility or in the rule.
detention facility.
34................................. INS employees must be N/A................... None. (Note: This provision
trained on FSA within imposed a deadline that
120 days of court passed years ago. As a
approval. result, the proposed rule
does not include this
provision.)
35................................. Dismissal of action N/A................... None. (Note: Provisions
after court has specific to terminating
determined the action are not
substantial relevant or substantive
compliance. terms of the FSA, and are
not included in the rule.)
36................................. Reservation of Rights. N/A................... None. (Note: This provision
is only relevant to the
FSA insofar as the FSA
exists in the form of a
consent decree. Following
promulgation of a final
rule, it would no longer
be relevant. As a result,
the proposed rule does not
include this provision.)
37................................. Notice and Dispute N/A................... None. (Note: This provision
Resolution. provides for ongoing
enforcement of the FSA by
the district court. As a
result, the proposed rule
does not include this
provision.)
38................................. Publicity--joint press N/A................... None. (Note: This provision
conference. relates to an event that
occurred years ago. As a
result, the proposed rule
does not include this
provision.)
39................................. Attorneys' Fees and N/A................... None. (Note: This provision
Costs. imposed a deadline that
passed years ago. As a
result, the proposed rule
does not include this
provision.)
40................................. Termination 45 days N/A................... None. (Note: Provisions
after publication of specific to terminating
final rule. the FSA are not relevant
or substantive terms, and
are not included in the
rule.)
41................................. Representations and N/A................... None. (Note: This provision
Warranty. is only relevant to the
FSA insofar as the FSA
exists in the form of a
consent decree. Following
promulgation of a final
rule, it would no longer
be relevant. As a result,
the proposed rule does not
include this provision.)
----------------------------------------------------------------------------------------------------------------
DHS
A primary source of new costs for the proposed rule would be as a
result of the proposed alternative licensing process. To codify the
requirements of the FSA, DHS is proposing in this rule that facilities
that hold minors obtain state, county, or municipal licensing where
appropriate licenses are available. If no such licensing regime is
available, however, DHS proposes that it will employ an outside entity
to ensure that the facility complies with family residential standards
established by ICE and that meet the requirements for licensing under
the FSA, thus fulfilling the intent of obtaining a license from a state
or local agency. That would thus provide effectively the same
substantive assurances that the state-licensing requirement exists to
provide. ICE currently meets the proposed licensing requirements by
requiring FRCs to adhere to the Family Residential Standards and
monitoring the FRCs' compliance through an existing contract. Thus, DHS
would not incur additional costs in fulfilling the requirements of the
proposed alternative licensing scheme. However, most states do not
offer licensing for facilities like the FRCs.\25\ Therefore, to meet
the terms of the FSA, minors who are not UACs are generally held in
FRCs for less than 20 days (see Table 5). As all FRCs would be
licensed, or considered licensed, under this proposed rule, the
proposed rule may result in extending detention of some minors, and
their accompanying parent or legal guardian, in FRCs beyond 20 days. An
increase in the average length of detention may increase the variable
contract costs paid by ICE to the private contractor and government
entity who operate and maintain the FRCs, as compared to the current
operational environment.
---------------------------------------------------------------------------
\25\ See the discussion of the definition of ``licensed
facility'' supra.
---------------------------------------------------------------------------
ICE is unable to estimate how long detention would be extended for
some categories of minors and their accompanying adults in FRCs due to
this proposed rule. The average length of stay in the past is not a
reliable source for future projections. The average length of stay
prior to the court decisions in 2015 and 2017 reflect other policy
decisions that will not be directly affected by this proposed rule. In
addition, the number of days some minors and their accompanying adults
may be detained depends on several factors, including a number of
factors that are beyond the scope of this proposed rule. Among other
factors, these may include the number of minors and their accompanying
adults who arrive in a facility on a given day; the timing and outcome
of immigration court proceedings before an immigration judge; whether
an individual is eligible for parole or bond; issuance of travel
documents by foreign governments; transportation schedule and
availability; the availability of bed space in an FRC; and other laws,
regulations, guidance, and policies regarding removal not subject to
this proposed rule.
Although DHS cannot reliably predict the increased average length
of stay for affected minors and their accompanying adults in FRCs, DHS
recognizes that generally only certain groups of aliens are likely to
have their length of stay in an FRC increased as a result of this
proposed rule, among other factors. For instance, aliens who have
received a positive credible fear determination, and who are not
suitable for parole, may be held throughout their asylum
[[Page 45519]]
proceedings. Likewise, aliens who have received a negative credible
fear determination, have requested review of the determination by an
immigration judge and had the negative determination upheld, and are
awaiting removal, are likely to be held until removal can be
effectuated. In FY 2017, 16,807 minors in FRCs went through the
credible fear screening process and were released. Table 12 shows for
FY 2017 the number of minors who went through the credible fear
screening process who were released from FRCs. It does not include
those minors who were removed while detained at an FRC. Those minors
who were removed from an FRC would not have their lengths of stay
increased pursuant to the changes proposed in this rule.
Table 12--FY 2017 Minors at FRCs Who Went Through Credible Fear
Screening Process
------------------------------------------------------------------------
Number of
minors at
FRCs
------------------------------------------------------------------------
Positive Credible Fear Determinations....................... 14,993
Negative Credible Fear Determinations....................... 349
Immigration Judge Review Requested...................... 317
Immigration Judge Review Not Requested.................. 32
Administratively Closed..................................... 1,465
------------------------------------------------------------------------
Of the 14,993 minors shown in Table 12 who had positive credible
fear determinations, about 99 percent were paroled or released on their
own recognizance. The remaining one percent of minors are those in
categories that might have their length of stay in an FRC increased due
to this proposed rule.
Separate from the population of minors referenced in Table 12,
members of a family unit with administratively final orders of removal,
once this rule has been finalized, are likely to be held until removed.
842 such minors who were detained and released at FRCs during FY 2017
either had final orders of removal at the time of their release or
subsequently received final orders of removal following their release
within the same FY. Minors like these 842 may be held in detention
longer as a result of this rule. While DHS generally expects an
increase in the average length of stay to affect only these groups,
there may be others that may be affected.
In FY 2017, the total number of minors who might have been detained
longer at an FRC is estimated to be the number of minors in an FRC who
were not paroled or released on order of their own recognizance (131),
plus the number of such minors who had negative credible fear
determinations (349), plus administratively closed cases (1,465), plus
those who were released and either had final orders of removals at the
time of their release or subsequently received final orders following
their release (842), or 2,787. While the above analysis reflects the
number of minors in these groups in the FY 2017, DHS is unable to
forecast the future total number of such minors.
The remaining factor in estimating the costs that are attributed to
a potentially increased length of stay for these groups of minors and
their accompanying parent or legal guardian are the variable contract
costs paid by ICE to the private contractor and government entity who
operate and maintain the FRCs. The fixed and variable contract costs
were obtained from ICE Office of Acquisition Management. For Berks,
there is a $16 per-person, per-day fee in addition to the monthly fixed
contract rate. Assuming that the contract terms are the same in the
future, an increased number of days that all individuals would be at an
FRC may also increase this total variable fee amount. Due to the
uncertainty surrounding estimating an increased length of stay and the
number of aliens this may affect, the total incremental cost of this
per day per person fee is not estimated.
Educational services are provided at the Berks and Karnes FRCs at a
variable cost per-student, per-day. The cost at Karnes is $75 per-
student, per-day, and at Berks the cost is $79 per-student, per-day.
There is a fixed monthly cost for educational services at Dilley of
$342,083; it is not dependent on the number of students per day.
Assuming again that future contract terms are the same, the total
education cost may increase if certain aliens, like the groups
described above, are detained longer. However, the incremental variable
education cost is not estimated because of the uncertainty surrounding
the factors that make up the estimate of the average length of stay and
the number of minors that may have an increased length of stay.
This rule also proposes to change current ICE practices for parole
determinations to align them with applicable statutory and regulatory
authority. ICE is currently complying with the June 27, 2017 court
order while it is on appeal. In complying, every detained minor in
expedited removal proceedings and awaiting a credible fear
determination or determined not to have a credible fear receives an
individualized parole determination under the considerations laid out
in 8 CFR 212.5(b), which considers only whether the minor is a flight
risk. However, ICE proposes to revert to its practice prior to the 2017
court order for those minors in expedited removal proceedings, using
its parole authorities under 8 CFR 235.3 sparingly for this category of
aliens, as intended by Congress. See 8 U.S.C. 1225(b)(1)(B)(iii)(IV)
(``Any alien subject to [expedited removal] shall be detained pending a
final determination of credible fear of persecution and, if found not
to have such a fear, until removed.''). Under this standard, for aliens
who are in expedited removal proceedings and are pending a credible
fear determination or who have been found not to have such fear,
release on parole can only satisfy this standard when there is a
medical necessity or a law enforcement need. Accordingly, this change
may result in fewer such minors or their accompanying parent or legal
guardians being released on parole. Aliens in expedited removal
proceedings are not generally detained in mandatory custody for long
periods of time. Either a removal order is issued within a short amount
of time or a Notice to Appear is issued, which may make the alien
eligible for various forms of release. Consequently, DHS does not
anticipate that these changes will result in extended periods of
detention for minors who are in expedited removal proceedings.
At this time, ICE is unable to determine how the number of FRCs may
change due to this proposed rule. There are many factors that would be
considered in opening a new FRC, some of which are outside the scope of
this proposed regulation, such as whether such a facility would be
appropriate, based on the population of aliens crossing the border,
anticipated capacity, projected average daily population, and projected
costs.
With respect to CBP, the proposed rule is not anticipated to have
an impact on current operations because CBP is currently implementing
the relevant and substantive terms of the FSA, the HSA, and the TVPRA.
HHS
HHS has complied with the FSA for over 20 years. The proposed rule
would codify current HHS compliance with the FSA, court orders, and
statutes. Accordingly, HHS does not expect this proposed rule to impose
any additional costs, beyond those costs incurred by the Federal
Government to establish the 810 Hearings process within HHS.
This rule will shift responsibility for custody redetermination
hearings for
[[Page 45520]]
UACs, now proposed to be referred to as 810 hearings, from DOJ to HHS.
We estimate that some resources will be required to implement this
shift. We believe that this burden will fall on DOJ and HHS staff, and
we estimate that it will require approximately 2,000-4,000 hours to
implement. This estimate reflects six to 12 staff working full-time for
two months to create the new system. After this shift in responsibility
has been implemented, we estimate that the rule will lead to no change
in net resources required for 810 hearings, and therefore estimate no
incremental costs or savings. We seek public comment on these
estimates.
(4) Benefits
The primary benefit of the proposed rule would be to ensure that
applicable regulations reflect the current conditions of DHS detention,
release, and treatment of minors and UACs, in accordance with the
relevant and substantive terms of the FSA, the HSA, and the TVPRA.
Without codifying the FSA as proposed in this rule, family
detention is a less effective tool to meet the enforcement mission of
ICE. In many cases, families do not appear for immigration court
hearings after being released from an FRC, and even when they do, many
more fail to comply with the lawfully issued removal orders from the
immigration courts and some families engage in dilatory legal tactics
when ICE works to enforce those orders. By departing from the FSA in
limited cases to reflect the intervening statutory and operational
changes, ICE is reflecting its existing discretion to detain families
together, as appropriate, given enforcement needs, which will ensure
that family detention remains an effective enforcement tool.
HHS, having not been an original party to the FSA but having
inherited some of its requirements, likewise benefits from the current
operational environment with proposed rules that clearly delineate
ORR's responsibilities from that of other Federal partners.
Additionally, the proposed codification of the FSA terms, specifically
the minimum standards for licensed facilities and the release process
ensures a measure of consistency across the programs network of state
licensed facilities.
The regulations are also designed to eliminate judicial management,
through the FSA, of functions Congress delegated to the executive
branch.
(5) Conclusion
This proposed rule reflects current requirements to comply with the
FSA, court orders, the HSA, and the TVPRA. The Departments consider
current operations and procedures for implementing the terms of the
FSA, the HSA, and the TVPRA to be the baseline for this analysis.
Because these costs are already being incurred, they are not costs of
this rule. The primary source of new costs for the proposed rule would
be a result of the proposed alternative licensing process, changes to
current ICE parole determination practices to align them with
applicable statutory and regulatory authority, and the costs of
shifting hearings from DOJ to HHS. ICE expects the proposed alternative
licensing process and changes to current parole determination practices
to extend detention of certain minors in FRCs. This may result in
additional or longer detentions for certain minors, increasing annual
variable costs paid by ICE to the operators of Berks and Karnes and
costs to the individuals being detained, but due to the uncertainty
surrounding estimating an increased length of stay and the number of
aliens this may affect, this incremental cost is not quantified.
(6) Alternatives
No Regulatory Action
The Departments considered not promulgating this rule. The
Departments had been engaged in this alternative prior to proposing
this rule, which has required the Government to adhere to the terms of
the FSA, as interpreted by the courts, which also rejected the
Government's efforts to amend the FSA to help it better conform to
existing legal and operational realities. Continuing with this
alternative would likely require the Government to operate through non-
regulatory means in an uncertain environment subject to currently
unknown future court interpretations of the FSA that may be difficult
or operationally impracticable to implement and that could otherwise
hamper operations. The Departments reject this alternative because past
successful motions to enforce the Agreement have consistently expanded
the FSA beyond what the Departments believe was its original and
intended scope and imposed operationally impracticable or effectively
impossible requirements not intended by the parties to the FSA and in
tension with (if not incompatible with) current legal authorities. The
Departments also reject this alternative because it does not address
the current conflict between certain portions of the FSA and the HSA
and TVPRA.
Comprehensive FSA/TVPRA/Asylum Regulation
The Departments considered proposing within this regulatory action
additional regulations addressing further areas of authority under the
TVPRA, to include those related to asylum proceedings for UACs. The
Departments rejected this alternative in order to solely focus this
regulatory action on implementing the terms of the FSA, and provisions
of the HSA and TVPRA where they necessarily intersect with the FSA's
provisions. And, promulgating this more targeted regulation does not
preclude the Departments from subsequently issuing regulations to
address broader issues.
Promulgate Regulations--Preferred Alternative
Legacy INS's successors are obligated under the FSA to initiate
action to publish the relevant and substantive terms of the FSA as
regulations. In the 2001 Stipulation, the parties agreed to a
termination of the FSA ``45 days following the defendants' publication
of final regulations implementing this Agreement.'' Under this
alternative, the Departments are proposing to publish the relevant and
substantive terms of the FSA as regulations, while maintaining the
operational flexibility necessary to continue operations and ensuring
that minors and UACs continue to be treated in accordance with the FSA,
the HSA, and the TVPRA.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small business, not-for-profit organizations that
are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. Individuals are not considered by the RFA to be a small entity.
An initial regulatory flexibility analysis follows.
(1) A description of the reasons why the action by the agency is
being considered.
The purpose of this action is to promulgate regulations that
implement the relevant and substantive terms of the FSA. This proposed
rule would implement the relevant and substantive terms of the FSA and
provisions of the HSA and TVPRA where they necessarily intersect with
the FSA's provisions. Publication of final regulations would result in
termination of the FSA, as provided for in FSA paragraph 40.
[[Page 45521]]
(2) A succinct statement of the objectives of, and legal basis for,
the proposed rule.
The main purpose of this action is to promulgate regulations that
implement the relevant and substantive terms of the FSA. The FSA
provides standards for the detention, treatment, and transfer of minors
and UACs. The Secretary of Homeland Security derives her authority to
promulgate these proposed regulatory amendments primarily from the
Immigration and Nationality Act (INA or Act), as amended, 8 U.S.C. 1101
et seq. The Secretary may ``establish such regulations'' as she deems
necessary for carrying out her authorities under the INA. INA sec.
103(a)(3), 8 U.S.C. 1103(a)(3). In addition, section 462 of the HSA and
section 235 of the TVPRA prescribe substantive requirements and
procedural safeguards to be implemented by DHS and HHS with respect to
UACs. And court decisions have dictated how the FSA is to be
implemented. See, e.g., Flores v. Sessions, 862 F.3d 863 (9th Cir.
2017); Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016); Flores v.
Sessions, No. 2:85-cv-04544 (C.D. Cal. June 27, 2017).
Section 462 of the HSA also transferred to the ORR Director
``functions under the immigration laws of the United States with
respect to the care of unaccompanied alien children that were vested by
statute in, or performed by, the Commissioner of Immigration and
Naturalization.'' 6 U.S.C. 279(a). The ORR Director may, for purposes
of performing a function transferred by this section, ``exercise all
authorities under any other provision of law that were available with
respect to the performance of that function to the official responsible
for the performance of the function'' immediately before the transfer
of the program. 6 U.S.C. 279(f)(1).
Consistent with provisions in the HSA, and 8 U.S.C. 1232(a), the
TVPRA places the responsibility for the care and custody of UACs with
the Secretary of Health and Human Services. Prior to the transfer of
the program, the Commissioner of Immigration and Naturalization,
through a delegation from the Attorney General, had authority ``to
establish such regulations . . . as he deems necessary for carrying out
his authority under the provisions of this Act.'' INA sec. 103(a)(3), 8
U.S.C. 1103(a)(3) (2002); 8 CFR 2.1 (2002). In accordance with the
relevant savings and transfer provisions of the HSA, see 6 U.S.C. 279,
552, 557; see also 8 U.S.C. 1232(b)(1); the ORR Director now possesses
the authority to promulgate regulations concerning ORR's administration
of its responsibilities under the HSA and TVPRA.
(3) A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply.
This proposed rule would directly regulate DHS and HHS. DHS
contracts with private contractors and a local government to operate
and maintain FRCs, and with private contractors to provide
transportation of minors and UACs. This rule would indirectly affect
these entities to the extent that DHS contracts with them under the
terms necessary to fulfill the FSA. To the degree this rule increases
contract costs to DHS private contractors, it would be incurred by the
Federal Government in the cost paid by the contract. Similarly, as of
June 2018, HHS is funding non-profit organizations to provide shelter,
counseling, medical care, legal services, and other support services to
UACs in custody. HHS does not believe this rule would increase costs to
any of their grantees.
ICE currently contracts with three operators of FRCs, two of which
are businesses and the other a local governmental jurisdiction. ICE and
CBP also each have one contractor that provides transportation. To
determine if the private contractors that operate and maintain FRCs and
the private contractors that provide transportation are small entities,
DHS references the Small Business Administration (SBA) size standards
represented by business average annual receipts. SBA's Table of Small
Business Size Standards is matched to the North American Industry
Classification System (NAICS) for these industries.\26\ To determine if
the local government that operates and maintains an FRC is a small
entity, DHS applies the 50,000 size standard for governmental
jurisdictions.
---------------------------------------------------------------------------
\26\ U.S. Small Business Administration, Tables of Small
Business Size Standards Matched to NAICS Codes (Oct. 1, 2017),
available at https://www.sba.gov/sites/default/files/files/Size_Standards_Table_2017.xlsx.
---------------------------------------------------------------------------
DHS finds that the revenue of the private contractors that operate
and maintain two of the three FRCs to be greater than the SBA size
standard of the industry represented by NAICS 531110: Lessors of
Residential Buildings and Dwellings. The size standard classified by
the SBA is $38.5 million for lessors of buildings space to the Federal
Government by Owners.\27\ The county population of the local government
that operates and maintains the other FRC is over 50,000, based on 2017
U.S. Census Bureau annual resident population estimates.\28\
---------------------------------------------------------------------------
\27\ DHS obtained NAICS codes and 2016 annual sales data from
Hoovers.com.
\28\ Annual Estimates of the Resident Population: April 1, 2010
to July 1, 2017. Source: U.S. Census Bureau, Population Division.
---------------------------------------------------------------------------
DHS finds that the revenue of the two private contractors that
provide transportation to minors, in some cases their family members,
and to UACs for DHS to be greater than the SBA size standard of these
industries.\29\ The SBA size standard for NAICS 561210 Facilities
Support Services is $38.5 million. The SBA size standards for NAICS
561612 Security Guards and Patrol Services is $20.3 million.
---------------------------------------------------------------------------
\29\ DHS obtained NAICS codes and 2016 annual sales data from
Hoovers.com and ReferenceUSA.com.
---------------------------------------------------------------------------
Currently, HHS funds 37 grantees to provide services to UACs. HHS
finds that all 37 current grantees are non-profits that do not appear
to be dominant in their field. Consequently, HHS believes all 37
grantees are likely to be small entities for the purposes of the RFA.
The proposed changes to DHS and HHS regulations would not directly
impact any small entities.
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
The proposed rule would codify the relevant and substantive terms
of the FSA. ICE believes the FRCs, which are operated and maintained by
private contractors or a local government, comply with these
provisions, and will continue to comply through future contract
renewals. To the extent this rule increases variable contract costs,
such as a per student per day education cost, to any detention
facilities, the cost increases would be passed along to the Federal
Government in the cost paid for the contract. However, DHS cannot say
with certainty how much, if any, increase in variable education costs
would result from this rule.
A primary source of new costs for the proposed rule would be as a
result of the proposed alternative licensing process. ICE currently
fulfills the requirements being proposed as an alternative to licensing
through its existing FRC contracts. To codify the requirements of the
FSA, DHS is proposing in this rule that facilities that hold minors
obtain state, county, or municipal licensing where appropriate licenses
are available. If no such licensing regime is available, however, DHS
proposes that it will employ an
[[Page 45522]]
outside entity to ensure that the facility complies with family
residential standards established by ICE and that meet the requirements
for licensing under the FSA. That would fulfill the goals of obtaining
a license from a state or local agency. Most states do not offer
licensing for facilities like the FRCs.\30\ Therefore, to meet the
terms of the FSA, minors are generally held in FRCs for less than 20
days (see Table 5). As all FRCs would be licensed under this proposed
rule, the proposed rule may result in extending detention of some
minors and their accompanying parent or legal guardian in FRCs beyond
20 days. Additionally, this rule would change ICE parole determination
practices, which may result in fewer aliens being paroled.
---------------------------------------------------------------------------
\30\ See the discussion of the definition of ``licensed
facility'' supra.
---------------------------------------------------------------------------
An increase in the average length of detention may increase the
variable costs paid by ICE to the private contractors who operate and
maintain Berks and Karnes, as compared to the current operational
environment. Due to many uncertainties surrounding the forecast, DHS is
unable to estimate the incremental variable costs due to this proposed
rule. Refer to Section VI.A. Executive Orders 12866 and 13563:
Regulatory Review for the description of the uncertainties.
As discussed above, DHS would incur these potential costs through
the cost paid for the contract with these facilities.
There are no cost impacts on the contracts for providing
transportation because this rule codifies current operations.
The Departments request information and data from the public that
would assist in better understanding the direct effects of this
proposed rule on small entities. Members of the public should submit a
comment, as described in this proposed rule under Public Participation,
if they think that their business, organization, or governmental
jurisdiction qualifies as a small entity and that this proposed rule
would have a significant economic impact on it. It would be helpful if
commenters provide as much information as possible as to why this
proposed rule would create an impact on small businesses.
(5) Identification, to the extent practicable, of all relevant
federal rules that may duplicate, overlap or conflict with the proposed
rule.
The Departments are unaware of any relevant Federal rule that may
duplicate, overlap, or conflict with the proposed rule.
(6) Description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities.
The Departments are not aware any alternatives to the proposed rule
which accomplish the stated objectives that would minimize economic
impact of the proposed rule on small entities. DHS requests comments
and also seeks alternatives from the public that will accomplish the
same objectives and minimize the proposed rule's economic impact on
small entities.
C. Small Business Regulatory Enforcement Fairness Act of 1996
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, 110 Stat. 847, 858-59, we
want to assist small entities in understanding this proposed rule so
that they can better evaluate its effects on them and participate in
the rulemaking. If the proposed rule would affect your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please consult ICE
or ORR, as appropriate, using the contact information provided in the
FOR FURTHER INFORMATION section above.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4,
109 Stat. 48 (codified at 2 U.S.C. 1501 et seq.), is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in the expenditure of $100 million or more (adjusted
annually for inflation) in any 1 year by State, local, and tribal
governments, in the aggregate, or by the private sector. 2 U.S.C.
1532(a). The value equivalent of $100 million in 1995 adjusted for
inflation to 2017 levels by the Consumer Price Index for All Urban
Consumer (CPI-U) is $161 million.
This rule does not exceed the $100 million expenditure threshold in
any 1 year when adjusted for inflation. Though this rule would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble. Additionally, UMRA excludes from its
definitions of ``Federal intergovernmental mandate,'' and ``Federal
private sector mandate'' those regulations imposing an enforceable duty
on other levels of government or the private sector which are a
``condition of Federal assistance.'' 2 U.S.C. 658(5)(A)(i)(I),
(7)(A)(i). The FSA provides the Departments with no direct authority to
mandate binding standards on facilities of state and local governments
or on operations of private sector entities. Instead, these
requirements would impact such governments or entities only to the
extent that they make voluntary decisions to contract with the
Departments. Compliance with any standards that are not already
otherwise in place resulting from this rule would be a condition of
ongoing Federal assistance through such arrangements. Therefore, this
rulemaking contains neither a federal intergovernmental mandate nor a
private sector mandate.
E. Congressional Review Act
The Office of Information and Regulatory Affairs has determined
that this rulemaking is not a major rule, as defined by 5 U.S.C. 804,
for purposes of congressional review of agency rulemaking pursuant to
the Congressional Review Act, Public Law 104-121, sec. 251, 110 Stat.
868, 873 (codified at 5 U.S.C. 804). This rulemaking would not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based companies to compete with foreign-based companies
in domestic and export markets. If this rule is implemented as
proposed, a report about the issuance of the final rule will be
submitted to Congress and the Comptroller General of the United States
prior to its effective date.
F. Paperwork Reduction Act
All Departments are required to submit to OMB for review and
approval, any reporting or recordkeeping requirements inherent in a
rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995) (codified at 44 U.S.C. 3501 et seq.). This proposed
rule does not create or change a collection of information, therefore,
is not subject to the Paperwork Reduction Act requirements.
However, as required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), ACF submitted a copy of this section to the Office of
Management and Budget (OMB) for its review. This proposed rule complies
with settlement agreements, court orders, and statutory requirements,
most of whose terms have been in place for over 20 years. This proposed
rule would not require additional information
[[Page 45523]]
collection requirements beyond those requirements. The reporting
requirements associated with those practices have been approved under
the requirements of the Paperwork Reduction Act and in accordance with
5 CFR part 1320. ACF received conditional approval from OMB for use of
its forms on October 19, 2015, with an expiration date of October 31,
2018 (OMB Control Number 0970-0278). Separately, ACF received approval
from OMB for its placement and service forms on July 6, 2017, with an
expiration date of July 31, 2020 (OMB Control Number 0970-0498); a form
associated with the specific consent process is currently pending
approval with OMB (OMB Control Number 0970-0385).
G. Executive Order 13132: Federalism
This proposed rule would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. This proposed rule implements the FSA by
codifying the Departments' practices that comply with the terms of the
FSA and relevant law for the processing, transfer, and care and custody
of alien juveniles. In codifying these practices, the Departments were
mindful of their obligations to meet the requirements of the FSA while
also minimizing conflicts between State law and Federal interests.
Insofar, however, as the proposed rule sets forth standards that
might apply to immigration detention facilities and holding facilities
operated by contract with State and local governments and private
entities, this proposed rule has the potential to affect the States,
although it would not affect the relationship between the National
Government and the States or the distribution of power and
responsibilities among the various levels of government and private
entities. With respect to the State and local agencies, as well as the
private entities, that contract with DHS and operate these facilities
across the country, the FSA provides DHS with no direct authority to
mandate binding standards on their facilities. Instead, these
requirements will impact the State, local, and private entities only to
the extent that they make voluntary decisions to contract with DHS for
the processing, transportation, care, or custody of alien juveniles.
This approach is fully consistent with DHS's historical relationship to
State and local agencies in this context.
Typically HHS enters into cooperative agreements or contracts with
non-profit organizations to provide shelter, care, and physical custody
for UACs in a facility licensed by the appropriate State or local
licensing authority. Where HHS enters into cooperative agreements or
contacts with a state licensed facility, ORR requires that the non-
profit organization administering the facility abide by all applicable
State or local licensing regulations and laws. ORR designed agency
policies and proposed regulations as well as the terms of HHS
cooperative agreements and contracts with the agency's grantees/
contractors to complement appropriate State and licensing rules, not
supplant or replace the requirements.
Therefore, in accordance with section 6 of Executive Order 13132,
it is determined that this proposed rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
Notwithstanding the determination that the formal consultation
process described in Executive Order 13132 is not required for this
rule, the Departments welcome any comments from representatives of
State and local juvenile or family residential facilities--among other
individuals and groups--during the course of this rulemaking.
H. Executive Order 12988: Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to consider the impact of
rules that significantly impact the supply, distribution, and use of
energy. DHS has reviewed this proposed rule and determined that it is
not a ``significant energy action'' under the order because, while it
is a ``significant regulatory action'' under Executive Order 12866, it
does not have a significant adverse effect on the supply, distribution,
or use of energy. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, this proposed rule does not require a Statement of
Energy Effects under Executive Order 13211.
J. National Environmental Policy Act (NEPA)
The U.S. Department of Homeland Security Management Directive (MD)
023-01 Revision Number 01 and Instruction Manual (IM) 023-01-001-01
Revision Number 01 establish procedures that DHS and its Components use
to implement the requirements of the National Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. 4321-4375, and the Council on Environmental
Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500-
1508.
The CEQ regulations allow federal agencies to establish categories
of actions that do not individually or cumulatively have a significant
effect on the human environment and, therefore, do not require an
Environmental Assessment or Environmental Impact Statement. 40 CFR
1508.4. The IM 023-01-001-01, Rev. 01 lists the Categorical Exclusions
that DHS has found to have no such effect. IM 023-01-001-01 Rev. 01,
Appendix A, Table 1.
For an action to be categorically excluded, IM 023-01-001-01 Rev.
01 requires the action to satisfy each of the following three
conditions:
(1) The entire action clearly fits within one or more of the
Categorical Exclusions;
(2) The action is not a piece of a larger action; and
(3) No extraordinary circumstances exist that create the potential
for a significant environmental effect. IM 023-01-001-01 Rev. 01 Sec.
V(B)(2)(a)-(c).
Certain categories of proposed actions included in the
Categorically Excluded actions list have a greater potential to involve
extraordinary circumstances and require the preparation of a Record of
Environmental Consideration to document the NEPA analysis. IM 023-01-
001-01 Rev. 01 Sec. V(B)(2).
This proposed rule would implement the relevant and substantive
terms of the FSA, with such limited changes as are necessary to
implement closely related provisions of the HSA and the TVPRA, and to
ensure that the regulations set forth a sustainable operational model.
The proposed rule would implement regulations to ensure the humane
detention of alien juveniles, and satisfy the goals of the FSA, in a
manner that is workable and enforceable.
DHS analyzed this proposed rule under MD 023-01 Rev. 01 and IM 023-
01-001-01 Rev. 01. DHS has made a preliminary determination that this
action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
proposed rule clearly
[[Page 45524]]
fits within the Categorical Exclusions found in IM 023-01-001-01 Rev.
01, Appendix A, Table 1, number A3(b) and A3(d). A3(b) reads as: The
``Promulgation of rules . . . that implement, without substantive
change, statutory or regulatory requirements.'' A3(d) reads as: The
``Promulgation of rules . . . that interpret or amend an existing
regulation without changing its environmental effect.'' This proposed
rule is not part of a larger action. This proposed rule presents no
extraordinary circumstances creating the potential for significant
environmental effects. Therefore, this proposed rule is categorically
excluded from further NEPA review.
For purposes of the joint NPRM, ORR's functions are categorically
exempted from NEPA requirements as ORR's state licensed facilities are
operated under social service grants. While the exception specifically
excludes ``projects involving construction, renovation, or changes in
land use,'' ORR is generally precluded from initiating these types of
projects directly for traditional shelter care in state licensed
facilities, as the agency lacks construction authority.
The Departments seek any comments or information that may lead to
the discovery of any significant environmental effects from this
proposed rule.
K. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule would not cause a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
L. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 requires agencies to consider the impacts of
environmental health risk or safety risk that may disproportionately
affect children. The Departments have reviewed this proposed rule and
determined that this rule is not an economically significant rule and
would not create an environmental risk to health or risk to safety that
may disproportionately affect children. Therefore, the Departments have
not prepared a statement under this executive order.
M. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impracticable. Voluntary
consensus standards are technical standards (e.g., specifications of
materials, performance, design, or operation; test methods; sampling
procedures; and related management systems practices) that are
developed or adopted by voluntary consensus standards bodies. This
proposed rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
N. Family Assessment
The Departments have reviewed this proposed rule in accordance with
the requirements of section 654 of the Treasury General Appropriations
Act, 1999, Public Law 105-277. With respect to the criteria specified
in section 654(c)(1), insofar as the proposed rule may ensure the
continued availability of FRCs notwithstanding the lack of state
licensure, the proposed rule may in some respects strengthen the
stability of the family and the authority and rights of parents in the
education, nurture, and supervision of their children, within the
immigration detention context. The rule would also codify in regulation
certain statutory policies with respect to the treatment of UACs. In
general, however, as proposed, these regulations would not have an
impact on family well-being as defined in this legislation. With
respect to family well-being, this proposed rule codifies current
requirements of settlement agreements, court orders, and statutes, most
of whose terms have been in place for over 20 years, as well as HHS's
related authorities.
VII. List of Subjects and Regulatory Amendments
List of Subjects
8 CFR Part 212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 236
Apprehension and detention of inadmissible and deportable aliens,
Removal of aliens ordered removed, Administrative practice and
procedure, Aliens, Immigration.
45 CFR Part 410
Administrative practice and procedure, Child welfare, Immigration,
Unaccompanied alien children, Reporting and recordkeeping requirements.
DEPARTMENT OF HOMELAND SECURITY
8 CFR Chapter I
For the reasons set forth in the preamble, parts 212 and 236 of
chapter I are proposed to be amended as follows:
PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
1. The authority citation for part 212 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1181, 1182, 1203, 1225, 1257; 8
CFR part 2.
0
2. In Sec. 212.5, revise paragraphs (b) introductory text and (b)(3)
to read as follows:
Sec. 212.5 Parole of aliens into the United States.
* * * * *
(b) The parole of aliens within the following groups who have been
or are detained in accordance with Sec. 235.3(c) of this chapter would
generally be justified only on a case-by-case basis for ``urgent
humanitarian reasons or ``significant public benefit,'' provided the
aliens present neither a security risk nor a risk of absconding:
* * * * *
(3) Aliens who are defined as minors in Sec. 236.3(b) of this
chapter and are in DHS custody. The Executive Assistant Director,
Enforcement and Removal Operations; directors of field operations;
field office directors, deputy field office directors; or chief patrol
agents shall follow the guidelines set forth in Sec. 236.3(j) of this
chapter and paragraphs (b)(3)(i) through (ii) of this section in
determining under what conditions a minor should be paroled from
detention:
(i) Minors may be released to a parent or legal guardian not in
detention.
(ii) Minors may be released with an accompanying parent or legal
guardian who is in detention.
* * * * *
[[Page 45525]]
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
0
3. The authority citation for part 236 is revised to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 6 U.S.C. 112(a)(2),
112(a)(3), 112(b)(1), 112(e), 202, 251, 279, 291; 8 U.S.C. 1103,
1182, 1224, 1225, 1226, 1227, 1231, 1232, 1357, 1362; 18 U.S.C.
4002, 4013(c)(4); 8 CFR part 2.
0
4. Section 236.3 is revised to read as follows:
Sec. 236.3 Processing, detention, and release of alien minors.
(a) Generally. (1) DHS treats all minors and UACs in its custody
with dignity, respect and special concern for their particular
vulnerability.
(2) The provisions of this section apply to all minors in the legal
custody of DHS, including minors who are subject to the mandatory
detention provisions of the INA and applicable regulations, to the
extent authorized by law.
(b) Definitions. For the purposes of this section:
(1) Minor means any alien who has not attained eighteen (18) years
of age and has not been:
(i) Emancipated in an appropriate state judicial proceeding; or
(ii) Incarcerated due to a conviction for a criminal offense in
which he or she was tried as an adult.
(2) Special Needs Minor means a minor whose mental and/or physical
condition requires special services and treatment as identified during
an individualized needs assessment as referenced in paragraph
(i)(4)(iii) of this section. A minor may have special needs due to drug
or alcohol abuse, serious emotional disturbance, mental illness or
retardation, or a physical condition or chronic illness that requires
special services or treatment. A minor who has suffered serious neglect
or abuse may be considered a minor with special needs if the minor
requires special services or treatment as a result of the neglect or
abuse.
(3) Unaccompanied Alien Child (UAC) has the meaning provided in 6
U.S.C. 279(g)(2), that is, a child who has no lawful immigration status
in the United States and who has not attained 18 years of age; and with
respect to whom: There is no parent or legal guardian present in the
United States; or no parent or legal guardian in the United States is
available to provide care and physical custody. An individual may meet
the definition of UAC without meeting the definition of minor.
(4) Custody means within the physical and legal control of an
institution or person.
(5) Emergency means an act or event (including, but not limited to,
a natural disaster, facility fire, civil disturbance, or medical or
public health concerns at one or more facilities) that prevents timely
transport or placement of minors, or impacts other conditions provided
by this section.
(6) Escape-risk means that there is a serious risk that the minor
will attempt to escape from custody. Factors to consider when
determining whether a minor is an escape-risk include, but are not
limited to, whether:
(i) The minor is currently subject to a final order of removal;
(ii) The minor's immigration history includes: A prior breach of
bond, a failure to appear before DHS or the immigration courts,
evidence that the minor is indebted to organized smugglers for his
transport, or a voluntary departure or previous removal from the United
States pursuant to a final order of removal; or
(iii) The minor has previously absconded or attempted to abscond
from state or federal custody.
(7) Family unit means a group of two or more aliens consisting of a
minor or minors accompanied by his/her/their adult parent(s) or legal
guardian(s). In determining the existence of a parental relationship or
a legal guardianship for purposes of this definition, DHS will consider
all available reliable evidence. If DHS determines that there is
insufficient reliable evidence available that confirms the
relationship, the minor will be treated as a UAC.
(8) Family Residential Center means a facility used by ICE for the
detention of Family Units.
(9) Licensed Facility means an ICE detention facility that is
licensed by the state, county, or municipality in which it is located,
if such a licensing scheme exists. Licensed facilities shall comply
with all applicable state child welfare laws and regulations and all
state and local building, fire, health, and safety codes. If a
licensing scheme for the detention of minors accompanied by a parent or
legal guardian is not available in the state, county, or municipality
in which an ICE detention facility is located, DHS shall employ an
entity outside of DHS that has relevant audit experience to ensure
compliance with the family residential standards established by ICE.
(10) Influx means a situation in which there are, at any given
time, more than 130 minors or UACs eligible for placement in a licensed
facility under this section or corresponding provisions of ORR
regulations, including those who have been so placed or are awaiting
such placement.
(11) Non-Secure Facility means a facility that meets the definition
of non-secure in the state in which the facility is located. If no such
definition of non-secure exists under state law, a DHS facility shall
be deemed non-secure if egress from a portion of the facility's
building is not prohibited through internal locks within the building
or exterior locks and egress from the facility's premises is not
prohibited through secure fencing around the perimeter of the building.
(12) Office of Refugee Resettlement (ORR) means the U.S. Department
of Health and Human Services, Administration for Children and Families,
Office of Refugee Resettlement.
(c) Age Determination. (1) For purposes of exercising the
authorities described in this part, DHS shall determine the age of an
alien in accordance with 8 U.S.C. 1232(b)(4). Age determination
decisions shall be based upon the totality of the evidence and
circumstances.
(2) If a reasonable person would conclude that an individual is an
adult, despite his or her claim to be under the age of 18, DHS may
treat such person as an adult for all purposes, including confinement
and release on bond, recognizance, or other conditions of release. In
making this determination, an immigration officer may require such an
individual to submit to a medical or dental examination conducted by a
medical professional or other appropriate procedures to verify his or
her age.
(3) If an individual previously considered to have been an adult is
subsequently determined to be a under the age of 18, DHS will then
treat such individual as a minor or UAC as prescribed by this section.
(d) Determining whether an alien is a UAC. (1) Immigration officers
will make a determination as to whether an alien under the age of 18 is
a UAC at the time of encounter or apprehension and prior to the
detention or release of such alien.
(2) When an alien previously determined to have been a UAC has
reached the age of 18, when a parent or legal guardian in the United
States is available to provide care and physical custody for such an
alien, or when such alien has obtained lawful immigration status, the
alien is no longer a UAC. An alien who is no longer a UAC is not
eligible to receive legal protections limited to UACs under the
relevant sections of the Act. Nothing in this paragraph affects USCIS'
independent
[[Page 45526]]
determination of its initial jurisdiction over asylum applications
filed by UACs pursuant to section 208(b)(3)(C) of the Act.
(3) Age-out procedures. When an alien previously determined to have
been a UAC is no longer a UAC because he or she turns eighteen years
old, relevant ORR and ICE procedures shall apply.
(e) Transfer of minors who are not UACs from one facility to
another. (1) In the case of an influx or emergency, as defined in
paragraph (b) of this section, DHS will transfer a minor who is not a
UAC, and who does not meet the criteria for secure detention pursuant
to paragraph (i)(1)of this section, to a licensed facility as defined
in paragraph (b)(9) of this section, which is non-secure, as
expeditiously as possible. Otherwise, to the extent consistent with law
or court order, DHS will transfer such minor within three (3) days, if
the minor was apprehended in a district in which a licensed program is
located, or within five (5) days in all other cases.
(2) In the case of an emergency or influx, DHS will abide by
written guidance detailing all reasonable efforts that it will take to
transfer all minors who are not UACs as expeditiously as possible.
(f) Transfer of UACs from DHS to HHS. (1) All UACs apprehended by
DHS, except those who are subject to the terms of 8 U.S.C. 1232(a)(2),
will be transferred to ORR for care, custody, and placement in
accordance with 6 U.S.C. 279 and 8 U.S.C. 1232.
(2) DHS will notify ORR within 48 hours upon the apprehension or
discovery of a UAC or any claim or suspicion that an unaccompanied
alien detained in DHS custody is under 18 years of age.
(3) Unless exceptional circumstances are present, DHS will transfer
custody of a UAC as soon as practicable after receiving notification of
an ORR placement, but no later than 72 hours after determining that the
minor is a UAC per paragraph (d) of this section. In the case of
exceptional circumstances, DHS will abide by written guidance detailing
the efforts that it will take to transfer all UACs as required by law.
(4) Conditions of transfer. (i) A UAC will not be transported with
an unrelated detained adult(s) unless the UAC is being transported from
the place of apprehension to a DHS facility or if separate
transportation is otherwise impractical or unavailable.
(ii) When separate transportation is impractical or unavailable,
necessary precautions will be taken to ensure the UAC's safety,
security, and well-being. If a UAC is transported with any unrelated
detained adult(s), DHS will separate the UAC from the unrelated
adult(s) to the extent operationally feasible and take necessary
precautions for protection of the UAC's safety, security, and well-
being.
(g) DHS procedures in the apprehension and processing of minors or
UACs.
(1) Processing. (i) Notice of rights and request for disposition.
Every minor or UAC who enters DHS custody, including minors and UACs
who request voluntary departure or request to withdraw their
application for admission, will be issued a Form I-770, Notice of
Rights and Request for Disposition, which will include a statement that
the minor or UAC may make a telephone call to a parent, close relative,
or friend. If the minor or UAC is believed to be less than 14 years of
age, or is unable to comprehend the information contained in the Form
I-770, the notice shall be read and explained to the minor or UAC in a
language and manner that he or she understands. In the event that a
minor or UAC is no longer amenable to voluntary departure or to a
withdrawal of an application for admission, the minor or UAC will be
issued a new Form I-770 or the Form I-770 will be updated, as needed.
(ii) Notice of Right to Judicial Review. Every minor who is not a
UAC who is transferred to or remains in a DHS detention facility will
be provided with a Notice of Right to Judicial Review, which informs
the minor of his or her right to seek judicial review in United States
District Court with jurisdiction and venue over the matter if the minor
believes that his or her detention does not comply with the terms of
paragraph (i) of this section.
(iii) Current List of Counsel. Every minor who is not a UAC who is
transferred to or remains in a DHS detention facility will be provided
the free legal service provider list, prepared pursuant to section
239(b)(2) of the Act.
(2) DHS custodial care immediately following apprehension. (i)
Following the apprehension of a minor or UAC, DHS will process the
minor or UAC as expeditiously as possible. Consistent with 6 CFR
115.114, minors and UACs shall be held in the least restrictive setting
appropriate to the minor or UAC's age and special needs, provided that
such setting is consistent with the need to protect the minor or UAC's
well-being and that of others, as well as with any other laws,
regulations, or legal requirements. DHS will hold minors and UACs in
facilities that are safe and sanitary and that are consistent with
DHS's concern for their particular vulnerability. Facilities will
provide access to toilets and sinks, drinking water and food as
appropriate, access to emergency medical assistance as needed, and
adequate temperature and ventilation. DHS will provide adequate
supervision and will provide contact with family members arrested with
the minor or UAC in consideration of the safety and well-being of the
minor or UAC, and operational feasibility. UACs generally will be held
separately from unrelated adult detainees in accordance with 6 CFR
115.14(b) and 6 CFR 115.114(b). In the event that such separation is
not immediately possible, UACs in facilities covered by 6 CFR 115.114
may be housed with an unrelated adult for no more than 24 hours except
in the case of an emergency or other exigent circumstances.
(ii) Consistent with the statutory requirements, DHS will transfer
UACs to HHS in accordance with the procedures described in paragraph
(f) of this section.
(h) Detention of family units. DHS's policy is to maintain family
unity, including by detaining families together where appropriate and
consistent with law and available resources. If DHS determines that
detention of a family unit is required by law, or is otherwise
appropriate, the family unit may be transferred to a Family Residential
Center which is a licensed facility and non-secure.
(i) Detention of minors who are not UACs in DHS custody. In any
case in which DHS does not release a minor who is not a UAC, said minor
shall remain in DHS detention. Consistent with 6 CFR 115.14, minors
shall be detained in the least restrictive setting appropriate to the
minor's age and special needs, provided that such setting is consistent
with the need to ensure the minor's timely appearance before DHS and
the immigration courts and to protect the minor's well-being and that
of others, as well as with any other laws, regulations, or legal
requirements. The minor shall be placed temporarily in a licensed
facility, which will be non-secure, until such time as release can be
effected or until the minor's immigration proceedings are concluded,
whichever occurs earlier. If immigration proceedings are concluded and
result in a final order of removal, DHS will detain the minor for the
purpose of removal. If immigration proceedings result in a grant of
relief or protection from removal where both parties have waived appeal
or the appeal period defined in 8 CFR
[[Page 45527]]
1003.38(b) has expired, DHS will release the minor.
(1) A minor who is not a UAC referenced under this paragraph may be
held in or transferred to a suitable state or county juvenile detention
facility, or a secure DHS detention facility, or DHS contracted
facility having separate accommodations for minors, whenever the Field
Office Director and the ICE supervisory or management personnel have
probable cause to believe that the minor:
(i) Has been charged with, is chargeable with, or has been
convicted of a crime or crimes, or is the subject of delinquency
proceedings, has been adjudicated delinquent, or is chargeable with a
delinquent act or acts, that fit within a pattern or practice of
criminal activity;
(ii) Has been charged with, is chargeable with, or has been
convicted of a crime or crimes, or is the subject of delinquency
proceedings, has been adjudicated delinquent, or is chargeable with a
delinquent act or acts, that involve violence against a person or the
use or carrying of a weapon;
(iii) Has committed, or has made credible threats to commit, a
violent or malicious act (whether directed at himself or others) while
in federal or state government custody or while in the presence of an
immigration officer;
(iv) Has engaged, while in the licensed facility, in conduct that
has proven to be unacceptably disruptive of the normal functioning of
the licensed facility in which the minor has been placed and transfer
to another facility is necessary to ensure the welfare of the minor or
others, as determined by the staff of the licensed facility;
(v) Is determined to be an escape-risk pursuant to paragraph (b)(6)
of this section; or
(vi) Must be held in a secure facility for his or her own safety.
(2) DHS will not place a minor who is not a UAC in a secure
facility pursuant to paragraph (i)(1) if there are less restrictive
alternatives that are available and appropriate in the circumstances,
such as transfer to a facility which would provide intensive staff
supervision and counseling services or another licensed facility. All
determinations to place a minor in a secure facility will be reviewed
and approved by the Juvenile Coordinator referenced in paragraph (o) of
this section. Secure facilities shall permit attorney-client visits in
accordance with applicable facility rules and regulations.
(3) Non-secure facility. Unless a secure facility is otherwise
authorized pursuant to this section, ICE facilities used for the
detention of minors who are not UACs shall be non-secure facilities.
(4) Standards. Non-secure, licensed ICE facilities to which minors
who are not UACs are transferred pursuant to the procedures in
paragraph (e) of this section shall abide by applicable standards
established by ICE. At a minimum, such standards shall include
provisions or arrangements for the following services for each minor
who is not a UAC in its care:
(i) Proper physical care and maintenance, including suitable
living, accommodations, food, appropriate clothing, and personal
grooming items;
(ii) Appropriate routine medical and dental care, family planning
services, and emergency health care services, including a complete
medical examination (including screening for infectious disease) within
48 hours of admission, excluding weekends and holidays, unless the
minor was recently examined at another facility; appropriate
immunizations in accordance with the U.S. Public Health Service (PHS),
Centers for Disease Control and Prevention; administration of
prescribed medication and special diets; appropriate mental health
interventions when necessary;
(iii) An individualized needs assessment which includes:
(A) Various initial intake forms;
(B) Essential data relating to the identification and history of
the minor and family;
(C) Identification of the minor's special needs including any
specific problem(s) which appear to require immediate intervention;
(D) An educational assessment and plan;
(E) An assessment of family relationships and interaction with
adults, peers and authority figures;
(F) A statement of religious preference and practice;
(G) An assessment of the minor's personal goals, strengths and
weaknesses; and
(H) Identifying information regarding immediate family members,
other relatives, godparents, or friends who may be residing in the
United States and may be able to assist in family reunification;
(iv) Educational services appropriate to the minor's level of
development and communication skills in a structured classroom setting,
Monday through Friday, which concentrates primarily on the development
of basic academic competencies and secondarily on English Language
Training (ELT). The educational program should include subjects similar
to those found in U.S. programs and include science, social studies,
math, reading, writing, and physical education. The program design
should be appropriate for the minor's estimated length of stay and can
include the necessary skills appropriate for transition into a U.S.
school district. The program should also include acculturation and
adaptation services which include information regarding the development
of social and inter-personal skills that contribute to those abilities
as age appropriate;
(v) Appropriate reading materials in languages other than English
for use during the minor's leisure time;
(vi) Activities according to a recreation and leisure time plan
which shall include daily outdoor activity, weather permitting, at
least one hour per day of large muscle activity and one hour per day of
structured leisure time activities (this should not include time spent
watching television). Activities should be increased to a total of
three hours on days when school is not in session;
(vii) At least one individual counseling session or mental health
wellness interaction (if the minor does not want to participate in a
counseling session) per week conducted by trained social work staff
with the specific objectives of reviewing the minor's progress,
establishing new short-term objectives, and addressing both the
developmental and crisis-related needs of each minor;
(viii) Group counseling sessions at least twice a week. This is
usually an informal process and takes place with all the minors present
and can be held in conjunction with other structured activities. It is
a time when new minors present in the facility are given the
opportunity to get acquainted with the staff, other children, and the
rules of the program. It is an open forum where everyone gets a chance
to speak. Daily program management is discussed and decisions are made
about recreational activities, etc. It is a time for staff and minors
to discuss whatever is on their minds and to resolve problems;
(ix) Upon admission, a comprehensive orientation regarding program
intent, services, rules (written and verbal), expectations and the
availability of legal assistance;
(x) Whenever possible, access to religious services of the minor's
choice;
(xi) Visitation and contact with family members (regardless of
their immigration status) which is structured to encourage such
visitation. The staff shall respect the minor's privacy while
reasonably preventing the unauthorized release of the minor and
preventing the transfer of contraband;
[[Page 45528]]
(xii) A reasonable right to privacy, which shall include the right
to:
(A) Wear his or her own clothes, when available;
(B) Retain a private space in the residential facility for the
storage of personal belongings;
(C) Talk privately on the phone, as permitted by applicable
facility rules and regulations;
(D) Visit privately with guests, as permitted by applicable
facility rules and regulations; and
(E) Receive and send uncensored mail unless there is a reasonable
belief that the mail contains contraband.
(xiii) When necessary, communication with adult relatives living in
the United States and in foreign countries regarding legal issues
related to the release and/or removal of the minor;
(xiv) Legal services information regarding the availability of free
legal assistance, the right to be represented by counsel at no expense
to the Government, the right to apply for asylum or to request
voluntary departure; and
(xv) Attorney-client visits in accordance with applicable facility
rules and regulations.
(5) In the event of an emergency, a licensed, non-secure facility
described in paragraph (i) of this section may transfer temporary
physical custody of a minor prior to securing permission from DHS, but
shall notify DHS of the transfer as soon as is practicable thereafter,
but in all cases within 8 hours.
(j) Release of minors from DHS custody. DHS will make and record
prompt and continuous efforts on its part toward the release of the
minor. If DHS determines that detention of a minor who is not a UAC is
not required to secure the minor's timely appearance before DHS or the
immigration court, or to ensure the minor's safety or the safety of
others, the minor may be released, as provided under existing statutes
and regulations, pursuant to the procedures set forth in this
paragraph.
(1) DHS will release a minor from custody to a parent or legal
guardian who is available to provide care and physical custody.
(2) Prior to releasing to a parent or legal guardian, DHS will use
all available reliable evidence to determine whether the relationship
is bona fide. If no reliable evidence is available that confirms the
relationship, the minor will be treated as a UAC and transferred into
the custody of HHS as outlined in paragraph (f) of this section.
(3) For minors in DHS custody, DHS shall assist without undue delay
in making transportation arrangements to the DHS office nearest the
location of the person to whom a minor is to be released. DHS may, in
its discretion, provide transportation to minors.
(4) Nothing herein shall require DHS to release a minor to any
person or agency whom DHS has reason to believe may harm or neglect the
minor or fail to present him or her before DHS or the immigration
courts when requested to do so.
(k) Procedures upon transfer.--(1) Possessions. Whenever a minor or
UAC is transferred from one ICE placement to another, or from an ICE
placement to an ORR placement, he or she will be transferred with all
possessions and legal papers; provided, however, that if the minor or
UAC's possessions exceed the amount normally permitted by the carrier
in use, the possessions shall be shipped to the minor or UAC in a
timely manner.
(2) Notice to counsel. A minor or UAC who is represented will not
be transferred from one ICE placement to another, or from an ICE
placement to an ORR placement, until notice is provided to his or her
counsel, except in unusual and compelling circumstances, such as where
the safety of the minor or UAC or others is threatened or the minor or
UAC has been determined to be an escape-risk, or where counsel has
waived such notice. In unusual and compelling circumstances, notice
will be sent to counsel within 24 hours following the transfer.
(l) Notice to parent of refusal of release or application for
relief. (1) A parent shall be notified of any of the following requests
if the parent is present in the United States and can reasonably be
contacted, unless such notification is otherwise prohibited by law or
DHS determines that notification of the parent would pose a risk to the
minor's safety or well-being:
(i) A minor or UAC in DHS custody refuses to be released to his or
her parent; or
(ii) A minor or a UAC seeks release from DHS custody or seeks
voluntary departure or a withdrawal of an application for admission,
parole, or any form of relief from removal before DHS, and that the
grant of such request or relief may effectively terminate some interest
inherent in the parent-child relationship and/or the minor or UAC's
rights and interests are adverse with those of the parent.
(2) Upon notification, the parent will be afforded an opportunity
to present his or her views and assert his or her interest to DHS
before a determination is made as to the merits of the request for
relief.
(m) Bond hearings. Bond determinations made by DHS for minors who
are in removal proceedings pursuant to section 240 of the Act and who
are also in DHS custody may be reviewed by an immigration judge
pursuant to 8 CFR part 1236 to the extent permitted by 8 CFR 1003.19.
Minors in DHS custody who are not in section 240 proceedings are
ineligible to seek review by an immigration judge of their DHS custody
determinations.
(n) Retaking custody of a previously released minor. (1) In
addition to the ability to make a UAC determination upon each encounter
as set forth in paragraph (c) of this section, DHS may take a minor
back into custody if there is a material change in circumstances
indicating the minor is an escape-risk, a danger to the community, or
has a final order of removal. If the minor is accompanied, DHS shall
place the minor in accordance with paragraphs (e) and (i) of this
section. If the minor is a UAC, DHS shall transfer the minor into HHS
custody in accordance with paragraph (e) of this section.
(2) DHS may take a minor back into custody if there is no longer a
parent or legal guardian available to care for the minor. In these
cases, DHS will treat the minor as a UAC and transfer custody to HHS as
outlined in paragraph (e) of this section.
(3) Minors who are not UACs and who are taken back into DHS custody
may request a custody redetermination hearing in accordance with
paragraph (m) of this section and to the extent permitted by 8 CFR
1003.19 .
(o) Monitoring. (1) CBP and ICE each shall identify a Juvenile
Coordinator for the purpose of monitoring compliance with the terms of
this section.
(2) The Juvenile Coordinators shall collect and periodically
examine relevant statistical information about UACs and minors who
remain in CBP or ICE custody for longer than 72 hours. Such statistical
information may include but not necessarily be limited to:
(i) Biographical information;
(ii) Dates of custody; and
(iii) Placements, transfers, removals, or releases from custody,
including the reasons for a particular placement.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Chapter IV
For the reasons set forth in the preamble, part 410 of Chapter IV
of title 45 of the Code of Federal Regulations is proposed to be
amended as follows:
0
10. Add part 410 to read as follows:
[[Page 45529]]
PART 410--CARE AND PLACEMENT OF UNACCOMPANIED ALIEN CHILDREN
Subpart A--Care and Placement of Unaccompanied Alien Children
Sec.
410.100 Scope of this part
410.101 Definitions
410.102 ORR care and placement of unaccompanied alien children
Subpart B--Determining the Placement of an Unaccompanied Alien Child
Sec.
410.200 Purpose of this subpart
410.201 Considerations generally applicable to the placement of an
unaccompanied alien child
410.202 Placement of an unaccompanied alien child in a licensed
program
410.203 Criteria for placing an unaccompanied alien child in a
secure facility
410.204 Considerations when determining whether an unaccompanied
alien child is an escape risk
410.205 Applicability of Sec. 410.203 for placement in a secure
facility
410.206 Information for unaccompanied alien children concerning the
reasons for his or her placement in a secure or staff secure
facility
410.207 Custody of an unaccompanied alien child placed pursuant to
this subpart
410.208 Special needs minors
410.209 Procedures during an emergency or influx
Subpart C--Releasing an Unaccompanied Alien Child From ORR Custody
Sec.
410.300 Purpose of this subpart
410.301 Sponsors to whom ORR releases an unaccompanied alien child
410.302 Sponsor suitability assessment process requirements leading
to release of an unaccompanied alien child from ORR custody to a
sponsor
Subpart D--Licensed Programs
Sec.
410.400 Purpose of this subpart
410.401 Applicability of this subpart
410.402 Minimum standards applicable to licensed programs
410.403 Ensuring that licensed programs are providing services as
required by these regulations
Subpart E--Transportation of an Unaccompanied Alien Child
Sec.
410.500 Conducting transportation for an unaccompanied alien child
in ORR's custody
Subpart F--Transfer of an Unaccompanied Alien Child
Sec.
410.600 Principles applicable to transfer of an unaccompanied alien
child
Subpart G--Age Determinations
Sec.
410.700 Conducting age determinations
410.701 Treatment of an individual who appears to be an adult
Subpart H--Unaccompanied Alien Children's Objections to ORR
Determinations
Sec.
410.800 Purpose of this Subpart
410.801 Procedures
410.810 Hearings
Authority: 6 U.S.C. 279, 8 U.S.C. 1103(a)(3), 8 U.S.C. 1232.
Subpart A--Care and Placement of Unaccompanied Alien Children
Sec. 410.100 Scope of this part.
This part governs those aspects of the care, custody, and placement
of unaccompanied alien children (UACs) agreed to in the settlement
agreement reached in Jenny Lisette Flores v. Janet Reno, Attorney
General of the United States, Case No. CV 85-4544-RJK (C.D. Cal. 1996).
ORR operates the UAC program as authorized by section 462 of the
Homeland Security Act of 2002, Public Law 107-296, 6 U.S.C. 279, and
section 235 of the William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008, Public Law 110-457, 8 U.S.C. 1232. This
part does not govern or describe the entire program.
Sec. 410.101 Definitions.
DHS means the Department of Homeland Security.
Director means the Director of the Office of Refugee Resettlement
(ORR), Administration for Children and Families, Department of Health
and Human Services.
Emergency means an act or event (including, but not limited to, a
natural disaster, facility fire, civil disturbance, or medical or
public health concerns at one or more facilities) that prevents timely
transport or placement of UACs, or impacts other conditions provided by
this part.
Escape risk means there is a serious risk that an unaccompanied
alien child (UAC) will attempt to escape from custody.
Influx means a situation in which there are, at any given time,
more than 130 minors or UACs eligible for placement in a licensed
facility under this part or corresponding provisions of DHS
regulations, including those who have been so placed or are awaiting
such placement.
Licensed program means any program, agency, or organization that is
licensed by an appropriate State agency to provide residential, group,
or foster care services for dependent children, including a program
operating group homes, foster homes, or facilities for special needs
UAC. A licensed program must meet the standards set forth in Sec.
410.402 of this part. All homes and facilities operated by a licensed
program, including facilities for special needs minors, are non-secure
as required under State law. However, a facility for special needs
minors may maintain that level of security permitted under State law
which is necessary for the protection of a UAC or others in appropriate
circumstances, e.g., cases in which a UAC has drug or alcohol problems
or is mentally ill.
ORR means the Office of Refugee Resettlement, Administration for
Children and Families, Department of Health and Human Services.
Secure facility means a State or county juvenile detention facility
or a secure ORR detention facility, or a facility with an ORR contract
or cooperative agreement having separate accommodations for minors. A
secure facility does not need to meet the requirements of Sec.
410.402, and is not defined as a ``licensed program'' or ``shelter''
under this Part.
Shelter means a licensed program that meets the standards set forth
in Sec. 410.402 of this part.
Special needs minor means a UAC whose mental and/or physical
condition requires special services and treatment by staff. A UAC may
have special needs due to drug or alcohol abuse, serious emotional
disturbance, mental illness or retardation, or a physical condition or
chronic illness that requires special services or treatment. A UAC who
has suffered serious neglect or abuse may be considered a special needs
minor if the UAC requires special services or treatment as a result of
neglect or abuse.
Sponsor, also referred to as custodian, means an individual (or
entity) to whom ORR releases a UAC out of ORR custody.
Staff secure facility means a facility that is operated by a
program, agency or organization licensed by an appropriate State agency
and that meets the standards for licensed programs set forth in Sec.
410.402 of this part. A staff secure facility is designed for a UAC who
requires close supervision but does not need placement in a secure
facility. It provides 24-hour awake supervision, custody, care, and
treatment. It maintains stricter security measures, such as intensive
staff supervision, than a shelter in order to control problem behavior
and to prevent escape. A staff secure facility may have a secure
perimeter but is not equipped internally with major restraining
construction or procedures typically associated with correctional
facilities.
[[Page 45530]]
Unaccompanied alien child (UAC) means an individual who: Has no
lawful immigration status in the United States; has not attained 18
years of age; and with respect to whom: There is no parent or legal
guardian in the United States; or no parent or legal guardian in the
United States is available to provide care and physical custody. When
an alien previously determined to have been a UAC has reached the age
of 18, when a parent or legal guardian in the United States is
available to provide care and physical custody for such an alien, or
when such alien has obtained lawful immigration status, the alien is no
longer a UAC. An alien who is no longer a UAC is not eligible to
receive legal protections limited to UACs.
Sec. 410.102 ORR care and placement of unaccompanied alien children.
ORR coordinates and implements the care and placement of UAC who
are in ORR custody by reason of their immigration status.
For all UAC in ORR custody, DHS and DOJ handle other matters,
including immigration benefits and enforcement matters, as set forth in
their respective statutes, regulations and other authorities.
ORR shall hold UACs in facilities that are safe and sanitary and
that are consistent with ORR's concern for the particular vulnerability
of minors.
Within all placements, UAC shall be treated with dignity, respect,
and special concern for their particular vulnerability.
Subpart B--Determining the Placement of an Unaccompanied Alien
Child
Sec. 410.200 Purpose of this subpart.
This subpart sets forth what ORR considers when placing a UAC in a
particular ORR facility, in accordance with the Flores settlement
agreement.
Sec. 410.201 Considerations generally applicable to the placement of
an unaccompanied alien child.
(a) ORR places each UAC in the least restrictive setting that is in
the best interest of the child and appropriate to the UAC's age and
special needs, provided that such setting is consistent with its
interests to ensure the UAC's timely appearance before DHS and the
immigration courts and to protect the UAC's well-being and that of
others.
(b) ORR separates UAC from delinquent offenders.
(c) ORR makes reasonable efforts to provide placements in those
geographical areas where DHS apprehends the majority of UAC.
(d) Facilities where ORR places UAC will provide access to toilets
and sinks, drinking water and food as appropriate, medical assistance
if the UAC is in need of emergency services, adequate temperature
control and ventilation, adequate supervision to protect UAC from
others, and contact with family members who were arrested with the
minor.
(e) If there is no appropriate licensed program immediately
available for placement of a UAC pursuant to Subpart B, and no one to
whom ORR may release the UAC pursuant to Subpart C, the UAC may be
placed in an ORR-contracted facility, having separate accommodations
for minors, or a State or county juvenile detention facility. In
addition to the requirement that UAC shall be separated from delinquent
offenders, every effort must be taken to ensure that the safety and
well-being of the UAC detained in these facilities are satisfactorily
provided for by the staff. ORR makes all reasonable efforts to place
each UAC in a licensed program as expeditiously as possible.
(f) ORR makes and records the prompt and continuous efforts on its
part toward family reunification. ORR continues such efforts at family
reunification for as long as the minor is in ORR custody.
Sec. 410.202 Placement of an unaccompanied alien child in a licensed
program.
(a) ORR places UAC into a licensed program promptly after a UAC is
transferred to ORR legal custody, except in the following
circumstances:
(1) UAC meeting the criteria for placement in a secure facility set
forth in Sec. 410.203 of this part;
(2) As otherwise required by any court decree or court-approved
settlement; or,
(3) In the event of an emergency or influx of UAC into the United
States, in which case ORR places the UAC as expeditiously as possible
in accordance with Sec. 410.209 of this part; or
(4) If a reasonable person would conclude that the UAC is an adult
despite his or her claims to be a minor.
Sec. 410.203 Criteria for placing an unaccompanied alien child in a
secure facility.
(a) Notwithstanding Sec. 410.202 of this part, ORR may place a UAC
in a secure facility if the UAC:
(1) Has been charged with, is chargeable, or has been convicted of
a crime, or is the subject of delinquency proceedings, has been
adjudicated delinquent, or is chargeable with a delinquent act, and
where ORR deems those circumstances demonstrate that the UAC poses a
danger to self or others. ``Chargeable'' means that ORR has probable
cause to believe that the UAC has committed a specified offense. This
provision does not apply to a UAC whose offense is:
(i) An isolated offense that was not within a pattern or practice
of criminal activity and did not involve violence against a person or
the use or carrying of a weapon; or
(ii) A petty offense, which is not considered grounds for stricter
means of detention in any case;
(2) While in DHS or ORR's custody or while in the presence of an
immigration officer, has committed, or has made credible threats to
commit, a violent or malicious act (whether directed at himself/herself
or others);
(3) Has engaged, while in a licensed program or staff secure
facility, in conduct that has proven to be unacceptably disruptive of
the normal functioning of the licensed program or staff secure facility
in which he or she has been placed and removal is necessary to ensure
the welfare of the UAC or others, as determined by the staff of the
licensed program or staff secure facility (e.g., drug or alcohol abuse,
stealing, fighting, intimidation of others, or sexually predatory
behavior), and ORR determines the UAC poses a danger to self or others
based on such conduct;
(4) For purposes of placement in a secure RTC, if a licensed
psychologist or psychiatrist determines that the UAC poses a risk of
harm to self or others.
(5) Is otherwise a danger to self or others.
(b) ORR Federal Field Specialists review and approve all placements
of UAC in secure facilities consistent with legal requirements.
Sec. 410.204 Considerations when determining whether an unaccompanied
alien child is an escape risk.
When determining whether a UAC is an escape risk, ORR considers,
among other factors, whether:
(a) The UAC is currently under a final order of removal;
(b) The UAC's immigration history includes:
(1) A prior breach of a bond;
(2) A failure to appear before DHS or the immigration court;
(3) Evidence that the UAC is indebted to organized smugglers for
his or her transport; or
(4) A voluntary departure or a previous removal from the United
States pursuant to a final order of removal; and
(c) The UAC has previously absconded or attempted to abscond from
state or federal custody.
[[Page 45531]]
Sec. 410.205 Applicability of Sec. 410.203 for placement in a secure
facility.
ORR does not place a UAC in a secure facility pursuant to Sec.
410.203 of this part if less restrictive alternatives are available and
appropriate under the circumstances. ORR may place a UAC in a staff
secure facility or another licensed program as an alternative to a
secure facility.
Sec. 410.206 Information for unaccompanied alien children concerning
the reasons for his or her placement in a secure or staff secure
facility.
Within a reasonable period of time, ORR provides each UAC placed or
transferred to a secure or staff secure facility with a notice of the
reasons for the placement in a language the UAC understands.
Sec. 410.207 Custody of an unaccompanied alien child placed pursuant
to this subpart.
A UAC who is placed in a licensed program pursuant to this subpart
remains in the custody of ORR, and may only be transferred or released
under its authority. However, in the event of an emergency, a licensed
program may transfer temporarily the physical placement of a UAC prior
to securing permission from ORR, but must notify ORR of the transfer as
soon as possible, but in all cases within eight hours of the transfer.
Upon release to an approved sponsor, a UAC is no longer in the custody
of ORR.
Sec. 410.208 Special needs minors.
ORR assesses each UAC to determine if he or she has special needs,
and if so, places the UAC, whenever possible, in a licensed program in
which ORR places unaccompanied alien children without special needs,
but which provides services and treatment for such special needs.
Sec. 410.209 Procedures during an emergency or influx.
In the event of an emergency or influx that prevents the prompt
placement of UAC in licensed programs, ORR makes all reasonable efforts
to place each UAC in a licensed program as expeditiously as possible
using the following procedures:
(a) ORR maintains an emergency placement list of at least 80 beds
at programs licensed by an appropriate state agency that are
potentially available to accept emergency placements.
(b) ORR implements its contingency plan on emergencies and
influxes.
(c) Within one business day of the emergency or influx, ORR, if
necessary, contacts the programs on the emergency placement list to
determine available placements. To the extent practicable, ORR will
attempt to locate emergency placements in geographic areas where
culturally and linguistically appropriate community services are
available.
(d) In the event that the number of UAC needing placement exceeds
the available appropriate placements on the emergency placement list,
ORR works with governmental and nongovernmental organizations to locate
additional placements through licensed programs, county social services
departments, and foster family agencies.
(e) ORR maintains a list of UAC affected by the emergency or influx
including each UAC's:
(1) Name;
(2) Date and country of birth;
(3) Date of placement in ORR's custody; and
(4) Place and date of current placement.
(f) Each year ORR reevaluates the number of regular placements
needed for UAC to determine whether the number of regular placements
should be adjusted to accommodate an increased or decreased number of
UAC eligible for placement in licensed programs.
Subpart C--Releasing an Unaccompanied Alien Child From ORR Custody
Sec. 410.300 Purpose of this subpart.
This subpart covers the policies and procedures used to release,
without unnecessary delay, a UAC from ORR custody to an approved
sponsor.
Sec. 410.301 Sponsors to whom ORR releases an unaccompanied alien
child.
(a) ORR releases a UAC to an approved sponsor without unnecessary
delay, but may continue to retain custody of a UAC if ORR determines
that continued custody is necessary to ensure the UAC's safety or the
safety of others, or that continued custody is required to secure the
UAC's timely appearance before DHS or the immigration courts.
(b) When ORR releases a UAC without unnecessary delay to an
approved sponsor, it releases in the following order of preference:
(1) A parent;
(2) A legal guardian;
(3) An adult relative (brother, sister, aunt, uncle, or
grandparent);
(4) An adult individual or entity designated by the parent or legal
guardian as capable and willing to care for the UAC's well-being in:
(i) A declaration signed under penalty of perjury before an
immigration or consular officer, or
(ii) Such other document that establishes to the satisfaction of
ORR, in its discretion, the affiant's parental relationship or
guardianship;
(5) A licensed program willing to accept legal custody; or
(6) An adult individual or entity seeking custody, in the
discretion of ORR, when it appears that there is no other likely
alternative to long term custody, and family reunification does not
appear to be a reasonable possibility.
Sec. 410.302 Sponsor suitability assessment process requirements
leading to release of an unaccompanied alien child from Federal custody
to a proposed sponsor.
(a) The licensed program providing care for the UAC shall make and
record the prompt and continuous efforts on its part towards family
reunification and the release of the UAC pursuant to the provisions of
this section.
(b) ORR requires a background check, including verification of
identity and which may include verification of employment of the
individuals offering support, prior to release.
(c) ORR also may require further suitability assessment, which may
include interviews of members of the household, investigation of the
living conditions in which the UAC would be placed and the standard of
care he or she would receive, a home visit, a fingerprint-based
background and criminal records check on the prospective sponsor and on
adult residents of the prospective sponsor's household, and follow-up
visits after release. Any such assessment also takes into consideration
the wishes and concerns of the UAC.
(d) If the conditions identified in TVPRA at 8 U.S.C. 1232(c)(3)(B)
are met, and require a home study, no release to a sponsor may occur in
the absence of such a home study.
(e) The proposed sponsor must sign an affidavit of support and a
custodial release agreement of the conditions of release. The custodial
release agreement requires that the sponsor:
(1) Provide for the UAC's physical, mental, and financial well-
being;
(2) Ensure the UAC's presence at all future proceedings before DHS
and the immigration courts;
(3) Ensure the UAC reports for removal from the United States if so
ordered;
(4) Notify ORR, DHS, and the Executive Office for Immigration
Review of any change of address within five days following a move;
(5) Notify ORR and DHS at least five days prior to the sponsor's
departure from the United States, whether the departure is voluntary or
pursuant to a grant of voluntary departure or an order of removal;
[[Page 45532]]
(6) Notify ORR and DHS if dependency proceedings involving the UAC
are initiated and also notify the dependency court of any immigration
proceedings pending against the UAC;
(7) Receive written permission from ORR if the sponsor decides to
transfer legal custody of the UAC to someone else. Also, in the event
of an emergency (e.g., serious illness or destruction of the home), a
sponsor may transfer temporary physical custody of the UAC prior to
securing permission from ORR, but the sponsor must notify ORR as soon
as possible and no later than 72 hours after the transfer; and
(8) Notify ORR and DHS as soon as possible and no later than 24
hours of learning that the UAC has disappeared, has been threatened, or
has been contacted in any way by an individual or individuals believed
to represent an immigrant smuggling syndicate or organized crime.
(f) ORR is not required to release a UAC to any person or agency it
has reason to believe may harm or neglect the UAC or fail to present
him or her before DHS or the immigration courts when requested to do
so.
Subpart D--Licensed Programs
Sec. 410.400 Purpose of this subpart.
This subpart covers the standards that licensed programs must meet
in keeping with the principles UACs in custody with dignity, respect
and special concern for their particular vulnerability
Sec. 410.401 Applicability of this subpart.
This subpart applies to all licensed programs, regardless of
whether they are providing care in shelters, staff secure facilities,
residential treatment centers, or foster care and group home settings.
Sec. 410.402 Minimum standards applicable to licensed programs.
Licensed programs must:
(a) Be licensed by an appropriate State agency to provide
residential, group, or foster care services for dependent children.
(b) Comply with all applicable state child welfare laws and
regulations and all state and local building, fire, health and safety
codes;
(c) Provide or arrange for the following services for each UAC in
care, including:
(1) Proper physical care and maintenance, including suitable living
accommodations, food, appropriate clothing, and personal grooming
items;
(2) Appropriate routine medical and dental care, family planning
services, and emergency health care services, including a complete
medical examination (including screening for infectious disease) within
48 hours of admission, excluding weekends and holidays, unless the UAC
was recently examined at another facility; appropriate immunizations in
accordance with the U.S. Public Health Service (PHS), Center for
Disease Control; administration of prescribed medication and special
diets; appropriate mental health interventions when necessary;
(3) An individualized needs assessment that must include:
(i) Various initial intake forms;
(ii) Essential data relating to the identification and history of
the UAC and family;
(iii) Identification of the UAC's special needs including any
specific problems that appear to require immediate intervention;
(iv) An educational assessment and plan;
(v) An assessment of family relationships and interaction with
adults, peers and authority figures;
(vi) A statement of religious preference and practice;
(vii) An assessment of the UAC's personal goals, strengths and
weaknesses; and
(viii) Identifying information regarding immediate family members,
other relatives, godparents or friends who may be residing in the
United States and may be able to assist in family reunification; and
(4) Educational services appropriate to the UAC's level of
development and communication skills in a structured classroom setting,
Monday through Friday, which concentrate primarily on the development
of basic academic competencies and secondarily on English Language
Training (ELT), including:
(i) Instruction and educational and other reading materials in such
languages as needed;
(ii) Instruction in basic academic areas that include science,
social studies, math, reading, writing, and physical education; and
(iii) The provision to a UAC of appropriate reading materials in
languages other than English for use during the UAC's leisure time;
(5) Activities according to a recreation and leisure time plan that
include daily outdoor activity, weather permitting, at least one hour
per day of large muscle activity and one hour per day of structured
leisure time activities, which do not include time spent watching
television. Activities must be increased to at least three hours on
days when school is not in session;
(6) At least one individual counseling session per week conducted
by trained social work staff with the specific objectives of reviewing
the UAC's progress, establishing new short-term objectives, and
addressing both the developmental and crisis-related needs of each UAC;
(7) Group counseling sessions at least twice a week. This is
usually an informal process and takes place with all the UACs present.
This is a time when new UACs are given the opportunity to get
acquainted with the staff, other children, and the rules of the
program. It is an open forum where everyone gets a chance to speak.
Daily program management is discussed and decisions are made about
recreational and other program activities, etc. This is a time for
staff and UACs to discuss whatever is on their minds and to resolve
problems;
(8) Acculturation and adaptation services that include information
regarding the development of social and inter-personal skills that
contribute to those abilities necessary to live independently and
responsibly;
(9) Upon admission, a comprehensive orientation regarding program
intent, services, rules (provided in writing and verbally),
expectations and the availability of legal assistance;
(10) Whenever possible, access to religious services of the UAC's
choice;
(11) Visitation and contact with family members (regardless of
their immigration status) which is structured to encourage such
visitation. The staff must respect the UAC's privacy while reasonably
preventing the unauthorized release of the UAC;
(12) A reasonable right to privacy, which must include the right
to:
(i) Wear his or her own clothes, when available;
(ii) Retain a private space in the residential facility, group or
foster home for the storage of personal belongings;
(iii) Talk privately on the phone, as permitted by the house rules
and regulations;
(iv) Visit privately with guests, as permitted by the house rules
and regulations; and
(v) Receive and send uncensored mail unless there is a reasonable
belief that the mail contains contraband;
(13) Family reunification services designed to identify relatives
in the United States as well as in foreign countries and assistance in
obtaining legal guardianship when necessary for release of the UAC; and
(14) Legal services information regarding the availability of free
legal assistance, the right to be represented by counsel at no expense
to the government, the right to a removal hearing before an immigration
judge, the
[[Page 45533]]
right to apply for asylum or to request voluntary departure in lieu of
removal;
(d) Deliver services in a manner that is sensitive to the age,
culture, native language and the complex needs of each UAC;
(e) Formulate program rules and discipline standards with
consideration for the range of ages and maturity in the program and
that are culturally sensitive to the needs of each UAC to ensure the
following:
(1) UAC must not be subjected to corporal punishment, humiliation,
mental abuse, or punitive interference with the daily functions of
living, such as eating or sleeping: and
(2) Any sanctions employed must not:
(i) Adversely affect either a UAC's health, or physical or
psychological well-being; or
(ii) Deny UAC regular meals, sufficient sleep, exercise, medical
care, correspondence privileges, or legal assistance;
(f) Develop a comprehensive and realistic individual plan for the
care of each UAC in accordance with the UAC's needs as determined by
the individualized needs assessment. Individual plans must be
implemented and closely coordinated through an operative case
management system;
(g) Develop, maintain and safeguard individual client case records.
Licensed programs must develop a system of accountability that
preserves the confidentiality of client information and protects the
records from unauthorized use or disclosure; and
(h) Maintain adequate records and make regular reports as required
by ORR that permit ORR to monitor and enforce these regulations and
other requirements and standards as ORR may determine are in the
interests of the UAC.
Sec. 410.403 Ensuring that licensed programs are providing services
as required by these regulations.
ORR monitors compliance with the terms of these regulations.
Subpart E--Transportation of an Unaccompanied Alien Child
Sec. 410.500 Conducting transportation for an unaccompanied alien
child in ORR's custody.
(a) ORR does not transport UAC with adult detainees.
(b) When ORR plans to release a UAC from its custody under the
family reunification provisions at sections 410.201 and 410.302 of this
part, ORR assists without undue delay in making transportation
arrangements. ORR may, in its discretion, provide transportation to
UAC.
Subpart F--Provisions for Transfer of an Unaccompanied Alien Child
Sec. 410.600 Principles applicable to transfer of an unaccompanied
alien child.
(a) ORR transfers a UAC from one placement to another with all of
his or her possessions and legal papers. ORR takes all necessary
precautions for the protection of UACs during transportation with
adults.
(b) If the UAC's possessions exceed the amount permitted normally
by the carrier in use, the possessions are shipped to the UAC in a
timely manner.
(c) ORR does not transfer a UAC who is represented by counsel
without advance notice to his or her legal counsel. However, ORR may
provide notice to counsel within 24 hours of the transfer in unusual
and compelling circumstances such as:
(1) Where the safety of the UAC or others has been threatened;
(2) The UAC has been determined to be an escape risk consistent
with Sec. 410.204 of this part; or
(3) Where counsel has waived such notice.
Subpart G--Age Determinations
Sec. 410.700 Conducting age determinations.
Procedures for determining the age of an individual must take into
account multiple forms of evidence, including the non-exclusive use of
radiographs, to determine the age of the individual. ORR may require an
individual in ORR's custody to submit to a medical or dental
examination conducted by a medical professional or to submit to other
appropriate procedures to verify his or her age. If ORR subsequently
determines that such an individual is a UAC, he or she will be treated
in accordance with ORR's UAC regulations for all purposes.
Sec. 410.701 Treatment of an individual who appears to be an adult.
If, the procedures in Sec. 410.700 would result in a reasonable
person concluding that an individual is an adult, despite his or her
claim to be under the age of 18, ORR must treat such person as an adult
for all purposes.
Subpart H--Unaccompanied Alien Children's Objections to ORR
Determinations
Sec. 410.800 Purpose of this subpart.
This subpart concerns UACs' objections to ORR placement.
Sec. 410.801 Procedures.
(a) For UACs not placed in licensed programs, ORR shall--within a
reasonable period of time--provide a notice of the reasons for housing
the minor in secure or staff secure facility. Such notice shall be in a
language the UAC understands.
(b) ORR shall promptly provide each UAC not released with:
(i) A list of free legal services providers compiled by ORR and
that is provided to UAC as part of a Legal Resource Guide for UAC
(unless previously given to the UAC); and
(ii) The following explanation of the right of potential review:
ORR usually houses persons under the age of 18 in an open setting, such
as a foster or group home, and not in detention facilities. If you
believe that you have not been properly placed or that you have been
treated improperly, you may call a lawyer to seek assistance. If you
cannot afford a lawyer, you may call one from the list of free legal
services given to you with this form.
Sec. 410.810 Hearings
(a) A UAC may request that an independent hearing officer employed
by HHS determine, through a written decision, whether the UAC would
present a risk of danger to the community or risk of flight if
released.
(1) Requests under this section may be made by the UAC, his or her
legal representative, or his or her parent or legal guardian.
(2) UACs placed in secure or staff secure facilities will receive a
notice of the procedures under this section and may use a form provided
to them to make a written request for a hearing under this section.
(b) In hearings conducted under this section, the burden is on the
UAC to show that he or she will not be a danger to the community (or
risk of flight) if released, using a preponderance of the evidence
standard.
(c) In hearings under this section, the UAC may be represented by a
person of his or her choosing, at no cost to the government. The UAC
may present oral and written evidence to the hearing officer and may
appear by video or teleconference. ORR may also choose to present
evidence either in writing, or by appearing in person, or by video or
teleconference.
(d) A hearing officer's decision that a UAC would not be a danger
to the community (or risk of flight) if released is binding upon ORR,
unless the provisions of paragraph (e) of this section apply.
(e) A hearing officer's decision under this section may be appealed
to the Assistant Secretary of the Administration for Children and
Families. Any such appeal request shall be in writing, and must be
received
[[Page 45534]]
within 30 days of the hearing officer decision. The Assistant Secretary
will reverse a hearing officer decision only if there is a clear error
of fact, or if the decision includes an error of law. Appeal to the
Assistant Secretary shall not effect a stay of the hearing officer's
decision to release the UAC, unless within five business days of such
hearing officer decision, the Assistant Secretary issues a decision in
writing that release of the UAC would result in a significant danger to
the community. Such a stay decision must include a description of
behaviors of the UAC while in care and/or documented criminal or
juvenile behavior records from the UAC demonstrating that the UAC would
present a danger to community if released.
(f) Decisions under this section are final and binding on the
Department, and a UAC may only seek another hearing under this section
if the UAC can demonstrate a material change in circumstances.
Similarly, ORR may request the hearing officer to make a new
determination under this section if at least one month has passed since
the original decision, and ORR can show that a material change in
circumstances means the UAC should no longer be released.
(g) This section cannot be used to determine whether a UAC has a
suitable sponsor, and neither the hearing officer nor the Assistant
Secretary may order the UAC released.
(h) This section may not be invoked to determine the UAC's
placement while in ORR custody. Nor may this section be invoked to
determine level of custody for the UAC.
Kirstjen M. Nielsen,
Secretary, Department of Homeland Security.
Alex M. Azar II,
Secretary, Department of Health and Human Services.
[FR Doc. 2018-19052 Filed 9-6-18; 8:45 am]
BILLING CODE 9111-28-P; 4184-45-P
