Unaccompanied Children Program Foundational Rule, 68908-69002 [2023-21168]
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Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
45 CFR Part 410
RIN 0970–AC93
Unaccompanied Children Program
Foundational Rule
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
(NPRM).
AGENCY:
This NPRM proposes to adopt
and replace regulations relating to the
key aspects of the placement, care, and
services provided to unaccompanied
children referred to the Office of
Refugee Resettlement (ORR), pursuant
to ORR’s responsibilities for
coordinating and implementing the care
and placement of unaccompanied
children who are in Federal custody by
reason of their immigration status under
the Homeland Security Act of 2002
(HSA) and the William Wilberforce
Trafficking Victims Protection
Reauthorization Act of 2008 (TVPRA).
ORR intends to promulgate a final rule
that would establish a foundation for
the Unaccompanied Children Program
(UC Program) that is consistent with its
statutory duties, for the benefit of
unaccompanied children and to
enhance public transparency as to the
policies governing the operation of the
UC Program. ORR also proposes this
rule for the purpose of implementing
the 1997 Flores Settlement Agreement
(FSA), which remains in effect as a
court-ordered consent decree to which
the UC Program is subject. As modified
in 2001, the FSA provides that it will
terminate forty-five days after
publication of final regulations
implementing the agreement. ORR
anticipates that any termination of the
settlement based on the adoption of this
proposal as a final rule would only be
effective for those provisions that affect
ORR and would not terminate
provisions of the FSA for other Federal
Government agencies.
DATES: Consideration will be given to
comments on this NPRM on or before
December 4, 2023.
ADDRESSES: You may send comments,
identified by Regulatory Information
Number (RIN), by any of the following
methods:
• Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
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SUMMARY:
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• Email: UCPolicy-RegulatoryAffairs@
acf.hhs.gov. Include the RIN in the
subject line of the message.
Instructions: All submissions received
must include the agency name and RIN
for this rulemaking. All comments
received will be posted without change
to www.regulations.gov, including any
personal information provided. For
detailed instructions on submitting
comments and additional information
on the rulemaking process, see the
‘‘Public Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT:
Toby Biswas, Director of Policy,
Unaccompanied Children Program,
Office of Refugee Resettlement,
Administration for Children and
Families, Department of Health and
Human Services, Washington, DC, (202)
205–4440 or UCPolicyRegulatoryAffairs@acf.hhs.gov.
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 Proposed Rule
B. Summary of the Major Provisions
C. Summary of Costs and Benefits
IV. Background and Purpose
A. The UC Program
B. History and Statutory Structure
C. Statutory and Regulatory Authority
D. Basis and Purpose of Regulatory Action
E. Severability
V. Discussion of Elements of the Proposed
Rule
VI. Collection of Information Requirements
VII. Regulatory Impact Analysis
A. Economic Analysis
B. Regulatory Flexibility Analysis
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13132: Federalism
F. Executive Order 12988: Civil Justice
Reform
VIII. Assessment of Federal Regulation and
Policies on Families
IX. Alternatives Considered
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. ORR also invites 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://www.regulations.gov as part of
the public record and will include any
personal or commercial information you
provide.
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A. Submitting Comments
Comments that will provide the most
assistance to ORR 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. You may submit your
comments and materials online or by
email, 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 ‘‘0970–
AC93’’ 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.
All comments received by the
accepted methods and due date
specified above may be posted without
change to content to https://
www.regulations.gov, which may
include personal information provided
about the commenter, and such posting
may occur after the closing of the
comment period. However, the
Department may redact certain content
from comments before posting,
including threatening language, hate
speech, profanity, graphic images, or
individually identifiable information
about a third-party individual other
than the commenter.
For additional information, please
read the ‘‘Privacy and Security Notice’’
that is available via the link in the footer
of https://www.regulations.gov.
ORR will consider all comments and
materials received during the comment
period and may change this rule based
on your comments.
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
‘‘0970–AC93’’ 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 ORR through the FOR
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section
above. You may sign up for email alerts
on the online docket to be notified when
comments are posted or a final rule is
published.
FURTHER INFORMATION CONTACT
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 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
DHS—U.S. Department of Homeland
Security
DOJ—U.S. Department of Justice
EOIR—Executive Office for Immigration
Review
FSA—Flores Settlement Agreement
HHS—U.S. Department of Health and Human
Services
HSA—Homeland Security Act of 2002
INS—Immigration and Naturalization Service
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
UC Program—Unaccompanied Children
Program
III. Executive Summary
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A. Purpose of the Proposed Rule
In this notice of proposed rulemaking
(NPRM), the Office of Refugee
Resettlement (ORR) proposes to replace
and supersede regulations at 45 CFR
part 410, and to codify policies and
requirements concerning the placement,
care, and services provided to
unaccompanied children in Federal
custody by reason of their immigration
status and referred to ORR. This NPRM
is based on statutory authorities and
requirements provided under the
Homeland Security Act of 2002 (HSA) 1
and the William Wilberforce Trafficking
Victims Protection Reauthorization Act
of 2008 (TVPRA),2 and would
implement those terms of the 1997
Flores Settlement Agreement (FSA) that
create responsibilities for HHS and
ORR. These proposed regulations are
published under the authority granted
to the Secretary of Health and Human
Services (HHS) by the TVPRA 3 and to
1 Public Law 107–296, sec. 462, 116 Stat. 2135,
2202.
2 Public Law 110–457, title II, subtitle D, 122 Stat.
5044.
3 8 U.S.C. 1232.
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the Director of ORR by the HSA.4 The
proposed regulations would implement
requirements that are consistent with
the substantive protections provided by,
and the underlying purpose of, the FSA
with regard to unaccompanied children
who are placed in ORR care. The
proposed requirements would apply to
all care provider facilities, including
both standard programs and nonstandard programs, as defined below,
unless otherwise specified. ORR
believes that this proposed rule is
warranted at this time in order to codify
a uniform set of standards and
procedures that will help to ensure the
safety and well-being of unaccompanied
children in ORR care, implement the
substantive terms of the FSA, and
enhance public transparency as to the
policies governing the operation of the
Unaccompanied Children Program (UC
Program).
B. Summary of the Major Provisions
This proposed rule would codify ORR
policies and requirements for the
placement, care, and services provided
to unaccompanied children in Federal
custody by reason of their immigration
status and referred to ORR, as discussed
in section V. of this proposed rule. In
subpart A, ORR proposes to define
terms that are relevant to the criteria
and requirements in this proposed rule
and to codify the general principles that
apply to the care and placement of
unaccompanied children in ORR care.
In subpart B, ORR proposes the criteria
and requirements that apply with
respect to placement of unaccompanied
children at ORR care provider facilities,
including specific criteria for placement
at particular types of ORR care provider
facilities. ORR proposes, in subpart C,
policies and procedures regarding the
release of an unaccompanied child from
ORR care to a vetted and approved
sponsor. In subpart D, ORR proposes the
standards and services that it must meet
and provide to unaccompanied children
in ORR care provider facilities. ORR
proposes requirements for the safe
transportation of each unaccompanied
child while in ORR’s care in subpart E
of this proposed rule. ORR proposes, in
subpart F, guidelines for care provider
facilities to report information such that
ORR may compile and maintain
statistical information and other data on
unaccompanied children. In subpart G,
ORR proposes to codify requirements
and policies regarding the transfer of
unaccompanied children in ORR care.
Subpart H discusses proposed
guidelines for determining the age of an
individual in ORR care. ORR proposes,
46
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in subpart I, to codify guidelines for
emergency or influx facilities, which are
ORR facilities that are opened during a
time of emergency or influx. In subpart
J, ORR proposes guidelines and
requirements regarding the availability
of administrative review of ORR
decisions. Finally, in subpart K, ORR
proposes to establish an independent
ombud’s office that would promote
important protections for all children in
ORR care.
C. Summary of Costs and Benefits
This rule proposes to codify current
ORR requirements for compliance with
the FSA, court orders, and statutes, as
well as certain requirements under
existing ORR policy and cooperative
agreements. As discussed in section
VII.A of this proposed rule, ORR expects
this proposed rule to impose limited
additional costs, including those costs
incurred by the Federal Government to
increase the provision of legal services
to unaccompanied children in limited
circumstances, supplement costs
incurred by grant recipients in order to
comply with the proposed requirements
(see below), establish a risk
determination hearing process, and also
to establish the Unaccompanied
Children Office of the Ombuds (UC
Office of the Ombuds) and other
administrative staffing needs. In
proposed subpart D at § 410.1309, ORR
is proposing, to the greatest extent
practicable, subject to available
resources as determined by ORR, and
consistent with section 292 of the
Immigration and Nationality Act (8
U.S.C. 1362), that all unaccompanied
children who are or have been in ORR
care would have access to legal advice
and representation in immigration legal
proceedings or matters funded by ORR.
In proposed subpart J, ORR proposes the
establishment of a risk determination
hearing process. In proposed subpart K,
ORR discusses its proposal to establish
an Office of the Ombuds for the UC
Program. In addition to the Ombuds
position itself, ORR anticipates the need
for support staff in the office. ORR
estimates the annual cost of establishing
and maintaining this office would be
$1,718,529 which includes the cost of
10 full-time personnel, as discussed in
further detail in VII.A.2 of this proposed
rule.
ORR also notes that all care provider
facilities and service providers
discussed in this proposed rule are
recipients of Federal awards (e.g.,
cooperative agreements or contracts),
and the costs of maintaining compliance
with these proposed requirements are
allowable costs under the Basic
Considerations for cost provisions at 45
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CFR 75.403 through 75.405,5 in that the
costs are reasonable, necessary,
ordinary, treated consistently, and are
allocable to the award. If there are
additional costs associated with the
policies discussed in this proposed rule
that were not budgeted, and cannot be
absorbed within existing budgets, the
recipient would be able to submit a
request for supplemental funds to cover
the costs.
IV. Background and Purpose
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A. The UC Program
The purpose of this proposed rule is
to codify policies, standards, and
protections for the UC Program,
consistent with the HSA and TVPRA, as
well as with the substantive
requirements of the FSA as they pertain
to ORR. On March 1, 2003, section 462
of the HSA transferred responsibilities
for the care and placement of
unaccompanied children from the
Commissioner of the Immigration and
Naturalization Service to the Director of
ORR. The HSA defines unaccompanied
children and establishes ORR
responsibilities with respect to
unaccompanied children. The HSA
defines ‘‘unaccompanied alien child,’’ a
term ORR uses synonymously with
‘‘unaccompanied child,’’ 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.’’ 6 The
TVPRA, meanwhile, added
requirements for other executive branch
departments and agencies to
expeditiously transfer unaccompanied
children in their custody to ORR’s care
and custody once identified, and
requires ORR to ensure unaccompanied
children are protected from human
trafficking and other crimes. Both
statutes are described in further detail in
the paragraphs below. Pursuant to these
statutory requirements, the UC Program
provides a safe and appropriate
environment to children and youth who
come to the United States without
immigration status and who have no
parent or legal guardian in the United
States or one available in the United
States to provide for their care and
physical custody. In most cases,
unaccompanied children enter ORR
custody via transfer from DHS. When
DHS immigration officials with an
unaccompanied child in custody
B. History and Statutory Structure
1. HSA and TVPRA
The HSA abolished the former
Immigration and Naturalization Service
(INS) and created DHS. The HSA
transferred many of the immigration
functions from the INS to DHS, but it
transferred functions under the
immigration laws with respect to the
care and custody of unaccompanied
children to ORR.7 The HSA makes the
5 See
66
also 45 CFR 75.101.
U.S.C. 279(g)(2).
transfer that child to ORR, ORR
promptly places the unaccompanied
child 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. ORR considers the unique nature
of each child’s situation, the best
interest of the child, and child welfare
principles when making placement,
clinical, case management, and release
decisions. To carry out its statutory
responsibilities for the care and custody
of unaccompanied children as
established in the TVPRA and the HSA,
and consistent with its responsibilities
under the FSA, ORR currently funds
residential care providers that provide
temporary housing and other services to
unaccompanied children in ORR
custody. These care providers have been
primarily state-licensed and must also
meet ORR requirements to ensure a
high-quality level of care. These
multiple providers create a continuum
of care for children, including
placements in individual and group
homes, shelter, heightened supervision,
and secure facilities, and residential
treatment centers. While under ORR
care, unaccompanied children are
provided with classroom education,
healthcare, socialization/recreation,
mental health services, access to
religious and legal services, and case
management. Unaccompanied children
generally remain in ORR custody until
they are released to a parent or other
sponsor in the United States, are
repatriated to their home country,
obtain legal status, or otherwise no
longer meet the statutory definition of
unaccompanied children (e.g., turn 18).
In accordance with current ORR policy,
all children who turn 18 years old while
in ORR’s care and custody are
transferred to DHS for a custody
determination. Once transferred to DHS,
that agency considers placement in the
least restrictive setting available after
taking into account the individual’s
danger to self, danger to the community,
and risk of flight and in accordance with
all applicable legal authority.
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ORR Director responsible for a number
of functions with respect to
unaccompanied children, including
coordinating and implementing their
care and placement, ensuring that
unaccompanied children’s interests are
considered in actions and decisions
relating to their care, making and
implementing placement
determinations, implementing policies
with respect to the care and placement
of children, and overseeing the
infrastructure and personnel of facilities
in which unaccompanied children
reside.8 The HSA also states that ORR
shall not release unaccompanied
children from custody upon their own
recognizance, and requires ORR to
consult with appropriate juvenile justice
professionals and certain Federal
agencies in relation to placement
determinations to ensure that
unaccompanied children are likely to
appear at all hearings and proceedings
in which they are involved; are
protected from smugglers, traffickers,
and others who might seek to victimize
or otherwise engage them in criminal,
harmful, or exploitative activity; and are
placed in a setting in which they are not
likely to pose a danger to themselves or
others.9 ORR notes that under its
current policies, such consultation is
subject to privacy protections for
unaccompanied children. For example,
ORR restricts sharing certain casespecific information with the Executive
Office for Immigration Review (EOIR)
and DHS that may dissuade a child from
seeking legal relief, or that may bias the
court’s length of continuances. Subject
to such protections, ORR provides
notification of the placement decisions
to U.S. Immigration and Customs
Enforcement (ICE) and, if referred by
U.S. Customs and Border Protection
(CBP), to CBP. ORR provides the
following notification information:
identifying information of the
unaccompanied child, ORR care
provider name and address, and ORR
care provider point of contact (name
and telephone number).10
In 2008, Congress passed the TVPRA,
which further elaborated duties with
respect to the care and custody of
unaccompanied children. The TVPRA
provides that, consistent with the HSA,
the care and custody of all
8 See
6 U.S.C. 279(b)(1).
U.S.C. 279(b)(2).
10 Memorandum of Agreement Among the Office
of Refugee Resettlement of the U.S. Department of
Health and Human Services and U.S. Immigration
and Customs Enforcement and U.S. Customs and
Border Protection of the U.S. Department of
Homeland Security Regarding Consultation and
Information Sharing in Unaccompanied Alien
Children Matters (Mar. 11, 2021).
96
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unaccompanied children, including
responsibility for their detention, where
appropriate, is the responsibility of the
Secretary of HHS, except as otherwise
specified. The TVPRA states that each
department or agency of the Federal
Government must notify HHS within 48
hours upon the apprehension or
discovery of an unaccompanied child or
any claim or suspicion that a noncitizen individual in the custody of such
department is under the age of 18.11 The
TVPRA states further that, except in
exceptional circumstances, any
department or agency of the Federal
Government that has an unaccompanied
child in its custody shall transfer the
custody of such child to HHS not later
than 72 hours after determining such
child is an unaccompanied child.
Furthermore, the TVPRA requires the
Secretary of HHS to establish policies
and programs to ensure that
unaccompanied children in the United
States are protected from traffickers and
other persons seeking to victimize or
otherwise engage such children in
criminal, harmful, or exploitative
activity.12 The TVPRA describes
requirements with respect to safe and
secure placements for unaccompanied
children, safety and suitability
assessments of proposed sponsors for
unaccompanied children, legal
orientation presentations, access to
counsel, and child advocates, among
other requirements. HHS delegated its
authority under the TVPRA to the
Assistant Secretary for Children and
Families, which then re-delegated the
authority to the Director of ORR.13
2. The Flores Settlement Agreement
Terms and Implementation
On July 11, 1985, four non-citizen
children in Immigration and
Naturalization Service (INS) 14 custody
filed a class action lawsuit in the U.S.
District Court for the Central District of
California on behalf of a class of minors
detained in the custody of the INS
(Flores litigation).15 At that time, the
INS was responsible for the custody of
minors entering the United States
unaccompanied by a parent or legal
guardian. The Flores litigation
challenged ‘‘(a) the [INS] policy to
condition juveniles’ release on bail on
11 8
U.S.C. 1232(b)(2)
U.S.C. 1232(c)(1).
13 See Delegation of Authority, 74 FR 14564 (Mar.
31, 2009); see also Delegation of Authority, 74 FR
19232 (Apr. 28, 2009).
14 As discussed further, below, INS was abolished
when the Department of Homeland Security was
established in 2002. 6 U.S.C. 291.
15 See Complaint for Injunctive and Declaratory
Relief, and Relief in the Nature of Mandamus at 2,
Flores v. Meese, No. 85–4544 (C.D. Cal. filed July
11, 1985).
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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.’’ 16 The plaintiffs claimed
that the INS’s release and bond practices
and policies violated, among other
things, the Immigration and Nationality
Act (INA), the Administrative Procedure
Act (APA), and the Due Process Clause
and Equal Protection Guarantee under
the Fifth Amendment.17 After over ten
years of litigation, the U.S. Government
and Flores plaintiffs entered into the
‘‘Flores Settlement Agreement’’ (FSA),
which was approved by the district
court as a consent decree on January 28,
1997.18
The FSA applies to both
unaccompanied children, as defined in
the HSA, and to children accompanied
by their parents or legal guardians,19 but
ORR notes that this proposed rule is
intended specifically to codify
requirements regarding the care of
unaccompanied children who have been
transferred to the care and custody of
ORR. As relevant to ORR, the FSA
imposes several substantive
requirements for government custody of
unaccompanied children, requiring first
and foremost that minors be placed in
the ‘‘least restrictive setting appropriate
to the minor’s age and special needs,’’ 20
and establishing a general policy
favoring release of unaccompanied
children where it is determined that
detention of the unaccompanied child is
not required either to secure the child’s
timely appearance for immigration
proceedings or to ensure the
unaccompanied child’s safety or that of
others.21 When release is appropriate,
the FSA establishes the following order
of priority with respect to potential
sponsors: a parent, legal guardian, adult
relative, or another adult designated by
the parent or legal guardian as capable
and willing to care for the minor’s wellbeing. If no sponsor is available, an
unaccompanied child will be placed at
a care provider facility licensed by an
appropriate state agency. Under the
16 Id.
Flores Compl. at paragraph 1.
id. at ¶ 66–69.
18 See Stipulated Settlement Agreement, Flores v.
Reno, No. CV 85–4544–RJK(Px) (C.D. Cal. Jan. 17,
1997, as amended Dec. 7, 2001).
19 See Flores v. Lynch, 828 F.3d 898 (9th Cir.
2016) (holding that the FSA applies to accompanied
minors as well as unaccompanied minors).
20 Id. at ¶ 11.
21 Id. at ¶¶ 12A, 14.
68911
original terms of the FSA,
unaccompanied children who were not
released remained in INS custody;
currently, under the FSA,
unaccompanied children who are not
released remain in ORR legal custody
and may be transferred or released only
under the authority of ORR. The FSA
also mandates that any non-citizen child
who remains in government custody for
removal proceedings is entitled to a
bond hearing before an immigration
judge, ‘‘unless the minor indicates on
the Notice of Custody Determination
form that he or she refuses such a
hearing.’’ 22 The FSA contains many
other provisions relating to the care of
unaccompanied children, including
Exhibit 1, which describes the
minimum standards required at licensed
care provider facilities caring for
unaccompanied children.
The FSA states that within 120 days
of the final district court approval of the
agreement, the Government shall
initiate action to publish the relevant
and substantive terms of this Agreement
in regulation.23 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.’’ 24 Over the
subsequent years, that proposed rule
was not finalized. The FSA originally
included a termination date, but in
2001, the parties agreed to extend the
agreement and added a stipulation that
terminates the FSA ‘‘45 days following
defendants’ publication of final
regulations implementing t[he]
Agreement.’’ 25 In January 2002, the INS
reopened the comment period on the
1998 proposed rule,26 but the
rulemaking was ultimately terminated.
Thus, as a result of the 2001 Stipulation,
the FSA has not terminated. 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 FSA.
3. The 2019 Final Rule
On September 7, 2018, DHS and HHS
issued a joint proposed rule, entitled
‘‘Apprehension, Processing, Care, and
Custody of Alien Minors and
Unaccompanied Alien Children’’ (2018
Proposed Rule).27 The purpose of the
proposed rule was to implement the
substantive terms of the FSA, and thus
enable the district court to terminate the
17 See
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22 Id.
at ¶ 24A.
at ¶ 9.
24 See 63 FR 39759 (July 24, 1998).
25 Stipulated Settlement Agreement, Flores v.
Reno, No. CV 85–4544–RJK(Px) (C.D. Cal. Jan. 17,
1997, as amended Dec. 7, 2001), at ¶ 40.
26 67 FR 1670 (Jan. 14, 2002).
27 83 FR 45486 (Sep. 7, 2018).
23 Id.
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agreement. The rule proposed to adopt
provisions that were intended to
parallel the relevant substantive terms
of the FSA, with some modifications to
reflect statutory and operational changes
put in place since the FSA was entered
into in 1997, along with certain other
changes.28 A final rule was promulgated
on August 23, 2019 (2019 Final Rule),
which comprised two sets of
regulations: one issued by DHS and the
other by HHS. The HHS regulations
addressed only the care and custody of
unaccompanied children.29 The DHS
regulations addressed other provisions
of the FSA that pertained to DHS,
including the requirement that after
DHS apprehends unaccompanied
children it should transfer them to the
custody of HHS.30
After DHS and HHS issued the 2018
Proposed Rule and before the 2019 Final
Rule was published, plaintiffs in the
Flores litigation filed a Motion to
Enforce the FSA. The court deferred
ruling on the Motion, ordering DHS and
HHS to file a notice upon issuance of
final regulations, which DHS and HHS
did in August 2019. Later that month
DHS and HHS also filed a Notice of
Termination and Motion in the
Alternative to Terminate the FSA, while
Plaintiffs filed a supplemental brief
addressing their Motion to Enforce.
Plaintiffs’ Motion to Enforce presented
two separate but related issues: (1)
whether the 2019 Final Rule would
effectively terminate the FSA, and (2) if
not, to what extent the Court should
enjoin the government from
implementing the 2019 Final Rule. On
September 27, 2019, approximately one
month after the 2019 Final Rule was
published, the District Court for the
Central District of California entered an
Order granting Plaintiffs’ Motion to
Enforce insofar as it sought an order
declaring that the Government failed to
terminate the FSA, denied the
Government’s Motion to Terminate the
FSA, and issued a permanent injunction
consistent with its order.31
On December 29, 2020, in Flores v.
Rosen, the U.S. Court of Appeals for the
Ninth Circuit affirmed in part and
reversed in part the District Court
Order.32 Regarding the HHS regulations
applicable to the care and custody of
unaccompanied children in the 2018
Proposed Rule, the Court of Appeals
28 Id.
29 Apprehension, Processing, Care, and Custody
of Alien Minors and Unaccompanied Alien
Children, 84 FR 44392, 44530–44535 (Aug. 23,
2019).
30 Id. at 44526.
31 Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal.
2019).
32 Flores v. Rosen, 984 F. 3d 720 (9th Cir. 2020).
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held that the regulations were ‘‘largely
consistent’’ with the FSA, with two
exceptions.33 First, it held that the HHS
regulation allowing placement of a
minor in a secure facility upon an
agency determination that the minor is
otherwise a danger to self or others
broadened the circumstances in which a
minor may be placed in a secure facility,
and therefore was inconsistent with the
FSA. Second, it held that provisions
providing a hearing to unaccompanied
children held in secure or staff-secure
placement only if requested was
inconsistent with the FSA’s opt-out
process for obtaining a bond hearing.
Although the Ninth Circuit held that the
majority of the HHS regulations could
take effect, it also held that the District
Court did not abuse its discretion in
declining to terminate the portions of
the FSA covered by those regulations,
noting that the Government moved to
‘‘terminate the Agreement in full, not to
modify or terminate it in part.’’ 34
Consistent with its findings, the Ninth
Circuit held that the FSA ‘‘therefore
remains in effect, notwithstanding the
overlapping HHS regulations’’ and that
the Government if it wished could move
to terminate those portions of the FSA
covered by the valid portions of the
HHS regulations.35
Separately, a group of states brought
litigation in the District Court for the
Central District of California seeking to
enjoin the government from
implementing the 2019 Final Rule
(California v. Mayorkas), based on other
grounds including the Administrative
33 The underlying District Court case also found
a third problematic aspect of the HHS regulations,
that the HHS regulations were inconsistent with the
FSA because they used descriptive, not mandatory,
language in implementing certain provisions (e.g.,
while the FSA requires that minors not released
‘‘shall be placed temporarily in a licensed program’’
whose homes and facilities ‘‘shall be non-secure as
required under state law,’’ FSA ¶¶ 6, 19, the
regulations stated that ‘‘ORR places
[unaccompanied minors] into a licensed program’’
and that ‘‘ORR places each [minor] in the least
restrictive setting that is in the best interest of the
child and appropriate to the [minor’s] age and
special needs,’’ 84 FR 44,392, 44,531.). But on
appeal, the Ninth Circuit ruled that where the 2019
Final Rule did not use mandatory language,
nevertheless ‘‘HHS and ORR are bound by and must
comply with the descriptive language in the HHS
regulations as equivalent to the mandatory
requirements in the Agreement. So interpreted, the
descriptive language in the regulations is consistent
with the Agreement.’’ Flores v. Rosen, 984 F.3d 720,
731 (9th Cir. 2020).
34 984 F.3d 720, 737 (9th Cir. 2020).
35 Id. With respect to the DHS portions of the
2019 Final Rule, the Ninth Circuit held that some
of the DHS regulations regarding initial
apprehension and detention were consistent with
the FSA and could take effect, but that the
remaining DHS regulations were inconsistent with
the FSA and the district court properly enjoined
them and the inconsistent HHS regulations from
taking effect. See id. at 744.
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Procedure Act.36 The court stayed the
case, given the related litigation brought
by Flores plaintiffs, which culminated
in the Ninth Circuit decision in Flores
v. Rosen. After that decision, the
plaintiffs in California v. Mayorkas filed
supplemental briefing requesting a
narrowed preliminary injunction,
alleging that several portions of the HHS
provisions of the 2019 Final Rule
violated the Administrative Procedure
Act. Subsequently, the parties entered
into settlement discussions. As of
December 10, 2021, the parties informed
the court that HHS did not plan to seek
termination of the FSA under the terms
of the stipulation or to ask the court to
lift its injunction of the HHS
regulations. Instead, HHS would
consider a future rulemaking that would
more broadly address issues related to
the custody of unaccompanied children
by HHS and that would replace the rule
being challenged in California v.
Mayorkas. Based on this agreement, the
court ordered that the California v.
Mayorkas litigation should be placed
into abeyance with regard to the
Plaintiffs’ claims against HHS while
HHS engaged in new rulemaking to
replace and supersede the HHS
regulations in the 2019 Final Rule.37
Further, among other things, HHS
agreed that while it underwent new
rulemaking, it would not seek to lift the
injunction of the 2019 Final Rule, nor
seek to terminate the FSA as to HHS
under the 2019 Final Rule, and that it
would make best efforts to submit a
notice of proposed rulemaking to the
OMB by April 15, 2023, providing
quarterly updates to the Court should it
not meet that deadline.38 In accord with
the relevant order ORR made best efforts
to submit the NPRM to OMB, and
ultimately sent the document to OMB
on April 28, 2023.39 This NPRM
initiates that broader rulemaking effort,
and reflects the stipulated agreement in
California v. Mayorkas, and applies, as
relevant, the findings of the Ninth
Circuit regarding the 2019 Final Rule in
Flores v. Rosen. Note, because the
permanent injunction of the 2019 Final
Rule was never lifted, and the FSA
continued to remain in effect, ORR does
not anticipate that any third parties
would have developed reliance interests
36 California v. Mayorkas, No. 2:19–v–07390 (C.D.
Cal. filed Aug. 26, 2019).
37 See Stipulation re Request to Hold Plaintiffs’
Claims as to HHS Under Abeyance, California v.
Mayorkas, No. 2:19–v–07390 (C.D. Cal. Apr. 12,
2022), ECF No. 159. See also Order Approving
Stipulation, ECF No. 160.
38 See id.
39 Pending E.O. 12866 Regulatory Review, https://
www.reginfo.gov/public/do/eoDetails?rrid=312162.
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on the HHS regulations in the 2019
Final Rule.
4. Lucas R. Litigation
Another ongoing litigation involving
ORR, filed in 2018, also has
ramifications for this NPRM. Lucas R. v.
Becerra,40 a class action lawsuit, was
filed in the U.S. District Court for the
Central District of California, alleging
ORR had violated the FSA, the TVPRA,
the U.S. Constitution, and section 504 of
the Rehabilitation Act of 1973 (section
504). Based on the plaintiffs’ allegations,
the court certified five plaintiff classes
comprising of all children in ORR
custody:
(1) who are or will be placed in a
secure facility, medium-secure facility,
or residential treatment center (RTC), or
whom ORR has continued to detain in
any such facility for more than 30 days,
without being afforded notice and an
opportunity to be heard before a neutral
and detached decisionmaker regarding
the grounds for such placement (i.e., the
‘‘step-up class’’);
(2) whom ORR is refusing or will
refuse to release to parents or other
available custodians within 30 days of
the proposed custodian’s submission of
a complete family reunification packet
on the ground that the proposed
custodian is or may be unfit (i.e., the
‘‘unfit custodian class’’);
(3) who are or will be prescribed or
administered one or more psychotropic
medications without procedural
safeguards (i.e., the ‘‘drug
administration class’’);
(4) who are natives of non-contiguous
countries and to whom ORR is
impeding or will impede legal
assistance in legal matters or
proceedings involving their custody,
placement, release, and/or
administration of psychotropic drugs
(i.e., the ‘‘legal representation class’’);
and
(5) who have or will have a
behavioral, mental health, intellectual,
and/or developmental disability as
defined in 29 U.S.C. [section] 705, and
who are or will be placed in a secure
facility, medium-secure facility, or
[RTC] because of such disabilities (i.e.,
the ‘‘disability class’’).41
On August 30, 2022, the U.S. District
Court for the Central District of
California granted preliminary
injunctive relief concerning the
allegations of the unfit custodian, stepup, and legal representation classes. As
40 Lucas R. v. Becerra, Case No. 2:18–cv–5741
(C.D. Cal. filed Jun. 29, 2018).
41 Order re Defendants’ Motion to Dismiss [101]
and Plaintiff’s Motion for Class Certification [97],
Lucas R. v. Becerra, No. 2:18–cv–05741 (C.D. Cal.
Nov. 2, 2018), ECF No. 126.
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of October 31, 2022, ORR implemented
new policies and procedures on issues
identified in the Court’s preliminary
injunction order. As of September 2023,
ORR remains in active litigation in the
Lucas R. class action. Depending on
developments in the case, ORR may
incorporate additional provisions in the
final rule as discussed in this preamble.
C. Statutory and Regulatory Authority
As discussed above, under the HSA
and TVPRA, the ORR Director is
responsible for the care and placement
of unaccompanied children. Under the
HSA, ORR is responsible for
‘‘coordinating and implementing the
care and placement of [unaccompanied
children] who are in Federal custody by
reason of their immigration status,’’
‘‘identifying a sufficient number of
qualified individuals, entities, and
facilities to house [unaccompanied
children],’’ ‘‘overseeing the
infrastructure and personnel of facilities
in which [unaccompanied children
reside],’’ and ‘‘conducting investigations
and inspections of facilities and other
entities in which [unaccompanied
children] reside, including regular
follow-up visits to such facilities,
placements, and other entities, to assess
the continued suitability of such
placements.’’ 42 Under the TVPRA,
Federal agencies are required to notify
HHS within 48 hours of apprehending
or discovering a UC or receiving a claim
or having suspicion that a non-citizen in
their custody is an unaccompanied
child under 18 years of age.43 The
TVPRA further requires that, absent
exceptional circumstances, any Federal
agency must transfer an unaccompanied
child to the care and custody of HHS
within 72 hours of determining that a
non-citizen child in its custody is an
unaccompanied child. With respect to
the care and placement of
unaccompanied children, the TVPRA
requires that HHS establish policies and
programs to ensure that unaccompanied
children are protected from traffickers
and other persons seeking to victimize
or exploit children. Among other things,
it also requires HHS to place
unaccompanied children in the least
restrictive setting that is in the best
interest of the child, and states that in
making such placements it may
consider danger to self, danger to the
community, and risk of flight. As
previously discussed, the Secretary of
HHS delegated the authority under the
TVPRA to the Assistant Secretary for
Children and Families,44 who in turn
42 Id.
43 8
U.S.C. 1232(b)(2).
FR 14564 (2009)
44 74
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delegated the authority to the Director of
ORR.45 It is under this delegation of
authority that ORR now proposes to
issue regulations describing how ORR
meets its statutory responsibilities
under the HSA and TVPRA and to
implement the relevant and substantive
terms of the FSA for the care and
custody of unaccompanied children.
In addition to requirements and
standards related to the direct care of
unaccompanied children, ORR proposes
to establish a new UC Office of the
Ombuds, to create a mechanism that
allows unaccompanied children and
stakeholders to raise concerns with ORR
policies and practices to an independent
body. The Ombuds will be tasked with
fielding concerns from any party
relating to the implementation of ORR
regulations, policies, and procedures;
reviewing individual cases, conducting
site visits and publishing reports
including reports on systemic issues in
ORR custody, particularly where there
are concerns about access to services or
release from ORR care; and following up
on grievances made by children,
sponsors, or other stakeholders. HHS
has authority to establish this office
under its authority to ‘‘establish policies
and programs to ensure that
unaccompanied alien children in the
United States are protected from
traffickers and other persons seeking to
victimize or otherwise engage such
children in criminal, harmful, or
exploitative activity.’’ 46
D. Basis and Purpose of Regulatory
Action
The purpose of this NPRM is to
propose a regulatory framework that
would: (1) codify policies and practices
related to the care and custody of
unaccompanied children, consistent
with ORR’s statutory authorities; and (2)
implement relevant provisions
described by the FSA. The FSA
describes ‘‘minimum’’ standards for care
of unaccompanied children at licensed
care provider facilities, but Congress
subsequently enacted legislation
establishing requirements for the UC
Program. This NPRM proposes both to
implement the protections set forth in
the FSA and to broaden them consistent
with the current legal and operational
environment, which has significantly
45 74
FR 1232 (2009).
U.S.C. 1232(c)(1); see also 6 U.S.C.
279(b)(1)(L) (describing ORR’s responsibility to
conduct investigations and inspections of facilities
and other entities in which unaccompanied
children reside, including regular follow-up visits
to such facilities, placements, and other entities, to
assess the continued suitability of such
placements).
46 8
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changed since the FSA was signed over
25 years ago.
E. Severability
To the extent that any portion of the
requirements arising from the final rule
is declared invalid by a court, ORR
intends for all other parts of the final
rule that are capable of operating in the
absence of the specific portion that has
been invalidated to remain in effect.
While our expectation is that all parts of
the final rule that are operable in such
an environment would remain in effect,
ORR will assess at that time whether
further rulemaking is necessary to
amend any provisions subsequent to
any holding that ORR exceeded its
discretion or the provisions are
inconsistent with the FSA or are vacated
or enjoined on any other basis.
V. Discussion of Elements of the
Proposed Rule
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Subpart A—Care and Placement of
Unaccompanied Children
In this NPRM, ORR proposes to codify
requirements and policies regarding the
placement, care, and services provided
to unaccompanied children in ORR
custody. The following provisions
identify the scope of this part, the
definitions used throughout this part,
and principles that apply to ORR
placement, care, and services decisions.
Section 410.1000 Scope of This Part
ORR proposes, in § 410.1000(a), that
the scope of this part pertain to the
placement, care, and services provided
to unaccompanied children in Federal
custody by reason of their immigration
status and referred to ORR. As described
in section IV. of this proposed rule,
ORR’s care, custody, and placement of
unaccompanied children is governed by
the HSA and TVPRA, and ORR provides
its services to unaccompanied children
in accordance with the terms of the
FSA. ORR also clarifies that proposed
part 410 would not govern or describe
the entire program. For example, part
411 (describing requirements related to
the prevention of sexual abuse of
unaccompanied children in ORR care)
would remain in effect under this
proposed rule. ORR notes that its
current policies and practices are
described in the online ORR Policy
Guide,47 Field Guidance,48 manuals
describing compliance with ORR
policies and procedures, and other
47 ORR Unaccompanied Children Program Policy
Guide, https://www.acf.hhs.gov/orr/policyguidance/unaccompanied-children-program-policyguide.
48 Unaccompanied Children’s Program Field
Guidance, https://www.acf.hhs.gov/orr/policyguidance/uc-program-field-guidance.
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communications from ORR to care
provider facilities. ORR will continue to
utilize these vehicles for its
subregulatory guidance and will revise
them in connection with publication of
the final rule as needed to ensure
compliance with the final rule. The
proposed provisions of this part would,
in many cases, codify existing ORR
policies and practices. Further, upon
publication of a final rule, ORR would
continue to publish subregulatory
guidance as needed to clarify the
application of these regulations.
ORR also proposes, in § 410.1000(b),
that the provisions of this part are
separate and severable from one another
and that if any provision is stayed or
determined to be invalid, the remaining
provisions shall continue in effect.
Additionally, ORR proposes in
§ 410.1000(c) that ORR does not fund or
operate facilities other than standard
programs, restrictive placements (which
includes secure facilities, including
residential treatment centers, and
heightened supervision facilities), or
emergency or influx facilities, absent a
specific waiver as described under
proposed § 410.1801(d) or such
additional waivers as are permitted by
law.
Section 410.1001 Definitions
ORR proposes, in § 410.1001, to
codify the definitions of terms that
apply to this part. Some definitions are
the same as those found in statute, or
other authorities (e.g., the definition of
‘‘unaccompanied child’’ is the same as
the definition of ‘‘unaccompanied alien
child’’ as found in the HSA, 6 U.S.C.
279(g)(2)). Notably, for purposes of this
proposed rule, ORR would update
certain terms and definitions provided
in the FSA (e.g., the definition of
‘‘influx’’). Below is an explanation for
certain definitions, to further explain
ORR’s rationale when the proposed rule
applies the relevant terms.
The proposed definition of ‘‘care
provider facility’’ is intended to
generally describe any placement type
for unaccompanied children, except out
of network (OON) placements, and as a
result is broader than the term
‘‘standard program,’’ provided below,
which for example does not include
emergency or influx facilities. ORR also
notes that this proposed definition does
not reference ‘‘facilities for children
with special needs,’’ a term used in the
definition of ‘‘licensed program’’ in the
FSA and 45 CFR 411.5. ORR is
considering not using the term
‘‘facilities for children with special
needs’’ within the part for the reasons
set forth below in this section at the
proposed definition of ‘‘standard
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program.’’ Moreover, ORR understands
this proposed definition for ‘‘care
provider facility’’ to encompass any
facility in which an unaccompanied
child may be placed while in the
custody of ORR, including any facility
exclusively serving children in need of
particular services and treatment.
The proposed definition of
‘‘disability’’ is distinct from its proposed
definition for a ‘‘special needs
unaccompanied child,’’ discussed later
in this section and which is derived
specifically from the FSA. Although
some unaccompanied children may
have a disability and also have special
needs, the terms are not synonymous.
For example, an unaccompanied child
exiting ORR custody may be considered
to have a disability within the definition
set forth in section 504 of the
Rehabilitation Act of 1973 even if the
child does not require services or
treatments for a mental and/or physical
impairment.
The proposed definition of
‘‘emergency’’ differs from the definition
finalized at 45 CFR 411.5, which defines
the term as ‘‘a sudden, urgent, usually
unexpected occurrence or occasion
requiring immediate action.’’
‘‘Emergency,’’ for purposes of this
proposed rule, would reflect the term’s
usage in the context of the requirements
in this proposed rule.
With respect to the proposed
definition of ‘‘EOIR accredited
representative,’’ ORR notes that DOJ
refers to these individuals simply as
‘‘accredited representatives,’’ see 8 CFR
1292.1(a)(4), but for purposes of this
proposed rule, ORR adopts the term
‘‘EOIR accredited representative.’’
The proposed definition of
‘‘heightened supervision facility’’
incorporates language consistent with
the definition of ‘‘medium secure
facility’’ provided in the FSA at
paragraph 8. This term is meant to
replace the term ‘‘staff secure facility’’
as used under existing ORR policies.
ORR has decided to change its
terminology because it has become clear
that the prior term was not well
understood and did not effectively
convey information about the nature of
such facilities.
The proposed definition of ‘‘influx’’
would change the threshold for
declaring an influx, for ORR’s purposes,
from the FSA standard, which ORR
believes is out of date considering
current migration patterns and its
organizational capacity. The FSA
defines influx as ‘‘those circumstances
where the INS has, at any given time,
more than 130 minors eligible for
placement in a licensed program.’’
ORR’s proposed definition, however,
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would not impact the rights, and
responsibilities of other parties of the
FSA. ORR believes that the proposed
definition more appropriately reflects
significantly changed circumstances
since the inception of the FSA and
provides a more realistic, fair, and
workable threshold for implementing
safeguards necessary in cases where a
high percentage of ORR’s bed capacity
is in use. The 1997 standard of 130
minors awaiting placement does not
reflect the realities of unaccompanied
children referrals in the past decade, in
which the number of unaccompanied
children referrals each day typically
exceeds, and sometimes greatly exceeds,
130. To leave this standard as the
definition of influx would mean, in
effect, that the program was always in
influx status. Accordingly, ORR has
developed a more realistic and workable
threshold for implementing safeguards
necessary in cases where a high
percentage of ORR bed capacity is in
use.
With respect to the proposed
definition of ‘‘post-release services,’’
ORR notes that assistance linking
families to educational resources may
include but is not limited to, in
appropriate circumstances, assisting
with school enrollment; requesting an
English language proficiency
assessment; seeking an evaluation to
determine whether the child is eligible
for a free appropriate public education
(which can include special education
and related services) or reasonable
modifications and auxiliary aids and
services under the Individuals with
Disabilities Education Act or section
504 of the Rehabilitation Act of 1973;
and monitoring the unaccompanied
child’s attendance at and progress in
school. ORR notes that while the
TVPRA requires that follow-up services
must be provided during the pendency
of removal proceedings in cases in
which a home study occurred, the
nature and extent of those services
would be subject to available resources.
With respect to the proposed
definition of ‘‘runaway risk,’’ ORR notes
that the FSA and ORR policy currently
uses the term ‘‘escape risk.’’ See FSA
paragraph 22 (defining ‘‘escape risk’’ as
‘‘a serious risk that the minor will
attempt to escape from custody,’’ and
providing a non-exhaustive list of
factors ORR may consider when
determining whether an unaccompanied
child is an escape risk—e.g., whether
the unaccompanied child is currently
under a final order of removal, the
unaccompanied child’s immigration
history, and whether the
unaccompanied child has previously
absconded or attempted to abscond from
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government custody). ORR proposes to
update this term to ‘‘runaway risk,’’
which is a term used by state child
welfare agencies and Federal agencies to
describe children at risk from running
away from home or their care setting.
Rather than basing its determination of
runaway risk solely on the factors
described in the FSA, ORR proposes
under this rule that such determinations
must be made in view of a totality of the
circumstances and should not be based
solely on a past attempt to run away.
This proposed definition of runaway
risk is meant to be consistent with how
the term is used in the FSA to describe
escape from ORR care, i.e., from a care
provider facility. ORR notes here and
throughout this proposed rule that the
TVPRA uses the term ‘‘risk of flight,’’
stating HHS ‘‘may’’ consider ‘‘risk of
flight,’’ among other factors, when
making placement determinations.49
ORR understands that in the
immigration law context, ‘‘risk of flight’’
refers to an individual’s risk of not
appearing for their immigration
proceedings.50 ORR proposes, with
respect to its responsibilities toward
unaccompanied children in its custody,
to interpret ‘‘risk of flight’’ as including
‘‘runaway risk,’’ thereby adding
runaway risk to the list of factors it
would consider in making placement
determinations. Runaway risk often
overlaps with concern that an
unaccompanied child may not appear
for the child’s immigration proceedings.
ORR also notes that runaway risk may
also relate to potential danger to self or
the community, given the inherent risks
to unaccompanied children who run
away from custody.
With respect to the proposed
definition of ‘‘secure facility,’’ ORR
notes that the FSA uses but does not
provide a definition for this term.
Nevertheless, the proposed definition is
consistent with the provisions of the
FSA applying to secure facilities. Also,
this proposed definition differs from the
definition in the 2019 Final Rule, which
could have been read to indicate that
any contract or cooperative agreement
for a facility with separate
accommodations for minors is a secure
facility. Such a definition risks
erroneously confusing other types of
ORR placements that are not secure
with secure placements and therefore
49 8
U.S.C. 1232(c)(2)(A).
e.g., hearings conducted by the Department
of Justice’s Executive Office for Immigration Review
to decide custody redeterminations under section
236(a) of the Immigration and Nationality Act, 8
U.S.C. 1226(a), ‘‘where an alien must establish that
the alien does not present a danger to others, a
threat to the national security, or a flight risk.’’
Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006).
50 See
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ORR is proposing an updated definition
in this proposed rule.
With respect to the proposed
definition of ‘‘special needs
unaccompanied child,’’ ORR notes that
this definition has been included to
incorporate the term ‘‘special needs
minor’’ as described within the FSA at
paragraph 7, except ORR proposes to
update the definition by using the
phrase ‘‘intellectual or developmental
disability’’ instead of ‘‘mental illness or
retardation’’ as used in the FSA. ORR
understands that this update reflects
current terminology which has
superseded the terminology used in the
FSA (‘‘retardation’’). Although an
unaccompanied child with a disability,
as defined in this section, could also be
a ‘‘special needs unaccompanied child’’
as incorporated here, the definition of
disability is broader and thus the terms
are not synonymous. To further this
clarification, ORR proposes a separate
definition for disability earlier in this
section that incorporates the meaning of
the term across applicable governing
statutory authorities. ORR is also
considering not defining and not using
the term ‘‘special needs unaccompanied
child’’ within the part for the reasons set
forth below at proposed §§ 410.1103 and
410.1106.
The proposed definition of ‘‘standard
program’’ reflects and updates the term
‘‘licensed program’’ at paragraph 6 of
the FSA. The FSA does not discuss
situations where states discontinue
licensing, or exempt from licensing,
child care facilities that contract with
the Federal Government to care for
unaccompanied children, as has
happened recently in some states.51
ORR has included this proposed
definition of ‘‘standard program’’ that is
broader in scope to account for
circumstances wherein licensure is
unavailable in the state to programs that
provide residential, group, or home care
services for dependent children when
those programs are serving
unaccompanied children. ORR notes
that most states where ORR has care
provider facilities have not taken such
actions, and that wherever possible
standard programs would continue to be
licensed consistent with current
practice under the FSA. However, ORR
51 See, e.g., Proclamation by the Governor of the
State of Texas, May 31, 2021, available at: https://
gov.texas.gov/uploads/files/press/DISASTER_
border_security_IMAGE_05-31-2021.pdf (directing
the Texas Health and Human Service Commission
(HHSC) to amend its regulations to ‘‘discontinue
state licensing of any child-care facility in this state
that shelters or detains [UC] under a contract with
the Federal government.’’); see also Fl. Executive
Order No. 21–223 (Sep. 28, 2021), available at:
https://www.flgov.com/wp-content/uploads/orders/
2021/EO_21-223.pdf.
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is considering substituting the term
‘‘licensed program’’ with the proposed
updated term ‘‘standard program’’ in
order to establish that the requirement
that facilities in those states must still
meet minimum standards, consistent
with requirements for licensed facilities
expressed in the FSA at Exhibit 1, in
any circumstance in which a state
refuses to license a facility because the
facility is housing unaccompanied
children.52 ORR solicits comments on
using the proposed definition of
‘‘standard program’’ in lieu of the term
‘‘licensed program.’’
ORR understands this proposed
definition for ‘‘standard program’’ to
encompass any program operating nonsecure facilities that provide services to
unaccompanied children in need of
particular services and treatment or
children with particular mental or
physical conditions. Given this, ORR
believes the continued use of language
such as ‘‘facilities for children with
special needs’’ and ‘‘facilities for special
needs minors,’’ as used in the FSA
definition of ‘‘licensed program,’’ is
unnecessary for this regulation, and
potentially problematic for reasons
discussed elsewhere within this section
and at proposed §§ 410.1103 and
410.1106. For now, ORR has included
this language in the proposed rule to
ensure consistency with the FSA, but it
is considering not using the term
‘‘special needs unaccompanied child’’
or specifying that facilities for special
needs unaccompanied children
operated by a standard program are
covered by the requirements that apply
to standard programs in the part.
Therefore, ORR also solicits comments
in this section on its proposal to not
include in the definition of ‘‘standard
program’’ the FSA terminology used in
the term ‘‘licensed program’’ referencing
facilities for special needs
unaccompanied children or a facility for
special needs unaccompanied children.
The proposed definition of ‘‘trauma
bond’’ is consistent with how the Office
to Monitor and Combat Trafficking in
Persons, Department of State defined
the term in its factsheet, Trauma
Bonding in Human Trafficking.53
52 Separate from this notice of proposed
rulemaking and in the spirit of current FSA
requirements, ACF is currently developing a notice
of proposed rulemaking that would describe the
creation of a Federal licensing scheme for ORR care
providers located in states where licensure is
unavailable to programs serving unaccompanied
children.
53 Office to Monitor and Combat Trafficking in
Persons. (2020, June). Trauma Bonding in Human
Trafficking. U.S. Department of State. https://
www.state.gov/wp-content/uploads/2020/10/TIP_
Factsheet-Trauma-Bonding-in-Human-Trafficking508.pdf.
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With respect to the proposed
definition of ‘‘trauma-informed,’’ ORR
believes that a trauma-informed
approach to the care and placement of
unaccompanied children is essential to
ensuring that the interests of children
are considered in decisions and actions
relating to their care and custody.54 ORR
understands trauma-informed system,
standard, process, or practices
consistently with the 6 Guidelines To A
Trauma-Informed Approach developed
by the Centers for Disease Control and
Prevention (CDC) in collaboration with
the Substance Abuse and Mental Health
Services Administration (SAMHSA).
Section 410.1002 ORR Care and
Placement of Unaccompanied Children
ORR proposes, at § 410.1002, a
description of ORR’s authority to
coordinate and implement the care and
placement of unaccompanied children
who are in ORR custody by reason of
their immigration status. ORR notes that
this substantive requirement is aligned
with the requirement established in the
2019 Final Rule at 45 CFR 410.102(a),
concerning the scope of authority of
ORR regarding the care and placement
of unaccompanied children. That
section of the 2019 Final Rule was not
found to be inconsistent with the FSA
by the 9th Circuit in Flores v. Rosen, but
as discussed in section IV.B.3 of this
proposed rule, the 2019 Final Rule in its
entirety is currently enjoined and will
be superseded by the standards
proposed in this proposed rule, once
finalized.
Section 410.1003 General Principles
That Apply to the Care and Placement
of Unaccompanied Children
ORR proposes, at § 410.1003, to
describe principles that would apply to
the care and placement for
unaccompanied children in its custody.
These principles are based on ORR’s
statutory duties to provide care and
custody for unaccompanied children in
a manner that is consistent with their
best interests.55
54 See 6 U.S.C. 279(b)(1)(B); 8 U.S.C.
1232(c)(2)(A).
55 See, e.g., 6 U.S.C. 279(b)(1) (making ORR
responsible for, among other things, ‘‘coordinating
and implementing the care and placement of
unaccompanied alien children who are in Federal
custody by reason of their immigration status,’’
‘‘ensuring that the interest of the child are
considered in decisions and actions relating to the
care and custody of an unaccompanied alien child,’’
and ‘‘overseeing the infrastructure and personnel of
facilities in which unaccompanied alien children
reside.’’); see also 8 U.S.C. 1232(c)(1) (requiring
HHS to ‘‘establish policies and programs to ensure
that unaccompanied alien children in the United
States are protected from traffickers and other
persons seeking to victimize or otherwise engage
such children in criminal, harmful, or exploitative
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At § 410.1003(a), ORR proposes that
for all placements, unaccompanied
children shall be treated with dignity,
respect, and special concern for their
particular vulnerability as
unaccompanied children. In addition to
ORR’s statutory authorities, this
proposal is consistent with the
substantive criteria set forth at
paragraph 11 of the FSA, and current
ORR policies.
At § 410.1003(b), ORR proposes that
ORR shall hold unaccompanied
children in facilities that are safe and
sanitary and that are consistent with
ORR’s concern for the particular
vulnerability of unaccompanied
children. This is consistent with the
substantive requirement from paragraph
12A of the FSA that ‘‘[f]ollowing arrest,
the INS shall hold minors in facilities
that are safe and sanitary and that are
consistent with the INS’s concern for
the particular vulnerability of minors.’’
ORR notes that although this provision
applies to the arrest and detention of
unaccompanied children prior to their
placement in an ORR care provider
facility, and not to unaccompanied
children after they are placed in ORR’s
care, ORR is proposing to adopt this
standard for its facilities and custody of
unaccompanied children as well. ORR
also notes that it is proposing the
phrasing ‘‘the particular vulnerability of
unaccompanied children’’ as opposed to
‘‘the particular vulnerability of minors,’’
as it believes that the specific
vulnerability of the population of
unaccompanied children should be
considered when providing them with
safe and sanitary conditions.
At proposed § 410.1003(c), ORR
would be required to plan and provide
care and services based on the
individual needs of and focusing on the
strengths of the unaccompanied child.
As a complementary provision, ORR
proposes, at § 410.1003(d), to encourage
unaccompanied children, as
developmentally appropriate and in
their best interests, to be active
participants in ORR’s decision-making
process relating to their care and
placement. ORR believes that these
collaborative approaches to care
provision allow for the recognition of
each child’s specific needs and
strengths while providing opportunities
for unaccompanied children to become
more empowered, resilient, and selfefficacious.
activity, including policies and programs reflecting
best practices in witness security programs.’’);
1232(c)(2)(A) (‘‘. . . an unaccompanied alien child
in the custody of the Secretary of Health and
Human Services shall be promptly placed in the
least restrictive setting that is in the best interest of
the child . . .’’).
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ORR proposes, at § 410.1003(e), to
codify a requirement that care of
unaccompanied children be tailored to
the individualized needs of each
unaccompanied child in ORR custody,
ensuring the interests of the child are
considered, and that unaccompanied
children are protected from traffickers
and other persons seeking to victimize
or otherwise engage them in criminal,
harmful, or exploitative activity, both
while in ORR custody and upon release
from the UC Program. ORR recognizes
the utmost importance of protecting
unaccompanied children from
traffickers and other persons seeking to
victimize or otherwise engage in
harmful activities, including
unscrupulous employers. ORR believes
the provisions proposed at § 410.1003(e)
reinforce ORR’s commitment to
ensuring the best interests of
unaccompanied children are considered
and actions are taken to safeguard them
from harm. ORR also believes that
codifying the requirement to consider
each unaccompanied child’s
individualized needs reinforces that
unaccompanied children will be
assessed by ORR to determine whether
they may require particular services and
treatment while in the UC Program,
such as to address the ramifications of
a history of severe neglect or abuse, as
provided for in paragraph 7 of the FSA.
Consistent with the substantive
criteria set forth in the TVPRA, 8 U.S.C.
1232(c)(2)(A), ORR proposes at
§ 410.1003(f) to require that
unaccompanied children be promptly
placed in the least restrictive setting that
is in the best interest of the child, with
placement considerations including
danger to self; danger to the community;
and runaway risk, as defined in
§ 410.1001. In addition to ORR’s
statutory authorities, this proposal is
consistent with the substantive criteria
set forth at paragraph 11 of the FSA, and
current ORR policies.
At proposed § 410.1003(g), ORR
would require consultation with
parents, legal guardians, child
advocates, and attorneys of record or
EOIR accredited representatives as
needed when requesting information or
consent from all unaccompanied
children.
Section 410.1004 ORR Custody of
Unaccompanied Children
Proposed § 410.1004 describes the
scope of ORR’s custody of
unaccompanied children. Consistent
with its statutory authorities and the
FSA, this proposed provision specifies
that all unaccompanied children placed
by ORR in care provider facilities
remain in the legal custody of ORR and
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may be transferred or released only with
ORR approval.56 The provision would
also provide that in the event of an
emergency, a care provider facility may
transfer temporary physical custody of
an unaccompanied child prior to
securing approval from ORR but shall
notify ORR of the transfer as soon as is
practicable thereafter, and in all cases
within 8 hours.57
Subpart B—Determining the Placement
of an Unaccompanied Child at a Care
Provider Facility
In subpart B of this proposed rule,
ORR proposes to codify the criteria and
requirements that apply to placement of
unaccompanied children at particular
types of care provider facilities. The
HSA makes ORR responsible for, among
other things, ‘‘coordinating and
implementing the care and placement of
unaccompanied alien children who are
in federal custody by reason of their
immigration status,’’ ‘‘making
placement determinations for all
unaccompanied alien children who are
in federal custody by reason of their
immigration status,’’ ‘‘implementing the
placement determinations,’’ and
‘‘implementing policies with respect to
the care and placement of
unaccompanied alien children.’’ 58 In
addition, subpart B would clarify and
strengthen placement criteria to better
ensure appropriate placement based on
each unaccompanied child’s individual
background, characteristics, and needs.
ORR believes that these proposed
provisions can help to protect the
interests of unaccompanied children in
ORR care by supporting safe and
appropriate placement in the least
restrictive setting appropriate to the
child’s age and individualized needs,
consistent with existing legal
requirements and child welfare best
practices.
Section 410.1100 Purpose of This
Subpart
Proposed § 410.1100 describes the
purposes of subpart B, which are to set
forth the process by which ORR receives
referrals from other Federal agencies
and the factors ORR considers when
placing an unaccompanied child in a
particular care provider facility. In
addition, proposed § 410.1100 would
clarify that, as used in this subpart,
56 See 8 U.S.C. 1232(b)(1) (‘‘Consistent with
section 279 of title 6, and except as otherwise
provided under subsection (a), the care and custody
of all unaccompanied alien children, including
responsibility for their detention, where
appropriate, shall be the responsibility of the
Secretary of Health and Human Services.’’).
57 See FSA at ¶ 19.
58 6 U.S.C. 279(b)(1). See also 8 U.S.C.
1232(c)(2)(A).
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‘‘placement determinations’’ or
‘‘placements’’ refers to placements in
ORR-approved care provider facilities
during the time an unaccompanied
child is in ORR care, and not to the
location of an unaccompanied child
once the child is released in accordance
with provisions proposed in subpart C.
Section 410.1101 Process for the
Placement of an Unaccompanied Child
After Referral From Another Federal
Agency
ORR proposes, at new § 410.1101, to
codify its existing process for accepting
referrals of unaccompanied children
from another Federal agency and for
placement of an unaccompanied child
in a care provider facility upon such
referral. Consistent with the TVPRA at
8 U.S.C. 1232(b)(3), which requires any
department or agency of the Federal
Government that has an unaccompanied
child in its custody to transfer the
custody of such child to HHS not later
than 72 hours after determining that the
child is an unaccompanied child, unless
there are exceptional circumstances,59
and with existing policy, under
proposed § 410.1101(a), ORR accepts
referrals from any department or agency
of the Federal Government of
unaccompanied children in the referring
department or agency’s custody.
Further, consistent with existing policy
and in cooperation with referring
agencies, ORR accepts such referrals at
any time of day, every day of the year.
ORR may seek clarification about the
information provided by the referring
agency (including about how the
referred individual meets the statutory
definition of unaccompanied child). In
such instances, ORR shall notify the
referring agency and work with the
referring agency, including by
requesting additional information, in
accordance with statutory time frames
for transferring unaccompanied children
to ORR.
At § 410.1101(b) and (c), ORR
proposes timeframes for identifying, and
notifying a referring Federal agency of
ORR’s identification of, an appropriate
placement for an unaccompanied child,
and for accepting transfer of custody of
59 The TVPRA also contains specific provisions
for DHS to screen children who are from contiguous
countries to determine whether such children meet
statutory criteria to be returned to the child’s
country of nationality or of last habitual residence.
Such screening should occur within 48 hours of
apprehension. If the child does not meet the criteria
to be returned or no determination can be made
within 48 hours of apprehension, the TVPRA states
that the child shall ‘‘immediately be transferred to
the Secretary of HHS and treated in accordance
with subsection (b).’’ 8 U.S.C. 1232(a)(4). We read
this language in concert with the language in 8
U.S.C. 1232(b)(3) and, thus, include the one 72-hour
standard in this proposed rule.
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an unaccompanied child after a
referring Federal agency determines that
a child is an unaccompanied child who
should be referred to ORR. At
§ 410.1101(b), ORR proposes to codify
its current policy that upon notification
from any department or agency of the
Federal Government that a child is an
unaccompanied child and therefore
must be transferred to ORR custody,
ORR must identify an appropriate
placement for the unaccompanied child
and notify the referring Federal agency
within 24 hours of receiving the
referring agency’s notification whenever
possible, and no later than 48 hours of
receiving the referring agency’s
notification, barring exceptional
circumstances (see paragraph below).
ORR believes that setting a maximum
time frame of 48 hours for ORR to
identify a placement and notify a
referring Federal agency of ORR’s
identification of a placement would
help to expedite transfer of
unaccompanied children from the
referring Federal agency to ORR care,
but also that certain exceptions to this
time frame may be necessary in certain
circumstances, as discussed in the
following paragraph. Proposed
§ 410.1101(c) would require ORR to
work with the referring Federal
department or agency to accept transfer
of custody of the unaccompanied child,
consistent with the statutory
requirements at 8 U.S.C. 1232(b)(3) (the
referring Federal agency must transfer
custody of an unaccompanied child to
HHS not later than 72 hours after
determining that the child is an
unaccompanied child, except in the
case of exceptional circumstances).
As noted above, the TVPRA provides
that referring Federal agencies must
transfer custody of unaccompanied
children to HHS within 72 hours unless
there are exceptional circumstances. In
order to help facilitate this requirement
in coordination with referring agencies,
proposed § 410.1101(b) and (c) describe
internal timeframes for ORR to identify
and notify referring Federal agencies of
placements and to accept transfer of
custody from referring agencies. But
ORR notes that it may in certain
‘‘exceptional circumstances’’ be unable
to timely identify placements for and
help facilitate other agencies’ timely
transfers of unaccompanied children to
its custody. For purposes of proposed
§ 410.1101(b) and (c), proposed
§ 410.1101(d) describes circumstances
which would prevent ORR from timely
identifying a placement for an
unaccompanied child or accepting
transfer of custody. At proposed
§ 410.1101(d), ORR describes these
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exceptional circumstances consistent
with those described in paragraph 12.A
of the FSA, some of which were also
incorporated into the 2019 Final Rule at
§ 410.202. The proposed ‘‘exceptional
circumstances,’’ for ORR’s purposes,
would include the following: (1) any
court decree or court-approved
settlement that requires otherwise; (2)
an influx, as defined in proposed
§ 410.1001; (3) an emergency, including
a natural disaster, such as an earthquake
or hurricane, and other events, such as
facility fires or civil disturbances; (4) a
medical emergency, such as a viral
epidemic or pandemic among a group of
unaccompanied children; (5) the
apprehension of an unaccompanied
child in a remote location, and (6) the
apprehension of an unaccompanied
child whom the referring agency
indicates (i) poses a danger to self or
others or (ii) has been charged with or
has been convicted of a crime, or is the
subject of delinquency proceedings,
delinquency charge, or has been
adjudicated delinquent, and additional
information is essential in order to
determine an appropriate ORR
placement. Notably, the unavailability
of documents will not necessarily
prevent the prompt transfer of a child to
ORR. In addition, ‘‘exceptional
circumstances,’’ for ORR’s purposes,
would include an act or event that could
not be reasonably foreseen that prevents
the placement of or accepting transfer of
custody of an unaccompanied child
within the proposed timeframes. Given
the mandate under the TVPRA, 8 U.S.C.
1232(c)(2), that ORR place an
unaccompanied child in the least
restrictive setting that is in the best
interests of the unaccompanied child,
subject to consideration of danger to
self, danger to the community/others,
and risk of flight, additional time may
be needed in some circumstances to
determine the most appropriate and safe
placement that comports with the best
interests of the unaccompanied child.
Thus, ORR believes that this general
exception for acts or events that could
not be reasonably foreseen is
appropriate to afford additional time to
assess these considerations, though ORR
is mindful of avoiding prolonged
placements in DHS facilities that are not
designed for the long-term care of
children. As discussed previously, these
proposed exceptional circumstances
would, as appropriate, modify the
timeframes applicable to ORR under
proposed § 410.1101(b) and (c).
ORR notes that the FSA also includes
an exception to these timeframe
requirements for unaccompanied
children who do not speak English and
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for whom an interpreter is unavailable.
However, ORR does not propose to
include this as an exceptional
circumstance for purposes of
§ 410.1101(b) and (c). Because ORR is
able to serve unaccompanied children
regardless of their primary language
through the use of telephonic
interpreters, ORR does not view this as
an insurmountable impediment to the
prompt placement of unaccompanied
children. In addition, the FSA includes
an exception in which a reasonable
person would conclude that an
individual is an adult despite the
individual’s claim to be an
unaccompanied child. However, ORR
does not propose to include this as an
exceptional circumstance for purposes
of proposed § 410.1101(b) and (c)
because ORR does not believe that such
a situation poses the type of urgency
inherent in exceptional circumstances
as described above. For further
information on ORR’s proposed policies
regarding age determinations, ORR
refers readers to its discussion of
proposed subpart H.
As discussed previously, the TVPRA
contemplates the referral and transfer of
unaccompanied children to ORR from
other Federal agencies or departments,
requiring that, absent exceptional
circumstances, such transfer must occur
no later than 72 hours after determining
that a child is an unaccompanied
child.60 ORR seeks to accept transfer of
unaccompanied children as quickly as
possible after a placement has been
identified within this time frame. In
identifying placements for
unaccompanied children, ORR balances
the need for expeditious identification
of placement with the need to ensure
safe and appropriate placement in the
best interests of the unaccompanied
child, which necessitates a
comprehensive review of information
regarding an unaccompanied child’s
background and needs before
placement. Under existing policy, to
determine the appropriate placement for
an unaccompanied child, ORR requests
and assesses extensive background
information on the unaccompanied
child from the referring agency,
including the following: (1) how the
referring agency made the determination
that the child is an unaccompanied
child; (2) health related information; (3)
whether the unaccompanied child has
any medication or prescription
information, including how many days’
supply of the medication will be
provided with the unaccompanied child
when transferred into ORR custody; (4)
biographical and biometric information,
60 See
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such as name, gender, alien number,
date of birth, country of birth and
nationality, date(s) of entry and
apprehension, place of entry and
apprehension, manner of entry, and the
unaccompanied child’s current location;
(5) any information concerning whether
the unaccompanied child is a victim of
trafficking or other crimes; (6) whether
the unaccompanied child was
apprehended with a sibling or other
relative; (7) identifying information and
contact information for a parent, legal
guardian, or other related adult
providing care for the unaccompanied
child prior to apprehension, if known,
and information regarding whether the
unaccompanied child was separated
from a parent, legal guardian, or adult
relative after apprehension, and the
reason for separation; (8) if the
unaccompanied child was apprehended
in transit to a final destination, what the
final destination was and who the
unaccompanied child planned to meet
or live with at that destination, if
known; (9) whether the unaccompanied
child is a runaway risk, and if so, the
runaway risk indicators; (10) any
information on a history of violence,
juvenile or criminal background, or gang
involvement known or suspected, risk
of danger to self or others, state court
proceedings, and probation; (11) if the
unaccompanied child is being returned
to ORR custody after arrest on alleged
gang affiliation or involvement, ORR
requests all documentation confirming
whether the unaccompanied child is a
Saravia class member and information
on the Saravia hearing, including the
date and time; 61 and (12) any particular
needs or other information that would
affect the care and placement of the
unaccompanied child, including, as
applicable, information about services,
supports, or program modifications
provided to the child on the basis of
disability.
61 A Saravia class member is defined as a
noncitizen minor who (1) came to the United States
as an unaccompanied child, as defined at 6 U.S.C.
279(g)(2); (2) was previously detained in the
custody of the Department of Health and Human
Services (HHS), Office of Refugee Resettlement
(ORR) but then released to a sponsor by ORR; and
(3) has been or will be rearrested by the Department
of Homeland Security (DHS) on the basis of a
removability warrant based in whole or in part on
allegations of gang affiliation. In Saravia bond
hearings DHS bears the burden to demonstrate
changed circumstances since the minor’s release by
ORR which demonstrate the minor is a danger to
the community. DHS must demonstrate that
circumstances have changed since the child’s
release from ORR custody such that the child poses
a danger to the community or is a flight-risk. See
Order Certifying the Settlement Class and Granting
Final Approval of Class Action Settlement, Saravia
v. Barr, Case No.: 3:17–cv–03615 (N.D. Cal. Jan. 19,
2021), ECF No. 249.
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Furthermore, the TVPRA places the
responsibility for the transfer of custody
on referring Federal agencies.62 ORR
custody begins when it assumes
physical custody from the referring
agency. Proposed § 410.1101(e) would
codify this practice, which is currently
reflected at section 1.1 of the Policy
Guide.
Section 410.1102 Care Provider
Facility Types
Proposed § 410.1102 describes the
types of care provider facilities in which
unaccompanied children may be placed.
The basis for this section is ORR’s
statutory authority to make placement
determinations for unaccompanied
children in its care, as well as other
responsibilities such as implementing
policies with respect to their care and
overseeing the infrastructure and
personnel of facilities in which
unaccompanied children reside.63
Specifically, this section proposes that
ORR may place an unaccompanied
child in a care provider facility as
defined at proposed § 410.1001,
including but not limited to shelters,
group homes, individual family homes,
heightened supervision facilities, or
secure facilities, including RTCs. ORR
proposes that it may also place
unaccompanied children in out-ofnetwork (OON) placements under
certain, limited circumstances, such as
an OON RTC (which would need to
meet the standards that apply to RTCs
that are ORR care provider facilities) or
a temporary stay at hospital (for
example, for surgery). ORR would make
such placements taking into account the
considerations and criteria set forth in
proposed §§ 410.1103 through 410.1109
and 410.1901, as further discussed
below. In addition, ORR proposes that
in times of influx or emergency, as
further discussed in proposed subpart I
(Emergency and Influx Operations),
ORR may place unaccompanied
children in facilities that may not meet
the standards of a standard program, but
rather meet the standards in subpart I.
ORR believes that this proposed
provision is consistent with the FSA
requirement that unaccompanied
children be placed in licensed programs
until such time as release can be
effected or until immigration
proceedings are concluded, except that
in the event of an emergency or influx
of children into the United States, ORR
must place unaccompanied children
into licensed programs as expeditiously
as possible.64
62 8
U.S.C. 1232(b)(3).
generally 6 U.S.C. 279(b)(1).
64 See FSA at paragraph 19 and Exhibit 3.
63 See
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Consistent with proposed § 410.1102,
ORR would place unaccompanied
children in group homes or individual
family homes, including long-term and
transitional home care settings, as
appropriate, based on the
unaccompanied child’s age and
individualized needs and
circumstances. Proposed definitions of
‘‘ORR long-term home care’’ and ‘‘ORR
transitional home care’’ are included in
§ 410.1001, which would replace the
terms ‘‘long-term foster care’’ and
‘‘transitional foster care’’ as those terms
are used in the definition of ‘‘traditional
foster care’’ provided at 45 CFR 411.5.
Where possible, ORR believes that based
on an unaccompanied child’s age,
individualized needs, and
circumstances, as well as a care
provider facility’s capacity, it should
favor placing unaccompanied children
in transitional and long-term home care
settings while they are awaiting release
to sponsors. Having said that, ORR notes
that efforts to place more
unaccompanied children out of
congregate care shelters that house more
than 25 children together is a long-term
aspiration, given the large number of
children in its custody and the number
of additional programs that would be
required to care for them in home care
settings or small-scale shelters of 25
children or less. Given this reality, care
provider facilities structured and
licensed to accommodate more than 25
children continue to serve a vital role in
meeting this need.
Finally, for the final rule, ORR is also
considering replacing its current longterm and transitional home care
placement approach with a communitybased care model that would expand
upon the current types of care provider
facilities that may care for
unaccompanied children in communitybased settings. This is in line with a
vision of moving towards a framework
of community-based care as described
in the following paragraphs. ORR
believes such a framework would be
consistent with the language of this
proposed rule and that ORR would be
able to implement it in a manner
consistent with this proposed rule.
If ORR were to finalize the
community-based care model in the
final rule, references to ORR long-term
home care and ORR transitional home
care as used in this proposed rule would
be replaced with the term communitybased care, and ORR would define
‘‘community-based care’’ in § 410.1001
as an ORR-funded and administered
family or group home placement in a
community-based setting, whether for a
short-term or a long-term placement.
The proposed definition of
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‘‘community-based care’’ encompasses
the term ‘‘traditional foster care’’ that is
codified at existing § 411.5.
‘‘Community-based care’’ would be a
continuum of care that would include
basic and therapeutic foster family
settings as well as supervised
independent living group home settings
for unaccompanied children, which are
funded and administered by ORR. It
aims to more effectively place and
support unaccompanied children who
are best served in family settings, such
as tender age unaccompanied children,
pregnant/parenting unaccompanied
children, unaccompanied children with
extended stays, and unaccompanied
children who are moving towards
independent living or close to aging out
of ORR care. Thus, a community-based
care model would include placements
in care provider facilities capable of
accommodating unaccompanied
children with both long-term (e.g.,
where there is no reasonable prospect of
release to a sponsor) and short-term
(e.g., rapid release expected) care needs.
For purposes of UC Program
management, the term communitybased care would encompass and
replace the term ‘‘traditional foster care’’
provided at existing § 411.5 as well as
the terms ‘‘ORR long-term home care’’
and ‘‘ORR transitional home care’’ as
used in this proposed rule. Components
of the ORR community-based care
model would include caregivers (either
the foster parent or the designated
official for a child care institution,
inclusive of care provider facility staff)
providing care in a manner consistent
with their state licensing requirements,
such as exercising the Reasonable and
Prudent Parent Standard, as defined at
42 U.S.C. 675(10)(A), to make daily
decisions on age-appropriate activities
for the child. The Reasonable and
Prudent Parent Standard is the standard
characterized by careful and sensible
parental decisions that maintain the
health, safety, and best interests of a
child, while at the same time
encouraging the emotional and
developmental growth of the child, that
a caregiver shall use when determining
whether to allow a child in foster care
to participate in extracurricular,
enrichment, cultural, and social
activities. Under an ORR communitybased care model, when unaccompanied
children are in community-based
settings on an extended basis, they
would be eligible to attend local schools
under applicable school policies to the
same extent that unaccompanied
children in long-term home care
placements can, to facilitate integration
into the local community and the
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development of relationships with peers
and adults. Under a community-based
care model, caregivers would support:
(1) unaccompanied children’s
integration into their local communities,
development of healthy and nurturing
relationships with adults and peers, and
engagement and connection to local
services, activities, and opportunities;
(2) the development of unaccompanied
children’s independent living skills
when they are of the age that supports
transition to adulthood (e.g., 16 years or
older); and (3) proactive permanency
planning for unaccompanied children
who do not have a viable sponsor,
including identification of trusted
adults and alternative care options that
promote permanency for the
unaccompanied children. Additionally,
under a community-based care model,
in consultation as appropriate with the
child’s attorney or other relevant
stakeholder such as a legal service
provider or child advocate, ORR will
consider a child’s eligibility for or
access to legal relief (including, for
example, a special immigrant juvenile
predicate order) in a specific
jurisdiction as part of the placement
decision. ORR welcomes public
comment on this vision of communitybased care, its inclusion as a care
provider facility type in the final rule in
place of ORR’s current long-term and
transitional home care placement
approach, and any other concerns
relevant to this change based on existing
language in the proposed rule.
Section 410.1103 Considerations
Generally Applicable to the Placement
of an Unaccompanied Child
Proposed § 410.1103 sets forth
considerations generally applicable to
the placement of unaccompanied
children consistent with the TVPRA, 8
U.S.C. 1232(c)(2)(A) and the FSA. The
TVPRA mandates that ORR place each
unaccompanied child in the least
restrictive setting that is in the best
interest of the unaccompanied child,
with due consideration by HHS of
danger to self, danger to community,
and risk of flight. Similarly, paragraph
11 of the FSA requires that each
unaccompanied child be placed in the
least restrictive setting appropriate to
the child’s age and ‘‘special needs,’’
provided that such setting is consistent
with the interest in ensuring the
unaccompanied child’s timely
appearance before DHS and the
immigration courts and protecting the
unaccompanied child’s well-being and
that of others. Consistent with the
statutory mandate and the FSA
provision, as well as existing policy,
under proposed § 410.1103(a), ORR
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would place each unaccompanied child
in the least restrictive setting that is in
the best interest of the unaccompanied
child and appropriate to the
unaccompanied child’s age and
individualized needs, provided that
such setting is consistent with the
interest in ensuring the unaccompanied
child’s timely appearance before DHS
and the immigration courts and
protecting the unaccompanied child’s
well-being and that of others.
ORR considers the following factors
when evaluating an unaccompanied
child’s best interest: the unaccompanied
child’s expressed interests, in
accordance with the unaccompanied
child’s age and maturity; the
unaccompanied child’s mental and
physical health; the wishes of the
unaccompanied child’s parents or legal
guardians; the intimacy of
relationship(s) between the
unaccompanied child and the child’s
family, including the interactions and
interrelationship of the unaccompanied
child with the child’s parents, siblings,
and any other person who may
significantly affect the unaccompanied
child’s well-being; the unaccompanied
child’s adjustment to the community;
the unaccompanied child’s cultural
background and primary language;
length or lack of time the
unaccompanied child has lived in a
stable environment; individualized
needs, including any needs related to
the unaccompanied child’s disability;
and the unaccompanied child’s
development and identity. ORR also
notes that its care provider facilities are
usually congregate care settings. As a
result, consistent with prioritizing the
safety and well-being of all
unaccompanied children, when making
a placement determination, ORR
evaluates the best interests of both the
individual unaccompanied child being
placed and the best interests of the other
unaccompanied children at the care
provider facility where the individual
unaccompanied child may be placed.
ORR notes that the factors and
considerations in proposed
§ 410.1103(b) and proposed § 410.1105
also are evaluated in determining the
best interest of the child for purposes of
placement.
ORR also proposes to use the term
‘‘individualized needs,’’ in proposed
§ 410.1103(a), rather than ‘‘special
needs’’ (as used in the FSA and
regulations established in the 2019 Final
Rule at 45 CFR 410.201(a)), because it
believes the term ‘‘special needs’’ has
created confusion. The term ‘‘special
needs’’ may imply that, in determining
placement, ORR considers only a
limited range of needs that fall within
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a special category. Instead, in assessing
the appropriate placement of an
unaccompanied child, ORR takes into
account any need it becomes aware of
that is specific to the individual being
assessed, regardless of the nature of that
need. In addition, the term ‘‘special
needs’’ may imply that, in determining
placement, ORR considers only those
needs related to an unaccompanied
child’s disability, which as explained, is
not the case. To avoid the suggestion
that, in determining placement of an
unaccompanied child, ORR only takes
into account a limited range of needs
that fall within a special category, we
are using the broader term
‘‘individualized needs’’ for purposes of
proposed § 410.1103(a).
ORR further notes that as used in the
FSA, including the considerations
required at paragraph 11, ‘‘special
needs’’ is not synonymous with
disability or disability-related needs.
The term ‘‘special needs’’ has no clear
legal meaning; of note, it is not used in
section 504 or the HHS implementing
regulations at 45 CFR part 85. Aside
from its particular usage in the FSA, the
term ‘‘special needs’’ is often
understood to be a placeholder or
euphemism for ‘‘disability.’’ As with the
term ‘‘handicapped,’’ ORR is concerned
about perpetuating language that has
become stigmatized over time. For these
reasons, as discussed above at
§ 410.1001, ORR invites comments
concerning the continued use of the
terms ‘‘special needs minor’’ or ‘‘special
needs unaccompanied child’’ but has
included these terms in the proposed
rule in order to ensure consistency with
the FSA.
Under proposed § 410.1103(b),
consistent with existing policy and with
certain requirements under the
TVPRA,65 ORR proposes that it would
consider additional factors that may be
relevant to the unaccompanied child’s
placement, to the extent such
information is available, including but
not limited to the following: danger to
self and the community/others, runaway
risk, trafficking in persons or other
safety concerns, age, gender, LGBTQI+
status, disability, any specialized
services or treatment required or
requested by the unaccompanied child,
criminal background, location of
potential sponsor and safe and timely
release options, behavior, siblings in
ORR custody, language access, whether
the unaccompanied child is pregnant or
parenting, location of the
unaccompanied child’s apprehension,
and length of stay in ORR custody. ORR
believes that this information, to the
65 See
8 U.S.C. 1232(c).
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extent available, is necessary for a
comprehensive review of an
unaccompanied child’s background and
needs, and for appropriate and safe
placement of an unaccompanied child.
In addition, with respect to the
consideration of whether any
specialized services or treatments are
required, ORR is aware of the
importance of ascertaining an
unaccompanied child’s health status,
including the need for proximity to
medical specialists, the child’s
reproductive health status (such as
information relating to pregnancy or
post-partum status; use of birth control;
and any recent procedures, medications,
or current needs related to pregnancy),
and whether the child is a victim of a
sex crime (e.g., sexual assault, sex
trafficking)), and other healthcare needs,
upon entering ORR care in order to
ensure the most appropriate placement,
and relies on information provided from
referring Federal agencies to make
appropriate placements. For further
discussion of proposed policies related
to access to medical care, ORR refers
readers to proposed § 410.1307(b).
When it receives a referral of an
unaccompanied child from another
Federal agency, ORR documents and
reviews the unaccompanied child’s
biographical and apprehension
information, as submitted by the
referring Federal agency in ORR’s case
management system, including any
information about an unaccompanied
child’s health status, including their
reproductive health status and need for
medical specialists.
Under proposed § 410.1103(c), ORR
would be able to utilize information
provided by the referring Federal
agency, child assessment tools,
interviews, and pertinent
documentation to determine the
placement of all unaccompanied
children. In addition, ORR proposes that
it may obtain any relevant records from
local, State, and Federal agencies
regarding an unaccompanied child to
inform placement decisions. Such
information is vital in carrying out
ORR’s general duty to coordinate the
care and placement of unaccompanied
children, including determining
whether a restrictive placement may be
necessary.66 ORR is proposing to add
these provisions to the regulations to
clarify the broad range of information it
may utilize in making placement
determinations.
The TVPRA requires that the
placement of an unaccompanied child
in a secure facility be reviewed on a
monthly basis to determine if such
placement remains warranted.67 ORR
notes that it exceeds the statutory
requirement here because under its
current policies all restrictive
placements, not only secure placements,
must be reviewed at least every thirty
days. Proposed § 410.1103(d) would
codify the practice of reviewing
restrictive placements at least every
thirty days to determine if such
placements remain warranted.
Additionally, in proposed
§ 410.1103(e), ORR proposes to codify
its existing policy that ORR make
reasonable efforts to provide placements
in those geographical areas where DHS
encounters the majority of
unaccompanied children. ORR believes
this provision is justified in order to
facilitate the orderly and expeditious
transfer of children from DHS border
facilities to ORR care provider facilities,
which is in the child’s best interest.
This requirement reflects the
requirement at paragraph 6 of the FSA.
ORR notes that in making any
placement decision, it also would take
into account the considerations set forth
in proposed § 410.1103(a) and (b).
Finally, ORR proposes at § 410.1103(f)
to codify a requirement that care
provider facilities accept all
unaccompanied children placed by ORR
at their facilities, except in limited
circumstances. Such a requirement is
consistent with ORR’s authority to make
and implement placement
determinations, and to oversee its care
provider facilities, as established at 6
U.S.C. 279(b)(1). Consistent with
existing policy, under proposed
§ 410.1103(f), a care provider facility
may only deny ORR’s request for
placement based on the following
reasons: (1) lack of available bed space;
(2) the placement of the unaccompanied
child would conflict with the care
provider facility’s state or local
licensing rules; (3) the initial placement
involves an unaccompanied child with
a significant physical or mental illness
for which the referring Federal agency
does not provide a medical clearance; or
(4) in the case of the placement of an
unaccompanied child with a disability,
the care provider facility concludes it is
unable to meet the child’s disabilityrelated needs without fundamentally
altering its program, even by providing
reasonable modifications and even with
additional support from ORR. ORR
proposes that if a care provider facility
wishes to deny a placement, it must
make a written request to ORR
providing the individualized reasons for
66 See generally 6 U.S.C. 279(b)(1); 8 U.S.C.
1232(c)(2).
67 See 8 U.S.C. 1232(c)(2)(A); see also 2019 Final
Rule at § 410.203(c).
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the denial. ORR proposes that any such
request must be approved by ORR
before the care provider facility may
deny a placement. In addition, under
proposed § 410.1103(f), ORR would be
able to follow up with a care provider
facility about a placement denial to find
a solution to the reason for the denial.
ORR is not proposing to codify in
subpart B the provisions finalized in the
2019 Final Rule at § 410.201(b) or (e),
which were based on requirements set
forth in paragraph 12A of the FSA. The
2019 Final Rule at § 410.201(b) provided
that ORR separates unaccompanied
children from delinquent offenders.
However, ORR notes that paragraph 12A
of the FSA concerns detention of
unaccompanied children following
arrest by the former INS, and currently
DHS, before transfer of custody to ORR.
ORR is not involved in the
apprehension or encounter of
unaccompanied children or their
immediate detention following
apprehension or encounter and thus
ORR proposes to omit this provision
from this regulation. Having said that,
ORR proposes that it will apply the
facility standards described as
paragraph 12A of the FSA to its care
provider facilities, consistent with
standards set forth in proposed subpart
D (Minimum Standards and Required
Services) and proposed subpart I
(Emergency and Influx Operations).
The 2019 Final Rule at § 410.201(c)
provides that if there is no appropriate
licensed program immediately available
for placement, and no one to whom
ORR may release an unaccompanied
child, the unaccompanied child may be
placed in an ORR-contracted facility,
having separate accommodations for
children, or a state or county juvenile
detention facility, shall be separated
from delinquent offenders, and that
every effort must be taken to ensure the
safety and well-being of the
unaccompanied child detained in these
facilities. ORR proposes omitting this
provision from these regulations. This
provision was also based on paragraph
12A of the FSA, which concerns
detention of the unaccompanied child
following arrest by the former INS, and
currently following encounter by DHS,
before transfer of custody to placement
in an ORR care provider facility.
Instead, consistent with existing
policies, under proposed § 410.1101(b)
ORR would identify an appropriate
placement for the unaccompanied child
at a care provider facility within 24
hours of receiving the referring agency’s
notification, whenever possible, and no
later than 48 hours of receiving such
notification, barring exceptional
circumstances. Also, as further
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discussed in the next section
(addressing proposed § 410.1104), in the
event of an emergency or influx of
unaccompanied children into the
United States, ORR would place
unaccompanied children as
expeditiously as possible in accordance
with proposed subpart I (Emergency and
Influx Operations).
Section 410.1104 Placement of an
Unaccompanied Child in a Standard
Program That Is Not Restrictive
At proposed § 410.1104, ORR
proposes to codify substantive criteria
for placement of an unaccompanied
child in a standard program that is not
a restrictive placement. The TVPRA
requires ORR to promptly place
unaccompanied children ‘‘in the least
restrictive setting that is in the best
interest of the child,’’ and states that in
making such placements ORR ‘‘may
consider danger to self, danger to the
community, and risk of flight.’’ 68 ORR
also notes that under paragraph 19 of
the FSA, with certain exceptions, an
unaccompanied child must be placed
temporarily in a licensed program until
release can be effectuated or until
immigration proceedings are concluded.
Consistent with the TVPRA and existing
policy, under proposed § 410.1104, ORR
would place all unaccompanied
children in a standard program that is
not a restrictive placement (in other
words, that is not a heightened
supervision facility) after the
unaccompanied child is transferred to
ORR legal custody, except in the
following circumstances: (a) the
unaccompanied child meets the criteria
for placement in a restrictive placement
set forth at proposed § 410.1105; or (b)
in the event of an emergency or influx
of unaccompanied children into the
United States, in which case ORR shall
place the unaccompanied child as
expeditiously as possible in accordance
with proposed subpart I (Emergency and
Influx Operations). ORR understands
these exceptions to be consistent with
placement considerations described in
the TVPRA at 8 U.S.C. 1232(c)(2)(A)
(noting, for example, that in making
placements HHS ‘‘may consider danger
to self, danger to the community, and
risk of flight’’), and exceptions provided
for in section paragraph 19 of the FSA.
ORR does not propose to codify
certain other exceptions described in
the FSA and included in the 2019 Final
Rule at § 410.202(b) and (d). The 2019
Final Rule at § 410.202(b) provided that
unaccompanied children do not have to
be placed in a standard program as
otherwise required by any court decree
68 8
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or court-approved settlement. ORR does
not believe it is necessary to include
this exception, as any court decree or
settlement that would require ORR to
implement placement criteria that differ
from those at proposed § 410.1104
would take effect pursuant to its own
terms even without specifying these
potential circumstances in the
regulation. Section 410.202(d) provided
that an unaccompanied child does not
have to be placed in a standard program
if a reasonable person would conclude
that the unaccompanied child is an
adult despite the individual’s claims to
be a child. ORR also does not believe it
is necessary to include this exception in
proposed § 410.1104 because a person
determined by ORR to be an adult (has
attained 18 years of age) would be
excluded from the definition of
unaccompanied child and thus would
not be placed in any ORR care provider
facility (see proposed subpart H for
discussion of age determinations).
Section 410.1105 Criteria for Placing
an Unaccompanied Child in a
Restrictive Placement
Proposed § 410.1105 addresses the
criteria for placing unaccompanied
children in restrictive placements. As
defined in proposed § 410.1001,
restrictive placements would include
secure facilities, heightened supervision
facilities, and RTCs. The proposed
criteria for placement in each of these
facilities are further discussed below.
Proposed § 410.1105(a) addresses
placement at secure facilities that are
not RTCs. At proposed § 410.1105(a)(1),
ORR proposes that, consistent with
existing policies, it may place an
unaccompanied child in a secure
facility (that is not also an RTC) either
upon referral from another agency or
department of the Federal Government
(i.e., as an initial placement), or through
a transfer to another care provider
facility after the initial placement.
Under proposed § 410.1105(a)(2), ORR
would not place an unaccompanied
child in a secure facility (that is not also
an RTC) if less restrictive alternative
placements are available. Such
placements must also be appropriate
under the circumstances, and in the best
interests of the unaccompanied child. In
determining whether there is a less
restrictive placement available to meet
the individualized needs of an
unaccompanied child with a disability,
consistent with section 504 of the
Rehabilitation Act, 29 U.S.C. 794(a),
ORR must consider whether there are
any reasonable modifications to the
policies, practices, or procedures of an
available less restrictive placement or
any provision of auxiliary aids and
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services that would allow the
unaccompanied child with a disability
to be placed in that less restrictive
facility. However, ORR is not required
to take any action that it can
demonstrate would result in a
fundamental alteration in the nature of
a program or activity. The proposed
regulation text is consistent with 8
U.S.C. 1232(c)(2)(A). Also, ORR notes
that this proposed requirement is
consistent with paragraph 23 of the
FSA, which provides that ORR may not
place an unaccompanied child in a
secure facility if there are less restrictive
alternatives that are available and
appropriate in the circumstances. Under
the FSA, less restrictive alternatives
include transfer to (a) a medium
security facility, which is equivalent to
‘‘heightened supervision facility’’ as
defined at proposed § 410.1001, or (b)
another licensed program, a term which
for purposes of this proposed rule is
superseded by ‘‘standard program’’ as
defined at proposed § 410.1001.
Consistent with the FSA, ORR further
proposes in § 410.1105(a)(2) that it may
place an unaccompanied child in a
heightened supervision facility or other
non-secure care provider facility as an
alternative, provided that the
unaccompanied child does not pose a
danger to self or others. ORR believes
that such alternative placements may
not be appropriate for unaccompanied
children who pose a danger to self or
others, as less restrictive placements
may not have the level of staff
supervision and requisite security
procedures to address the needs of such
unaccompanied children.
ORR proposes to place
unaccompanied children in secure
facilities (that are not RTCs) in limited,
enumerated circumstances set forth at
proposed § 410.1105(a)(3). Specifically,
ORR proposes that it may place an
unaccompanied child in a secure
facility (that is not an RTC) only if the
unaccompanied child meets one of three
criteria. First, ORR proposes at
§ 410.1105(a)(3)(i) that it may place the
unaccompanied child in a secure
facility (that is not an RTC) if the
unaccompanied child has been charged
with or has been convicted of a crime,
or is the subject of delinquency
proceedings, a delinquency charge, or
has been adjudicated delinquent, and
where ORR deems that those
circumstances demonstrate that the
unaccompanied child poses a danger to
self or others, not including: (1) 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
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weapon; or (2) a petty offense, which is
not considered grounds for stricter
means of detention in any case. These
proposed provisions were also included
in the 2019 Final Rule at § 410.203(a)(1),
except that proposed § 410.1105(a)(3)
omits language from the FSA and
previous § 410.203(a)(1) that allows an
unaccompanied child to be placed in a
secure facility if the unaccompanied
child is ‘‘chargeable with a delinquent
act’’ (which under the FSA means that
ORR has probable cause to believe that
the unaccompanied child has
committed a specified offense). ORR
believes it is appropriate to omit such
language because being ‘‘chargeable’’
with an offense is not a permissible
reason for placement in a secure facility
identified by the TVPRA.69 Further,
because it is not a law enforcement
agency, unlike the former INS, ORR is
not in a position to make determinations
such as whether an unaccompanied
child is ‘‘chargeable.’’ Even without this
language, ORR believes this proposed
provision is consistent with the
substantive criteria of the FSA.
Furthermore, consistent with 8 U.S.C.
1232(c)(2)(A) (which does not list
runaway risk as a permissible reason for
placement in a secure facility), ORR
does not propose runaway risk as a
factor in determining placement in a
secure facility, even though that is a
permissible ground under the FSA for
placement in a secure facility.
Second, ORR proposes in
§ 410.1105(a)(3)(ii) that it may place an
unaccompanied child in a secure
facility (that is not an RTC) if the
unaccompanied child, while in DHS or
ORR custody, or while in the presence
of an immigration officer, ORR official,
or ORR contracted staff, has committed,
or has made credible threats to commit,
a violent or malicious act (whether
directed at the unaccompanied child or
others). The 2019 Final Rule at
§ 410.203(a)(2) and paragraph 21B of the
FSA contain a similar provision, except
that in contrast to § 410.203(a)(2) and
the FSA, this proposed provision would
include acts committed in the presence
of an ‘‘ORR official or ORR contracted
staff.’’ ORR believes that the addition of
this language is appropriate given that
ORR officials and contracted staff would
more often be in a position to observe
an unaccompanied child’s behavior and
actions and to assess whether an
unaccompanied child has committed, or
made credible threats to commit, the
acts referenced in this provision. Again,
ORR does not believe this proposed
change constitutes a substantive
deviation from the requirements of the
FSA.
Third, ORR proposes at
§ 410.1105(a)(3)(iii) that it may place an
unaccompanied child in a secure
facility (that is not an RTC) if the
unaccompanied child has engaged,
while in a restrictive placement, in
conduct that has proven to be
unacceptably disruptive of the normal
functioning of the care provider facility,
and removal is necessary to ensure the
welfare of the unaccompanied child or
others, as determined by the staff of the
care provider facility (e.g., substance or
alcohol use, stealing, fighting,
intimidation of others, or sexually
predatory behavior), and ORR
determines the unaccompanied child
poses a danger to self or others based on
such conduct. The 2019 Final Rule
contained a similar provision at
§ 410.203(a)(3), which was based on
paragraph 21C of the FSA. But in
contrast to § 410.203(a)(3) of the 2019
Final Rule and the FSA, the proposed
provision requires that the conduct at
issue be engaged in while in a
‘‘restrictive placement,’’ rather than a
‘‘licensed program.’’ ORR believes that
such disruptive behavior should
initially result in potential transfer to a
heightened supervision facility before
placement in a secure facility (that is
not an RTC)—in other words, that
disruptive behavior in a standard
program that is not a restrictive
placement should not result in
immediate transfer, or ‘‘step up,’’ to
such a secure facility. As discussed
above, the 2019 Final Rule was intended
to implement the provisions of the FSA
that relate to HHS; however, ORR is
proposing this change in order to ensure
that unaccompanied children in such
circumstances are stepped up to a more
structured program rather than being
immediately placed in a secure facility.
ORR believes this update is consistent
with its authorities under the HSA and
TVPRA,70 and does not believe it
constitutes a substantive deviation from
the requirements of the FSA, which
provides that unaccompanied children
‘‘may’’ be transferred to secure facilities
based on unacceptably disruptive
conduct where transfer is necessary to
ensure the welfare of the
unaccompanied child or others but does
not require such transfer.71
69 See 8 U.S.C. 1232(c)(2)(A) (‘‘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.’’).
70 See, e.g., 8 U.S.C. 1232(c)(2)(A) (requiring that
unaccompanied children ‘‘shall be promptly placed
in the least restrictive setting that is in the best
interest of the child.’’).
71 FSA at paragraph 21C.
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At proposed § 410.1105(b), ORR
outlines the policies and criteria that it
would apply in placing unaccompanied
children in heightened supervision
facilities. The term ‘‘heightened
supervision facility,’’ as defined at
proposed § 410.1001, would be used in
place of the term ‘‘medium secure’’
facility provided in the FSA, and in
place of the term ‘‘staff secure facility’’
currently used by ORR in its regulations
and sub-regulatory guidance. ORR
believes that the term ‘‘heightened
supervision facility,’’ as defined in this
proposed rule, better reflects the nature
and purpose of such facilities, which is
to provide care to unaccompanied
children who require close supervision
but do not need placement at a secure
facility, including an RTC. As reflected
in the proposed definition, heightened
supervision facilities maintain stricter
security measures than a shelter such as
intensive staff supervision in order to
provide supports, manage problem
behavior and prevent an
unaccompanied child from running
away. ORR proposes at § 410.1105(b)(1)
that it may place unaccompanied
children in this type of facility either at
initial placement (upon referral from
another agency or department of the
Federal Government) or through a
transfer from the initial placement.
Furthermore, at proposed
§ 410.1105(b)(2), ORR proposes to
codify factors it would consider in
determining whether to place
unaccompanied children in a
heightened supervision facility.
Specifically, ORR would consider if the
unaccompanied child (1) has been
unacceptably disruptive to the normal
functioning of a shelter such that
transfer is necessary to ensure the
welfare of the unaccompanied child or
others; (2) is a runaway risk, based on
the criteria at proposed § 410.1107; (3)
has displayed a pattern of severity of
behavior, either prior to entering ORR
custody or while in ORR care, that
requires an increase in supervision by
trained staff; (4) has a non-violent
criminal or delinquent history not
warranting placement in a secure
facility, such as isolated or petty
offenses as described previously; or (5)
is assessed as ready for step-down from
a secure facility, including an RTC. ORR
believes that each of these proposed
criteria identifies pertinent background
and behavioral concerns that may
warrant heightened supervision, rather
than placement in a secure facility,
including an RTC, consistent with the
purpose of heightened supervision
facilities.
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Proposed § 410.1105(c) sets forth the
criteria ORR would consider for placing
an unaccompanied child in an RTC, as
defined at proposed § 410.1001. ORR
would place an unaccompanied child at
an RTC only if it is the least restrictive
setting that is in the best interest of the
unaccompanied child and appropriate
to the unaccompanied child’s age and
individualized needs, consistent with
the TVPRA at 8 U.S.C. 1232(c)(2)(A)
(‘‘an unaccompanied alien child shall be
promptly placed in the least restrictive
setting that is in the best interest of the
child.’’). Similar to other secure
facilities and heightened supervision
facilities, ORR proposes that an
unaccompanied child may be placed at
an RTC both as an initial placement
upon referral from another agency or
department of the Federal Government,
and upon transfer from another care
provider facility. In addition, ORR
proposes at § 410.1105(c)(1) that
unaccompanied children who have
serious mental or behavioral health
issues may be placed in an RTC only if
the unaccompanied child is evaluated
and determined to be a danger to self or
others by a licensed psychologist or
psychiatrist consulted by ORR or a care
provider facility, which includes a
determination by clear and convincing
evidence documented in the
unaccompanied child’s case file or
referral documentation by a licensed
psychologist or psychiatrist that an RTC
is appropriate. This requirement is
consistent with the factors the Secretary
of HHS may consider under the TVPRA
at 8 U.S.C. 1232(c)(2)(A) in making
placement determinations for
unaccompanied children and was also
included in the 2019 Final Rule at
§ 410.203(a)(4).72 ORR also notes that
when it determines whether placement
in an RTC, or any care provider facility
is appropriate, it considers the best
interests not only of the unaccompanied
child being placed, but also the best
interests of other unaccompanied
children who are housed at the
proposed receiving care provider
facility, including their safety and wellbeing. ORR believes it is authorized to
consider these factors under the
TVPRA.73 ORR also considers the safety
of care provider facility staff when
making placement determinations for
72 See also Order Re Plaintiffs’ Motion to Enforce
Class Action Settlement at *11, Flores vs. Sessions,
No. 2:85–cv–04544, (C.D. Cal. Jul. 30, 2018), ECF
No. 470 (ordering ORR to transfer all
unaccompanied children placed at a particular RTC
out of that facility unless a licensed psychologist or
psychiatrist determined that a particular child
posed a risk of harm to self or others).
73 8 U.S.C. 1232(c)(2)(A) (‘‘In making such
placements, the Secretary may consider danger to
self, danger to the community, and risk of flight.’’).
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unaccompanied children, consistent
with its duty to oversee the
infrastructure and personnel of facilities
in which unaccompanied children
reside.74 For an unaccompanied child
with one or more disabilities, consistent
with section 504 of the Rehabilitation
Act, 29 U.S.C. 794(a), the determination
whether to place the unaccompanied
child in an RTC would need to consider
whether reasonable modifications to
policies, practices, and procedures in
the unaccompanied child’s current
placement or any provision of auxiliary
aids or services, could sufficiently
reduce the danger to the child or others.
However, ORR is not required to take
any action that it can demonstrate
would result in a fundamental alteration
in the nature of a program or activity.
Finally, consistent with its existing
policies, ORR proposes at
§ 410.1105(c)(1) that it would use the
criteria for placement in a secure facility
described at proposed § 410.1105(a) to
assess whether the unaccompanied
child is a danger to self or others. ORR
believes that it is appropriate to apply
these criteria in making this assessment
in the context of RTC placement,
because all secure facilities (including
RTCs) are intended for unaccompanied
children who pose a danger to self and
others (although RTCs are intended for
unaccompanied children who also have
a serious mental health or behavioral
health issue that warrants placement in
an RTC).
Consistent with existing policies,
under proposed § 410.1105(c)(2), ORR
would be able to place an
unaccompanied child at an out-ofnetwork (OON) RTC when a licensed
clinical psychologist or psychiatrist
consulted by ORR or a care provider
facility has determined that the
unaccompanied child requires a level of
care only found in an OON RTC (either
because the unaccompanied child has
identified needs that cannot be met
within the ORR network of RTCs or no
placements are available within ORR’s
network of RTCs), or that an OON RTC
would best meet the unaccompanied
child’s identified needs. Also consistent
with existing policies, in these
circumstances, even though an
unaccompanied child would be
physically located at the OON RTC, the
unaccompanied child would remain in
ORR legal custody. ORR would monitor
the unaccompanied child’s progress and
ensure the unaccompanied child is
receiving required services. OON RTCs
are vetted prior to placement via state
licensing authorities to ensure that the
program is in good standing and is
74 See
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complying with all applicable state
welfare laws and regulations and state
and local building, fire, health, and
safety codes. ORR also may confer with
other Federal agencies and nongovernmental stakeholders (e.g., the
protection and advocacy (P&A) systems)
when vetting OON RTCs to determine,
in its discretion, the appropriateness of
such OON RTCs for placement of
unaccompanied children. ORR
appreciates that P&As may have
valuable information relating to the
vetting process because they may have
prior experience with certain facilities
with respect to their past care and
treatment of individuals with
disabilities (e.g., findings of abuse and
neglect, compliance issues).
Under proposed § 410.1105(c)(3), the
criteria for placement in or transfer to an
RTC would also apply to transfers to or
placements in OON RTCs (that is, the
clinical criteria considered in placing an
unaccompanied child at an RTC level of
care would not change regardless of
whether the RTC is in ORR’s network or
OON). Proposed § 410.1105(c)(3) would
also permit care provider facilities to
request that ORR transfer certain
unaccompanied children to RTCs.
Proposed § 410.1601(d), discussed later
in this preamble, further addresses
when a care provider facility may make
such a request.
Section 410.1106 Unaccompanied
Children Who Need Particular Services
and Treatment
Proposed § 410.1106 would codify the
requirements for ORR when placing
unaccompanied children assessed to
have a need for particular services,
equipment, and treatment by staff. This
section satisfies and updates paragraph
7 of the FSA, which requires ORR to
assess unaccompanied children to
determine if they have ‘‘special needs,’’
and, if so, to place such unaccompanied
children, whenever possible, in licensed
programs in which ORR places
unaccompanied children without
‘‘special needs,’’ but which provide
services and treatment for such ‘‘special
needs.’’ As indicated by the definition
for ‘‘special needs unaccompanied
child’’ from the FSA and included
above at proposed § 410.1001, an
unaccompanied child is considered to
have ‘‘special needs’’ if ORR determines
that the unaccompanied child has a
mental and/or physical condition that
requires particular services and
treatment by staff. ORR may determine
that an unaccompanied child needs
particular services and treatment by
staff for a variety of reasons including,
but not limited to, those delineated
within the definition of ‘‘special needs
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unaccompanied child’’ and specified in
paragraph 7 of the FSA. For this reason,
ORR is proposing this section without
limiting its scope to ‘‘special needs
unaccompanied child.’’ ORR notes that
an unaccompanied child may need
particular services and treatment due to
a disability, as defined at proposed
§ 410.1001, but not all unaccompanied
children with disabilities necessarily
require particular services and treatment
by staff. Likewise, an unaccompanied
child does not need to have been
identified as having a disability to be
determined to require particular
services and treatment to meet their
individualized needs.
To avoid confusion, ORR refers in this
section to unaccompanied children with
individualized needs rather than using
the outdated ‘‘special needs’’
terminology found in the FSA at
paragraph 7. As noted above regarding
proposed § 410.1103, the term ‘‘special
needs’’ has created confusion and may
imply that in determining placement,
ORR considers only a limited range of
needs that fall within a special category.
Instead, in assessing the appropriate
placement of an unaccompanied child,
ORR considers any need it becomes
aware of that is specific to each
unaccompanied child being assessed,
regardless of the nature of that need.
The examples provided in this section
of individualized needs that may
require particular services, equipment,
and treatment by staff are illustrative,
and not exhaustive. Furthermore, as also
discussed above at proposed
§§ 410.1001 and 410.1103, ORR is
concerned about using the term ‘‘special
needs’’ given its association as a
placeholder or euphemism for disability
whereas this section does not apply
only to unaccompanied children with
disabilities who require particular
services and treatment.
ORR also notes that this section
incorporates the preference for inclusive
placements that serve unaccompanied
children with a diversity of needs,
including the need for particular
services or treatments, whenever
possible, as provided in paragraph 7 of
the FSA, and particular equipment. This
section is distinct from, but in
alignment with, HHS’ implementing
regulation for section 504 of the
Rehabilitation Act of 1973 at 45 CFR
85.21(d) that prohibits discrimination
on the basis of disability by requiring
that the agency administer programs
and activities in the most integrated
setting appropriate to the needs of
individuals with disabilities. The most
integrated setting appropriate to the
needs of an individual with a disability
is a setting that enables individuals with
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disabilities to interact with individuals
without disabilities to the fullest extent
possible.75
Section 410.1107 Considerations
When Determining Whether an
Unaccompanied Child Is a Runaway
Risk for Purposes of Placement
Decisions
Proposed § 410.1107 would codify
factors that ORR considers in
determining whether an unaccompanied
child is a runaway risk for purposes of
placement decisions. As described in
§ 410.1001, the FSA and ORR policy
currently use the term ‘‘escape risk,’’
and ORR proposes in this proposed rule
to update the terminology to ‘‘runaway
risk’’ and also proposes to update the
definition provided in the FSA. ORR
notes that the TVPRA provides that
HHS ‘‘may’’ consider ‘‘risk of flight,’’
among other factors, when making
placement determinations.76 As
proposed, ORR would interpret ‘‘risk of
flight,’’ which is used in immigration
law regarding an individual’s risk of not
appearing for their immigration
proceedings, as including runaway risk.
In its discretion, ORR considers these
runaway risk factors when evaluating
whether to transfer an unaccompanied
child to another care provider facility,
in accordance with proposed
§ 410.1601. For example, an
unaccompanied child may be
transferred from a non-secure level of
care to a heightened supervision facility
where there is higher staff ratio and a
secure perimeter (stepped up) if ORR
determines the unaccompanied child is
a runaway risk in accordance with
proposed § 410.1107.
Proposed § 410.1107(a) through (c)
would codify the risk factors to consider
when evaluating whether an
unaccompanied child is a runaway risk
for purposes of placement. These factors
are consistent with paragraph 22 of the
FSA, which are also included in the
2019 Final Rule at § 410.204.
Specifically, ORR proposes it would
consider the following factors: (a)
whether the unaccompanied child is
currently under a final order of removal
(i.e., the unaccompanied child has a
legal duty to report for deportation); (b)
whether the unaccompanied child’s
immigration history includes: (1) a prior
75 53
FR 25591, 25600 (July 8, 1988).
U.S.C. 1232(c)(2)(A). Note that 8 U.S.C.
1232(c)(2)(A) does not list risk of flight as a ground
for placing an unaccompanied child in a secure
facility. Therefore, even though paragraph 21.D of
the FSA states that being an escape risk (or runaway
risk as proposed in this rule) is a ground upon
which ORR may place an unaccompanied child in
a secure facility, ORR does not propose in this rule
that runaway risk is a basis for placement in a
secure facility.
76 8
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breach of bond, (2) a failure to appear
before DHS or the immigration court, (3)
evidence that the unaccompanied child
is indebted to organized smugglers for
their transport, or (4) a previous removal
from the U.S. pursuant to a final order
of removal; and (c) whether the
unaccompanied child has previously
absconded or attempted to abscond from
state or Federal custody. ORR notes that
under paragraph 22(B) of the FSA, a
voluntary departure from the U.S. by the
unaccompanied child is also a risk
factor. Based on ORR’s experience in
placing an unaccompanied child, ORR
proposes not to codify whether the
child’s immigration history includes a
voluntary departure because this factor
has not been relevant in determining
whether the child is a runaway risk.
ORR notes that paragraph 22 of the
FSA provides a non-exhaustive list of
factors to consider when evaluating
runaway risk.77 78 Consistent with this
language, as well as with ORR’s
authority generally to consider runaway
risk in making placement
determinations, ORR proposes
additional factors at § 410.1107(d) and
(e) for ORR to consider when
determining whether an unaccompanied
child is a runaway risk for purposes of
placement decisions. Proposed
§ 410.1107(d) would require ORR to
consider whether the unaccompanied
child has displayed behaviors indicative
of flight or has expressed intent to run
away. Under proposed § 410.1107(e),
ORR would consider evidence that the
unaccompanied child is indebted to,
experiencing a strong trauma bond to, or
is threatened by a trafficker in persons
or drugs, in determining whether the
unaccompanied child is a runaway risk.
ORR developed this proposal through
its practical experience of making
runaway risk placement decisions and
believes it is appropriate to add as an
additional factor to consider. ORR seeks
public comment on these proposed
factors and welcomes feedback on other
factors ORR should or should not
consider when determining if an
unaccompanied child is a runaway risk
for purposes of placement decisions.
Section 410.1108 Placement and
Services for Children of Unaccompanied
Children
At proposed § 410.1108, ORR
proposes the requirements for the
placement of children of
77 See FSA at paragraph 22 (‘‘Factors to consider
when determining whether a minor is an escaperisk or not include, but are not limited to . . .’’).
78 Existing § 410.204 also does not limit ORR to
considering just the factors listed in the regulation
and states ‘‘ORR considers, among other factors
. . .’’
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unaccompanied children and services
they would receive while in ORR care.
ORR believes that when unaccompanied
children are parents of children, it is in
the best interests of the children to be
placed in the same facility as their
unaccompanied children parents.
Accordingly, ORR proposes at
§ 410.1108(a) to codify its existing
policy that it will place unaccompanied
children and their children together at
the same care provider facilities, except
in unusual or emergency situations.
ORR considered limiting this proposal
to the biological children of
unaccompanied children; however, at
the time of intake and placement, it may
not be known whether the children are
the biological children of the
unaccompanied children. Accordingly,
ORR proposes to not limit this proposal
to the biological children of
unaccompanied children and instead
proposes broader language to allow for
flexibility in placing unaccompanied
children and their children to account
for other situations (for example, the
unaccompanied child may not be the
biological parent of a child but is the
child’s caretaker).
Consistent with existing policy, and
with its responsibility to consider the
best interests of children in making
placement decisions, ORR proposes that
unusual or emergency situations would
include, but not be limited to:
hospitalization or need for a specialized
care or treatment setting that cannot
provide appropriate care for the child of
the unaccompanied child; a request by
the unaccompanied child for alternate
placement of the child of the
unaccompanied child; and when the
unaccompanied child is the subject of
substantiated allegations of abuse or
neglect against the child of the
unaccompanied child (or temporarily in
urgent cases where there is sufficient
evidence of child abuse or neglect
warranting temporary separation for the
child’s protection). ORR proposes to
codify these requirements into
regulation at § 410.1108(a)(1) through
(3).
ORR is aware that children of
unaccompanied children may not be
unaccompanied children within the
definition provided in the HSA at 6
U.S.C. 279(g)(2). For example, a child
born in the United States will likely be
a U.S. citizen at birth under section
1401(a) of the Immigration and
Nationality Act, 8 U.S.C. 1401(a), and
the U.S. Constitution, as amended, XIV
section 2. Additionally, a noncitizen
child who is in the custody of a parent
who is an unaccompanied child who is
available to provide care and physical
custody, is not an unaccompanied child.
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ORR understands that it has custody of
the unaccompanied child, consistent
with its statutory authorities, and that
the unaccompanied child has custody of
their child. Under the proposed rule,
ORR would not seek to place the parent
and child in different facilities or
shelters except in the limited
circumstances noted above. ORR
understands this to be consistent with
its responsibility to consider the
interests of unaccompanied children.79
If the child who is in the custody of
their unaccompanied child parent has
another parent who is a citizen present
in the U.S., ORR would consider
whether it is in the best interests of the
child to place the child with the
unaccompanied child parent or the
parent who is a U.S. citizen. ORR
requests comments regarding this
interpretation of its authorities under
the TVPRA and the HSA, because
neither statute expressly contemplates
scenarios where an unaccompanied
child is a parent.
Proposed § 410.1108(b) describes
requirements for providing services to
children of unaccompanied children
while in ORR care. Under proposed
§ 410.1108(b)(1), children of
unaccompanied children would receive
the same care and services as ORR
provides to the unaccompanied
children, as appropriate, regardless of
the children’s immigration or
citizenship status. Additionally, U.S.
citizen children of unaccompanied
children would be eligible for
mainstream public benefits and services
to the same extent as other U.S. citizens
(for example, Medicaid). Application(s)
for public benefits and services shall be
submitted on behalf of the U.S. citizen
children of unaccompanied children by
the care provider facilities. This may
include, but is not limited to, helping
file for birth certificates or other legal
documentation as necessary. Further,
under proposed § 410.1108(b)(2),
utilization of those public benefits and
services should be exhausted to the
greatest extent practicable for U.S.
citizen children of unaccompanied
children before ORR-funded services are
utilized for these children.
Section 410.1109 Required Notice of
Legal Rights
In proposed § 410.1109(a), ORR
would be required to promptly provide
each unaccompanied child in its
custody with the information described
in § 410.1109(a)(1) through (3) in a
79 See, e.g., 6 U.S.C. 279(b)(1)(B) (making ORR
responsible for ‘‘ensuring that the interests of the
child are considered in decisions and actions
relating to the care and custody of an
unaccompanied alien child’’).
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language and manner the
unaccompanied child understands.
First, ORR would require, under
proposed § 410.1109(a)(1), that
unaccompanied children in ORR
custody be promptly provided with a
state-by-state list of free legal service
providers compiled and annually
updated by ORR and that is provided to
unaccompanied children as part of a
Legal Resource Guide for
unaccompanied children. This proposed
requirement is consistent with TVPRA
at 8 U.S.C. 1232(c)(5) (requiring that
HHS ‘‘ensure, to the greatest extent
practicable and consistent with section
292 of the Immigration and Nationality
Act (8 U.S.C. 1362), that all
unaccompanied alien children who are
or have been in the custody of the
Secretary or the Secretary of Homeland
Security, and who are not described in
subsection (a)(2)(A), have counsel to
represent them in legal proceedings or
matters and protect them from
mistreatment, exploitation, and
trafficking,’’ and that to the greatest
extent practicable HHS ‘‘make every
effort to utilize the services of pro bono
counsel who agree to provide
representation to such children without
charge.’’). In addition, the proposed
requirement is consistent with the HSA
at 6 U.S.C. 279(b)(1)(I) (requiring ORR to
compile, update, and publish ‘‘at least
annually a state-by-state list of
professionals or other entities qualified
to provide guardian and attorney
representation services for
unaccompanied alien children’’). ORR
notes that the list of free legal service
providers may also be compiled and
updated by an ORR contractor or
grantee.
Second, under proposed
§ 410.1109(a)(2), ORR would also be
required to provide the following
explanation of the right of potential
review: ‘‘ORR usually houses persons
under the age of 18 in the least
restrictive setting that is in an
unaccompanied child’s best interest,
and generally not in restrictive
placements (which means secure
facilities, heightened supervision
facilities, or residential treatment
centers). 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.’’ This requirement
updates language described in the
requirement to deliver a similar notice
under Exhibit 6 of the FSA,80 to reflect
80 Exhibit 6 of the FSA provides the following
notice language: ‘‘The INS usually houses persons
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current placement requirements
detailed in this proposed rule. The FSA
language, for example, refers to the
former INS, instead of ORR, and to
‘‘detention facilities’’ rather than
restrictive settings or placements.
ORR also proposes at § 410.1109(a)(3)
that a presentation regarding their legal
rights would be provided to each
unaccompanied child as provided under
proposed § 410.1309(a)(2). We refer
readers to proposed § 410.1309(a) for
additional information regarding this
presentation. ORR would take
appropriate steps to ensure that the
information it presents to
unaccompanied children is
communicated effectively to individuals
with disabilities, including through the
provision of auxiliary aids and services
as required by section 504 of the
Rehabilitation Act of 1973 and HHS’
implementing regulations at 45 CFR
85.51. ORR would also take reasonable
steps to ensure that individuals with
limited English proficiency have a
meaningful opportunity to access
information and participate in ORR
programs, including through the
provision of interpreters or translated
documents. We request comments on
steps ORR should take to ensure that it
provides effective communication
access to unaccompanied children who
are individuals with disabilities. We
also request comment on steps ORR
should take to ensure meaningful access
to unaccompanied children who are
limited English proficient regarding
information about and participation in
ORR programs.
Finally, under proposed
§ 410.1109(b), consistent with ORR’s
existing policy, ORR shall not engage in
retaliatory actions against legal service
providers or any other practitioner
because of advocacy or appearance in an
action adverse to ORR. ORR proposes
this text, notwithstanding the general
presumption that government agencies
and officials act with integrity and
regularity,81 to further express ORR’s
intent to promote and protect
unaccompanied children’s ability to
access legal counsel. For discussion
regarding the availability of
administrative review of ORR placement
decisions, ORR refers readers to
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 ask a federal judge to review your case.
You may call a lawyer to help you do this. If you
cannot afford a lawyer, you may call one from the
list of free legal services given to you with this
form.’’
81 See, e.g., Nat’l Archives & Records Admin. v.
Favish, 541 U.S. 157, 174 (2004).
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proposed subpart J of this proposed
rule.
Subpart C—Releasing an
Unaccompanied Child From ORR
Custody
Section 410.1200 Purpose of This
Subpart
This proposed subpart regards ORR’s
policies and procedures regarding
release, without unnecessary delay, of
an unaccompanied child from ORR
custody to a vetted and approved
sponsor. Release is defined in subpart A
as the ORR-approved transfer of an
unaccompanied child from ORR care
and custody to a vetted and approved
sponsor in the United States.
Accordingly, release does not include
discharge for other reasons, including
but not limited to those such as the
child turning 18, attaining legal
immigration status, or being removed to
their home country.
As discussed in this proposed
subpart, once an unaccompanied child
is released by ORR to a sponsor, that
unaccompanied child is no longer in
ORR’s custody. The TVPRA
distinguishes minors in HHS custody
from those released to ‘‘proposed
custodians’’ determined by ORR to be
‘‘capable of providing for the child’s
physical and mental well-being.’’ 82 In
addition, under the FSA, once an
unaccompanied child is released to a
sponsor, the sponsor assumes custody.83
This subpart includes the proposed
process for determining that sponsors
are able to care for the child’s physical
and mental well-being.
Subpart C also proposes notice and
appeal processes and procedures that
certain potential sponsors will be
afforded. This NPRM proposes that
parents or legal guardians of an
unaccompanied child who are denied
sponsorship of that unaccompanied
child be afforded the ability to appeal
such denials. Because issues relating to
procedures for non-parent relatives are
currently in litigation in the Lucas R.
case, they are not part of this
rulemaking.
Section 410.1201 Sponsors to Whom
ORR Releases an Unaccompanied Child
Proposed § 410.1201 describes
sponsors to whom ORR may release an
unaccompanied child and criteria that
82 8
U.S.C. 1232(c)(3)(A).
e.g., FSA at paragraph 15 (requiring
sponsors to sign an Affidavit of Support and an
agreement to, among other things, provide for the
unaccompanied child’s physical, mental, and
financial well-being); see also paragraph 19 (noting
that in any case where an unaccompanied child is
not released to a sponsor, the unaccompanied child
‘‘shall remain in INS legal custody.’’).
83 See,
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ORR employs when assessing a
potential sponsor. As discussed, the
HSA makes ORR responsible for making
and implementing placement
determinations for unaccompanied
children.84 In addition to these statutory
requirements, the FSA establishes a
general policy favoring release of
unaccompanied children to sponsors,
and further describes a preferred order
of release, which ORR follows as a
matter of policy.85
Consistent with its statutory authority
and the FSA, proposed § 410.1201(a)
lists potential sponsors in order of
release preference. ORR notes that this
order of preference reflects its strong
belief that, generally, placement with a
vetted and approved family member or
other vetted and approved sponsor, as
opposed to in an ORR care provider
facility, whenever feasible, is in the best
interests of unaccompanied children.
Proposed § 410.1201(a) would therefore
codify the following order of preference
for release of unaccompanied children:
(1) to a parent; (2) to a legal guardian;
(3) to an adult relative; (4) to an adult
individual or entity, designated by the
parent or legal guardian as capable and
willing to care for the unaccompanied
child’s well-being through a declaration
signed by the parent or legal guardian
under penalty of perjury before an
immigration or consular officer, or
through such other document(s) that
establish(es) to the satisfaction of ORR,
in its discretion, the affiant’s maternity,
paternity, or guardianship; (5) to a
standard program willing to accept legal
custody of the unaccompanied child; or
(6) to 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 release to family members
does not appear to be a reasonable
possibility. Possible scenarios in which
ORR envisions (6) may be applicable
include, for example, foster parents or
other adults who have built or are
building a relationship with an
unaccompanied child while in ORR
care, such as a teacher or coach, and in
which it is possible to ensure that a
healthy and viable relationship exists
between the unaccompanied child and
proposed sponsor. Proposed § 410.1202,
discussed below, describes ORR’s
proposed sponsor suitability assessment
process, which includes an assessment
of the potential sponsor’s previous and
existing relationship with the
unaccompanied child.
84 See 6 U.S.C. 279(b)(1). See also 8 U.S.C.
1232(c)(2)(A).
85 See FSA at paragraph 14.
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Under proposed § 410.1201(b),
consistent with existing policy, ORR
would not disqualify potential sponsors
based solely on their immigration status.
In addition, ORR proposes that it shall
not collect information on immigration
status of potential sponsors for law
enforcement or immigration
enforcement related purposes. ORR will
not share any immigration status
information relating to potential
sponsors with any law enforcement or
immigration related entity at any time.
To the extent ORR does collect
information on the immigration status of
a potential sponsor, it would be only for
the purposes of evaluating the potential
sponsor’s ability to provide care for the
child (e.g., whether there is a plan in
place to care for the child if the
potential sponsor is undocumented and
detained).
Proposed § 410.1201(c) provides that,
in making determinations regarding the
release of unaccompanied children to
potential sponsors, ORR shall not
release unaccompanied children on
their own recognizance.
Section 410.1202 Sponsor Suitability
Before releasing an unaccompanied
child to a sponsor, ORR has a
responsibility to ensure that the sponsor
has been determined to be able to care
for the child’s physical and mental
wellbeing and has not engaged in
activity that would indicate a potential
risk to the child.86 Further, under the
FSA, ORR may require a positive result
in a suitability assessment of an
individual or program prior to releasing
an unaccompanied child to that entity,
which may include an investigation of
the living conditions in which the
unaccompanied child would be placed
and the standard of care the child would
receive, verification of the identity and
employment of the individuals offering
support, interviews of members of the
household, and a home visit. The FSA
also provides that any such assessment
should also take into consideration the
wishes and concerns of the minor. ORR
believes that this assessment of
suitability may also include review of
past criminal history, if any, and
fingerprinting, as discussed
subsequently in this section.
Consistent with statutory authorities
and the FSA, and with existing policy,
proposed § 410.1202(a) would require
potential sponsors to complete an
application package to be considered as
a sponsor for an unaccompanied child.
Application packages, in the potential
sponsor’s native or preferred language,
86 See 8 U.S.C. 1232(c)(3)(A). See also FSA
paragraph 17.
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would be able to be obtained from either
the care provider facility or from ORR
directly to ensure sponsors have access
to the application.
Also consistent with existing policy,
proposed § 410.1202(b) establishes that
suitability assessments will be
conducted for all sponsors prior to
release of a child to a potential sponsor
and describes the minimum
requirements for a suitability
assessment. Consistent with ORR’s
responsibilities under 8 U.S.C.
1232(c)(3)(A), and with its current
policies, suitability assessments would,
at minimum, consist of review of the
proposed sponsor’s application package
described in § 410.1202(a), including
verification of the proposed sponsor’s
identity and the proposed sponsor’s
relationship to the child. ORR may
consult with the issuing agency (e.g.,
consulate or embassy) of the sponsor’s
identity documentation to verify the
validity of the sponsor identity
document presented and may also
conduct a background check on the
proposed sponsor.
Proposed § 410.1202(c) through (i)
describe additional requirements or
discretionary provisions related to
completion of a suitability assessment.
These proposed requirements are in
addition to those described at 8 U.S.C.
1232(c)(3)(A) (describing ‘‘minimum’’
requirements for suitability
assessments), and ORR proposes them
consistent with its authority to
implement policies with respect to the
care and placement of unaccompanied
children as described at 6 U.S.C.
279(b)(1)(E). Proposed § 410.1202(c)
would provide ORR the discretion to
evaluate the overall living conditions
into which the unaccompanied child
would be placed upon release to the
potential sponsor. Proposed paragraph
(c) therefore provides that ORR may
interview members of the potential
sponsor’s household, conduct a home
visit or home study pursuant to
proposed § 410.1204, and conduct
background and criminal records
checks, which may include biometric
checks such as fingerprint-based
criminal record checks on a potential
sponsor and on adult household
members, consistent with the TVPRA
requirement to make an independent
finding that the proposed sponsor has
not engaged in any activity that would
indicate a potential risk to the child.
Proposed § 410.1202(c) also permits
ORR to verify the employment, income,
or other information provided by the
individuals offering support. The
TVPRA at 8 U.S.C. 1232(c)(3) does not
require a verification of the sponsor’s
employment. However, ORR is
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proposing to include this as a
permissible consideration as part of the
suitability assessment to ensure
sponsors can show they have resources
to provide for the child’s physical and
mental well-being. Although ORR
believes this information may be
relevant, it will not automatically deny
an otherwise qualified sponsor solely on
the basis of low income or employment
status (either formal or informal).
Finally, proposed § 410.1202(c)
establishes that any suitability
assessment also take into consideration
the wishes and concerns of the
unaccompanied child, consistent with
FSA paragraph 17.
As part of a suitability assessment and
determining whether a proposed
sponsor can care for not just an
unaccompanied child’s physical wellbeing but also an unaccompanied
child’s mental well-being, ORR
proposes to include additional
assessment components to evaluate the
environment into which the
unaccompanied child may be placed.
Under proposed § 410.1202(d), ORR
would assess the nature and extent of
the sponsor’s previous and current
relationship with the unaccompanied
child and, if applicable, the child’s
family. ORR proposes that it would be
able to deny release of an
unaccompanied child to unrelated
sponsors who have no pre-existing
relationship with the child or the child’s
family prior to the child’s entry into
ORR custody. ORR intends that this
proposed language be read consistently
with proposed § 410.1201(a)(4), such
that ORR may release an
unaccompanied child to an individual
with no pre-existing relationship with
the child if the individual is designated
by the child’s parent or legal guardian,
but ORR would not be required to do so.
Additionally, under proposed
§ 410.1202(e), ORR would consider the
sponsor’s motivation for sponsorship;
the opportunity for the potential
sponsor and unaccompanied child to
have the opportunity to build a healthy
relationship while the child is in ORR
care; the unaccompanied child’s
preferences and perspective regarding
release to the sponsor; and the
unaccompanied child’s parent’s or legal
guardian’s preferences and perspective
on release to the sponsor, as applicable.
Proposed § 410.1202(f) specifies an
unaccompanied child’s risks or specific,
individual concerns that should be
evaluated in conjunction with ORR’s
evaluation of the child’s current
functioning and strengths. ORR
proposes that these shall include risks
or concerns such as: (1) whether the
unaccompanied child is a victim of sex
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or labor trafficking or other crime, or is
considered to be at risk for such
trafficking due, for example, to observed
or expressed current needs, e.g.,
expressed need to work or earn money
because of indebtedness or financial
hardship; (2) the child’s history of
involvement with the criminal justice
system or juvenile justice system
(including evaluation of the nature of
the involvement, for example, whether
the child was adjudicated and
represented by counsel, and the type of
offense), or gang involvement; (3) the
child’s history of behavioral issues; (4)
the child’s history of violence; (5) any
individualized needs, including those
related to disabilities or other medical
or behavioral/mental health issues; (6)
the child’s history of substance use;
and/or (7) the child is either a parent or
is pregnant.
In proposed § 410.1202(g), ORR
establishes a non-exhaustive list of
factors that it would consider when
evaluating a potential sponsor’s ability
to ensure the physical or mental wellbeing of a child. ORR proposes it would
consider the potential sponsor’s
strengths and resources in conjunction
with any risks or concerns including: (1)
the potential sponsor’s criminal
background; (2) the potential sponsor’s
current illegal drug use or history of
abuse or neglect; (3) the physical
environment of the home; and/or (4)
other child welfare concerns. ORR notes
that the term ‘‘other child welfare
concerns’’ is intentionally broad to
allow for discretion and notes that the
term may include the wellbeing of any
other unaccompanied children currently
or previously under the potential
sponsor’s care. Pursuant to section 504
of the Rehabilitation Act and HHS’
implementing regulations at 45 CFR part
85, ORR notes that it shall not
discriminate against a qualified
individual with a disability when
evaluating their ability to serve as a
sponsor. In addition, ORR notes that it
does not consider these listed risks or
concerns as necessarily disqualifying to
potential sponsorship; however, in
keeping with its responsibility to ensure
the best interest of the child, ORR must
assess the extent to which any of these
risks or concerns could be detrimental
to or seriously impede a potential
sponsor’s ability to care for the
unaccompanied child and the
possibility of safe release given
thorough consideration of the sponsor’s
specific situation and adaptation of a
release plan to ensure the
unaccompanied child’s well-being
pursuant to proposed § 410.1202(i).
Under proposed § 410.1202(h), ORR
would assess the potential sponsor’s
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understanding of the unaccompanied
child’s needs, plan to provide the child
with adequate care, supervision, and
housing, understanding and awareness
of responsibilities related to compliance
with the UC’s immigration court
proceedings, school attendance, and
U.S. child labor laws and awareness of
and ability to access community
resources.
Finally, under proposed § 410.1202(i),
ORR would develop a release plan that
could enable a safe release to the
potential sponsor through the provision
of post-release services, if needed.
Section 410.1203 Release Approval
Process
Section 410.1203 proposes ORR’s
process for approving an
unaccompanied child’s release.
Proposed § 410.1203(a) reflects the FSA
requirement that ORR makes and
records timely and continuous efforts
towards safe and timely release of
unaccompanied children. These efforts
include intakes and admissions
assessments and the provision of
ongoing case management services to
identify potential sponsors.
Under proposed § 410.1203(b), if a
potential sponsor is identified, ORR
would provide an explanation to both
the unaccompanied child and the
potential sponsor of the requirements
and procedures for release.
Proposed § 410.1203(c) details the
information that a potential sponsor
must provide to ORR in the required
sponsor application package for release
of the unaccompanied child. Proposed
information requirements include
supporting information and
documentation regarding: the sponsor’s
identity; the sponsor’s relationship to
the child; background information on
the potential sponsor and the potential
sponsor’s household members; the
sponsor’s ability to provide care for the
child; and the sponsor’s commitment to
fulfill the sponsor’s obligations in the
Sponsor Care Agreement. The Sponsor
Care Agreement, which shall be made
available in a potential sponsor’s native
or preferred language pursuant to
proposed § 410.1306(f), requires a
potential sponsor to commit to: (1)
provide for the unaccompanied child’s
physical and mental well-being; (2)
ensure the unaccompanied child’s
compliance with DHS and immigration
courts’ requirements; (3) adhere to
existing Federal and applicable state
child labor and truancy laws; (4) notify
DHS, EOIR at the Department of Justice,
and other relevant parties of changes of
address; (5) provide notice of initiation
of any dependency proceedings or any
risk to the unaccompanied child as
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described in the Sponsor Care
Agreement; and (6) in the case of
sponsors other than parents or legal
guardians, notify ORR of a child moving
to another location with another
individual or change of address. This
provision also proposes that in the event
of an emergency (for example, a serious
illness or destruction of the sponsor’s
home), a sponsor may transfer
temporary physical custody of the
unaccompanied child, but the sponsor
must notify ORR as soon as possible and
no later than 72 hours after the transfer.
ORR notes that this departs from the
2019 Final Rule and the FSA to the
extent that ORR is not proposing to
require the sponsor to seek ORR’s
permission to transfer custody of the
unaccompanied child. This departure
reflects that ORR does not retain legal
custody of an unaccompanied child
after the child is released to a sponsor;
however, ORR retains an interest in
knowing this information for the
provision of post-release services,
tracking concerns related to potential
trafficking, and for potential future
sponsor assessments should the child’s
sponsor step forward to sponsor a
different child.87
Under proposed § 410.1203(d), ORR
would conduct a sponsor suitability
assessment consistent with the
requirements of proposed § 410.1202.
Under proposed § 410.1203(e),
consistent with existing policies, ORR
would not release an unaccompanied
child to any person or agency it has
reason to believe may harm or neglect
the unaccompanied child, or that it has
reason to believe will fail to present the
unaccompanied child before DHS or the
immigration courts when requested to
do so. For example, ORR would deny
release to a potential sponsor if the
potential sponsor is not willing or able
to provide for the unaccompanied
child’s physical or mental well-being;
the physical environment of the home
presents risks to the unaccompanied
child’s safety and well-being; or the
release of the unaccompanied child to
that potential sponsor would present a
risk to him or herself or others.
Furthermore, in proposed
§ 410.1203(f), ORR shall educate the
potential sponsor about the needs of the
unaccompanied child as part of the
release process and would also work
with the sponsor to develop an
appropriate plan to care for the
unaccompanied child if the child is
released to the sponsor. Such plans
would cover a broad range of topics
including providing the unaccompanied
child with adequate care, supervision,
87 See,
e.g., 6 U.S.C. 279(b)(2).
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access to community resources,
housing, and education.88
Section 410.1204 Home Studies
The TVPRA requires a home study be
performed for the release of an
unaccompanied child in certain
circumstances.89 In this section of the
proposed rule, therefore, ORR proposes
both required and discretionary home
studies depending upon specific
circumstances, including for those
circumstances in which the safety and
well-being of the child is in question.
In proposed § 410.1204(a), ORR
establishes that, as part of the sponsor
suitability assessment, it may require a
home study which includes an
investigation of the living conditions in
which the unaccompanied child would
be placed, the standard of care the child
would receive, and interviews with the
potential sponsor and others in the
sponsor’s households. If ORR requires a
home study, such home study shall take
place prior to the child’s physical
release.
In § 410.1204(b), ORR proposes three
circumstances in which a home study
shall be required. The first is under the
conditions identified in the TVPRA at 8
U.S.C. 1232(c)(3)(B): ‘‘a home study
shall be conducted for a child who is a
victim of a severe form of trafficking in
persons, a special needs child with a
disability (as defined in section 12102 of
title 42), a child who has been a victim
of physical or sexual abuse under
circumstances that indicate that the
child’s health or welfare has been
significantly harmed or threatened, or a
child whose proposed sponsor clearly
presents a risk of abuse, maltreatment,
exploitation, or trafficking to the child
88 Regarding education, ORR understands that
under the laws of every state, children up to a
certain age must attend school and have a right to
attend public school. Public schools may not refuse
to enroll children, including unaccompanied
children, because of their (or their parents or
sponsors’) immigration status or race, color, or
national origin. See, e.g., Plyler v. Doe, 457 U.S. 202
(1982) (finding that under the Equal Protection
Clause of the Fourteenth Amendment of the U.S.
Constitution, a State may not deny access to a basic
public education to any child residing in the State,
whether present in the United States legally or
otherwise). Additionally, Title VI of the Civil Rights
Act of 1964, 42 U.S.C. 2000d et seq., and the Equal
Educational Opportunity Act of 1974, 20 U.S.C.
1701 et seq., prohibit public schools from
discriminating on the basis of race, color, or
national origin. ORR also understands that school
districts may not insist on documentation
requirements that effectively prevent enrollment of
an unaccompanied child. See 42 U.S.C. 2000d; see
also U.S. Dep’t of Justice, Civil Rights Division &
U.S. Dep’t of Education, Office for Civil Rights,
Information on the Rights of All Children to Enroll
in School: Questions and Answers for States,
School Districts and Parents, Answers 3, 5, 7, and
8 (rev. May 8, 2014), https://www2.ed.gov/about/
offices/list/ocr/docs/qa-201405.pdf.
89 See 8 U.S.C. 1232(c)(3)(B).
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based on all available objective
evidence.’’
Consistent with existing policy, ORR
also proposes other circumstances in
which it would require a home study.
The second circumstance in which a
home study is proposed to be required
is before releasing any child to a nonrelative sponsor who is seeking to
sponsor multiple children, or who has
previously sponsored or sought to
sponsor a child and is seeking to
sponsor additional children. The third
circumstance in which a home study is
proposed to be required is before
releasing any child who is 12 years old
or younger to a non-relative sponsor.
ORR believes that these latter two
categories are consistent with the
statutory requirement that HHS
determine that a proposed sponsor ‘‘is
capable of providing for the child’s
physical and mental well-being,’’ 90 to
‘‘establish policies and programs to
ensure that unaccompanied alien
children in the United States are
protected from traffickers and other
persons seeking to victimize or
otherwise engage such children in
criminal, harmful, or exploitative
activity.’’ 91
Under proposed § 410.1204(c), ORR
would have the discretion to initiate
home studies if it determines that a
home study is likely to provide
additional information which could
assist in determining that the potential
sponsor is able to care for the health,
safety, and well-being of the
unaccompanied child.
Under proposed § 410.1204(d), the
care provider would inform a potential
sponsor whenever it plans to conduct a
home study, explain the scope and
purpose of the study to the potential
sponsor, and answer questions the
potential sponsor has about the process.
In addition, under this proposed
paragraph, the home study would
provide its report to the potential
sponsor if the release request is denied,
as well as any subsequent addendums if
created.
Finally, proposed § 410.1204(e)
establishes that an unaccompanied
child for whom a home study is
conducted shall receive post-release
services as described at § 410.1210. This
requirement would be consistent with 8
U.S.C. 1232(c)(3)(B), which states that
‘‘The Secretary of Health and Human
Services shall conduct follow-up
services, during the pendency of
removal proceedings, on children for
whom a home study was conducted and
is authorized to conduct follow-up
90 8
91 8
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U.S.C. 1232(c)(1).
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services in cases involving children
with mental health or other needs who
could benefit from ongoing assistance
from a social welfare agency.’’
Section 410.1205 Release Decisions;
Denial of Release to a Sponsor
Proposed § 410.1205 would provide
guidance for situations in which ORR
denies the release of an unaccompanied
child to a potential sponsor. Under
proposed § 410.1205(a), a sponsorship
would be denied if, as part of the
sponsor assessment process described at
proposed § 410.1202 or the release
process described at proposed
§ 410.1203, ORR determines that the
proposed sponsor is not capable of
providing for the physical and mental
well-being of the unaccompanied child
or that the placement would result in
danger to the unaccompanied child or
the community.
Under proposed § 410.1205(b), if ORR
denies release of an unaccompanied
child to a potential sponsor who is a
parent or legal guardian, ORR must
notify the parent or legal guardian of the
denial in writing. Such Notification of
Denial letter would include: (1) an
explanation of the reason(s) for the
denial; (2) evidence and information
supporting ORR’s denial decision,
including the evidentiary basis for the
denial; (3) instructions for requesting an
appeal of the denial; (4) notice that the
potential sponsor may submit additional
evidence, in writing before a hearing
occurs, or orally during a hearing; (5)
notice that the potential sponsor may
present witnesses and cross-examine
ORR’s witnesses, if such witnesses are
willing to voluntarily testify; and (6)
notice that the potential sponsor may be
represented by counsel in proceedings
related to the release denial at no cost
to the Federal Government. Relatedly, in
§ 410.1205(c), ORR proposes that if a
potential sponsor who is the
unaccompanied child’s parent or legal
guardian is denied, ORR shall inform
the unaccompanied child, the child
advocate, and the unaccompanied
child’s attorney of record or EOIR
accredited representative (or if the
unaccompanied child has no attorney of
record or EOIR accredited
representative, the local legal service
provider) of that denial.
ORR proposes in § 410.1205(d) that if
the sole reason for denial of release is
a concern that the unaccompanied child
is a danger to themself or the
community, ORR must send the
unaccompanied child a copy of the
Notification of Denial letter, in a
language that the child understands,
described at § 410.1205(b). If the
potential sponsor who has been denied
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is the unaccompanied child’s parent or
legal guardian and is not already
seeking appeal of the decision, the
unaccompanied child may appeal the
denial.
Proposed § 410.1205(e) recognizes
that unaccompanied children may have
the assistance of counsel, at no cost to
the Federal Government, with respect to
release or the denial of release to a
proposed sponsor.
ORR notes that as part of the Lucas R.
litigation, it is currently subject to a
preliminary injunction that includes
certain requirements regarding
notification and appeal rights for
individuals who have applied to
sponsor unaccompanied children,
including potential sponsors who are
not an unaccompanied child’s parent or
legal guardian. ORR is complying with
the requirements of applicable court
orders and has issued sub-regulatory
policy guidance to do so. Once the
Lucas R. litigation is resolved, ORR will
evaluate whether further rulemaking is
warranted.
Section 410.1206 Appeals of Release
Denials
Proposed § 410.1206 would establish
procedures for parents and legal
guardians of unaccompanied children to
appeal a release denial. ORR is
responsible for making and
implementing placement
determinations for unaccompanied
children and must do so in a manner
that protects the best interest of the
unaccompanied children, including
ensuring they are protected from
traffickers and other persons seeking to
victimize or otherwise engage such
children in criminal, harmful, or
exploitative activity.92 ORR also
recognizes the strong interest of parents
and legal guardians in custody of their
children. Consistent with its statutory
responsibilities and existing policy,
ORR proposes to create an
administrative appeal process for
parents and legal guardians who are
denied sponsorship of an
unaccompanied child. Subject to the
availability of resources, as determined
by ORR, ORR may consider providing
language services to parents and legal
guardians during the appeals process, if
the parent or guardian is unable to
obtain such services on their own.
Section 410.1206(a) proposes that
parents and legal guardians of
unaccompanied children who are
denied sponsorship by ORR may seek
an appeal of ORR’s decision by
submitting a written request to the
92 See generally 6 U.S.C. 279(b)(1); 8 U.S.C.
1232(c).
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Assistant Secretary of ACF or the
Assistant Secretary’s neutral and
detached designee.
Proposed § 410.1206(b) would
provide that parents and legal guardians
of unaccompanied children who are
denied sponsorship by ORR may seek
an appeal either with or without a
hearing and pursuant to processes
described by ORR in agency guidance.
ORR proposes that the Assistant
Secretary or their neutral and detached
designee will acknowledge the request
for appeal within a reasonable time.
Additionally, proposed § 410.1206(c)
establishes a procedure for the
unaccompanied child to also appeal a
release denial if the sole reason for
denial is a concern that the
unaccompanied child poses a danger to
self or others. In such a case, ORR
proposes that the unaccompanied child
may seek an appeal of the denial as
described in § 410.1206(a). If the
unaccompanied child expresses a desire
to appeal, the unaccompanied child
may consult with their attorney of
record or a legal service provider for
assistance with the appeal. The
unaccompanied child may seek such
appeal at any time after denial of release
while still in ORR custody.
Section 410.1207 Ninety (90)-Day
Review of Pending Release Applications
In the interest of the timely and
efficient placement of unaccompanied
children with sponsors, proposed
§ 410.1207 describes a process to review
release applications that have been
pending for 90 days. Consistent with
existing policy, proposed § 410.1207(a)
would require ORR Federal staff, who
supervise case management services
performed by ORR grantees and
contractors, to review all pending
sponsor applications or Family
Reunification Packets (FRP) for
unaccompanied children who have been
in ORR custody for 90 days after
submission of the sponsor application
or FRP in order to identify and resolve
the reasons that a release application
remains pending in a timely manner, as
well as to determine possible steps to
accelerate the children’s safe release.
Proposed § 410.1207(b) would
establish that, upon completion of the
review, UC Program case managers or
other designated agency or care provider
staff must update the potential sponsor
and unaccompanied child on the status
of the case and explain the reasons that
the release process is incomplete. ORR
proposes that UC Program case
managers or other designated agency or
care provider staff would work with the
potential sponsor, relevant stakeholders,
and ORR to address the portions of the
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sponsorship application or FRP that
remain unresolved.
Further, to ensure that timeliness of
placement remains a priority, for cases
that are not resolved after the initial 90Day Review, ORR proposes that ORR
Federal staff supervising the case
management process would conduct
additional reviews at least every 90 days
until the pending sponsor application or
FRP is resolved as described in
§ 410.1207(c).
Section 410.1208 ORR’s Discretion To
Release an Unaccompanied Child to the
Unaccompanied Refugee Minors
Program
Proposed § 410.1208 describes
specific eligibility criteria for release of
an unaccompanied child to the
Unaccompanied Refugee Minors (URM)
Program. The TVPRA permits ORR to
place unaccompanied children in a
URM Program, pursuant to section
412(d) of the Immigration and
Nationality Act, if a suitable family
member is not available to provide
care.93 Proposed § 410.1208(a) states
that an unaccompanied child may be
eligible for services through the ORR
Unaccompanied Refugee Minors (URM)
Program, including unaccompanied
children in the following categories: (1)
Cuban and Haitian entrant as defined in
section 501 of the Refugee Education
Assistance Act of 1980, 8 U.S.C. 1522
note and as provided for at 45 CFR
400.43; (2) an individual determined to
be a victim of a severe form of
trafficking as defined in 22 U.S.C.
7105(b)(1)(C); (3) an individual DHS has
classified as a Special Immigrant
Juvenile (SIJ) under section 101(a)(27)(J)
of the Immigration and Nationality Act
(INA), 8 U.S.C. 1101(a)(27)(J), and who
was either in the custody of HHS at the
time a dependency order was granted
for such child or who was receiving
services pursuant to section 501(a) of
the Refugee Education Assistance Act of
1980, 8 U.S.C. 1522 note, at the time
such dependency order was granted; (4)
an individual with U nonimmigrant
status under 8 U.S.C. 1101(a)(15)(U), as
authorized by TVPRA, pursuant to
section 1263 of the Violence Against
Women Reauthorization Act of 2013,
which amends section 235(d)(4) of the
TVPRA to add individuals with U
nonimmigrant status who were in ORR
custody as unaccompanied children
eligible for the URM Program; or (5)
other populations of children as
authorized by Congress.
With respect to unaccompanied
children described in proposed
paragraph (a) of this section, under
93 8
U.S.C. 1232(c)(2)(A).
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proposed § 410.1208(b), ORR would
evaluate each case to determine whether
it is in an unaccompanied child’s best
interests to be referred to the URM
Program.
At proposed § 410.1208(c), ORR notes
that when it discharges an
unaccompanied child pursuant to this
section to receive services through the
URM Program, relevant requirements of
the ORR Refugee Resettlement Program
regulations would apply, including the
requirement that the receiving entity
establish legal responsibility of the
unaccompanied child, including legal
custody or guardianship, under state
law.94 Under proposed § 410.1208(c),
until such legal custody or guardianship
is established, the ORR Director would
retain legal custody of the child.
Section 410.1209 Requesting Specific
Consent From ORR Regarding Custody
Proceedings
Proposed § 410.1209 addresses the
specific consent process and is informed
by the TVPRA. Specific consent is a
process through which an
unaccompanied child in ORR custody
obtains consent from HHS to have a
state juvenile court make decisions
concerning the unaccompanied child’s
placement or custody. As relevant to
this proposed section, ORR notes that
the TVPRA modified section
101(a)(27)(J) of the Immigration and
Nationality Act, concerning SIJ
classification.95 To obtain SIJ
classification under the TVPRA
modifications, a child must be declared
dependent or legally committed to or
placed under the custody of an
individual or entity by a state juvenile
court. However, an unaccompanied
child in ORR custody who seeks to
invoke the jurisdiction of a state
juvenile court to determine or alter their
custody status or placement must first
receive ‘‘specific consent’’ from HHS to
such jurisdiction. For example, if an
unaccompanied child wishes to have a
state juvenile court of competent
jurisdiction, not HHS, decide to move
them out of HHS custody and into a
state-funded foster care home, the
unaccompanied child must first receive
94 See
45 CFR 400.115.
8 U.S.C. 1101(a)(27)(J) (providing that ‘‘no
juvenile court has jurisdiction to determine the
custody status or placement of an alien in the
custody of the Secretary of Health and Human
Services unless the Secretary of Health and Human
Services specifically consents to such jurisdiction
. . .’’). See also 8 U.S.C. 1232(d)(2) (‘‘All
applications for special immigrant status under
section 101(a)(27)(J) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(27)(J)) shall be
adjudicated by the Secretary of Homeland Security
not later than 180 days after the date on which the
application is filed.’’).
95 See
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‘‘specific consent’’ from HHS to go
before the state juvenile court. If the
unaccompanied child wishes to go to
state juvenile court to be declared
dependent in order to petition for SIJ
classification (i.e., receive an ‘‘SIJpredicate order’’), the unaccompanied
child does not need HHS’ consent.
Although the TVPRA transferred
authority to grant specific consent from
DHS to ORR, DHS retains sole authority
over the ultimate determination on SIJ
classification.96
Proposed § 410.1209(a) states that an
unaccompanied child in ORR custody is
required to request specific consent
from ORR if the unaccompanied child
seeks to invoke the jurisdiction of a state
juvenile court to determine or alter the
child’s custody status or release from
ORR custody.
Under proposed § 410.1209(b), if an
unaccompanied child seeks to invoke
the jurisdiction of a state juvenile court
for a dependency order so that they can
petition for SIJ classification or to
otherwise permit a state juvenile court
to establish jurisdiction regarding
placement, but does not seek the state
juvenile court’s jurisdiction to
determine or alter the child’s custody
status or release, the unaccompanied
child would not need to request specific
consent from ORR.
Proposed § 410.1209(c) through (g)
explain the process to make a specific
consent request to ORR. Under
proposed § 410.1209(c), prior to a state
juvenile court determining or altering
the unaccompanied child’s custody
status or release from ORR, attorneys or
others acting on behalf of an
unaccompanied child would be
required to complete a request for
specific consent. ORR proposes in
§ 410.1209(d) that it would acknowledge
receipt of the request within two
business days.
ORR proposes in § 410.1209(e) that it
will consider whether ORR custody is
required to: (1) ensure a child’s safety;
or (2) ensure the safety of the
community. As ORR does not consider
runaway risk for purposes of release, it
does not intend to do so here for
purposes of adjudicating specific
consent requests. ORR notes that such
requirements would be consistent with
8 U.S.C. 1232(c)(2)(A) (stating that when
making placement determinations, HHS
96 Although the TVPRA refers to special
immigrant ‘‘status,’’ see, e.g., 8 U.S.C. 1232(d), in
this proposed rule ORR uses the term special
immigrant ‘‘classification,’’ consistent with current
United States Citizenship and Immigration Services
(USCIS) policy. See generally U.S. Citizenship and
Immigration Services Policy Manual, Vol. 6, Part J,
Ch. 1, available at: https://www.uscis.gov/policymanual/volume-6-part-j-chapter-1.
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‘‘may consider danger to self, danger to
the community, and risk of flight.’’).
Under proposed § 410.1209(f), ORR
shall make determinations on specific
consent requests within 60 business
days of receipt. ORR proposes that it
shall attempt to expedite urgent requests
when possible.
In § 410.1209(g), ORR proposes that it
shall inform the unaccompanied child,
the unaccompanied child’s attorney, or
other authorized representative of the
unaccompanied child of the decision on
the specific consent request in writing,
along with the evidence used to make
the decision. Finally, proposed
§ 410.1209(h) and (i) detail procedures
related to a request for reconsideration
in the event ORR denies specific
consent. Under proposed § 410.1209(h),
the unaccompanied child, the child’s
attorney of record, or EOIR accredited
representative of the child would be
able to request reconsideration of ORR’s
denial with the Assistant Secretary for
ACF within 30 business days of receipt
of the ORR notification of denial of the
request. The unaccompanied child, the
child’s attorney, or the child’s
authorized representative may submit
additional (including new) evidence to
be considered with the reconsideration
request.
Under proposed § 410.1209(i), the
Assistant Secretary for ACF or designee
would consider the request for
reconsideration and any additional
evidence, and send a final
administrative decision to the
unaccompanied child, the child’s
attorney, or the child’s other authorized
representative, within 15 business days
of receipt of the request.
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Section 410.1210
Services
Post-Release
Proposed § 410.1210 sets forth the
requirements for post-release services
(PRS). The TVPRA authorizes, and in
some cases requires, HHS to provide
PRS during the pendency of removal
proceedings for certain unaccompanied
children.97 ORR provides PRS by
funding providers to facilitate access to
relevant services. Generally, ORR
believes that providing necessary
services after an unaccompanied child’s
release from ORR care is essential to
promote the child’s safety and wellbeing.
97 See
8 U.S.C. 1232(c)(3)(B) (‘‘The Secretary of
Health and Human Services shall conduct followup services, during the pendency of removal
proceedings, on children for whom a home study
was conducted and is authorized to conduct followup services in cases involving children with mental
health or other needs who could benefit from
ongoing assistance from a social welfare agency.’’).
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Under proposed § 410.1210(a)(1),
consistent with existing policy, care
provider facilities would work with
sponsors and unaccompanied children
to prepare them for the unaccompanied
children’s safe and timely release, to
assess the sponsors’ ability to access
community resources, and to provide
guidance regarding safety planning and
accessing services.
Proposed § 410.1210(a)(2) and (3)
describe circumstances when ORR
would be required to provide PRS to
unaccompanied children. Consistent
with 8 U.S.C. 1232(c)(3)(B), under
proposed § 410.1210(a)(2), ORR would
conduct follow-up services, or PRS,
during the pendency of removal
proceedings for unaccompanied
children for whom a home study was
conducted. ORR proposes to apply this
requirement to any case where a home
study is conducted, including home
studies that are explicitly required by
the TVPRA and those that ORR
performs under other circumstances as
described at proposed § 410.1204.
Under proposed § 410.1210(a)(3), ORR
proposes it would have the discretion,
to the extent ORR determines that
appropriations are available, to provide
PRS to unaccompanied children with
mental health or other needs who would
benefit from the ongoing assistance of a
community-based service provider, even
if their case did not involve a home
study pursuant to proposed § 410.1204.
ORR notes that proposed § 410.1210(c)
further lists certain situations where
ORR may, within its discretion, refer
unaccompanied children for PRS. These
proposals expand upon the situations
whereby ORR may provide PRS. ORR’s
current practice, described in the ORR
Guide at section 6.2, requires ORR to
provide PRS for an unaccompanied
child whose sponsor required a home
study 98 or for whom ORR determines
the release is safe and appropriate but
the unaccompanied child and sponsor
would benefit from ongoing assistance
from a community-based service
provider. ORR also proposes that PRS
furnished to these unaccompanied
children may include home visits by the
PRS provider. ORR seeks public
comment on proposed § 410.1210(a)(2)
and (3), particularly with respect to the
98 ORR Guide section 2.4.2 requires a home study
before releasing an unaccompanied child to a nonrelative sponsor who is seeking to sponsor: (1)
multiple unaccompanied children; (2) additional
unaccompanied children and the non-relative
sponsor has previously sponsored or sought to
sponsor an unaccompanied child; or (3)
unaccompanied children who are 12 years and
under.
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possible expansion of PRS to additional
unaccompanied children.
ORR is aware of concerns that, in
some cases, release of UC to sponsors
may be unduly delayed by a lack of
available PRS providers and services
near the sponsor. Accordingly, ORR
proposes in § 410.1210(a)(4) that ORR
would not delay the release of an
unaccompanied child if PRS are not
immediately available (e.g., due to a
referral delay or waitlist for PRS). ORR
notes that § 410.1210(g) specifies the
timeframes in which PRS providers are
required to start PRS for unaccompanied
children once they are released from
ORR care.
Proposed § 410.1210(b) lists the types
of services that would be available as
part of PRS, as described in section 6.2.2
of the ORR Guide. PRS providers would
be required to ensure PRS are furnished
in a manner that is sensitive to the
individual needs of the unaccompanied
child and in a way the child effectively
understands regardless of spoken
language, reading comprehension, or
disability to ensure meaningful access
for all eligible children, including those
with limited English proficiency. The
comprehensiveness of PRS shall depend
on the extent appropriations are
available. Specifically, ORR proposes to
codify the availability of PRS to support
unaccompanied children and sponsors
in accessing services in the following
areas: placement and stability;
immigration proceedings; guardianship;
legal services; education; medical
services; individual mental health
services; family stabilization and
counseling; substance use; gang
prevention; education about
employment laws and workers’ rights;
and other specialized services based on
need and at the request of
unaccompanied children. In addition,
ORR believes that PRS should
specifically include service areas such
as: assisting in school enrollment,
including connecting unaccompanied
children and sponsors to educational
programs for students with disabilities
where appropriate; ensuring access to
family reunification and medical
support services, including support and
counseling for the family and mental
health counseling; supporting sponsors
in obtaining necessary medical records
and necessary personal documentation;
and ensuring that sponsors of
unaccompanied children with medical
needs receive support in accessing
appropriate medical care. ORR notes
that these services areas are currently
covered in section 6.2.2 of the ORR
Guide, which ORR is proposing to
codify in § 410.1210(b). In conducting
PRS, ORR and any entities through
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which ORR provides PRS shall make
reasonable modifications in their
policies, practices, and procedures if
needed to enable released
unaccompanied children with
disabilities to live in the most integrated
setting appropriate to their needs, such
as with a sponsor. ORR is not required,
however, to take any action that it can
demonstrate would result in a
fundamental alteration in the nature of
a program or activity. Additionally, ORR
is aware of the importance of health
literacy for unaccompanied children to
increase awareness of health issues and
to ensure continuity of care after their
release, and so proposes at
§ 410.1210(b)(7) that PRS providers
would be required to provide
unaccompanied children and sponsors
with information and services relevant
to health-related considerations for the
unaccompanied child. ORR seeks public
comment on this paragraph, specifically
on how to protect the
comprehensiveness of PRS against
significant reductions in funding
allocated to PRS while still balancing
the need to maintain funding for
capacity during emergencies and
influxes. ORR also seeks public
comment on what other services should
be within the scope of PRS.
Under proposed § 410.1210(c), ORR
proposes to require that unaccompanied
children with certain needs receive
additional consideration of those casespecific needs, and may be referred for
PRS to address those needs. Consistent
with 8 U.S.C. 1232(c)(3)(B), ORR
proposes that unaccompanied children
who would receive additional
consideration include those that are
especially vulnerable unaccompanied
children and would include, but are not
limited to: unaccompanied children in
need of particular services or treatment;
unaccompanied children with
disabilities; unaccompanied children
with LGBTQI+ status; unaccompanied
children who are adjudicated
delinquent or have been involved in, or
are at high risk of involvement with, the
juvenile justice system; unaccompanied
children who entered ORR care after
being separated from a parent or legal
guardian by DHS; unaccompanied
children who are victims of human
trafficking or other crimes;
unaccompanied children who are
victims of worker exploitation;
unaccompanied children who are at risk
for labor trafficking; unaccompanied
children enrolled in school who are
chronically absent or retained at the end
of their school year; and certain
parolees. ORR typically considers
certain parolees who are also
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unaccompanied children to include
Unaccompanied Afghan Minors,
Unaccompanied Ukrainian children,
and other children who are in the UC
program (such as those eligible for
humanitarian parole). ORR notes that
under this proposed section it may refer
unaccompanied children for PRS, based
on these concerns, even after they have
been released. Such referrals may be
made pursuant to ORR becoming aware
of the situations listed above—e.g.,
through post-release notifications of
concern or calls to its national call
center. In that event, ORR would require
the relevant PRS provider to follow up
with the child and assess whether PRS
would be appropriate.
Under proposed § 410.1210(d), the
PRS provider assigned to a particular
unaccompanied child’s case would
assess the released unaccompanied
child and sponsor for services needed
and document the assessment. The
assessment would be developmentally
appropriate for the unaccompanied
child, meaning the PRS provider would
be required to tailor it to the released
unaccompanied child’s level of
cognitive, physical, and emotional
ability. Further, the assessment is
proposed to be trauma-informed, as
defined in proposed § 410.1001, and
consistent with the 6 Guidelines To A
Trauma-Informed Approach developed
by the CDC in collaboration with the
SAMHSA.99 During the assessment, PRS
providers should also identify any
traumatic events and symptoms by
using validated screening measures
developed for use when screening and
assessing trauma in children.
ORR notes that under existing policy,
it provides Safety and Well Being
Follow Up Calls (SWB calls) for all
unaccompanied children who are
released to sponsors. The purpose of
SWB calls is to determine whether the
child is still residing with the sponsor,
is enrolled in or attending school, is
aware of upcoming court dates, and is
safe. ORR understands that these calls
are authorized under 8 U.S.C.
1232(c)(3)(B) as a form of follow-up
services. Although ORR plans to
continue conducting SWB calls under
this proposed rule, nevertheless ORR
does not propose to codify them, to
preserve its flexibility in making
continuous improvements to the reach
and nature of the SWB calls themselves,
99 CDC; SAMHSA. (2020, Sept. 17). 6 Guidelines
To A Trauma-Informed Approach. https://
www.cdc.gov/orr/infographics/6_principles_
trauma_info.htm. The six guidelines include:
safety; trustworthiness and transparency; peer
support; collaboration and mutuality;
empowerment and choice; and cultural, historical,
and gender issues.
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as well as in integrating SWB calls into
the suite of available PRS. ORR seeks
public comment on whether it should
consider codifying SWB calls in this
proposed rule or in future rulemaking
and whether ORR should integrate SWB
call into PRS, including what factors
ORR should consider in integrating
SWB calls into PRS.
In the final version of this rule, ORR
is considering codifying a requirement
that the PRS provider’s assessment must
include a recommendation regarding the
‘‘level’’ of PRS to be provided in direct
response to the unaccompanied child’s
and the sponsor’s needs, based on
regular and repeated assessments. As
described in proposed § 410.1210(b),
PRS include services in a range of
service areas. But ORR notes that
unaccompanied children and sponsors
receiving PRS do not necessarily require
follow-up services in every service area;
rather, unaccompanied children and
sponsors who are referred for PRS have
individual needs reflecting their own
circumstances. Similarly, ORR believes
that the appropriate level of
involvement by the PRS provider in
coordinating the delivery of those
services should accord with the
unaccompanied child’s and/or sponsor’s
individual needs. Consistent with this
approach, ORR currently provides two
‘‘levels’’ of PRS—Level One and Level
Two. Level One services currently
include assessments of the needs of
unaccompanied children and their
sponsors in accessing community
services, including enrolling in school.
Further, unaccompanied children and
their sponsors receive Level One
services if they do not require intensive
case management as provided with
Level Two PRS. Unaccompanied
children and their sponsors receive
Level Two services if they received
Level One Services, and the PRS
providers assessed them to need more
intensive case management, or the
unaccompanied children require a
higher level of services as assessed
during the unaccompanied children’s
release from ORR care (e.g., during the
sponsor suitability assessment). Level
Two services provide a higher level of
engagement between the PRS provider
and the unaccompanied child and
sponsor and include regularlyscheduled home visits (at least once a
month), ongoing needs assessments of
the unaccompanied child,
comprehensive case management, and
access to therapeutic support services.
ORR is considering updating the levels
of PRS available to unaccompanied
children and sponsors, from a
framework that contains two levels of
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PRS to a framework that contains three
levels, and further, ORR is considering
codifying this PRS level framework. To
that end, ORR seeks input from the
public on one potential way to update
its policies to incorporate additional
levels, as described below.
ORR is considering requiring the PRS
provider’s assessment to include the
level of PRS recommended to be
provided be in direct response to the
unaccompanied child’s and the
sponsor’s needs, based on regular and
repeated assessments. Under a revised
framework for PRS levels, ORR is
considering an option in which Level
One PRS would include safety and wellbeing virtual check-ins; 100 Level Two
PRS would cover case management
services; and Level Three PRS would
include intensive home engagements.
Additionally, ORR is considering
requiring that a released
unaccompanied child may receive one
or more levels of PRS depending on the
needs and circumstances of the
unaccompanied child and sponsor. ORR
is considering codifying a requirement
that PRS providers would be required to
furnish specific levels of PRS to
unaccompanied children required to
receive PRS under the TVPRA to ensure
the safety and well-being of these
unaccompanied children post-release
and their successful transition into the
community. ORR is also considering
time limits on the availability of PRS at
each level that the PRS provider would
furnish to the unaccompanied child and
sponsor, which at a minimum would be
furnished for six (6) months after
release. For example, an
unaccompanied child and sponsor
referred to Level Three PRS would
receive this level of service for at least
six months after release, and ORR
would subsequently assess every 30
days thereafter whether services are still
needed. Further, ORR is considering
requiring PRS providers to furnish
levels of PRS to unaccompanied
children required to receive PRS under
the TVPRA and their sponsors for
timeframes that may continue beyond
the timeframes to be established for the
levels. ORR notes that the timeframes
for providing PRS would not extend
past the circumstances in which PRS
would be terminated as specified in
proposed § 410.1210(h).
Under proposed § 410.1210(e)(1), the
PRS provider would, in consultation
with the unaccompanied child and
sponsor, decide the appropriate
100 ORR notes that care provider facilities
currently conduct safety and well-being follow-up
calls 30 days after the unaccompanied child’s
release date.
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methods, timeframes, and schedule for
ongoing contact with the released
unaccompanied child and sponsor
based on the level of need and support
needed. PRS providers would be
required in proposed § 410.1210(e)(2) to
make, at a minimum, monthly contact
with their assigned released
unaccompanied children and their
sponsors, either in person or virtually
for six months after release. ORR is
considering limiting the minimum
monthly contact to unaccompanied
children and sponsors receiving Level
Two and/or Level Three PRS. ORR seeks
public comment on this proposal
including consideration for applicable
factors that should be included in
determining how often PRS providers
would be required to contact their
assigned unaccompanied children and
sponsors after release. Under proposed
§ 410.1210(e)(3), PRS providers would
be required to document all ongoing
check-ins and in-home visits as well as
the progress and outcomes of those
home visits.
Under proposed § 410.1210(f)(1), PRS
providers would work with released
unaccompanied children and their
sponsors to ensure they can access
community resources. ORR has opted
not to enumerate ways that PRS
providers could comply with this
proposed requirement, because the
nature of such assistance would vary by
case. But as examples, ORR anticipates
that PRS providers could assist
unaccompanied children and sponsors
with issues such as making
appointments; communicating
effectively with their service provider;
requesting interpretation services, if
needed; understanding a service’s costs,
if applicable; enrollment in school; for
younger children, enrollment in child
care where needed; for three-and fouryear old children, enrollment in
preschool where accessible; and other
issues relevant to accessing relevant
services. ORR also anticipates that PRS
providers would assist the released
unaccompanied children and sponsors
in accessing the following communitybased resources: legal services;
education and English classes; youthand community-based programming;
medical care and behavioral healthcare;
services related to the unaccompanied
children’s cultural and other traditions;
and supporting the unaccompanied
children’s independence and
integration.
Under proposed § 410.1210(f)(2), PRS
providers would be required to
document any community resource
referrals and their outcomes.
ORR proposes to codify at
§ 410.1210(g) timeframes for when PRS
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providers would be required to start
PRS. ORR notes that although the
TVPRA mandates PRS in certain cases,
it does not address the timing of
providing PRS. ORR proposes to codify
in § 410.1210(g)(1) its existing policy
from section 6.2.3 of the ORR Guide that
specifies a timeframe for the delivery of
PRS to released unaccompanied
children who are required to receive
PRS pursuant to the TVPRA at 8 U.S.C.
1232(c)(3)(B). As proposed, PRS
providers would be required, to the
greatest extent practicable, to start
services within two (2) days of the
unaccompanied children’s release from
ORR care. PRS shall start no later than
30 days after release if PRS providers
are unable to start services within two
(2) days of release. Further, at
§ 410.1210(g)(2), ORR proposes to codify
its policy from section 6.2.3 of the ORR
Guide that for released unaccompanied
children who are referred to PRS but
who are not mandated to receive PRS
following a home study, PRS providers
would be required, to the greatest extent
practicable, to start services within two
(2) days of accepting a referral.
Proposed § 410.1210(h) describes the
circumstances required for termination
of PRS, which are based on ORR’s
existing policy at section 6.2.3 of the
ORR Guide. At § 410.1210(h)(1), ORR
would require that PRS for an
unaccompanied child required to
receive PRS pursuant to the TVPRA at
8 U.S.C. 1232(c)(3)(B) would continue
until the unaccompanied child turns 18
or the unaccompanied child is granted
voluntary departure, immigration status,
or the child receives an order of
removal. In the event the
unaccompanied child is granted
voluntary departure or receives an order
of removal, PRS would be discontinued
until the child is repatriated, and PRS
would end once the unaccompanied
child’s case is closed. Under proposed
§ 410.1210(h)(2), ORR would require
that PRS for an unaccompanied child
receiving PRS, but who is not required
to receive PRS following a home study,
would continue for not less than six
months or until the unaccompanied
child turns 18, whichever occurs first;
or until the PRS provider assesses the
unaccompanied child and determines
PRS are no longer needed, but in that
case for not less than six months.
Finally, proposed (i) describes records
and reporting requirements for PRS
providers. Keeping accurate and
confidential records is important to
ensure the security of any information
the PRS provider documents about the
unaccompanied child and sponsor.
Accordingly, under proposed
§ 410.1210(i)(1)(i), ORR would require
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PRS providers to maintain
comprehensive, accurate, and current
case files that are kept confidential and
secure, and that are accessible to ORR
upon request. PRS providers would be
required to keep all case file information
together in the PRS provider’s physical
and electronic files. Section
410.1210(i)(1)(ii) would also require
PRS providers to upload all
documentation related to services
provided to unaccompanied children
and sponsors to ORR’s case management
system, as available, within seven (7)
days of completion of the services.
To prevent unauthorized access to
electronic and paper records, proposed
§ 410.1210(i)(2)(i) would require PRS
providers establish and maintain
written policies and procedures for
organizing and maintaining the content
of active and closed case files. Under
proposed § 410.1210(i)(2)(ii), prior to
providing PRS, PRS providers would be
required to have established
administrative and physical controls to
prevent unauthorized access to the
records that include keeping sensitive
health information in a locked space
when not in use. ORR believes that any
information collected from the
unaccompanied child or sponsor should
not be shared for any other purposes
except for coordinating services for
them. ORR therefore proposes to codify
a requirement at § 410.1210(i)(2)(iii) that
PRS providers may not release records
to any third party without the prior
approval of ORR. If a PRS provider is no
longer providing PRS for ORR, ORR
proposes further that the PRS provider
would be required to provide all active
and closed case file records in their
original format to ORR according to
ORR’s instructions.
Proposed § 410.1210(i)(3) sets forth
requirements to protect the privacy of
all unaccompanied children receiving
PRS. Under proposed § 410.1210(i)(3)(i),
PRS providers would be required to
have a written policy and procedure
that protects the sensitive information of
released unaccompanied children from
access by unauthorized users, such as
encrypting electronic communication
(including, but not limited to, email and
text messaging) containing sensitive
healthcare or identifying information of
released unaccompanied children. PRS
providers would be required under
proposed § 410.1210(i)(3)(ii) to explain
to released unaccompanied children
and their sponsors how, when, and
under what circumstances sensitive
information may be shared during the
course of their PRS. PRS providers
would also be required to have
appropriate controls on information
sharing within the PRS provider
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network. ORR believes these controls
are necessary to ensure that sensitive
information is not exploited by
unauthorized users to the detriment of
the released unaccompanied children.
ORR proposes that if a PRS provider
is concerned about the unaccompanied
child’s safety and well-being, it must
notify ORR and other appropriate
agencies of such concerns. Proposed
§ 410.1210(i)(4)(i) covers the procedures
and requirements regarding such
notifications of concern (NOC). A PRS
provider concerned about an
unaccompanied child’s safety and wellbeing would be required to document
and report a NOC to ORR and, as
applicable, to other investigative
agencies (e.g., law enforcement or child
protective services). Consistent with
section 6.1 of the ORR Guide, ORR
anticipates that situations when PRS
providers would submit a NOC would
include: an emergency; a current case of
human trafficking; abuse, abandonment,
neglect, and maltreatment; possible
exploitative employment situation;
kidnapping, disappearances, or a
runaway; alleged criminal activity; child
protection services involvement;
potential fraud, such as document fraud
or fees charged for services that are to
be provided free of charge;
unaccompanied child behavioral
incident that raises safety concern;
media attention; sponsor declined
services; contact or involvement with
organized crime; PRS provider unable to
contact the unaccompanied child within
30 days of release; and when PRS
provider is providing services to an
unaccompanied child, loses contact
with that child, and there are safety
concerns.
Additionally, under proposed
§ 410.1210(i)(4)(ii), a PRS provider
would be required to submit a NOC to
ORR within 24 hours of first knowledge
or suspicion of events raising concerns
about the unaccompanied child’s safety
and well-being, and to document the
NOC.
Proposed § 410.1210(i)(5) would
codify requirements for PRS providers
regarding case closures. ORR proposes
that a case file be formally closed when
the PRS are terminated by ORR, and that
ORR would supply instructions,
including relevant forms, that the PRS
provider would be required to follow
when closing out a case. For example,
similar to current practice, ORR
anticipates that it may require PRS
providers to complete a case closure
form and upload it to ORR’s online case
management system within 72 hours of
a case’s closure.
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Subpart D—Minimum Standards and
Required Services
Section 410.1300 Purpose of This
Subpart
In order to ensure that all
unaccompanied children receive the
same minimum services and at least a
specified level of quality of those
services, ORR is proposing a set of
minimum standards and required
services. ORR proposes to establish
these standards and requirements
consistent with its authorities at 6
U.S.C. 279(b)(1) (making ORR
responsible for, among other things,
ensuring that the interest of
unaccompanied children are considered
in decisions and actions relating to their
care and custody, implementing policies
with respect to the care and placement
of unaccompanied children, and
overseeing the infrastructure and
personnel of facilities in which
unaccompanied children reside), and 8
U.S.C. 1232(c) (requiring HHS to
establish policies and programs to
ensure that unaccompanied children are
protected from certain risks, and
requiring placement of unaccompanied
children in the least restrictive setting
that is in their best interest). As
described at proposed § 410.1300, the
purpose of this subpart would be to
establish the standards and services that
care provider facilities must meet and
provide in keeping with the principles
of treating unaccompanied children in
ORR care with dignity, respect and
special concern for their particular
vulnerability. ORR welcomes public
comment on this proposal.
Section 410.1301 Applicability of This
Subpart
ORR believes that care provider
facilities serving unaccompanied
children should be required to meet
standards and requirements tailored to
their particular placement setting so that
children receive at least the same
standard of care within a given
placement setting. In proposed
§ 410.1301, ORR proposes to apply these
care provider facility standards to all
standard programs and to non-standard
programs where specified.
Section 410.1302 Minimum Standards
Applicable to Standard Programs
In proposed § 410.1302, ORR
proposes minimum standards of care
and services applied to standard
programs; these standards closely reflect
the minimum standards of care listed in
Exhibit 1 of the FSA, which ORR
believes are consistent with the concern
for unaccompanied children’s interests
expressed in the HSA and TVPRA.
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Under proposed § 410.1302(a), ORR
would require standard programs be
licensed by an appropriate state or
Federal agency, or meet other
requirements specified by ORR if
licensure is unavailable in a state to
programs providing services to
unaccompanied children, to provide
residential, group, or foster care services
for dependent children. ORR is
including this requirement to ensure
unaccompanied children are cared for
in facilities that are safe and sanitary,
and that the facilities have needed
oversight. Additionally, because there
are other state and local laws and other
ORR requirements that are critical to
ensuring the safe and sanitary
conditions at care provider facilities,
ORR would further require, in proposed
§ 410.1302(b), that standard programs
comply with all applicable state child
welfare laws and regulations and all
state and local building, fire, health and
safety codes, or other requirements
specified by ORR if licensure is
unavailable in their state to standard
programs providing services to
unaccompanied children. In many
instances, ORR requirements exceed
requirements of state law, and a
provider can comply with both without
acting inconsistent with either. If there
is a potential conflict between ORR’s
regulations and state law, ORR will
review the circumstances to determine
how to ensure that it is able to meet its
statutory responsibilities. It is important
to note, however, that if a State law or
license, registration, certification, or
other requirement conflicts with an ORR
employee’s duties within the scope of
their ORR employment, the ORR
employee is required to abide by their
Federal duties.
In order to ensure that each
unaccompanied child receives the same
minimum services that are necessary to
support their safety and wellbeing for
daily living while in ORR care, under
proposed § 410.1302(c), ORR would
establish that the services that standard
programs must provide or arrange for
each unaccompanied child in care.
Under proposed § 410.1302(c)(1), ORR
would establish minimum requirements
related to the provision of proper
physical care and maintenance,
including suitable living
accommodations, food, drinking water,
appropriate clothing, personal grooming
and hygiene items, access to toilets and
sinks, adequate temperature control and
ventilation, and adequate supervision to
protect unaccompanied children from
others. ORR is additionally proposing to
require that food be of adequate variety,
quality, and in sufficient quantity to
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supply the nutrients needed for proper
growth and development according to
the USDA Dietary Guidelines for
Americans,101 and appropriate for the
child and activity level, and that
drinking water is always available to
each unaccompanied child.
ORR believes that the unique needs
and background of each unaccompanied
child should be assessed by standard
programs to ensure that these needs are
being addressed and supported by the
standard program. Therefore, under
proposed § 410.1302(c)(2), and
consistent with ORR’s existing policy
and practice, ORR would require that
each unaccompanied child receive an
individualized needs assessment that
includes: various initial intake forms;
essential data relating to identification
and history of the unaccompanied child
and their family; identification of any
special needs the unaccompanied child
may have, including any specific
problems that appear to require
immediate intervention; an education
assessment and plan; whether an
indigenous language speaker; an
assessment of family relationships and
interaction with adults, peers and
authority figures; a statement of
religious preference and practice;
assessment of personal goals, strengths,
and weaknesses; and identifying
information regarding immediate family
members, other relatives, or friends who
may be residing in the United States and
may be able to assist in the safe and
timely release of the unaccompanied
child to a sponsor. ORR notes that the
use of ‘‘special needs’’ in this paragraph
is being included to match Appendix 1
of the FSA; it is ORR’s preference, for
the reasons articulated in the preamble
to §§ 410.1103 and 410.1106, to update
the language to ‘‘individualized needs,’’
and solicits comments on such
substitution.
Access to education services for
unaccompanied children in care from
qualified professionals is critical to
avoid lost instructional time while in
care and ensure unaccompanied
children are receiving appropriate
social, emotional and academic
supports and services. Under proposed
§ 410.1302(c)(3), ORR would require
standard programs to provide
educational services appropriate to the
unaccompanied child’s level of
development, communication skills,
and disability, if applicable. ORR
believes that this requirement helps
ensure that educational services are
tailored to meet the educational and
101 Dietary Guidelines for Americans. Available at
https://www.dietaryguidelines.gov/current-dietaryguidelines.
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developmental needs of unaccompanied
children, including children with
disabilities who may require program
modifications (such as specialized
instruction), reasonable modifications,
or auxiliary aids and services. ORR is
also proposing that educational services
are required to take place 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). The
educational services must include
instruction and educational and other
reading materials in such languages as
needed. Basic academic areas must
include science, social studies, math,
reading, writing and physical education.
The services must provide
unaccompanied children with
appropriate reading materials in
languages other than English and
spoken by the unaccompanied children
in care for use during their leisure time.
ORR notes that under 45 CFR 85.51,
care provider facilities shall also ensure
effective communication with
unaccompanied children with
disabilities. This means the
communication is as effective as
communication with children without
disabilities in terms of affording an
equal opportunity to participate in the
UC Program and includes furnishing
appropriate auxiliary aids and services
such as qualified sign language
interpreters, Braille materials, audio
recordings, note-takers, and written
materials, as appropriate for the
unaccompanied child. ORR also notes
that it is specifying additional staffing
requirements inclusive of the provision
of educational and other services
proposed under § 410.1305.
ORR strongly believes that time for
recreation is essential to supporting the
health and wellbeing of unaccompanied
children. Under proposed
§ 410.1302(c)(4), ORR would require
standard programs to have a recreation
and leisure time plan that includes daily
outdoor activity, weather permitting,
and at least one hour per day of large
muscle activity and one hour per day of
structured leisure time activities, which
does not include time spent watching
television. Activities must be increased
to at least three hours on days when
school is not in session.
The psychological and emotional
wellbeing of unaccompanied children
are an important component of their
overall health and wellbeing, and
therefore, consistent with existing
policy and practice, ORR is proposing
that these needs must be met by
standard programs. Under proposed
§ 410.1302(c)(5), ORR would require
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standard programs to provide
counseling and mental health supports
to unaccompanied children that
includes at least one individual
counseling session per week conducted
by certified counseling staff with the
specific objectives of reviewing the
unaccompanied child’s progress,
establishing new short and long-term
objectives, and addressing both the
developmental and crisis-related needs
of each unaccompanied child. Group
counseling sessions are another way
that the psychological and emotional
wellbeing of unaccompanied children
can be supported while in ORR care.
Therefore, ORR is proposing to require
under § 410.1302(c)(6) that group
counseling sessions are provided at least
twice a week. These sessions can be
informal and can take place with all
unaccompanied children present,
providing a time when new
unaccompanied children are given the
opportunity to get acquainted with the
staff, other children, and the rules of the
program. Group counseling sessions can
provide an open forum where each
unaccompanied child has an
opportunity to speak and discuss what
is on their minds and to resolve
problems. Group counseling sessions
can be informal and designed so that
unaccompanied children do not feel
pressured to discuss their private issues
in front of other children. Daily program
management may be discussed at group
counseling sessions, allowing
unaccompanied children to be part of
the decision-making process regarding
recreational and other program
activities, for example. In addition, ORR
notes that additional mental health and
substance use disorder treatment
services are provided to unaccompanied
children based on their medical needs,
including specialized care, as
appropriate, and in person and virtual
options, depending on what best fits the
child’s needs.
Under proposed § 410.1302(c)(7), ORR
would require that unaccompanied
children receive 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.
ORR believes these services are
important to supporting the social
development and meeting the cultural
needs of unaccompanied children in
standard programs.
Establishing an admissions process
that includes assessments that
unaccompanied children should receive
upon admission to a standard program
helps ensure the immediate needs of
unaccompanied children are met in a
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consistent way, that other needs are
identified and can be supported while
in ORR care, and that all
unaccompanied children are provided a
standardized orientation and
information about their care in ORR
custody. ORR is therefore proposing to
require in proposed § 410.1302(c)(8)(i)
that upon admission standard programs
must address unaccompanied children’s
immediate needs for food, hydration,
and personal hygiene needs including
the provision of clean clothing and
bedding. Under proposed
§ 410.1302(c)(8)(ii), standard programs
must conduct an initial intakes
assessment covering biographic, family,
migration, health history, substance use,
and mental health history of the
unaccompanied child. If the
unaccompanied child’s responses to
questions during any examination or
assessment indicate the possibility that
the unaccompanied child may have
been a victim of human trafficking or
labor exploitation, the care provider
facility must notify the ACF Office of
Trafficking in Persons within twentyfour (24) hours. Care providers must
also provide unaccompanied children
with a comprehensive orientation in
formats accessible to all children
regarding program intent, services, rules
(provided in writing and orally),
expectations, the availability of legal
assistance, information about U.S.
immigration and employment/labor
laws, and services from the Office of the
Ombuds that are proposed in § 410.2002
in simple, non-technical terms and in a
language and manner that the child
understands, if possible, under
proposed § 410.1302(c)(8)(iii). In
conjunction with services supporting
visitation and contact with family
members required under proposed
§ 410.1302(c)(10), newly admitted
unaccompanied children would receive
assistance with contacting family
members, following ORR guidance and
the standard program’s internal safety
procedures under proposed
§ 410.1302(c)(8)(iv). ORR notes that
medical needs upon admission are
required to be assessed
comprehensively under § 410.1307.
Finally, ORR notes that standard
programs are required under existing
§ 411.33 to provide orientation
information related to sexual abuse and
sexual harassment and must follow 45
CFR part 411, subpart E, regarding
assessment of an unaccompanied child’s
risk of sexual victimization and
abusiveness.
ORR believes the cultural, religious,
and spiritual needs of unaccompanied
children should be provided for while
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in ORR care. Therefore, under proposed
§ 410.1302(c)(9) ORR would require that
standard programs, whenever possible,
provide access to religious services of an
unaccompanied child’s choice,
celebrating culture-specific events and
holidays, being culturally aware in daily
activities as well as food menus, choice
of clothing, and hygiene routines, and
covering various cultures in educational
services. ORR notes that it operates the
UC Program in compliance with the
requirements of the Religious Freedom
Restoration Act and other applicable
Federal conscience protections, as well
as all other applicable Federal civil
rights laws and applicable HHS
regulations.102
Under proposed § 410.1302(c)(10),
ORR would require standard programs
to provide unaccompanied children
with visitation and contact with family
members (regardless of their
immigration status) which is structured
to encourage such visitation, such as
offering visitation and contact at regular,
scheduled intervals throughout the
week. Standard programs should
provide unaccompanied children with
at least 15 minutes of phone or video
contact three times a week with parents
and legal guardians, other family
members, and caregivers located in the
United States and abroad, in a private
space that ensures confidentiality and at
no cost to the unaccompanied child,
parent, legal guardian, family member,
or caregiver. ORR emphasizes that this
is the minimum amount of phone or
video time that standard programs must
provide to unaccompanied children and
that standard programs may provide
additional time over and above this
requirement, like daily phone or videos
calls. Standard programs would also be
required to respect the unaccompanied
children’s privacy during visitation
while reasonably preventing
unauthorized release of the
unaccompanied children. ORR notes
that standard programs should also
encourage in-person visitation between
unaccompanied children and parents,
legal guardians, family members, or
caregivers (unless there is a documented
reason to believe there is a safety
concern) and have policies in place to
ensure the safety and privacy of
unaccompanied children and staff, such
as an alternative public place for visits.
To facilitate the safe and timely
release of unaccompanied children to
sponsors or their family, under
proposed § 410.1302(c)(11) ORR would
require standard programs to assist with
family unification services designed to
identify and verify relatives in the
102 See
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United States as well as in foreign
countries and assistance in obtaining
legal guardianship when necessary for
release of the unaccompanied children.
Under proposed § 410.1302(c)(12),
ORR would require standard programs
to provide unaccompanied children
with information on legal services,
including the availability of free legal
assistance, and that they may be
represented by counsel at no expense to
the government; the right to a removal
hearing before an immigration judge; the
ability to apply for asylum with United
States Citizenship and Immigration
Services (USCIS) in the first instance;
and the ability to request voluntary
departure in lieu of removal. These
services are foundational to ensuring
that unaccompanied children are aware
of their legal rights and have access to
legal resources.
Finally, under proposed
§ 410.1302(c)(13), ORR would require
standard programs to provide
information about U.S. child labor laws
and education around permissible work
opportunities in a manner that is
sensitive to the age, culture and native
language of each unaccompanied child.
Cultural competency among ORR
standard programs is considered an
important component of a successful
program by ORR and under the FSA.
Under proposed § 410.1302(d), standard
programs are required to deliver the
services included in § 410.1302(c) in a
manner that is sensitive to the age,
culture, native language, and the
complex needs of each unaccompanied
child.
Under proposed § 410.1302(e),
standard programs would be required to
develop a comprehensive and realistic
individual service plan for each
unaccompanied child in accordance
with the child’s needs as determined by
the individualized needs assessment.
Individual plans would be implemented
and closely coordinated through an
operative case management system. To
ensure that service plans are addressing
meaningful and appropriate goals in
partnership with unaccompanied
children, service plans should identify
individualized, person-centered goals
with measurable outcomes and note
steps or tasks to achieve the goals, be
developed with input from the children,
and be reviewed and updated at regular
intervals. Under current practice, this is
every 30 days the child is in custody
following the child’s case review.
Unaccompanied children aged 14 and
older should be given a copy of the
plan, and unaccompanied children
under age 14 should be given a copy of
the plan when appropriate for that
particular child’s development.
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Individual plans shall be in that child’s
native language or other mode of
auxiliary aid or services and/or by the
use of clear, easily understood language,
using concise and concrete sentences
and/or visual aids and check for
understanding where appropriate.
Section 410.1303 Reporting,
Monitoring, Quality Control, and
Recordkeeping Standards
ORR conducts ongoing and multilayered monitoring of all components of
care provider facilities’ activities. These
efforts ensure consistent oversight,
accountability standards and put in
place checkpoints at regular intervals,
consistent with ORR’s authorities.103
Proposed § 410.1303 describes how ORR
would ensure that care provider
facilities are providing services as
required by these regulations. Under
proposed § 410.1303(a), ORR would
monitor all care provider facilities for
compliance with the terms of the
regulations in parts 410 and 411. ORR
is proposing the types of monitoring
activities that it would perform: desk
monitoring, routine site visits, site visits
in response to ORR or other reports, and
monitoring visits. Desk monitoring
would include ongoing oversight from
ORR headquarters. Examples of desk
monitoring include monthly check-ins
by ORR Federal staff with the care
provider facility, regular record and
report reviews, financial/budget
statements analysis, ongoing reviews of
staff background checks and vetting of
employees, subcontractors, and
grantees, and communications review.
Routine site visits would be day-long
visits to facilities to review compliance
for policies, procedures, and practices
and guidelines. Typically, routine site
visits occur on a once or twice monthly
basis, both unannounced and
announced. Site visits in response to
ORR or other requests would be visits
for a specific purpose or investigation
(e.g., regarding a corrective action plan).
Routine monitoring visits would be
conducted as part of comprehensive
reviews of all care provider facilities.
Typically, these may be week-long visits
and are usually conducted by ORR not
less than every two (2) years.
When care provider facilities are out
of compliance with ORR policies and
procedures, ORR issues a corrective
action. A list of corrective actions may
be communicated by ORR to care
103 See, e.g., 6 U.S.C. 279(b)(1) (describing ORR
responsibilities including implementing policies
with the respect to the care of unaccompanied
children, ensuring the interests of unaccompanied
children are considered, and overseeing the
infrastructure and personnel of facilities where
unaccompanied children reside).
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68939
provider facilities, for example, as part
of a report provided to the care provider
facility after a monitoring visit. Under
proposed § 410.1303(b), ORR would
issue corrective actions to care provider
facilities when it finds that a care
provider facility is out of compliance
with its regulations and sub-regulatory
policies, including guidance and terms
of its contracts and cooperative
agreements. If ORR finds a care provider
facility to be out of compliance, under
this paragraph it would communicate
the concerns in writing to the care
provider facility’s facility director or
appropriate person through a written
monitoring or site visit report, with a
list of corrective actions and child
welfare best practice recommendations,
as appropriate. ORR would request a
response to the corrective action
findings from the care provider facility
and specify a time frame for resolution
and the disciplinary consequences for
not responding within the required
timeframes. Examples of disciplinary
consequences would include stopping
placements at the care provider facility
until all corrective actions have been
addressed or possible non-renewal of
the grant for the program, as
appropriate.104
Proposed § 410.1303(c) describes
additional monitoring activities that
ORR would conduct at secure facilities.
In addition to other monitoring
activities, consistent with existing
policy and practice, ORR would review
individual unaccompanied children’s
case files to ensure unaccompanied
children placed in secure facilities are
assessed at least every 30 days for the
possibility of a transfer to a less
restrictive setting.
Proposed § 410.1303(d) describes
monitoring of long-term home care and
transitional home care facilities. ORR
proposes that long-term and transitional
foster care homes be subject to the same
types of monitoring as other ORR care,
but tailored to the foster care
arrangement. For example, under
proposed § 410.1303(d), during on site
monitoring visits, ORR would be able to
schedule a visit with the staff of a
particular home care facility to conduct
a first-hand assessment of the home
environment and the care provider’s
oversight of the home. In addition to
ORR monitoring, ORR proposes that
ORR long-term home care and
transitional home care facilities that
provide services through a sub-contract
or sub-grant be responsible for
104 ORR also notes that to the extent that a care
provider has acted contrary to the terms and
conditions of its funding, they may be subject to
consequences described at 45 CFR part 75, subpart
D.
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conducting annual monitoring or site
visits of the sub-recipient, as well as
weekly desk monitoring. Finally, ORR
proposes to require that care providers
provide the findings of such reviews to
the designated ORR point of contact.
In proposed § 410.1303(e), ORR
proposes that the care provider facilities
develop quality assurance assessment
procedures that accurately measure and
evaluate service delivery in compliance
with the requirements of this part, as
well as those delineated in 45 CFR part
411.
Under proposed § 410.1303(f), ORR
would establish care provider facility
reporting requirements. The purpose of
such reporting is to help ensure that
incidents involving unaccompanied
children are documented and responded
to in a way that protects the best
interests of children in ORR care,
including their safety and well-being.
Requirements on reporting can increase
safety for children in ORR’s care, and
promote transparency, accuracy, and
improvement in the care provided. ORR
would require care provider facilities to
report any emergency incident,
significant incident, or program-level
event to ORR, and in accordance with
any applicable Federal, State, and local
reporting laws. Accurately documenting
incidents and program-level events is
essential to ensuring the health and
wellbeing of all unaccompanied
children in care.
ORR proposes under § 410.1303(f)(1)
to require that care provider facilities
document incidents and events with
sufficient detail to ensure that any
relevant entity can facilitate any
required follow-up; document incidents
in a way that is trauma-informed and
grounded in child welfare best
practices; and update the report with
any findings or documentation that are
made after the fact. Additionally,
proposed § 410.1303(f)(2) states that
care provider facilities must never:
fabricate, exaggerate, or minimize
incidents; use disparaging or judgmental
language about unaccompanied children
in incident reports; use incident
reporting or the threat of incident
reporting as a way to manage the
behavior of unaccompanied children or
for any other illegitimate reason. By
‘‘illegitimate reason,’’ ORR means a
reason that is unrelated to the purposes
of incident reporting, which as stated
above are to help ensure that incidents
involving unaccompanied children are
documented and responded to in a way
that protects the best interest of children
in ORR care, including their safety and
well-being. Further, illegitimate reasons
include those that would be
inconsistent with ORR’s statutory
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responsibilities (e.g., to ensure that the
interest of the child are considered in
decisions and actions relating to the
care and custody of an unaccompanied
child, to place unaccompanied children
in the least restrictive setting that is in
the best interest of the child); or
inconsistent with these proposed
regulations and sub-regulatory policies,
including ORR guidance and the terms
of its contracts or cooperative
agreements.
ORR is proposing limitations on how
certain reports may be used by ORR or
care provider facilities. ORR believes
that these limitations will protect the
best interests of unaccompanied
children and put their safety first as
well as help ensure that reports do not
become a potential hindrance to
placement in the least restrictive setting.
Under proposed § 410.1303(f)(3), ORR
would prohibit care provider facilities
from using reports of significant
incidents as a method of punishment or
threat towards any child in ORR care for
any reason. Under proposed
§ 410.1303(f)(4), ORR is proposing that
the existence of a report of a significant
incident may not be used by ORR as a
basis for an unaccompanied child’s step
up to a restrictive placement or as the
sole basis for a refusal to step a child
down to a less restrictive placement.
Care provider facilities would likewise
be prohibited from using the existence
of a report of a significant incident as a
basis for refusing an unaccompanied
child’s placement in their facilities.
Reports of significant incidents could be
used as examples or citations of
concerning behavior; however, the
existence of a report itself would not be
sufficient for a step up, a refusal to step
down, or a care provider facility to
refuse a placement.
ORR notes that 45 CFR part 411,
subpart G, requires reporting to ORR of
any allegation, suspicion, or knowledge
of sexual abuse, sexual harassment,
inappropriate sexual behavior, and Staff
Code of Conduct 105 violations occurring
in ORR care, along with any retaliatory
actions resulting from reporting such
incidents; ORR also notes that part 411
requires compliance with required staff
background checks at subpart B.
ORR also notes that in proposed
§ 410.1307(c) ORR proposes to require
that ORR monitor compliance with the
requirements to issue required notices
and documentation for medical services
requiring heightened ORR involvement,
as well as the other listed requirements.
105 ORR Unaccompanied Children Policy Guide
4.3.5. Available at https://www.acf.hhs.gov/orr/
policy-guidance/unaccompanied-children-programpolicy-guide-section-4#4.3.5.
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ORR proposes to initiate a Graduated
Corrective Action Plan, with reporting
requirements increasing along with
oversight measures if programs remain
non-compliant. Please see proposed
§ 410.1307(c) for more discussion.
Safeguarding and maintaining the
confidentiality of unaccompanied
children’s case file records is critical to
carrying out ORR’s responsibilities
under the HSA and the TVPRA. The
HSA places responsibility on ORR for
implementing policies with respect to
the care and placement of
unaccompanied children, ensuring that
the interests of the child are considered
in decisions and actions relating to their
care and custody, overseeing the
infrastructure and personnel of facilities
in which unaccompanied children
reside, and maintaining data on
unaccompanied children.106
Additionally, the TVPRA places
responsibility for the care and custody
of unaccompanied children on HHS and
requires HHS to ‘‘establish policies and
programs to ensure that unaccompanied
alien children in the United States are
protected from traffickers and other
persons seeking to victimize or
otherwise engage such children in
criminal, harmful, or exploitative
activity, including policies and
programs reflecting best practices in
witness security programs.’’ 107 These
program statutes recognize that ORR is
responsible for maintaining
unaccompanied children’s records and
data and that unaccompanied children
are vulnerable persons, and therefore,
the privacy and confidentiality of their
records is paramount. Unaccompanied
children may have histories of abuse,
may be seeking safety from threats of
violence, or may have been trafficked or
smuggled into the U.S. Accordingly,
HHS’ longstanding policy is to protect
from disclosure information about
unaccompanied children that could
compromise the children’s and
sponsors’ location, identity, safety, and
privacy.
Consistent with its statutory
responsibilities, ORR proposes in
§ 410.1303(g) that all care provider
facilities must develop, maintain, and
safeguard the individual case file
records of unaccompanied children. The
provisions in § 410.1303(g) would apply
to all care provider facilities responsible
for the care and custody of
unaccompanied children, whether the
program is a standard program or not.
ORR notes that under its current
policies the records of unaccompanied
children generated in the course of post106 See
107 See
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8 U.S.C. 1232(c)(1); see also id. at 1232(b).
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release services (PRS) are not always
considered to be included in the
individual case files of unaccompanied
children. However, under this proposed
rule, ORR would consider all
unaccompanied children’s records,
including those produced for PRS, to be
included in the individual case file
records of unaccompanied children,
whether generated while the child is in
ORR custody or after release to their
sponsor.108 PRS records are created by,
or on behalf of, ORR and assist ORR in
coordinating supportive services for the
child and their sponsor in the
community where the child resides, as
authorized under 8 U.S.C. 1232(c)(3)(B),
which provides HHS authority to
‘‘conduct follow-up services in cases
involving children with mental health
or other needs who could benefit from
ongoing assistance from a social welfare
agency.’’ ORR facilitates the provision of
PRS services through its network of PRS
providers under cooperative agreements
with ORR.
Under proposed § 410.1303(g)(1), ORR
would require care provider facilities
and PRS providers to maintain the
confidentiality of case file records and
protect them from unauthorized use or
disclosure. ORR also proposes in
§ 410.1303(g)(2) that the records in
unaccompanied children’s case files are
the property of ORR, whether in the
possession of ORR a care provider
facility, or PRS provider, including
those entities that receive funding from
ORR through cooperative agreements,
and care provider facilities and PRS
providers may not release
unaccompanied children’s case file
records or information contained in the
case files for purposes other than
program administration without prior
approval from ORR. This provision
allows ORR to ensure that disclosure of
unaccompanied children’s records is
compatible with program goals, to
ensure the safety and privacy of
unaccompanied children, to not
discourage unaccompanied children
from disclosing information relevant to
their care and placement, and to prevent
potential sponsors from being deterred
from sponsoring unaccompanied
children. Further, under
§ 410.1303(g)(3), ORR would require
care provider facilities and PRS
providers to provide the case files of
unaccompanied children to ORR
immediately upon ORR’s request.
Under § 410.1303(g)(4), ORR proposes
that employees, former employees, or
108 See 8 FR 46682 (July 18, 2016) (stating that
‘‘[t]he case file contains information that is
pertinent to the care and placement of
unaccompanied children, including . . . postrelease service records[.]’’).
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contractors of a care provider facility or
PRS provider must not disclose
unaccompanied children’s case file
records or provide information about
unaccompanied children, their
sponsors, family or household members
to anyone except for purposes of
program administration, without first
providing advance notice to ORR of the
request, allowing ORR to ensure that
disclosure of unaccompanied children’s
information is compatible with program
goals and ensures the safety and privacy
of unaccompanied children.
Safeguarding unaccompanied children’s
information is consistent with ORR’s
responsibilities under its program
statutes, including 8 U.S.C. 1232(c)(1),
which requires the Secretary to establish
‘‘policies and programs reflecting best
practices in witness security programs,’’
and House Report 116–450
recommendations to restrict sharing
certain information with other Federal
agencies. A request for UC case file
information must be made directly to
ORR, allowing ORR to consider whether
disclosure meets these requirements, is
in the best interest of the
unaccompanied child, safeguards the
unaccompanied child’s and their
sponsor’s, family and household
member’s personally identifiable and
protected health information, and is
compatible with statutory program goals
and all applicable Federal laws and
regulations.
Finally, for purposes of facilitating
efficient program administration, ORR
policy is to pre-approve certain limited
disclosures by ORR grantees and
contractors such as (1) registration for
school and for other routine educational
purposes; (2) routine medical, dental, or
mental health treatment; (3) emergency
medical care; (4) to obtain services for
unaccompanied children in accordance
with ORR policies; and (5) pursuant to
all available whistleblower protection
laws. This pre-approved disclosure
policy allows ORR to protect the privacy
and safety of each unaccompanied child
while also ensuring that certain routine
and emergency services and treatment
are provided expeditiously without
waiting for approval from ORR.
Proposed § 410.1303(h) would require
standard programs to maintain adequate
records and make regular reports as
required by ORR that permit ORR to
monitor and enforce the regulations in
parts 410 and 411 and other
requirements and standards as ORR may
determine are in the best interests of
each unaccompanied child. ORR
welcomes public comment on these
proposals.
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Section 410.1304 Behavior
Management and Prohibition on
Seclusion and Restraint
Proposed § 410.1304 describes the
requirements for behavior management
and the prohibition on seclusion and
restraint. ORR proposes these
requirements consistent with its
statutory responsibilities to implement
policies with respect to the care and
placement of unaccompanied children,
to place unaccompanied children in the
least restrictive setting available that is
in their best interest, and to ensure the
interest of unaccompanied children are
considered in decisions and actions
related to their care and custody. ORR
understands that its responsibilities
apply to each unaccompanied child in
its care, including unaccompanied
children who are subject to behavioral
interventions, as well as to other
unaccompanied children placed at the
same care provider facility as an
unaccompanied child who are subject to
behavioral interventions.
Effective behavior management is
critical to supporting the health, safety,
and wellbeing of unaccompanied
children in ORR care and can help
prevent emergencies and safety
situations. Consistent with ORR’s
statutory responsibilities, proposed
§ 410.1304(a) would incorporate FSA
paragraph 11 requirements and child
welfare best practices by requiring care
provider facilities to have behavior
management strategies that include
techniques for care provider facilities to
follow. Under proposed § 410.1304(a),
care provider facilities must develop
behavior management strategies that
include evidence-based, traumainformed, and linguistically responsive
program rules and behavior
management policies that take into
consideration the range of ages and
maturity of unaccompanied children in
the program and that are culturally
sensitive to the needs of each
unaccompanied child. Examples of
evidence-based standards and
approaches may include setting clear
and healthy expectations and limits for
their behaviors and the behaviors of
others, creating a healthy structured
environment with routines and
schedules, utilizing positive
reinforcement strategies and avoiding
negative reinforcement strategies, and
fostering a supportive environment that
encourages cooperation, problemsolving, healthy de-escalation strategies,
and positive behavioral management
skills. Further, ORR proposes that the
behavior management strategies must
not use any practices that involve
negative reinforcement or involve
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consequences or measures that are not
constructive or not logically related to
the behavior being regulated. This
would include, as proposed under
§ 410.1304(a)(1), prohibiting the use or
threatened use of corporal punishment,
significant incident reports as
punishment, and unfavorable
consequences related to family/sponsor
unification or legal matters (e.g.,
immigration, asylum). It would also
include prohibiting the use of use forced
chores or activities that serves no
purpose except to demean or humiliate
an unaccompanied child, forced
physical movement, such as push-ups
and running, or uncomfortable physical
positions as a form of punishment or
humiliation; search an unaccompanied
child’s personal belongings solely for
the purpose of behavior management,
and medical interventions that are not
prescribed by a medical provider acting
within the usual course of professional
practice for a medical diagnosis or that
increase risk of harm to the
unaccompanied child or others. Under
proposed § 410.1304(a)(2), ORR would
require that any sanctions employed not
adversely affect either an
unaccompanied child’s health or
physical, emotional, or psychological
well-being; or deny an unaccompanied
child meals, hydration, sufficient sleep,
routine personal grooming activities,
exercise (including daily outdoor
activity), medical care, correspondence
or communication privileges, or legal
assistance. ORR notes that under
proposed § 410.1305 it would require
training for care provider facility staff
on the behavior management strategies,
including the use of de-escalation
strategies. Under proposed
§ 410.1304(a)(3), ORR is prohibiting the
use prone physical restraints, chemical
restraints, or peer restraints for any
reason in any care provider facility
setting.
Under proposed § 410.1304(b),
involvement of law enforcement would
be a last resort and a call by a care
provider facility to law enforcement
may trigger an evaluation of staff
involved regarding their qualifications
and training in trauma-informed, deescalation techniques. ORR notes that
calls to law enforcement are not
considered a behavior management
strategy, and care provider facilities are
expected to apply other means to deescalate concerning behavior. But in
some cases, such as emergencies or
where the safety of unaccompanied
children or staff are at issue, care
provider facilities may need to call 9–
1–1. ORR also notes that proposed
§ 410.1302(f) describes requirements for
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care provider facilities regarding the
sharing of information about
unaccompanied children. Additionally,
because ORR would like to ensure law
enforcement is called in response to an
unaccompanied child’s behavior only as
a last resort in emergencies or where the
safety of unaccompanied children or
staff are at issue, ORR is requesting
comment on the process ORR should
require care provider facilities to follow
before engaging law enforcement, such
as the de-escalation strategies that must
first be attempted and the specific sets
of behaviors exhibited by
unaccompanied children that warrant
intervention from law enforcement.
Proposed § 410.1304(c) would
prohibit standard programs and RTCs
from the use of seclusion as a behavioral
intervention. ORR notes that this
prohibition on the use of seclusion
specifically relates to its potential use as
a behavioral intervention, and not to a
medical need for isolation or
quarantine, as discussed in
§ 410.1307(a)(10). Standard programs
and RTCs would also be prohibited from
using restraints, except as described at
proposed § 410.1304(d) and (f). In
emergency safety situations only, ORR
is proposing that standard programs and
RTCs are permitted to use personal
restraint under § 410.1304(d). ORR
believes that emergency safety
situations should be prevented
wherever possible and that personal
restraint should only be used after deescalation strategies and less restrictive
approaches have been attempted and
failed. As such, ORR emphasizes its
proposed requirements under
§ 410.1304(a) that behavior management
strategies used by care provider
facilities be evidence-based, traumainformed, and linguistically responsive.
ORR further emphasizes its
requirements under proposed
§ 410.1305 that staff must be trained in
these behavior management strategies,
including de-escalation techniques,
In secure facilities, not including
RTCs, there may be situations where an
unaccompanied child becomes a danger
to themselves, other unaccompanied
children, care provider facility staff, or
property. As a result, secure facilities
may need to employ more restrictive
forms of behavior management than
shelters or other types of care provider
facilities in emergency safety situations
or during transport to or at immigration
court or asylum interviews when there
are certain imminent safety concerns.
ORR notes that under proposed
§ 410.1303(f) and ORR’s current policy,
all care provider facilities, regardless of
setting, are required to report any
emergency incident, significant
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incident, or program-level event to ORR,
and in accordance with any applicable
Federal, State, and local reporting laws.
Therefore, ORR is proposing under
§ 410.1304(e)(1) to allow secure
facilities except for RTCs to use
personal restraints, mechanical
restraints, and/or seclusion in
emergency safety situations. ORR notes
that under proposed § 410.1304(a)(3)
that the use of prone physical restraints,
chemical restraints, or peer restraints is
prohibited for any reason for all care
provider facilities, including secure
facilities. Proposed § 410.1304(e)(2)
would allow secure facilities to restrain
an unaccompanied child for their own
immediate safety or that of others
during transport to an immigration court
or an asylum interview. ORR is
proposing under proposed
§ 410.1304(e)(3) that secure facilities
may restrain an unaccompanied child
while at an immigration court or asylum
interview if the child exhibits imminent
runaway behavior, makes violent
threats, demonstrates violent behavior,
or if the secure facility has made an
individualized determination that the
child poses a serious risk of violence or
running away if the child is
unrestrained in court or the interview.
ORR notes that while secure facilities
may have safety or runaway risk
concerns for which they deem restraints
necessary for certain unaccompanied
children, immigration judges retain
discretion to provide input as to
whether the unaccompanied child
remains in restraints while in their
courtroom. ORR is proposing to require
under § 410.1304(e)(4) that secure
facilities must provide all mandated
services under this subpart to an
unaccompanied child to the greatest
extent practicable under the
circumstances while ensuring the safety
of the unaccompanied child, other
unaccompanied children at the secure
facility, and others. Finally, under
proposed § 410.1304(f) ORR would
allow care provider facilities to use soft
restraints (e.g., zip ties and leg or ankle
weights) only during transport to and
from secure facilities, and only when
the care provider believes a child poses
a serious risk of physical harm to self or
others or a serious risk of running away
from ORR custody.
Section 410.1305 Staff, Training, and
Case Manager Standards
Having standards for staff, training,
and case managers is in the best interest
of unaccompanied children and is
supportive to their health and
development while in ORR care.
Proposed § 410.1305 would establish
certain requirements consistent with
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ORR’s authority to oversee the
infrastructure and personnel of facilities
in which unaccompanied children
reside.109 Under proposed
§ 410.1305(a), ORR would require that
standard programs, restrictive
placements, and post-release service
providers, must provide training to all
staff, contractors, and volunteers; and
that training ensures that staff,
contractors, and volunteers understand
their obligations under ORR regulations
and policies and are responsive to the
challenges faced by staff and
unaccompanied children at the facility.
ORR anticipates that examples of
training topics under this proposed
paragraph would include the rights of
unaccompanied children, including to
educational services, creating bias free
environments, supporting children with
disabilities, supporting the mental
health needs of unaccompanied
children, trauma, child development,
prevention of sexual abuse, the
identification of victims of human
trafficking, and racial and cultural
sensitivity. Standard programs and
restrictive placements would also be
required to ensure that staff are
appropriately trained on its behavior
management strategies, including deescalation techniques, as established
pursuant to proposed § 410.1304. All
trainings would be required to be
tailored to the unique needs, attributes,
and gender of the unaccompanied
children in care at the individual care
provider facility. For example, staff who
work with early childhood
unaccompanied children should be
provided training in early childhood
care best practices. Additionally, case
managers should be trained on child
welfare best practices before providing
services to children.110 Care provider
facilities must document the completion
of all trainings in personnel files. In
addition to training, ORR would require
all staff to complete background check
requirements and vetting for their
respective roles prior to service
provision and care provider facilities
would need to provide documentation
to ORR of compliance.
Under proposed § 410.1305(b)
standard programs and restrictive
placements would be required to meet
the staff to child ratios established by
their respective states or other licensing
entities, or ratios established by ORR if
state licensure is not available. Under
current practice, ORR generally requires
109 See
6 U.S.C. 279(b)(1)(G).
Challenges Within ORR and the
ORR Emergency Intake Site at Fort Bliss Hindered
Case Management for Children. Available at:
https://oig.hhs.gov/oei/reports/OEI-07-2100251.pdf.
110 Operational
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staffing ratios of a minimum of 1 staff
to 8 unaccompanied children during the
day and 1 staff to 16 unaccompanied
children at night while children are
sleeping. If, however, state requirements
require a stricter staff to child ratio, then
under proposed § 410.1305(b), ORR
likewise would require the care
provider to abide by that smaller ratio.
Standard programs and restrictive
placements are required to provide case
management services in their facilities.
Effective case management systems and
policy are important to ensuring care
provider facilities are effective in
attaining positive outcomes for
unaccompanied children. Areas for
attention include specifying case
manager to unaccompanied child ratios
that take the occupancy level of the
facility into account, ensuring that case
management staff are site-based and
provide their services in person, and
ensuring that case management staffing
levels are appropriate to meet ORR’s
standards for the length of care of
unaccompanied children. ORR is
proposing to require under § 410.1305(c)
that standard programs and restrictive
placements have case managers based at
the facility’s site. To meet the unique
needs of a given facility, ORR could
then determine the appropriate ratio of
case managers per unaccompanied child
through its cooperative agreements and
contracts with care provider facilities, as
appropriate. This will allow ORR to
include changes in the staffing ratio
relative to the occupancy of
unaccompanied children at the facility
and consider the policies related to
unaccompanied children’s length of
stay.
Section 410.1306 Language Access
Services
Proposed § 410.1306 describes
requirements to provide language
accessibility for unaccompanied
children. ORR believes that it is
important to establish specific,
minimum language access requirements,
which are critical to ensuring that
unaccompanied children understand
their rights, the release process, and the
services they may receive while in ORR
care.
Under proposed § 410.1306(a),
standard programs and restrictive
placements would be required, to the
greatest extent practicable, to
consistently offer all unaccompanied
children the option of interpretation and
translation services in their native or
preferred language, depending on their
preference, and in a way they
understand to the greatest extent
practicable. ORR notes that under 45
CFR 85.51, standard programs and
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restrictive placements shall also ensure
effective communication with
unaccompanied children with
disabilities. This includes furnishing
appropriate auxiliary aids and services
such as qualified sign language
interpreters, Braille materials, audio
recordings, note-takers, and written
materials, as appropriate for the
unaccompanied child. Under ORR’s
existing policies, standard programs and
restrictive placements are required to
make every effort possible to provide
interpretation and translation services;
however, ORR believes it is important to
propose the additional requirement that
standard programs and restrictive
placements consistently offer each
unaccompanied child the option of
effective interpretation and translation
services to ensure meaningful and
timely access to these services. If
standard programs and restrictive
placements are unable to obtain a
qualified interpreter or translator in the
unaccompanied children’s native or
preferred language, depending on their
preference, after taking reasonable
efforts, standard programs and
restrictive placements would then be
required to consult with qualified ORR
staff (under current policy, the Federal
Field Specialist and Project Officer) for
guidance on how to provide meaningful
access to their programs and activities to
children with limited English
proficiency. Standard programs and
restrictive placements would be
permitted to use professional telephonic
interpreter services after they take
reasonable efforts to obtain in-person,
qualified interpreters (as defined). ORR
believes that these proposals strike a
good balance between the importance of
interpretation and translation services
and the reality of the vast array of
language access needs of
unaccompanied children. Standard
programs and restrictive placements
would also be required to translate all
documents and materials shared with
unaccompanied children in their native
or preferred language, depending on
their preference, and in a timely
manner.
To ensure efficient and reliable access
to necessary interpretation and
translation services during placement,
under § 410.1306(b) ORR would be
required to make placement decisions
informed by language access
considerations. To the extent it is
appropriate and practicable, giving due
consideration to unaccompanied child’s
individualized needs, ORR would place
unaccompanied children with similar
language needs within the same
standard program or restrictive
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placement. ORR believes that this
would further ensure the efficient use of
resources while also considering the
need for timely and appropriate
placement.
Proposed § 410.1306(c) would codify
language access requirements during
intake, orientation, and while informing
unaccompanied children of their rights
to confidentiality and limits of
confidentiality of information while in
ORR care. Under current ORR practice,
among other things, standard programs
and heightened supervision facilities
complete an initial intakes assessment
of an unaccompanied child; provide a
standardized orientation that is
appropriate for the age, culture,
language, and accessibility needs of the
unaccompanied child; and complete a
UC Assessment that covers biographic,
family, legal/migration, medical,
substance use, and mental health
history and is subject to ongoing
updates. Under current practice,
standard programs and restrictive
placements provide unaccompanied
children with a Disclosure Notice,
which is an ORR document explaining
the limits to the confidentiality of
information unaccompanied children
share while in ORR care and custody, as
well as the types of information that
standard programs and restrictive
placements and ORR must share if
disclosed by the unaccompanied
children for the safety of the
unaccompanied children or for the
safety of others.
Under proposed § 410.1306(c)(1),
standard programs and restrictive
placements would be required both to
provide a written notice of the limits of
confidentiality they share while in ORR
care and custody, and to orally explain
the contents of the written notice to the
unaccompanied children, in their native
preferred language, depending on their
preference, and in a way they can
effectively understand. Standard
programs and restrictive placements
would be required to do both prior to
the completion of the UC Assessment,
and prior to unaccompanied children
starting counseling services as proposed
at § 410.1302(c)(5) and (6).
Under proposed § 410.1306(c)(2),
standard programs and restrictive
placements would be required to ensure
assessments and initial medical exams
are conducted in the unaccompanied
children’s native or preferred language,
depending on their preference, and in a
way they effectively understand.
Proposed § 410.1306(c)(3) would require
that standard programs and heightened
supervision facilities provide a
standardized and comprehensive
orientation to all unaccompanied
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children within 48 hours of admission
in the unaccompanied children’s native
or preferred language and in a way they
effectively understand regardless of
spoken language, reading
comprehension level, or disability.
Further, under proposed
§ 410.1306(c)(4), for all step-ups to and
step-downs from restrictive placements,
standard programs and restrictive
placements would be required to
specifically explain to the
unaccompanied children why they were
placed in a restrictive placement or, if
stepped down, why their placement was
changed, while doing so in the
unaccompanied children’s native or
preferred language, and in a way they
effectively understand.
Under proposed § 410.1306(c)(5), if
the unaccompanied children are not
literate, or if documents provided
during intakes and/or orientation are
not in a language that they can read and
effectively understand, standard
programs and restrictive placements
would be required to have a qualified
interpreter orally translate or sign
language translate and explain all the
documents in the unaccompanied
children’s native or preferred language,
depending on their preference, and
confirm with the unaccompanied
children that they fully comprehend all
materials. Additionally, at proposed
§ 410.1306(c)(6) and (7), standard
programs and restrictive placements
would be required to provide
unaccompanied children information
regarding grievance and ORR’s sexual
abuse and harassment policies and
procedures in the unaccompanied
children’s native or preferred language,
based on their preference, and in a way
they effectively understand. Under
§ 410.1306(c)(8), standard programs and
restrictive placements would be
required to notify the unaccompanied
children that standard programs and
restrictive placements will
accommodate the unaccompanied
children’s language needs while they
remain in ORR care.
Under proposed § 410.1306(c)(9), with
respect to all requirements described in
proposed § 410.1306(c), standard
programs and restrictive placements
would be required to document in each
unaccompanied children’s case file that
they acknowledged that they effectively
understand what was provided to them.
Proposed § 410.1306(d) describes
requirements regarding language access
and education. In order to provide
meaningful education services to
unaccompanied children, ORR believes
that it is important to ensure that
educational services are presented to
unaccompanied children in a language
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that is accessible to them. Proposed
§ 410.1306(d)(1) would require standard
programs and heightened supervision
facilities to provide educational
instruction and relevant materials in a
format and language accessible to all
unaccompanied children, regardless of
their native or preferred language,
including by providing in-person
interpretation, professional telephonic
interpretation, and written translations,
all by qualified interpreters or
translators. Proposed § 410.1306(d)(2)
would require standard programs and
heightened supervision facilities to
provide recreational reading materials
in formats and languages accessible to
all unaccompanied children, which
would facilitate their out-of-class
enrichment and engagement. Proposed
§ 410.1306(d)(3) would require standard
programs and heightened supervision
facilities to translate all ORR-required
documents provided to unaccompanied
children for use in educational lessons,
in formats and languages accessible to
all unaccompanied children.
ORR believes that it is important to
ensure that the unaccompanied
children’s religious and cultural
expressions, practices, and identities are
accommodated to the extent practicable.
Accordingly, under proposed
§ 410.1306(e), when an unaccompanied
child makes a reasonable request for
religious and/or cultural information or
other religious/cultural items, such as
books or clothing, the standard program
or heightened supervision facility
would be required to provide the
applicable items, in the unaccompanied
child’s native or preferred language,
depending on the unaccompanied
child’s preference. At the same time,
with respect to the obligations of care
provider facilities, ORR notes that it
operates the Unaccompanied Children
program in compliance with the
requirements of the Religious Freedom
Restoration Act and other applicable
Federal conscience protections, as well
as all other applicable Federal civil
rights laws and applicable HHS
regulations.111
ORR proposes in § 410.1306(f) that
standard programs and restrictive
placements would be required to utilize
any necessary professional
interpretation or translation services
needed to ensure meaningful access by
an unaccompanied child’s parent(s),
guardian(s), and/or potential sponsor(s).
Standard programs and restrictive
placements would also be required to
translate all documents and materials
shared with the parent(s), guardian(s),
and/or potential sponsors in their native
111 See
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or preferred language, depending on
their preference. ORR notes that under
45 CFR 85.51, standard programs and
restrictive placements shall also ensure
effective communication with parent(s),
guardian(s), and/or potential sponsor(s)
with disabilities.
ORR acknowledges the importance of
making appropriate interpretation and
translation services available to all
unaccompanied children while
receiving healthcare services so that
they understand the services that are
being offered and/or provided. Under
proposed § 410.1306(g), while
unaccompanied children are receiving
healthcare services, standard programs
and restrictive placements would be
required to ensure that unaccompanied
children are able to communicate with
physicians, clinicians, and other
healthcare staff in their native or
preferred language, depending on their
preference, and in a way they effectively
understand, prioritizing services from
an in-person, qualified interpreter
before using professional telephonic
interpretation services.
Section 410.1306(h) proposes
language access requirements for
standard programs and restrictive
placements while unaccompanied
children receive legal services. To
facilitate unaccompanied children
receiving effective legal services, ORR
believes that it is essential that
unaccompanied children understand
the legal services offered to them and
the process for participation in removal
proceedings post-release, and
accordingly, unaccompanied children
should be provided with meaningful
access to language services as relates to
legal services. ORR is proposing to
require that standard programs and
restrictive placements make qualified
interpretation and translation services
available upon request to
unaccompanied children, child
advocates, and legal service providers
while unaccompanied children are
being provided with legal services.
Additionally, ORR proposes in
§ 410.1306(i) that interpreters and
translators would be required to keep
information about the unaccompanied
children’s cases and/or services
confidential from non-ORR grantees,
contractors, and Federal staff.
Section 410.1307 Healthcare Services
The provision of healthcare to
unaccompanied children is
foundational to their health and
wellbeing and to supporting their
childhood development. Therefore,
proposed § 410.1307(a) would codify
that ORR shall ensure the provision of
appropriate routine medical and dental
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care; access to medical services
requiring heightened ORR involvement,
consistent with § 410.1307(c); family
planning services; and emergency
health services in standard programs
and restrictive placements. This
proposed paragraph would codify
corresponding requirements from
Exhibit 1 of the FSA. Further, under
proposed § 410.1307(b), care providers
must establish a network of licensed
healthcare providers, including
specialists, emergency care services,
mental health practitioners, and dental
providers that will accept ORR’s fee-forservice billing system under proposed
§ 410.1307(b)(1). To assess the unique
healthcare needs of each
unaccompanied child, consistent with
existing policy and practice, ORR is
including a requirement that
unaccompanied children receive a
complete medical examination
(including screening for infectious
disease) within two business days of
admission unless an unaccompanied
child was recently examined at another
facility and if an unaccompanied child
is still in ORR custody 60 to 90 days
after admission, an initial dental exam,
or sooner if directed by state licensing
requirements under proposed
§ 410.1307(b)(2).
In order to prevent the spread of
diseases in care provider facilities and
avoid preventable illness among
unaccompanied children, ORR is also
proposing to require appropriate
immunizations as recommended by the
Advisory Committee on Immunization
Practices’ Child and Adolescent
Immunization Schedule and approved
by HHS’ Centers for Disease Control and
Prevention under proposed
§ 410.1307(b)(3). To aid in the early
detection of potential health conditions
and ensure unaccompanied children’s
health conditions are appropriately
managed, under proposed
§ 410.1307(b)(4) ORR would require an
annual physical examination, including
hearing and vision screening, and
follow-up care for acute and chronic
conditions. ORR notes that it facilitates
an array of health services, such as
medications, surgeries, or other followup care, that have been ordered or
prescribed by a healthcare provider.
ORR would require the administration
of prescribed medication and special
diets under proposed § 410.1307(b)(5)
and appropriate mental health
interventions when necessary under
proposed § 410.1307(b)(6). ORR notes
that it is proposing to require routine
individual and group counseling session
at proposed § 410.1302(c)(5) and (6).
There are a number of policies and
procedures related to medical care and
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medications that ORR is proposing to
require in order to promote health and
safety at their facilities. Under proposed
§ 410.1307(b)(7), care provider facilities
must have policies and procedures for
identifying, reporting, and controlling
communicable diseases that are
consistent with applicable State, local,
and Federal laws and regulations. Under
proposed § 410.1307(b)(8), care provider
facilities must have policies and
procedures that enable unaccompanied
children, including those with language
and literacy barriers, to convey written
and oral requests for emergency and
non-emergency healthcare services.
Finally, under proposed
§ 410.1307(b)(9), ORR would require
care provider facilities have policies and
procedures based on state or local laws
and regulations to ensure the safe,
discreet, and confidential provision of
prescription and nonprescription
medications to unaccompanied
children, secure storage of medications,
and controlled administration and
disposal of all drugs. A licensed
healthcare provider must write or orally
order all nonprescription medications
and oral orders must be documented in
the unaccompanied child’s file.
At times, the use of medical isolation
or quarantine for unaccompanied
children may be required to prevent the
spread of an infectious disease due to a
potential exposure. Proposed
§ 410.1307(b)(10) would allow
unaccompanied children to be placed in
medical isolation and excluded from
contact with general population when
medically necessary to prevent the
spread of an infectious disease due to a
potential exposure, protect other
unaccompanied children and care
provider facility staff for a medical
purpose or as required under state,
local, or other licensing rules, as long as
the medically required isolation is
limited to only the extent necessary to
ensure the health and welfare of the
unaccompanied child, other
unaccompanied children at a care
provider facility and care provider
facility staff, or the public at large. To
ensure that unaccompanied children
have access to necessary services during
medical isolation, ORR is proposing that
care provider facilities must provide all
mandated services under this subpart to
the greatest extent practicable under the
circumstances of the medical isolation.
A medically isolated unaccompanied
child still must be supervised under
state, local, or other licensing ratios,
and, if multiple unaccompanied
children are in medical isolation, they
should be placed in units or housing
together (as practicable, given the nature
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or type of medical issue giving rise to
the requirement for isolation in the first
instance).
In § 410.1307(c), ORR proposes
requirements ensuring access to medical
care for unaccompanied children. At
§ 410.1307(c)(1), consistent with the
requirements of proposed § 410.1103,
ORR proposes that to the greatest extent
possible, an unaccompanied child
whom ORR determines requires medical
care or who reasonably requests such
medical care will be placed in a care
provider facility that has available and
appropriate bed space, is able to care for
such an unaccompanied child, and is in
a location where the relevant medical
services are accessible. This proposal
aligns with proposed subpart B,
Determining the Placement of an
Unaccompanied Child at a Care
Provider Facility, which would require
that ORR place unaccompanied children
in the least restrictive setting that is in
the best interest of the child and
appropriate to the child’s age and
individualized needs, and that ORR
considers ‘‘any specialized services or
treatment required’’ when determining
placement of all unaccompanied
children.
Additionally, ORR proposes that if an
initial placement in a care provider
facility that meets the requirements in
§ 410.1307(c)(1) is not immediately
available or if a medical need or
reasonable request, as described in
§ 410.1307(c)(1), arises after the Initial
Medical Exam, ORR shall transfer the
unaccompanied child to a care provider
facility that is able to accommodate the
medical needs of the unaccompanied
child. If the medical need is identified,
or the reasonable request is received,
after the Initial Medical Exam, the care
provider facility shall immediately
notify ORR. This proposal aligns with
subpart G, Transfers, which would
require transfer of an unaccompanied
child within the ORR care provider
facility network when it is determined
that an alternate placement for the
unaccompanied child that would best
meet the child’s individual needs. Care
provider facilities would be required to
follow the process proposed in subpart
G such as submitting a transfer
recommendation to ORR for approval
within three (3) business days of
identifying the need for a transfer.
As described in § 410.1307(c)(2), ORR
proposes to codify requirements
ensuring that unaccompanied children
are provided transportation to access
medical services, including across state
lines if necessary, and associated
ancillary services. This would ensure
unaccompanied children can access
appointments with medical specialists
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(e.g., neonatologists, oncologists,
pediatric cardiologists, pediatric
surgeons, or others), family planning
services, prenatal services and
pregnancy care, or care that may be
geographically limited including but not
limited to an unaccompanied child’s
need or request for medical services
requiring heightened ORR involvement.
This proposal is consistent with current
policy, as noted in subpart E,
Transportation of an Unaccompanied
Child, that ORR, or its care provider
facilities, provide transportation for
purposes of service provision including
medical services. If there is a potential
conflict between ORR’s regulations and
state law, ORR will review the
circumstances to determine how to
ensure that it is able to meet its statutory
responsibilities. It is important to note,
however, that if a State law or license,
registration, certification, or other
requirement conflicts with an ORR
employee’s duties within the scope of
their ORR employment, the ORR
employee is required to abide by their
Federal duties.
These proposals maintain existing
policy that ORR must not prevent
unaccompanied children in ORR care
from accessing healthcare services,
which may include medical services
requiring heightened ORR involvement
or family planning services, and must
make reasonable efforts to facilitate
access to those services if requested by
the unaccompanied child.112 This
includes providing transport across state
lines and associated ancillary services if
necessary to access appropriate medical
services, including access to medical
specialists and medical services
requiring heightened ORR involvement.
Under these proposals, ORR will
continue to facilitate access to medical
services requiring heightened ORR
involvement, including access to
abortions, in light of ORR’s statutory
responsibility to ensure that the
interests of the unaccompanied child
112 See, e.g., Administration for Children and
Families. FIELD GUIDANCE—Issued Oct. 1, 2021,
revised Nov. 10, 2022, RE: Field Guidance #21—
Compliance with Garza Requirements and
Procedures for Unaccompanied Children Needing
Reproductive Healthcare, available at https://
www.acf.hhs.gov/sites/default/files/documents/orr/
field-guidance-21.pdf. See also 45 CFR 411.92(d).
See also 45 CFR 411.92(d) (requiring timely and
comprehensive information about lawful
pregnancy-related medical services and timely
access to such services for unaccompanied children
who experience sexual abuse while in ORR care).
ORR notes that it was a party to a settlement
agreement reached in Federal litigation concerning
unaccompanied children’s access to abortion (Garza
settlement). See Joint Stipulation of Dismissal
Without Prejudice, J.D. v. Azar, No. 1:17–cv–02122
(D.D.C. Sep. 29, 2020), ECF No. 168. ORR
implemented various policies to effectuate the
terms of the Garza settlement.
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are considered in decisions and actions
relating to their care and custody, and
to implement policies with respect to
their care and placement.113 ORR would
continue to permit such access in a
manner consistent with limitations on
the use of Federal funds for abortions
which are regularly included in HHS’
annual appropriations, commonly
referred to as the ‘‘Hyde
Amendment.’’ 114 Consistent with
current policy, ORR will facilitate such
access regardless of whether the Federal
Government may pay for the abortion
under the Hyde Amendment. ORR
further notes that it operates the UC
Program in compliance with the
requirements of the Religious Freedom
Restoration Act and other applicable
Federal conscience protections, as well
as all other applicable Federal civil
rights laws and applicable HHS
regulations.115
Lastly, ORR proposes a requirement
in § 410.1307(d) that care provider
facilities shall notify ORR within 24
hours of an unaccompanied child’s need
or request for a medical service
requiring heightened ORR involvement
or the discovery of a pregnancy. This
proposal is consistent with ORR’s
current policy requirements for
notifying ORR of significant incidents
and medical services requiring
heightened ORR involvement.
Section 410.1308 Child Advocates
ORR proposes, at § 410.1308, to codify
standards and requirements relating to
the appointment of independent child
advocates for child trafficking victims
and other vulnerable unaccompanied
children (see particularly statement at
proposed § 410.1308(a). The TVPRA, at
8 U.S.C. 1232(c)(6), authorizes HHS to
appoint child advocates for child
trafficking victims and other vulnerable
unaccompanied children. In 2016, the
Government Accountability Office
(GAO) carried out an assessment of the
ORR child advocate program 116 and
recommended improving ORR
monitoring of contractor referrals to the
program, as well as improving
information sharing with child
113 See
6 U.S.C. 279(b)(1)(B), (E).
e.g., Consolidated Appropriations Act,
2023, Public Law 117–328, Div. H, tit. V, sections
506–507; see also Department of Justice, Office of
Legal Counsel, Application of the Hyde
Amendment to the Provision of Transportation for
Women Seeking Abortions (Sept. 27, 2022), https://
www.justice.gov/d9/2022-11/2022-09-27-hyde_
amendment_application_to_hhs_
transportation.pdf.
115 See 45 CFR part 87.
116 See GAO, April 19, 2016, ‘‘Unaccompanied
Children: HHS Should Improve Monitoring and
Information Sharing Policies to Enhance Child
Advocate Program Effectiveness,’’ GAO–16–367.
114 See,
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advocates regarding the unaccompanied
children assigned to them. ORR notes
that the need for child advocates in
helping to protect the interests of
unaccompanied children has continued
to grow over time, especially given the
increasing numbers of unaccompanied
children who are referred to ORR
custody. Proposed § 410.1308 is
intended to codify specific child
advocates’ roles and responsibilities
which are currently described primarily
in ORR policy documents.
At § 410.1308(b), ORR proposes to
define the role of child advocates as
third parties who identify and make
independent recommendations
regarding the best interest of
unaccompanied children. The
recommendations of child advocates are
based on information obtained from the
unaccompanied children and other
sources (including the unaccompanied
child’s parents, family, potential
sponsors/sponsors, government
agencies, legal service providers,
protection and advocacy system
representatives in appropriate cases,
representatives of the unaccompanied
child’s care provider, health
professionals, and others). Child
advocates formally submit their
recommendations to ORR and/or the
immigration court as written best
interest determinations (BIDs). ORR
considers BIDs when making decisions
regarding the care, placement, and
release of unaccompanied children, but
it is not bound to follow BID
recommendations.
With respect to the role of child
advocates, ORR considered several ways
to strengthen or expand the role,
including granting child advocates
rights of access to ORR records and
information on unaccompanied children
(in order to advocate for unaccompanied
children more effectively); allowing
advocates to be present at all ORR
hearings and interviews with their
client (excepting meetings between an
unaccompanied child and their attorney
or EOIR accredited representative); and
expanding the child advocates program
to operate at more locations, or
expanding eligibility for the program to
allow unaccompanied children who age
past their 18th birthday to continue
receiving advocates’ services. ORR
considered the suggestions it received,
and notes that, as required by the
TVPRA, it already provides child
advocates with access to materials
necessary to effectively advocate for the
best interest of unaccompanied
children. In particular, per current ORR
policies, and as reflected in this section,
child advocates have access both to
their clients and to their clients’ records.
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Child advocates may access their
clients’ entire original case files at care
provider facilities, or request copies
from care providers. Further, they may
participate in case staffings, which are
meetings organized by an
unaccompanied child’s care provider
with other relevant stakeholders to help
discuss and plan for the unaccompanied
child’s care. In drafting this NPRM, ORR
believes that the proposed language at
§ 410.1308(b) (together with other
paragraphs proposed in § 410.1308)
represent an appropriate balance in
codifying the role of child advocates.
ORR invites comment on these issues,
and on the proposals of § 410.1308(b).
At paragraph § 410.1308(c), ORR
proposes to specify the responsibilities
of child advocates, which include: (1)
visiting with their unaccompanied
children clients, (2) explaining the
consequences and potential outcomes of
decisions that may affect the
unaccompanied child, (3) advocating for
the unaccompanied child client’s best
interest with respect to care, placement,
services, release, and, where
appropriate, within proceedings to
which the child is a party, (4) providing
best interest determinations, where
appropriate and within a reasonable
time to ORR, an immigration court, and/
or other interested parties involved in a
proceeding or matter in which the child
is a party or has an interest, and (5)
regularly communicating case updates
with the care provider, ORR, and/or
other interested parties in the planning
and performance of advocacy efforts,
including updates related to services
provided to unaccompanied children
after their release from ORR care.
Consistent with the TVPRA at 8
U.S.C. 1232(c)(6)(A), under proposed
§ 410.1308(d), ORR may appoint child
advocates for unaccompanied children
who are victims of trafficking or are
especially vulnerable. Under proposed
§ 410.1308(d)(1), an interested party
may refer an unaccompanied child to
ORR for a child advocate after notifying
ORR that a particular unaccompanied
child in or previously in ORR’s care is
a victim of trafficking or is especially
vulnerable. As used in this section,
‘‘interested parties’’ means individuals
or organizations involved in the care,
service, or proceeding involving an
unaccompanied child, including but not
limited to, ORR Federal or contracted
staff; an immigration court judge; DHS
staff; a legal service provider, attorney of
record, or EOIR accredited
representative; an ORR care provider; a
healthcare professional; or a child
advocate organization. Under proposed
§ 410.1308(d)(2), ORR would make an
appointment decision within five (5)
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business days of referral for a child
advocate, except under exceptional
circumstances including, but not
limited to, natural disasters (such as
hurricane, fire, or flood) or operational
capacity issues due to influx which may
delay a decision regarding an
appointment. ORR typically would
consider the available resources,
including the availability of child
advocates in a particular region, when
appointing a child advocate for
unaccompanied children in ORR care.
ORR would appoint child advocates
only for unaccompanied children who
are currently in or were previously in
ORR care. And under proposed
§ 410.1308(d)(3), child advocate
appointments would terminate upon the
closure of the unaccompanied child’s
case by the child advocate, when the
unaccompanied child turns 18, or when
the unaccompanied child obtains lawful
immigrant status. Regarding the
appointment of child advocates, ORR
considered allowing that any
stakeholder should be able to make a
confidential referral of an
unaccompanied child for child advocate
services, and also that any termination
of such services should be determined
in collaboration with the
unaccompanied child and the
unaccompanied child’s parent or legal
guardian (if applicable). In terms of
referrals, proposed § 410.1308(d) would
allow for referrals for child advocate
services from a broad range of possible
individuals. In terms of terminating
child advocate services, ORR considered
making terminations contingent on a
collaborative process between the child
advocate, the unaccompanied child, and
the unaccompanied child’s sponsor, but
ORR believes that the current proposal
at § 410.1308(d)(3) would impose
reasonable limits for the termination of
child advocate services, and that
termination itself otherwise falls within
the role and responsibilities of child
advocates when advocating for an
unaccompanied child’s best interests.
Under § 410.1308(e), ORR proposes
standards concerning child advocates’
access to information about
unaccompanied children for whom they
are appointed. After a child advocate is
appointed for an unaccompanied child,
the child advocate would be provided
access to materials to effectively
advocate for the best interest of the
unaccompanied child.117 Consistent
with existing policy, child advocates
would be provided access to their
117 See 8 U.S.C. 1232(c)(6)(A) (‘‘. . . A child
advocate shall be provided access to materials
necessary to effectively advocate for the best
interest of the child . . .’’).
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clients during normal business hours at
an ORR care provider facility in a
private area, would be provided access
to all their client’s case file information,
and may request copies of the case file
directly from the unaccompanied
child’s care provider without going
through ORR’s standard case file request
process, subject to confidentiality
requirements described below. A child
advocate would receive timely notice
concerning any transfer of an
unaccompanied child assigned to them.
Under § 410.1308(f), ORR proposes
standards for a child advocate’s
responsibility with respect to
confidentiality of information.
Notwithstanding the access to their
clients’ case file information granted to
child advocates under proposed
paragraph (e), child advocates would be
required to keep the information in the
case file, and information about the
unaccompanied child’s case,
confidential. Child advocates would be
prohibited from sharing case file
information with anyone except with
ORR grantees, contractors, and Federal
staff. Child advocates would not be
permitted to disclose case file
information to other parties, including
parties with an interest in a child’s case.
Other parties are able to request an
unaccompanied child’s case file
information according to existing
procedures. ORR proposes these
protections consistent with its interest
in protecting the privacy of
unaccompanied children in its care, and
for effective control and management of
its records. Proposed § 410.1308(f) also
establishes that, with regard to an
unaccompanied child in ORR care, ORR
would allow the child advocate of that
unaccompanied child to conduct private
communications with the child, in a
private area that allows for
confidentiality for in-person and virtual
or telephone meetings. In drafting
proposed § 410.1308(f), ORR considered
suggestions that a child advocate should
be protected from compelled disclosure
of any information concerning an
unaccompanied child shared with them
in the course of their advocacy work
and that unaccompanied children and
child advocates must have access to
private space to ensure confidentiality
of in-person meetings and virtual
meetings. ORR notes that proposed
§ 410.1308(f) is to be read consistently
with the TVPRA requirement that child
advocates ‘‘shall not be compelled to
testify or provide evidence in any
proceeding concerning any information
or opinion received from the child in
the course of serving as a child
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advocate.’’ 118 Also, ORR is seeking
comment on specific ways to ensure
confidentiality of unaccompanied childchild advocate meetings, and invites
public comment on that issue, in
particular on appropriate ways to ensure
privacy, as well as on the proposed text
of § 410.1308(f) generally.
Under proposed § 410.1308(g), ORR
proposes that it would not retaliate
against a child advocate for actions
taken within the scope of their
responsibilities. For example, ORR
would not retaliate against a child
advocate because of any disagreement
with a best interest determination or
because of a child advocate’s advocacy
on behalf of an unaccompanied child.
ORR notes that proposed § 410.1308(g)
is intended to be read consistently with
its statutory obligation to provide access
to materials necessary to effectively
advocate for the best interest of the
child, and consistently with a
presumption that the child advocate
acts in good faith with respect to their
advocacy on behalf of the child.119 At
the same time, ORR has the
responsibility and authority to
effectively manage its unaccompanied
children’s program which includes, for
example, ensuring that the interests of
the child are considered in decisions
and actions relating to care and custody,
implementing policies with respect to
the care and placement of
unaccompanied children, and
overseeing the infrastructure and
personnel of facilities in which
unaccompanied children reside.120
Section 410.1309 Legal Services
ORR proposes, at § 410.1309,
standards and requirements relating to
the provision of legal services to
unaccompanied children following
entry into ORR care. The proposals
under § 410.1309 also include standards
relating to ORR funding for Legal
Service Providers for unaccompanied
children.
ORR believes that Legal Service
Providers who represent
unaccompanied children undertake an
important function by representing such
children while in ORR care and in some
instances after release. The proposals
under § 410.1309 build on current ORR
policies, which articulate standards for
legal services for unaccompanied
children. ORR strives for 100% legal
representation of unaccompanied
children and will continue to work
towards that goal to the extent possible.
ORR invites public comment as to
118 8
U.S.C. 1232(c)(6)(A).
8 U.S.C. 1232(c)(6)(A).
120 See 6 U.S.C. 279(b)(1)(B), (E), and (G).
119 See
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whether and how there are further ways
to broaden representation for
unaccompanied children.
ORR notes that under the TVPRA, at
8 U.S.C. 1232(c)(5), the Secretary of
HHS must ‘‘ensure, to the greatest extent
practicable and consistent with section
292 of the Immigration and Nationality
Act (8 U.S.C. 1362),’’ that all
unaccompanied children who are or
have been in its the custody or in the
custody of DHS, with exceptions for
children who are habitual residents of
certain countries, have counsel ‘‘to
represent them in legal proceedings or
matters and protect them from
mistreatment, exploitation, and
trafficking.’’ The Secretary of Health and
Human Services ‘‘shall make every
effort to utilize the services of pro bono
counsel who agree to provide
representation to such children without
charge.’’ The INA, 8 U.S.C. 1362,
provides, ‘‘In any removal proceedings
before an immigration judge and in any
appeal proceedings before the Attorney
General from any such removal
proceedings, the person concerned shall
have the privilege of being represented
(at no expense to the Government) by
such counsel, authorized to practice in
such proceedings, as he shall choose.’’
Thus, under the TVPRA, HHS has an
obligation, ‘‘to the greatest extent
practicable,’’ to ensure that
unaccompanied children have counsel
in (1) immigration proceedings and (2)
to protect them from mistreatment,
exploitation, and trafficking. Because 8
U.S.C. 1232(c)(5) states these
responsibilities are ‘‘consistent with’’ 8
U.S.C. 1362, ORR reads these provisions
together as establishing that, while the
statute establishes HHS’ obligations in
relation to legal services, there is not a
right to government-funded counsel
under 8 U.S.C. 1232(c)(5). Rather, ORR
understands that it has a duty to ensure
to the greatest extent practicable that
unaccompanied children have counsel
at no expense to the government, for
both purposes described by the TVPRA.
Further, the second sentence of 8 U.S.C.
1232(c)(5) states that the Secretary of
HHS shall, to the greatest extent
practicable, make every effort to utilize
the services of pro bono counsel. ORR
understands this requirement as
establishing the preferred means by
which counsel is provided to
unaccompanied children, but also that
the Secretary has authority to utilize
other types of services—namely services
that are not pro bono—in areas where
pro bono services are not available. In
summary, insofar as it is not practicable
for the Secretary of HHS to utilize the
services of pro bono counsel for all
unaccompanied children specified at 8
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U.S.C. 1232(c)(5), the Secretary has
discretion under that section (but not
the obligation) also to fund client
representation for counsel for the
unaccompanied children both (1) in
immigration proceedings, and (2) to
protect them from mistreatment,
exploitation, and trafficking—as such
concerns may arise outside the context
of immigration proceedings (e.g., other
discrete services outside the context of
immigration proceedings as described in
the paragraphs below).
ORR proposes, at § 410.1309(a)(1),
that ORR would ensure, to the greatest
extent practicable and consistent with
section 292 of the Immigration and
Nationality Act (8 U.S.C. 1362), that all
unaccompanied children who are or
have been in ORR care, and who are not
subject to special rules for children from
contiguous countries, have access to
legal advice and representation in
immigration legal proceedings or
matters, consistent with current policy
and as further described in this section.
ORR understands ‘‘to the greatest extent
practicable’’ to reflect that the provision
of legal services must be subject to
available resources, as determined by
ORR, and otherwise practicable.
ORR proposes, at § 410.1309(a)(2),
that an unaccompanied child in ORR
care receive (1) a presentation
concerning the rights and
responsibilities of unaccompanied
children in the immigration system,
including information about protections
under child labor laws and educational
rights, presented in the language of the
unaccompanied child and in an in ageappropriate manner; (2) information
regarding availability of free legal
assistance, and that they may be
represented by counsel, at no expense to
the government; 121 (3) notification of
121 This language is intended, consistent with
ORR’s statutory authorities, to implement paragraph
A.14 of Exhibit 1 of the FSA, which states: ‘‘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 deportation or exclusion hearing before an
immigration judge, the right to apply for political
asylum or to request voluntary departure in lieu of
deportation.’’ With respect to information regarding
the availability of free legal assistance, ORR
understands the proposed language at
§ 410.1309(a)(2)(ii) to be consistent with paragraph
A.14, but updated to avoid potential confusion. As
discussed above, 8 U.S.C. 1232(c)(5) does not
describe an unaccompanied child’s ability to access
legal counsel as a ‘‘right;’’ and ORR cannot, by
regulation, confer such a right. Rather, by reference
to the Immigration and Nationality Act, the TVPRA
describes unaccompanied children’s access to
counsel as a ‘‘privilege,’’ and also makes HHS
responsible for ensuring such privilege ‘‘to the
greatest extent practicable.’’ ORR notes that this
clarification does not represent a change in ORR’s
existing policies or practices, and as described
elsewhere in this section, ORR proposes to expand
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the ability to petition for SIJ
classification, to request that a state
juvenile court determine dependency or
placement, and notification of the
ability to apply for asylum or other
forms of relief from removal; (4)
information regarding the
unaccompanied child’s right to a
removal hearing before an immigration
judge, the ability to apply for asylum
with USCIS in the first instance, and the
ability to request voluntary departure in
lieu of removal; and (5) a confidential
legal consultation with a qualified
attorney (or paralegal working under the
direction of an attorney, or EOIR
accredited representative) to determine
possible forms of legal relief in relation
to the unaccompanied child’s
immigration case. ORR also proposes in
§ 410.1309(a)(2) that an unaccompanied
child in ORR care be able to
communicate privately with their
attorney of record, EOIR accredited
representative, or legal service provider,
in a private enclosed area that allows for
confidentiality for in-person and virtual
or telephone meetings. ORR notes that
these proposed services go beyond that
which is required under the FSA. For
example, although both the FSA and
proposed § 410.1309(a)(2) require that
unaccompanied children receive
information regarding their legal rights
and availability of free legal assistance,
proposed § 410.1309(a)(2) would
provide additional specificity to the
type of information that would be
provided. Additionally, ORR notes that
proposed § 410.1309(a)(2) goes beyond
the scope of what is required under the
FSA by providing that unaccompanied
children receive not just information
regarding the availability of legal
counsel, but also requiring that
unaccompanied children receive a
confidential legal consultation with a
qualified attorney (or paralegal working
under the direction of an attorney, or a
DOJ accredited representative) to help
them understand their individual
immigration case. Finally, although the
FSA requires that unaccompanied
children have ‘‘a reasonable right to
privacy,’’ which includes the right to
talk privately on the phone and meet
privately with guests (as permitted by
the facility’s house rules and
regulations), FSA Exhibit 1 at paragraph
A.12, proposed § 410.1309(a)(2) would
go beyond the FSA’s requirement to
make explicit that communications and
meetings with the unaccompanied
child’s attorney of record, EOIR
accredited representative, and legal
service provider must be held in
the availability of legal services to unaccompanied
children beyond current practice.
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enclosed designated spaces, without
reference to any limitation on such
rights by the facility’s house rules and
regulations.
With respect to the confidential legal
consultation, ORR notes the importance
of allowing unaccompanied children
and their legal service providers,
attorneys of record, or EOIR accredited
representatives access to private space,
to ensure that any communications or
meetings about legal matters can be held
confidentially. In addition, in
developing the proposal to require a
presentation on the rights of
unaccompanied children in the
immigration system, ORR is considering
including a requirement for additional
presentations for unaccompanied
children who remain in ORR care
beyond six months.
ORR proposes, at § 410.1309(a)(3),
that ORR would require this
information, regarding unaccompanied
children’s legal rights and access to
services while in ORR care, be posted in
an age-appropriate format and translated
into each child’s preferred language
consistent with proposed § 410.1306, in
any ORR contracted or grant-funded
facility where unaccompanied children
are in ORR care.
ORR proposes, at § 410.1309(a)(4),
that to the extent that appropriations are
available, and insofar as it is not
practicable to secure pro bono counsel
for unaccompanied children as
specified at 8 U.S.C. 1232(c)(5), ORR
would fund legal service providers to
provide direct immigration legal
representation to certain
unaccompanied children subject to
ORR’s discretion to the extent it
determines appropriations are available.
Examples of direct immigration legal
representation include, but are not
limited to: (1) for unrepresented
unaccompanied children who become
enrolled in ORR URM Programs,
provided they have not yet obtained
lawful status or reached 18 years of age
at the time of retention of an attorney;
(2) for unaccompanied children in ORR
care who must appear before EOIR,
including children seeking voluntary
departure, or who must appear before
U.S. Citizenship and Immigration
Services (USCIS); (3) for
unaccompanied children released to a
sponsor residing in the defined service
area of the same legal service provider
who provided the child legal services in
ORR care, to promote continuity of legal
services; and (4) for other
unaccompanied children, in ORR’s
discretion.
Under proposed § 410.1309(b), ORR
would fund legal services for the
protection of an unaccompanied child’s
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interests in certain matters not involving
direct immigration representation,
consistent with its obligations under the
HSA, 6 U.S.C. 279(b)(1)(B), and the
TVPRA, 8 U.S.C. 1232(c)(5). In addition
to the direct immigration representation
outlined in § 410.1309(a)(4), to the
extent ORR determines that
appropriations are available and use of
pro bono counsel is impracticable, ORR
proposes that ORR may (but is not
required to) make funding for additional
access to counsel available for
unaccompanied children in the
following enumerated situations for
proceedings outside of the immigration
system when appropriations allow and
subject to ORR’s discretion in no
particular order of prioritization: (1)
ORR appellate procedures, including
the Placement Review Panel (PRP)
related to placement in restrictive
facilities under § 410.1902, risk
determination hearings under
§ 410.1903, and the denial of a release
to the child’s parent or legal guardian
under § 410.1206; (2) for
unaccompanied children upon their
placement in ORR long-term home care
or in an RTC outside a licensed ORR
facility and for whom other legal
assistance does not satisfy the legal
needs of the individual child; (3) for
unaccompanied children with no
identified sponsor who are unable to be
placed in ORR long-term home care or
ORR transitional home care; (4) for
purposes of judicial bypass or similar
legal processes as necessary to enable an
unaccompanied child to access certain
lawful medical procedures that require
the consent of the parent or legal
guardian under state law and the
unaccompanied child is unable or
unwilling to obtain such consent; (5) for
the purpose of representing an
unaccompanied child in state juvenile
court proceedings, when the
unaccompanied child already possesses
SIJ classification; and (6) for the purpose
of helping an unaccompanied child to
obtain an employment authorization
document. ORR invites comment on
these proposals under § 410.1309(b),
and also with regard to how a
mechanism might be incorporated into
the rule to help prevent, or reduce the
likelihood of, the zeroing-out of funding
for legal representation, while also
ensuring sufficient funding for capacity
to address influxes.
At § 410.1309(c), ORR proposes to
establish relevant requirements and
expectations for the provision of the
legal services described at § 410.1309(a)
and (b). ORR proposes at
§ 410.1309(c)(1) that in the course of
funding legal counsel for any
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unaccompanied children under
proposed § 410.1309(a)(4) or (b)(2), inperson meetings would be preferred,
although unaccompanied children and
their representatives would be able to
meet by telephone or teleconference as
an alternative option when needed and
when such meetings can be facilitated
in such a way as to preserve the
unaccompanied child’s privacy. Either
the unaccompanied child’s attorney of
record or EOIR accredited representative
or an ORR staff member or care provider
would always accompany the
unaccompanied child to any in-person
hearing or proceeding, in connection
with any legal representation of an
unaccompanied child pursuant to
§ 410.1309.
When developing proposed
§ 410.1309(c)(1), ORR considered the
alternatives of enacting a requirement
that an unaccompanied child’s attorney
of record or BIA accredited
representative always be required to
attend court hearings and proceedings
in-person with the unaccompanied
child, or that the attorney of record or
EOIR accredited representative always
engage in in-person meetings with the
unaccompanied child while
representing them, absent a good cause
reason not to do so. ORR concluded that
the current proposal at § 410.1309(c)(1)
reflects a balance between ensuring that
unaccompanied children have effective
access to legal representation and
services, while establishing a preference
for in-person meetings, and ensuring
that unaccompanied children will not
have to walk into physical proceedings
alone.
Under proposed § 410.1309(c)(2), ORR
would require the sharing of certain
information with an unaccompanied
child’s representative, including certain
notices. Under paragraph (c)(2), upon
receipt by ORR of (1) proof of
representation and (2) authorization for
release of records signed by the
unaccompanied child or other
authorized representative, ORR would,
upon request, share the unaccompanied
child’s complete case file apart from any
legally required redactions to assist with
legal representation of that child.
Section 410.1309(c)(2) reflects current
ORR policy guidance describing the
process by which an individual will be
recognized by ORR as the attorney of
record or EOIR accredited representative
for an unaccompanied child. Under
current practice, ORR recognizes an
individual as an unaccompanied child’s
attorney of record or EOIR accredited
representative through the submission
of an ORR form, the ORR Notice of
Attorney Representation. ORR notes that
this form is not identified specifically in
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the proposed regulatory text, so as to
preserve operational flexibility for ORR
to accept different forms of proof as
appropriate, as needed. ORR also
considered the importance of timely
notice by ORR to the unaccompanied
child’s representative in order to allow
for effective legal representation, in
connection with law enforcement
events, age redetermination processes,
and allegations of sexual abuse or
harassment.
ORR seeks public comment on these
issues, including the scope of reportable
events or interactions with law
enforcement and scope of notice
depending on the unaccompanied
child’s involvement in the reportable
event (i.e., as an alleged victim, alleged
perpetrator, or as a witness). With
allegations or accusations of sexual
abuse or harassment, ORR solicits
public comment on privacy concerns
and other considerations. ORR also
solicits comment on the appropriate
timeframes for various types of
notification.
As discussed in section IV.B of this
NPRM, the Secretary’s authority under 8
U.S.C. 1232 has been delegated to the
ORR Director. As discussed above, ORR
understands that in addition to
expanding access to pro bono services
and funding legal services in
immigration-related proceedings or
matters, it may also promote pro bono
services and fund legal services for
broader purposes that relate to
protecting unaccompanied children
from mistreatment, exploitation, and
trafficking. Consistent with the TVPRA,
ORR makes every effort to use pro bono
legal services to the greatest extent
practicable to secure counsel for
unaccompanied children in these
contexts. Specifically, ORR-funded legal
service providers may help coordinate a
referral to pro bono services, and ORR
provides each unaccompanied child
with lists of pro bono legal service
providers by state and pro bono services
available through a national
organization upon admission into a care
provider facility.122 That said, in some
cases it is impracticable for ORR to
secure pro bono legal services for
unaccompanied children. For example,
it may be impracticable to secure pro
bono services if the demand for such
services exceeds the supply of pro bono
services, as may occur at certain
locations or during times of influx. To
122 See 6 U.S.C. 279(b)(1)(I). See also Office of
Refugee Resettlement Division of Unaccompanied
Children Operations, Legal Resource Guide—Legal
Service Provider List for [UC] in ORR Care, https://
www.acf.hhs.gov/sites/default/files/documents/orr/
english_legal_service_providers_guide_with_form_
508.pdf.
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the extent pro bono legal services are
unavailable or impracticable to secure
because it has limited resources, ORR
must be selective in the kinds of legal
services it funds. As a result, ORR
proposes through this rule to establish
its discretion to fund legal services for
specific purposes, based on its judgment
and priorities.
In terms of funding legal services, at
proposed § 410.1309(d), ORR also
proposes to, in its discretion and subject
to available resources, make available
funds (if appropriated) to relevant
agencies or organizations to provide
legal services for unaccompanied
children who have been released from
ORR care and custody. ORR would
establish authority to make available
grants—including formula grants
distributed geographically in proportion
to the population of released
unaccompanied children—or contracts
for immigration legal representation,
assistance, and related services to
unaccompanied children.
To prevent retaliation against legal
service providers, at § 410.1309(e), ORR
proposes that it shall presume that legal
service providers are acting in good
faith with respect to their advocacy on
behalf of unaccompanied children, and
ORR shall not retaliate against a legal
service provider for actions taken within
the scope of the legal service providers’
responsibilities. For example, ORR shall
not engage in retaliatory actions against
legal service providers or any other
representative for reporting harm or
misconduct on behalf of an
unaccompanied child. As noted at
proposed § 410.1309(e), ORR will not
retaliate against legal service providers;
however, ORR has the responsibility
and authority to effectively manage its
unaccompanied children’s program
which includes, for example, ensuring
that the interests of the child are
considered in decisions and actions
relating to care and custody,
implementing policies with respect to
the care and placement of
unaccompanied children, and
overseeing the infrastructure and
personnel of facilities in which
unaccompanied children reside.
Section 410.1310 Psychotropic
Medications
ORR is proposing requirements
related to the administration of
psychotropic medications to
unaccompanied children while in ORR
care. ORR notes that the third of the five
plaintiff classes certified by the United
States District Court for the Central
District of California in the Lucas R. v.
Becerra case, as discussed in section
IV.A.4. of this proposed rule, is the
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‘‘drug administration class.’’ The class is
comprised of unaccompanied children
in ORR custody ‘‘who are or will be
prescribed or administered one or more
psychotropic medications without
procedural safeguards[.]’’ 123 ORR will
be bound by any potential future court
decisions or settlements in the case.124
The Court’s Preliminary Injunction
ordered on August 30, 2022, did not
address this claim and, as of April 2023,
ORR remains in active litigation
regarding this claim.
ORR believes that psychotropic
medications should only be
administered appropriately and in the
best interest of the child and with
meaningful oversight. Therefore, ORR is
proposing in § 410.1310(a) that, except
in the case of a psychiatric emergency,
ORR must ensure that, whenever
possible, authorized individuals provide
informed consent prior to the
administration of psychotropic
medications to unaccompanied
children. In § 410.1310(b), ORR
proposes that it would ensure
meaningful oversight of the
administration of psychotropic
medication(s) to unaccompanied
children. Examples of such oversight are
the review of cases flagged by care
providers, and secondary retrospective
reviews of the administration of
psychotropic medication(s) in certain
circumstances, such as based on the
child’s age, the number of psychotropic
medications that have been prescribed,
or the dosages of such psychotropic
medications.
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Section 410.1311 Unaccompanied
Children With Disabilities
ORR believes that protection against
discrimination and equal access to the
UC Program is inherent to ensuring that
unaccompanied children with
disabilities receive appropriate care
while in ORR custody. ORR notes that
the Lucas R. case, discussed in the
Background of this proposed rule, is
relevant to this topic area and that ORR
will be bound by any potential future
court decisions or settlements in the
case. The fifth of the five plaintiff
classes certified by the United States
District Court for the Central District of
California in Lucas R. is the ‘‘disability
class’’ that includes unaccompanied
children ‘‘who have or will have a
behavioral, mental health, intellectual,
and/or developmental disability as
defined in 29 U.S.C. 705, and who are
or will be placed in a secure facility,
medium-secure facility, or [RTC]
because of such disabilities [(i.e., the
‘disability class’)].’’ 125 The Court’s
Preliminary Injunction ordered on
August 30, 2022, did not settle this
claim and, as of April 2023, ORR
remains in active litigation regarding
this claim. ORR is proposing
requirements to ensure the UC
Program’s compliance with the HHS
section 504 implementing regulations at
45 CFR part 85. ORR is therefore
proposing at § 410.1311(a) to provide
notice of the protections against
discrimination assured to
unaccompanied children with
disabilities by section 504 at 45 CFR
part 85 while in the custody of ORR and
the available procedures for seeking
reasonable modifications or making a
complaint about alleged discrimination
against children with disabilities in
ORR’s custody.
ORR understands its obligations
under section 504 to administer
programs and activities in the most
integrated setting appropriate to the
needs of qualified unaccompanied
children with disabilities.126 ORR is
proposing at § 410.1311(b) ORR shall
administer the UC Program in the most
integrated setting appropriate to the
needs of children with disabilities, in
accordance with 45 CFR 85.21(d),
unless ORR can demonstrate that this
would fundamentally alter the nature of
its UC Program. As noted, the most
integrated setting is a setting that
enables individuals with disabilities to
interact with non-disabled individuals
to the fullest extent possible.127
ORR is proposing at § 410.1311(c) that
it would provide reasonable
modifications to the UC Program for
each unaccompanied child with one or
more disabilities as needed to ensure
equal access to the UC Program. ORR
would not, however, be required to take
any action that it can demonstrate
would result in a fundamental alteration
in the nature of a program or activity.
Under proposed § 410.1311(d), ORR
would require that services, supports,
and program modifications being
provided to an unaccompanied child
with one or more disabilities be
documented in the child’s case file,
where applicable.
Under proposed § 410.1311(e), in
addition to the requirements for release
of unaccompanied children established
elsewhere in this regulation and through
123 Amended Order re Defendants’ Mot. to
Dismiss and Plaintiffs’ Mot. for Class Cert., Lucas
R., et al. v. Xavier Becerra, et al., No. 18–CV–5741
(C.D. Cal. Dec. 27, 2018).
124 Lucas R., et al. v. Xavier Becerra, et al., 18–
CV–5741 (DMG) (C.D. Cal. filed Jun. 29, 2018).
125 Amended Order re Defendants’ Mot. to
Dismiss and Plaintiffs’ Mot. for Class Cert., Lucas
R., et al. v. Xavier Becerra, et al., No. 18–CV–5741
(C.D. Cal. Dec. 27, 2018).
126 45 CFR 85.21(d).
127 53 FR 25595, 25600 (July 8, 1988).
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any subregulatory guidance ORR may
issue, ORR is proposing requirements
regarding the release of an
unaccompanied child with one or more
disabilities to a sponsor. Section
410.1311(e)(1) would require that ORR’s
assessment under § 410.1202 of a
potential sponsor’s capability to provide
for the physical and mental well-being
of the unaccompanied child must
include explicit consideration of the
impact of the child’s disability or
disabilities. Under § 410.1311(e)(2), in
conducting PRS, ORR and any entities
through which ORR provides PRS shall
make reasonable modifications in their
policies, practices, and procedures if
needed to enable released
unaccompanied children with
disabilities to live in the most integrated
setting appropriate to their needs, such
as with a sponsor. ORR is not required,
however, to take any action that it can
demonstrate would result in a
fundamental alteration in the nature of
a program or activity. Additionally, ORR
would affirmatively support and assist
otherwise viable potential sponsors in
accessing and coordinating appropriate
post-release, community-based services
and supports available in the
community to support the sponsor’s
ability to care for the unaccompanied
child with one or more disabilities, as
provided for under proposed
§ 410.1210. Under § 410.1311(e)(3), ORR
would not delay the release of an
unaccompanied child with one or more
disabilities solely because post-release
services are not in place prior to the
child’s release.
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Subpart E—Transportation of an
Unaccompanied Child
Section 410.1400 Purpose of This
Subpart
This proposed subpart concerns the
safe transportation of each
unaccompanied child while in ORR’s
care. ORR notes that ORR generally does
not provide transport for initial
placements upon referral from another
Federal agency, but rather, it is the
responsibility of other Federal agencies
to transfer the unaccompanied child to
ORR custody within 72 hours of
determining the individual is an
unaccompanied child.128 ORR, or its
care provider facilities, does provide
transportation while the
unaccompanied child is under its care
including in the following
circumstances: (1) for purposes of
service provision, such as for medical
services, immigration court hearings, or
community services; (2) when
128 See
8 U.S.C. 1232(b)(3).
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transferring between facilities or to an
out of network placement; (3) group
transfers due to an emergency or influx;
and (4) for release of an unaccompanied
child to a sponsor who is not able to
pick up the unaccompanied child, as
approved by ORR. Proposed subpart E
provides certain requirements for such
transportation while unaccompanied
children are under ORR care.
Section 410.1401 Transportation of an
Unaccompanied Child in ORR’s Care
ORR proposes transportation
requirements for care provider facilities
to help ensure that unaccompanied
children are safely transported during
their time in ORR care. Proposed
§ 410.1401(a) would require care
provider facilities to transport an
unaccompanied child in a manner that
is appropriate to the child’s age and
physical and mental needs, including
proper use of car seats for young
children, and consistent with proposed
§ 410.1304. For example, individuals
transporting unaccompanied children
would be able to use de-escalation or
other positive behavior management
techniques to ensure safety, as
explained in the discussion of proposed
§ 410.1304(a). As discussed in proposed
§ 410.1304(f), care provider facilities
may only use soft restraints (e.g., zip ties
and leg or ankle weights) during
transport to and from secure facilities,
and only when the care provider facility
believes the child poses a serious risk of
physical harm to self or others or a
serious risk of running away from ORR
custody. As discussed in proposed
§ 410.1304(e)(2), secure facilities, except
for RTCs, may restrain a child for their
own immediate safety or that of others
during transport to an immigration court
or an asylum interview. ORR believes
the proposed requirements at
§ 410.1401(a) are important to ensuring
the safety of unaccompanied children as
well as those around them while being
transported in ORR care.
Under proposed § 410.1401(b), ORR
would codify a requirement in the FSA
that it assist without undue delay in
making transportation arrangements
where it has approved the release of an
unaccompanied child to a sponsor,
pursuant to proposed §§ 410.1202 and
410.1203. ORR also proposes that it
would have the authority to require the
care provider facility to transport an
unaccompanied child. In these
circumstances, ORR may, in its
discretion, reimburse the care provider
facility or pay directly for the child and/
or sponsor’s transportation, as
appropriate, to facilitate timely release.
To further ensure safe transportation
of unaccompanied children, proposed
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§ 410.1401(c) proposes to codify existing
ORR policy that care provider facilities
shall comply with all relevant State and
local licensing requirements and state
and Federal regulations regarding
transportation of children, such as
meeting or exceeding the minimum
staff/child ratio required by the care
provider facility’s licensing agency,
maintaining and inspecting all vehicles
used for transportation, etc. If there is a
potential conflict between ORR’s
regulations and state law, ORR will
review the circumstances to determine
how to ensure that it is able to meet its
statutory responsibilities. It is important
to note, however, that if a State law or
license, registration, certification, or
other requirement conflicts with an ORR
employee’s duties within the scope of
their ORR employment, the ORR
employee is required to abide by their
Federal duties, which ORR proposes at
§ 410.1401(d). Under proposed
§ 410.1401(e), ORR proposes to require
the care provider facility to conduct all
necessary background checks for drivers
transporting unaccompanied children,
in compliance with proposed
§ 410.1305(a). Finally, proposed
§ 410.1401(f) proposes to codify existing
ORR policy that if a care provider
facility is transporting an
unaccompanied child, then at least one
transport staff of the same gender as the
unaccompanied child being transported
must be present in the vehicle to the
greatest extent possible under the
circumstances.
Subpart F—Data and Reporting
Requirements
Proposed 45 CFR part 410, subpart F,
provides guidelines for care provider
facilities to report information such that
ORR may compile and maintain
statistical information and other data on
unaccompanied children.
Section 410.1500 Purpose of This
Subpart
The HSA requires the collection of
certain data about the children in ORR’s
care and custody.129 Specifically, ORR
is required to maintain statistical and
other information on unaccompanied
children for whom ORR is responsible,
including information available from
other government agencies and
including information related to a
child’s biographical information, the
date the child entered Federal custody
due to immigration status,
documentation of placement, transfer,
removal, and release from ORR
facilities, documentation of and
rationale for any detention, and
129 6
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information about the disposition of any
actions in which the child is the subject.
Section 410.1600
Subpart
Section 410.1501 Data on
Unaccompanied Children
ORR proposes at § 410.1600 to codify
the purpose of this subpart as providing
the guidelines for the transfer of an
unaccompanied child.
This proposed section implements the
HSA by requiring care provider facilities
to maintain and periodically report to
ORR data described in proposed
§ 410.1501(a) through (e): biographical
information, such as an unaccompanied
child’s name, gender, date of birth,
country of birth, whether of indigenous
origin and country of habitual
residence; the date on which the
unaccompanied child came into Federal
custody by reason of immigration status;
information relating to the
unaccompanied child’s placement,
removal, or release from each care
provider facility in which the child has
resided, including the date and to whom
and where placed, transferred, removed,
or released in any case in which the
unaccompanied child is placed in
detention or released, an explanation
relating to the detention or release; and
the disposition of any actions in which
the child is the subject. In addition, for
purposes of ensuring that ORR can
continue to appropriately support and
care for children in its care throughout
their time in ORR care provider
facilities, as well as to allow additional
program review, ORR proposes in
§ 410.1501(f) and (g) that care provider
facilities also document and
periodically report to ORR information
gathered from assessments, evaluations,
or reports of the child and data
necessary to evaluate and improve the
care and services for unaccompanied
children. ORR notes that some of the
information described in this section,
such as requirements described at
paragraphs (f) and (g), or reporting
regarding whether an unaccompanied
child is of indigenous origin, is not
specifically enumerated at 6 U.S.C.
279(b)(1)(J). Nevertheless, ORR proposes
including such information in the rule
text because it understands maintaining
such information to be consistent with
other duties under the HSA to
coordinate and implement the care and
placement of unaccompanied children.
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Subpart G—Transfers
In this NPRM, ORR proposes to codify
requirements and policies regarding the
transfer of an unaccompanied child in
ORR care. The following provisions
identify general requirements for the
transfer of an unaccompanied child, as
well as certain circumstances in which
transfers are necessary, such as in
emergencies.
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Purpose of This
Section 410.1601 Transfer of an
Unaccompanied Child Within the ORR
Care Provider Facility Network
ORR proposes, at § 410.1601(a), to
codify general requirements for transfers
of an unaccompanied child within the
ORR care provider network. ORR
proposes that care provider facilities
would be required to continuously
assess an unaccompanied child in their
care to ensure the unaccompanied child
placements are appropriate. This
proposed requirement is consistent with
the TVPRA, which provides that an
unaccompanied child shall be placed in
the least restrictive setting that is in
their best interests, subject to
considerations of danger to self or the
community and runaway risk.130
Additionally, care provider facilities
would be required to follow ORR policy
guidance, including guidance regarding
placement considerations, when making
transfer recommendations. ORR also
proposes requirements for care provider
facilities to ensure the health and safety
of an unaccompanied child. The
proposed requirements align with
proposed § 410.1307(b), where ORR
proposes procedures related to
placements upon the ORR transfer of an
unaccompanied child to a facility that is
able to accommodate the medical needs
or requests of the unaccompanied child.
At proposed § 410.1601(a)(1), care
provider facilities would be required to
make transfer recommendations to ORR
if they identify an alternate placement
for a child that best meets a child’s
needs. Under proposed § 410.1601(a)(2),
when ORR transfers an unaccompanied
child, the unaccompanied child’s
current care provider facility would be
required to ensure that the
unaccompanied child is medically
cleared for transfer within three
business days, provided the
unaccompanied child’s health allows
and unless otherwise waived by ORR.
For an unaccompanied child with acute
or chronic medical conditions, or
seeking medical services requiring
heightened ORR involvement, the
appropriate care provider facility staff
and ORR would be required to meet to
review the transfer recommendation.
Should the unaccompanied child not be
medically cleared for transfer within
three business days, the care provider
130 8
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facility would be required to notify
ORR. ORR would provide the final
determination of a child’s fitness for
travel if the child is not medically
cleared for transfer by a care provider
facility. Should ORR determine the
unaccompanied child is not fit for
travel, ORR would be required to notify
the unaccompanied child’s current care
provider facility of the denial and
specify a timeframe for the care provider
facility to re-evaluate the transfer of the
unaccompanied child. ORR welcomes
public comment on these proposals.
At proposed § 410.1601(a)(3), ORR
describes notifications that would be
required when ORR transfers an
unaccompanied child to another care
provider facility, including required
timeframes for such notifications.
Specifically, ORR proposes that within
48 hours prior to the unaccompanied
child’s physical transfer, the referring
care provider facility would be required
to notify all appropriate interested
parties of the transfer, including the
child, the child’s attorney of record,
legal service provider, or Child
Advocate, as applicable. ORR notes, in
addition, that interested parties may
include EOIR. Proposed § 410.1601(a)(3)
further provides that advanced notice
shall not be required in unusual and
compelling circumstances. In such a
case, notice to interested parties must be
provided within 24 hours following the
transfer of an unaccompanied child in
such circumstances. ORR is aware of
concerns around notifications regarding
the transfer of an unaccompanied child
and believes that these proposed
requirements provide an effective
timeline and notice while still allowing
for flexibility if there are unusual and
compelling circumstances. ORR believes
proposed § 410.1601(a)(3) is consistent
with, and even goes beyond, the
requirements set out in the FSA at
paragraph 27, which requires only
‘‘advance notice’’ to counsel when an
unaccompanied child is transferred but
does not specify how much advance
notice is required.
Proposed § 410.1601(a)(4) and (5)
would codify requirements from
paragraph 27 of the FSA that children
be transferred with their possessions
and legal papers, and any possessions
that exceed the normally permitted
amount by carriers be shipped in a
timely manner to where the child is
placed. ORR would also require that
children be transferred with a 30-day
supply of medications if applicable.
Consistent with existing practice, ORR
would require that the accepting care
provider is instructed in the proper
administration of the unaccompanied
child’s medications.
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Proposed § 410.1601(b) would codify
current ORR practices regarding the
review of restrictive placements. When
unaccompanied children are placed in a
restrictive setting (secure, heightened
supervision, or Residential Treatment
Center), the receiving care provider
facility and ORR would be required to
review their placement at least every 30
days to determine if another level of
care is appropriate. Should the care
provider facility and ORR determine
that continued placement in a restrictive
setting is necessary, the care provider
facility would be required to document,
and as requested, provide the rationale
for continued placement to the child’s
attorney of record, legal service
provider, and their Child Advocate.
Proposed § 410.1601(c) describes
requirements related to group transfers.
Group transfers are described as
circumstances where a care provider
facility transfers more than one child at
a time, due to emergencies or program
closures, for example. Under proposed
§ 410.1601(c), when group transfers are
necessary, care provider facilities would
be required to follow ORR policy
guidance and additionally be required
to follow the substantive requirements
provided in § 410.1601(a). ORR believes
that clarifying these requirements for
care provider facilities engaging in
group transfers would help to ensure the
safety and health of unaccompanied
children in emergency and other
situations that require the transfer of
multiple unaccompanied children. ORR
seeks public comment on these
proposals.
Proposed § 410.1601(d) describes
requirements related to the transfer of
an unaccompanied child in a care
provider facility’s care to an RTC. Under
this proposed provision, care provider
facilities would be permitted to request
the transfer of an unaccompanied child
in their care pursuant to the
requirements of proposed § 410.1105(c).
ORR proposes, at § 410.1601(e),
requirements concerning the temporary
transfer of an unaccompanied child
during emergency situations. In
§ 410.1601(e), ORR makes clear that,
consistent with the HSA and TVPRA, an
unaccompanied child remains in the
legal custody of ORR and may only be
transferred or released by ORR. As
allowed under the FSA, ORR proposes,
in emergency situations, to allow care
provider facilities to temporarily change
the physical placement of an
unaccompanied child prior to securing
permission from ORR. But in these
situations, ORR would require the care
provider to notify ORR of the change of
placement as soon as possible, but in all
cases within eight hours of transfer.
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As a general matter and given the
standard that placements must be in the
best interests of the child, it is ORR’s
preference to minimize the transfer of
an unaccompanied child and limit
transfers to situations in which a
transfer is necessary in order to promote
stability and encourage establishment of
relationships, particularly among
vulnerable children in ORR care. ORR
broadly invites public comment on all
of the proposals under subpart G, and
solicits input regarding the specifics,
language, and scope of additional
provisions related to minimizing the
transfers of an unaccompanied child
and the placement of an unaccompanied
child with disabilities.
Subpart H—Age Determinations
In subpart H of this proposed rule,
ORR provides guidelines for
determining the age of an individual in
ORR care. The TVPRA instructs HHS to
devise age determination procedures for
individuals without lawful immigration
status in consultation with DHS.131
Consistent with the TVPRA, HHS and
DHS jointly developed policies and
procedures to assist in the process of
determining the correct age of
individuals in Federal custody.
Establishing the age of the individual is
critical because, for purposes of the UC
Program, HHS only has authority to
provide care to unaccompanied
children, who are defined in relevant
part as individuals who have not
attained 18 years of age. ORR also notes
that the FSA allows for age
determinations in the event there is a
question as to veracity of the
individual’s alleged age.
Section 410.1700 Purpose of This
Subpart
ORR acknowledges the challenges in
determining the age of individuals who
are in Federal care and custody. These
challenges include but are not limited
to: lack of available documentation;
contradictory or fraudulent identity
documentation and/or statements;
ambiguous physical appearance of the
individual; and diminished capacity of
the individual. Proposed § 410.1700 sets
forth the purpose of this subpart as
providing the provisions for
determining the age of an individual in
ORR custody. ORR notes that under this
proposed section, and as a matter of
current practice, it would only conduct
age determination procedures if there is
a reasonable suspicion that an
individual is not a minor. ORR believes
that the proposed requirements and
standards described within this subpart
131 See
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properly balance the concerns of
children who are truly unaccompanied
children with the importance of
ensuring individuals are appropriately
identified as a minor. ORR notes that
proposed § 410.1309 regards required
notification to legal counsel regarding
age determinations.
Section 410.1701 Applicability
Proposed § 410.1701 states that this
subpart would apply to individuals in
the custody of ORR. This would be
consistent with 8 U.S.C. 1232(b)(4),
which specifies that DHS’ and HHS’ age
determination procedures ‘‘shall’’ be
used by each department ‘‘for children
in their respective custody.’’ Proposed
§ 410.1701 also reiterates that under the
statutory definition of an
unaccompanied child,132 an individual
must be under 18 years of age.
Section 410.1702 Conducting Age
Determinations
Proposed § 410.1702 would codify
general requirements for conducting age
determinations. The TVPRA requires
that age determination procedures, at a
minimum, consider multiple forms of
evidence, including non-exclusive use
of radiographs. Given these minimum
requirements, proposed § 410.1702
would allow for the use of medical or
dental examinations, including X-rays,
conducted by a medical professional,
and other appropriate procedures. The
terms ‘‘medical’’ and ‘‘dental
examinations’’ are taken from the FSA
at paragraph 13, and ORR interprets
them to include ‘‘radiographs’’ as
discussed in the TVPRA. Under
proposed § 410.1702, ORR would
require that procedures for determining
the age of an individual consider the
totality of the circumstances and
evidence rather than rely on any single
piece of evidence to the exclusion of all
others.
Section 410.1703 Information Used as
Evidence To Conduct Age
Determinations
Proposed § 410.1703 describes
information that ORR would be able to
use as evidence to conduct age
determination. Under proposed
§ 410.1703(a), ORR would establish that
it considers multiple forms of evidence,
and that it makes age determinations
based upon a totality of evidence. Under
proposed § 410.1703(b), ORR may
consider information or documentation
to make an age determination, including
but not limited to: (1) birth certificate,
including a certified copy, photocopy,
or facsimile copy if there is no
132 See
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acceptable original birth certificate and
proposes that ORR may consult with the
consulate or embassy of the individual’s
country of birth to verify the validity of
the birth certificate presented; (2)
authentic government-issued documents
issued to the bearer; (3) other
documentation, such as baptismal
certificates, school records, and medical
records, which indicate an individual’s
date of birth; (4) sworn affidavits from
parents or other relatives as to the
individual’s age or birth date; (5)
statements provided by the individual
regarding the individual’s age or birth
date; (6) statements from parents or legal
guardians; (7) statements from other
persons apprehended with the
individual; and (8) medical age
assessments, which should not be used
as a sole determining factor but only in
concert with other factors.
Regarding the proposed use of
medical age assessments, at proposed
§ 410.1703(b)(8), ORR would codify a 75
percent probability threshold, that,
when used in conjunction with other
evidence, reflects a reasonable standard
that would prevent inappropriate
placements in housing intended for
unaccompanied children. The
examining doctor would be required to
submit a written report indicating the
probability percentage that the
individual is a minor or an adult. If an
individual’s estimated probability of
being 18 or older is 75 percent or greater
according to a medical age assessment,
then ORR would accept the assessment
as one piece of evidence in favor of a
finding that the individual is not an
unaccompanied child. But consistent
with the TVPRA, ORR would not be
permitted to rely on such a finding
alone; only if such a finding has been
considered together with other forms of
evidence, and the totality of the
evidence supports such a finding would
ORR determines that the individual is
18 or older. The 75 percent probability
threshold applies to all medical
methods and approaches identified by
the medical community as appropriate
methods for assessing age. Ambiguous,
debatable, or borderline forensic
examination results are resolved in
favor of finding the individual is a
minor. ORR believes that requirements
at proposed § 410.1703 would enable
ORR to utilize multiple forms of
evidence.
Section 410.1704 Treatment of an
Individual Who Appears To Be an Adult
Proposed § 410.1704 would codify the
substantive requirement from paragraph
13 of the FSA regarding treatment of an
individual who appears to be an adult.
Specifically, if the procedures in this
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subpart would result in a reasonable
person concluding, based on the totality
of the evidence, that an individual is an
adult, despite the individual’s claim to
be under the age of 18, ORR would treat
such person as an adult for all purposes.
As provided in current ORR policy,133
an individual in ORR care or their
attorney of record may, at any time,
present new information or evidence
that they are 18 or older for reevaluation of an age determination. If
the new information or evidence
indicates that an individual who is
presumed to be an unaccompanied
child is an adult, then ORR will
coordinate with DHS to take appropriate
actions, which may include transferring
the individual out of ORR custody back
to DHS custody.
Subpart I—Emergency and Influx
Operations
In subpart I of this proposed rule,
ORR proposes to codify guidelines
applicable to emergency or influx
facilities that ORR opens or operates
during a time of and in response to
emergency or influx. This subpart
applies the requirement at paragraph
12.C of the FSA to have a written plan
that describes the reasonable efforts the
former INS, now ORR, will take to place
all unaccompanied children as
expeditiously as possible.
As a matter of policy, ORR has a
strong preference to house
unaccompanied children in standard
programs; however, ORR recognizes that
in times of emergency or influx
additional facilities may be needed, on
short notice, to house unaccompanied
children. As used in this subpart,
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
unaccompanied children, or impacts
other conditions provided by this part.
Influx means a situation in which the
net bed capacity of ORR’s existing
capacity in standard programs that is
occupied or held for placement by
unaccompanied children meets or
exceeds 85 percent for a period of seven
consecutive days. In this proposed rule,
ORR defines ‘‘Emergency or Influx
Facilities’’ as a single term to encompass
a care provider facility opened in
response to either an emergency or
influx and to propose that such a facility
would meet the minimum requirements
133 ORR Policy Guide 1.6.2, ‘‘Instructions for Age
Determinations’’. Available at: https://
www.acf.hhs.gov/orr/policy-guidance/
unaccompanied-children-program-policy-guidesection-1.
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described in this subpart. These
facilities may be contracted for and
stood up in advance of an emergency or
an influx in preparation of such an
event, but no children would be placed
in such a facility until an emergency or
influx exists.
Importantly, this definition of
‘‘influx’’ departs from that used in the
FSA which defined ‘‘influx’’ as a
situation in which 130 or more
unaccompanied children were awaiting
placement. In this proposed rule, ORR
takes a new approach to defining
‘‘influx’’ based on its experiences in the
years after the settlement agreement and
in light of the increased numbers of
unaccompanied children over time. In
this rule, ORR proposes to define an
‘‘influx’’ without reference to a set
number of unaccompanied children, but
rather to circumstances reflecting a
significant increase in the number of
unaccompanied children that exceeds
the standard capabilities of the Federal
Government to process and transport
them timely and/or to shelter them with
existing resources. ORR believes that
using the 85 percent threshold provides
a reasonable measure to determine
when bed capacity in the standard
programs is strained to the point that
accepting referrals from DHS within 72
hours becomes very challenging. ORR
notes that this 85 percent threshold
would align with ORR’s current
practices and is based on ORR’s
experience with influx trends and
organizational capacity. During these
times of emergency or influx, ORR may
house unaccompanied children at
emergency or influx facilities. ORR
notes that, consistent with current
policy, placements of unaccompanied
children at emergency or influx
facilities during a period of influx cease
when operational capacity in standard
programs drops below 85 percent for a
period of at least seven consecutive
days.
Section 410.1800 Contingency
Planning and Procedures During an
Emergency or Influx
ORR recognizes that during times of
emergency or when there is an influx of
unaccompanied children, it is important
to have policies and procedures in place
to ensure that all unaccompanied
children have their needs met and
receive appropriate care and protection.
ORR opens additional facilities in times
of influx or emergency when its
standard provider network does not
have sufficient bed space available to
provide shelter and services for
children. Because these facilities are
intended to be a temporary response to
an influx or emergency, when speed
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may be critical, they may not be
licensed or may be exempted from
licensing requirements by state or local
licensing agencies, or both. Although
ORR’s preference is to place
unaccompanied children in licensed
facilities whenever possible, these
emergency or influx facilities may be
used to house unaccompanied children
temporarily when time is of the essence.
Regardless of licensure status, these
facilities must meet ORR standards and
must comply to the greatest extent
possible with state child welfare laws
and regulations. If there is a potential
conflict between ORR’s regulations and
state law, ORR will review the
circumstances to determine how to
ensure that it is able to meet its statutory
responsibilities. It is important to note,
however, that if a State law or license,
registration, certification, or other
requirement conflicts with an ORR
employee’s duties within the scope of
their ORR employment, the ORR
employee is required to abide by their
Federal duties. ORR proposes at
§ 410.1800 to codify guidelines for
contingency planning and procedures to
use during an emergency or influx.
Under proposed § 410.1800(a), ORR
would regularly reevaluate the number
of placements needed for
unaccompanied children to determine
whether the number of shelters,
heightened supervision facilities, and
ORR transitional home care beds should
be adjusted to accommodate an
increased or decreased number of
unaccompanied children eligible for
placement in care in ORR custody
provider facilities.
At § 410.1800(b), consistent with
paragraph 12A of the FSA, ORR
proposes that in the event of an
emergency or influx that prevents the
prompt placement of unaccompanied
children in standard programs, ORR
shall make all reasonable efforts to place
each unaccompanied child in a standard
program as expeditiously as possible. As
described in proposed § 410.1800(a) and
consistent with ORR’s preference to
place unaccompanied children in
standard care provider facilities, ORR’s
commitment to regularly reevaluating
the number of placements needed will
help this effort to place unaccompanied
children in licensed programs quickly.
At § 410.1800(c), ORR proposes that
activities during an influx or emergency
include the following: (1) ORR
implements its contingency plan on
emergencies and influxes, which may
include opening facilities in times of
emergency or influx; (2) ORR
continually develops standard programs
that are available to accept emergency or
influx placements; and (3) ORR
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maintains a list of unaccompanied
children affected by the emergency or
influx including each unaccompanied
child’s: (i) name; (ii) date and country
of birth; (iii) date of placement in ORR’s
custody; and (iv) place and date of
current placement.
Section 410.1801 Minimum Standards
for Emergency or Influx Facilities
At § 410.1801(a), ORR notes that in
addition to the standards it has for
standard programs and restrictive
placements, this section provides a set
of minimum standards that must be
followed for emergency or influx
facilities. ORR notes, as described
§ 410.1000(c), that it does not operate
facilities other than standard programs,
restrictive placements, or emergency or
influx facilities, absent a specific waiver
as described below at § 410.1801(d) or
such additional waivers as are permitted
by law.
At § 410.1801(b), ORR proposes a list
of minimum services that must be
provided to all unaccompanied children
in the care of emergency or influx
facilities, and available at the time of the
facility opening. These services, which
are consistent with Exhibit 1 of the FSA,
would apply the same minimum service
requirements that apply under the FSA
to standard care facilities to emergency
or influx facilities. Under
§ 410.1801(b)(1), these proposed
minimum services would require that
emergency or influx facilities provide
unaccompanied children with proper
physical care and maintenance,
including suitable living
accommodations, food, appropriate
clothing, and personal grooming items.
ORR proposes at § 410.1801(b)(2) that
emergency and influx facilities provide
unaccompanied children with
appropriate routine medical and dental
care; family planning services,
including pregnancy tests; medical
services requiring heightened ORR
involvement; emergency healthcare
services; a complete medical
examination (including screenings for
infectious diseases) generally within 48
hours of admission; appropriate
immunizations as recommended by the
Advisory Committee on Immunization
Practices’ Child and Adolescent
Immunization Schedule and approved
by HHS’ Centers for Disease Control and
prevention; administration of prescribed
medication and special diets; and
appropriate mental health interventions
when necessary.
ORR believes that the unique needs
and background of each unaccompanied
child should be assessed by emergency
or influx facilities to ensure that these
needs are being addressed and
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supported by the emergency or influx
facility. Therefore, under proposed
§ 410.1801(b)(3), and consistent with
ORR’s existing policy and practice, ORR
would require that each unaccompanied
child receive an individualized needs
assessment that includes: the various
initial intake forms, collection of
essential data relating to the
identification and history of the child
and the child’s family, identification of
the unaccompanied child’s special
needs including any specific problems
which appear to require immediate
intervention, an educational assessment
and plan, and an assessment of family
relationships and interaction with
adults, peers and authority figures; a
statement of religious preference and
practice; an assessment of the
unaccompanied child’s personal goals,
strengths and weaknesses; 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 connecting the child with family
members.
Access to education services for
unaccompanied children in care from
qualified professionals is critical to
avoid learning loss while in care and
ensure unaccompanied children are
developing academically. Under
proposed § 410.1801(b)(4), ORR would
require that emergency or influx
facilities provide educational services
appropriate to the unaccompanied
child’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. ORR
proposes that, as part of these minimum
services for unaccompanied children in
emergency or influx facilities, the
educational program shall include
instruction and educational and other
reading materials in such languages as
needed. Basic academic areas should
include Science, Social Studies, Math,
Reading, Writing and Physical
Education. The program must provide
unaccompanied children with
appropriate reading materials in
languages other than English for use
during leisure time.
ORR strongly believes that time for
recreation is essential to supporting the
health and wellbeing of unaccompanied
children. Under proposed
§ 410.1801(b)(5), ORR would require
that emergency or influx facilities
provide unaccompanied children with
activities according to a recreation and
leisure time plan that include daily
outdoor activity—weather permitting—
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with at least one hour per day of large
muscle activity and one hour per day of
structured leisure time activities (that
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.
The psychological and emotional
wellbeing of unaccompanied children
are an important component of their
overall health and wellbeing, and
therefore ORR is proposing that these
needs must be met by emergency or
influx facilities. Under proposed
§ 410.1801(b)(6), emergency or influx
facilities would be required to provide
at least one individual counseling
session per week conducted by trained
social work staff with the specific
objective of reviewing the child’s
progress, establishing new short-term
objectives, and addressing both the
developmental and crisis-related needs
of each child. Group counseling
sessions are another way that the
psychological and emotional wellbeing
of unaccompanied children can be
supported while in ORR care. Therefore,
under § 410.1801(b)(7), ORR proposes
that unaccompanied children would
also receive group counseling sessions
at least twice a week. Sessions are
usually informal and take place with all
unaccompanied children present. ORR
believes that these group sessions would
give new children the opportunity to get
acquainted with staff, other children,
and the rules of the program, as well as
provide them with an open forum where
everyone gets a chance to speak. Daily
program management is discussed, and
decisions are made about recreational
and other activities. ORR notes that
these group sessions would provide a
meaningful opportunity to allow staff
and unaccompanied children to discuss
whatever is on their minds and to
resolve problems.
At proposed § 410.1801(b)(8),
emergency or influx facilities would be
required to provide unaccompanied
children with acculturation and
adaptation services, which include
information regarding the development
of social and interpersonal skills which
contribute to those abilities necessary to
live independently and responsibly.
ORR believes these services are
important to supporting the social
development and meeting the cultural
needs of unaccompanied children in
emergency or influx facilities. ORR
proposes to require, under
§ 410.1801(b)(9), that emergency or
influx facilities provide a
comprehensive orientation regarding
program intent, services, rules (written
and verbal), expectations, and the
availability of legal assistance. In an
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effort to support each child’s spiritual
and religious practices, ORR proposes at
§ 410.1801(b)(10), that emergency or
influx facilities would be required to
provide unaccompanied children access
to religious services of the child’s choice
whenever possible. At the same time,
with respect to the obligations of care
provider facilities, ORR notes that it
operates the Unaccompanied Children
program in compliance with the
requirements of the Religious Freedom
Restoration Act and other applicable
Federal conscience protections, as well
as all other applicable Federal civil
rights laws and applicable HHS
regulations.134
ORR proposes at § 410.1801(b)(11)
that emergency or influx facilities
would make visitation and contact with
family members (regardless of their
immigration status) available to
unaccompanied children in such a way
that is structured to encourage such
visitation. ORR notes that the staff must
respect the child’s privacy while
reasonably preventing the unauthorized
release of the unaccompanied child.
Under proposed § 410.1801(b)(12),
unaccompanied children at emergency
or influx facilities would have a
reasonable right to privacy, which
includes the right to wear the child’s
own clothes when available, retain a
private space in the residential facility,
group or foster home for the storage of
personal belongings, talk privately on
the phone and visit privately with
guests, as permitted by the house rules
and regulations, receive and send
uncensored mail unless there is a
reasonable belief that the mail contains
contraband. ORR proposes at
§ 410.1801(b)(13) that unaccompanied
children at emergency or influx
facilities would be provided services
designed to identify relatives in the
United States as well as in foreign
countries and assistance in obtaining
legal guardianship when necessary for
the release of the unaccompanied child.
Under proposed § 410.1801(b)(14),
emergency or influx facilities would be
required to provide unaccompanied
children with legal services information,
including the availability of free legal
assistance, and that they may be
represented by counsel at no expense to
the government the right to a removal
hearing before an immigration judge; the
ability to apply for asylum with USCIS
in the first instance; and the ability to
request voluntary departure in lieu of
deportation.
ORR proposes at § 410.1801(b)(15)
that emergency or influx facilities,
whether state-licensed or not, must
134 See
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comply, to the greatest extent possible,
with State child welfare laws and
regulations (such as mandatory
reporting of abuse), as well as State and
local building, fire, health and safety
codes, that ORR determines are
applicable to non-State licensed
facilities. If there is a potential conflict
between ORR’s regulations and state
law, ORR will review the circumstances
to determine how to ensure that it is
able to meet its statutory
responsibilities. It is important to note,
however, that if a State law or license,
registration, certification, or other
requirement conflicts with an ORR
employee’s duties within the scope of
their ORR employment, the ORR
employee is required to abide by their
Federal duties. Under proposed
§ 410.1801(b)(16), emergency or influx
facilities must deliver services in a
manner that is sensitive to the age,
culture, native language, and needs of
each unaccompanied child. To support
this proposed minimum service,
emergency or influx facilities would be
required to develop an individual
service plan for the care of each child.
Finally, proposed § 410.1801(b)(17)
would require that the emergency or
influx facility maintains records of case
files and make regular reports to ORR.
Emergency or influx facilities must have
accountability systems in place, which
preserve the confidentiality of client
information and protect the records
from unauthorized use or disclosure.
At § 410.1801(c), ORR proposes that
emergency or influx facilities must do
the following when providing services
to unaccompanied children: (1)
Maintain safe and sanitary conditions
that are consistent with ORR’s concern
for the particular vulnerability of
minors; (2) Provide access to toilets,
showers and sinks, as well as personal
hygiene items such as soap, toothpaste
and toothbrushes, floss, towels,
feminine care items, and other similar
items; (3) Provide drinking water and
food; (4) Provide medical assistance if
the unaccompanied child is in need of
emergency services; (5) Maintain
adequate temperature control and
ventilation; (6) Provide adequate
supervision to protect unaccompanied
children; (7) separate from other
unaccompanied children those
unaccompanied children who are
subsequently found to have past
criminal or juvenile detention histories
or have perpetrated sexual abuse that
present a danger to themselves or
others; (8) Provide contact with family
members who were arrested with the
unaccompanied child; and (9) Provide
access to legal services as proposed at
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§ 410.1309 in this proposed rule. ORR
notes that these requirements are based
in part on standards described in the
FSA at paragraph 12A. Although ORR
understands these requirements apply
specifically to the conditions in DHS
facilities following initial arrest or
encounter by immigration officers at
DHS, nevertheless, because they set out
additional safeguards for
unaccompanied children, ORR proposes
to adopt them for purposes of
emergency or influx facilities under this
rule. In addition to these proposed
minimum standards, ORR proposes in
subpart D at § 410.1306, certain
language access requirements for care
provider facilities which directly relate
to these minimum requirements
described. Specifically, ORR proposes
that care provider facilities be required
to consistently offer unaccompanied
children the option of interpretation
services in their native or preferred
language to the greatest extent
practicable. This includes, but is not
limited to, providing language access
during intake and orientation, while
receiving healthcare services, while
receiving information related to the
sexual assault and abuse program, and
while being provided with legal
services. Additionally, consistent with
paragraph 12A of the FSA, ORR would
transfer an unaccompanied child to
another care provider facility if
necessary to provide adequate language
services. These language access
requirements are intended to protect
unaccompanied children’s interests and
ensure that they understand their legal
rights and options available to them, the
nature of ORR custody and the general
ORR principles regarding their care, and
that they have access to adequate and
effective legal representation if
necessary. Many of these services are
provided by case managers, who must
have a presence onsite at the emergency
or influx facility.
At § 410.1801(d), ORR proposes
certain scenarios in which ORR may
grant waivers for an emergency or influx
facility operator, either a contractor or
grantee, from the standards proposed
under § 410.1801(b). Specifically,
waivers may be granted for one or all of
the services identified under
§ 410.1801(b) if the facility is activated
for a period of six consecutive months
or less and ORR determines that such
standards are operationally infeasible.
For example, an emergency or influx
facility operator may be unable to
provide services at the site within the
timeframe required by ORR. ORR
determines whether certain standards
are operationally infeasible on a case-
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by-case basis, taking into consideration
the circumstances presented by a
specific emergency or influx facility.
ORR also would require that such
waivers be made publicly available.
Section 410.1802 Placement Standards
for Emergency or Influx Facilities
ORR proposes at § 410.1802 to codify
the criteria and requirements that apply
to placement of unaccompanied
children at emergency or influx
facilities. ORR notes that these proposed
requirements are consistent with
existing ORR practices currently
provided under section 7.2.1 of the ORR
Policy Guide.135
Under proposed § 410.1802(a), ORR
would require that, to the extent
feasible, unaccompanied children who
are placed in an emergency or influx
facility meet all of the following criteria:
the child (1) is expected to be released
to a sponsor within 30 days; (2) is age
13 or older; (3) speaks English or
Spanish as their preferred language; (4)
does not have a known disability or
other mental health or medical issue or
dental issue requiring additional
evaluation, treatment, or monitoring by
a healthcare provider; (5) is not a
pregnant or parenting teen; (6) would
not have a diminution of legal services
as a result of the transfer to an
unlicensed facility; and (7) is not a
danger to themselves or to others
(including not having been charged with
or convicted of a criminal offense).
Additionally, if ORR becomes aware
that a child does not meet any of the
criteria specified under § 410.1802(a) at
any time after placement into an
emergency or influx facility, ORR will
transfer the unaccompanied child to the
least restrictive setting appropriate for
that child’s need as expeditiously as
possible. ORR believes that these
proposed criteria will help to ensure
that the unaccompanied child is placed
in a setting that is appropriate to
accommodate the child’s specific needs.
ORR proposes at § 410.1802(b) that it
shall also consider the following factors
for the placement of an unaccompanied
child in an emergency or influx facility:
(1) the unaccompanied child should not
be part of a sibling group with a
sibling(s) age 12 years or younger; (2)
the unaccompanied child should not be
subject to a pending age determination;
(3) the unaccompanied child should not
be involved in an active State licensing,
child protective services, or law
enforcement investigation, or an
135 ORR Policy Guide 7.2.1, ‘‘Criteria for
Placement’’. Available at: https://www.acf.hhs.gov/
orr/policy-guidance/unaccompanied-childrenprogram-policy-guide-section-7.
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investigation resulting from a sexual
abuse allegation; (4) the unaccompanied
child should not have a pending home
study; (5) the unaccompanied child
should not be turning 18 years old
within 30 days of the transfer to an
emergency or influx facility; (6) the
unaccompanied child should not be
scheduled to be discharged in three
days or less; (7) the unaccompanied
child should not have a current set
docket date in immigration court or
State/family court (juvenile included),
not have a pending adjustment of legal
status, and not have an attorney of
record or EOIR accredited
representative; (8) the unaccompanied
child should be medically cleared and
vaccinated as required by the emergency
or influx care facility (for instance, if the
influx care facility is on a U.S.
Department of Defense site); and (9) the
unaccompanied child should have no
known mental health, dental, or medical
issues, including contagious diseases
requiring additional evaluation,
treatment, or monitoring by a healthcare
provider. ORR believes that these
proposed provisions will help support
the safe and appropriate placement of
unaccompanied children in ORR care.
Subpart J—Availability of Review of
Certain ORR Decisions
Section 410.1900 Purpose of This
subpart
Ensuring that placement decisions
involving restrictive placements,136
such as decisions to place
unaccompanied children in a restrictive
placement, to step-up a child to a more
restrictive level of care, to step-down a
child from one restrictive placement to
another (e.g., from secure to a
heightened supervision facility), or to
continue to keep a child in a restrictive
placement, are subject to review is
fundamental to ensuring
unaccompanied children are placed in
the least restrictive setting that is in
their best interest while also considering
the safety of others and runaway risk.
ORR believes that establishing the
availability of administrative review
helps ensure, for the minority of
unaccompanied children that are placed
in restrictive placements, that such
placement is appropriate and based on
clear and convincing evidence, as
discussed in subpart B. ORR notes that
its proposals in this subpart are
consistent with the preliminary
injunction issued on August 30, 2022 in
Lucas R. v. Becerra, as discussed in
section IV.A.4. of this proposed rule.
136 In § 410.1001, restrictive placement is defined
to include a secure facility, heightened supervision
facility, or RTC.
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Under proposed § 410.1900, ORR would
establish that the purpose of this
subpart is to describe the availability of
review of certain ORR decisions
regarding the care and placement of
unaccompanied children.
Section 410.1901 Restrictive
Placement Case Reviews
ORR is required under the TVPRA to
place unaccompanied children in the
least restrictive setting that is in their
best interests, and in making placements
may consider danger to self, danger to
the community, and runaway risk.137
ORR believes that this requirement
entails consideration of the safety of
individual unaccompanied children
whom it places, as well as the other
unaccompanied children who have
already been placed at the same care
provider facility. ORR continually and
routinely assesses whether an
unaccompanied child’s placement in a
restrictive placement meets the criteria
for such placements as discussed in
proposed § 410.1105 Criteria for Placing
an Unaccompanied Child in Restrictive
Placement. Under proposed
§ 410.1901(a), and consistent with the
preliminary injunction in the Lucas R.
case discussed above, in all cases
involving restrictive placements, ORR
would determine, based on clear and
convincing evidence, that sufficient
grounds exist for stepping up or
continuing to hold an unaccompanied
child in a restrictive placement. ORR is
further proposing a requirement that the
evidence supporting a restrictive
placement decision be recorded in the
unaccompanied child’s case file.
ORR believes that it is imperative that
unaccompanied children placed in
restrictive placements understand the
reasons for their placement and their
rights, including their right to contest
such a placement and their right to
counsel. Therefore, under proposed
§ 410.1901(b), ORR would require that a
written Notice of Placement (NOP) be
provided to unaccompanied children no
later than 48 hours after step-up to a
restrictive placement, as well as at least
every 30 days an unaccompanied child
remains in a restrictive placement. ORR
notes that whenever possible, ORR
seeks to provide NOPs in advance of a
step-up to a restrictive placement. ORR
further proposes requiring that the NOP
clearly and thoroughly set forth the
reason(s) for placement and a summary
of supporting evidence under proposed
§ 410.1901(b)(1); inform the
unaccompanied child of their right to
contest the restrictive placement before
the Placement Review Panel (PRP) upon
137 8
U.S.C. 1232(c)(2)(A).
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receipt of the NOP, the procedures by
which the unaccompanied child may do
so, and all other available
administrative review processes under
§ 410.1901(b)(2); and include an
explanation of the unaccompanied
child’s right to be represented by
counsel in challenging such restrictive
placements under § 410.1901(b)(3).
Finally, to ensure that the
unaccompanied child understands the
information provided under this
paragraph, ORR is proposing that a case
manager would be required to explain
the NOP to the unaccompanied child, in
the child’s native or preferred language,
depending on the child’s preference,
and in a way the child understands,
under § 410.1901(b)(4). ORR notes that
communications with unaccompanied
children would be required to meet
ORR’s proposed language access
standards under § 410.1306.
As part of ensuring that
unaccompanied children are informed
regarding their restrictive placement, it
is critical that any legal counsel or other
representative or advocate, and parent
or guardian for an unaccompanied child
also receive such notification.
Therefore, under § 410.1901(c), ORR is
proposing to require that the care
provider facility provide a copy of the
NOP to the unaccompanied child’s legal
counsel of record, legal service provider,
child advocate, and to a parent or legal
guardian of record, no later than 48
hours after step-up, as well as every 30
days the unaccompanied child remains
in a restrictive placement. ORR notes
that this proposed requirement may be
subject to specific child welfare-related
exceptions.
ORR believes that placements of
unaccompanied children in restrictive
placements should be routinely assessed
to ensure they meet the criteria at
proposed § 410.1105. If unaccompanied
children do not meet the criteria, they
should accordingly be stepped up or
stepped down to a placement that is the
least restrictive setting that is in their
best interests, prioritizing their safety
and the safety of others. Under proposed
§ 410.1901(d), ORR would establish
regular administrative reviews for
restrictive placements. ORR is
proposing regular intervals for
administrative reviews depending on
the type of restrictive placement: 30day, at minimum, for all restrictive
placements under proposed
§ 410.1901(d)(1); more intensive 45-day
reviews by ORR supervisory staff for
unaccompanied children in secure
facilities, under proposed
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§ 410.1901(d)(2).138 For unaccompanied
children in RTCs, the 30-day review at
proposed § 410.1901(d)(1) would be
required to involve a psychiatrist or
psychologist to determine whether the
unaccompanied child should remain in
restrictive residential care, under
proposed § 410.1901(d)(3). ORR
welcomes public comment on these
proposals.
Section 410.1902
Panel.
Placement Review
ORR believes that unaccompanied
children who are placed in a restrictive
placement should have the ability to
request reconsideration of their
placement at any time after receiving an
NOP. Consistent with existing policy,
under proposed paragraph (a), ORR
would convene a Placement Review
Panel (PRP) when an unaccompanied
child requests reconsideration of their
placement in a restrictive placement, for
the purposes of reviewing the
unaccompanied child’s reconsideration
request. Under current practice, the PRP
is a three-member panel consisting of
ORR’s senior-level career staff with
requisite experience in child welfare,
including restorative justice, adverse
childhood experiences, special
populations, and/or mental health.
Under proposed § 410.1902(a), upon
request for reconsideration of their
placement in a restrictive placement,
ORR would afford the unaccompanied
child a hearing before the PRP, at which
the unaccompanied child may, with the
assistance of counsel if preferred,
present evidence on their own behalf.
An unaccompanied child may present
witnesses and cross-examine ORR’s
witnesses, if such witnesses are willing
to voluntarily testify. ORR notes that an
unaccompanied child and/or their legal
counsel of record are provided with the
child’s case file information, in
accordance with ORR’s case file
policies. An unaccompanied child that
does not wish to request a hearing may
also have their placement reconsidered
by submitting a request for a
reconsideration along with any
supporting documents as evidence.
Under proposed § 410.1902(b), the
PRP would afford any unaccompanied
children in a restrictive placement the
opportunity to request a PRP review as
soon as the unaccompanied child
receives a NOP and anytime thereafter.
Under proposed § 410.1902(c), ORR
would require itself to convene the PRP
within a reasonable timeframe, to allow
138 If, hypothetically, an unaccompanied child
was in secure care for 90 days, they would receive
both their third 30-day review and their second,
more intensive 45-day review concurrently.
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the unaccompanied child to have a
hearing without undue delay. ORR
would require, under proposed
§ 410.1902(d), that the PRP would issue
a decision within 30 calendar days of
the PRP request whenever possible.
ORR believes these requirements would
help ensure reconsideration requests are
decisioned in a timely manner.
Finally, ORR believes ORR staff
members should be recused from
participation in a PRP under certain
circumstances to help ensure an
impartial reconsideration of an
unaccompanied child’s placement.
Under proposed § 410.1902(e), ORR
would require that an ORR staff member
who was involved with the decision to
step up an unaccompanied child to a
restrictive placement may not serve as a
Placement Review Panel member with
respect to that unaccompanied child’s
placement.
ORR welcomes public comment on
these proposals.
Section 410.1903 Risk Determination
Hearings
The decision in Flores v. Sessions,
862 F.3d 863 (9th Cir. 2017), held that
notwithstanding the passage of the HSA
and the TVPRA, unaccompanied
children in ORR custody continue to
have the ability to seek a bond hearing
before an immigration judge in every
case, unless waived by the
unaccompanied child.139 The proposed
regulations under this section are
intended to afford the same type of
hearing for unaccompanied children,
while recognizing that the HSA, enacted
after the FSA went into effect,
transferred the responsibility of care and
custody of unaccompanied children
from the former INS to ORR.140
Under proposed § 410.1903, ORR
would establish a hearing process that
provides the same substantive
protections as immigration court bond
hearings under the FSA, but through an
independent and neutral HHS hearing
officer. Further, these hearings would
take place at HHS rather than the
Department of Justice (DOJ). This
arrangement would parallel the
arrangement under the FSA because
when the FSA was enacted, the former
INS, which then was responsible for the
custody of unaccompanied minors, and
the immigration courts were located in
the same department, DOJ. Similarly,
ORR proposes the availability of risk
determination hearings before hearing
officers who are within the same
department, HHS, but independent of
ORR. ORR believes that utilizing an
139 See
140 See
FSA at paragraph 24A.
6 U.S.C. 279(a).
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independent hearing officer within HHS
would help prevent undue delay for a
hearing while the unaccompanied child
is in ORR care because generally HHS
hearing schedules have greater
availability in the short term,
particularly as compared to immigration
courts. ORR notes that it codified a
similar provision in the 2019 Final Rule
which the Ninth Circuit held was
consistent with the FSA, except where
it did not automatically place
unaccompanied children in restrictive
placements in bond hearings.141 ORR
now proposes to implement a process
substantially the same as the one in the
2019 Final Rule, but updated to conform
with the Ninth Circuit’s ruling.
Unlike typical ‘‘bond redetermination
hearings’’ in the immigration court
context, which refer to an immigration
judge’s review of a custody decision,
including any bond set, by DHS,142 ORR
does not require payment of money in
relation to any aspect of its care and
placement. Instead, the function of risk
determination hearings in the ORR
context is to determine whether an
unaccompanied child would be a
danger to the community or a runaway
risk if released.143 With respect to these
functions, ORR notes, first, that
consistent with its discretion as
described at 8 U.S.C. 1232(c)(2)(A), it
does not consider runaway risk when
making release decisions regarding
unaccompanied children in its care. As
a result, unlike when the FSA was
implemented in 1997, runaway risk is
no longer a relevant issue in risk
determination hearings for
unaccompanied children.144 Therefore,
the relevant issue for risk determination
hearings for unaccompanied children is
whether they would present a danger if
released from ORR custody. With
respect to this function, ORR notes that
for the great majority of unaccompanied
children in ORR custody, it has
determined they are not a danger and
therefore has placed them in non141 See Flores v. Rosen, 984 F. 3d 720 (9th Cir.
2020).
142 See 8 CFR 1003.19, 1236.1.
143 See Flores v. Lynch, 392 F. Supp. 3d 1144,
1150 (C.D. Cal. 2017) (‘‘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.’’).
144 In contrast, under paragraph 14 of the FSA the
former INS would detain a minor if detention was
required ‘‘to secure his or her timely appearance
before the INS or immigration court.’’ As a result,
as they pertained to the former INS, bond hearings
afforded an opportunity for the unaccompanied
children to have a hearing before an independent
officer to determine whether the unaccompanied
children in fact posed a risk of flight if released
from custody.
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restrictive placements such as shelters
and group homes. These
unaccompanied children remain in ORR
care only because a suitable sponsor has
not yet been found.
Under proposed § 410.1903(a), ORR
would codify that all unaccompanied
children in restrictive placements
would be afforded a risk determination
hearing before an independent HHS
hearing officer to determine, through a
written decision, whether the
unaccompanied child would present a
risk of danger to the community if
released, unless the unaccompanied
child indicates in writing that they
refuse such a hearing. For all other
unaccompanied children in ORR
custody, ORR proposes that they may
request such a hearing.
ORR is proposing to establish a
process for providing notifications and
receiving requests related to risk
determination hearings. Under proposed
§ 410.1903(a)(1), ORR would require
that requests under this section be made
in writing by the unaccompanied child,
their attorney of record, or their parent
or legal guardian by submitting a form
provided by ORR to the care provider
facility or by making a separate written
request that contains the information
requested in ORR’s form. Under
proposed § 410.1903(a)(2),
unaccompanied children in restrictive
placements based on a finding of
dangerousness would automatically be
provided a risk determination hearing,
unless they refuse in writing. They
would also receive a notice of the
procedures under this section and
would be able to use a form provided to
them to decline a hearing under this
section. ORR proposes that
unaccompanied children in restrictive
placements may decline the hearing at
any time, including after consultation
with counsel. ORR would require that
such choice be communicated to ORR in
writing.
ORR is proposing to establish
procedures related to risk determination
hearings so that the roles of each party
are clear. Under proposed § 410.1903(b),
ORR would bear an initial burden of
production, providing relevant
arguments and documents to support its
determination that an unaccompanied
child would pose a danger if discharged
from ORR care and custody. Then, ORR
is proposing that the unaccompanied
child would have a burden of
persuasion to show that they would not
be a danger to the community if
released, under a preponderance of the
evidence standard. ORR notes that it has
established a subregulatory process to
ensure access to case files and
documents for unaccompanied children
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and their legal counsel in a timely
manner for these purposes. Under
proposed paragraph (c), the
unaccompanied child would have the
ability to be represented by a person of
the unaccompanied child’s choosing,
would be permitted to present oral and
written evidence to the hearing officer,
and would be permitted to appear by
video or teleconference. Finally, ORR is
proposing that ORR may also choose to
present evidence at the hearing, whether
in writing, or by appearing in person or
by video or teleconference.
ORR is also proposing regulations
related to hearing officers’ decisions in
risk determination hearings. First, under
proposed paragraph (d), a decision that
an unaccompanied child would not be
a danger to the community if released
would be binding upon ORR unless
appealed. ORR believes that
unaccompanied children must also have
the availability to appeal decisions
finding that they are a danger to the
community if released. However, HHS
does not have a two-tier administrative
appellate system that closely mirrors
that of the EOIR within the DOJ, where
immigration court decisions may be
appealed to the Board of Immigration
Appeals. To provide similar protections
without such a two-tier system, ORR is
proposing to allow appeals to the
Assistant Secretary of ACF or their
designee. Therefore, under
§ 410.1903(e), ORR is proposing that
decisions under this section may be
appealed to the Assistant Secretary of
ACF, or the Assistant Secretary’s
designee. ORR is proposing that appeal
requests be in writing and be received
by the Assistant Secretary or their
designee within 30 days of the hearing
officer’s decision under § 410.1903(e)(1).
Under § 410.1903(e)(2), ORR is
proposing that the Assistant Secretary,
or their designee, will reverse a hearing
officer decision only if there is a clear
error of fact, or if the decision includes
an error of law. Further, under
§ 410.1903(e)(3), ORR is proposing that
if the hearing officer finds that the
unaccompanied child would not pose a
danger to the community if released,
and such decision would result in ORR
releasing the unaccompanied child from
its custody (e.g., because ORR had
otherwise completed its assessment for
the release of the unaccompanied child
to a sponsor, and the only factor
preventing release was its determination
that the unaccompanied child posed a
danger to the community), an appeal to
the Assistant Secretary would not effect
a stay of the hearing officer’s decision,
unless the Assistant Secretary or their
designee issues a decision in writing
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within five business days of such
hearing officer decision that release of
the unaccompanied child would likely
result in a danger to the community.
ORR is proposing to require that such a
stay decision must include a description
of behaviors of the unaccompanied
child while in ORR custody and/or
documented criminal or juvenile
behavior records from the
unaccompanied child demonstrating
that the unaccompanied child would
present a danger to community, if
released.
Alternatively, ORR is considering an
appeal structure under which a
politically accountable official (e.g., the
Assistant Secretary of ACF, or their
designee) would have discretion to
conduct de novo review of hearing
officer determinations. As under the
current proposed approach, the official
conducting de novo review would be
able to reverse hearing officer
determinations. But unlike the current
proposed approach, the official would
not be constrained to reversing hearing
officer determinations based only on
clear error of fact, or error of law.
Instead, the official would step into the
position of the hearing officer and redecide the issues. We request comments
as to whether ORR should adopt this
alternative scheme.
ORR reiterates that in the context of
risk determination hearings, although a
finding of non-dangerousness may
result in an unaccompanied child’s
release, neither the hearing officer nor
the Assistant Secretary, on appeal, may
order the release or change of placement
of an unaccompanied child. Placement
and release decision-making authority is
vested in the Director of ORR under the
HSA and TVPRA.145 The fundamental
question at issue in an ORR risk
determination hearing is whether an
unaccompanied child would pose a
danger to the community if released.146
ORR is proposing under § 410.1903(f)
that decisions under this section would
145 See 8 U.S.C. 1232(c)(3); see also Flores v.
Sessions, 862 F.3d 863, 868 (9th Cir. 2017) (‘‘As was
the case under the Flores Settlement prior to the
passage of the HSA and TVPRA, the determinations
made at hearings held under Paragraph 24A will
not compel a child’s release. Regardless of the
outcome of a bond hearing, a minor may not be
released unless the agency charged with his or her
care identifies a safe and appropriate placement.’’).
146 To the extent the hearing officer or Assistant
Secretary, or designee, makes other findings with
respect to the unaccompanied children, ORR will
consider those in making placement and release
decisions. For example, if a hearing officer finds
that the child is not a flight risk, ORR will consider
that finding when assessing the child’s placement
and conditions of placement—though the decision
does not affect release because ORR does not make
a determination of flight risk for purposes of
deciding whether a child will be released.
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be final and binding on the Department,
meaning that when deciding whether to
release an unaccompanied child (in
accordance with the ordinary
procedures on release for
unaccompanied children as discussed
in subpart C of this proposed rule), the
ORR Director would not be able to
disregard a determination that an
unaccompanied child is not a danger.
Further, in the case of an
unaccompanied child who was
determined to pose a danger to the
community if released, the child would
be permitted to seek another hearing
under this section only if they can
demonstrate a material change in
circumstances. Similarly, because ORR
may not have located a suitable sponsor
at the time a hearing officer issues a
decision, it 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, ORR is proposing that it 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/or ORR can show
that a material change in circumstances
means the unaccompanied child should
no longer be released due to presenting
a danger to the community. Based on
experience under current policies, ORR
believes one month is a reasonable
length of time for a material change in
circumstances to have occurred and best
balances operational constraints with
the safety concerns of all children under
ORR care. It also ensures that children
who have newly exhibited dangerous
behaviors are accurately adjudicated.
ORR notes that it previously proposed
and finalized this same length of time
(one month) in the 2019 Final Rule.
ORR notes that because it always seeks
to release an unaccompanied child to a
sponsor whenever appropriate, ORR can
make determinations to release a child
previously determined to be a danger to
the community without a new risk
determination hearing because the
purpose of a risk determination hearing
is to ensure a child who is not a danger
to the community is not kept in ORR
custody.
ORR is proposing under § 410.1903(g)
that this section cannot be used to
determine whether an unaccompanied
child has a suitable sponsor, and neither
the hearing officer nor the Assistant
Secretary, or the Assistant Secretary’s
designee, would be authorized to order
the unaccompanied child released. This
means that an unaccompanied child
that has been determined by a hearing
officer to not present a danger would
only be released in accordance with the
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ordinary procedures on release for
unaccompanied children as discussed
in subpart C of this proposed rule.
Finally, ORR is proposing under
§ 410.1903(h) that this section may not
be invoked to determine an
unaccompanied child’s placement while
in ORR custody or to determine level of
custody for the unaccompanied child.
Under this proposed section, the
purpose of a risk determination hearing
is only to determine whether an
unaccompanied child presents a danger
to the community if released, not to
determine placement or level of
custody. ORR would determine
placement and level of custody as part
of its ordinary procedures for the
placement of unaccompanied children
as discussed in subpart B of this
proposed rule. That said, ORR would be
able to take into consideration the
hearing officer’s decision on an
unaccompanied child’s level of danger
(and runaway risk) for those purposes.
Subpart K—UC Office of the Ombuds
ORR proposes establishing an
independent ombuds office that would
promote important protections for all
children in ORR care. An ombuds office
to address unaccompanied children’s
issues does not currently exist, and ORR
believes that the creation of an ombuds
office would advance its duty to
‘‘ensur[e] that the interests of the child
are considered in decisions and actions
relating to the care and custody of an
unaccompanied alien child.’’ 147 An
ombuds for the UC Program would be
an independent, impartial, and
confidential public official with
authority and responsibility to receive,
investigate and informally address
complaints about government actions,
make findings and recommendations
and publicize them when appropriate,
and publish reports on its activities.
Although an ombud’s office would not
have authority to compel ORR to take
certain actions, ORR believes an Office
of the Ombuds would provide a
mechanism by which unaccompanied
children, sponsors, and other
stakeholders, including ORR agency
staff and care provider facility staff,
could confidentially raise concerns with
an independent, impartial entity that
could conduct investigations and make
recommendations to ORR regarding
program operations and decisionmaking, and refer concerns to other
Federal agencies (e.g., HHS Office of the
Inspector General, Department of
Justice, etc.) or entities. ORR believes
that an Office of the Ombuds is a sound
solution to serve a similar function as
147 6
U.S.C. 279(b)(1)(B).
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the oversight currently provided by the
Flores monitor. While this proposed
section would not create an oversight
mechanism with authorities that equate
with court oversight under a consent
decree, ORR notes that it is important to
maintain an independent mechanism to
identify and report concerns regarding
the care of unaccompanied children; it
further believes that this independent
mechanism should have the ability to
investigate such claims, to work
collaboratively with ORR to potentially
resolve such issues, and publish reports
on its activities. ORR therefore proposes
to add new subpart K to part 410 to
establish the UC Office of the Ombuds.
Key Principles of an Office of the
Ombuds
ORR reviewed literature published by
several national organizations—
including the Administrative
Conference of the United States (ACUS),
American Bar Association (ABA),
International Ombudsman Association
(IOA), the United States Ombudsman
Association (USOA), and the Coalition
of Federal Ombudsman (COFO)—
pertaining to standards of practice and
establishment of ombuds offices.148 The
literature identifies independence,
confidentiality, and impartiality as core
standards of any Federal ombuds office.
The literature also identifies common
definitional characteristics among
Federal ombuds offices, such as
informality (i.e., ombuds offices do not
make decisions binding on the agency
or provide formal rights-based processes
for redress) and a commitment to
credible practices and procedures. In
addition, most ombuds offices adhere to
the concepts of providing credible
review of the issues that come to the
office, a commitment to fairness, and
assistance in the resolution of issues
without making binding agency
decisions.149 These attributes align with
ORR’s goals for the creation of an office
148 For example, see Standards Committee of the
United States Ombudsman Association,
Governmental Ombudsmen Standards (2003) at 1,
https://www.usombudsman.org/wp-content/
uploads/USOA-STANDARDS1.pdf (promoting a
model that defines a governmental ombudsman as
an independent, impartial public official with
authority and responsibility to receive, investigate
or informally address complaints about Government
actions, and, when appropriate, make findings and
recommendations, and publish reports). See also
Houk et al., A Reappraisal–The Nature and Value
of Ombudsmen in Federal Agencies, Administrative
Conference of the United States (2016) at 258–67,
https://www.acus.gov/report/ombudsman-federalagencies-final-report-2016 (‘‘2016 ACUS Report’’)
(reviewing association standards and practices of
different Federal ombudsman offices, and
concluding that independent, confidentiality, and
impartiality are essential to the ombudsman
profession.).
149 2016 ACUS Report at 28.
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that can provide an independent and
impartial body that can receive reports
and grievances regarding the care,
placement, services, and release of
unaccompanied children. ORR therefore
proposes the creation of an Office of the
Ombuds that incorporates lessons and
recommendations identified in the 2016
ACUS report, follows the model of other
established Federal ombuds offices, and
takes into consideration feedback from
interested parties.
Section 410.2000 Establishment of the
UC Office of the Ombuds
ORR proposes, at § 410.2000, to
establish a UC Office of the Ombuds. As
the literature identified independence of
the office as one of the key standards of
an ombuds, ORR proposes in
§ 410.2000(a) that the ombuds will
report directly to the ACF Assistant
Secretary and will be managed as a
distinct entity separate from the UC
Program. ORR requests input on options
relating to placement and reporting
structure of this office within ORR or in
another part of ACF.
At § 410.2000(b), ORR proposes that
the UC Office of the Ombuds would be
an independent, impartial office with
authority to confidentially and
informally receive and investigate
complaints and concerns related to
unaccompanied children’s experiences
in ORR care. This paragraph captures
two additional key standards of an
ombuds identified by literature:
impartiality and confidentiality. ORR
notes the UC Office of the Ombuds
would not serve as a legal advocate for
any person or issue binding decisions;
rather, it would work as a neutral third
party that can investigate concerns and
attempt to resolve issues which are
brought to the office. ORR intends for
the UC Office of the Ombuds to be an
additional resource for the UC Program
and ORR, unaccompanied children,
their sponsors and advocates, and other
interested parties. The UC Office of the
Ombuds will not supplant other roles
and responsibilities of other entities
such as the HHS/Office of Inspector
General, ORR’s own monitoring
activities of its grants and contracts, or
services included in this proposed rule,
such as child advocate services
(discussed in § 410.1308 of this
proposed rule) or Legal Services
(discussed in § 410.1309 of this
proposed rule). Rather, the UC Office of
the Ombuds would be responsible for
acting as a neutral third party to receive,
investigate, or address complaints about
Government actions.
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Section 410.2001 UC Office of the
Ombuds Policies and Procedures;
Contact Information.
At proposed § 410.2001(a) and (b), the
UC Office of the Ombuds shall develop
and make publicly available the office’s
standards, practices, and policies and
procedures giving consideration to the
recommendations by nationally
recognized ombuds organizations. ORR
requests comments identifying potential
standards, practices, and policies and
procedures for ombuds consideration.
For example, ORR requests comments
regarding whether the UC Office the
Ombuds should adopt standards,
practices, and policies and procedures
that are consistent with the ABA, IOA,
USOA, COFO, or another nationally
recognized ombuds organization that
ORR should consider.
ORR further proposes in § 410.2001(c)
that the UC Office of the Ombuds ensure
that information about the office,
including how to contact the office, is
publicly available and that the office
provide notice to unaccompanied
children, sponsors, and others of its
scope and responsibilities, in both
English and other languages spoken and
understood by unaccompanied children
in ORR care. Notice shall be provided in
an accessible manner, including through
the provision of auxiliary aids and
services and in clear, easily understood
language, using concise and concrete
sentences and/or visual aids. ORR’s
review of other ombuds office outreach
activities found multiple approaches to
raising awareness about an ombuds
office, such as flyers, information posted
at care provider facilities, a website and
onsite visits to facilities or
constituents.150 ORR proposes
providing the UC Office of the Ombuds
with the discretion to determine the best
approaches to providing outreach and
awareness of the ability to act as a
neutral third party, including visiting
ORR facilities and publishing aggregated
information annually about the number
and types of concerns the UC Office of
the Ombuds receives.
Section 410.2002 UC Office of the
Ombuds Scope and Responsibilities
The 2016 ACUS Report described
different kinds of ombuds offices which
perform different functions based on
their mandates. They may identify new
issues and patterns of concerns that are
not well known or are being ignored;
support procedural changes; contribute
150 See, e.g., 9 NYCRR 177.7 (NYS Office of
Children and Family Services; Regulations for the
Office of the Ombudsman; Visits to Facilities and
Programs) and 6 U.S.C. 205 (Ombudsman for
Immigration Detention).
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to significant cost savings by dealing
with identified issues, often at the
earliest or pre-complaint stages, thereby
reducing litigation and settling serious
disputes; prevent problems through
training and briefings; and serve as an
important liaison between colleagues,
units, or agencies.151 ORR intends to
establish an ombuds office as an
independent, impartial office with
authority to receive and investigate
issues and concerns related to
unaccompanied children’s experience
in ORR care.
In § 410.2002(a), ORR proposes that
the scope of the activities of the UC
Office of the Ombuds may include:
reviewing ORR compliance with Federal
law and meeting with interested parties
to hear input on ORR’s implantation of
and adherence to Federal law; visiting
ORR facilities where unaccompanied
children are or will be housed;
investigating issues or concerns related
to unaccompanied children’s access to
services while in ORR care; reviewing
the implementation and execution of
ORR policy and procedures; reviewing
individual circumstances that raise
concerns such as issues with access to
services, communications with
advocates or sponsors, transfers, or
discharge from ORR care; and providing
general education and information
about ORR and the legal and regulatory
landscape relevant to unaccompanied
children. ORR proposes that the UC
Office of the Ombuds may request
information and documents from ORR
and ORR care provider facilities and
shall be provided with the information
and documents to the fullest extent
possible. ORR further proposes that the
UC Office of the Ombuds may
recommend new or revised UC Program
policies and procedures, or other
process improvements. ORR includes
these anticipated areas of activity at
proposed § 410.2002(a).
ORR anticipates that the UC Office of
the Ombuds may have the opportunity
to not only field individual concerns
from unaccompanied children, their
representatives, and program and
facility staff, but may also identify
patterns of concerns and may be well
positioned to offer recommendations to
improve ORR program processes and
procedures. ORR proposes that, as an
independent office reporting to the ACF
Assistant Secretary, the UC Office of the
Ombuds may determine its caseload and
agenda and expects that such caseload
may vary due to a variety of
circumstances.
In § 410.2002(b), ORR proposes that,
because the UC Office of the Ombuds is
not an enforcement entity, it should
have the discretion to refer matters to
other offices or entities, such as state or
local law enforcement or the Office of
Inspector General (OIG), as appropriate.
Finally, to assist the UC Office of the
Ombuds in accomplishing its
responsibilities, ORR proposes in
§ 410.2002(c) that the Ombuds must be
able to meet with unaccompanied
children in ORR care upon receiving a
complaint or based on relevant findings
during the course of investigating issues
or concerns; have access to ORR
facilities, premises, and case file
information; and have access to care
provider and Federal staff responsible
for the children’s care.
Section 410.2003 Organization of the
UC Office of the Ombuds
The 2016 ACUS Report recommends
that agencies should support the
credibility of offices of the ombuds by
selecting an ombuds with sufficient
professional stature and requisite
knowledge, skills, and abilities to
effectively execute the duties of the
office.152 This should include, at a
minimum, knowledge of informal
dispute resolution practices as well as,
depending on the office mandate,
familiarity with process design, training,
data analysis, and facilitation and group
work with diverse populations.153 To
align with the recommendations, ORR
proposes in § 410.2003(a) that the UC
Ombuds should be hired as a career
civil servant. ORR believes that
requiring the UC Ombuds position be
hired as a career civil servant, rather
than a political appointee, will support
the important goal of impartiality. In
§ 410.2003(b), ORR proposes that the UC
Ombuds have the requisite knowledge
and experience to effectively fulfill the
work and role, including membership in
good standing in a nationally recognized
organization, state bar association, or
association of ombudsmen. Expertise
should include but is not limited to
informal dispute resolution practices,
services and matters related to
unaccompanied children and in child
welfare, familiarity and experience with
oversight and regulatory matters, and
knowledge of ORR policy and
regulations. In addition, ORR proposes
in § 410.2003(c) that the Ombuds may
engage additional staff as it deems
necessary and practicable to support the
functions and responsibilities of the
Office; and, at § 410.2003(d), ORR
proposes that the UC Ombuds shall
establish procedures for training,
certification, and continuing education
152 2016
151 2016
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153 2016
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ACUS Report at 66.
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for staff and other representatives of the
Office.
VI. Collection of Information
Requirements
Section 410.2004
Under the Paperwork Reduction Act
of 1995 (PRA), HHS is required to
provide 60-day notice in the Federal
Register and solicit public comment
before a collection of information
requirement is submitted to the Office of
Management and Budget (OMB) for
review and approval. An agency may
not conduct or sponsor, and a person is
not required to respond to, a collection
of information unless it displays a
control number assigned by OMB. This
proposed rule does not require
information collections for which HHS
plans to seek OMB approval.
Under proposed § 410.1902, as
discussed in section V. of this proposed
rule, ORR proposes to establish
processes for unaccompanied children
to appeal the denial of release and for
certain prospective sponsors to appeal
sponsorship denials. While this appeals
process may require unaccompanied
children or prospective sponsors to
submit information to ORR, information
collections imposed subsequent to an
administrative action are not subject to
the PRA under 5 CFR 1320.4(a)(2).
Therefore, ORR is not estimating any
information collection burden
associated with this process.
ORR has reviewed the requirements
being codified in subparts A and B and
determined that the regulatory burden
associated with reporting and
recordkeeping requirements is
accounted for under OMB control
number 0970–0554 (Placement and
Transfer of Unaccompanied Children
into ORR Care Provider Facilities) and
OMB control number 0970–0547
(Administration and Oversight of the
Unaccompanied Children Program).
ORR is not proposing any new
requirements which result in a change
in burden.
ORR has reviewed the requirements
being codified in subpart C and
determined that the regulatory burden
associated with reporting and
recordkeeping requirements is
accounted for under OMB control
number 0970–0278 (Family
Reunification Packet for Sponsors of
Unaccompanied Children), OMB
control number 0970–0552 (Release of
Unaccompanied Children from ORR
Custody) and OMB control number
0970–0553 (Services Provided to
Unaccompanied Children). ORR is not
proposing any new requirements which
result in a change in burden.
ORR has reviewed the requirements
being codified in subpart D and
determined that the regulatory burden
associated with reporting and
Confidentiality
At proposed § 410.2004(a), ORR
proposes basic requirements that the
Ombuds ensure that records and
proceedings should be kept in a
confidential manner, except to address
an imminent risk of serious harm or in
response to judicial action.
Additionally, the Ombuds is prohibited
from using or sharing information for
any immigration enforcement related
purpose. This proposal is in line with
the 2016 ACUS Report identification of
confidentiality of ombuds
communications and proceedings as
being of paramount importance to
encourage reporting of concerns,
thereby affording the ombuds the
opportunity to assist the constituent and
the agency in resolving the concern.154
ORR also proposes at § 410.2004(b) that
the UC Office of the Ombuds may
accept reports from anonymous
reporters.
To align to these goals and to help in
the development of the UC Office of the
Ombuds, ORR requests public comment
on best practices for preserving the
confidentiality of parties that may
submit a complaint, as well as building
trust in the confidentiality of the office
so that individuals feel comfortable and
safe, without the fear of retaliation, to
report concerns.
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Request for Information
ORR believes the UC Office of the
Ombuds should be intentionally
designed and requests any other
comments and input on how the
Ombuds should handle concerns
relating to ORR practices. ORR therefore
includes a request for information for
additional public input on the proposed
UC Office of the Ombuds. ORR seeks
public comment on whether the Office
should provide services relating to
oversight in other areas, including more
generalized concerns about ORR
conduct and services. ORR also seeks
comment on potential intersections
between the Ombuds and other avenues
for mitigation or redress of grievances
(e.g., the ORR Placement Review Panel).
Additionally, ORR seeks comment on
additional independent and impartial
mechanisms to address grievances or
complaints related to children’s
experiences in ORR care.
Finally, ORR welcomes comments on
other organizational and structural
matters relevant to the proposed UC
Office of the Ombuds.
154 2016
ACUS Report at 41.
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recordkeeping requirements is
accounted for under OMB control
number 0970–0547 (Administration and
Oversight of the Unaccompanied
Children Program), OMB control
number 0970–0564 (Monitoring and
Compliance for Office of Refugee
Resettlement (ORR) Care Provider
Facilities), and OMB control number
0970–0565 (Legal Services for
Unaccompanied Children). ORR is not
proposing any new requirements which
result in a change in burden.
ORR has reviewed the requirements
being codified in subparts E through I
and determined that the regulatory
burden associated with reporting and
recordkeeping requirements is
accounted for under OMB control
number 0970–0554 (Placement and
Transfer of Unaccompanied Children
into ORR Care Provider Facilities). ORR
is not proposing any new requirements
which result in a change in burden.
ORR has reviewed the requirements
being codified in subpart J and
determined that the regulatory burden
associated with reporting and
recordkeeping requirements is
accounted for under OMB control
number 0970–0565 (Legal Services for
Unaccompanied Children). ORR is not
proposing any new requirements which
result in a change in burden.
VII. Regulatory Impact Analysis
Executive Orders 12866 and 13563
direct agencies to assess all 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). Section 3(f) of Executive Order
12866, as amended by Executive Order
14094, defines a ‘‘significant regulatory
action’’ as an action that is likely to
result in a rule: (1) having an annual
effect on the economy of $200 million
or more (adjusted every 3 years for
changes in gross domestic product), or
adversely affecting in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, territorial, or tribal
governments or communities; (2)
creating a serious inconsistency or
otherwise interfering with an action
taken or planned by another agency; (3)
materially altering the budgetary impact
of entitlement grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raising legal or
policy issues for which centralized
review would meaningfully further the
President’s priorities or the principles
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set forth in the Executive order.
Executive Order 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. While there is uncertainty
about the magnitude of effects
associated with these regulations, it
cannot be ruled out that they exceed the
threshold for significance set forth in
section 3(f)(1) of Executive Order 12866.
Therefore, the regulation is section
3(f)(1) significant and has been reviewed
by OMB.
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A. Economic Analysis
1. 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.’’ ORR considers its
current operations and procedures for
implementing the terms of the FSA, the
HSA, and the TVPRA to be an
informative baseline for this analysis,
from which it estimates the costs and
benefits that would result from
implementing the proposals in this
proposed rule if finalized. The section
below discusses some examples of the
current cost for ORR’s operations and
procedures under this baseline. The
costs described below are already being
incurred as part of ORR’s
implementation of the terms of FSA, the
HSA, and the TVPRA; however, the
future in the absence of the rule is
unclear, including because the end of
temporary legal structures could change
the UC Program’s operations. Relative to
some future trajectories—that is, other
analytic baselines—there could be
additional new costs (and new effects
more generally) associated with the
policies being promulgated in this
proposed rule.
Referrals of unaccompanied children
to the UC Program vary considerably
from one year to the next, even from
month to month, and are largely
unpredictable. Funding for the UC
Program’s services are dependent on
annual appropriations, which rely in
part on fluctuating migration numbers.
For example, in fiscal year (FY) 2019,
the UC Program served 69,488
unaccompanied children and received
$1.3 billion in appropriations.155 In
contrast, in FY 2022, ORR served
128,904 unaccompanied children and
155 Annual Report to Congress, Office of Refugee
Resettlement (FY 2019), https://www.acf.hhs.gov/
sites/default/files/documents/orr/orr-arcfy2019.pdf.
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received $5.5 billion in
appropriations.156 Appropriations
account for uncertainty inherent in
migration numbers by providing
additional resources in any month when
the UC Program receives referrals over
a certain threshold. For example, in FY
2023, a contingency fund provided $27
million for each increment of 500
referrals (or pro rata share) above a
threshold of 13,000 unaccompanied
children referrals in a month.157
The UC Program funds private nonprofit and for-profit agencies to provide
shelter, counseling, medical care, legal
services, and other support services to
children in custody. In addition, some
funding is provided for limited postrelease services to certain
unaccompanied children. Care provider
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 82 percent) are for care
in ORR shelters. Other services for
unaccompanied children, such as
medical care, background checks, and
family unification services, make up
approximately 16 percent of the budget.
Administrative expenses to carry out the
program total approximately 2 percent
of the budget.
2. Estimated Costs
This proposed rule would codify
current ORR and HHS requirements for
compliance with the HSA, the TVPRA,
the FSA, court orders, and other
requirements described under existing
ORR policies and cooperative
agreements. Because the majority of
requirements being codified in this
proposed rule are already enforced by
ORR, ORR does not expect this
proposed rule to impose any additional
costs aside from those costs incurred by
the Federal Government to establish the
risk determination hearing process
described in proposed § 410.1903 and
the UC Office of the Ombuds described
in proposed subpart K. Existing staff are
currently responsible for conducting
both Internal Compliance Reviews and
Placement Review Panels as described
in §§ 410.1901 and 410.1902,
respectively, therefore no additional
cost will be incurred.
In § 410.1309, ORR is proposing to the
greatest extent practicable and
consistent with section 292 of the
Immigration and Nationality Act (8
156 ACF, Justification of Estimates for
Appropriations Committees, page 70, (FY 2024)
https://www.acf.hhs.gov/sites/default/files/
documents/olab/fy-2024-congressionaljustification.pdf.
157 Id. at 77.
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68965
U.S.C. 1362), that all unaccompanied
children who are or have been in ORR
care would have access to legal advice
and representation in immigration legal
proceedings or other matters, consistent
with current policy. ORR is also
proposing that to the extent that
appropriations are available, and insofar
as it is not practicable to secure pro
bono counsel for unaccompanied
children as specified at 8 U.S.C.
1232(c)(5), ORR would have discretion
to fund legal service providers to
provide direct immigration legal
representation.
In § 410.1903, ORR proposes to
establish a hearing process that provides
the same substantive protections as
immigration court bond hearings under
the FSA, but through an independent
and neutral HHS adjudicator. This
proposal would shift responsibility for
these hearings from DOJ to HHS. ORR
estimates that some resources will be
required to implement this shift. ORR
believes that this burden will fall on
DOJ and HHS staff, and estimates 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, ORR estimates
that the rule will lead to no change in
net resources required for risk
determination hearings, and therefore
estimate no incremental costs or
savings. ORR seeks public comment on
these estimates.
In subpart K, ORR discusses its
proposal to establish an Office of the
Ombuds for the UC Program. Although
the scope of the proposed Office of the
Ombuds may be varied, ORR anticipates
that it would provide a mechanism by
which unaccompanied children,
sponsors, and other relevant parties
could raise concerns, be empowered to
independently investigate claims, issue
findings and make recommendations to
ORR, and refer findings to other Federal
agencies or Congress as appropriate.
ORR proposes that the Ombuds role
would be filled by a career civil servant
who has expertise in dispute resolution,
familiarity with oversight and regulatory
matters, experience working with
unaccompanied children or in child
welfare, and knowledge of ORR policy
and regulations. In addition to the
Ombuds position itself, ORR anticipates
the need for support staff as well. In
order to estimate the costs associated
with the proposed Office of the Ombuds
and its potential staffing requirements,
ORR conferred with budgetary experts
and analyzed the needs anticipated to
accommodate the likely case load. ORR
assumes the Ombuds would be a GS–15
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($176,458 per year) while support staff
would consist of one GS–14 ($150,016
per year), four GS–13s ($126,949 per
year), and four GS–12s ($106,759 per
staff per year). For estimating purposes,
ORR assumes each position will be a
Step 5 and include a factor 36.25% for
overhead, per OMB.158 In total, ORR
estimates the cost of establishing this
office would be $1,718,529 per year
[($176,458 + 150,016 + ($126,949 × 4) +
($106,759 × 4) × 136.25%]. ORR
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a76_incl_tech_correction.pdf.
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welcomes comments on the proposed
staffing and structure for the Office of
the Ombuds.
ORR also notes that all care provider
facilities discussed in this proposed rule
are ORR grantees and the costs of
maintaining compliance with these
requirements are allowable costs to
grant awards under the Basic
Considerations for cost provisions at 45
CFR 75.403 through 75.405, in that the
costs are reasonable, necessary,
ordinary, treated consistently, and are
allocable to the award. Additional costs
associated with the policies discussed
in this proposed rule that were not
PO 00000
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budgeted, and cannot be absorbed
within existing budgets, would be
allowable for the grant recipient to
submit a request for supplemental funds
to cover the costs.
Table 1 shows the changes to ORR’s
current operational status compared to
the FSA. It contains a preliminary, highlevel overview of how the rule would
change ORR’s current operations, for
purposes of the economic analysis. The
table does not provide a comprehensive
description of all provisions and their
basis and purpose.
BILLING CODE 4184–45–P
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Table 1-FSA AND ORR CURRENT OPERATIONAL STATUS
FSA
Description of FSA
ORR cite
ORR change from current practice
..
prov1s1on
(45 CFR)
paragraph
No.
"Party, "plaintiff'' and NIA
1, 2, 3
None. (Note: These definitions are only
'' class member''
relevant to the FSA as it is a consent decree.
definitions
The proposed rule does not include them
because following the promulgation of a final
rule, these definitions would no longer be
relevant.)
"Minor" definition
410.1001
ORR uses the term ''unaccompanied
4
child/children" (UC) that has the same
meaning as the statutory term
"unaccompanied alien child" (UAC) as
defined under 6 U.S.C. 279(g)(2) pursuant to
8 U.S.C. 1232(b)(l).
''Emancipated minor''
NIA
"Emancipated minor" does not appear in the
5
definition
proposed rule; and is only relevant to other
agencies.
6
"Licensed program"
410.1001
FSA defines a "licensed program" as one
definition
licensed by an appropriate State agency.
ORR proposes the term "standard program"
to replace "licensed program." The proposed
definition of "standard program" is broader in
scope to account for circumstances wherein
licensure is unavailable in the state to
childcare facilities that provide residential,
group, or home care services for UC. ORR
notes that it also proposes to define "care
provider facility" as a term to encompass
virtually all placement types for UC,
including standard programs and nonstandard programs. These proposals would
not result in additional costs beyond current
practice.
7
'' Special needs minor"
410.1001,
None. (Note: ORR proposes to use the term
410.1103,
"UC with special needs" in this rule to replace
410.1106
the term "special needs minor" that is used in
410.1302
the FSA. For the final rule, ORR is
considering further updating the language by
replacing "special needs" with
"individualized needs," and to use the terms
"intellectual or developmental disability" and
"emotional disorder or disability" or "mental
health disorder" to replace the FSA term
"mental illness or retardation.")
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ORR cite
(45 CFR)
''Medium security
facility''
410.1001
9
Scope of Settlement
Agreement,
Effective Date, and
Publication
NIA
10
Class Definition
NIA
11
410.1003,
12(A)
Statements of General
Applicability
Procedures and
Temporary Placement
Following Arrest
12(B);
12(C)
Defining ''emergency''
and "influx"
410.1001
13
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Description of FSA
provision
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Age determination
21:02 Oct 03, 2023
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410.1103,
410.1800,
410.1801
410.1700
through
410.1704
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Fmt 4701
ORR change from current practice
None. (Note: ORR proposes to use the term
"heightened supervision facility" that
incorporates language consistent with the
term "medium secure facility" in the FSA.)
None. (Note: This provision imposes a series
of deadlines that passed years ago, and/or do
not impose obligations on ORR that would
continue following termination of the FSA.
As a result, the proposed rule does not include
this provision.)
None. (Note: This provision is specific to the
litigation that culminated in the FSA and is
not a relevant of substantive term of the FSA,
so it is not included in the proposed rule.)
None. (Note: The proposed rule would only
apply to the care of UC in ORR custody.)
None. (Note: ORR is not involved in the
apprehension of UC or their immediate
detention following arrest. ORR is proposing
to adopt standards of paragraph 12(A), as
applicable, for its care provider facilities.)
ORR is proposing to define "influx"
respective to the capacity at a facility over a
given period of time, rather than a static
number of UC eligible for placement because
it more accurately reflects current
circumstances. ORR is not proposing
changes to the definition of"emergency." The
proposals would not result in additional costs
beyond current practice.
ORR is proposing a new term, "emergency or
influx facility" that means a facility opened in
times of emergency or influx where such
emergency or influx prevents the placement
of minors in standard programs. ORR is
proposing a single set of standards for an
emergency or influx facility, which would
apply to such a facility whether it was opened
in response to an "emergency" or an "influx."
This would not result in additional costs
bevond current practice.
None (Note: Sections 410.1700 through
410 .1704 set forth the requirements for age
determinations in compliance with 8 U.S.C.
1232(b)(4) They would not result in
additional costs beyond current practice.).
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paragraph
No.
8
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15
16
17
18
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19
VerDate Sep<11>2014
Description of FSA
..
prov1s1on
Release from custody
410.120 l(a)
where the INS
determines that the
detention of the minor is
not required either to
secure the minor's
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
custodv.
Before release from
410.1202,
custody, Form 1-134 and 410.1203,
agreement to certain
410.1204
terms must be executed.
If emergency, then
minor can be transferred
temporarily to custodian
but must notify INS in
72 hours.
NIA
INS may terminate the
custody if terms are not
met.
Positive suitability
410.1202,
assessment
410.1203,
410.1204
INS or licensed program 410.1203(a)
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
410.1004
facilities until release or
until immigration
proceedings are
concluded. Temporary
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ORR change from current practice
ORR cite
(45 CFR)
Frm 00063
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None.
None. (Note: unlike the former INS, ORR
does not issue Form 1-134. Rather, under
current practice, ORR requires sponsors to
sign an affidavit consistent with the
requirements described in FSA para. 15)
NIA.
None.
None.
None.
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FSA
paragraph
No.
14
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FSA
paragraph
No.
20
21(A)
21(C)
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22
VerDate Sep<11>2014
Description of FSA
..
prov1s1on
ORR cite
(45 CFR)
transfers in event of an
emergencv
INS must publish a
''Program
Announcement'' within
60 Days of the FSA's
aooroval.
Transfer to a suitable
State or
county juvenile
detention facility if a
minor has been charged
or convicted of a crime
with exceptions
Transfer to a suitable
State or
county juvenile
detention facility if a
minor has engaged,
while in a licensed
program, in conduct that
has proven to be
unacceptably disruptive
to the normal
functioning of the
licensed program and
removal is necessary to
ensure the welfare of the
minor and others
Escape risk definition
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PO 00000
ORR change from current practice
NIA
None. (Note: This provision imposes a
deadline that passed years ago. As a result,
the proposed rule does not include this
provision).
410.1 l0S(a)
None. (Note: Pursuant to 8 U.S.C.
1232(c)(2)(A), ORR can only place a UC in a
secure facility (which are state or county
juvenile detention facilities) if they are a
danger to self or others or has been charged
with committing a criminal offense.
Therefore, ORR has removed the factors
listed in FSA paragraph 21D-E as
considerations for a placement in a secure
facility (escape-risk and to protect UC from
smugglers, respectively). Additionally, ORR
adds the requirements of the TVPRA to place
a UC in the least restrictive setting
appropriate). This does not result in
additional costs beyond current practice.
ORR proposes to require that the conduct at
issue be engaged in while in a "restrictive
placement" rather than a "licensed program"
to ensure that unaccompanied children in such
circumstances are initially stepped up to a
heightened supervision facility rather than
immediately placed in a secure facility. This
does not result in additional costs beyond
current practice.
410.ll0S(a)
410.1001,
410.1107
Frm 00064
Fmt 4701
ORR is proposing to update the term "escape
risk" to "runaway risk" which is a term used
by state child welfare agencies and Federal
agencies to describe children at risk from
running away from home or their care setting.
ORR also proposes to update the definition
provided in the FSA which provides a nonexhaustive list of factors ORR may consider
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ORR change from current practice
when determining whether an unaccompanied
child is an escape risk. Rather than basing its
determination of runaway risk solely on such
factors, ORR proposes under this rule that
such determinations must be made in view of
a totality of the circumstances and should not
be based solely on a past attempt to run away.
(Note: ORR does not use escape or runaway
risk as a factor for placing a UC in a secure
facility, as explained above. UC who present
a runaway risk may be placed in a heightened
supervision facility). There would be no
additional costs beyond current practice.
ORR is proposing to not consider previous
voluntary departure as a risk factor when
determining runaway risk.
22(B)
Voluntary departure is a
factor to consider when
determining whether a
minor is an escape-risk.
410.1107(b)
23
Placement of minors in
least restrictive setting
available and
appropriate
410.1103,
410.1104,
410.1105
None. (Note: ORR adds that placement in the
least restrictive setting include the best
interest standard which was not included into
the FSA This does not result in additional
costs beyond current practice.)
24(A)
Bond redetermination
hearing afforded
410.1903
24(B)
Judicial review of
NIA.
placement in a particular
type of facility permitted
or that facility does not
comply with standards
in Ex. 1
410.190l(b),
Notice of reasons
provided to
410.1306(c)(4)
minor not in a licensed
program/judicial review
The proposed rule would establish a risk
determination hearing process that provides
the same substantive protections as
immigration court bond hearings under the
FSA, but through an independent and neutral
adjudicator at HHS rather than the
Department of Justice to determine whether a
UC is a danger to others. Costs related to
bond hearings are discussed in the Estimated
Cost section of this NPRM. ORR does not
consider runaway risk when making release
decisions regarding UC in its care.
None. (Note: The proposed rule does not
expressly provide for judicial review of
placement/compliance, as a regulation cannot
confer jurisdiction on Federal court.)
24(C)
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ORR cite
(45 CFR)
Description of FSA
..
prov1s10n
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None. (Note: The proposed rule would
require that a written Notice of Placement
(NOP) be provided to UC in a restrictive
placement containing notice of their right to
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FSA
paragraph
No.
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FSA
paragraph
No.
24(D)
24(E)
25
26
27
28(A)
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28(B)
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Description of FSA
..
prov1s1on
ORR cite
(45 CFR)
All minors "not
released" shall be given
Form 1-770, notice of
right to judicial review,
and list of free legal
services.
Additional information
on precursors to seeking
judicial review
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
21:02 Oct 03, 2023
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410.1901,
410.1109(a)
NIA
ORR change from current practice
review before a Placement Review Panel.
This would not result in additional costs
beyond current practice.)
None. (Note: See above note. A list of free
legal services is provided to all UC in ORR' s
legal custody regardless of the type of facility
they are placed in. This would not result in
additional costs beyond current practice.)
None. (Note: Responsibilities of the UC prior
to bringing litigation are not relevant or
substantive terms of the FSA, and are not
included in the proposed rule.)
NIA. (Note: ORR does not have adults in
custody.)
NIA
410.1401(b)
None.
410.1601
None.
410.1303,
410.1500,
410.1501
None. (Note: This provision is mainly
specific to other agencies. ORR would
monitor compliance to the proposed rule's
provisions through its policies and procedures
that implement the FSA.)
NIA
Note: Special provisions for Plaintiffs'
counsel are not relevant or substantive terms
of the FSA, and are not included in the
proposed rule.
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ORR cite
(45 CFR)
a minor has not been
released.
Plaintiffs' counsel must
be provided information
pursuant to FSA
paragraph 28 on a semiannual basis; Plaintiffs'
counsel has the
opportunity to submit
questions.
INS Juvenile
Coordinator must report
to the court annually
29
30
Note: Special provisions for Plaintiffs'
counsel are not relevant or substantive terms
of the FSA, and are not included in the
proposed rule.
NIA
Note: Special provisions for Plaintiffs'
counsel are not relevant or substantive terms
of the FSA, and are not included in the
proposed rule.
None. (Note: This provision imposed a
timeframe related to court supervision of the
FSA and is therefore not relevant to and is not
included in the proposed rule.)
Special provisions for Plaintiffs' counsel are
not relevant or substantive terms of the FSA,
and are not included in the proposed rule.
NIA
35
32(A),
(B), (C),
and (D)
ORR change from current practice
NIA
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
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.
31
NIA
NIA
Special provisions for Plaintiffs' counsel are
not relevant or substantive terms of the FSA
and are not included in the proposed rule.
NIA
None. (Note: This provision imposed a
deadline that passed years ago. As a result,
the proposed rule does not include this
provision.)
Dismissal of action after
court has determined
substantial compliance
NIA
36
Reservation of Rights
NIA
None. (Note: Provisions specific to
terminating the action are not relevant or
substantive terms of the FSA, and are not
included in the proposed 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 for ORR. As a result, the
proposed rule does not include this provision.)
37
Notice and Dispute
Resolution
NIA
33
34
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None. (Note: This provision provides for
ongoing enforcement of the FSA bv the
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Description of FSA
..
prov1s1on
ORR cite
(45 CFR)
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
proposed rule.)
None. (Note: This provision is only relevant
to the FSA insofar as the FSA exists in the
form of a consent decree. The proposed rule
does not include this provision because
following the promulgation of a final rule, it
would terminate the FSA as an agreement
binding on ORR.)
38
Publicity-joint press
conference
NIA
39
Attorneys' Fees and
Costs
NIA
40
Termination 45 days
after publication of final
rule
NIA
41
Representations and
Warranty
NIA
Exhibit 1
Minimum Standards for
Licensed Programs
410.1300
through
410.1309
Exhibit 2
Instructions to Service
Officers re: Processing,
Treatment, and
Placement of Minors
NIA
Exhibit 3
Contingency Plan
410.1800,
410.1801
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Fmt 4701
ORR proposes minimum standards and
requirements for standard programs (see note
above regarding the definition of licensed
program), and for non-standard programs
where specified. ORR proposes standards
above and beyond the terms of the FSA
related to reporting, monitoring, and quality
control provisions, behavior management,
staff training, and care manager requirements,
language access services, healthcare services,
child advocates, and legal services. None of
this would result in additional costs beyond
current practice.
None. (Note: ORR provides notice to its
Federal, contractor, and care provider facility
staff of provisions for the processing,
treatment, and placement of UC in the ORR
Policy Guide and Manual of Procedures. The
provisions specified in Ex. 2 are incorporated
into these documents.)
None. (Note: The proposed rule also includes
provisions for facilities used in times of influx
or emergency. These provisions would not
result in additional costs beyond current
practice.)
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Exhibit 5
Exhibit 6
Description of FSA
..
prov1s1on
Agreement Concerning
Facility Visits Under
Paragraph 33
List of Organizations to
Receive Information
NIA
Notice of Right to
Judicial Review
410.1109(a)
BILLING CODE 4184–45–C
ORR seeks public comment on any
additional costs associated with the
proposals in this proposed rule which
have not been otherwise addressed.
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3. Benefits
The primary benefit of the proposed
rule would be to ensure that applicable
regulations reflect ORR’s custody and
treatment of unaccompanied children in
accordance with the relevant and
substantive terms of the FSA, the HSA,
and the TVPRA. Additionally, the
proposed codification of minimum
standards for licensed facilities and the
release process, ensures a measure of
consistency across the programs
network of standard facilities. ORR also
anticipates that many of the previously
discussed costs will be partially offset
by a reduction in legal costs and staff
time associated with the FSA and
associated motions to enforce that
require significant usage of staff time—
often at extremely short notice—and
require ORR to pay attorneys’ fees.
B. Regulatory Flexibility Analysis
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.
The purpose of this action is to
promulgate regulations that 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
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NIA
ORR change from current practice
Special provisions for Plaintiffs' counsel are
not relevant or substantive terms of the FSA,
and are not included in the proposed rule.
Special provisions for Plaintiffs' counsel are
not relevant or substantive terms of the FSA
and are not included in the proposed rule.
None. (Note: The proposed rule does not
expressly provide for judicial review of
placement/compliance, as a regulation cannot
confer jurisdiction on Federal court.)
termination of the FSA, as provided for
in FSA paragraph 40. The FSA provides
standards for the detention, treatment,
and transfer of minors and
unaccompanied children. Section 462 of
the HSA and section 235 of the TVPRA
prescribe substantive requirements and
procedural safeguards to be
implemented by ORR with respect to
unaccompanied children. Additionally,
court decisions have dictated how the
FSA is to be implemented.159
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 children that
were vested by statute in, or performed
by, the Commissioner of Immigration
and Naturalization.’’ 160 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.161
Consistent with provisions in the
HSA, the TVPRA places the
responsibility for the care and custody
of unaccompanied children with the
Secretary of Health and Human
Services.162 Prior to the enactment of
the HSA, 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
159 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).
160 6 U.S.C. 279(a).
161 6 U.S.C. 279(f)(1).
162 8 U.S.C. 1232(b)(1) (referencing 6 U.S.C. 279).
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under the provisions of this Act.’’ 163 In
accordance with the relevant savings
and transfer provisions of the HSA,164
the ORR Director now possesses the
authority to promulgate regulations
concerning ORR’s administration of its
responsibilities under the HSA and
TVPRA.
This proposed rule would directly
regulate ORR. As of June 2018, ORR is
funding non-profit and private
organizations to provide shelter,
counseling, medical care, legal services,
and other support services to
unaccompanied children in custody.
Because the requirements being codified
in this proposed rule are already
enforced by ORR, ORR does not expect
this proposed rule to impose any
additional costs to any of their grantees
or contractors related to the provision of
these services. It is possible that some
grantees or contractors may experience
costs to remedy any unmet
requirements, however ORR is unable to
make any specific assumptions due to
the unique nature of each grantee and
contractor. Additional costs associated
with remedial actions necessary to meet
requirements promulgated in this
proposed rule that were not budgeted,
and cannot be absorbed within existing
budgets, would be allowable for the
grant recipient to submit a request for
supplemental funds to cover the costs.
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, ORR funds 52 grantees to
provide services to unaccompanied
children. ORR finds that all 52 current
grantees are non-profits that do not
163 INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002);
8 CFR 2.1 (2002).
164 See 6 U.S.C. 279(e) and (f). See also 6 U.S.C.
552, 557; 8 U.S.C. 1232(b)(1).
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FSA
paragraph
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appear to be dominant in their field.
Consequently, ORR believes all 52
grantees are likely to be small entities
for the purposes of the RFA. The
proposed changes to ORR regulations
would not directly financially impact
any small entities. ORR reiterates that
additional costs associated with
remedial actions necessary to meet
requirements promulgated in this
proposed rule that were not budgeted,
and cannot be absorbed within existing
budgets, would be allowable for the
small entity grantee to submit a request
for supplemental funds to cover the
costs.
ORR requests 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.
ORR is unaware of any relevant
Federal rule that may duplicate,
overlap, or conflict with the proposed
rule and is not aware of any alternatives
to the proposed rule which accomplish
the stated objectives that would
minimize economic impact of the
proposed rule on small entities. ORR
requests comment and also seeks
alternatives from the public that will
accomplish the same objectives and
minimize the proposed rule’s economic
impact on small entities.
Based on this analysis, the Secretary
proposes to certify that the proposed
rule, if finalized, will not have a
significant economic impact on a
substantial number of small entities.
C. Unfunded Mandates Reform Act
Section 202 of the Unfunded
Mandates Reform Act of 1995 requires
that agencies assess anticipated costs
and benefits before issuing any rule
whose mandates require spending in
any 1 year of $100 million in 1995
dollars, updated annually for inflation.
The current threshold after adjustment
for inflation is $177 million, using the
most current (2022) Implicit Price
Deflator for the Gross Domestic Product.
This proposed rule would not mandate
any requirements that meet or exceed
the threshold for state, local, or tribal
governments, or the private sector.
Though this rule would not result in
such an expenditure, we do discuss the
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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 ORR 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 ORR. 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.
D. 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)), ORR 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
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. ORR received approval
from OMB for use of its forms under
OMB control number 0970–0278, with
an expiration date of August 31, 2025.
Separately, ORR received approval from
OMB for its placement and service
forms under OMB control number
0970–0498, with an expiration date of
August 31, 2023. A form associated with
the specific consent process is currently
pending approval with OMB (OMB
Control Number 0970–0385).
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E. 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 would implement ORR statutory
responsibilities and the FSA by
codifying ORR practices that comply
with the terms of the FSA and relevant
law for the care and custody of
unaccompanied children. In proposing
to codify these practices, ORR was
mindful of its obligations to meet the
requirements of Federal statutes and the
FSA while also minimizing conflicts
between State law and Federal interests.
At the same time, ORR is also mindful
that its fundamental obligations are to
ensure that it implements its statutory
responsibilities and the agreement that
the Federal Government entered into
through the FSA.
Typically, ORR enters into
cooperative agreements or contracts
with non-profit and private
organizations to provide shelter and
care for unaccompanied children in a
facility licensed by the appropriate state
or local licensing authority if the state
licensing agency provides for licensing
of facilities that provide services to
unaccompanied children. Where ORR
enters into a cooperative agreement or
contract with a facility, ORR requires
that the 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 ORR cooperative agreements
and contracts with the agency’s
grantees/contractors, to complement
applicable State and licensing rules, not
to 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, ORR
welcomes any comments from
representatives of State and local
juvenile or family residential facilities—
among other individuals and groups—
during the course of this rulemaking.
F. Executive Order 12988: Civil Justice
Reform
This proposed rule meets the
applicable standards set forth in
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sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
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VIII. Assessment of Federal Regulation
and Policies on Families
Section 654 of the Treasury and
General Government Appropriations
Act of 1999 requires Federal agencies to
determine whether a proposed policy or
regulation may affect family well-being.
If the agency’s determination is
affirmative, then the agency must
prepare an impact assessment
addressing criteria specified in the law.
This regulation will not have an impact
on family well-being as defined in this
legislation, which asks agencies to
assess policies with respect to whether
the policy: strengthens or erodes family
stability and the authority and rights of
parents in the education, nurture, and
supervision of their children; helps the
family perform its functions; and
increases or decreases disposable
income.
IX. Alternatives Considered
ORR considered several alternatives
to the proposed regulations set forth in
this proposed rule. First, ORR
considered not promulgating this
proposed rule in which it proposes to
codify requirements that would protect
unaccompanied children in ORR care.
However, ORR decided not to pursue
this alternative as it 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. Furthermore, ORR
believes that this proposed rule is
warranted at this time in order to codify
a uniform set of standards and
procedures open to public inspection
and feedback that will help to ensure
the safety and wellbeing of
unaccompanied children in ORR care,
implement the substantive terms of the
FSA, and enhance public transparency
as to the policies governing the
operation of the UC Program.
Once ORR decided to pursue
proposing a framework of regulatory
requirements through a proposed rule, it
considered the scope of a proposed rule
and whether to propose additional
regulations addressing further areas of
authority under the TVPRA, such as
those related to asylum proceedings for
unaccompanied children. ORR rejected
this alternative in order to solely focus
this proposed rule on proposing
requirements that relate specifically to
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the care and placement of
unaccompanied children in ORR
custody, pursuant to 6 U.S.C. 279 and
8 U.S.C. 1232, and that would
implement the terms of the FSA. ORR
notes that its decision to propose more
targeted regulations in this proposed
rule does not preclude ORR or other
agencies from subsequently issuing
regulations to address broader issues,
including issues ORR has declined to
address at this time that are the subject
of pending litigation, as noted in this
preamble.
After considering these alternatives,
ORR determined to draft the proposed
standards to reflect and be consistent
with current ORR practices and
requirements, proposing enhanced
standards, procedures, and oversight
mechanisms to help ensure the safety
and wellbeing of unaccompanied
children in ORR care where appropriate,
consistent with ORR’s statutory
authorities and the FSA. In this way, it
would be possible to propose standards
and requirements that are uniform
across care provider facilities and in a
way that accords with the way the UC
Program functions. 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.’’ In 2020,
the U.S. Court of Appeals for the Ninth
Circuit ruled that if the Government
wishes to terminate those portions of
the FSA covered by valid portions of
HHS regulations, it may do so by
proposing regulations. In this proposed
rule, ORR is therefore proposing to
codify terms of the FSA that prescribe
ORR responsibilities for unaccompanied
children in order to ensure that
unaccompanied children continue to be
treated in accordance with the FSA, the
HSA, and the TVPRA.
Robin Dunn Marcos, Director, Office
of Refugee Resettlement approved this
document on September 18, 2023.
Jeff Hild, Acting Assistant Secretary of
the Administration for Children and
Families, approved this document on
September 20, 2023.
List of Subjects in 45 CFR Part 410
Administrative practice and
procedure, Aliens, Child welfare,
Immigration, Reporting and
recordkeeping requirements,
Unaccompanied children.
■ For the reasons set forth in the
preamble, we propose to revise 45 CFR
part 410 to read as follows:
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68977
PART 410—CARE AND PLACEMENT
OF UNACCOMPANIED CHILDREN
Subpart A—Care and Placement of
Unaccompanied Children
Sec.
410.1000 Scope of this part.
410.1001 Definitions.
410.1002 ORR care and placement of
unaccompanied children.
410.1003 General principles that apply to
the care and placement of
unaccompanied children.
410.1004 ORR custody of unaccompanied
children.
Subpart B—Determining the Placement of
an Unaccompanied Child at a Care Provider
Facility
410.1100 Purpose of this subpart.
410.1101 Process for the placement of an
unaccompanied child after referral from
another Federal agency.
410.1102 Care provider facility types.
410.1103 Considerations generally
applicable to the placement of an
unaccompanied child.
410.1104 Placement of an unaccompanied
child in a standard program that is not
restrictive.
410.1105 Criteria for placing an
unaccompanied child in a restrictive
placement.
410.1106 Unaccompanied children who
need particular services and treatment.
410.1107 Considerations when determining
whether an unaccompanied child is a
runaway risk for purposes of placement
decisions.
410.1108 Placement and services for
children of unaccompanied children.
410.1109 Required notice of legal rights.
Subpart C—Releasing an Unaccompanied
Child From ORR Custody
410.1200 Purpose of this subpart.
410.1201 Sponsors to whom ORR releases
an unaccompanied child.
410.1202 Sponsor suitability.
410.1203 Release approval process.
410.1204 Home studies.
410.1205 Release decisions; denial of
release to a sponsor.
410.1206 Appeals of release denials.
410.1207 Ninety (90)-day review of pending
release applications.
410.1208 ORR’s discretion to release an
unaccompanied child to the
Unaccompanied Refugee Minors
Program.
410.1209 Requesting specific consent from
ORR regarding custody proceedings.
410.1210 Post-release services.
Subpart D—Minimum Standards and
Required Services
410.1300 Purpose of this subpart.
410.1301 Applicability of this subpart.
410.1302 Minimum standards applicable to
standard programs.
410.1303 Reporting, monitoring, quality
control, and recordkeeping standards.
410.1304 Behavior management and
prohibition on seclusion and restraint.
410.1305 Staff, training, and case manager
requirements.
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410.1306 Language access services.
410.1307 Healthcare services.
410.1308 Child advocates.
410.1309 Legal services.
410.1310 Psychotropic medications.
410.1311 Unaccompanied children with
disabilities.
Subpart E—Transportation of an
Unaccompanied Child
410.1400 Purpose of this subpart.
410.1401 Transportation of an
unaccompanied child in ORR’s care.
Subpart F—Data and Reporting
Requirements
410.1500 Purpose of this subpart.
410.1501 Data on unaccompanied children.
Subpart G—Transfers
410.1600 Purpose of this subpart.
410.1601 Transfer of an unaccompanied
child within the ORR care provider
facility network.
Subpart H—Age Determinations
410.1700 Purpose of this subpart.
410.1701 Applicability.
410.1702 Conducting age determinations.
410.1703 Information used as evidence to
conduct age determinations.
410.1704 Treatment of an individual who
appears to be an adult.
Subpart I—Emergency and Influx
Operations
410.1800 Contingency planning and
procedures during an emergency or
influx.
410.1801 Minimum standards for
emergency or influx facilities.
410.1802 Placement standards for
emergency or influx facilities.
Subpart J—Availability of Review of Certain
ORR Decisions
410.1900 Purpose of this subpart.
410.1901 Restrictive placement case
reviews.
410.1902 Placement Review Panel.
410.1903 Risk determination hearings.
Subpart K—Unaccompanied Children Office
of the Ombuds (UC Office of the Ombuds)
410.2000 Establishment of the UC Office of
the Ombuds.
410.2001 UC Office of the Ombuds policies
and procedures; contact information.
410.2002 UC Office of the Ombuds scope
and responsibilities.
410.2003 Organization of the UC Office of
the Ombuds.
410.2004 Confidentiality.
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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 Children
§ 410.1000
Scope of this part.
(a) This part governs those aspects of
the placement, care, and services
provided to unaccompanied children in
Federal custody by reason of their
immigration status and referred to the
Unaccompanied Children Program (UC
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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 (TVPRA),
Public Law 110–457, 8 U.S.C. 1232.
This part includes provisions
implementing 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).
(b) The provisions of this part are
separate and severable from one
another. If any provision is stayed or
determined to be invalid, the remaining
provisions shall continue in effect.
(c) ORR does not fund or operate
facilities other than standard programs,
restrictive placements (which includes
secure facilities, including residential
treatment centers, and heightened
supervision facilities), or emergency or
influx facilities, absent a specific waiver
as described under § 410.1801(d) or
such additional waivers as are permitted
by law.
§ 410.1001
Definitions.
For the purposes of this part, the
following definitions apply.
ACF means the Administration for
Children and Families, Department of
Health and Human Services.
Attorney of record means an attorney
who represents an unaccompanied child
in legal proceedings or matters and
protects them from mistreatment,
exploitation, and trafficking, consistent
with 8 U.S.C. 1232(c)(5), subject to the
consent of the unaccompanied child. In
order to be recognized as an
unaccompanied child’s attorney of
record by the Office of Refugee
Resettlement (ORR), for matters within
ORR’s authority, the individual must
provide proof of representation of the
child to ORR. ORR notes that that
attorneys of record may engage with
ORR in the course of this representation
in order to obtain custody-related
document and to engage in other
communications necessary to facilitate
the representation.
Best interest is a standard ORR
applies in determining the types of
decisions and actions it makes in
relation to the care of an
unaccompanied child. When evaluating
what is in a child’s best interests, ORR
considers, as appropriate, the following
inexhaustive list of factors: the
unaccompanied child’s expressed
interests, in accordance with the
unaccompanied child’s age and
maturity; the unaccompanied child’s
mental and physical health; the wishes
of the unaccompanied child’s parents or
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legal guardians; the intimacy of
relationship(s) between the
unaccompanied child and the child’s
family, including the interactions and
interrelationship of the unaccompanied
child with the child’s parents, siblings,
and any other person who may
significantly affect the unaccompanied
child’s well-being; the unaccompanied
child’s adjustment to the community;
the unaccompanied child’s cultural
background and primary language;
length or lack of time the
unaccompanied child has lived in a
stable environment; individualized
needs, including any needs related to
the unaccompanied child’s disability;
and the unaccompanied child’s
development and identity.
Care provider facility means any
physical site that houses
unaccompanied children in ORR
custody, operated by an ORR-funded
program that provides residential
services for children, including but not
limited to a program of shelters, group
homes, individual family homes,
residential treatment centers, secure or
heightened supervision facilities, and
emergency or influx facilities. Out of
network (OON) facilities are not
included within this definition.
Case file means the physical and
electronic records for each
unaccompanied child that are pertinent
to the care and placement of the child.
Case file materials include biographical
information on each unaccompanied
child; birth and marriage certificates;
various ORR forms and supporting
documents (and attachments, e.g.,
photographs); incident reports; medical
and dental records; mental health
evaluations; case notes and records,
including educational records clinical
notes and records; immigration forms
and notifications; legal papers; home
studies and/or post-release service
records on a sponsor of an
unaccompanied child; family
reunification information including the
sponsor’s individual and financial data;
case disposition; correspondence; and
Social Security number (SSN); juvenile/
criminal history records; and other
relevant records. The records of
unaccompanied children are the
property of ORR, whether in the
possession of ORR or a grantee or
contractor, and grantees and contractors
may not release these records without
prior approval from ORR.
Case manager means the individual
that coordinates, in whole or in part,
assessments of unaccompanied
children, individual service plans, and
efforts to release unaccompanied
children from ORR custody. Case
managers also ensure services for
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unaccompanied children are
documented within the case files for
each unaccompanied child.
Chemical restraints include, but are
not limited to, drugs administered to
children to chemically restrain them,
and external chemicals such as pepper
spray or other forms of inflammatory
and/or aerosol agents.
Child advocates means third parties,
appointed by ORR consistent with its
authority under TVPRA at 8 U.S.C.
1232(c)(6), who make independent
recommendations regarding the best
interests of an unaccompanied child.
Clear and convincing evidence means
a standard of evidence requiring that a
factfinder be convinced that a
contention is highly probable—i.e.,
substantially more likely to be true than
untrue.
Corrective action means steps taken to
correct any care provider facility
noncompliance identified by ORR.
DHS means the U.S. 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.
Disability means, with respect to an
individual, the definition provided by
section 3 of the Americans with
Disabilities Act of 1990, 42 U.S.C.
12102, which is adopted by reference in
section 504 of the Rehabilitation Act of
1973, 29 U.S.C. 794(a), and its
implementing regulations, 45 CFR 84.3
(programs receiving Department of
Health and Human Services (HHS)
financial assistance) and 85.3 (programs
conducted by HHS), as well as in the
TVPRA at 8 U.S.C. 1232(c)(3)(B).
Discharge means an unaccompanied
child that exits ORR custody, or the act
of an unaccompanied child exiting ORR
custody.
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
unaccompanied children, or impacts
other conditions provided by this part.
Emergency incidents means urgent
situations in which there is an
immediate and severe threat to a child’s
safety and well-being that requires
immediate action, and also includes
unauthorized absences of
unaccompanied children from a care
provider facility. Emergency incidents
include, but are not limited to:
(1) Abuse or neglect in ORR care
where there is an immediate and severe
threat to the child’s safety and wellbeing, such as physical assault resulting
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in serious injury, sexual abuse, or
suicide attempt;
(2) Death of an unaccompanied child
in ORR custody, including out-ofnetwork facilities;
(3) Medical emergencies;
(4) Mental health emergencies
requiring hospitalization; and
(5) Unauthorized absences of
unaccompanied children in ORR
custody.
Emergency or influx facility means a
type of care provider facility that opens
temporarily to provide shelter and
services for unaccompanied children
during an influx or emergency. These
facilities are not otherwise categorized
as a standard or secure facility in this
part. Because of the emergency nature of
emergency or influx facilities, they may
not be licensed or may be exempted
from licensing requirements by State
and/or local licensing agencies.
Emergency or influx facilities may also
be operated on federally-owned or
leased properties, in which case, the
facility may not be subject to State or
local licensing standards.
Emergency safety situation means a
situation in which a child presents a
risk of imminent physical harm to
themselves, or others, as demonstrated
by overt acts or expressed threats.
Executive Office for Immigration
Review accredited representative, or
EOIR accredited representative, means a
representative of a qualified nonprofit
religious, charitable, social service, or
other similar organization established in
the United States and recognized by the
Department of Justice in accordance
with 8 CFR part 1292. An EOIR
accredited representative who is
representing a child in ORR custody
may file a notice of such representation
in order to receive updates on the
unaccompanied child.
Family planning services include, but
are not limited to, Food and Drug
Administration (FDA)-approved
contraceptive products (including
emergency contraception), pregnancy
testing and counseling, sexually
transmitted infection (STI) services, and
referrals to appropriate specialists. ORR
notes that the term ‘‘family planning
services’’ does not include abortions.
Instead, abortion is included in the
definition of medical services requiring
heightened ORR involvement, and is
further discussed in § 410.1307.
Family Reunification Packet means an
application and supporting
documentation which must be
completed by a potential sponsor who
wishes to have an unaccompanied child
released from ORR to their care. ORR
uses the application and supporting
documentation, as well as other
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procedures, to determine the sponsor’s
ability to provide for the
unaccompanied child’s physical and
mental well-being.
Heightened supervision 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 standard programs set
forth in § 410.1302, and that is designed
for an unaccompanied child who
requires close supervision but does not
need placement in a secure facility,
including a residential treatment center
(RTC). It provides 24-hour supervision,
custody, care, and treatment. It
maintains stricter security measures
than a shelter, such as intensive staff
supervision, in order to provide
supports, manage problem behavior,
and prevent children from running
away. A heightened supervision facility
may have a secure perimeter but shall
not be equipped internally with major
restraining construction or procedures
typically associated with juvenile
detention centers or correctional
facilities.
HHS means the U.S. Department of
Health and Human Services.
Home study means an in-depth
investigation of the potential sponsor’s
ability to ensure the child’s safety and
well-being, initiated by ORR as part of
the sponsor suitability assessment. A
home study includes an investigation of
the living conditions in which the
unaccompanied child would be placed
if released to a particular potential
sponsor, the standard of care that the
unaccompanied child would receive,
and interviews with the proposed
sponsor and other household members.
A home study is conducted for any case
where it is required by the TVPRA, this
part, and for other cases at ORR’s
discretion, including for those in which
the safety and well-being of the
unaccompanied child is in question.
Influx means, for purposes of this
part, a situation in which the net bed
capacity of ORR’s standard programs
that is occupied or held for placement
by unaccompanied children meets or
exceeds 85 percent for a period of seven
consecutive days.
Legal guardian means an individual
who has been lawfully vested with the
power, and charged with the duty of
caring for, including managing the
property, rights, and affairs of, a child
or incapacitated adult by a court of
competent jurisdiction, whether foreign
or domestic.
Legal service provider means an
organization or individual attorney who
provides legal services to
unaccompanied children, either on a
pro bono basis or through ORR funding
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for unaccompanied children’s legal
services. Legal service providers provide
Know Your Rights presentations and
screenings for legal relief to
unaccompanied children, and/or direct
legal representation to unaccompanied
children.
LGBTQI+ means lesbian, gay,
bisexual, transgender, queer or
questioning, and intersex.
Mechanical restraint means any
device attached or adjacent to the
child’s body that the child cannot easily
remove that restricts freedom of
movement or normal access to the
child’s body.
Medical services requiring heightened
ORR involvement means:
(1) Significant surgical or medical
procedures;
(2) Abortions; and
(3) Medical services necessary to
address threats to the life of or serious
jeopardy to the health of an
unaccompanied child.
Notification of Concern (NOC) means
an instrument used by home study and
post-release services providers, ORR
care providers, and the ORR National
Call Center staff to document and notify
ORR of certain concerns that arise after
a child is released from ORR care and
custody.
Notice of Placement (NOP) means a
written notice provided to
unaccompanied children placed in
restrictive placements, explaining the
reasons for placement in the restrictive
placement and kept as part of the child’s
case file. The care provider facility
where the unaccompanied child is
placed must provide the NOP to the
child within 48 hours after an
unaccompanied child’s arrival at a
restrictive placement, as well as at
minimum every 30 days the child
remains in a restrictive placement.
ORR means the Office of Refugee
Resettlement, Administration for
Children and Families, U.S. Department
of Health and Human Services.
ORR long-term home care means an
ORR-funded family or group home
placement in a community-based
setting. An unaccompanied child may
be placed in long-term home care if ORR
is unable to identify an appropriate
sponsor with whom to place the
unaccompanied child during the
pendency of their legal proceedings.
‘‘Long-term home care’’ has the same
meaning as ‘‘long-term foster care,’’ as
that term is used in the definition of
traditional foster care provided at 45
CFR 411.5.
ORR transitional home care means an
ORR-funded short-term placement in a
family or group home. ‘‘Transitional
home care’’ has the same meaning as
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‘‘transitional foster care,’’ as that term is
used in the definition of traditional
foster care provided at 45 CFR 411.5.
Out of network placement (OON)
means a facility that provides physical
care and services for individual
unaccompanied children as requested
by ORR on a case-by-case basis, that
operates under a single case agreement
for care of a specific child between ORR
and the OON provider. OON may
include hospitals, restrictive settings, or
other settings outside of the ORR
network of care.
Peer restraints mean asking or
permitting other children to physically
restrain another child.
Personal restraint means the
application of physical force without
the use of any device, for the purpose
of restraining the free movement of a
child’s body. This does not include
briefly holding a child without undue
force in order to calm or comfort them.
Placement means delivering the
unaccompanied child to the physical
custody and care of either a care
provider facility or an alternative to
such a facility. An unaccompanied child
who is placed pursuant to this part is in
the legal custody of ORR and may only
be transferred or released by ORR. An
unaccompanied child remains in the
custody of a referring agency until the
child is physically transferred to a care
provider facility or an alternative to
such a facility.
Placement Review Panel means a
three-member panel consisting of ORR’s
senior-level career staff with requisite
experience in child welfare that is
convened for the purposes of reviewing
requests for reconsideration of
restrictive placements. An ORR staff
member who was involved with the
decision to step up an unaccompanied
child to a restrictive placement may not
serve as a Placement Review Panel
member with respect to that
unaccompanied child’s placement.
Post-release services (PRS) mean
follow-up services as that term is used
in the William Wilberforce Trafficking
Victims Protection Reauthorization Act
at 8 U.S.C. 1232(c)(3)(B). PRS are ORRapproved services which may, and
when required by statute must, be
provided to an unaccompanied child
and the child’s sponsor, subject to
available resources as determined by
ORR, after the child’s release from ORR
custody. Assistance may include linking
families to educational and community
resources, home visits, case
management, in-home counseling, and
other social welfare services, as needed.
When follow-up services are required by
statute, the nature and extent of those
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services would be subject to available
resources.
Program-level events mean situations
that affect the entire care provider
facility and/or unaccompanied children
and its staff within and require
immediate action and include, but are
not limited to:
(1) Death of a staff member, other
adult, or a child who is not an
unaccompanied child but is in the care
provider facility’s care under non-ORR
funding;
(2) Major disturbances such as a
shooting, attack, riot, protest, or similar
occurrence;
(3) Natural disasters such as an
earthquake, flood, tornado, wildfire,
hurricane, or similar occurrence;
(4) Any event that affects normal
operations for the care provider facility
such as, for instance, a long-term power
outage, gas leaks, inoperable fire alarm
system, infectious disease outbreak, or
similar occurrence.
Prone physical restraint means a
restraint restricting a child’s breathing,
restricting a child’s joints or
hyperextending a child’s joints, or
requiring a child to take an
uncomfortable position.
PRS provider means an organization
funded by ORR to connect the sponsor
and unaccompanied child to
community resources for the child and
for other child welfare services, as
needed, following the release of the
unaccompanied child from ORR
custody.
Psychotropic medication(s) means
medication(s) that are prescribed for the
treatment of symptoms of psychosis or
another mental, emotional, or
behavioral disorder and that are used to
exercise an effect on the central nervous
system to influence and modify
behavior, cognition, or affective state.
The term includes the following
categories:
(1) Psychomotor stimulants;
(2) Antidepressants;
(3) Antipsychotics or neuroleptics;
(4) Agents for control of mania or
depression;
(5) Antianxiety agents; and
(6) Sedatives, hypnotics, or other
sleep-promoting medications.
Qualified interpreter means:
(1) For an individual with a disability,
an interpreter who, via a video remote
interpreting service (VRI) or an on-site
appearance, is able to interpret
effectively, accurately, and impartially,
both receptively and expressively, using
any necessary specialized vocabulary.
Qualified interpreters include, for
example, sign language interpreters, oral
transliterators, and cued-language
transliterators.
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(2) For a limited English proficient
individual, an interpreter who via a
remote interpreting service or an on-site
appearance:
(i) Has demonstrated proficiency in
speaking and understanding both
spoken English and at least one other
spoken language;
(ii) Is able to interpret effectively,
accurately, and impartially to and from
such language(s) and English, using any
necessary specialized vocabulary or
terms without changes, omissions, or
additions and while preserving the tone,
sentiment, and emotional level of the
original oral statement; and
(iii) Adheres to generally accepted
interpreter ethics principles, including
client confidentiality.
Qualified translator means a
translator who:
(1) Has demonstrated proficiency in
writing and understanding both written
English and at least one other written
non-English language;
(2) Is able to translate effectively,
accurately, and impartially to and from
such language(s) and English, using any
necessary specialized vocabulary or
terms without changes, omissions, or
additions and while preserving the tone,
sentiment, and emotional level of the
original written statement; and
(3) Adheres to generally accepted
translator ethics principles, including
client confidentiality.
Release means discharge of an
unaccompanied child to an ORR-vetted
and approved sponsor. After release,
ORR does not have legal custody of the
unaccompanied child, and the sponsor
becomes responsible for providing for
the unaccompanied child’s physical and
mental well-being.
Residential treatment center (RTC)
means a sub-acute, time limited,
interdisciplinary, psycho-educational,
and therapeutic 24-hour-a-day
structured program with community
linkages, provided through noncoercive, coordinated, individualized
care, specialized services, and
interventions. RTCs provide highly
customized care and services to
individuals following either a
community-based placement or more
intensive intervention, with the aim of
moving individuals toward a stable, less
intensive level of care or independence.
RTCs are a type of secure facility and
are not a standard program under this
part.
Restrictive placement means a secure
facility, including RTCs, or a heightened
supervision facility.
Runaway risk means it is highly
probable or reasonably certain that an
unaccompanied child will attempt to
abscond from ORR care. Such
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determinations must be made in view of
a totality of the circumstances and
should not be based solely on a past
attempt to run away.
Seclusion means the involuntary
confinement of a child alone in a room
or area from which the child is
physically prevented from leaving.
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, in a
physically secure structure with staff
able to control violent behavior. ORR
uses a secure facility as the most
restrictive placement option for an
unaccompanied child who poses a
danger to self or others or has been
charged with having committed a
criminal offense. A secure facility does
not need to meet the requirements of
§ 410.1302 and is not defined as a
standard program or shelter under this
part.
Shelter means a kind of standard
program in which all of the
programmatic components are
administered on-site, consistent with
the standards set forth in § 410.1302.
Significant incidents mean nonemergency situations that may
immediately affect the safety and wellbeing of a child. Significant incidents
include, but are not limited to:
(1) Abuse or neglect in ORR care;
(2) Sexual harassment or
inappropriate sexual behavior;
(3) Staff Code of Conduct violations;
(4) Contact or threats to an
unaccompanied child while in ORR care
from trafficking or smuggling
syndicates, organized crime, or other
criminal actors;
(5) Incidents involving law
enforcement on site;
(6) Potential fraud schemes
perpetrated by outside actors on
unaccompanied children’s sponsors;
(7) Pregnancy;
(8) Separation from a parent or legal
guardian upon apprehension by a
Federal agency;
(9) Mental health concerns; and
(10) Use of safety measures, such as
restraints.
Special needs unaccompanied child
means an unaccompanied child whose
mental and/or physical condition
requires special services and treatment
by staff. An unaccompanied child may
have special needs due to alcohol or
substance use, serious emotional
disturbance, mental illness, intellectual
or developmental disability, or a
physical condition or chronic illness
that requires special services or
treatment. An unaccompanied child
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68981
who has suffered serious neglect or
abuse may be considered a special
needs minor if the child requires special
services or treatment as a result of
neglect or abuse.
Sponsor means an individual (or
entity) to whom ORR releases an
unaccompanied child out of ORR
custody, in accordance with ORR’s
sponsor suitability assessment process
and release procedures.
Staff Code of Conduct means the set
of personnel requirements established
by ORR in order to promote a safe
environment for unaccompanied
children in its care, including protecting
unaccompanied children from sexual
abuse and sexual harassment.
Standard program means any
program, agency, or organization that is
licensed by an appropriate State agency,
or that meets other requirements
specified by ORR if licensure is
unavailable in the State to programs
providing services to unaccompanied
children, to provide residential, group,
or transitional or long-term home care
services for dependent children,
including a program operating family or
group homes, or facilities for special
needs unaccompanied children. A
standard program must meet the
standards set forth in § 410.1302. All
homes and facilities operated by a
standard program, including facilities
for special needs unaccompanied
children, shall be non-secure. However,
a facility for special needs
unaccompanied children may maintain
that level of security permitted under
State law, or under the requirements
specified by ORR if licensure is
unavailable in the State, which is
necessary for the protection of an
unaccompanied child or others in
appropriate circumstances.
Tender age means twelve years of age
or younger.
Transfer means the movement of an
unaccompanied child from one ORR
care provider facility to another ORR
care provider facility, such that the
receiving care provider facility takes
over physical custody of the child. ORR
sometimes uses the terms ‘‘step up’’ and
‘‘step down’’ to describe transfers of
unaccompanied children to or from
restrictive placements. For example, if
ORR transfers an unaccompanied child
from a shelter facility to a heightened
supervision facility, that transfer would
be a ‘‘step up,’’ and a transfer from a
heightened supervision facility to a
shelter facility would be a ‘‘step down.’’
But a transfer from a shelter to a
community-based care facility, or vice
versa, would be neither a step up nor a
step down, because both placement
types are not considered restrictive.
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Trauma bond means when a trafficker
uses rewards and punishments within
cycles of abuse to foster a powerful
emotional connection with the victim.
Trauma-informed means a system,
standard, process, or practice that
realizes the widespread impact of
trauma and understands potential paths
for recovery; recognizes the signs and
symptoms of trauma in unaccompanied
children, families, staff, and others
involved with the system; and responds
by fully integrating knowledge about
trauma into policies, procedures, and
practices, and seeks to actively resist retraumatization.
Unaccompanied child/children
means a child who:
(1) Has no lawful immigration status
in the United States;
(2) Has not attained 18 years of age;
and
(3) 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.
Unaccompanied Refugee Minors
(URM) Program means the child welfare
services program available pursuant to 8
U.S.C. 1522(d).
§ 410.1002 ORR care and placement of
unaccompanied children.
ORR coordinates and implements the
care and placement of unaccompanied
children who are in ORR custody by
reason of their immigration status.
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§ 410.1003 General principles that apply to
the care and placement of unaccompanied
children.
(a) Within all placements,
unaccompanied children shall be
treated with dignity, respect, and
special concern for their particular
vulnerability.
(b) ORR shall hold unaccompanied
children in facilities that are safe and
sanitary and that are consistent with
ORR’s concern for the particular
vulnerability of unaccompanied
children.
(c) ORR plans and provides care and
services based on the individual needs
of and focusing on the strengths of the
unaccompanied child.
(d) ORR encourages unaccompanied
children, as developmentally
appropriate and in their best interests,
to be active participants in ORR’s
decision-making process relating to
their care and placement.
(e) ORR strives to provide quality care
tailored to the individualized needs of
each unaccompanied child in its
custody, ensuring the interests of the
child are considered, and that
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unaccompanied children are protected
from traffickers and other persons
seeking to victimize or otherwise engage
them in criminal, harmful, or
exploitative activity, both while in ORR
custody and upon release from the UC
Program.
(f) In making placement
determinations, ORR places each
unaccompanied child in the least
restrictive setting that is in the best
interests of the child, giving
consideration to the child’s danger to
self, danger to others, and runaway risk.
(g) When requesting information or
consent from unaccompanied children
ORR consults with parents, legal
guardians, child advocates, and
attorneys of record or EOIR accredited
representatives as needed.
§ 410.1004 ORR custody of
unaccompanied children.
All unaccompanied children placed
by ORR in care provider facilities
remain in the legal custody of ORR and
may be transferred or released only with
ORR approval; provided, however, that
in the event of an emergency, a care
provider facility may transfer temporary
physical custody of an unaccompanied
child prior to securing approval from
ORR but shall notify ORR of the transfer
as soon as is practicable thereafter, and
in all cases within 8 hours.
Subpart B—Determining the Placement
of an Unaccompanied Child at a Care
Provider Facility
§ 410.1100
Purpose of this subpart.
This subpart sets forth the process by
which ORR receives referrals of
unaccompanied children from other
Federal agencies and the factors ORR
considers when placing an
unaccompanied child in a particular
care provider facility. As used in this
subpart, ‘‘placement determinations’’ or
‘‘placements’’ refers to placements in
ORR-approved care provider facilities
during the time an unaccompanied
child is in ORR care, and not to the
location of an unaccompanied child
once the unaccompanied child is
released in accordance with subpart C of
this part.
§ 410.1101 Process for placement of an
unaccompanied child after referral from
another Federal agency.
(a) ORR accepts referrals of
unaccompanied children, from any
department or agency of the Federal
Government at any time of day, every
day of the year.
(b) Upon notification from any
department or agency of the Federal
Government that a child is an
unaccompanied child and therefore
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must be transferred to ORR custody,
ORR identifies an appropriate
placement for the unaccompanied child
and notifies the referring Federal agency
within 24 hours of receiving the
referring agency’s notification whenever
possible, and no later than within 48
hours of receiving notification, barring
exceptional circumstances.
(c) ORR works with the referring
Federal Government department or
agency to accept transfer of custody of
the unaccompanied child, consistent
with the statutory requirements at 8
U.S.C. 1232(b)(3).
(d) For purposes of paragraphs (b) and
(c) of this section, ORR may be unable
to timely identify a placement for and
accept transfer of custody of an
unaccompanied child due to
exceptional circumstances, including:
(1) Any court decree or courtapproved settlement that requires
otherwise;
(2) An influx, as defined at
§ 410.1001;
(3) An emergency, including a natural
disaster, such as an earthquake or
hurricane, and other events, such as
facility fires or civil disturbances;
(4) A medical emergency, such as a
viral epidemic or pandemic among a
group of unaccompanied children;
(5) The apprehension of an
unaccompanied child in a remote
location;
(6) The apprehension of an
unaccompanied child whom the
referring Federal agency indicates:
(i) Poses a danger to self or others; or
(ii) Has been charged with or has been
convicted of a crime, or is the subject of
delinquency proceedings, delinquency
charge, or has been adjudicated
delinquent, and additional information
is essential in order to determine an
appropriate ORR placement; or
(7) An act or event that could not be
reasonably foreseen that prevents the
placement of or accepting transfer of
custody of an unaccompanied child
within the timeframes in paragraph (b)
or (c) of this section.
(e) ORR takes legal custody of an
unaccompanied child begins when it
assumes physical custody from the
referring agency.
§ 410.1102
Care provider facility types.
ORR may place unaccompanied
children in care provider facilities as
defined at § 410.1001, including but not
limited to shelters, group homes,
individual family homes, heightened
supervision facilities, or secure
facilities, including RTCs. ORR may
place unaccompanied children in outof-network (OON) placements under
certain, limited circumstances. In times
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of influx or emergency, as further
discussed in subpart I of this part, ORR
may place unaccompanied children in
facilities that may not meet the
standards of a standard program, but
rather meet the standards in subpart I.
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§ 410.1103 Considerations generally
applicable to the placement of an
unaccompanied child.
(a) ORR shall place each
unaccompanied child in the least
restrictive setting that is in the best
interest of the child and appropriate to
the unaccompanied child’s age and
individualized needs, provided that
such setting is consistent with the
interest in ensuring the unaccompanied
child’s timely appearance before DHS
and the immigration courts and in
protecting the unaccompanied child’s
well-being and that of others.
(b) ORR considers the following
factors that may be relevant to the
unaccompanied child’s placement,
including:
(1) Danger to self;
(2) Danger to the community/others;
(3) Runaway risk;
(4) Trafficking in persons or other
safety concerns;
(5) Age;
(6) Gender;
(7) LGBTQI+ status;
(8) Disability;
(9) Any specialized services or
treatment required or requested by the
unaccompanied child;
(10) Criminal background;
(11) Location of potential sponsor and
safe and timely release options;
(12) Behavior;
(13) Siblings in ORR custody;
(14) Language access;
(15) Whether the unaccompanied
child is pregnant or parenting;
(16) Location of the unaccompanied
child’s apprehension; and
(17) Length of stay in ORR custody.
(c) ORR may utilize information
provided by the referring Federal
agency, child assessment tools,
interviews, and pertinent
documentation to determine the
placement of all unaccompanied
children. ORR may obtain any records
from local, State, and Federal agencies
regarding an unaccompanied child to
inform placement decisions.
(d) ORR shall review, at least every 30
days, the placement of an
unaccompanied child in a restrictive
placement to determine whether a new
level of care is appropriate.
(e) ORR shall make reasonable efforts
to provide placements in those
geographical areas where DHS
encounters the majority of
unaccompanied children.
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(f) A care provider facility must
accept the placement of unaccompanied
children as determined by ORR, and
may deny placement only for the
following reasons:
(1) Lack of available bed space;
(2) Placement of the unaccompanied
child would conflict with the care
provider facility’s State or local
licensing rules;
(3) Initial placement involves an
unaccompanied child with a significant
physical or mental illness for which the
referring Federal agency does not
provide a medical clearance; or
(4) In the case of the placement of an
unaccompanied child with a disability,
the care provider facility concludes it is
unable to meet the child’s disabilityrelated needs, without fundamentally
altering its program, even by providing
reasonable modifications and even with
additional support from ORR.
(g) Care provider facilities must
submit a written request to ORR for
authorization to deny placement of
unaccompanied children, providing the
individualized reasons for the denial.
Any such request must be approved by
ORR before the care provider facility
may deny a placement. ORR may follow
up with a care provider facility about a
placement denial to find a solution to
the reason for the denial.
§ 410.1104 Placement of an
unaccompanied child in a standard
program that is not restrictive.
ORR places all unaccompanied
children in standard programs that are
not restrictive placements, except in the
following circumstances:
(a) An unaccompanied child meets
the criteria for placement in a restrictive
placement set forth in § 410.1105; or
(b) In the event of an emergency or
influx of unaccompanied children into
the United States, in which case ORR
shall place the unaccompanied child as
expeditiously as possible in accordance
with subpart I of this part.
§ 410.1105 Criteria for placing an
unaccompanied child in a restrictive
placement.
(a) Criteria for placing an
unaccompanied child in a secure
facility that is not a residential
treatment center. (1) ORR may place an
unaccompanied child in a secure
facility (that is not an RTC) either at
initial placement or through a transfer to
another care provider facility from the
initial placement.
(2) ORR will not place an
unaccompanied child in a secure
facility (that is not an RTC) if less
restrictive alternatives in the best
interests of the unaccompanied child
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are available and appropriate under the
circumstances. ORR may place an
unaccompanied child in a heightened
supervision facility or other non-secure
care provider facility as an alternative,
provided that the unaccompanied child
does not pose a danger to self or others.
(3) ORR may place an unaccompanied
child in a secure facility (that is not an
RTC) only if the unaccompanied child:
(i) Has been charged with or has been
convicted of a crime, or is the subject of
delinquency proceedings, delinquency
charge, or has been adjudicated
delinquent, and where ORR deems that
those circumstances demonstrate that
the unaccompanied child poses a
danger to self or others, not including:
(A) 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
(B) A petty offense, which is not
considered grounds for stricter means of
detention in any case;
(ii) While in DHS or ORR’s custody,
or while in the presence of an
immigration officer or ORR official or
ORR contracted staff, has committed, or
has made credible threats to commit, a
violent or malicious act (whether
directed at the unaccompanied child or
others); or
(iii) Has engaged, while in a
restrictive placement, in conduct that
has proven to be unacceptably
disruptive of the normal functioning of
the care provider facility, and removal
is necessary to ensure the welfare of the
unaccompanied child or others, as
determined by the staff of the care
provider facility (e.g., substance or
alcohol use, stealing, fighting,
intimidation of others, or sexually
predatory behavior), and ORR
determines the unaccompanied child
poses a danger to self or others based on
such conduct.
(b) Criteria for placing an
unaccompanied child in a heightened
supervision facility. (1) ORR may place
an unaccompanied child in a
heightened supervision facility either at
initial placement or through a transfer to
another facility from the initial
placement.
(2) In determining whether to place an
unaccompanied child in a heightened
supervision facility, ORR considers if
the unaccompanied child:
(i) Has been unacceptably disruptive
to the normal functioning of a shelter
such that transfer is necessary to ensure
the welfare of the unaccompanied child
or others;
(ii) Is a runaway risk;
(iii) Has displayed a pattern of
severity of behavior, either prior to
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entering ORR custody or while in ORR
care, that requires an increase in
supervision by trained staff;
(iv) Has a non-violent criminal or
delinquent history not warranting
placement in a secure facility, such as
isolated or petty offenses as described in
paragraph (b)(2)(iii) of this section; or
(v) Is assessed as ready for step-down
from a secure facility, including an RTC.
(c) Criteria for placing an
unaccompanied child in an RTC. (1) An
unaccompanied child with serious
mental health or behavioral health
issues may be placed into an RTC only
if the unaccompanied child is evaluated
and determined to be a danger to self or
others by a licensed psychologist or
psychiatrist consulted by ORR or a care
provider facility, which includes a
determination by clear and convincing
evidence documented in the
unaccompanied child’s case file or
referral documentation by a licensed
psychologist or psychiatrist that an RTC
is appropriate. In assessing danger to
self or others, ORR uses the criteria for
placement in a secure facility at
paragraph (a) of this section.
(2) ORR may place an unaccompanied
child at an OON RTC when a licensed
clinical psychologist or psychiatrist
consulted by ORR or a care provider
facility has determined that the
unaccompanied child requires a level of
care only found in an OON RTC either
because the unaccompanied child has
identified needs that cannot be met
within the ORR network of RTCs or no
placements are available within ORR’s
network of RTCs, or that an OON RTC
would best meet the unaccompanied
child’s identified needs.
(3) The criteria for placement in or
transfer to an RTC also apply to
transfers to or placements in OON RTCs.
Care provider facilities may request
ORR to transfer an unaccompanied
child to an RTC in accordance with
§ 410.1601(d).
lotter on DSK11XQN23PROD with PROPOSALS2
§ 410.1106 Unaccompanied children who
need particular services and treatment.
ORR shall assess each unaccompanied
child in its care to determine whether
the unaccompanied child requires
particular services and treatment by
staff to address their individual needs
while in the care of the UC Program. An
unaccompanied child’s assessed needs
may require particular services,
equipment, and treatment by staff for
various reasons, including, but not
limited to disability, alcohol or
substance use, a history of serious
neglect or abuse, tender age, pregnancy,
or parenting. If ORR determines that an
unaccompanied child’s individualized
needs require particular services and
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treatment by staff or particular
equipment, ORR shall place the
unaccompanied child, whenever
possible, in a licensed program in which
unaccompanied children with
disabilities can interact with people
without disabilities to the fullest extent
possible, and shall make reasonable
modifications to its programs, including
the provision of services, equipment
and treatment, so that children with
disabilities can have equal access to the
program in the most integrated setting
appropriate.
§ 410.1107 Considerations when
determining whether an unaccompanied
child is a runaway risk for purposes of
placement decisions.
When determining whether an
unaccompanied child is a runaway risk
for purposes of placement decisions,
ORR considers, among other factors,
whether:
(a) The unaccompanied child is
currently under a final order of removal.
(b) The unaccompanied child’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 unaccompanied
child is indebted to organized smugglers
for the child’s transport; or
(4) A previous removal from the
United States pursuant to a final order
of removal.
(c) The unaccompanied child has
previously absconded or attempted to
abscond from State or Federal custody.
(d) The unaccompanied child has
displayed behaviors indicative of flight
or has expressed intent to run away.
(e) Evidence that the unaccompanied
child is indebted to, experiencing a
strong trauma bond to, or is threatened
by a trafficker in persons or drugs.
§ 410.1108 Placement and services for
children of unaccompanied children.
(a) Placement. If unaccompanied
children and their children are referred
together to ORR, ORR shall place the
unaccompanied children and their
children in the same facility, except in
unusual or emergency situations.
Unusual or emergency situations
include, but are not limited to:
(1) The unaccompanied child requires
alternate placement due to
hospitalization or need for a specialized
care or treatment setting that cannot
provide appropriate care for the child of
the unaccompanied child;
(2) The unaccompanied child requests
alternate placement for the child of the
unaccompanied child; or
(3) The unaccompanied child is the
subject of allegations of abuse or neglect
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against the child of the unaccompanied
child (or temporarily in urgent cases
where there is sufficient evidence of
child abuse or neglect warranting
temporary separation for the child’s
protection).
(b) Services. (1) ORR provides the
same care and services to the children
of unaccompanied children as it
provides to unaccompanied children, as
appropriate, regardless of the children’s
immigration or citizenship status.
(2) U.S. citizen children of
unaccompanied children are eligible for
public benefits and services to the same
extent as other U.S. citizens.
Application(s) for public benefits and
services shall be submitted on behalf of
the U.S. citizen children of
unaccompanied children by care
provider facilities. Utilization of those
benefits and services shall be exhausted
to the greatest extent practicable before
ORR-funded services are utilized.
§ 410.1109
Required notice of legal rights.
(a) ORR shall promptly provide each
unaccompanied child in its custody, in
a language and manner the
unaccompanied child understands,
with:
(1) A State-by-State list of free legal
service providers compiled and
annually updated by ORR and that is
provided to unaccompanied children as
part of a Legal Resource Guide for
unaccompanied children;
(2) The following explanation of the
right of potential review: ‘‘ORR usually
houses persons under the age of 18 in
the least restrictive setting that is in an
unaccompanied child’s best interest,
and generally not in restrictive
placements (which means secure
facilities, heightened supervision
facilities, or residential treatment
centers). 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.’’; and
(3) A presentation regarding their
legal rights, as provided under
§ 410.1309(a)(2).
(b) ORR shall not engage in retaliatory
actions against legal service providers or
any other representative because of
advocacy or appearance in an action
adverse to ORR.
Subpart C—Releasing an
Unaccompanied Child From ORR
Custody
§ 410.1200
Purpose of this subpart.
This subpart covers the policies and
procedures used to release, without
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unnecessary delay, an unaccompanied
child from ORR custody to a vetted and
approved sponsor.
§ 410.1201 Sponsors to whom ORR
releases an unaccompanied child.
(a) Subject to an assessment of
sponsor suitability, when ORR
determines that the detention of the
unaccompanied child is not required
either to secure the child’s timely
appearance before DHS or the
immigration court, or to ensure the
minor’s safety or that of others, ORR
shall release a minor from its custody
without unnecessary delay, in the
following order of preference, to:
(1) A parent;
(2) A legal guardian;
(3) An adult relative;
(4) An adult individual or entity
designated by the parent or legal
guardian as capable and willing to care
for the unaccompanied child’s wellbeing 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 standard 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.
(b) ORR shall not disqualify potential
sponsors based solely on their
immigration status and shall not collect
information on immigration status of
potential sponsors for law enforcement
or immigration enforcement related
purposes. ORR will not share any
immigration status information relating
to potential sponsors with any law
enforcement or immigration
enforcement related entity at any time.
(c) In making determinations
regarding the release of unaccompanied
children to potential sponsors, ORR
shall not release unaccompanied
children on their own recognizance.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 410.1202
Sponsor suitability.
(a) Potential sponsors shall complete
an application package to be considered
as a sponsor for an unaccompanied
child. The application package may be
obtained from either the care provider
facility or ORR directly.
(b) Prior to releasing an
unaccompanied child, ORR shall
conduct a suitability assessment to
determine whether the potential
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sponsor is capable of providing for the
unaccompanied child’s physical and
mental well-being. At minimum, such
assessment shall consist of review of the
potential sponsor’s application package,
including verification of the potential
sponsor’s identity, physical
environment of the sponsor’s home, and
relationship to the unaccompanied
child, if any, and an independent
finding that the individual has not
engaged in any activity that would
indicate a potential risk to the
unaccompanied child. ORR may consult
with the issuing agency (e.g., consulate
or embassy) of the sponsor’s identity
documentation to verify the validity of
the sponsor identity document
presented.
(c) As part of its suitability
assessment, ORR may also require such
components as an investigation of the
living conditions in which the
unaccompanied child would be placed
and the standard of care the
unaccompanied child would receive,
verification of the employment, income,
or other information provided by the
potential sponsor as evidence of the
ability to support the child, interviews
with members of the household, a home
visit or home study as discussed at
§ 410.1204, background and criminal
records checks, which may include a
fingerprint based background check, on
the potential sponsor and on adult
residents of the potential sponsor’s
household. Any such assessment also
takes into consideration the wishes and
concerns of the unaccompanied child.
(d) ORR shall assess the nature and
extent of the potential sponsor’s
previous and current relationship with
the unaccompanied child, and the
unaccompanied child’s family, if
applicable. ORR may deny release to
unrelated individuals who have applied
to be a sponsor but who have no preexisting relationship with the child or
the child’s family prior to the child’s
entry into ORR custody.
(e) ORR shall consider the potential
sponsor’s motivation for sponsorship;
the unaccompanied child’s preferences
and perspective regarding release to the
potential sponsor; and the
unaccompanied child’s parent’s or legal
guardian’s preferences and perspective
on release to the potential sponsor, as
applicable.
(f) ORR shall evaluate the
unaccompanied child’s current
functioning and strengths in
conjunction with any risks or concerns
such as:
(1) Victim of sex or labor trafficking
or other crime, or is considered to be at
risk for such trafficking due, for
example, to observed or expressed
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68985
current needs, e.g., expressed need to
work or earn money;
(2) History of criminal or juvenile
justice system involvement (including
evaluation of the nature of the
involvement, for example, whether the
child was adjudicated and represented
by counsel, and the type of offense) or
gang involvement;
(3) History of behavioral issues;
(4) History of violence;
(5) Any individualized needs,
including those related to disabilities or
other medical or behavioral/mental
health issues;
(6) History of substance use; or
(7) Parenting or pregnant
unaccompanied child.
(g) For individual sponsors, ORR shall
consider the potential sponsor’s
strengths and resources in conjunction
with any risks or concerns that could
affect their ability to function as a
sponsor including:
(1) Criminal background;
(2) Substance use or history of abuse
or neglect;
(3) The physical environment of the
home; and/or
(4) Other child welfare concerns.
(h) ORR shall assess the potential
sponsor’s:
(1) Understanding of the
unaccompanied child’s needs;
(2) Plan to provide adequate care,
supervision, and housing to meet the
unaccompanied child’s needs;
(3) Understanding and awareness of
responsibilities related to compliance
with the unaccompanied child’s
immigration court proceedings, school
attendance, and U.S. child labor laws;
and
(4) Awareness of and ability to access
community resources.
(i) ORR shall develop a release plan
that will enable a safe release to a
potential sponsor through the provision
of post-release services if needed.
§ 410.1203
Release approval process.
(a) ORR or the care provider providing
care for the unaccompanied child shall
make and record the prompt and
continuous efforts on its part towards
family unification and the release of the
unaccompanied child pursuant to the
provisions of this section. These efforts
include intakes and admissions
assessments and the provision of
ongoing case management services to
identify potential sponsors.
(b) If a potential sponsor is identified,
ORR shall explain to both the
unaccompanied child and the potential
sponsor the requirements and
procedures for release.
(c) Pursuant to the requirements of
§ 410.1202, the potential sponsor shall
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complete an application for release of
the unaccompanied child, which
includes supporting information and
documentation regarding the sponsor’s
identity; the sponsor’s relationship to
the child; background information on
the potential sponsor and the potential
sponsor’s household members; the
sponsor’s ability to provide care for the
unaccompanied child; and the sponsor’s
commitment to fulfill the sponsor’s
obligations in the Sponsor Care
Agreement, which requires the sponsor
to:
(1) Provide for the unaccompanied
child’s physical and mental well-being;
(2) Ensure the unaccompanied child’s
compliance with DHS and immigration
courts’ requirements;
(3) Adhere to existing Federal and
applicable state child labor and truancy
laws;
(4) Notify DHS, the Executive Office
for Immigration Review (EOIR) at the
Department of Justice, and other
relevant parties of changes of address;
(5) Provide notice of initiation of any
dependency proceedings or any risk to
the unaccompanied child as described
in the Sponsor Care Agreement; and
(6) In the case of sponsors other than
parents or legal guardians, notify ORR of
a child moving to another location with
another individual or change of address.
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
unaccompanied child to another person
who will comply with the Sponsor Care
Agreement, but the sponsor must notify
ORR as soon as possible and no later
than 72 hours after the transfer.
(d) ORR shall conduct a sponsor
suitability assessment consistent with
the requirements of § 410.1202.
(e) ORR shall not be required to
release an unaccompanied child to any
person or agency it has reason to believe
may harm or neglect the
unaccompanied child or fail to present
the unaccompanied child before DHS or
the immigration courts when requested
to do so.
(f) During the release approval
process, ORR shall educate the sponsor
about the needs of the unaccompanied
child and develop an appropriate plan
to care for the unaccompanied child.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 410.1204
Home studies.
(a) As part of assessing the suitability
of a potential sponsor, ORR may require
a home study. A home study includes
an investigation of the living conditions
in which the unaccompanied child
would be placed and takes place prior
to the child’s physical release, the
standard of care the child would
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receive, and interviews with the
potential sponsor and others in the
sponsor’s household.
(b) ORR requires home studies under
the following circumstances:
(1) Under the conditions identified in
TVPRA at 8 U.S.C. 1232(c)(3)(B), which
requires home studies for the following:
(i) A child who is a victim of a severe
form of trafficking in persons;
(ii) A special needs child with a
disability (as defined in 42 U.S.C.
12102);
(iii) A child who has been a victim of
physical or sexual abuse under
circumstances that indicate that the
child’s health or welfare has been
significantly harmed or threatened; or
(iv) A child whose proposed sponsor
clearly presents a risk of abuse,
maltreatment, exploitation, or
trafficking to the child based on all
available objective evidence.
(2) Before releasing any child to a
non-relative sponsor who is seeking to
sponsor multiple children, or who has
previously sponsored or sought to
sponsor a child and is seeking to
sponsor additional children.
(3) Before releasing any child who is
12 years old or younger to a non-relative
sponsor.
(c) ORR may, in its discretion, initiate
home studies if it determines that a
home study is likely to provide
additional information which could
assist in determining that the potential
sponsor is able to care for the health,
safety, and well-being of the
unaccompanied child.
(d) The care provider must inform the
potential sponsor whenever a home
study is conducted, explaining the
scope and purpose of the study and
answering the potential sponsor’s
questions about the process. In addition,
the home study report, as well as any
subsequent addendums if created, will
be provided to the potential sponsor if
the release request is denied.
(e) An unaccompanied child for
whom a home study is conducted shall
receive post-release services as
described at § 410.1210.
§ 410.1205 Release decisions; denial of
release to a sponsor.
(a) A potential sponsorship will be
denied, if as part of the sponsor
assessment process described at
§ 410.1202 or the release process
described at § 410.1203, ORR
determines that the potential sponsor is
not capable of providing for the physical
and mental well-being of the
unaccompanied child or that the
placement would result in danger to the
unaccompanied child or the
community.
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(b) ORR shall adjudicate a potential
sponsor who is an unaccompanied
child’s parent or legal guardian within
10 calendar days of receipt of a
completed sponsor application or
Family Reunification Package (FRP). If
ORR denies release of an
unaccompanied child to a potential
sponsor who is a parent or legal
guardian, it must notify the potential
sponsor of the denial in writing via a
Notification of Denial letter, which
includes:
(1) An explanation of the reason(s) for
the denial;
(2) Evidence and information
supporting ORR’s denial decision,
including the evidentiary basis for the
denial;
(3) Instructions for requesting an
appeal of the denial;
(4) Notice that the potential sponsor
may submit additional evidence, in
writing before a hearing occurs, or orally
during a hearing;
(5) Notice that the potential sponsor
may present witnesses and crossexamine ORR’s witnesses, if such
witnesses are willing to voluntarily
testify; and
(6) Notice that the potential sponsor
may be represented by counsel in
proceedings related to the release denial
at no cost to the Federal Government.
(c) ORR shall inform the
unaccompanied child, the
unaccompanied child’s child advocate,
and the unaccompanied child’s counsel
(or if the unaccompanied child has no
attorney of record or EOIR accredited
representative, the local legal service
provider) of a denial of sponsorship
involving an unaccompanied child’s
parent or legal guardian.
(d) If the sole reason for denial of
release is a concern that the
unaccompanied child is a danger to self
or others, and the potential sponsor is
the unaccompanied child’s parent or
legal guardian, ORR must send the
unaccompanied child a copy of the
Notification of Denial described at
paragraph (b) of this section. If the
parent or legal guardian is not already
seeking an appeal, the child may seek
an appeal of the denial.
(e) ORR shall permit unaccompanied
children to have the assistance of
counsel, at no cost to the Federal
Government, with respect to release or
the denial of release to a proposed
sponsor.
§ 410.1206
Appeals of release denials.
(a) Denied parent or legal guardian
sponsors to whom ORR must send
Notification of Denial letters pursuant to
§ 410.1205 may seek an appeal of ORR’s
decision by submitting a written request
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to the Assistant Secretary of ACF, or the
Assistant Secretary’s neutral and
detached designee.
(b) The requestor may seek an appeal
with a hearing or without a hearing. The
Assistant Secretary, or their neutral and
detached designee, will acknowledge
the request for appeal within a
reasonable time.
(c) If the sole reason for denial of
release is concern that the
unaccompanied child is a danger to self
or others, the unaccompanied child also
may seek an appeal of the denial as
described in paragraphs (a) and (b) of
this section. If the unaccompanied child
expresses a desire to seek an appeal, the
unaccompanied child may consult with
their attorney of record or a legal service
provider for assistance with the appeal.
The unaccompanied child may seek
such appeal at any time after denial of
release while the unaccompanied child
is in ORR custody.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 410.1207 Ninety (90)-day review of
pending release applications.
(a) ORR Federal staff who supervise
case management services performed by
ORR grantees and contractors shall
review all pending sponsor applications
or Family Reunification Packets (FRP)
for unaccompanied children who are in
ORR custody for 90 days after the
complete sponsor application or FRP
has been submitted to identify and
resolve in a timely manner the reasons
that a release application remains
pending and to determine possible steps
to accelerate the unaccompanied child’s
safe release.
(b) Upon completion of the initial 90day review, unaccompanied child case
managers or other designated agency or
care provider staff shall update the
potential sponsor and unaccompanied
child on the status of the case,
explaining the reasons that the release
process is incomplete. Case managers or
other designated agency or care provider
staff shall work with the potential
sponsor, relevant stakeholders, and ORR
to address the portions of the
sponsorship application or FRP that
remain unresolved.
(c) For cases that are not resolved after
the initial 90-day review, ORR Federal
staff supervising the case management
process shall conduct additional
reviews at least every 90 days until the
pending sponsor application or FRP is
resolved. ORR may in its discretion and
subject to resource availability conduct
additional reviews on a more frequent
basis than every 90 days.
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§ 410.1208 ORR’s discretion to release an
unaccompanied child to the
Unaccompanied Refugee Minors Program.
(a) An unaccompanied child may be
eligible for services through the ORR
Unaccompanied Refugee Minors (URM)
Program. Eligible categories of
unaccompanied children include:
(1) Cuban and Haitian entrant as
defined in section 501 of the Refugee
Education Assistance Act of 1980, 8
U.S.C. 1522 note, and as provided for at
45 CFR 400.43;
(2) An individual determined to be a
victim of a severe form of trafficking as
defined in 22 U.S.C. 7105(b)(1)(C);
(3) An individual DHS has classified
as a Special Immigrant Juvenile (SIJ)
under section 101(a)(27)(J) of the
Immigration and Nationality Act (INA),
8 U.S.C. 1101(a)(27)(J), and who was
either in the custody of HHS at the time
a dependency order was granted for
such child or who was receiving
services pursuant to section 501(a) of
the Refugee Education Assistance Act of
1980, 8 U.S.C. 1522 note, at the time
such dependency order was granted;
(4) U nonimmigrant status recipients
under 8 U.S.C. 1101(a)(15)(U); or
(5) Other populations of children as
authorized by Congress.
(b) With respect to unaccompanied
children described in paragraph (a) of
this section, ORR will evaluate each
unaccompanied child case to determine
whether it is in the child’s best interests
to be referred to the URM Program.
(c) When ORR discharges an
unaccompanied child pursuant to this
section to receive services through the
URM Program, legal responsibility of
the child, including legal custody or
guardianship, must be established under
State law as required by 45 CFR
400.115. Until such legal custody or
guardianship is established, the ORR
Director retains legal custody of the
child.
§ 410.1209 Requesting specific consent
from ORR regarding custody proceedings.
(a) An unaccompanied child in ORR
custody is required to request specific
consent from ORR if the child seeks to
invoke the jurisdiction of a juvenile
court to alter the child’s custody status
or release from ORR custody.
(b) If an unaccompanied child seeks
to invoke the jurisdiction of a juvenile
court for a dependency order to petition
for SIJ classification or to otherwise
permit a juvenile court to establish
jurisdiction regarding a child’s
placement and does not seek the
juvenile court’s jurisdiction to
determine or alter the child’s custody
status or release, the unaccompanied
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child does not need to request specific
consent from ORR.
(c) Prior to a juvenile court
determining or altering the
unaccompanied child’s custody status
or release from ORR, attorneys or others
acting on behalf of an unaccompanied
child must complete a request for
specific consent.
(d) ORR shall acknowledge receipt of
the request within two business days.
(e) Consistent with its duty to
promptly place unaccompanied
children in the least restrictive setting
that is in the best interest of the child,
ORR shall consider whether ORR
custody is required to:
(1) Ensure a child’s safety; or
(2) Ensure the safety of the
community.
(f) ORR shall make determinations on
specific consent requests within 60
business days of receipt of a request.
When possible, ORR shall expedite
urgent requests.
(g) ORR shall inform the
unaccompanied child, or the
unaccompanied child’s attorney or other
authorized representative of the
decision on the specific consent request
in writing, along with the evidence
utilized to make the decision.
(h) The unaccompanied child, the
unaccompanied child’s attorney of
record, or other authorized
representative may request
reconsideration of ORR’s denial with
the Assistant Secretary for ACF within
30 business days of receipt of the ORR
notification of denial of the request. The
unaccompanied child, the
unaccompanied child’s attorney, or
authorized representative may submit
additional (including new) evidence to
be considered with the reconsideration
request.
(i) The Assistant Secretary for ACF or
designee considers the request for
reconsideration and any additional
evidence, and sends a final
administrative decision to the
unaccompanied child, or the
unaccompanied child’s attorney or other
authorized representative, within 15
business days of receipt of the request.
§ 410.1210
Post-release services.
(a) General. (1) Before releasing
unaccompanied children, care provider
facilities shall work with sponsors and
unaccompanied children to prepare for
safe and timely release of the
unaccompanied children, to assess
whether the unaccompanied children
may need assistance in accessing
community resources, and to provide
guidance regarding safety planning and
accessing services.
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(2) ORR shall conduct PRS, during the
pendency of removal proceedings, for
unaccompanied children for whom a
home study was conducted pursuant to
§ 410.1204. An unaccompanied child
who receives a home study and PRS
may also receive home visits by a PRS
provider.
(3) To the extent that ORR determines
appropriations are available, and in its
discretion, ORR may conduct PRS in
additional cases involving
unaccompanied children with mental
health or other needs who could benefit
from ongoing assistance from a
community-based service provider. ORR
shall determine the level and extent of
PRS, if any, based on the needs of the
unaccompanied children and the
sponsors and the extent appropriations
are available.
(4) ORR shall not delay the release of
an unaccompanied child if PRS are not
immediately available.
(b) Service areas. PRS include
services in the areas listed in paragraphs
(b)(1) through (12) of this section, which
shall be provided in a manner that is
sensitive to the individual needs of the
unaccompanied child and in a way they
effectively understand regardless of
spoken language, reading
comprehension, or disability to ensure
meaningful access for all eligible
children, including those with limited
English proficiency. The
comprehensiveness of PRS shall depend
on the extent appropriations are
available.
(1) Placement stability and safety.
PRS providers shall work with sponsors
to address challenges in parenting and
caring for unaccompanied children.
This may include guidance about
maintaining a safe home; supervision of
unaccompanied children; protecting
unaccompanied children from threats
by smugglers, traffickers, and gangs; and
information about child abuse, neglect,
separation, grief and loss, and how these
issues affect children.
(2) Immigration proceedings. The PRS
provider shall help facilitate the
sponsor’s plan to ensure the
unaccompanied child’s attendance at all
immigration court proceedings and
compliance with DHS requirements.
(3) Guardianship. If the sponsor is not
a parent or legal guardian of the
unaccompanied child, then the PRS
provider shall provide the sponsor
information about the benefits of
obtaining legal guardianship of the
unaccompanied child. If the sponsor is
interested in becoming the
unaccompanied child’s legal guardian,
then the PRS provider may assist the
sponsor in identifying the legal
resources to do so.
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(4) Legal services. PRS providers shall
assist sponsors in accessing relevant
legal service resources including
resources for immigration matters and
unresolved juvenile justice issues.
(5) Education. PRS providers shall
assist sponsors with school enrollment
and addressing issues relating to the
unaccompanied children’s progress in
school, including attendance. PRS
providers may also assist with
alternative education plans for
unaccompanied children who exceed
the State’s minimum age requirement
for mandatory school attendance. PRS
providers may also assist sponsors with
obtaining evaluations for
unaccompanied children reasonably
suspected of having a disability to
determine eligibility for a free
appropriate public education (which
can include special education and
related services) or reasonable
modifications and auxiliary aids and
services.
(6) Employment. PRS providers shall
educate sponsors on U.S. child labor
laws and requirements.
(7) Medical services. PRS providers
shall assist the sponsor in obtaining
medical insurance for the
unaccompanied child if available and in
locating medical providers that meet the
individual needs of the unaccompanied
child and the sponsor. If the
unaccompanied child requires
specialized medical assistance, the PRS
provider shall assist the sponsor in
making and keeping medical
appointments and monitoring the
unaccompanied child’s medical
requirements. PRS providers shall
provide the unaccompanied child and
sponsor with information and referrals
to services relevant to health-related
considerations for the unaccompanied
child.
(8) Individual mental health services.
PRS providers shall provide the sponsor
with relevant mental health resources
and referrals for the unaccompanied
child. The resources and referrals shall
take into account the individual needs
of the unaccompanied child and
sponsor. If an unaccompanied child
requires specialized mental health
assistance, PRS providers shall assist
the sponsor in making and keeping
mental health appointments and
monitoring the unaccompanied child’s
mental health requirements.
(9) Family stabilization/counseling.
PRS providers shall provide the sponsor
with relevant resources and referrals for
family counseling and/or individual
counseling that meet individual needs
of the unaccompanied child and the
sponsor.
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(10) Substance use. PRS providers
shall assist the sponsor in locating
resources to help address any substance
use-related needs of the unaccompanied
child.
(11) Gang prevention. PRS providers
shall provide the sponsor information
about gang prevention programs in the
sponsor’s community.
(12) Other services. PRS providers
may assist the sponsor and
unaccompanied child with accessing
local resources in other specialized
service areas based on the needs and at
the request of the unaccompanied child.
(c) PRS for unaccompanied children
requiring additional consideration.
Additional unaccompanied children
may be referred to PRS based on their
individual needs, including, but not
limited to:
(1) Unaccompanied children in need
of particular services or treatment;
(2) Unaccompanied children with
disabilities;
(3) LGBTQI+ status unaccompanied
children;
(4) Unaccompanied children who are
adjudicated delinquent or who have
been involved in, or are at high risk of
involvement with the juvenile justice
system;
(5) Unaccompanied children who
entered ORR care after being separated
by DHS from a parent or legal guardian;
(6) Unaccompanied children who are
victims of human trafficking or other
crimes;
(7) Unaccompanied children who are
victims of, or at risk of, worker
exploitation;
(8) Unaccompanied children who are
at risk for labor trafficking;
(9) Unaccompanied children who are
certain parolees; and
(10) Unaccompanied children
enrolled in school who are chronically
absent or retained at the end of their
school year.
(d) Assessments. The PRS provider
shall assess the released unaccompanied
child and sponsor for PRS needs and
shall document the assessment. The
assessment shall be developmentally
appropriate, trauma-informed, and
focused on the needs of the
unaccompanied child and sponsor.
(e) Ongoing check-ins and in-home
visits. (1) In consultation with the
released unaccompanied child and
sponsor, the PRS provider shall make a
determination regarding the appropriate
methods, timeframes, and schedule for
ongoing contact with the released
unaccompanied child and sponsor
based on the level of need and support
needed.
(2) PRS providers shall make monthly
contact, at a minimum, with their
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assigned released unaccompanied
children and their sponsors, either in
person or virtually for six (6) months
after release.
(3) PRS providers shall document all
ongoing check-ins and in-home visits, as
well as document progress and
outcomes of their home visits.
(f) Referrals to community resources.
(1) PRS providers shall work with
released unaccompanied children and
their sponsors to access community
resources.
(2) PRS providers shall document any
community resource referrals and their
outcomes.
(g) Timeframes for PRS. (1) For a
released unaccompanied child who is
required under the TVPRA at 8 U.S.C.
1232(c)(3)(B) to receive PRS, the PRS
provider shall to the greatest extent
practicable start services within two (2)
days of the unaccompanied child’s
released from ORR care. If a PRS
provider is unable to start PRS within
two (2) days of the unaccompanied
child’s release, PRS shall start no later
than 30 days after release.
(2) For a released unaccompanied
child who is referred by ORR to receive
PRS but is not required to receive PRS
following a home study, the PRS
provider shall to the greatest extent
practicable start services within two (2)
days of accepting a referral.
(h) Termination of PRS. (1) For a
released unaccompanied child who is
required to receive PRS under the
TVPRA at 8 U.S.C. 1232(c)(3)(B), PRS
for the unaccompanied child shall
continue until the unaccompanied child
turns 18 or the unaccompanied child is
granted voluntary departure,
immigration status, or the child receives
an order of removal, whichever occurs
first.
(2) For a released unaccompanied
child who is not required to receive PRS
under the TVPRA at 8 U.S.C.
1232(c)(3)(B), but who receives PRS as
authorized under the TVPRA, PRS for
the unaccompanied child shall
presumptively continue for not less than
six months or until the unaccompanied
child turns 18, whichever occurs first;
or until the PRS provider assesses the
unaccompanied child and determines
PRS are no longer needed, but in that
case for not less than six months.
(i) Records and reporting
requirements for PRS providers—(1)
General. (i) PRS providers shall
maintain comprehensive, accurate, and
current case files on unaccompanied
children that are kept confidential and
secure at all times and shall be
accessible to ORR upon request. PRS
providers shall keep all case file
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information together in the PRS
provider’s physical and electronic files.
(ii) PRS providers shall upload all
PRS documentation on services
provided to unaccompanied children
and sponsors to ORR’s case management
system within seven (7) days of
completion of the services.
(2) Records management and
retention. (i) PRS providers shall have
written policies and procedures for
organizing and maintaining the content
of active and closed case files, which
incorporate ORR policies and
procedures. The PRS provider’s policies
and procedures shall also address
preventing the physical damage or
destruction of records.
(ii) Before providing PRS, PRS
providers shall have established
administrative and physical controls to
prevent unauthorized access to both
electronic and physical records.
(iii) PRS providers may not release
records to any third party without prior
approval from ORR.
(iv) If a PRS provider is no longer
providing PRS for ORR, the PRS
provider shall provide all active and
closed case file records to ORR
according to instructions issued by
ORR.
(3) Privacy. (i) PRS providers shall
have written policy and procedure in
place that protects the sensitive
information of released unaccompanied
children from access by unauthorized
users.
(ii) PRS providers shall explain to
released unaccompanied children and
their sponsors how, when, and under
what circumstances sensitive
information may be shared while the
unaccompanied children receive PRS.
(iii) PRS providers shall have
appropriate controls on informationsharing within the PRS provider
network, including, but not limited to,
subcontractors.
(4) Notification of Concern. (i) If the
PRS provider is concerned about the
about the unaccompanied child’s safety
and well-being, the PRS provider shall
document a Notification of Concern
(NOC) and report the concern(s) to ORR,
and as applicable, the appropriate
investigative agencies (including law
enforcement and child protective
services).
(ii) PRS providers shall document and
submit NOCs to ORR within 24 hours of
first suspicion or knowledge of the
event(s).
(5) Case closures. (i) PRS providers
shall formally close a case when ORR
terminates PRS in accordance with
paragraph (h) of this section.
(ii) ORR shall provide appropriate
instructions, including any relevant
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forms, that PRS providers must follow
when closing a case.
Subpart D—Minimum Standards and
Required Services
§ 410.1300
Purpose of this subpart.
This subpart covers standards and
required services that care provider
facilities must meet and provide in
keeping with the principles of treating
unaccompanied children in custody
with dignity, respect, and special
concern for their particular
vulnerability.
§ 410.1301
Applicability of this subpart.
This subpart applies to all standard
programs and to non-standard programs
where specified.
§ 410.1302 Minimum standards applicable
to standard programs.
Standard programs shall:
(a) Be licensed by an appropriate State
or Federal agency, or meet other
requirements specified by ORR if
licensure is unavailable to programs
providing services to unaccompanied
children in their State, 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, or other requirements
specified by ORR if licensure is
unavailable in their State to care
provider facilities providing services to
unaccompanied children. If there is a
potential conflict between ORR’s
regulations and State law, ORR will
review the circumstances to determine
how to ensure that it is able to meet its
statutory responsibilities. It is important
to note, however, that if a State law or
license, registration, certification, or
other requirement conflicts with an ORR
employee’s duties within the scope of
their ORR employment, the ORR
employee is required to abide by their
Federal duties.
(c) Provide or arrange for the
following services for each
unaccompanied child in care:
(1) Proper physical care and
maintenance, including suitable living
accommodations, food that is of
adequate variety, quality, and in
sufficient quantity to supply the
nutrients needed for proper growth and
development, which can be
accomplished by following the U.S.
Department of Agriculture (USDA)
Dietary Guidelines for Americans, and
appropriate for the child and activity
level, drinking water that is always
available to each unaccompanied child,
appropriate clothing, personal grooming
and hygiene items, access to toilets and
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sinks, adequate temperature control and
ventilation, and adequate supervision to
protect unaccompanied children from
others;
(2) An individualized needs
assessment that shall include:
(i) Various initial intake forms;
(ii) Essential data relating to the
identification and history of the
unaccompanied child and family;
(iii) Identification of the
unaccompanied child’s special needs
including any specific problems that
appear to require immediate
intervention;
(iv) An educational assessment and
plan;
(v) whether an indigenous language
speaker;
(vi) An assessment of family
relationships and interaction with
adults, peers and authority figures;
(vii) A statement of religious
preference and practice;
(viii) An assessment of the
unaccompanied child’s personal goals,
strengths and weaknesses; and
(iv) 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;
(3) Educational services appropriate
to the unaccompanied child’s level of
development, communication skills,
and disability, if applicable, 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 an
unaccompanied child of appropriate
reading materials in languages other
than English for use during the
unaccompanied child’s leisure time;
(4) 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;
(5) At least one individual counseling
session per week conducted by certified
counseling staff with the specific
objectives of reviewing the
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unaccompanied child’s progress,
establishing new short and long-term
objectives, and addressing both the
developmental and crisis-related needs
of each unaccompanied child;
(6) Group counseling sessions at least
twice a week;
(7) 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;
(8) An admissions process, including:
(i) Meeting unaccompanied children’s
immediate needs to food, hydration, and
personal hygiene including the
provision of clean clothing and bedding;
(ii) An initial intakes assessment
covering biographic, family, migration,
health history, substance use, and
mental health history of the
unaccompanied child. If the
unaccompanied child’s responses to
questions during any examination or
assessment indicate the possibility that
the unaccompanied child may have
been a victim of human trafficking or
labor exploitation, the care provider
facility must notify the ACF Office of
Trafficking in Persons within twentyfour (24) hours;
(iii) A comprehensive orientation
regarding program purpose, services,
rules (provided in writing and orally),
expectations, their rights in ORR care,
and the availability of legal assistance,
information about U.S. immigration and
employment/labor laws, and services
from the Unaccompanied Children
Office of the Ombuds (UC Office of the
Ombuds) in simple, non-technical terms
and in a language and manner that the
child understands, if practicable; and
(iv) Assistance with contacting family
members, following the ORR Guide and
the care provider facility’s internal
safety procedures;
(9) Whenever possible, access to
religious services of the unaccompanied
child ’s choice, celebrating culturespecific events and holidays, being
culturally aware in daily activities as
well as food menus, choice of clothing,
and hygiene routines, and covering
various cultures in children’s
educational services;
(10) Visitation and contact with
family members (regardless of their
immigration status) which is structured
to encourage such visitation. Standard
programs should provide
unaccompanied children with at least
15 minutes of phone or video contact
three times a week with parents and
legal guardians, family members, and
caregivers located in the United States
and abroad, in a private space that
ensures confidentiality and at no cost to
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the unaccompanied child, parent, legal
guardian, family member, or caregiver.
The staff shall respect the
unaccompanied child’s privacy while
reasonably preventing the unauthorized
release of the unaccompanied child;
(11) Assistance with family
unification services designed to identify
and verify relatives in the United States
as well as in foreign countries and
assistance in obtaining legal
guardianship when necessary for release
of the unaccompanied child;
(12) Legal services information
regarding the availability of free legal
assistance, and that they may be
represented by counsel at no expense to
the government, the right to a removal
hearing before an immigration judge; the
ability to apply for asylum with U.S.
Citizenship and Immigration Services
(USCIS) in the first instance, and the
ability to request voluntary departure in
lieu of removal; and
(13) Information about U.S. child
labor laws and education around
permissible work opportunities in a
manner that is sensitive to the age,
culture, and native language of each
unaccompanied child.
(d) Deliver services in a manner that
is sensitive to the age, culture, native
language, and the complex needs of
each unaccompanied child.
(e) Develop a comprehensive and
realistic individual service plan for the
care of each unaccompanied child in
accordance with the unaccompanied
child’s needs as determined by the
individualized needs assessment.
Individual plans must be implemented
and closely coordinated through an
operative case management system.
Service plans should identify
individualized, person-centered goals
with measurable outcomes and with
steps or tasks to achieve the goals, be
developed with input from the
unaccompanied child, and be reviewed
and updated at regular intervals.
Unaccompanied children ages 14 and
older should be given a copy of the
plan, and unaccompanied children
under age 14 should be given a copy of
the plan when appropriate for that
particular child’s development.
Individual plans shall be in that child’s
native language or other mode of
auxiliary aid or services and/or use
clear, easily understood language, using
concise and concrete sentences and/or
visual aids and checking for
understanding where appropriate.
§ 410.1303 ORR Reporting, monitoring,
quality control, and recordkeeping
standards.
(a) Monitoring activities. ORR
monitors all care provider facilities for
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compliance with the terms of the
regulations in this part and 45 CFR part
411. ORR monitoring activities include:
(1) Desk monitoring that is ongoing
oversight from ORR headquarters;
(2) Routine site visits that are daylong visits to facilities to review
compliance for policies, procedures,
and practices and guidelines;
(3) Site visits in response to ORR or
other reports that are for a specific
purpose or investigation; and
(4) Monitoring visits that are part of
comprehensive reviews of all care
provider facilities.
(b) Corrective actions. If ORR finds a
care provider facility to be out of
compliance with the regulations in this
part and 45 CFR part 411 or subregulatory policies such as its guidance
and the terms of its contracts or
cooperative agreements, ORR will
communicate the concerns in writing to
the care provider facility director or
appropriate person through a written
monitoring or site visit report, with a
list of corrective actions and child
welfare best practice recommendations,
as appropriate. ORR will request a
response to the corrective action
findings from the care provider facility
and specify a time frame for resolution
and the disciplinary consequences for
not responding within the required
timeframes.
(c) Monitoring of secure facilities. At
secure facilities, in addition to other
monitoring activities, ORR reviews
individual unaccompanied child case
files to make sure children placed in
secure facilities are assessed at least
every 30 days for the possibility of a
transfer to a less restrictive setting.
(d) Monitoring of long-term home care
and transitional home care facilities.
ORR long-term home care and
transitional home care facilities are
subject to the same types of monitoring
as other care provider facilities, but the
activities are tailored to the foster care
arrangement. ORR long-term home care
and transitional home care facilities that
provide services through a sub-contract
or sub-grant are responsible for
conducting annual monitoring or site
visits of the sub-recipient, as well as
weekly desk monitoring. Upon request,
care provider facilities must provide
findings of such reviews to the
designated ORR point of contact.
(e) Care provider facility quality
assurance. ORR requires care provider
facilities to develop quality assurance
assessment procedures that accurately
measure and evaluate service delivery
in compliance with the requirements of
the regulations in this part, as well as
those delineated in 45 CFR part 411.
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(f) Reporting. Care provider facilities
shall report to ORR any emergency
incident, significant incident, or
program-level event and in accordance
with any applicable Federal, State, and
local reporting laws. Such reports are
subject to the following rules:
(1) Care provider facilities must
document incidents with sufficient
detail to ensure that any relevant entity
can facilitate any required follow-up;
document incidents in a way that is
trauma-informed and grounded in child
welfare best practices; and update the
report with any findings or
documentation that are made after the
fact.
(2) Care provider facilities must never:
fabricate, exaggerate, or minimize
incidents; use disparaging or judgmental
language about unaccompanied children
in incident reports; use incident
reporting or the threat of incident
reporting as a way to manage the
behavior of unaccompanied children or
for any other illegitimate reason.
(3) Care provider facilities are
prohibited from using reports of
significant incidents as a method of
punishment or threat towards any child
in ORR care for any reason.
(4) The existence of a report of a
significant incident may not be used by
ORR as a basis for an unaccompanied
child’s step up to a restrictive placement
or as the sole basis for a refusal to step
a child down to a less restrictive
placement. Care provider facilities are
likewise prohibited from using the
existence of a report of a significant
incident as a basis for refusing an
unaccompanied child’s placement in
their facilities. Reports of significant
incidents may be used as examples or
citations of concerning behavior;
however, the existence of a report itself
is not sufficient for a step up, a refusal
to step down, or a care provider facility
to refuse a placement.
(g) Develop, maintain, and safeguard
each individual unaccompanied child’s
case file. This paragraph (g) applies to
all care provider facilities responsible
for the care and custody of
unaccompanied children, whether the
program is a standard program or not.
(1) Care provider facilities and PRS
providers must preserve the
confidentiality of unaccompanied child
case file records and information, and
protect the records and information
from unauthorized use or disclosure;
(2) The records included in
unaccompanied child case files are the
property of ORR, whether in the
possession of ORR or a care provider
facility or PRS provider, and care
provider facilities and PRS providers
may not release those records without
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68991
prior approval from ORR except for
limited program administration
purposes;
(3) Care provider facilities and PRS
providers must provide unaccompanied
child case file records to ORR
immediately upon ORR’s request; and
(4) Employees, former employees, or
contractors of a care provider facility or
PRS provider must not disclose case file
records or information about
unaccompanied children, their
sponsors, family, or household members
to anyone for any purpose, except for
purposes of program administration,
without first providing advanced notice
to ORR to allow ORR to ensure that
disclosure of unaccompanied children’s
information is compatible with program
goals and to ensure the safety and
privacy of unaccompanied children.
(h) Records. Maintain adequate
records in the unaccompanied child
case file and make regular reports as
required by ORR that permit ORR to
monitor and enforce the regulations in
this part and other requirements and
standards as ORR may determine are in
the interests of the unaccompanied
child.
§ 410.1304 Behavior management and
prohibition on seclusion and restraint.
(a) Care provider facilities must
develop behavior management strategies
that include evidence-based, traumainformed, and linguistically responsive
program rules and behavior
management policies that take into
consideration the range of ages and
maturity in the program and that are
culturally sensitive to the needs of each
unaccompanied child. The behavior
management strategies must not use any
practices that involve negative
reinforcement or involve consequences
or measures that are not constructive
and are not logically related to the
behavior being regulated. Care provider
facilities must not:
(1) Use or threaten use of corporal
punishment, significant incident reports
as punishment, unfavorable
consequences related to family/sponsor
unification or legal matters (e.g.,
immigration, asylum); use forced chores
or work that serves no purpose except
to demean or humiliate the child, forced
physical movement, such as push-ups
and running, or uncomfortable physical
positions as a form of punishment or
humiliation; search an unaccompanied
child’s personal belongings solely for
the purpose of behavior management;
apply medical interventions that are not
prescribed by a medical provider acting
within the usual course of professional
practice for a medical diagnosis or that
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increase risk of harm to the
unaccompanied child or others; and
(2) Use any sanctions employed in
relation to an individual
unaccompanied child that:
(i) Adversely affect an
unaccompanied child’s health, or
physical, emotional, or psychological
well-being; or
(ii) Deny unaccompanied children
meals, hydration, sufficient sleep,
routine personal grooming activities,
exercise (including daily outdoor
activity), medical care, correspondence
or communication privileges, or legal
assistance.
(3) Use prone physical restraints,
chemical restraints, or peer restraints for
any reason in any care provider facility
setting.
(b) Involving law enforcement should
be a last resort. A call by a facility to law
enforcement may trigger an evaluation
of staff involved regarding their
qualifications and training in traumainformed, de-escalation techniques.
(c) Standard programs and RTCs are
prohibited from using seclusion as a
behavioral intervention. Standard
programs and RTCs are also prohibited
from using restraints, except as
described at paragraphs (d) and (f) of
this section.
(d) Standard programs and RTCs may
use personal restraint only in emergency
safety situations.
(e) Secure facilities, except for RTCs:
(1) May use personal restraints,
mechanical restraints and/or seclusion
in emergency safety situations.
(2) May restrain an unaccompanied
child for their own immediate safety or
that of others during transport to an
immigration court or an asylum
interview.
(3) May restrain an unaccompanied
child while at an immigration court or
asylum interview if the child exhibits
imminent runaway behavior, makes
violent threats, demonstrates violent
behavior, or if the secure facility has
made an individualized determination
that the child poses a serious risk of
violence or running away if the child is
unrestrained in court or the interview.
(4) Must provide all mandated
services under this subpart to the
unaccompanied child to the greatest
extent practicable under the
circumstances while ensuring the safety
of the unaccompanied child, other
unaccompanied children at the secure
facility, and others.
(f) Care provider facilities may only
use soft restraints (e.g., zip ties and leg
or ankle weights) during transport to
and from secure facilities, and only
when the care provider believes a child
poses a serious risk of physical harm to
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self or others or a serious risk of running
away from ORR custody.
§ 410.1305 Staff, training, and case
manager requirements.
(a) Standard programs, restrictive
placements, and post-release service
providers shall provide training to all
staff, contractors, and volunteers, to
ensure that they understand their
obligations under ORR regulations in
this part and policies and are responsive
to the challenges faced by staff and
unaccompanied children at the facility.
All trainings should be tailored to the
unique needs, attributes, and gender of
the unaccompanied children in care at
the individual care provider facility.
Standard programs and restrictive
placements must document the
completion of all trainings in personnel
files. All staff, contractors, and
volunteers must have completed all
required background checks and vetting
for their respective roles prior to service
provision and care provider facilities
must provide documentation to ORR of
compliance;
(b) Standard programs and restrictive
placements shall meet the staff to child
ratios established by their respective
States or other licensing entities, or
ratios established by ORR if State
licensure is not available; and
(c) Standard programs and restrictive
placements must have case managers
based on site at the facility.
§ 410.1306
Language access services.
(a) General. (1) To the greatest extent
practicable, standard programs and
restrictive placements shall consistently
offer unaccompanied children the
option of interpretation and translation
services in their native or preferred
language, depending on the
unaccompanied children’s preference,
and in a way they effectively
understand. If after taking reasonable
efforts, standard programs and
restrictive placements are unable to
obtain a qualified interpreter or
translator for the unaccompanied
children’s native or preferred language,
depending on the children’s preference,
standard programs and restrictive
placements shall consult with qualified
ORR staff for guidance on how to ensure
meaningful access to their programs and
activities for the children, including
those with limited English proficiency.
(2) Standard programs and restrictive
placements shall prioritize the ability to
provide in-person, qualified interpreters
for unaccompanied children who need
them, particularly for rare or indigenous
languages. After the standard programs
and restrictive placements take
reasonable efforts to obtain in-person,
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qualified interpreters, then they may use
professional telephonic interpreter
services.
(3) Standard programs and restrictive
placements shall translate all
documents and materials shared with
the unaccompanied children, including
those posted in the facilities, in the
unaccompanied children’s native or
preferred language, depending on the
children’s preference, and in a timely
manner.
(b) Placement considerations. ORR
shall make placement decisions for the
unaccompanied children that are
informed in part by language access
considerations and other factors as
listed in § 410.1103(b). To the extent
appropriate and practicable, giving due
consideration to an unaccompanied
child’s individualized needs, ORR shall
place unaccompanied children with
similar language needs within the same
standard program or restrictive
placement.
(c) Intake, orientation, and
confidentiality.(1) Prior to completing
the UC Assessment and starting
counseling services, standard programs
and restrictive placements shall provide
a written notice of the limits of
confidentiality they share while in ORR
care and custody, and orally explain the
contents of the written notice to the
unaccompanied children, in their native
or preferred language, depending on the
children’s preference, and in a way they
can effectively understand.
(2) Standard programs and restrictive
placements shall conduct assessments
and initial medical exams with
unaccompanied children in their native
or preferred language, depending on the
children’s preference, and in a way they
effectively understand.
(3) Standard programs and heightened
supervision facilities shall provide a
standardized and comprehensive
orientation to all unaccompanied
children in their native or preferred
language, depending on the children’s
preference, and in a way they effectively
understand regardless of spoken
language, reading comprehension level,
or disability.
(4) For all step-ups to and step-downs
from restrictive placements, standard
programs and restrictive placements
shall explain to the unaccompanied
children why they were placed in a
restrictive setting and/or if their
placement was changed and do so in the
unaccompanied children’s native or
preferred language, depending on the
children’s preference, and in a way they
effectively understand. All documents
shall be translated into the
unaccompanied children’s and/or
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sponsor’s native or preferred language,
depending on the children’s preference.
(5) If unaccompanied children are not
literate, or if the documents provided
during intakes and/or orientation are
not translated into a language that they
can read and effectively understand, the
standard program or restrictive
placement shall have a qualified
interpreter orally translate or sign
language translate and explain all the
documents in the unaccompanied
children’s native or preferred language,
depending on the children’s preference,
and confirm with the unaccompanied
children that they fully comprehend all
material.
(6) Standard programs and restrictive
placements shall provide information
regarding grievance policies and
procedures in the unaccompanied
children’s native or preferred language,
depending on the children’s preference,
and in a way they effectively
understand.
(7) Standard programs and restrictive
placements shall educate
unaccompanied children on ORR’s
sexual abuse and sexual harassment
policies in the unaccompanied
children’s native or preferred language,
depending on the children’s preference,
and in a way they effectively
understand.
(8) Standard programs and restrictive
placements shall notify the
unaccompanied children that the
standard programs and restrictive
placements shall accommodate the
unaccompanied children’s language
needs while they remain in ORR care.
(9) For paragraphs (c)(1) through (8) of
this section, standard programs and
restrictive placements shall document
that the unaccompanied children
acknowledge that they effectively
understand what was provided to them
in the child’s case files.
(d) Education. (1) Standard programs
and heightened supervision facilities
shall provide educational instruction
and relevant materials in a format and
language accessible to all
unaccompanied children, regardless of
the child’s native or preferred language,
including, but not limited to, providing
services from an in-person, qualified
interpreter, written translations of
materials, and professional telephonic
interpretation when in-person
interpretation options have been
exhausted.
(2) Standard programs and heightened
supervision facilities shall provide
unaccompanied children with
appropriate recreational reading
materials in languages in formats and
languages accessible to all
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unaccompanied children for use during
their leisure time.
(3) Standard programs and heightened
supervision facilities shall translate all
ORR-required documents provided to
unaccompanied children that are part of
educational lessons in formats and
languages accessible to all
unaccompanied children. If written
translations are not available, standard
programs and heightened supervision
facilities shall orally translate or sign
language translate all documents,
prioritizing services from an in-person,
qualified interpreter and translation
before using professional telephonic
interpretation and translation services.
(e) Religious and cultural
accommodations. If an unaccompanied
child requests religious and/or cultural
information or items, the standard
program or heightened supervision
facility shall provide the requested
items in the unaccompanied child’s
native or preferred language, depending
on the child’s preference, and as long as
the request is reasonable.
(f) Parent and sponsor
communications. Standard programs
and restrictive placements shall utilize
any necessary professional
interpretation or translation services
needed to ensure meaningful access by
an unaccompanied child’s parent(s),
guardian(s), and/or potential sponsor(s).
Standard programs and restrictive
placements shall translate all
documents and materials shared with
the parent(s), guardian, and/or potential
sponsors in their native or preferred
language, depending on their
preference.
(g) Healthcare services. While
providing or arranging healthcare
services for unaccompanied children,
standard programs and restrictive
placements shall ensure that
unaccompanied children are able to
communicate with physicians,
clinicians, and healthcare staff in their
native or preferred language, depending
on the unaccompanied children’s
preference, and in a way the
unaccompanied children effectively
understand, prioritizing services from
an in-person, qualified interpreter
before using professional telephonic
interpretation services.
(h) Legal services. Standard programs
and restrictive placements shall make
qualified interpretation and/or
translation services available to
unaccompanied children, child
advocates, and legal service providers
upon request while unaccompanied
children are being provided with those
services. Such services shall be
available to unaccompanied children in
enclosed, confidential areas.
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(i) Interpreter’s and translator’s
responsibility with respect to
confidentiality of information.
Interpreters and translators shall keep
all information about the
unaccompanied children’s cases and/or
services, confidential from non-ORR
grantees, contractors, and Federal staff.
Interpreters and translators shall not
disclose case file information to other
interested parties in the unaccompanied
child’s cases.
§ 410.1307
Healthcare services.
(a) ORR shall ensure that all
unaccompanied children in ORR
custody will be provided with routine
medical and dental care; access to
medical services requiring heightened
ORR involvement, consistent with
paragraph (c) of this section; family
planning services; and emergency
healthcare services.
(b) Standard programs and restrictive
placements shall be responsible for:
(1) Establishment of a network of
licensed healthcare providers
established by the care provider facility,
including specialists, emergency care
services, mental health practitioners,
and dental providers that will accept
ORR’s fee-for-service billing system;
(2) A complete medical examination
(including screening for infectious
disease) within 2 business days of
admission, excluding weekends and
holidays, unless the unaccompanied
child was recently examined at another
facility and if unaccompanied children
are still in ORR custody 60 to 90 days
after admission, an initial dental exam,
or sooner if directed by State licensing
requirements;
(3) Appropriate immunizations as
recommended by the Advisory
Committee on Immunization Practices’
Child and Adolescent Immunization
Schedule and approved by HHS’
Centers for Disease Control and
Prevention;
(4) An annual physical examination,
including hearing and vision screening,
and follow-up care for acute and
chronic conditions;
(5) Administration of prescribed
medication and special diets;
(6) Appropriate mental health
interventions when necessary;
(7) Having policies and procedures for
identifying, reporting, and controlling
communicable diseases that are
consistent with applicable State, local,
and Federal laws and regulations.
(8) Having policies and procedures
that enable unaccompanied children,
including those with language and
literacy barriers, to convey written and
oral requests for emergency and nonemergency healthcare services;
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(9) Having policies and procedures
based on State or local laws and
regulations to ensure the safe, discreet,
and confidential provision of
prescription and nonprescription
medications to unaccompanied
children, secure storage of medications,
and controlled administration and
disposal of all drugs. A licensed
healthcare provider must write or orally
order all nonprescription medications,
and oral orders must be documented in
the unaccompanied child’s file; and
(10) Medical isolation may be used
according to the following requirements:
(i) An unaccompanied child may be
placed in medical isolation and
excluded from contact with the general
population in order to prevent the
spread of an infectious disease due to a
potential exposure, protect other
unaccompanied children, and care
provider facility staff for a medical
purpose or as required under State,
local, or other licensing rules, as long as
the medically required isolation is
limited only to the extent necessary to
ensure the health and welfare of the
unaccompanied child, other
unaccompanied children at a care
provider facility and care provider
facility staff, or the public at large.
(ii) Standard programs and restrictive
placements must provide all mandated
services under this subpart to the
greatest extent practicable under the
circumstances to unaccompanied
children in medical isolation. Medically
isolated unaccompanied children still
must be supervised under State, local,
or other licensing ratios, and, if multiple
unaccompanied children are in medical
isolation, they should be placed in units
or housing together (as practicable,
given the nature or type of medical issue
giving rise to the requirement for
isolation in the first instance).
(c) Access to medical care—(1) Initial
placement and transfer
considerations—(i) Initial placement.
Consistent with § 410.1103, when
placing an unaccompanied child, ORR
considers the child’s individualized
needs and any specialized services or
treatment required or reasonably
requested. Such services or treatment
include but are not limited to access to
medical specialists, family planning
services, and medical services requiring
heightened ORR involvement. When
such care is determined to be medically
necessary during the referral, intake
process, Initial Medical Exam, or at any
point while the unaccompanied child is
in ORR custody, or the unaccompanied
child reasonably requests such medical
care while in ORR custody, ORR shall,
to the greatest extent possible, identify
available and appropriate bed space and
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place the unaccompanied child at a care
provider facility that is able to provide
or arrange such care, is in an
appropriate location to support the
unaccompanied child’s healthcare
needs, and affords access to an
appropriate medical provider who is
able to perform any reasonably
requested or medically necessary
services.
(ii) Transfers. If an appropriate initial
placement is not immediately available
or if the unaccompanied child’s need or
request for medical care is identified
after the Initial Medical Exam, care
providers shall immediately notify ORR
and ORR shall, to the greatest extent
possible, transfer the unaccompanied
child needing medical care to an ORR
program that meets the qualifications in
paragraph (c)(1)(i) of this section.
(2) Transportation. ORR shall ensure
unaccompanied children have access to
medical care, including transportation
across State lines and associated
ancillary services if necessary to access
appropriate medical services, including
access to medical specialists, family
planning services, and medical services
requiring heightened ORR involvement.
The requirement in this paragraph (c)(2)
applies regardless of whether Federal
appropriations law prevents ORR from
paying for the medical care itself. If
there is a potential conflict between
ORR’s regulations in this part and State
law, ORR will review the circumstances
to determine how to ensure that it is
able to meet its statutory
responsibilities. It is important to note,
however, that if a State law or license,
registration, certification, or other
requirement conflicts with an ORR
employee’s duties within the scope of
their ORR employment, the ORR
employee is required to abide by their
Federal duties.
(d) Notifications. Care provider
facilities shall notify ORR within 24
hours of an unaccompanied child’s need
or request for medical services requiring
heightened ORR involvement or the
discovery of a pregnancy.
§ 410.1308
Child advocates.
(a) Child advocates. This section sets
forth the provisions relating to the
appointment and responsibilities of
independent child advocates for child
trafficking victims and other especially
vulnerable unaccompanied children.
(b) Role of the child advocate. Child
advocates are third parties who make
independent recommendations
regarding the best interests of an
unaccompanied child. Their
recommendations are based on
information obtained from the
unaccompanied child and other sources
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(including, but not limited to, the
unaccompanied child’s parents, the
family, potential sponsors/sponsors,
government agencies, legal service
providers, protection and advocacy
system representatives in appropriate
cases, representatives of the
unaccompanied child’s care provider,
health professionals, and others). Child
advocates formally submit their
recommendations to ORR and/or the
immigration court, where appropriate,
in the form of best interest
determinations (BIDs).
(c) Responsibilities of the child
advocate. The child advocate’s
responsibilities include, but are not
limited to:
(1) Visiting with their unaccompanied
child clients;
(2) Explaining the consequences and
potential outcomes of decisions that
may affect their unaccompanied child;
(3) Advocating for their
unaccompanied child client’s best
interest with respect to care, placement,
services, release, and within
proceedings to which the child is a
party;
(4) Providing best interest
determinations, where appropriate and
within a reasonable time to ORR, an
immigration court, and/or other
stakeholders involved in a proceeding
or matter in which the unaccompanied
child is a party or has an interest; and,
(5) Regularly communicating case
updates with the care provider facility,
ORR, and/or other stakeholders in the
planning and performance of advocacy
efforts, including updates related to
services provided to an unaccompanied
child after their release from ORR care.
(d) Appointment of child advocates.
ORR may appoint child advocates for
unaccompanied children who are
victims of trafficking or especially
vulnerable.
(1) An interested party may refer an
unaccompanied child to ORR for a child
advocate after notifying ORR that a
particular unaccompanied child who is
currently in or was previously in, ORR’s
care and custody, is a victim of
trafficking or is especially vulnerable.
As used in this paragraph (d)(1),
interested parties means individuals or
organizations involved in the care,
service, or proceeding involving an
unaccompanied child, including but not
limited to, ORR Federal or contracted
staff; an immigration judge; DHS Staff;
a legal service provider, attorney of
record, or EOIR accredited
representative; an ORR care provider;
healthcare professional; or a child
advocate organization.
(2) ORR shall make an appointment
decision within five (5) business days of
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a referral for a child advocate, except
under exceptional circumstances which
may delay a decision regarding an
appointment. ORR will appoint child
advocates for unaccompanied children
who are currently in or were previously
in ORR care and custody. ORR does not
appoint child advocates for
unaccompanied children who are not in
or were not previously in ORR care and
custody.
(3) Child advocate appointments
terminate upon the closure of the
unaccompanied child’s case by the
child advocate; when the
unaccompanied child turns 18; or when
the unaccompanied child obtains lawful
immigration status.
(e) Child advocate’s access to
information. After a child advocate is
appointed for an unaccompanied child,
the child advocate shall be provided
access to materials to effectively
advocate for the best interest of the
unaccompanied child. Child advocates
shall be provided access to their clients
during normal business hours at an ORR
care provider facility and shall be
provided access to all their client’s case
file information and may request copies
of the case file directly from the
unaccompanied child’s care provider
without going through ORR’s standard
case file request process.
(f) Child advocate’s responsibility
with respect to confidentiality of
information. Child advocates must keep
the information in the case file, and
information about the unaccompanied
child’s case, confidential. Child
advocates shall not disclose case file
information except to ORR grantees,
contractors, and Federal staff. Child
advocates shall not disclose case file
information to other parties, including
parties with an interest in a child’s case.
With regard to an unaccompanied child
in ORR care, ORR shall allow the child
advocate of that unaccompanied child
to conduct private communications
with the unaccompanied child, in a
private area that allows for
confidentiality for in-person and virtual
or telephone meetings.
(g) Non-retaliation against child
advocates. ORR shall presume that child
advocates are acting in good faith with
respect to their advocacy on behalf of
unaccompanied children, and shall not
retaliate against a child advocate for
actions taken within the scope of their
responsibilities. For example, ORR shall
not retaliate against child advocates
because of any disagreement with a best
interest determination in regard to an
unaccompanied child, or because of a
child advocate’s advocacy on behalf of
an unaccompanied child.
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§ 410.1309
Legal services.
(a) Unaccompanied children’s access
to immigration legal services—(1)
Purpose. This paragraph (a) describes
ORR’s responsibilities in relation to
legal services for unaccompanied
children, consistent with 8 U.S.C.
1232(c)(5).
(2) Orientation. An unaccompanied
child in ORR’s legal custody shall
receive:
(i) An in-person, telephonic, or video
presentation concerning the rights and
responsibilities of undocumented
children in the immigration system,
presented in the language of the
unaccompanied child and in an ageappropriate manner.
(A) Such presentation shall be
provided by an independent legal
service provider that has appropriate
qualifications and experience, as
determined by ORR, to provide such
presentation and shall include
information notifying the
unaccompanied child of their legal
rights and responsibilities, including
protections under child labor laws, and
of services to which they are entitled,
including educational services. The
presentation must be delivered in the
language of the unaccompanied child
and in an age-appropriate manner.
(B) Such presentation must occur
within 10 business days of child’s
admission to ORR, within 10 business
days of a child’s transfer to a new ORR
facility (except ORR long-term home
care or ORR transitional home care), and
every 6 months for unrepresented
children who remain in ORR custody, as
practicable. If the unaccompanied child
is released before 10 business days, a
legal service provider shall follow up as
soon as practicable to complete the
presentation, in person or remotely.
(ii) Information regarding the
availability of free legal assistance and
that they may be represented by counsel
at no expense to the government.
(iii) Notification regarding the child’s
ability to petition for SIJ classification,
to request that a juvenile court
determine dependency or placement in
accordance with § 410.1209, and
notification of the ability to apply for
asylum or other forms of relief from
removal.
(iv) Information regarding the
unaccompanied child’s right to a
removal hearing before an immigration
judge, the ability to apply for asylum
with USCIS in the first instance, and the
ability to request voluntary departure in
lieu of removal.
(v) A confidential legal consultation
with a qualified attorney (or paralegal
working under the direction of an
attorney, or EOIR accredited
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representative) to determine possible
forms of relief from removal in relation
to the unaccompanied child’s
immigration case, as well as other case
disposition options such as, but not
limited to, voluntary departure. Such
consultation shall occur within 10
business days of a child’s transfer to a
new ORR facility (except ORR long-term
home care or ORR transitional home
care) or upon request from ORR. ORR
shall request an additional legal
consultation on behalf of a child, if the
child has been identified as:
(A) A potential victim of a severe form
of trafficking;
(B) Having been abused, abandoned,
or neglected; or
(C) Having been the victim of a crime
or domestic violence; or
(D) Persecuted or in fear of
persecution due to race, religion,
nationality, membership in a particular
social group, or for a political opinion.
(vi) An unaccompanied child in ORR
care shall be able to conduct private
communications with their attorney of
record, EOIR accredited representative,
or legal service provider in a private
enclosed area that allows for
confidentiality for in-person, virtual, or
telephone meetings.
(3) Accessibility of information. In
addition to the requirements in
paragraphs (a)(1) and (2) of this section
for orienting and informing
unaccompanied children of their legal
rights and access to services while in
ORR care, ORR shall also require this
information be posted for
unaccompanied children in an ageappropriate format and translated into
each child’s preferred language, in any
ORR contracted or grant-funded facility
where unaccompanied children are in
ORR care.
(4) Direct immigration legal
representation services for
unaccompanied children currently or
previously under ORR care. To the
extent ORR determines that
appropriations are available, and insofar
as it is not practicable for ORR to secure
pro bono counsel, ORR shall fund legal
service providers to provide direct
immigration legal representation for
certain unaccompanied children,
subject to ORR’s discretion and
available appropriations. Examples of
direct immigration legal representation
include, but are not limited to:
(i) For unrepresented unaccompanied
children who become enrolled in ORR
Unaccompanied Refugee Minor (URM)
programs, provided they have not yet
obtained immigration relief or reached
18 years of age at the time of retention
of an attorney;
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(ii) For unaccompanied children in
ORR care who are in proceedings before
the Executive Office for Immigration
Review (EOIR), including
unaccompanied children seeking
voluntary departure, and for whom
other available assistance does not
satisfy the legal needs of the individual
child;
(iii) For unaccompanied children
released to a sponsor residing in the
defined service area of the same legal
service provider who provided the child
legal services in ORR care, to promote
continuity of legal services; and
(iv) For other unaccompanied
children, to the extent ORR determines
that appropriations are available.
(b) Legal services for the protection of
unaccompanied children’s interests in
certain matters not involving direct
immigration representation—(1)
Purpose. This paragraph (b) provides for
the use of additional funding for legal
services, to the extent that ORR
determines it to be available, to help
ensure that the interests of
unaccompanied children are considered
in certain matters relating to their care
and custody, to the greatest extent
practicable.
(2) Funding. To the extent ORR
determines that appropriations are
available, and insofar as it is not
practicable for ORR to secure pro bono
counsel, ORR may fund access to
counsel for unaccompanied children,
including for purposes of legal
representation, in the following
enumerated non-immigration related
matters, subject to ORR’s discretion and
in no particular order of priority:
(i) ORR appellate procedures,
including Placement Review Panel
(PRP), under § 410.1902, and risk
determination hearings, under
§ 410.1903;
(ii) For unaccompanied children upon
their placement in ORR long-term home
care or in a residential treatment center
outside a licensed ORR facility, and for
whom other legal assistance does not
satisfy the legal needs of the individual
child;
(iii) For unaccompanied children with
no identified sponsor who are unable to
be placed in ORR long-term home care
or ORR transitional home care;
(iv) For purposes of judicial bypass or
similar legal processes as necessary to
enable an unaccompanied child to
access certain lawful medical
procedures that require the consent of
the parent or legal guardian under State
law, and when the unaccompanied
child is unable or unwilling to obtain
such consent;
(v) For the purpose of representing an
unaccompanied child in state juvenile
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court proceedings, when the
unaccompanied child already possesses
SIJ classification; and
(vi) For the purpose of helping an
unaccompanied child to obtain an
employment authorization document.
(c) Standards for legal services for
unaccompanied children. (1) In-person
meetings are preferred during the course
of providing legal counsel to any
unaccompanied child under paragraph
(a) or (b) of this section, though
telephonic or teleconference meetings
between the unaccompanied child’s
attorney or EOIR accredited
representative and the unaccompanied
child may substitute as appropriate.
Either the unaccompanied child’s
attorney, EOIR accredited
representative, or a care provider staff
member or care provider shall always
accompany the unaccompanied child to
any in-person courtroom hearing or
proceeding, in connection with any
legal representation of an
unaccompanied child pursuant to this
section.
(2) Information and notice shared
with an unaccompanied child’s attorney
or EOIR accredited representative. Upon
receipt by ORR of proof of
representation and authorization for
release of records signed by the
unaccompanied child or other
authorized representative, ORR shall
share, upon request, the unaccompanied
child’s complete case file apart from any
legally required redactions to assist in
the legal representation of the
unaccompanied child.
(d) Grants or contracts for
unaccompanied children’s immigration
legal services. (1) This paragraph (d)
prescribes requirements concerning
grants or contracts to legal service
providers to ensure that all
unaccompanied children who are or
have been in ORR care have access to
counsel to represent them in
immigration legal proceedings or
matters and to protect them from
mistreatment, exploitation and
trafficking, to the greatest extent
practicable, in accordance with the
TVPRA [at 8 U.S.C. 1232(c)(5)] and 292
of the Immigration and Nationality Act
[at 8 U.S.C. 1362].
(2) ORR may make grants, in its
discretion and subject to available
resources—including formula grants
distributed geographically in proportion
to the population of released
unaccompanied children—or contracts
under this section to qualified agencies
or organizations, as determined by ORR
and in accordance with the eligibility
requirements outlined in the
authorizing statute, for the purpose of
providing immigration legal
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representation, assistance and related
services to unaccompanied children
who are in ORR care, or who have been
released from ORR care and living in a
State or region.
(3) Subject to the availability of funds,
grants or contracts shall be calculated
based on the historic proportion of the
unaccompanied child population in the
State within a lookback period
determined by the Director, provided
annually by the State.
(e) Non-retaliation against legal
service providers. ORR shall presume
that legal service providers are acting in
good faith with respect to their
advocacy on behalf of unaccompanied
children and ORR shall not retaliate
against a legal service provider for
actions taken within the scope of the
legal service providers’ responsibilities.
For example, ORR shall not engage in
retaliatory actions against legal service
providers or any other representative for
reporting harm or misconduct on behalf
of an unaccompanied child.
§ 410.1310
Psychotropic medications.
(a) Except in the case of a psychiatric
emergency, ORR shall ensure that,
whenever possible, authorized
individuals provide informed consent
prior to the administration of
psychotropic medications to
unaccompanied children.
(b) ORR must ensure meaningful
oversight of the administration of
psychotropic medication(s) to
unaccompanied children.
§ 410.1311 Unaccompanied children with
disabilities.
(a) ORR must provide notice to the
unaccompanied children in its custody
of the protections against discrimination
under section 504 of the Rehabilitation
Act at 45 CFR part 85 assured to
children with disabilities in its custody.
ORR must also provide notice of the
available procedures for seeking
reasonable modifications or making a
complaint about alleged discrimination
against children with disabilities in
ORR’s custody.
(b) ORR shall administer the UC
Program in the most integrated setting
appropriate to the needs of
unaccompanied children with
disabilities in accordance with 45 CFR
85.21(d), unless ORR can demonstrate
that this would fundamentally alter the
nature of its UC Program.
(c) ORR shall provide reasonable
modifications needed for an
unaccompanied child with one or more
disabilities to have equal access to the
UC Program. ORR is not required,
however, to take any action that it can
demonstrate would result in a
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fundamental alteration in the nature of
a program or activity.
(d) Where applicable, ORR shall
document in the child’s ORR case file
any services, supports, or program
modifications being provided to an
unaccompanied child with one or more
disabilities.
(e) In addition to the requirements for
release of unaccompanied children
established elsewhere in this part and
through any subregulatory guidance
ORR may issue, ORR shall adhere to the
following requirements when releasing
unaccompanied children with
disabilities to a sponsor:
(1) ORR’s assessment under
§ 410.1202 of a potential sponsor’s
capability to provide for the physical
and mental well-being of the child must
necessarily include explicit
consideration of the impact of the
child’s disability or disabilities.
(2) In conducting PRS, ORR and any
entities through which ORR provides
PRS shall make reasonable
modifications in their policies,
practices, and procedures if needed to
enable released unaccompanied
children with disabilities to live in the
most integrated setting appropriate to
their needs, such as with a sponsor.
ORR is not required, however, to take
any action that it can demonstrate
would result in a fundamental alteration
in the nature of a program or activity.
ORR will affirmatively support and
assist otherwise viable potential
sponsors in accessing and coordinating
appropriate post-release communitybased services and supports available in
the community to support the sponsor’s
ability to care for a child with one or
more disabilities, as provided for under
§ 410.1210.
(3) ORR shall not delay the release of
a child with one or more disabilities
solely because post-release services are
not in place before the child’s release.
Subpart E—Transportation of an
Unaccompanied Child
§ 410.1400
Purpose of this subpart.
This subpart concerns the safe
transportation of each unaccompanied
child while in ORR’s care.
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§ 410.1401 Transportation of an
unaccompanied child in ORR’s care.
(a) ORR care provider facilities shall
transport an unaccompanied child in a
manner that is appropriate to the child’s
age and physical and mental needs,
including proper use of car seats for
young children, and consistent with
§ 410.1304.
(b) When ORR plans to release an
unaccompanied child from its care to a
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sponsor under the provisions at subpart
C of this part, ORR assists without
undue delay in making transportation
arrangements. In its discretion, ORR
may request the care provider facility to
transport an unaccompanied child. In
these circumstances, ORR may, in its
discretion, reimburse the care provider
facility or directly pay for the child and/
or sponsor’s transportation, as
appropriate, to facilitate timely release.
(c) The care provider facility shall
comply with all relevant State and local
licensing requirements and state and
Federal regulations regarding
transportation of children, such as
meeting or exceeding the minimum
staff/child ratio required by the care
provider facility’s licensing agency,
maintaining and inspecting all vehicles
used for transportation, etc.
(d) If there is a potential conflict
between ORR’s regulations in this part
and State law, ORR will review the
circumstances to determine how to
ensure that it is able to meet its statutory
responsibilities. It is important to note,
however, that if a State law or license,
registration, certification, or other
requirement conflicts with an ORR
employee’s duties within the scope of
their ORR employment, the ORR
employee is required to abide by their
Federal duties.
(e) The care provider facility shall
conduct all necessary background
checks for drivers transporting
unaccompanied children, in compliance
with § 410.1305(a).
(f) If a care provider facility is
transporting an unaccompanied child, it
shall assign at least one transport staff
of the same gender as the child being
transported to the greatest extent
possible under the circumstances.
Subpart F—Data and Reporting
Requirements
§ 410.1500
Purpose of this subpart.
ORR maintains statistical and other
data on the unaccompanied children for
whom it is responsible. ORR shall be
responsible for coordinating with other
Departments to obtain some of the
statistical data and shall obtain
additional data from care provider
facilities. This subpart describes
information that care provider facilities
shall report to ORR such that ORR may
compile and maintain statistical
information and other data on
unaccompanied children.
§ 410.1501
children.
Data on unaccompanied
Care provider facilities are required to
report information necessary for ORR to
maintain data in accordance with this
section. Data include:
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(a) Biographical information, such as
an unaccompanied child’s name,
gender, date of birth, country of birth,
whether of indigenous origin, and
country of habitual residence;
(b) The date on which the
unaccompanied child came into Federal
custody by reason of the child’s
immigration status;
(c) Information relating to the
unaccompanied child’s placement,
removal, or release from each care
provider facility in which the
unaccompanied child has resided,
including date and to whom and where
placed, transferred, removed, or
released;
(d) In any case in which the
unaccompanied child is placed in
detention or released, an explanation
relating to the detention or release;
(e) The disposition of any actions in
which the unaccompanied child is the
subject;
(f) Information gathered from
assessments, evaluations, or reports of
the child; and,
(g) Data necessary to evaluate and
improve the care and services for
unaccompanied children.
Subpart G—Transfers
§ 410.1600 Purpose of this subpart. This
subpart provides guidelines for the transfer
of an unaccompanied child.
§ 410.1601 Transfer of an unaccompanied
child within the ORR care provider facility
network.
(a) General requirements for transfers.
The care provider facility shall
continuously assess unaccompanied
children in their care to review whether
the children’s placements are
appropriate. An unaccompanied child
shall be placed in the least restrictive
setting that is in the best interests of the
child, subject to considerations
regarding danger to self or the
community and runaway risk. Care
providers shall follow ORR guidance,
including guidance regarding placement
considerations, when making transfer
recommendations.
(1) If the care provider facility
identifies an alternate placement for the
unaccompanied child that would best
meet the child’s needs, the care provider
facility shall make a transfer
recommendation to ORR for approval
within three (3) business days of
identifying the need for a transfer.
(2) The care provider facility shall
ensure the unaccompanied child is
medically cleared for transfer within
three (3) business days of ORR
identifying the need for a transfer,
unless otherwise waived by ORR. For an
unaccompanied child with acute or
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chronic medical conditions, or seeking
medical services requiring heightened
ORR involvement, the appropriate care
provider facility staff and ORR shall
meet to review the transfer
recommendation. If a child is not
medically cleared for transfer within
three (3) business days, the care
provider facility shall notify ORR, and
ORR shall review and determine if the
child is fit for travel. If ORR determines
the child is not fit for travel, ORR shall
notify the care provider facility of the
denial and specify a timeframe for the
care provider facility to re-evaluate the
child for transfer.
(3) Within 48 hours prior to the
unaccompanied child’s physical
transfer, the referring care provider
facility shall notify all appropriate
interested parties of the transfer,
including the child’s attorney of record
or EOIR accredited representative, legal
service provider, or child advocate, as
applicable. However, such advance
notice is not required in unusual and
compelling circumstances, such as the
following in which cases notices shall
be provided within 24 hours following
transfer:
(i) Where the safety of the
unaccompanied child or others has been
threatened;
(ii) Where the unaccompanied child
has been determined to be a runaway
risk consistent with § 410.1108; or
(iii) Where the interested party has
waived such notice.
(4) The unaccompanied child shall be
transferred with the child’s possessions
and legal papers, including, but not
limited to:
(i) Personal belongings;
(ii) The transfer request and tracking
form;
(iii) 30-day medication supply, if
applicable;
(iv) All health records; and
(v) Original documents (including
birth certificates).
(5) If the unaccompanied child’s
possessions exceed the amount
permitted normally by the carrier in use,
the care provider shall ship the
possessions to a subsequent placement
of the unaccompanied child in a timely
manner.
(b) Restrictive care provider facility
placements and transfers. When an
unaccompanied child is placed in a
restrictive setting (secure, heightened
supervision, or residential treatment
center), the care provider facility in
which the child is placed and ORR shall
review the placement at least every 30
days to determine whether a new level
of care is appropriate for the child. If the
care provider facility and ORR
determine in the review that continued
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placement in a restrictive setting is
appropriate, the care provider facility
shall document the basis for its
determination and, upon request,
provide documentation of the review
and rationale for continued placement
to the child’s attorney of record, legal
service provider, and/or child advocate.
(c) Group transfers. At times,
circumstances may require a care
provider facility to transfer more than
one (1) unaccompanied child at a time
(e.g., emergencies, natural disasters,
program closures, and bed capacity
constraints). For group transfers, the
care provider facility shall follow ORR
guidance and the requirements in
paragraph (a) of this section.
(d) Residential treatment center
placements. A care provider facility
may request ORR to transfer an
unaccompanied child in its care to a
residential treatment center (RTC),
pursuant to the requirements described
at § 410.1105(c). The care provider
facility shall review the placement of a
child into an RTC every 30 days in
accordance with paragraph (b) of this
section.
(e) Emergency placement changes. An
unaccompanied child who is placed
pursuant to subpart B of this part
remains in the legal custody of ORR and
may only be transferred or released by
ORR. However, in the event of an
emergency, a care provider facility may
temporarily change the physical
placement of an unaccompanied child
prior to securing permission from ORR
but shall notify ORR of the change of
physical placement, as soon as possible,
but in all cases within eight hours of
transfer.
Subpart H—Age Determinations
§ 410.1700
Purpose of this subpart.
This subpart sets forth the provisions
for determining the age of an individual
in ORR custody.
§ 410.1701
Applicability.
This subpart applies to individuals in
the custody of ORR. To meet the
definition of an unaccompanied child
and remain in ORR custody, an
individual must be under 18 years of
age.
§ 410.1702 Conducting age
determinations.
Procedures for determining the age of
an individual must take into account the
totality of the circumstances and
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,
including X-rays, conducted by a
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medical professional or to submit to
other appropriate procedures to verify
their age. If ORR subsequently
determines that such an individual is an
unaccompanied child, the individual
will be treated in accordance with
ORR’s UC Program regulations in this
part for all purposes.
§ 410.1703 Information used as evidence
to conduct age determinations.
(a) ORR considers multiple forms of
evidence in making age determinations,
and determinations are made based
upon a totality of evidence.
(b) ORR may consider information or
documentation to make an age
determination, including but not limited
to:
(1) If there is no original birth
certificate, certified copy, or photocopy
or facsimile copy of a birth certificate
acceptable to ORR, ORR may consult
with the consulate or embassy of the
individual’s country of birth to verify
the validity of the birth certificate
presented.
(2) Authentic government-issued
documents issued to the bearer.
(3) Other documentation, such as
baptismal certificates, school records,
and medical records, which indicate an
individual’s date of birth.
(4) Sworn affidavits from parents or
other relatives as to the individual’s age
or birth date.
(5) Statements provided by the
individual regarding the individual’s
age or birth date.
(6) Statements from parents or legal
guardians.
(7) Statements from other persons
apprehended with the individual.
(8) Medical age assessments, which
should not be used as a sole
determining factor but only in concert
with other factors. If an individual’s
estimated probability of being 18 years
or older is 75 percent or greater
according to a medical age assessment,
and the totality of the evidence
indicates that the individual is 18 years
old or older, ORR must determine that
the individual is 18 years old or older.
The 75 percent probability threshold
applies to all medical methods and
approaches identified by the medical
community as appropriate methods for
assessing age. Ambiguous, debatable, or
borderline forensic examination results
are resolved in favor of finding the
individual is a minor.
§ 410.1704 Treatment of an individual who
appears to be an adult.
If the procedures in this subpart
would result in a reasonable person
concluding that an individual is an
adult, despite the individual’s claim to
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be under the age of 18, ORR shall treat
such person as an adult for all purposes.
Subpart I—Emergency and Influx
Operations
§ 410.1800 Contingency planning and
procedures during an emergency or influx.
(a) ORR regularly reevaluates the
number of placements needed for
unaccompanied children to determine
whether the number of shelters,
heightened supervision facilities, and
ORR transitional home care beds should
be adjusted to accommodate an
increased or decreased number of
unaccompanied children eligible for
placement in care in ORR care provider
facilities.
(b) In the event of an emergency or
influx that prevents the prompt
placement of unaccompanied children
in standard programs, ORR shall make
all reasonable efforts to place each
unaccompanied child in a standard
program as expeditiously as possible.
(c) ORR activities during an influx or
emergency include the following:
(1) ORR implements its contingency
plan on emergencies and influxes,
which may include opening facilities to
house unaccompanied children and
prioritization of placement at such
facilities of certain unaccompanied
children;
(2) ORR continually develops
standard programs that are available to
accept emergency or influx placements;
and
(3) ORR maintains a list of
unaccompanied children affected by the
emergency or influx including each
unaccompanied child’s:
(i) Name;
(ii) Date and country of birth;
(iii) Date of placement in ORR’s
custody; and
(iv) Place and date of current
placement.
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§ 410.1801 Minimum standards for
emergency or influx facilities.
(a) In addition to the ‘‘standard
program’’ and ‘‘restrictive placements’’
defined in this part, ORR provides
standards in this section for all
emergency or influx facilities.
(b) Emergency or influx facilities must
provide the following minimum
services for all unaccompanied children
in their care:
(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,
including pregnancy tests; medical
services requiring heightened ORR
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involvement; and emergency healthcare
services; a complete medical
examination (including screenings for
infectious diseases) within 48 hours of
admission, excluding weekends and
holidays, unless the unaccompanied
child was recently examined at another
ORR care provider facility; appropriate
immunizations as recommended by the
Advisory Committee on Immunization
Practices’ Child and Adolescent
Immunization Schedule and approved
by HHS’ Centers for Disease Control and
Prevention; administration of prescribed
medication and special diets; and
appropriate mental health interventions
when necessary.
(3) An individualized needs
assessment, which includes the various
initial intake forms, collection of
essential data relating to the
identification and history of the child
and the child’s family, identification of
the unaccompanied child’s special
needs including any specific problems
which appear to require immediate
intervention, an educational assessment
and plan, and an assessment of family
relationships and interaction with
adults, peers and authority figures; a
statement of religious preference and
practice; an assessment of the
unaccompanied child’s personal goals,
strengths and weaknesses; 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 connecting the child with family
members.
(4) Educational services appropriate
to the unaccompanied child’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 acquisition. The
educational program shall include
instruction and educational and other
reading materials in such languages as
needed. Basic academic areas should
include science, social studies, math,
reading, writing, and physical
education. The program must provide
unaccompanied children with
appropriate reading materials in
languages other than English for use
during leisure time.
(5) Activities according to a recreation
and leisure time plan that include daily
outdoor activity—weather permitting—
with at least one hour per day of large
muscle activity and one hour per day of
structured leisure time activities (that
should not include time spent watching
television). Activities should be
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increased to a total of 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
objective of reviewing the child’s
progress, establishing new short-term
objectives, and addressing both the
developmental and crisis-related needs
of each child.
(7) Group counseling sessions at least
twice a week. Sessions are usually
informal and take place with all
unaccompanied children present. The
sessions give new children the
opportunity to get acquainted with 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 activities. The sessions allow
staff and unaccompanied children to
discuss whatever is on their minds and
to resolve problems.
(8) Acculturation and adaptation
services, which include information
regarding the development of social and
interpersonal skills which contribute to
those abilities necessary to live
independently and responsibly.
(9) A comprehensive orientation
regarding program intent, services, rules
(written and verbal), expectations, and
the availability of legal assistance.
(10) Whenever possible, access to
religious services of the child’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 child’s privacy while
reasonably preventing the unauthorized
release of the unaccompanied child.
(12) A reasonable right to privacy,
which includes the right to wear the
child’s own clothes when available,
retain a private space in the residential
facility, group or foster home for the
storage of personal belongings, talk
privately on the phone and visit
privately with guests, as permitted by
the house rules and regulations, receive
and send uncensored mail unless there
is a reasonable belief that the mail
contains contraband.
(13) Services designed to identify
relatives in the United States as well as
in foreign countries and assistance in
obtaining legal guardianship when
necessary for the release of the
unaccompanied child.
(14) Legal services information,
including the availability of free legal
assistance, and that they may be
represented by counsel at no expense to
the government, the right to a removal
hearing before an immigration judge, the
ability to apply for asylum with USCIS
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in the first instance, and the ability to
request voluntary departure in lieu of
deportation.
(15) Emergency or influx facilities,
whether state-licensed or not, must
comply, to the greatest extent possible,
with State child welfare laws and
regulations (such as mandatory
reporting of abuse), as well as State and
local building, fire, health and safety
codes, that ORR determines are
applicable to non-State licensed
facilities. If there is a potential conflict
between ORR’s regulations and State
law, ORR will review the circumstances
to determine how to ensure that it is
able to meet its statutory
responsibilities. It is important to note,
however, that if a State law or license,
registration, certification, or other
requirement conflicts with an ORR
employee’s duties within the scope of
their ORR employment, the ORR
employee is required to abide by their
Federal duties.
(16) Emergency or influx facilities
must deliver services in a manner that
is sensitive to the age, culture, native
language, and needs of each
unaccompanied child. Emergency or
influx facilities must develop an
individual service plan for the care of
each child.
(17) The emergency or influx facility
maintains records of case files and make
regular reports to ORR. Emergency or
influx facilities must have
accountability systems in place, which
preserve the confidentiality of client
information and protect the records
from unauthorized use or disclosure.
(c) Emergency or influx facilities must
do the following when providing
services to unaccompanied children:
(1) Maintain safe and sanitary
conditions that are consistent with
ORR’s concern for the particular
vulnerability of minors;
(2) Provide access to toilets, showers
and sinks, as well as personal hygiene
items such as soap, toothpaste and
toothbrushes, floss, towels, feminine
care items, and other similar items;
(3) Provide drinking water and food;
(4) Provide medical assistance if the
unaccompanied child is in need of
emergency services;
(5) Maintain adequate temperature
control and ventilation;
(6) Provide adequate supervision to
protect unaccompanied children;
(7) Separate from other
unaccompanied children those
unaccompanied children who are
subsequently found to have past
criminal or juvenile detention histories
or have perpetrated sexual abuse that
present a danger to themselves or
others;
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(8) Provide contact with family
members who were arrested with the
unaccompanied child; and
(9) Provide access to legal services
described in § 410.701(a).
(d) ORR may grant waivers for an
emergency or influx facility from
standards under paragraph (b) of this
section, if the facility is activated for a
period of six consecutive months or less
and such standards are operationally
infeasible and done in accordance with
law. Such waiver must be made
publicly available.
§ 410.1802 Placement standards for
emergency or influx facilities.
(a) Unaccompanied children who are
placed in an emergency or influx facility
must meet all of the following criteria to
the extent feasible. If ORR becomes
aware that a child does not meet any of
the following criteria at any time after
placement into an emergency or influx
facility, ORR will transfer the
unaccompanied child to the least
restrictive setting appropriate for that
child’s need as expeditiously as
possible.
(1) Is expected to be released to a
sponsor within 30 days;
(2) Is age 13 or older;
(3) Speaks English or Spanish as their
preferred language;
(4) Does not have a known disability
or other mental health or medical issue
or dental issue requiring additional
evaluation, treatment, or monitoring by
a healthcare provider;
(5) Is not a pregnant or parenting teen;
(6) Would not have a diminution of
legal services as a result of the transfer
to an unlicensed facility; and
(7) Is not a danger to self or others
(including not having been charged with
or convicted of a criminal offense).
(b) ORR shall also consider the
following factors for the placement of an
unaccompanied child in an emergency
or influx facility:
(1) The unaccompanied child should
not be part of a sibling group with a
sibling(s) age 12 years or younger;
(2) The unaccompanied child should
not be subject to a pending age
determination;
(3) The unaccompanied child should
not be involved in an active State
licensing, child protective services, or
law enforcement investigation, or an
investigation resulting from a sexual
abuse allegation;
(4) The unaccompanied child should
not have a pending home study;
(5) The unaccompanied child should
not be turning 18 years old within 30
days of the transfer to an emergency or
influx facility;
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(6) The unaccompanied child should
not be scheduled to be discharged in
three days or less;
(7) The unaccompanied child should
not have a current set docket date in
immigration court or State/family court
(juvenile included), not have a pending
adjustment of legal status, and not have
an attorney of record or EOIR accredited
representative;
(8) The unaccompanied child should
be medically cleared and vaccinated as
required by the emergency or influx care
facility (for instance, if the influx care
facility is on a U.S. Department of
Defense site); and
(9) The unaccompanied child should
have no known mental health, dental, or
medical issues, including contagious
diseases requiring additional evaluation,
treatment, or monitoring by a healthcare
provider.
Subpart J—Availability of Review of
Certain ORR Decisions
§ 410.1900
Purpose of this subpart.
This subpart describes the availability
of review of certain ORR decisions
regarding the care and placement of
unaccompanied children.
§ 410.1901
reviews.
Restrictive placement case
(a) In all cases involving placement in
a restrictive setting, ORR shall
determine, based on clear and
convincing evidence, that sufficient
grounds exist for stepping up or
continuing to hold an unaccompanied
child in a restrictive placement. The
evidence supporting a restrictive
placement decision shall be recorded in
the unaccompanied child’s case file.
(b) ORR shall provide an
unaccompanied child with a Notice of
Placement (NOP) no later than 48 hours
after step-up to a restrictive placement,
as well as every 30 days the
unaccompanied child remains in a
restrictive placement.
(1) The NOP shall clearly and
thoroughly set forth the reason(s) for
placement and a summary of supporting
evidence.
(2) The NOP shall inform the
unaccompanied child of their right to
contest the restrictive placement before
a Placement Review Panel (PRP) upon
receipt of the NOP and the procedures
by which the unaccompanied child may
do so. The NOP shall further inform the
unaccompanied child of all other
available administrative review
processes.
(3) The NOP shall include an
explanation of the unaccompanied
child’s right to be represented by
counsel in challenging such restrictive
placement.
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(4) A case manager shall explain the
NOP to the unaccompanied child, in a
language the unaccompanied child
understands.
(c) The care provider facility shall
provide a copy of the NOP to the
unaccompanied child’s legal counsel of
record, legal service provider, child
advocate, and to a parent or legal
guardian of record, no later than 48
hours after step-up as well as every 30
days the unaccompanied child remains
in a restrictive placement.
(d) ORR shall further ensure the
following automatic administrative
reviews:
(1) At minimum, a 30-day
administrative review for all restrictive
placements;
(2) A more intensive 45-day review by
ORR supervisory staff for
unaccompanied children in secure
facilities; and
(3) For unaccompanied children in
RTCs, the 30-day review at paragraph
(d)(1) of this section must involve a
psychiatrist or psychologist to
determine whether the unaccompanied
child should remain in restrictive
residential care.
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§ 410.1902
Placement Review Panel.
(a) An unaccompanied child placed in
a restrictive placement may request
reconsideration of such placement.
Upon such request, ORR shall afford the
unaccompanied child a hearing before
the Placement Review Panel (PRP) at
which the unaccompanied child may,
with the assistance of counsel if
preferred, present evidence on their
own behalf. An unaccompanied child
may present witnesses and crossexamine ORR’s witnesses, if such
witnesses are willing to voluntarily
testify. An unaccompanied child that
does not wish to request a hearing may
also have their placement reconsidered
by submitting a request for a
reconsideration along with any
supporting documents as evidence.
(b) The PRP shall afford any
unaccompanied child in a restrictive
placement the opportunity to request a
PRP review as soon as the
unaccompanied child receives a Notice
of Placement (NOP).
(c) ORR shall convene the PRP in a
reasonable timeframe without undue
delay in all requisite cases.
(d) The PRP shall issue a decision
within 30 calendar days of the PRP
request whenever possible.
(e) An ORR staff member who was
involved with the decision to step up an
unaccompanied child to a restrictive
placement may not serve as a Placement
Review Panel member with respect to
that unaccompanied child’s placement.
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§ 410.1903
Risk determination hearings.
(a) All unaccompanied children in
restrictive placements shall be afforded
a hearing before an independent HHS
hearing officer to determine, through a
written decision, whether the
unaccompanied child would present a
risk of danger to the community, unless
the unaccompanied child indicates in
writing that they refuse such a hearing.
All other unaccompanied children in
ORR custody may request such a
hearing.
(1) Requests under this section must
be made in writing by the
unaccompanied child, their attorney of
record, or their parent or legal guardian
by submitting a form provided by ORR
to the care provider facility or by
making a separate written request that
contains the information requested in
ORR’s form.
(2) Unaccompanied children placed
in restrictive placements based on a
finding of dangerousness shall be
provided a risk determination hearing
automatically, whether or not they
request one, unless they refuse the
hearing in writing. Unaccompanied
children placed in restrictive
placements shall receive a notice of the
procedures under this section and may
use a form provided to them to decline
a hearing under this section.
Unaccompanied children in restrictive
placements may decline the hearing at
any time, including after consultation
with counsel.
(b) In hearings conducted under this
section, ORR bears the initial burden of
production to support its determination
that an unaccompanied child would
pose a danger if discharged from ORR’s
care and custody. The burden of
persuasion is then on the
unaccompanied child to show that they
will not be a danger to the community
if released, using a preponderance of the
evidence standard.
(c) In hearings under this section, the
unaccompanied child may be
represented by a person of their
choosing. The unaccompanied child
may present oral and written evidence
to the hearing officer and may appear by
video or teleconference. ORR may also
present evidence at the hearing, whether
in writing, or by appearing in person or
by video or teleconference.
(d) A hearing officer’s decision that an
unaccompanied child would not be a
danger to the community 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 by either
the unaccompanied child or ORR to the
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69001
Assistant Secretary of ACF, or the
Assistant Secretary’s designee.
(1) Any such appeal request shall be
in writing and must be received by ACF
within 30 days of the hearing officer
decision.
(2) The Assistant Secretary, or the
Assistant Secretary’s designee, shall
review the record of the underlying
hearing, and will reverse a hearing
officer decision only if there is a clear
error of fact, or if the decision includes
an error of law.
(3) If the hearing officer’s decision
found that the unaccompanied child
would not pose a danger to the
community if released from ORR
custody, and such decision would result
in ORR releasing the unaccompanied
child from its custody (e.g., because the
only factor preventing release was
ORR’s determination that the
unaccompanied child posed a danger to
the community), an appeal to the
Assistant Secretary shall not effect a
stay of the hearing officer’s decision,
unless the Assistant Secretary issues a
decision in writing within five business
days of such hearing officer decision
that release of the unaccompanied child
would result in a danger to the
community. Such a stay decision must
include a description of behaviors of the
unaccompanied child while in ORR
custody and/or documented criminal or
juvenile behavior records from the
unaccompanied child demonstrating
that the unaccompanied child would
present a danger to community if
released.
(f) Decisions under this section are
final and binding on the Department,
and an unaccompanied child who was
determined to pose a danger to the
community if released may only seek
another hearing under this section if the
unaccompanied child 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/or ORR can show that a material
change in circumstances means the
unaccompanied child should no longer
be released due to presenting a danger
to the community.
(g) This section cannot be used to
determine whether an unaccompanied
child has a suitable sponsor, and neither
the hearing officer nor the Assistant
Secretary may order the unaccompanied
child released.
(h) This section may not be invoked
to determine the unaccompanied child’s
placement while in ORR custody. Nor
may this section be invoked to
determine level of custody for the
unaccompanied child.
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Subpart K—Unaccompanied Children
Office of the Ombuds (UC Office of the
Ombuds)
§ 410.2000 Establishment of the UC Office
of the Ombuds.
(a) The Unaccompanied Children
Office of the Ombuds (hereafter, the
‘‘UC Office of the Ombuds’’) is located
within the Office of the ACF Assistant
Secretary, and reports to the ACF
Assistant Secretary.
(b) The UC Office of the Ombuds shall
be an independent, impartial office with
authority to receive reports, including
confidential and informal reports, of
concerns regarding the care of
unaccompanied children; to investigate
such reports; to work collaboratively
with ORR to potentially resolve such
reports; and issue reports concerning its
efforts.
§ 410.2001 UC Office of the Ombuds
policies and procedures; contact
information.
(a) The UC Office of the Ombuds shall
develop appropriate standards,
practices, and policies and procedures,
giving consideration to the
recommendations by nationally
recognized Ombudsperson
organizations.
(b) The UC Office of the Ombuds shall
make its standards, practices, certain
reports and findings, and policies and
procedures publicly available.
(c) The UC Office of the Ombuds shall
make information about the office and
how to contact it publicly available, in
both English and other languages
spoken and understood by
unaccompanied children in ORR care.
The Ombuds may identify preferred
methods for raising awareness of the
office and its activities, which may
include, but not be limited to, visiting
ORR facilities or publishing aggregated
information about the type and number
of concerns the office receives, as well
as giving recommendations.
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§ 410.2002 UC Office of the Ombuds scope
and responsibilities.
(a) The UC Office of the Ombuds may
engage in activities consistent with
§ 410.2100, including but not limited to:
(1) Receiving reports from
unaccompanied children, potential
sponsors, other stakeholders in a child’s
case, and the public regarding ORR’s
adherence to its own regulations and
standards.
(2) Investigating implementation of or
adherence to Federal law and ORR
regulations, in response to reports it
receives, and meeting with interested
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parties to receive input on ORR’s
compliance with Federal law and ORR
policy;
(3) Requesting and receiving
information or documents, such as the
Ombuds deems relevant, from ORR and
ORR care provider facilities, to
determine implementation of and
adherence to Federal law and ORR
policy;
(4) Preparing formal reports and
recommendations on findings to publish
or present, including an annual report
describing activities conducted in the
prior year;
(5) Conducting investigations,
interviews, and site visits at care
provider facilities as necessary to aid in
the preparation of reports and
recommendations;
(6) Visiting ORR care providers in
which unaccompanied children are or
will be housed;
(7) Reviewing individual
circumstances, including but not
limited to concerns about
unaccompanied children’s access to
services, ability to communicate with
service providers, parents/legal
guardians of children in ORR custody,
sponsors, and matters related to
transfers within or discharge from ORR
care;
(8) Making efforts to resolve
complaints or concerns raised by
interested parties as it relates to ORR’s
implementation or adherence to Federal
law or ORR policy;
(9) Hiring and retaining others,
including but not limited to
independent experts, specialists,
assistants, interpreters, and translators
to assist the Ombuds in the performance
of their duties;
(10) Making non-binding
recommendations to ORR regarding its
policies and procedures, specific to
protecting unaccompanied children in
the care of ORR;
(11) Providing general educational
information about pertinent laws,
regulations and policies, ORR child
advocates, and legal services as
appropriate; and
(12) Advising and updating the
Director of ORR, Assistant Secretary,
and the Secretary, as appropriate, on the
status of ORR’s implementation and
adherence with Federal law or ORR
policy.
(b) The UC Office of the Ombuds may
in its discretion refer matters to other
Federal agencies or offices with
jurisdiction over a particular matter, for
further investigation where appropriate,
including to Federal or State law
enforcement.
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(c) To accomplish its work, the UC
Office of the Ombuds may, as needed,
have timely and direct access to:
(1) Unaccompanied children in ORR
care;
(2) ORR care provider facilities;
(3) Case file information;
(4) Care provider and Federal staff
responsible for children’s care; and
(5) Statistical and other data that ORR
maintains.
§ 410.2003 Organization of the UC Office
of the Ombuds.
(a) The UC Ombuds shall be hired as
a career civil servant.
(b) The UC Ombuds should have the
requisite knowledge and experience to
effectively fulfill the work and the role,
including membership in good standing
of a nationally recognized organization,
association of ombudsmen, or State bar
association throughout the course of
employment as the Ombuds, and to also
include but not be limited to having
demonstrated knowledge and
experience in:
(1) Informal dispute resolution
practices;
(2) Services and matters related to
unaccompanied children and child
welfare;
(3) Oversight and regulatory matters;
and
(4) ORR policy and regulations.
(c) The Ombuds may engage
additional staff as it deems necessary
and practicable to support the functions
and responsibilities of the Office.
(d) The Ombuds shall establish
procedures for training, certification,
and continuing education for staff and
other representatives of the Office.
§ 410.2004
Confidentiality.
(a) The Ombuds shall manage the
files, records, and other information of
the program, regardless of format, and
such files must be maintained in a
manner that preserves the
confidentiality of the records except in
instances of imminent harm or judicial
action and is prohibited from using or
sharing information for any immigration
enforcement related purpose.
(b) The UC Office of the Ombuds may
accept reports of concerns from
anonymous reporters.
Dated: September 22, 2023.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
[FR Doc. 2023–21168 Filed 9–29–23; 4:15 pm]
BILLING CODE 4184–45–P
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]]>Agencies
[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Proposed Rules]
[Pages 68908-69002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21168]
[[Page 68907]]
Vol. 88
Wednesday,
No. 191
October 4, 2023
Part II
Department of Health and Human Services
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Administration for Children and Families
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45 CFR Part 410
Unaccompanied Children Program Foundational Rule; Proposed Rule
Federal Register / Vol. 88 , No. 191 / Wednesday, October 4, 2023 /
Proposed Rules
[[Page 68908]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 410
RIN 0970-AC93
Unaccompanied Children Program Foundational Rule
AGENCY: 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 (NPRM).
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SUMMARY: This NPRM proposes to adopt and replace regulations relating
to the key aspects of the placement, care, and services provided to
unaccompanied children referred to the Office of Refugee Resettlement
(ORR), pursuant to ORR's responsibilities for coordinating and
implementing the care and placement of unaccompanied children who are
in Federal custody by reason of their immigration status under the
Homeland Security Act of 2002 (HSA) and the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). ORR
intends to promulgate a final rule that would establish a foundation
for the Unaccompanied Children Program (UC Program) that is consistent
with its statutory duties, for the benefit of unaccompanied children
and to enhance public transparency as to the policies governing the
operation of the UC Program. ORR also proposes this rule for the
purpose of implementing the 1997 Flores Settlement Agreement (FSA),
which remains in effect as a court-ordered consent decree to which the
UC Program is subject. As modified in 2001, the FSA provides that it
will terminate forty-five days after publication of final regulations
implementing the agreement. ORR anticipates that any termination of the
settlement based on the adoption of this proposal as a final rule would
only be effective for those provisions that affect ORR and would not
terminate provisions of the FSA for other Federal Government agencies.
DATES: Consideration will be given to comments on this NPRM on or
before December 4, 2023.
ADDRESSES: You may send comments, identified by Regulatory Information
Number (RIN), by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include the
RIN in the subject line of the message.
Instructions: All submissions received must include the agency name
and RIN for this rulemaking. All comments received will be posted
without change to www.regulations.gov, including any personal
information provided. For detailed instructions on submitting comments
and additional information on the rulemaking process, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: Toby Biswas, Director of Policy,
Unaccompanied Children Program, Office of Refugee Resettlement,
Administration for Children and Families, Department of Health and
Human Services, Washington, DC, (202) 205-4440 or [email protected].
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 Proposed Rule
B. Summary of the Major Provisions
C. Summary of Costs and Benefits
IV. Background and Purpose
A. The UC Program
B. History and Statutory Structure
C. Statutory and Regulatory Authority
D. Basis and Purpose of Regulatory Action
E. Severability
V. Discussion of Elements of the Proposed Rule
VI. Collection of Information Requirements
VII. Regulatory Impact Analysis
A. Economic Analysis
B. Regulatory Flexibility Analysis
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13132: Federalism
F. Executive Order 12988: Civil Justice Reform
VIII. Assessment of Federal Regulation and Policies on Families
IX. Alternatives Considered
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. ORR also invites 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://www.regulations.gov as part of the public record and
will include any personal or commercial information you provide.
A. Submitting Comments
Comments that will provide the most assistance to ORR 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. You
may submit your comments and materials online or by email, 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 ``0970-AC93'' 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.
All comments received by the accepted methods and due date
specified above may be posted without change to content to https://www.regulations.gov, which may include personal information provided
about the commenter, and such posting may occur after the closing of
the comment period. However, the Department may redact certain content
from comments before posting, including threatening language, hate
speech, profanity, graphic images, or individually identifiable
information about a third-party individual other than the commenter.
For additional information, please read the ``Privacy and Security
Notice'' that is available via the link in the footer of https://www.regulations.gov.
ORR will consider all comments and materials received during the
comment period and may change this rule based on your comments.
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 ``0970-AC93'' 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
ORR through the FOR
[[Page 68909]]
FURTHER INFORMATION CONTACT section above. You may 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 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
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
EOIR--Executive Office for Immigration Review
FSA--Flores Settlement Agreement
HHS--U.S. Department of Health and Human Services
HSA--Homeland Security Act of 2002
INS--Immigration and Naturalization Service
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
UC Program--Unaccompanied Children Program
III. Executive Summary
A. Purpose of the Proposed Rule
In this notice of proposed rulemaking (NPRM), the Office of Refugee
Resettlement (ORR) proposes to replace and supersede regulations at 45
CFR part 410, and to codify policies and requirements concerning the
placement, care, and services provided to unaccompanied children in
Federal custody by reason of their immigration status and referred to
ORR. This NPRM is based on statutory authorities and requirements
provided under the Homeland Security Act of 2002 (HSA) \1\ and the
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (TVPRA),\2\ and would implement those terms of the 1997 Flores
Settlement Agreement (FSA) that create responsibilities for HHS and
ORR. These proposed regulations are published under the authority
granted to the Secretary of Health and Human Services (HHS) by the
TVPRA \3\ and to the Director of ORR by the HSA.\4\ The proposed
regulations would implement requirements that are consistent with the
substantive protections provided by, and the underlying purpose of, the
FSA with regard to unaccompanied children who are placed in ORR care.
The proposed requirements would apply to all care provider facilities,
including both standard programs and non-standard programs, as defined
below, unless otherwise specified. ORR believes that this proposed rule
is warranted at this time in order to codify a uniform set of standards
and procedures that will help to ensure the safety and well-being of
unaccompanied children in ORR care, implement the substantive terms of
the FSA, and enhance public transparency as to the policies governing
the operation of the Unaccompanied Children Program (UC Program).
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\1\ Public Law 107-296, sec. 462, 116 Stat. 2135, 2202.
\2\ Public Law 110-457, title II, subtitle D, 122 Stat. 5044.
\3\ 8 U.S.C. 1232.
\4\ 6 U.S.C. 279.
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B. Summary of the Major Provisions
This proposed rule would codify ORR policies and requirements for
the placement, care, and services provided to unaccompanied children in
Federal custody by reason of their immigration status and referred to
ORR, as discussed in section V. of this proposed rule. In subpart A,
ORR proposes to define terms that are relevant to the criteria and
requirements in this proposed rule and to codify the general principles
that apply to the care and placement of unaccompanied children in ORR
care. In subpart B, ORR proposes the criteria and requirements that
apply with respect to placement of unaccompanied children at ORR care
provider facilities, including specific criteria for placement at
particular types of ORR care provider facilities. ORR proposes, in
subpart C, policies and procedures regarding the release of an
unaccompanied child from ORR care to a vetted and approved sponsor. In
subpart D, ORR proposes the standards and services that it must meet
and provide to unaccompanied children in ORR care provider facilities.
ORR proposes requirements for the safe transportation of each
unaccompanied child while in ORR's care in subpart E of this proposed
rule. ORR proposes, in subpart F, guidelines for care provider
facilities to report information such that ORR may compile and maintain
statistical information and other data on unaccompanied children. In
subpart G, ORR proposes to codify requirements and policies regarding
the transfer of unaccompanied children in ORR care. Subpart H discusses
proposed guidelines for determining the age of an individual in ORR
care. ORR proposes, in subpart I, to codify guidelines for emergency or
influx facilities, which are ORR facilities that are opened during a
time of emergency or influx. In subpart J, ORR proposes guidelines and
requirements regarding the availability of administrative review of ORR
decisions. Finally, in subpart K, ORR proposes to establish an
independent ombud's office that would promote important protections for
all children in ORR care.
C. Summary of Costs and Benefits
This rule proposes to codify current ORR requirements for
compliance with the FSA, court orders, and statutes, as well as certain
requirements under existing ORR policy and cooperative agreements. As
discussed in section VII.A of this proposed rule, ORR expects this
proposed rule to impose limited additional costs, including those costs
incurred by the Federal Government to increase the provision of legal
services to unaccompanied children in limited circumstances, supplement
costs incurred by grant recipients in order to comply with the proposed
requirements (see below), establish a risk determination hearing
process, and also to establish the Unaccompanied Children Office of the
Ombuds (UC Office of the Ombuds) and other administrative staffing
needs. In proposed subpart D at Sec. 410.1309, ORR is proposing, to
the greatest extent practicable, subject to available resources as
determined by ORR, and consistent with section 292 of the Immigration
and Nationality Act (8 U.S.C. 1362), that all unaccompanied children
who are or have been in ORR care would have access to legal advice and
representation in immigration legal proceedings or matters funded by
ORR. In proposed subpart J, ORR proposes the establishment of a risk
determination hearing process. In proposed subpart K, ORR discusses its
proposal to establish an Office of the Ombuds for the UC Program. In
addition to the Ombuds position itself, ORR anticipates the need for
support staff in the office. ORR estimates the annual cost of
establishing and maintaining this office would be $1,718,529 which
includes the cost of 10 full-time personnel, as discussed in further
detail in VII.A.2 of this proposed rule.
ORR also notes that all care provider facilities and service
providers discussed in this proposed rule are recipients of Federal
awards (e.g., cooperative agreements or contracts), and the costs of
maintaining compliance with these proposed requirements are allowable
costs under the Basic Considerations for cost provisions at 45
[[Page 68910]]
CFR 75.403 through 75.405,\5\ in that the costs are reasonable,
necessary, ordinary, treated consistently, and are allocable to the
award. If there are additional costs associated with the policies
discussed in this proposed rule that were not budgeted, and cannot be
absorbed within existing budgets, the recipient would be able to submit
a request for supplemental funds to cover the costs.
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\5\ See also 45 CFR 75.101.
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IV. Background and Purpose
A. The UC Program
The purpose of this proposed rule is to codify policies, standards,
and protections for the UC Program, consistent with the HSA and TVPRA,
as well as with the substantive requirements of the FSA as they pertain
to ORR. On March 1, 2003, section 462 of the HSA transferred
responsibilities for the care and placement of unaccompanied children
from the Commissioner of the Immigration and Naturalization Service to
the Director of ORR. The HSA defines unaccompanied children and
establishes ORR responsibilities with respect to unaccompanied
children. The HSA defines ``unaccompanied alien child,'' a term ORR
uses synonymously with ``unaccompanied child,'' 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.'' \6\ The TVPRA, meanwhile, added requirements for
other executive branch departments and agencies to expeditiously
transfer unaccompanied children in their custody to ORR's care and
custody once identified, and requires ORR to ensure unaccompanied
children are protected from human trafficking and other crimes. Both
statutes are described in further detail in the paragraphs below.
Pursuant to these statutory requirements, the UC Program provides a
safe and appropriate environment to children and youth who come to the
United States without immigration status and who have no parent or
legal guardian in the United States or one available in the United
States to provide for their care and physical custody. In most cases,
unaccompanied children enter ORR custody via transfer from DHS. When
DHS immigration officials with an unaccompanied child in custody
transfer that child to ORR, ORR promptly places the unaccompanied child
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. ORR considers the unique nature of each
child's situation, the best interest of the child, and child welfare
principles when making placement, clinical, case management, and
release decisions. To carry out its statutory responsibilities for the
care and custody of unaccompanied children as established in the TVPRA
and the HSA, and consistent with its responsibilities under the FSA,
ORR currently funds residential care providers that provide temporary
housing and other services to unaccompanied children in ORR custody.
These care providers have been primarily state-licensed and must also
meet ORR requirements to ensure a high-quality level of care. These
multiple providers create a continuum of care for children, including
placements in individual and group homes, shelter, heightened
supervision, and secure facilities, and residential treatment centers.
While under ORR care, unaccompanied children are provided with
classroom education, healthcare, socialization/recreation, mental
health services, access to religious and legal services, and case
management. Unaccompanied children generally remain in ORR custody
until they are released to a parent or other sponsor in the United
States, are repatriated to their home country, obtain legal status, or
otherwise no longer meet the statutory definition of unaccompanied
children (e.g., turn 18). In accordance with current ORR policy, all
children who turn 18 years old while in ORR's care and custody are
transferred to DHS for a custody determination. Once transferred to
DHS, that agency considers placement in the least restrictive setting
available after taking into account the individual's danger to self,
danger to the community, and risk of flight and in accordance with all
applicable legal authority.
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\6\ 6 U.S.C. 279(g)(2).
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B. History and Statutory Structure
1. HSA and TVPRA
The HSA abolished the former Immigration and Naturalization Service
(INS) and created DHS. The HSA transferred many of the immigration
functions from the INS to DHS, but it transferred functions under the
immigration laws with respect to the care and custody of unaccompanied
children to ORR.\7\ The HSA makes the ORR Director responsible for a
number of functions with respect to unaccompanied children, including
coordinating and implementing their care and placement, ensuring that
unaccompanied children's interests are considered in actions and
decisions relating to their care, making and implementing placement
determinations, implementing policies with respect to the care and
placement of children, and overseeing the infrastructure and personnel
of facilities in which unaccompanied children reside.\8\ The HSA also
states that ORR shall not release unaccompanied children from custody
upon their own recognizance, and requires ORR to consult with
appropriate juvenile justice professionals and certain Federal agencies
in relation to placement determinations to ensure that unaccompanied
children are likely to appear at all hearings and proceedings in which
they are involved; are protected from smugglers, traffickers, and
others who might seek to victimize or otherwise engage them in
criminal, harmful, or exploitative activity; and are placed in a
setting in which they are not likely to pose a danger to themselves or
others.\9\ ORR notes that under its current policies, such consultation
is subject to privacy protections for unaccompanied children. For
example, ORR restricts sharing certain case-specific information with
the Executive Office for Immigration Review (EOIR) and DHS that may
dissuade a child from seeking legal relief, or that may bias the
court's length of continuances. Subject to such protections, ORR
provides notification of the placement decisions to U.S. Immigration
and Customs Enforcement (ICE) and, if referred by U.S. Customs and
Border Protection (CBP), to CBP. ORR provides the following
notification information: identifying information of the unaccompanied
child, ORR care provider name and address, and ORR care provider point
of contact (name and telephone number).\10\
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\7\ 6 U.S.C. 279(a).
\8\ See 6 U.S.C. 279(b)(1).
\9\ 6 U.S.C. 279(b)(2).
\10\ Memorandum of Agreement Among the Office of Refugee
Resettlement of the U.S. Department of Health and Human Services and
U.S. Immigration and Customs Enforcement and U.S. Customs and Border
Protection of the U.S. Department of Homeland Security Regarding
Consultation and Information Sharing in Unaccompanied Alien Children
Matters (Mar. 11, 2021).
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In 2008, Congress passed the TVPRA, which further elaborated duties
with respect to the care and custody of unaccompanied children. The
TVPRA provides that, consistent with the HSA, the care and custody of
all
[[Page 68911]]
unaccompanied children, including responsibility for their detention,
where appropriate, is the responsibility of the Secretary of HHS,
except as otherwise specified. The TVPRA states that each department or
agency of the Federal Government must notify HHS within 48 hours upon
the apprehension or discovery of an unaccompanied child or any claim or
suspicion that a non-citizen individual in the custody of such
department is under the age of 18.\11\ The TVPRA states further that,
except in exceptional circumstances, any department or agency of the
Federal Government that has an unaccompanied child in its custody shall
transfer the custody of such child to HHS not later than 72 hours after
determining such child is an unaccompanied child. Furthermore, the
TVPRA requires the Secretary of HHS to establish policies and programs
to ensure that unaccompanied children in the United States are
protected from traffickers and other persons seeking to victimize or
otherwise engage such children in criminal, harmful, or exploitative
activity.\12\ The TVPRA describes requirements with respect to safe and
secure placements for unaccompanied children, safety and suitability
assessments of proposed sponsors for unaccompanied children, legal
orientation presentations, access to counsel, and child advocates,
among other requirements. HHS delegated its authority under the TVPRA
to the Assistant Secretary for Children and Families, which then re-
delegated the authority to the Director of ORR.\13\
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\11\ 8 U.S.C. 1232(b)(2)
\12\ 8 U.S.C. 1232(c)(1).
\13\ See Delegation of Authority, 74 FR 14564 (Mar. 31, 2009);
see also Delegation of Authority, 74 FR 19232 (Apr. 28, 2009).
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2. The Flores Settlement Agreement Terms and Implementation
On July 11, 1985, four non-citizen children in Immigration and
Naturalization Service (INS) \14\ custody filed a class action lawsuit
in the U.S. District Court for the Central District of California on
behalf of a class of minors detained in the custody of the INS (Flores
litigation).\15\ At that time, the INS was responsible for the custody
of minors entering the United States unaccompanied by a parent or legal
guardian. 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.'' \16\ The plaintiffs claimed that the INS's release
and bond practices and policies violated, among other things, the
Immigration and Nationality Act (INA), the Administrative Procedure Act
(APA), and the Due Process Clause and Equal Protection Guarantee under
the Fifth Amendment.\17\ After over ten years of litigation, the U.S.
Government and Flores plaintiffs entered into the ``Flores Settlement
Agreement'' (FSA), which was approved by the district court as a
consent decree on January 28, 1997.\18\
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\14\ As discussed further, below, INS was abolished when the
Department of Homeland Security was established in 2002. 6 U.S.C.
291.
\15\ See Complaint for Injunctive and Declaratory Relief, and
Relief in the Nature of Mandamus at 2, Flores v. Meese, No. 85-4544
(C.D. Cal. filed July 11, 1985).
\16\ Id. Flores Compl. at paragraph 1.
\17\ See id. at ] 66-69.
\18\ See Stipulated Settlement Agreement, Flores v. Reno, No. CV
85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001).
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The FSA applies to both unaccompanied children, as defined in the
HSA, and to children accompanied by their parents or legal
guardians,\19\ but ORR notes that this proposed rule is intended
specifically to codify requirements regarding the care of unaccompanied
children who have been transferred to the care and custody of ORR. As
relevant to ORR, the FSA imposes several substantive requirements for
government custody of unaccompanied children, requiring first and
foremost that minors be placed in the ``least restrictive setting
appropriate to the minor's age and special needs,'' \20\ and
establishing a general policy favoring release of unaccompanied
children where it is determined that detention of the unaccompanied
child is not required either to secure the child's timely appearance
for immigration proceedings or to ensure the unaccompanied child's
safety or that of others.\21\ When release is appropriate, the FSA
establishes the following order of priority with respect to potential
sponsors: a parent, legal guardian, adult relative, or another adult
designated by the parent or legal guardian as capable and willing to
care for the minor's well-being. If no sponsor is available, an
unaccompanied child will be placed at a care provider facility licensed
by an appropriate state agency. Under the original terms of the FSA,
unaccompanied children who were not released remained in INS custody;
currently, under the FSA, unaccompanied children who are not released
remain in ORR legal custody and may be transferred or released only
under the authority of ORR. The FSA also mandates that any non-citizen
child who remains in government custody for removal proceedings is
entitled to a bond hearing before an immigration judge, ``unless the
minor indicates on the Notice of Custody Determination form that he or
she refuses such a hearing.'' \22\ The FSA contains many other
provisions relating to the care of unaccompanied children, including
Exhibit 1, which describes the minimum standards required at licensed
care provider facilities caring for unaccompanied children.
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\19\ See Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) (holding
that the FSA applies to accompanied minors as well as unaccompanied
minors).
\20\ Id. at ] 11.
\21\ Id. at ]] 12A, 14.
\22\ Id. at ] 24A.
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The FSA states that within 120 days of the final district court
approval of the agreement, the Government shall initiate action to
publish the relevant and substantive terms of this Agreement in
regulation.\23\ 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.'' \24\ Over the subsequent years,
that proposed rule was not finalized. The FSA originally included a
termination date, but in 2001, the parties agreed to extend the
agreement and added a stipulation that terminates the FSA ``45 days
following defendants' publication of final regulations implementing
t[he] Agreement.'' \25\ In January 2002, the INS reopened the comment
period on the 1998 proposed rule,\26\ but the rulemaking was ultimately
terminated. Thus, as a result of the 2001 Stipulation, the FSA has not
terminated. 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 FSA.
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\23\ Id. at ] 9.
\24\ See 63 FR 39759 (July 24, 1998).
\25\ Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-
4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001), at
] 40.
\26\ 67 FR 1670 (Jan. 14, 2002).
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3. The 2019 Final Rule
On September 7, 2018, DHS and HHS issued a joint proposed rule,
entitled ``Apprehension, Processing, Care, and Custody of Alien Minors
and Unaccompanied Alien Children'' (2018 Proposed Rule).\27\ The
purpose of the proposed rule was to implement the substantive terms of
the FSA, and thus enable the district court to terminate the
[[Page 68912]]
agreement. The rule proposed to adopt provisions that were intended to
parallel the relevant substantive terms of the FSA, with some
modifications to reflect statutory and operational changes put in place
since the FSA was entered into in 1997, along with certain other
changes.\28\ A final rule was promulgated on August 23, 2019 (2019
Final Rule), which comprised two sets of regulations: one issued by DHS
and the other by HHS. The HHS regulations addressed only the care and
custody of unaccompanied children.\29\ The DHS regulations addressed
other provisions of the FSA that pertained to DHS, including the
requirement that after DHS apprehends unaccompanied children it should
transfer them to the custody of HHS.\30\
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\27\ 83 FR 45486 (Sep. 7, 2018).
\28\ Id.
\29\ Apprehension, Processing, Care, and Custody of Alien Minors
and Unaccompanied Alien Children, 84 FR 44392, 44530-44535 (Aug. 23,
2019).
\30\ Id. at 44526.
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After DHS and HHS issued the 2018 Proposed Rule and before the 2019
Final Rule was published, plaintiffs in the Flores litigation filed a
Motion to Enforce the FSA. The court deferred ruling on the Motion,
ordering DHS and HHS to file a notice upon issuance of final
regulations, which DHS and HHS did in August 2019. Later that month DHS
and HHS also filed a Notice of Termination and Motion in the
Alternative to Terminate the FSA, while Plaintiffs filed a supplemental
brief addressing their Motion to Enforce. Plaintiffs' Motion to Enforce
presented two separate but related issues: (1) whether the 2019 Final
Rule would effectively terminate the FSA, and (2) if not, to what
extent the Court should enjoin the government from implementing the
2019 Final Rule. On September 27, 2019, approximately one month after
the 2019 Final Rule was published, the District Court for the Central
District of California entered an Order granting Plaintiffs' Motion to
Enforce insofar as it sought an order declaring that the Government
failed to terminate the FSA, denied the Government's Motion to
Terminate the FSA, and issued a permanent injunction consistent with
its order.\31\
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\31\ Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal. 2019).
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On December 29, 2020, in Flores v. Rosen, the U.S. Court of Appeals
for the Ninth Circuit affirmed in part and reversed in part the
District Court Order.\32\ Regarding the HHS regulations applicable to
the care and custody of unaccompanied children in the 2018 Proposed
Rule, the Court of Appeals held that the regulations were ``largely
consistent'' with the FSA, with two exceptions.\33\ First, it held that
the HHS regulation allowing placement of a minor in a secure facility
upon an agency determination that the minor is otherwise a danger to
self or others broadened the circumstances in which a minor may be
placed in a secure facility, and therefore was inconsistent with the
FSA. Second, it held that provisions providing a hearing to
unaccompanied children held in secure or staff-secure placement only if
requested was inconsistent with the FSA's opt-out process for obtaining
a bond hearing. Although the Ninth Circuit held that the majority of
the HHS regulations could take effect, it also held that the District
Court did not abuse its discretion in declining to terminate the
portions of the FSA covered by those regulations, noting that the
Government moved to ``terminate the Agreement in full, not to modify or
terminate it in part.'' \34\ Consistent with its findings, the Ninth
Circuit held that the FSA ``therefore remains in effect,
notwithstanding the overlapping HHS regulations'' and that the
Government if it wished could move to terminate those portions of the
FSA covered by the valid portions of the HHS regulations.\35\
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\32\ Flores v. Rosen, 984 F. 3d 720 (9th Cir. 2020).
\33\ The underlying District Court case also found a third
problematic aspect of the HHS regulations, that the HHS regulations
were inconsistent with the FSA because they used descriptive, not
mandatory, language in implementing certain provisions (e.g., while
the FSA requires that minors not released ``shall be placed
temporarily in a licensed program'' whose homes and facilities
``shall be non-secure as required under state law,'' FSA ]] 6, 19,
the regulations stated that ``ORR places [unaccompanied minors] into
a licensed program'' and that ``ORR places each [minor] in the least
restrictive setting that is in the best interest of the child and
appropriate to the [minor's] age and special needs,'' 84 FR 44,392,
44,531.). But on appeal, the Ninth Circuit ruled that where the 2019
Final Rule did not use mandatory language, nevertheless ``HHS and
ORR are bound by and must comply with the descriptive language in
the HHS regulations as equivalent to the mandatory requirements in
the Agreement. So interpreted, the descriptive language in the
regulations is consistent with the Agreement.'' Flores v. Rosen, 984
F.3d 720, 731 (9th Cir. 2020).
\34\ 984 F.3d 720, 737 (9th Cir. 2020).
\35\ Id. With respect to the DHS portions of the 2019 Final
Rule, the Ninth Circuit held that some of the DHS regulations
regarding initial apprehension and detention were consistent with
the FSA and could take effect, but that the remaining DHS
regulations were inconsistent with the FSA and the district court
properly enjoined them and the inconsistent HHS regulations from
taking effect. See id. at 744.
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Separately, a group of states brought litigation in the District
Court for the Central District of California seeking to enjoin the
government from implementing the 2019 Final Rule (California v.
Mayorkas), based on other grounds including the Administrative
Procedure Act.\36\ The court stayed the case, given the related
litigation brought by Flores plaintiffs, which culminated in the Ninth
Circuit decision in Flores v. Rosen. After that decision, the
plaintiffs in California v. Mayorkas filed supplemental briefing
requesting a narrowed preliminary injunction, alleging that several
portions of the HHS provisions of the 2019 Final Rule violated the
Administrative Procedure Act. Subsequently, the parties entered into
settlement discussions. As of December 10, 2021, the parties informed
the court that HHS did not plan to seek termination of the FSA under
the terms of the stipulation or to ask the court to lift its injunction
of the HHS regulations. Instead, HHS would consider a future rulemaking
that would more broadly address issues related to the custody of
unaccompanied children by HHS and that would replace the rule being
challenged in California v. Mayorkas. Based on this agreement, the
court ordered that the California v. Mayorkas litigation should be
placed into abeyance with regard to the Plaintiffs' claims against HHS
while HHS engaged in new rulemaking to replace and supersede the HHS
regulations in the 2019 Final Rule.\37\ Further, among other things,
HHS agreed that while it underwent new rulemaking, it would not seek to
lift the injunction of the 2019 Final Rule, nor seek to terminate the
FSA as to HHS under the 2019 Final Rule, and that it would make best
efforts to submit a notice of proposed rulemaking to the OMB by April
15, 2023, providing quarterly updates to the Court should it not meet
that deadline.\38\ In accord with the relevant order ORR made best
efforts to submit the NPRM to OMB, and ultimately sent the document to
OMB on April 28, 2023.\39\ This NPRM initiates that broader rulemaking
effort, and reflects the stipulated agreement in California v.
Mayorkas, and applies, as relevant, the findings of the Ninth Circuit
regarding the 2019 Final Rule in Flores v. Rosen. Note, because the
permanent injunction of the 2019 Final Rule was never lifted, and the
FSA continued to remain in effect, ORR does not anticipate that any
third parties would have developed reliance interests
[[Page 68913]]
on the HHS regulations in the 2019 Final Rule.
---------------------------------------------------------------------------
\36\ California v. Mayorkas, No. 2:19-v-07390 (C.D. Cal. filed
Aug. 26, 2019).
\37\ See Stipulation re Request to Hold Plaintiffs' Claims as to
HHS Under Abeyance, California v. Mayorkas, No. 2:19-v-07390 (C.D.
Cal. Apr. 12, 2022), ECF No. 159. See also Order Approving
Stipulation, ECF No. 160.
\38\ See id.
\39\ Pending E.O. 12866 Regulatory Review, https://www.reginfo.gov/public/do/eoDetails?rrid=312162.
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4. Lucas R. Litigation
Another ongoing litigation involving ORR, filed in 2018, also has
ramifications for this NPRM. Lucas R. v. Becerra,\40\ a class action
lawsuit, was filed in the U.S. District Court for the Central District
of California, alleging ORR had violated the FSA, the TVPRA, the U.S.
Constitution, and section 504 of the Rehabilitation Act of 1973
(section 504). Based on the plaintiffs' allegations, the court
certified five plaintiff classes comprising of all children in ORR
custody:
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\40\ Lucas R. v. Becerra, Case No. 2:18-cv-5741 (C.D. Cal. filed
Jun. 29, 2018).
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(1) who are or will be placed in a secure facility, medium-secure
facility, or residential treatment center (RTC), or whom ORR has
continued to detain in any such facility for more than 30 days, without
being afforded notice and an opportunity to be heard before a neutral
and detached decisionmaker regarding the grounds for such placement
(i.e., the ``step-up class'');
(2) whom ORR is refusing or will refuse to release to parents or
other available custodians within 30 days of the proposed custodian's
submission of a complete family reunification packet on the ground that
the proposed custodian is or may be unfit (i.e., the ``unfit custodian
class'');
(3) who are or will be prescribed or administered one or more
psychotropic medications without procedural safeguards (i.e., the
``drug administration class'');
(4) who are natives of non-contiguous countries and to whom ORR is
impeding or will impede legal assistance in legal matters or
proceedings involving their custody, placement, release, and/or
administration of psychotropic drugs (i.e., the ``legal representation
class''); and
(5) who have or will have a behavioral, mental health,
intellectual, and/or developmental disability as defined in 29 U.S.C.
[section] 705, and who are or will be placed in a secure facility,
medium-secure facility, or [RTC] because of such disabilities (i.e.,
the ``disability class'').\41\
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\41\ Order re Defendants' Motion to Dismiss [101] and
Plaintiff's Motion for Class Certification [97], Lucas R. v.
Becerra, No. 2:18-cv-05741 (C.D. Cal. Nov. 2, 2018), ECF No. 126.
---------------------------------------------------------------------------
On August 30, 2022, the U.S. District Court for the Central
District of California granted preliminary injunctive relief concerning
the allegations of the unfit custodian, step-up, and legal
representation classes. As of October 31, 2022, ORR implemented new
policies and procedures on issues identified in the Court's preliminary
injunction order. As of September 2023, ORR remains in active
litigation in the Lucas R. class action. Depending on developments in
the case, ORR may incorporate additional provisions in the final rule
as discussed in this preamble.
C. Statutory and Regulatory Authority
As discussed above, under the HSA and TVPRA, the ORR Director is
responsible for the care and placement of unaccompanied children. Under
the HSA, ORR is responsible for ``coordinating and implementing the
care and placement of [unaccompanied children] who are in Federal
custody by reason of their immigration status,'' ``identifying a
sufficient number of qualified individuals, entities, and facilities to
house [unaccompanied children],'' ``overseeing the infrastructure and
personnel of facilities in which [unaccompanied children reside],'' and
``conducting investigations and inspections of facilities and other
entities in which [unaccompanied children] reside, including regular
follow-up visits to such facilities, placements, and other entities, to
assess the continued suitability of such placements.'' \42\ Under the
TVPRA, Federal agencies are required to notify HHS within 48 hours of
apprehending or discovering a UC or receiving a claim or having
suspicion that a non-citizen in their custody is an unaccompanied child
under 18 years of age.\43\ The TVPRA further requires that, absent
exceptional circumstances, any Federal agency must transfer an
unaccompanied child to the care and custody of HHS within 72 hours of
determining that a non-citizen child in its custody is an unaccompanied
child. With respect to the care and placement of unaccompanied
children, the TVPRA requires that HHS establish policies and programs
to ensure that unaccompanied children are protected from traffickers
and other persons seeking to victimize or exploit children. Among other
things, it also requires HHS to place unaccompanied children in the
least restrictive setting that is in the best interest of the child,
and states that in making such placements it may consider danger to
self, danger to the community, and risk of flight. As previously
discussed, the Secretary of HHS delegated the authority under the TVPRA
to the Assistant Secretary for Children and Families,\44\ who in turn
delegated the authority to the Director of ORR.\45\ It is under this
delegation of authority that ORR now proposes to issue regulations
describing how ORR meets its statutory responsibilities under the HSA
and TVPRA and to implement the relevant and substantive terms of the
FSA for the care and custody of unaccompanied children.
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\42\ Id.
\43\ 8 U.S.C. 1232(b)(2).
\44\ 74 FR 14564 (2009)
\45\ 74 FR 1232 (2009).
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In addition to requirements and standards related to the direct
care of unaccompanied children, ORR proposes to establish a new UC
Office of the Ombuds, to create a mechanism that allows unaccompanied
children and stakeholders to raise concerns with ORR policies and
practices to an independent body. The Ombuds will be tasked with
fielding concerns from any party relating to the implementation of ORR
regulations, policies, and procedures; reviewing individual cases,
conducting site visits and publishing reports including reports on
systemic issues in ORR custody, particularly where there are concerns
about access to services or release from ORR care; and following up on
grievances made by children, sponsors, or other stakeholders. HHS has
authority to establish this office under its authority to ``establish
policies and programs to ensure that unaccompanied alien children in
the United States are protected from traffickers and other persons
seeking to victimize or otherwise engage such children in criminal,
harmful, or exploitative activity.'' \46\
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\46\ 8 U.S.C. 1232(c)(1); see also 6 U.S.C. 279(b)(1)(L)
(describing ORR's responsibility to conduct investigations and
inspections of facilities and other entities in which unaccompanied
children reside, including regular follow-up visits to such
facilities, placements, and other entities, to assess the continued
suitability of such placements).
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D. Basis and Purpose of Regulatory Action
The purpose of this NPRM is to propose a regulatory framework that
would: (1) codify policies and practices related to the care and
custody of unaccompanied children, consistent with ORR's statutory
authorities; and (2) implement relevant provisions described by the
FSA. The FSA describes ``minimum'' standards for care of unaccompanied
children at licensed care provider facilities, but Congress
subsequently enacted legislation establishing requirements for the UC
Program. This NPRM proposes both to implement the protections set forth
in the FSA and to broaden them consistent with the current legal and
operational environment, which has significantly
[[Page 68914]]
changed since the FSA was signed over 25 years ago.
E. Severability
To the extent that any portion of the requirements arising from the
final rule is declared invalid by a court, ORR intends for all other
parts of the final rule that are capable of operating in the absence of
the specific portion that has been invalidated to remain in effect.
While our expectation is that all parts of the final rule that are
operable in such an environment would remain in effect, ORR will assess
at that time whether further rulemaking is necessary to amend any
provisions subsequent to any holding that ORR exceeded its discretion
or the provisions are inconsistent with the FSA or are vacated or
enjoined on any other basis.
V. Discussion of Elements of the Proposed Rule
Subpart A--Care and Placement of Unaccompanied Children
In this NPRM, ORR proposes to codify requirements and policies
regarding the placement, care, and services provided to unaccompanied
children in ORR custody. The following provisions identify the scope of
this part, the definitions used throughout this part, and principles
that apply to ORR placement, care, and services decisions.
Section 410.1000 Scope of This Part
ORR proposes, in Sec. 410.1000(a), that the scope of this part
pertain to the placement, care, and services provided to unaccompanied
children in Federal custody by reason of their immigration status and
referred to ORR. As described in section IV. of this proposed rule,
ORR's care, custody, and placement of unaccompanied children is
governed by the HSA and TVPRA, and ORR provides its services to
unaccompanied children in accordance with the terms of the FSA. ORR
also clarifies that proposed part 410 would not govern or describe the
entire program. For example, part 411 (describing requirements related
to the prevention of sexual abuse of unaccompanied children in ORR
care) would remain in effect under this proposed rule. ORR notes that
its current policies and practices are described in the online ORR
Policy Guide,\47\ Field Guidance,\48\ manuals describing compliance
with ORR policies and procedures, and other communications from ORR to
care provider facilities. ORR will continue to utilize these vehicles
for its subregulatory guidance and will revise them in connection with
publication of the final rule as needed to ensure compliance with the
final rule. The proposed provisions of this part would, in many cases,
codify existing ORR policies and practices. Further, upon publication
of a final rule, ORR would continue to publish subregulatory guidance
as needed to clarify the application of these regulations.
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\47\ ORR Unaccompanied Children Program Policy Guide, https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide.
\48\ Unaccompanied Children's Program Field Guidance, https://www.acf.hhs.gov/orr/policy-guidance/uc-program-field-guidance.
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ORR also proposes, in Sec. 410.1000(b), that the provisions of
this part are separate and severable from one another and that if any
provision is stayed or determined to be invalid, the remaining
provisions shall continue in effect. Additionally, ORR proposes in
Sec. 410.1000(c) that ORR does not fund or operate facilities other
than standard programs, restrictive placements (which includes secure
facilities, including residential treatment centers, and heightened
supervision facilities), or emergency or influx facilities, absent a
specific waiver as described under proposed Sec. 410.1801(d) or such
additional waivers as are permitted by law.
Section 410.1001 Definitions
ORR proposes, in Sec. 410.1001, to codify the definitions of terms
that apply to this part. Some definitions are the same as those found
in statute, or other authorities (e.g., the definition of
``unaccompanied child'' is the same as the definition of
``unaccompanied alien child'' as found in the HSA, 6 U.S.C. 279(g)(2)).
Notably, for purposes of this proposed rule, ORR would update certain
terms and definitions provided in the FSA (e.g., the definition of
``influx''). Below is an explanation for certain definitions, to
further explain ORR's rationale when the proposed rule applies the
relevant terms.
The proposed definition of ``care provider facility'' is intended
to generally describe any placement type for unaccompanied children,
except out of network (OON) placements, and as a result is broader than
the term ``standard program,'' provided below, which for example does
not include emergency or influx facilities. ORR also notes that this
proposed definition does not reference ``facilities for children with
special needs,'' a term used in the definition of ``licensed program''
in the FSA and 45 CFR 411.5. ORR is considering not using the term
``facilities for children with special needs'' within the part for the
reasons set forth below in this section at the proposed definition of
``standard program.'' Moreover, ORR understands this proposed
definition for ``care provider facility'' to encompass any facility in
which an unaccompanied child may be placed while in the custody of ORR,
including any facility exclusively serving children in need of
particular services and treatment.
The proposed definition of ``disability'' is distinct from its
proposed definition for a ``special needs unaccompanied child,''
discussed later in this section and which is derived specifically from
the FSA. Although some unaccompanied children may have a disability and
also have special needs, the terms are not synonymous. For example, an
unaccompanied child exiting ORR custody may be considered to have a
disability within the definition set forth in section 504 of the
Rehabilitation Act of 1973 even if the child does not require services
or treatments for a mental and/or physical impairment.
The proposed definition of ``emergency'' differs from the
definition finalized at 45 CFR 411.5, which defines the term as ``a
sudden, urgent, usually unexpected occurrence or occasion requiring
immediate action.'' ``Emergency,'' for purposes of this proposed rule,
would reflect the term's usage in the context of the requirements in
this proposed rule.
With respect to the proposed definition of ``EOIR accredited
representative,'' ORR notes that DOJ refers to these individuals simply
as ``accredited representatives,'' see 8 CFR 1292.1(a)(4), but for
purposes of this proposed rule, ORR adopts the term ``EOIR accredited
representative.''
The proposed definition of ``heightened supervision facility''
incorporates language consistent with the definition of ``medium secure
facility'' provided in the FSA at paragraph 8. This term is meant to
replace the term ``staff secure facility'' as used under existing ORR
policies. ORR has decided to change its terminology because it has
become clear that the prior term was not well understood and did not
effectively convey information about the nature of such facilities.
The proposed definition of ``influx'' would change the threshold
for declaring an influx, for ORR's purposes, from the FSA standard,
which ORR believes is out of date considering current migration
patterns and its organizational capacity. The FSA defines influx as
``those circumstances where the INS has, at any given time, more than
130 minors eligible for placement in a licensed program.'' ORR's
proposed definition, however,
[[Page 68915]]
would not impact the rights, and responsibilities of other parties of
the FSA. ORR believes that the proposed definition more appropriately
reflects significantly changed circumstances since the inception of the
FSA and provides a more realistic, fair, and workable threshold for
implementing safeguards necessary in cases where a high percentage of
ORR's bed capacity is in use. The 1997 standard of 130 minors awaiting
placement does not reflect the realities of unaccompanied children
referrals in the past decade, in which the number of unaccompanied
children referrals each day typically exceeds, and sometimes greatly
exceeds, 130. To leave this standard as the definition of influx would
mean, in effect, that the program was always in influx status.
Accordingly, ORR has developed a more realistic and workable threshold
for implementing safeguards necessary in cases where a high percentage
of ORR bed capacity is in use.
With respect to the proposed definition of ``post-release
services,'' ORR notes that assistance linking families to educational
resources may include but is not limited to, in appropriate
circumstances, assisting with school enrollment; requesting an English
language proficiency assessment; seeking an evaluation to determine
whether the child is eligible for a free appropriate public education
(which can include special education and related services) or
reasonable modifications and auxiliary aids and services under the
Individuals with Disabilities Education Act or section 504 of the
Rehabilitation Act of 1973; and monitoring the unaccompanied child's
attendance at and progress in school. ORR notes that while the TVPRA
requires that follow-up services must be provided during the pendency
of removal proceedings in cases in which a home study occurred, the
nature and extent of those services would be subject to available
resources.
With respect to the proposed definition of ``runaway risk,'' ORR
notes that the FSA and ORR policy currently uses the term ``escape
risk.'' See FSA paragraph 22 (defining ``escape risk'' as ``a serious
risk that the minor will attempt to escape from custody,'' and
providing a non-exhaustive list of factors ORR may consider when
determining whether an unaccompanied child is an escape risk--e.g.,
whether the unaccompanied child is currently under a final order of
removal, the unaccompanied child's immigration history, and whether the
unaccompanied child has previously absconded or attempted to abscond
from government custody). ORR proposes to update this term to ``runaway
risk,'' which is a term used by state child welfare agencies and
Federal agencies to describe children at risk from running away from
home or their care setting. Rather than basing its determination of
runaway risk solely on the factors described in the FSA, ORR proposes
under this rule that such determinations must be made in view of a
totality of the circumstances and should not be based solely on a past
attempt to run away. This proposed definition of runaway risk is meant
to be consistent with how the term is used in the FSA to describe
escape from ORR care, i.e., from a care provider facility. ORR notes
here and throughout this proposed rule that the TVPRA uses the term
``risk of flight,'' stating HHS ``may'' consider ``risk of flight,''
among other factors, when making placement determinations.\49\ ORR
understands that in the immigration law context, ``risk of flight''
refers to an individual's risk of not appearing for their immigration
proceedings.\50\ ORR proposes, with respect to its responsibilities
toward unaccompanied children in its custody, to interpret ``risk of
flight'' as including ``runaway risk,'' thereby adding runaway risk to
the list of factors it would consider in making placement
determinations. Runaway risk often overlaps with concern that an
unaccompanied child may not appear for the child's immigration
proceedings. ORR also notes that runaway risk may also relate to
potential danger to self or the community, given the inherent risks to
unaccompanied children who run away from custody.
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\49\ 8 U.S.C. 1232(c)(2)(A).
\50\ See e.g., hearings conducted by the Department of Justice's
Executive Office for Immigration Review to decide custody
redeterminations under section 236(a) of the Immigration and
Nationality Act, 8 U.S.C. 1226(a), ``where an alien must establish
that the alien does not present a danger to others, a threat to the
national security, or a flight risk.'' Matter of Guerra, 24 I&N Dec.
37, 40 (BIA 2006).
---------------------------------------------------------------------------
With respect to the proposed definition of ``secure facility,'' ORR
notes that the FSA uses but does not provide a definition for this
term. Nevertheless, the proposed definition is consistent with the
provisions of the FSA applying to secure facilities. Also, this
proposed definition differs from the definition in the 2019 Final Rule,
which could have been read to indicate that any contract or cooperative
agreement for a facility with separate accommodations for minors is a
secure facility. Such a definition risks erroneously confusing other
types of ORR placements that are not secure with secure placements and
therefore ORR is proposing an updated definition in this proposed rule.
With respect to the proposed definition of ``special needs
unaccompanied child,'' ORR notes that this definition has been included
to incorporate the term ``special needs minor'' as described within the
FSA at paragraph 7, except ORR proposes to update the definition by
using the phrase ``intellectual or developmental disability'' instead
of ``mental illness or retardation'' as used in the FSA. ORR
understands that this update reflects current terminology which has
superseded the terminology used in the FSA (``retardation''). Although
an unaccompanied child with a disability, as defined in this section,
could also be a ``special needs unaccompanied child'' as incorporated
here, the definition of disability is broader and thus the terms are
not synonymous. To further this clarification, ORR proposes a separate
definition for disability earlier in this section that incorporates the
meaning of the term across applicable governing statutory authorities.
ORR is also considering not defining and not using the term ``special
needs unaccompanied child'' within the part for the reasons set forth
below at proposed Sec. Sec. 410.1103 and 410.1106.
The proposed definition of ``standard program'' reflects and
updates the term ``licensed program'' at paragraph 6 of the FSA. The
FSA does not discuss situations where states discontinue licensing, or
exempt from licensing, child care facilities that contract with the
Federal Government to care for unaccompanied children, as has happened
recently in some states.\51\ ORR has included this proposed definition
of ``standard program'' that is broader in scope to account for
circumstances wherein licensure is unavailable in the state to programs
that provide residential, group, or home care services for dependent
children when those programs are serving unaccompanied children. ORR
notes that most states where ORR has care provider facilities have not
taken such actions, and that wherever possible standard programs would
continue to be licensed consistent with current practice under the FSA.
However, ORR
[[Page 68916]]
is considering substituting the term ``licensed program'' with the
proposed updated term ``standard program'' in order to establish that
the requirement that facilities in those states must still meet minimum
standards, consistent with requirements for licensed facilities
expressed in the FSA at Exhibit 1, in any circumstance in which a state
refuses to license a facility because the facility is housing
unaccompanied children.\52\ ORR solicits comments on using the proposed
definition of ``standard program'' in lieu of the term ``licensed
program.''
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\51\ See, e.g., Proclamation by the Governor of the State of
Texas, May 31, 2021, available at: https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf (directing
the Texas Health and Human Service Commission (HHSC) to amend its
regulations to ``discontinue state licensing of any child-care
facility in this state that shelters or detains [UC] under a
contract with the Federal government.''); see also Fl. Executive
Order No. 21-223 (Sep. 28, 2021), available at: https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf.
\52\ Separate from this notice of proposed rulemaking and in the
spirit of current FSA requirements, ACF is currently developing a
notice of proposed rulemaking that would describe the creation of a
Federal licensing scheme for ORR care providers located in states
where licensure is unavailable to programs serving unaccompanied
children.
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ORR understands this proposed definition for ``standard program''
to encompass any program operating non-secure facilities that provide
services to unaccompanied children in need of particular services and
treatment or children with particular mental or physical conditions.
Given this, ORR believes the continued use of language such as
``facilities for children with special needs'' and ``facilities for
special needs minors,'' as used in the FSA definition of ``licensed
program,'' is unnecessary for this regulation, and potentially
problematic for reasons discussed elsewhere within this section and at
proposed Sec. Sec. 410.1103 and 410.1106. For now, ORR has included
this language in the proposed rule to ensure consistency with the FSA,
but it is considering not using the term ``special needs unaccompanied
child'' or specifying that facilities for special needs unaccompanied
children operated by a standard program are covered by the requirements
that apply to standard programs in the part. Therefore, ORR also
solicits comments in this section on its proposal to not include in the
definition of ``standard program'' the FSA terminology used in the term
``licensed program'' referencing facilities for special needs
unaccompanied children or a facility for special needs unaccompanied
children.
The proposed definition of ``trauma bond'' is consistent with how
the Office to Monitor and Combat Trafficking in Persons, Department of
State defined the term in its factsheet, Trauma Bonding in Human
Trafficking.\53\
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\53\ Office to Monitor and Combat Trafficking in Persons. (2020,
June). Trauma Bonding in Human Trafficking. U.S. Department of
State. https://www.state.gov/wp-content/uploads/2020/10/TIP_Factsheet-Trauma-Bonding-in-Human-Trafficking-508.pdf.
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With respect to the proposed definition of ``trauma-informed,'' ORR
believes that a trauma-informed approach to the care and placement of
unaccompanied children is essential to ensuring that the interests of
children are considered in decisions and actions relating to their care
and custody.\54\ ORR understands trauma-informed system, standard,
process, or practices consistently with the 6 Guidelines To A Trauma-
Informed Approach developed by the Centers for Disease Control and
Prevention (CDC) in collaboration with the Substance Abuse and Mental
Health Services Administration (SAMHSA).
---------------------------------------------------------------------------
\54\ See 6 U.S.C. 279(b)(1)(B); 8 U.S.C. 1232(c)(2)(A).
---------------------------------------------------------------------------
Section 410.1002 ORR Care and Placement of Unaccompanied Children
ORR proposes, at Sec. 410.1002, a description of ORR's authority
to coordinate and implement the care and placement of unaccompanied
children who are in ORR custody by reason of their immigration status.
ORR notes that this substantive requirement is aligned with the
requirement established in the 2019 Final Rule at 45 CFR 410.102(a),
concerning the scope of authority of ORR regarding the care and
placement of unaccompanied children. That section of the 2019 Final
Rule was not found to be inconsistent with the FSA by the 9th Circuit
in Flores v. Rosen, but as discussed in section IV.B.3 of this proposed
rule, the 2019 Final Rule in its entirety is currently enjoined and
will be superseded by the standards proposed in this proposed rule,
once finalized.
Section 410.1003 General Principles That Apply to the Care and
Placement of Unaccompanied Children
ORR proposes, at Sec. 410.1003, to describe principles that would
apply to the care and placement for unaccompanied children in its
custody. These principles are based on ORR's statutory duties to
provide care and custody for unaccompanied children in a manner that is
consistent with their best interests.\55\
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\55\ See, e.g., 6 U.S.C. 279(b)(1) (making ORR responsible for,
among other things, ``coordinating and implementing the care and
placement of unaccompanied alien children who are in Federal custody
by reason of their immigration status,'' ``ensuring that the
interest of the child are considered in decisions and actions
relating to the care and custody of an unaccompanied alien child,''
and ``overseeing the infrastructure and personnel of facilities in
which unaccompanied alien children reside.''); see also 8 U.S.C.
1232(c)(1) (requiring HHS to ``establish policies and programs to
ensure that unaccompanied alien children in the United States are
protected from traffickers and other persons seeking to victimize or
otherwise engage such children in criminal, harmful, or exploitative
activity, including policies and programs reflecting best practices
in witness security programs.''); 1232(c)(2)(A) (``. . . an
unaccompanied alien child in the custody of the Secretary of Health
and Human Services shall be promptly placed in the least restrictive
setting that is in the best interest of the child . . .'').
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At Sec. 410.1003(a), ORR proposes that for all placements,
unaccompanied children shall be treated with dignity, respect, and
special concern for their particular vulnerability as unaccompanied
children. In addition to ORR's statutory authorities, this proposal is
consistent with the substantive criteria set forth at paragraph 11 of
the FSA, and current ORR policies.
At Sec. 410.1003(b), ORR proposes that ORR shall hold
unaccompanied children in facilities that are safe and sanitary and
that are consistent with ORR's concern for the particular vulnerability
of unaccompanied children. This is consistent with the substantive
requirement from paragraph 12A of the FSA that ``[f]ollowing arrest,
the INS shall hold minors in facilities that are safe and sanitary and
that are consistent with the INS's concern for the particular
vulnerability of minors.'' ORR notes that although this provision
applies to the arrest and detention of unaccompanied children prior to
their placement in an ORR care provider facility, and not to
unaccompanied children after they are placed in ORR's care, ORR is
proposing to adopt this standard for its facilities and custody of
unaccompanied children as well. ORR also notes that it is proposing the
phrasing ``the particular vulnerability of unaccompanied children'' as
opposed to ``the particular vulnerability of minors,'' as it believes
that the specific vulnerability of the population of unaccompanied
children should be considered when providing them with safe and
sanitary conditions.
At proposed Sec. 410.1003(c), ORR would be required to plan and
provide care and services based on the individual needs of and focusing
on the strengths of the unaccompanied child. As a complementary
provision, ORR proposes, at Sec. 410.1003(d), to encourage
unaccompanied children, as developmentally appropriate and in their
best interests, to be active participants in ORR's decision-making
process relating to their care and placement. ORR believes that these
collaborative approaches to care provision allow for the recognition of
each child's specific needs and strengths while providing opportunities
for unaccompanied children to become more empowered, resilient, and
self-efficacious.
[[Page 68917]]
ORR proposes, at Sec. 410.1003(e), to codify a requirement that
care of unaccompanied children be tailored to the individualized needs
of each unaccompanied child in ORR custody, ensuring the interests of
the child are considered, and that unaccompanied children are protected
from traffickers and other persons seeking to victimize or otherwise
engage them in criminal, harmful, or exploitative activity, both while
in ORR custody and upon release from the UC Program. ORR recognizes the
utmost importance of protecting unaccompanied children from traffickers
and other persons seeking to victimize or otherwise engage in harmful
activities, including unscrupulous employers. ORR believes the
provisions proposed at Sec. 410.1003(e) reinforce ORR's commitment to
ensuring the best interests of unaccompanied children are considered
and actions are taken to safeguard them from harm. ORR also believes
that codifying the requirement to consider each unaccompanied child's
individualized needs reinforces that unaccompanied children will be
assessed by ORR to determine whether they may require particular
services and treatment while in the UC Program, such as to address the
ramifications of a history of severe neglect or abuse, as provided for
in paragraph 7 of the FSA.
Consistent with the substantive criteria set forth in the TVPRA, 8
U.S.C. 1232(c)(2)(A), ORR proposes at Sec. 410.1003(f) to require that
unaccompanied children be promptly placed in the least restrictive
setting that is in the best interest of the child, with placement
considerations including danger to self; danger to the community; and
runaway risk, as defined in Sec. 410.1001. In addition to ORR's
statutory authorities, this proposal is consistent with the substantive
criteria set forth at paragraph 11 of the FSA, and current ORR
policies.
At proposed Sec. 410.1003(g), ORR would require consultation with
parents, legal guardians, child advocates, and attorneys of record or
EOIR accredited representatives as needed when requesting information
or consent from all unaccompanied children.
Section 410.1004 ORR Custody of Unaccompanied Children
Proposed Sec. 410.1004 describes the scope of ORR's custody of
unaccompanied children. Consistent with its statutory authorities and
the FSA, this proposed provision specifies that all unaccompanied
children placed by ORR in care provider facilities remain in the legal
custody of ORR and may be transferred or released only with ORR
approval.\56\ The provision would also provide that in the event of an
emergency, a care provider facility may transfer temporary physical
custody of an unaccompanied child prior to securing approval from ORR
but shall notify ORR of the transfer as soon as is practicable
thereafter, and in all cases within 8 hours.\57\
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\56\ See 8 U.S.C. 1232(b)(1) (``Consistent with section 279 of
title 6, and except as otherwise provided under subsection (a), the
care and custody of all unaccompanied alien children, including
responsibility for their detention, where appropriate, shall be the
responsibility of the Secretary of Health and Human Services.'').
\57\ See FSA at ] 19.
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Subpart B--Determining the Placement of an Unaccompanied Child at a
Care Provider Facility
In subpart B of this proposed rule, ORR proposes to codify the
criteria and requirements that apply to placement of unaccompanied
children at particular types of care provider facilities. The HSA makes
ORR responsible for, among other things, ``coordinating and
implementing the care and placement of unaccompanied alien children who
are in federal custody by reason of their immigration status,''
``making placement determinations for all unaccompanied alien children
who are in federal custody by reason of their immigration status,''
``implementing the placement determinations,'' and ``implementing
policies with respect to the care and placement of unaccompanied alien
children.'' \58\ In addition, subpart B would clarify and strengthen
placement criteria to better ensure appropriate placement based on each
unaccompanied child's individual background, characteristics, and
needs. ORR believes that these proposed provisions can help to protect
the interests of unaccompanied children in ORR care by supporting safe
and appropriate placement in the least restrictive setting appropriate
to the child's age and individualized needs, consistent with existing
legal requirements and child welfare best practices.
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\58\ 6 U.S.C. 279(b)(1). See also 8 U.S.C. 1232(c)(2)(A).
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Section 410.1100 Purpose of This Subpart
Proposed Sec. 410.1100 describes the purposes of subpart B, which
are to set forth the process by which ORR receives referrals from other
Federal agencies and the factors ORR considers when placing an
unaccompanied child in a particular care provider facility. In
addition, proposed Sec. 410.1100 would clarify that, as used in this
subpart, ``placement determinations'' or ``placements'' refers to
placements in ORR-approved care provider facilities during the time an
unaccompanied child is in ORR care, and not to the location of an
unaccompanied child once the child is released in accordance with
provisions proposed in subpart C.
Section 410.1101 Process for the Placement of an Unaccompanied Child
After Referral From Another Federal Agency
ORR proposes, at new Sec. 410.1101, to codify its existing process
for accepting referrals of unaccompanied children from another Federal
agency and for placement of an unaccompanied child in a care provider
facility upon such referral. Consistent with the TVPRA at 8 U.S.C.
1232(b)(3), which requires any department or agency of the Federal
Government that has an unaccompanied child in its custody to transfer
the custody of such child to HHS not later than 72 hours after
determining that the child is an unaccompanied child, unless there are
exceptional circumstances,\59\ and with existing policy, under proposed
Sec. 410.1101(a), ORR accepts referrals from any department or agency
of the Federal Government of unaccompanied children in the referring
department or agency's custody. Further, consistent with existing
policy and in cooperation with referring agencies, ORR accepts such
referrals at any time of day, every day of the year. ORR may seek
clarification about the information provided by the referring agency
(including about how the referred individual meets the statutory
definition of unaccompanied child). In such instances, ORR shall notify
the referring agency and work with the referring agency, including by
requesting additional information, in accordance with statutory time
frames for transferring unaccompanied children to ORR.
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\59\ The TVPRA also contains specific provisions for DHS to
screen children who are from contiguous countries to determine
whether such children meet statutory criteria to be returned to the
child's country of nationality or of last habitual residence. Such
screening should occur within 48 hours of apprehension. If the child
does not meet the criteria to be returned or no determination can be
made within 48 hours of apprehension, the TVPRA states that the
child shall ``immediately be transferred to the Secretary of HHS and
treated in accordance with subsection (b).'' 8 U.S.C. 1232(a)(4). We
read this language in concert with the language in 8 U.S.C.
1232(b)(3) and, thus, include the one 72-hour standard in this
proposed rule.
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At Sec. 410.1101(b) and (c), ORR proposes timeframes for
identifying, and notifying a referring Federal agency of ORR's
identification of, an appropriate placement for an unaccompanied child,
and for accepting transfer of custody of
[[Page 68918]]
an unaccompanied child after a referring Federal agency determines that
a child is an unaccompanied child who should be referred to ORR. At
Sec. 410.1101(b), ORR proposes to codify its current policy that upon
notification from any department or agency of the Federal Government
that a child is an unaccompanied child and therefore must be
transferred to ORR custody, ORR must identify an appropriate placement
for the unaccompanied child and notify the referring Federal agency
within 24 hours of receiving the referring agency's notification
whenever possible, and no later than 48 hours of receiving the
referring agency's notification, barring exceptional circumstances (see
paragraph below). ORR believes that setting a maximum time frame of 48
hours for ORR to identify a placement and notify a referring Federal
agency of ORR's identification of a placement would help to expedite
transfer of unaccompanied children from the referring Federal agency to
ORR care, but also that certain exceptions to this time frame may be
necessary in certain circumstances, as discussed in the following
paragraph. Proposed Sec. 410.1101(c) would require ORR to work with
the referring Federal department or agency to accept transfer of
custody of the unaccompanied child, consistent with the statutory
requirements at 8 U.S.C. 1232(b)(3) (the referring Federal agency must
transfer custody of an unaccompanied child to HHS not later than 72
hours after determining that the child is an unaccompanied child,
except in the case of exceptional circumstances).
As noted above, the TVPRA provides that referring Federal agencies
must transfer custody of unaccompanied children to HHS within 72 hours
unless there are exceptional circumstances. In order to help facilitate
this requirement in coordination with referring agencies, proposed
Sec. 410.1101(b) and (c) describe internal timeframes for ORR to
identify and notify referring Federal agencies of placements and to
accept transfer of custody from referring agencies. But ORR notes that
it may in certain ``exceptional circumstances'' be unable to timely
identify placements for and help facilitate other agencies' timely
transfers of unaccompanied children to its custody. For purposes of
proposed Sec. 410.1101(b) and (c), proposed Sec. 410.1101(d)
describes circumstances which would prevent ORR from timely identifying
a placement for an unaccompanied child or accepting transfer of
custody. At proposed Sec. 410.1101(d), ORR describes these exceptional
circumstances consistent with those described in paragraph 12.A of the
FSA, some of which were also incorporated into the 2019 Final Rule at
Sec. 410.202. The proposed ``exceptional circumstances,'' for ORR's
purposes, would include the following: (1) any court decree or court-
approved settlement that requires otherwise; (2) an influx, as defined
in proposed Sec. 410.1001; (3) an emergency, including a natural
disaster, such as an earthquake or hurricane, and other events, such as
facility fires or civil disturbances; (4) a medical emergency, such as
a viral epidemic or pandemic among a group of unaccompanied children;
(5) the apprehension of an unaccompanied child in a remote location,
and (6) the apprehension of an unaccompanied child whom the referring
agency indicates (i) poses a danger to self or others or (ii) has been
charged with or has been convicted of a crime, or is the subject of
delinquency proceedings, delinquency charge, or has been adjudicated
delinquent, and additional information is essential in order to
determine an appropriate ORR placement. Notably, the unavailability of
documents will not necessarily prevent the prompt transfer of a child
to ORR. In addition, ``exceptional circumstances,'' for ORR's purposes,
would include an act or event that could not be reasonably foreseen
that prevents the placement of or accepting transfer of custody of an
unaccompanied child within the proposed timeframes. Given the mandate
under the TVPRA, 8 U.S.C. 1232(c)(2), that ORR place an unaccompanied
child in the least restrictive setting that is in the best interests of
the unaccompanied child, subject to consideration of danger to self,
danger to the community/others, and risk of flight, additional time may
be needed in some circumstances to determine the most appropriate and
safe placement that comports with the best interests of the
unaccompanied child. Thus, ORR believes that this general exception for
acts or events that could not be reasonably foreseen is appropriate to
afford additional time to assess these considerations, though ORR is
mindful of avoiding prolonged placements in DHS facilities that are not
designed for the long-term care of children. As discussed previously,
these proposed exceptional circumstances would, as appropriate, modify
the timeframes applicable to ORR under proposed Sec. 410.1101(b) and
(c).
ORR notes that the FSA also includes an exception to these
timeframe requirements for unaccompanied children who do not speak
English and for whom an interpreter is unavailable. However, ORR does
not propose to include this as an exceptional circumstance for purposes
of Sec. 410.1101(b) and (c). Because ORR is able to serve
unaccompanied children regardless of their primary language through the
use of telephonic interpreters, ORR does not view this as an
insurmountable impediment to the prompt placement of unaccompanied
children. In addition, the FSA includes an exception in which a
reasonable person would conclude that an individual is an adult despite
the individual's claim to be an unaccompanied child. However, ORR does
not propose to include this as an exceptional circumstance for purposes
of proposed Sec. 410.1101(b) and (c) because ORR does not believe that
such a situation poses the type of urgency inherent in exceptional
circumstances as described above. For further information on ORR's
proposed policies regarding age determinations, ORR refers readers to
its discussion of proposed subpart H.
As discussed previously, the TVPRA contemplates the referral and
transfer of unaccompanied children to ORR from other Federal agencies
or departments, requiring that, absent exceptional circumstances, such
transfer must occur no later than 72 hours after determining that a
child is an unaccompanied child.\60\ ORR seeks to accept transfer of
unaccompanied children as quickly as possible after a placement has
been identified within this time frame. In identifying placements for
unaccompanied children, ORR balances the need for expeditious
identification of placement with the need to ensure safe and
appropriate placement in the best interests of the unaccompanied child,
which necessitates a comprehensive review of information regarding an
unaccompanied child's background and needs before placement. Under
existing policy, to determine the appropriate placement for an
unaccompanied child, ORR requests and assesses extensive background
information on the unaccompanied child from the referring agency,
including the following: (1) how the referring agency made the
determination that the child is an unaccompanied child; (2) health
related information; (3) whether the unaccompanied child has any
medication or prescription information, including how many days' supply
of the medication will be provided with the unaccompanied child when
transferred into ORR custody; (4) biographical and biometric
information,
[[Page 68919]]
such as name, gender, alien number, date of birth, country of birth and
nationality, date(s) of entry and apprehension, place of entry and
apprehension, manner of entry, and the unaccompanied child's current
location; (5) any information concerning whether the unaccompanied
child is a victim of trafficking or other crimes; (6) whether the
unaccompanied child was apprehended with a sibling or other relative;
(7) identifying information and contact information for a parent, legal
guardian, or other related adult providing care for the unaccompanied
child prior to apprehension, if known, and information regarding
whether the unaccompanied child was separated from a parent, legal
guardian, or adult relative after apprehension, and the reason for
separation; (8) if the unaccompanied child was apprehended in transit
to a final destination, what the final destination was and who the
unaccompanied child planned to meet or live with at that destination,
if known; (9) whether the unaccompanied child is a runaway risk, and if
so, the runaway risk indicators; (10) any information on a history of
violence, juvenile or criminal background, or gang involvement known or
suspected, risk of danger to self or others, state court proceedings,
and probation; (11) if the unaccompanied child is being returned to ORR
custody after arrest on alleged gang affiliation or involvement, ORR
requests all documentation confirming whether the unaccompanied child
is a Saravia class member and information on the Saravia hearing,
including the date and time; \61\ and (12) any particular needs or
other information that would affect the care and placement of the
unaccompanied child, including, as applicable, information about
services, supports, or program modifications provided to the child on
the basis of disability.
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\60\ See 8 U.S.C. 1232(b)(2) and (3).
\61\ A Saravia class member is defined as a noncitizen minor who
(1) came to the United States as an unaccompanied child, as defined
at 6 U.S.C. 279(g)(2); (2) was previously detained in the custody of
the Department of Health and Human Services (HHS), Office of Refugee
Resettlement (ORR) but then released to a sponsor by ORR; and (3)
has been or will be rearrested by the Department of Homeland
Security (DHS) on the basis of a removability warrant based in whole
or in part on allegations of gang affiliation. In Saravia bond
hearings DHS bears the burden to demonstrate changed circumstances
since the minor's release by ORR which demonstrate the minor is a
danger to the community. DHS must demonstrate that circumstances
have changed since the child's release from ORR custody such that
the child poses a danger to the community or is a flight-risk. See
Order Certifying the Settlement Class and Granting Final Approval of
Class Action Settlement, Saravia v. Barr, Case No.: 3:17-cv-03615
(N.D. Cal. Jan. 19, 2021), ECF No. 249.
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Furthermore, the TVPRA places the responsibility for the transfer
of custody on referring Federal agencies.\62\ ORR custody begins when
it assumes physical custody from the referring agency. Proposed Sec.
410.1101(e) would codify this practice, which is currently reflected at
section 1.1 of the Policy Guide.
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\62\ 8 U.S.C. 1232(b)(3).
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Section 410.1102 Care Provider Facility Types
Proposed Sec. 410.1102 describes the types of care provider
facilities in which unaccompanied children may be placed. The basis for
this section is ORR's statutory authority to make placement
determinations for unaccompanied children in its care, as well as other
responsibilities such as implementing policies with respect to their
care and overseeing the infrastructure and personnel of facilities in
which unaccompanied children reside.\63\ Specifically, this section
proposes that ORR may place an unaccompanied child in a care provider
facility as defined at proposed Sec. 410.1001, including but not
limited to shelters, group homes, individual family homes, heightened
supervision facilities, or secure facilities, including RTCs. ORR
proposes that it may also place unaccompanied children in out-of-
network (OON) placements under certain, limited circumstances, such as
an OON RTC (which would need to meet the standards that apply to RTCs
that are ORR care provider facilities) or a temporary stay at hospital
(for example, for surgery). ORR would make such placements taking into
account the considerations and criteria set forth in proposed
Sec. Sec. 410.1103 through 410.1109 and 410.1901, as further discussed
below. In addition, ORR proposes that in times of influx or emergency,
as further discussed in proposed subpart I (Emergency and Influx
Operations), ORR may place unaccompanied children in facilities that
may not meet the standards of a standard program, but rather meet the
standards in subpart I. ORR believes that this proposed provision is
consistent with the FSA requirement that unaccompanied children be
placed in licensed programs until such time as release can be effected
or until immigration proceedings are concluded, except that in the
event of an emergency or influx of children into the United States, ORR
must place unaccompanied children into licensed programs as
expeditiously as possible.\64\
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\63\ See generally 6 U.S.C. 279(b)(1).
\64\ See FSA at paragraph 19 and Exhibit 3.
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Consistent with proposed Sec. 410.1102, ORR would place
unaccompanied children in group homes or individual family homes,
including long-term and transitional home care settings, as
appropriate, based on the unaccompanied child's age and individualized
needs and circumstances. Proposed definitions of ``ORR long-term home
care'' and ``ORR transitional home care'' are included in Sec.
410.1001, which would replace the terms ``long-term foster care'' and
``transitional foster care'' as those terms are used in the definition
of ``traditional foster care'' provided at 45 CFR 411.5. Where
possible, ORR believes that based on an unaccompanied child's age,
individualized needs, and circumstances, as well as a care provider
facility's capacity, it should favor placing unaccompanied children in
transitional and long-term home care settings while they are awaiting
release to sponsors. Having said that, ORR notes that efforts to place
more unaccompanied children out of congregate care shelters that house
more than 25 children together is a long-term aspiration, given the
large number of children in its custody and the number of additional
programs that would be required to care for them in home care settings
or small-scale shelters of 25 children or less. Given this reality,
care provider facilities structured and licensed to accommodate more
than 25 children continue to serve a vital role in meeting this need.
Finally, for the final rule, ORR is also considering replacing its
current long-term and transitional home care placement approach with a
community-based care model that would expand upon the current types of
care provider facilities that may care for unaccompanied children in
community-based settings. This is in line with a vision of moving
towards a framework of community-based care as described in the
following paragraphs. ORR believes such a framework would be consistent
with the language of this proposed rule and that ORR would be able to
implement it in a manner consistent with this proposed rule.
If ORR were to finalize the community-based care model in the final
rule, references to ORR long-term home care and ORR transitional home
care as used in this proposed rule would be replaced with the term
community-based care, and ORR would define ``community-based care'' in
Sec. 410.1001 as an ORR-funded and administered family or group home
placement in a community-based setting, whether for a short-term or a
long-term placement. The proposed definition of
[[Page 68920]]
``community-based care'' encompasses the term ``traditional foster
care'' that is codified at existing Sec. 411.5.
``Community-based care'' would be a continuum of care that would
include basic and therapeutic foster family settings as well as
supervised independent living group home settings for unaccompanied
children, which are funded and administered by ORR. It aims to more
effectively place and support unaccompanied children who are best
served in family settings, such as tender age unaccompanied children,
pregnant/parenting unaccompanied children, unaccompanied children with
extended stays, and unaccompanied children who are moving towards
independent living or close to aging out of ORR care. Thus, a
community-based care model would include placements in care provider
facilities capable of accommodating unaccompanied children with both
long-term (e.g., where there is no reasonable prospect of release to a
sponsor) and short-term (e.g., rapid release expected) care needs. For
purposes of UC Program management, the term community-based care would
encompass and replace the term ``traditional foster care'' provided at
existing Sec. 411.5 as well as the terms ``ORR long-term home care''
and ``ORR transitional home care'' as used in this proposed rule.
Components of the ORR community-based care model would include
caregivers (either the foster parent or the designated official for a
child care institution, inclusive of care provider facility staff)
providing care in a manner consistent with their state licensing
requirements, such as exercising the Reasonable and Prudent Parent
Standard, as defined at 42 U.S.C. 675(10)(A), to make daily decisions
on age-appropriate activities for the child. The Reasonable and Prudent
Parent Standard is the standard characterized by careful and sensible
parental decisions that maintain the health, safety, and best interests
of a child, while at the same time encouraging the emotional and
developmental growth of the child, that a caregiver shall use when
determining whether to allow a child in foster care to participate in
extracurricular, enrichment, cultural, and social activities. Under an
ORR community-based care model, when unaccompanied children are in
community-based settings on an extended basis, they would be eligible
to attend local schools under applicable school policies to the same
extent that unaccompanied children in long-term home care placements
can, to facilitate integration into the local community and the
development of relationships with peers and adults. Under a community-
based care model, caregivers would support: (1) unaccompanied
children's integration into their local communities, development of
healthy and nurturing relationships with adults and peers, and
engagement and connection to local services, activities, and
opportunities; (2) the development of unaccompanied children's
independent living skills when they are of the age that supports
transition to adulthood (e.g., 16 years or older); and (3) proactive
permanency planning for unaccompanied children who do not have a viable
sponsor, including identification of trusted adults and alternative
care options that promote permanency for the unaccompanied children.
Additionally, under a community-based care model, in consultation as
appropriate with the child's attorney or other relevant stakeholder
such as a legal service provider or child advocate, ORR will consider a
child's eligibility for or access to legal relief (including, for
example, a special immigrant juvenile predicate order) in a specific
jurisdiction as part of the placement decision. ORR welcomes public
comment on this vision of community-based care, its inclusion as a care
provider facility type in the final rule in place of ORR's current
long-term and transitional home care placement approach, and any other
concerns relevant to this change based on existing language in the
proposed rule.
Section 410.1103 Considerations Generally Applicable to the Placement
of an Unaccompanied Child
Proposed Sec. 410.1103 sets forth considerations generally
applicable to the placement of unaccompanied children consistent with
the TVPRA, 8 U.S.C. 1232(c)(2)(A) and the FSA. The TVPRA mandates that
ORR place each unaccompanied child in the least restrictive setting
that is in the best interest of the unaccompanied child, with due
consideration by HHS of danger to self, danger to community, and risk
of flight. Similarly, paragraph 11 of the FSA requires that each
unaccompanied child be placed in the least restrictive setting
appropriate to the child's age and ``special needs,'' provided that
such setting is consistent with the interest in ensuring the
unaccompanied child's timely appearance before DHS and the immigration
courts and protecting the unaccompanied child's well-being and that of
others. Consistent with the statutory mandate and the FSA provision, as
well as existing policy, under proposed Sec. 410.1103(a), ORR would
place each unaccompanied child in the least restrictive setting that is
in the best interest of the unaccompanied child and appropriate to the
unaccompanied child's age and individualized needs, provided that such
setting is consistent with the interest in ensuring the unaccompanied
child's timely appearance before DHS and the immigration courts and
protecting the unaccompanied child's well-being and that of others.
ORR considers the following factors when evaluating an
unaccompanied child's best interest: the unaccompanied child's
expressed interests, in accordance with the unaccompanied child's age
and maturity; the unaccompanied child's mental and physical health; the
wishes of the unaccompanied child's parents or legal guardians; the
intimacy of relationship(s) between the unaccompanied child and the
child's family, including the interactions and interrelationship of the
unaccompanied child with the child's parents, siblings, and any other
person who may significantly affect the unaccompanied child's well-
being; the unaccompanied child's adjustment to the community; the
unaccompanied child's cultural background and primary language; length
or lack of time the unaccompanied child has lived in a stable
environment; individualized needs, including any needs related to the
unaccompanied child's disability; and the unaccompanied child's
development and identity. ORR also notes that its care provider
facilities are usually congregate care settings. As a result,
consistent with prioritizing the safety and well-being of all
unaccompanied children, when making a placement determination, ORR
evaluates the best interests of both the individual unaccompanied child
being placed and the best interests of the other unaccompanied children
at the care provider facility where the individual unaccompanied child
may be placed. ORR notes that the factors and considerations in
proposed Sec. 410.1103(b) and proposed Sec. 410.1105 also are
evaluated in determining the best interest of the child for purposes of
placement.
ORR also proposes to use the term ``individualized needs,'' in
proposed Sec. 410.1103(a), rather than ``special needs'' (as used in
the FSA and regulations established in the 2019 Final Rule at 45 CFR
410.201(a)), because it believes the term ``special needs'' has created
confusion. The term ``special needs'' may imply that, in determining
placement, ORR considers only a limited range of needs that fall within
[[Page 68921]]
a special category. Instead, in assessing the appropriate placement of
an unaccompanied child, ORR takes into account any need it becomes
aware of that is specific to the individual being assessed, regardless
of the nature of that need. In addition, the term ``special needs'' may
imply that, in determining placement, ORR considers only those needs
related to an unaccompanied child's disability, which as explained, is
not the case. To avoid the suggestion that, in determining placement of
an unaccompanied child, ORR only takes into account a limited range of
needs that fall within a special category, we are using the broader
term ``individualized needs'' for purposes of proposed Sec.
410.1103(a).
ORR further notes that as used in the FSA, including the
considerations required at paragraph 11, ``special needs'' is not
synonymous with disability or disability-related needs. The term
``special needs'' has no clear legal meaning; of note, it is not used
in section 504 or the HHS implementing regulations at 45 CFR part 85.
Aside from its particular usage in the FSA, the term ``special needs''
is often understood to be a placeholder or euphemism for
``disability.'' As with the term ``handicapped,'' ORR is concerned
about perpetuating language that has become stigmatized over time. For
these reasons, as discussed above at Sec. 410.1001, ORR invites
comments concerning the continued use of the terms ``special needs
minor'' or ``special needs unaccompanied child'' but has included these
terms in the proposed rule in order to ensure consistency with the FSA.
Under proposed Sec. 410.1103(b), consistent with existing policy
and with certain requirements under the TVPRA,\65\ ORR proposes that it
would consider additional factors that may be relevant to the
unaccompanied child's placement, to the extent such information is
available, including but not limited to the following: danger to self
and the community/others, runaway risk, trafficking in persons or other
safety concerns, age, gender, LGBTQI+ status, disability, any
specialized services or treatment required or requested by the
unaccompanied child, criminal background, location of potential sponsor
and safe and timely release options, behavior, siblings in ORR custody,
language access, whether the unaccompanied child is pregnant or
parenting, location of the unaccompanied child's apprehension, and
length of stay in ORR custody. ORR believes that this information, to
the extent available, is necessary for a comprehensive review of an
unaccompanied child's background and needs, and for appropriate and
safe placement of an unaccompanied child.
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\65\ See 8 U.S.C. 1232(c).
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In addition, with respect to the consideration of whether any
specialized services or treatments are required, ORR is aware of the
importance of ascertaining an unaccompanied child's health status,
including the need for proximity to medical specialists, the child's
reproductive health status (such as information relating to pregnancy
or post-partum status; use of birth control; and any recent procedures,
medications, or current needs related to pregnancy), and whether the
child is a victim of a sex crime (e.g., sexual assault, sex
trafficking)), and other healthcare needs, upon entering ORR care in
order to ensure the most appropriate placement, and relies on
information provided from referring Federal agencies to make
appropriate placements. For further discussion of proposed policies
related to access to medical care, ORR refers readers to proposed Sec.
410.1307(b). When it receives a referral of an unaccompanied child from
another Federal agency, ORR documents and reviews the unaccompanied
child's biographical and apprehension information, as submitted by the
referring Federal agency in ORR's case management system, including any
information about an unaccompanied child's health status, including
their reproductive health status and need for medical specialists.
Under proposed Sec. 410.1103(c), ORR would be able to utilize
information provided by the referring Federal agency, child assessment
tools, interviews, and pertinent documentation to determine the
placement of all unaccompanied children. In addition, ORR proposes that
it may obtain any relevant records from local, State, and Federal
agencies regarding an unaccompanied child to inform placement
decisions. Such information is vital in carrying out ORR's general duty
to coordinate the care and placement of unaccompanied children,
including determining whether a restrictive placement may be
necessary.\66\ ORR is proposing to add these provisions to the
regulations to clarify the broad range of information it may utilize in
making placement determinations.
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\66\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c)(2).
---------------------------------------------------------------------------
The TVPRA requires that the placement of an unaccompanied child in
a secure facility be reviewed on a monthly basis to determine if such
placement remains warranted.\67\ ORR notes that it exceeds the
statutory requirement here because under its current policies all
restrictive placements, not only secure placements, must be reviewed at
least every thirty days. Proposed Sec. 410.1103(d) would codify the
practice of reviewing restrictive placements at least every thirty days
to determine if such placements remain warranted.
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\67\ See 8 U.S.C. 1232(c)(2)(A); see also 2019 Final Rule at
Sec. 410.203(c).
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Additionally, in proposed Sec. 410.1103(e), ORR proposes to codify
its existing policy that ORR make reasonable efforts to provide
placements in those geographical areas where DHS encounters the
majority of unaccompanied children. ORR believes this provision is
justified in order to facilitate the orderly and expeditious transfer
of children from DHS border facilities to ORR care provider facilities,
which is in the child's best interest. This requirement reflects the
requirement at paragraph 6 of the FSA. ORR notes that in making any
placement decision, it also would take into account the considerations
set forth in proposed Sec. 410.1103(a) and (b).
Finally, ORR proposes at Sec. 410.1103(f) to codify a requirement
that care provider facilities accept all unaccompanied children placed
by ORR at their facilities, except in limited circumstances. Such a
requirement is consistent with ORR's authority to make and implement
placement determinations, and to oversee its care provider facilities,
as established at 6 U.S.C. 279(b)(1). Consistent with existing policy,
under proposed Sec. 410.1103(f), a care provider facility may only
deny ORR's request for placement based on the following reasons: (1)
lack of available bed space; (2) the placement of the unaccompanied
child would conflict with the care provider facility's state or local
licensing rules; (3) the initial placement involves an unaccompanied
child with a significant physical or mental illness for which the
referring Federal agency does not provide a medical clearance; or (4)
in the case of the placement of an unaccompanied child with a
disability, the care provider facility concludes it is unable to meet
the child's disability-related needs without fundamentally altering its
program, even by providing reasonable modifications and even with
additional support from ORR. ORR proposes that if a care provider
facility wishes to deny a placement, it must make a written request to
ORR providing the individualized reasons for
[[Page 68922]]
the denial. ORR proposes that any such request must be approved by ORR
before the care provider facility may deny a placement. In addition,
under proposed Sec. 410.1103(f), ORR would be able to follow up with a
care provider facility about a placement denial to find a solution to
the reason for the denial.
ORR is not proposing to codify in subpart B the provisions
finalized in the 2019 Final Rule at Sec. 410.201(b) or (e), which were
based on requirements set forth in paragraph 12A of the FSA. The 2019
Final Rule at Sec. 410.201(b) provided that ORR separates
unaccompanied children from delinquent offenders. However, ORR notes
that paragraph 12A of the FSA concerns detention of unaccompanied
children following arrest by the former INS, and currently DHS, before
transfer of custody to ORR. ORR is not involved in the apprehension or
encounter of unaccompanied children or their immediate detention
following apprehension or encounter and thus ORR proposes to omit this
provision from this regulation. Having said that, ORR proposes that it
will apply the facility standards described as paragraph 12A of the FSA
to its care provider facilities, consistent with standards set forth in
proposed subpart D (Minimum Standards and Required Services) and
proposed subpart I (Emergency and Influx Operations).
The 2019 Final Rule at Sec. 410.201(c) provides that if there is
no appropriate licensed program immediately available for placement,
and no one to whom ORR may release an unaccompanied child, the
unaccompanied child may be placed in an ORR-contracted facility, having
separate accommodations for children, or a state or county juvenile
detention facility, shall be separated from delinquent offenders, and
that every effort must be taken to ensure the safety and well-being of
the unaccompanied child detained in these facilities. ORR proposes
omitting this provision from these regulations. This provision was also
based on paragraph 12A of the FSA, which concerns detention of the
unaccompanied child following arrest by the former INS, and currently
following encounter by DHS, before transfer of custody to placement in
an ORR care provider facility. Instead, consistent with existing
policies, under proposed Sec. 410.1101(b) ORR would identify an
appropriate placement for the unaccompanied child at a care provider
facility within 24 hours of receiving the referring agency's
notification, whenever possible, and no later than 48 hours of
receiving such notification, barring exceptional circumstances. Also,
as further discussed in the next section (addressing proposed Sec.
410.1104), in the event of an emergency or influx of unaccompanied
children into the United States, ORR would place unaccompanied children
as expeditiously as possible in accordance with proposed subpart I
(Emergency and Influx Operations).
Section 410.1104 Placement of an Unaccompanied Child in a Standard
Program That Is Not Restrictive
At proposed Sec. 410.1104, ORR proposes to codify substantive
criteria for placement of an unaccompanied child in a standard program
that is not a restrictive placement. The TVPRA requires ORR to promptly
place unaccompanied children ``in the least restrictive setting that is
in the best interest of the child,'' and states that in making such
placements ORR ``may consider danger to self, danger to the community,
and risk of flight.'' \68\ ORR also notes that under paragraph 19 of
the FSA, with certain exceptions, an unaccompanied child must be placed
temporarily in a licensed program until release can be effectuated or
until immigration proceedings are concluded. Consistent with the TVPRA
and existing policy, under proposed Sec. 410.1104, ORR would place all
unaccompanied children in a standard program that is not a restrictive
placement (in other words, that is not a heightened supervision
facility) after the unaccompanied child is transferred to ORR legal
custody, except in the following circumstances: (a) the unaccompanied
child meets the criteria for placement in a restrictive placement set
forth at proposed Sec. 410.1105; or (b) in the event of an emergency
or influx of unaccompanied children into the United States, in which
case ORR shall place the unaccompanied child as expeditiously as
possible in accordance with proposed subpart I (Emergency and Influx
Operations). ORR understands these exceptions to be consistent with
placement considerations described in the TVPRA at 8 U.S.C.
1232(c)(2)(A) (noting, for example, that in making placements HHS ``may
consider danger to self, danger to the community, and risk of
flight''), and exceptions provided for in section paragraph 19 of the
FSA.
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\68\ 8 U.S.C. 1232(c)(2)(A).
---------------------------------------------------------------------------
ORR does not propose to codify certain other exceptions described
in the FSA and included in the 2019 Final Rule at Sec. 410.202(b) and
(d). The 2019 Final Rule at Sec. 410.202(b) provided that
unaccompanied children do not have to be placed in a standard program
as otherwise required by any court decree or court-approved settlement.
ORR does not believe it is necessary to include this exception, as any
court decree or settlement that would require ORR to implement
placement criteria that differ from those at proposed Sec. 410.1104
would take effect pursuant to its own terms even without specifying
these potential circumstances in the regulation. Section 410.202(d)
provided that an unaccompanied child does not have to be placed in a
standard program if a reasonable person would conclude that the
unaccompanied child is an adult despite the individual's claims to be a
child. ORR also does not believe it is necessary to include this
exception in proposed Sec. 410.1104 because a person determined by ORR
to be an adult (has attained 18 years of age) would be excluded from
the definition of unaccompanied child and thus would not be placed in
any ORR care provider facility (see proposed subpart H for discussion
of age determinations).
Section 410.1105 Criteria for Placing an Unaccompanied Child in a
Restrictive Placement
Proposed Sec. 410.1105 addresses the criteria for placing
unaccompanied children in restrictive placements. As defined in
proposed Sec. 410.1001, restrictive placements would include secure
facilities, heightened supervision facilities, and RTCs. The proposed
criteria for placement in each of these facilities are further
discussed below.
Proposed Sec. 410.1105(a) addresses placement at secure facilities
that are not RTCs. At proposed Sec. 410.1105(a)(1), ORR proposes that,
consistent with existing policies, it may place an unaccompanied child
in a secure facility (that is not also an RTC) either upon referral
from another agency or department of the Federal Government (i.e., as
an initial placement), or through a transfer to another care provider
facility after the initial placement.
Under proposed Sec. 410.1105(a)(2), ORR would not place an
unaccompanied child in a secure facility (that is not also an RTC) if
less restrictive alternative placements are available. Such placements
must also be appropriate under the circumstances, and in the best
interests of the unaccompanied child. In determining whether there is a
less restrictive placement available to meet the individualized needs
of an unaccompanied child with a disability, consistent with section
504 of the Rehabilitation Act, 29 U.S.C. 794(a), ORR must consider
whether there are any reasonable modifications to the policies,
practices, or procedures of an available less restrictive placement or
any provision of auxiliary aids and
[[Page 68923]]
services that would allow the unaccompanied child with a disability to
be placed in that less restrictive facility. However, ORR is not
required to take any action that it can demonstrate would result in a
fundamental alteration in the nature of a program or activity. The
proposed regulation text is consistent with 8 U.S.C. 1232(c)(2)(A).
Also, ORR notes that this proposed requirement is consistent with
paragraph 23 of the FSA, which provides that ORR may not place an
unaccompanied child in a secure facility if there are less restrictive
alternatives that are available and appropriate in the circumstances.
Under the FSA, less restrictive alternatives include transfer to (a) a
medium security facility, which is equivalent to ``heightened
supervision facility'' as defined at proposed Sec. 410.1001, or (b)
another licensed program, a term which for purposes of this proposed
rule is superseded by ``standard program'' as defined at proposed Sec.
410.1001. Consistent with the FSA, ORR further proposes in Sec.
410.1105(a)(2) that it may place an unaccompanied child in a heightened
supervision facility or other non-secure care provider facility as an
alternative, provided that the unaccompanied child does not pose a
danger to self or others. ORR believes that such alternative placements
may not be appropriate for unaccompanied children who pose a danger to
self or others, as less restrictive placements may not have the level
of staff supervision and requisite security procedures to address the
needs of such unaccompanied children.
ORR proposes to place unaccompanied children in secure facilities
(that are not RTCs) in limited, enumerated circumstances set forth at
proposed Sec. 410.1105(a)(3). Specifically, ORR proposes that it may
place an unaccompanied child in a secure facility (that is not an RTC)
only if the unaccompanied child meets one of three criteria. First, ORR
proposes at Sec. 410.1105(a)(3)(i) that it may place the unaccompanied
child in a secure facility (that is not an RTC) if the unaccompanied
child has been charged with or has been convicted of a crime, or is the
subject of delinquency proceedings, a delinquency charge, or has been
adjudicated delinquent, and where ORR deems that those circumstances
demonstrate that the unaccompanied child poses a danger to self or
others, not including: (1) 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 (2) a petty
offense, which is not considered grounds for stricter means of
detention in any case. These proposed provisions were also included in
the 2019 Final Rule at Sec. 410.203(a)(1), except that proposed Sec.
410.1105(a)(3) omits language from the FSA and previous Sec.
410.203(a)(1) that allows an unaccompanied child to be placed in a
secure facility if the unaccompanied child is ``chargeable with a
delinquent act'' (which under the FSA means that ORR has probable cause
to believe that the unaccompanied child has committed a specified
offense). ORR believes it is appropriate to omit such language because
being ``chargeable'' with an offense is not a permissible reason for
placement in a secure facility identified by the TVPRA.\69\ Further,
because it is not a law enforcement agency, unlike the former INS, ORR
is not in a position to make determinations such as whether an
unaccompanied child is ``chargeable.'' Even without this language, ORR
believes this proposed provision is consistent with the substantive
criteria of the FSA. Furthermore, consistent with 8 U.S.C.
1232(c)(2)(A) (which does not list runaway risk as a permissible reason
for placement in a secure facility), ORR does not propose runaway risk
as a factor in determining placement in a secure facility, even though
that is a permissible ground under the FSA for placement in a secure
facility.
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\69\ See 8 U.S.C. 1232(c)(2)(A) (``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.'').
---------------------------------------------------------------------------
Second, ORR proposes in Sec. 410.1105(a)(3)(ii) that it may place
an unaccompanied child in a secure facility (that is not an RTC) if the
unaccompanied child, while in DHS or ORR custody, or while in the
presence of an immigration officer, ORR official, or ORR contracted
staff, has committed, or has made credible threats to commit, a violent
or malicious act (whether directed at the unaccompanied child or
others). The 2019 Final Rule at Sec. 410.203(a)(2) and paragraph 21B
of the FSA contain a similar provision, except that in contrast to
Sec. 410.203(a)(2) and the FSA, this proposed provision would include
acts committed in the presence of an ``ORR official or ORR contracted
staff.'' ORR believes that the addition of this language is appropriate
given that ORR officials and contracted staff would more often be in a
position to observe an unaccompanied child's behavior and actions and
to assess whether an unaccompanied child has committed, or made
credible threats to commit, the acts referenced in this provision.
Again, ORR does not believe this proposed change constitutes a
substantive deviation from the requirements of the FSA.
Third, ORR proposes at Sec. 410.1105(a)(3)(iii) that it may place
an unaccompanied child in a secure facility (that is not an RTC) if the
unaccompanied child has engaged, while in a restrictive placement, in
conduct that has proven to be unacceptably disruptive of the normal
functioning of the care provider facility, and removal is necessary to
ensure the welfare of the unaccompanied child or others, as determined
by the staff of the care provider facility (e.g., substance or alcohol
use, stealing, fighting, intimidation of others, or sexually predatory
behavior), and ORR determines the unaccompanied child poses a danger to
self or others based on such conduct. The 2019 Final Rule contained a
similar provision at Sec. 410.203(a)(3), which was based on paragraph
21C of the FSA. But in contrast to Sec. 410.203(a)(3) of the 2019
Final Rule and the FSA, the proposed provision requires that the
conduct at issue be engaged in while in a ``restrictive placement,''
rather than a ``licensed program.'' ORR believes that such disruptive
behavior should initially result in potential transfer to a heightened
supervision facility before placement in a secure facility (that is not
an RTC)--in other words, that disruptive behavior in a standard program
that is not a restrictive placement should not result in immediate
transfer, or ``step up,'' to such a secure facility. As discussed
above, the 2019 Final Rule was intended to implement the provisions of
the FSA that relate to HHS; however, ORR is proposing this change in
order to ensure that unaccompanied children in such circumstances are
stepped up to a more structured program rather than being immediately
placed in a secure facility. ORR believes this update is consistent
with its authorities under the HSA and TVPRA,\70\ and does not believe
it constitutes a substantive deviation from the requirements of the
FSA, which provides that unaccompanied children ``may'' be transferred
to secure facilities based on unacceptably disruptive conduct where
transfer is necessary to ensure the welfare of the unaccompanied child
or others but does not require such transfer.\71\
---------------------------------------------------------------------------
\70\ See, e.g., 8 U.S.C. 1232(c)(2)(A) (requiring that
unaccompanied children ``shall be promptly placed in the least
restrictive setting that is in the best interest of the child.'').
\71\ FSA at paragraph 21C.
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[[Page 68924]]
At proposed Sec. 410.1105(b), ORR outlines the policies and
criteria that it would apply in placing unaccompanied children in
heightened supervision facilities. The term ``heightened supervision
facility,'' as defined at proposed Sec. 410.1001, would be used in
place of the term ``medium secure'' facility provided in the FSA, and
in place of the term ``staff secure facility'' currently used by ORR in
its regulations and sub-regulatory guidance. ORR believes that the term
``heightened supervision facility,'' as defined in this proposed rule,
better reflects the nature and purpose of such facilities, which is to
provide care to unaccompanied children who require close supervision
but do not need placement at a secure facility, including an RTC. As
reflected in the proposed definition, heightened supervision facilities
maintain stricter security measures than a shelter such as intensive
staff supervision in order to provide supports, manage problem behavior
and prevent an unaccompanied child from running away. ORR proposes at
Sec. 410.1105(b)(1) that it may place unaccompanied children in this
type of facility either at initial placement (upon referral from
another agency or department of the Federal Government) or through a
transfer from the initial placement. Furthermore, at proposed Sec.
410.1105(b)(2), ORR proposes to codify factors it would consider in
determining whether to place unaccompanied children in a heightened
supervision facility. Specifically, ORR would consider if the
unaccompanied child (1) has been unacceptably disruptive to the normal
functioning of a shelter such that transfer is necessary to ensure the
welfare of the unaccompanied child or others; (2) is a runaway risk,
based on the criteria at proposed Sec. 410.1107; (3) has displayed a
pattern of severity of behavior, either prior to entering ORR custody
or while in ORR care, that requires an increase in supervision by
trained staff; (4) has a non-violent criminal or delinquent history not
warranting placement in a secure facility, such as isolated or petty
offenses as described previously; or (5) is assessed as ready for step-
down from a secure facility, including an RTC. ORR believes that each
of these proposed criteria identifies pertinent background and
behavioral concerns that may warrant heightened supervision, rather
than placement in a secure facility, including an RTC, consistent with
the purpose of heightened supervision facilities.
Proposed Sec. 410.1105(c) sets forth the criteria ORR would
consider for placing an unaccompanied child in an RTC, as defined at
proposed Sec. 410.1001. ORR would place an unaccompanied child at an
RTC only if it is the least restrictive setting that is in the best
interest of the unaccompanied child and appropriate to the
unaccompanied child's age and individualized needs, consistent with the
TVPRA at 8 U.S.C. 1232(c)(2)(A) (``an unaccompanied alien child shall
be promptly placed in the least restrictive setting that is in the best
interest of the child.''). Similar to other secure facilities and
heightened supervision facilities, ORR proposes that an unaccompanied
child may be placed at an RTC both as an initial placement upon
referral from another agency or department of the Federal Government,
and upon transfer from another care provider facility. In addition, ORR
proposes at Sec. 410.1105(c)(1) that unaccompanied children who have
serious mental or behavioral health issues may be placed in an RTC only
if the unaccompanied child is evaluated and determined to be a danger
to self or others by a licensed psychologist or psychiatrist consulted
by ORR or a care provider facility, which includes a determination by
clear and convincing evidence documented in the unaccompanied child's
case file or referral documentation by a licensed psychologist or
psychiatrist that an RTC is appropriate. This requirement is consistent
with the factors the Secretary of HHS may consider under the TVPRA at 8
U.S.C. 1232(c)(2)(A) in making placement determinations for
unaccompanied children and was also included in the 2019 Final Rule at
Sec. 410.203(a)(4).\72\ ORR also notes that when it determines whether
placement in an RTC, or any care provider facility is appropriate, it
considers the best interests not only of the unaccompanied child being
placed, but also the best interests of other unaccompanied children who
are housed at the proposed receiving care provider facility, including
their safety and well-being. ORR believes it is authorized to consider
these factors under the TVPRA.\73\ ORR also considers the safety of
care provider facility staff when making placement determinations for
unaccompanied children, consistent with its duty to oversee the
infrastructure and personnel of facilities in which unaccompanied
children reside.\74\ For an unaccompanied child with one or more
disabilities, consistent with section 504 of the Rehabilitation Act, 29
U.S.C. 794(a), the determination whether to place the unaccompanied
child in an RTC would need to consider whether reasonable modifications
to policies, practices, and procedures in the unaccompanied child's
current placement or any provision of auxiliary aids or services, could
sufficiently reduce the danger to the child or others. However, ORR is
not required to take any action that it can demonstrate would result in
a fundamental alteration in the nature of a program or activity.
Finally, consistent with its existing policies, ORR proposes at Sec.
410.1105(c)(1) that it would use the criteria for placement in a secure
facility described at proposed Sec. 410.1105(a) to assess whether the
unaccompanied child is a danger to self or others. ORR believes that it
is appropriate to apply these criteria in making this assessment in the
context of RTC placement, because all secure facilities (including
RTCs) are intended for unaccompanied children who pose a danger to self
and others (although RTCs are intended for unaccompanied children who
also have a serious mental health or behavioral health issue that
warrants placement in an RTC).
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\72\ See also Order Re Plaintiffs' Motion to Enforce Class
Action Settlement at *11, Flores vs. Sessions, No. 2:85-cv-04544,
(C.D. Cal. Jul. 30, 2018), ECF No. 470 (ordering ORR to transfer all
unaccompanied children placed at a particular RTC out of that
facility unless a licensed psychologist or psychiatrist determined
that a particular child posed a risk of harm to self or others).
\73\ 8 U.S.C. 1232(c)(2)(A) (``In making such placements, the
Secretary may consider danger to self, danger to the community, and
risk of flight.'').
\74\ See 6 U.S.C. 279(b)(1)(G).
---------------------------------------------------------------------------
Consistent with existing policies, under proposed Sec.
410.1105(c)(2), ORR would be able to place an unaccompanied child at an
out-of-network (OON) RTC when a licensed clinical psychologist or
psychiatrist consulted by ORR or a care provider facility has
determined that the unaccompanied child requires a level of care only
found in an OON RTC (either because the unaccompanied child has
identified needs that cannot be met within the ORR network of RTCs or
no placements are available within ORR's network of RTCs), or that an
OON RTC would best meet the unaccompanied child's identified needs.
Also consistent with existing policies, in these circumstances, even
though an unaccompanied child would be physically located at the OON
RTC, the unaccompanied child would remain in ORR legal custody. ORR
would monitor the unaccompanied child's progress and ensure the
unaccompanied child is receiving required services. OON RTCs are vetted
prior to placement via state licensing authorities to ensure that the
program is in good standing and is
[[Page 68925]]
complying with all applicable state welfare laws and regulations and
state and local building, fire, health, and safety codes. ORR also may
confer with other Federal agencies and non-governmental stakeholders
(e.g., the protection and advocacy (P&A) systems) when vetting OON RTCs
to determine, in its discretion, the appropriateness of such OON RTCs
for placement of unaccompanied children. ORR appreciates that P&As may
have valuable information relating to the vetting process because they
may have prior experience with certain facilities with respect to their
past care and treatment of individuals with disabilities (e.g.,
findings of abuse and neglect, compliance issues).
Under proposed Sec. 410.1105(c)(3), the criteria for placement in
or transfer to an RTC would also apply to transfers to or placements in
OON RTCs (that is, the clinical criteria considered in placing an
unaccompanied child at an RTC level of care would not change regardless
of whether the RTC is in ORR's network or OON). Proposed Sec.
410.1105(c)(3) would also permit care provider facilities to request
that ORR transfer certain unaccompanied children to RTCs. Proposed
Sec. 410.1601(d), discussed later in this preamble, further addresses
when a care provider facility may make such a request.
Section 410.1106 Unaccompanied Children Who Need Particular Services
and Treatment
Proposed Sec. 410.1106 would codify the requirements for ORR when
placing unaccompanied children assessed to have a need for particular
services, equipment, and treatment by staff. This section satisfies and
updates paragraph 7 of the FSA, which requires ORR to assess
unaccompanied children to determine if they have ``special needs,''
and, if so, to place such unaccompanied children, whenever possible, in
licensed programs in which ORR places unaccompanied children without
``special needs,'' but which provide services and treatment for such
``special needs.'' As indicated by the definition for ``special needs
unaccompanied child'' from the FSA and included above at proposed Sec.
410.1001, an unaccompanied child is considered to have ``special
needs'' if ORR determines that the unaccompanied child has a mental
and/or physical condition that requires particular services and
treatment by staff. ORR may determine that an unaccompanied child needs
particular services and treatment by staff for a variety of reasons
including, but not limited to, those delineated within the definition
of ``special needs unaccompanied child'' and specified in paragraph 7
of the FSA. For this reason, ORR is proposing this section without
limiting its scope to ``special needs unaccompanied child.'' ORR notes
that an unaccompanied child may need particular services and treatment
due to a disability, as defined at proposed Sec. 410.1001, but not all
unaccompanied children with disabilities necessarily require particular
services and treatment by staff. Likewise, an unaccompanied child does
not need to have been identified as having a disability to be
determined to require particular services and treatment to meet their
individualized needs.
To avoid confusion, ORR refers in this section to unaccompanied
children with individualized needs rather than using the outdated
``special needs'' terminology found in the FSA at paragraph 7. As noted
above regarding proposed Sec. 410.1103, the term ``special needs'' has
created confusion and may imply that in determining placement, ORR
considers only a limited range of needs that fall within a special
category. Instead, in assessing the appropriate placement of an
unaccompanied child, ORR considers any need it becomes aware of that is
specific to each unaccompanied child being assessed, regardless of the
nature of that need. The examples provided in this section of
individualized needs that may require particular services, equipment,
and treatment by staff are illustrative, and not exhaustive.
Furthermore, as also discussed above at proposed Sec. Sec. 410.1001
and 410.1103, ORR is concerned about using the term ``special needs''
given its association as a placeholder or euphemism for disability
whereas this section does not apply only to unaccompanied children with
disabilities who require particular services and treatment.
ORR also notes that this section incorporates the preference for
inclusive placements that serve unaccompanied children with a diversity
of needs, including the need for particular services or treatments,
whenever possible, as provided in paragraph 7 of the FSA, and
particular equipment. This section is distinct from, but in alignment
with, HHS' implementing regulation for section 504 of the
Rehabilitation Act of 1973 at 45 CFR 85.21(d) that prohibits
discrimination on the basis of disability by requiring that the agency
administer programs and activities in the most integrated setting
appropriate to the needs of individuals with disabilities. The most
integrated setting appropriate to the needs of an individual with a
disability is a setting that enables individuals with disabilities to
interact with individuals without disabilities to the fullest extent
possible.\75\
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\75\ 53 FR 25591, 25600 (July 8, 1988).
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Section 410.1107 Considerations When Determining Whether an
Unaccompanied Child Is a Runaway Risk for Purposes of Placement
Decisions
Proposed Sec. 410.1107 would codify factors that ORR considers in
determining whether an unaccompanied child is a runaway risk for
purposes of placement decisions. As described in Sec. 410.1001, the
FSA and ORR policy currently use the term ``escape risk,'' and ORR
proposes in this proposed rule to update the terminology to ``runaway
risk'' and also proposes to update the definition provided in the FSA.
ORR notes that the TVPRA provides that HHS ``may'' consider ``risk of
flight,'' among other factors, when making placement
determinations.\76\ As proposed, ORR would interpret ``risk of
flight,'' which is used in immigration law regarding an individual's
risk of not appearing for their immigration proceedings, as including
runaway risk. In its discretion, ORR considers these runaway risk
factors when evaluating whether to transfer an unaccompanied child to
another care provider facility, in accordance with proposed Sec.
410.1601. For example, an unaccompanied child may be transferred from a
non-secure level of care to a heightened supervision facility where
there is higher staff ratio and a secure perimeter (stepped up) if ORR
determines the unaccompanied child is a runaway risk in accordance with
proposed Sec. 410.1107.
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\76\ 8 U.S.C. 1232(c)(2)(A). Note that 8 U.S.C. 1232(c)(2)(A)
does not list risk of flight as a ground for placing an
unaccompanied child in a secure facility. Therefore, even though
paragraph 21.D of the FSA states that being an escape risk (or
runaway risk as proposed in this rule) is a ground upon which ORR
may place an unaccompanied child in a secure facility, ORR does not
propose in this rule that runaway risk is a basis for placement in a
secure facility.
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Proposed Sec. 410.1107(a) through (c) would codify the risk
factors to consider when evaluating whether an unaccompanied child is a
runaway risk for purposes of placement. These factors are consistent
with paragraph 22 of the FSA, which are also included in the 2019 Final
Rule at Sec. 410.204. Specifically, ORR proposes it would consider the
following factors: (a) whether the unaccompanied child is currently
under a final order of removal (i.e., the unaccompanied child has a
legal duty to report for deportation); (b) whether the unaccompanied
child's immigration history includes: (1) a prior
[[Page 68926]]
breach of bond, (2) a failure to appear before DHS or the immigration
court, (3) evidence that the unaccompanied child is indebted to
organized smugglers for their transport, or (4) a previous removal from
the U.S. pursuant to a final order of removal; and (c) whether the
unaccompanied child has previously absconded or attempted to abscond
from state or Federal custody. ORR notes that under paragraph 22(B) of
the FSA, a voluntary departure from the U.S. by the unaccompanied child
is also a risk factor. Based on ORR's experience in placing an
unaccompanied child, ORR proposes not to codify whether the child's
immigration history includes a voluntary departure because this factor
has not been relevant in determining whether the child is a runaway
risk.
ORR notes that paragraph 22 of the FSA provides a non-exhaustive
list of factors to consider when evaluating runaway
risk.77 78 Consistent with this language, as well as with
ORR's authority generally to consider runaway risk in making placement
determinations, ORR proposes additional factors at Sec. 410.1107(d)
and (e) for ORR to consider when determining whether an unaccompanied
child is a runaway risk for purposes of placement decisions. Proposed
Sec. 410.1107(d) would require ORR to consider whether the
unaccompanied child has displayed behaviors indicative of flight or has
expressed intent to run away. Under proposed Sec. 410.1107(e), ORR
would consider evidence that the unaccompanied child is indebted to,
experiencing a strong trauma bond to, or is threatened by a trafficker
in persons or drugs, in determining whether the unaccompanied child is
a runaway risk. ORR developed this proposal through its practical
experience of making runaway risk placement decisions and believes it
is appropriate to add as an additional factor to consider. ORR seeks
public comment on these proposed factors and welcomes feedback on other
factors ORR should or should not consider when determining if an
unaccompanied child is a runaway risk for purposes of placement
decisions.
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\77\ See FSA at paragraph 22 (``Factors to consider when
determining whether a minor is an escape-risk or not include, but
are not limited to . . .'').
\78\ Existing Sec. 410.204 also does not limit ORR to
considering just the factors listed in the regulation and states
``ORR considers, among other factors . . .''
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Section 410.1108 Placement and Services for Children of Unaccompanied
Children
At proposed Sec. 410.1108, ORR proposes the requirements for the
placement of children of unaccompanied children and services they would
receive while in ORR care. ORR believes that when unaccompanied
children are parents of children, it is in the best interests of the
children to be placed in the same facility as their unaccompanied
children parents. Accordingly, ORR proposes at Sec. 410.1108(a) to
codify its existing policy that it will place unaccompanied children
and their children together at the same care provider facilities,
except in unusual or emergency situations. ORR considered limiting this
proposal to the biological children of unaccompanied children; however,
at the time of intake and placement, it may not be known whether the
children are the biological children of the unaccompanied children.
Accordingly, ORR proposes to not limit this proposal to the biological
children of unaccompanied children and instead proposes broader
language to allow for flexibility in placing unaccompanied children and
their children to account for other situations (for example, the
unaccompanied child may not be the biological parent of a child but is
the child's caretaker).
Consistent with existing policy, and with its responsibility to
consider the best interests of children in making placement decisions,
ORR proposes that unusual or emergency situations would include, but
not be limited to: hospitalization or need for a specialized care or
treatment setting that cannot provide appropriate care for the child of
the unaccompanied child; a request by the unaccompanied child for
alternate placement of the child of the unaccompanied child; and when
the unaccompanied child is the subject of substantiated allegations of
abuse or neglect against the child of the unaccompanied child (or
temporarily in urgent cases where there is sufficient evidence of child
abuse or neglect warranting temporary separation for the child's
protection). ORR proposes to codify these requirements into regulation
at Sec. 410.1108(a)(1) through (3).
ORR is aware that children of unaccompanied children may not be
unaccompanied children within the definition provided in the HSA at 6
U.S.C. 279(g)(2). For example, a child born in the United States will
likely be a U.S. citizen at birth under section 1401(a) of the
Immigration and Nationality Act, 8 U.S.C. 1401(a), and the U.S.
Constitution, as amended, XIV section 2. Additionally, a noncitizen
child who is in the custody of a parent who is an unaccompanied child
who is available to provide care and physical custody, is not an
unaccompanied child. ORR understands that it has custody of the
unaccompanied child, consistent with its statutory authorities, and
that the unaccompanied child has custody of their child. Under the
proposed rule, ORR would not seek to place the parent and child in
different facilities or shelters except in the limited circumstances
noted above. ORR understands this to be consistent with its
responsibility to consider the interests of unaccompanied children.\79\
If the child who is in the custody of their unaccompanied child parent
has another parent who is a citizen present in the U.S., ORR would
consider whether it is in the best interests of the child to place the
child with the unaccompanied child parent or the parent who is a U.S.
citizen. ORR requests comments regarding this interpretation of its
authorities under the TVPRA and the HSA, because neither statute
expressly contemplates scenarios where an unaccompanied child is a
parent.
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\79\ See, e.g., 6 U.S.C. 279(b)(1)(B) (making ORR responsible
for ``ensuring that the interests of the child are considered in
decisions and actions relating to the care and custody of an
unaccompanied alien child'').
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Proposed Sec. 410.1108(b) describes requirements for providing
services to children of unaccompanied children while in ORR care. Under
proposed Sec. 410.1108(b)(1), children of unaccompanied children would
receive the same care and services as ORR provides to the unaccompanied
children, as appropriate, regardless of the children's immigration or
citizenship status. Additionally, U.S. citizen children of
unaccompanied children would be eligible for mainstream public benefits
and services to the same extent as other U.S. citizens (for example,
Medicaid). Application(s) for public benefits and services shall be
submitted on behalf of the U.S. citizen children of unaccompanied
children by the care provider facilities. This may include, but is not
limited to, helping file for birth certificates or other legal
documentation as necessary. Further, under proposed Sec.
410.1108(b)(2), utilization of those public benefits and services
should be exhausted to the greatest extent practicable for U.S. citizen
children of unaccompanied children before ORR-funded services are
utilized for these children.
Section 410.1109 Required Notice of Legal Rights
In proposed Sec. 410.1109(a), ORR would be required to promptly
provide each unaccompanied child in its custody with the information
described in Sec. 410.1109(a)(1) through (3) in a
[[Page 68927]]
language and manner the unaccompanied child understands. First, ORR
would require, under proposed Sec. 410.1109(a)(1), that unaccompanied
children in ORR custody be promptly provided with a state-by-state list
of free legal service providers compiled and annually updated by ORR
and that is provided to unaccompanied children as part of a Legal
Resource Guide for unaccompanied children. This proposed requirement is
consistent with TVPRA at 8 U.S.C. 1232(c)(5) (requiring that HHS
``ensure, to the greatest extent practicable and consistent with
section 292 of the Immigration and Nationality Act (8 U.S.C. 1362),
that all unaccompanied alien children who are or have been in the
custody of the Secretary or the Secretary of Homeland Security, and who
are not described in subsection (a)(2)(A), have counsel to represent
them in legal proceedings or matters and protect them from
mistreatment, exploitation, and trafficking,'' and that to the greatest
extent practicable HHS ``make every effort to utilize the services of
pro bono counsel who agree to provide representation to such children
without charge.''). In addition, the proposed requirement is consistent
with the HSA at 6 U.S.C. 279(b)(1)(I) (requiring ORR to compile,
update, and publish ``at least annually a state-by-state list of
professionals or other entities qualified to provide guardian and
attorney representation services for unaccompanied alien children'').
ORR notes that the list of free legal service providers may also be
compiled and updated by an ORR contractor or grantee.
Second, under proposed Sec. 410.1109(a)(2), ORR would also be
required to provide the following explanation of the right of potential
review: ``ORR usually houses persons under the age of 18 in the least
restrictive setting that is in an unaccompanied child's best interest,
and generally not in restrictive placements (which means secure
facilities, heightened supervision facilities, or residential treatment
centers). 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.'' This
requirement updates language described in the requirement to deliver a
similar notice under Exhibit 6 of the FSA,\80\ to reflect current
placement requirements detailed in this proposed rule. The FSA
language, for example, refers to the former INS, instead of ORR, and to
``detention facilities'' rather than restrictive settings or
placements.
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\80\ Exhibit 6 of the FSA provides the following notice
language: ``The INS 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 ask a federal judge
to review your case. You may call a lawyer to help you do this. If
you cannot afford a lawyer, you may call one from the list of free
legal services given to you with this form.''
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ORR also proposes at Sec. 410.1109(a)(3) that a presentation
regarding their legal rights would be provided to each unaccompanied
child as provided under proposed Sec. 410.1309(a)(2). We refer readers
to proposed Sec. 410.1309(a) for additional information regarding this
presentation. ORR would take appropriate steps to ensure that the
information it presents to unaccompanied children is communicated
effectively to individuals with disabilities, including through the
provision of auxiliary aids and services as required by section 504 of
the Rehabilitation Act of 1973 and HHS' implementing regulations at 45
CFR 85.51. ORR would also take reasonable steps to ensure that
individuals with limited English proficiency have a meaningful
opportunity to access information and participate in ORR programs,
including through the provision of interpreters or translated
documents. We request comments on steps ORR should take to ensure that
it provides effective communication access to unaccompanied children
who are individuals with disabilities. We also request comment on steps
ORR should take to ensure meaningful access to unaccompanied children
who are limited English proficient regarding information about and
participation in ORR programs.
Finally, under proposed Sec. 410.1109(b), consistent with ORR's
existing policy, ORR shall not engage in retaliatory actions against
legal service providers or any other practitioner because of advocacy
or appearance in an action adverse to ORR. ORR proposes this text,
notwithstanding the general presumption that government agencies and
officials act with integrity and regularity,\81\ to further express
ORR's intent to promote and protect unaccompanied children's ability to
access legal counsel. For discussion regarding the availability of
administrative review of ORR placement decisions, ORR refers readers to
proposed subpart J of this proposed rule.
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\81\ See, e.g., Nat'l Archives & Records Admin. v. Favish, 541
U.S. 157, 174 (2004).
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Subpart C--Releasing an Unaccompanied Child From ORR Custody
Section 410.1200 Purpose of This Subpart
This proposed subpart regards ORR's policies and procedures
regarding release, without unnecessary delay, of an unaccompanied child
from ORR custody to a vetted and approved sponsor. Release is defined
in subpart A as the ORR-approved transfer of an unaccompanied child
from ORR care and custody to a vetted and approved sponsor in the
United States. Accordingly, release does not include discharge for
other reasons, including but not limited to those such as the child
turning 18, attaining legal immigration status, or being removed to
their home country.
As discussed in this proposed subpart, once an unaccompanied child
is released by ORR to a sponsor, that unaccompanied child is no longer
in ORR's custody. The TVPRA distinguishes minors in HHS custody from
those released to ``proposed custodians'' determined by ORR to be
``capable of providing for the child's physical and mental well-
being.'' \82\ In addition, under the FSA, once an unaccompanied child
is released to a sponsor, the sponsor assumes custody.\83\ This subpart
includes the proposed process for determining that sponsors are able to
care for the child's physical and mental well-being.
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\82\ 8 U.S.C. 1232(c)(3)(A).
\83\ See, e.g., FSA at paragraph 15 (requiring sponsors to sign
an Affidavit of Support and an agreement to, among other things,
provide for the unaccompanied child's physical, mental, and
financial well-being); see also paragraph 19 (noting that in any
case where an unaccompanied child is not released to a sponsor, the
unaccompanied child ``shall remain in INS legal custody.'').
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Subpart C also proposes notice and appeal processes and procedures
that certain potential sponsors will be afforded. This NPRM proposes
that parents or legal guardians of an unaccompanied child who are
denied sponsorship of that unaccompanied child be afforded the ability
to appeal such denials. Because issues relating to procedures for non-
parent relatives are currently in litigation in the Lucas R. case, they
are not part of this rulemaking.
Section 410.1201 Sponsors to Whom ORR Releases an Unaccompanied Child
Proposed Sec. 410.1201 describes sponsors to whom ORR may release
an unaccompanied child and criteria that
[[Page 68928]]
ORR employs when assessing a potential sponsor. As discussed, the HSA
makes ORR responsible for making and implementing placement
determinations for unaccompanied children.\84\ In addition to these
statutory requirements, the FSA establishes a general policy favoring
release of unaccompanied children to sponsors, and further describes a
preferred order of release, which ORR follows as a matter of
policy.\85\
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\84\ See 6 U.S.C. 279(b)(1). See also 8 U.S.C. 1232(c)(2)(A).
\85\ See FSA at paragraph 14.
---------------------------------------------------------------------------
Consistent with its statutory authority and the FSA, proposed Sec.
410.1201(a) lists potential sponsors in order of release preference.
ORR notes that this order of preference reflects its strong belief
that, generally, placement with a vetted and approved family member or
other vetted and approved sponsor, as opposed to in an ORR care
provider facility, whenever feasible, is in the best interests of
unaccompanied children. Proposed Sec. 410.1201(a) would therefore
codify the following order of preference for release of unaccompanied
children: (1) to a parent; (2) to a legal guardian; (3) to an adult
relative; (4) to an adult individual or entity, designated by the
parent or legal guardian as capable and willing to care for the
unaccompanied child's well-being through a declaration signed by the
parent or legal guardian under penalty of perjury before an immigration
or consular officer, or through such other document(s) that
establish(es) to the satisfaction of ORR, in its discretion, the
affiant's maternity, paternity, or guardianship; (5) to a standard
program willing to accept legal custody of the unaccompanied child; or
(6) to 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 release to family members does not appear to be a
reasonable possibility. Possible scenarios in which ORR envisions (6)
may be applicable include, for example, foster parents or other adults
who have built or are building a relationship with an unaccompanied
child while in ORR care, such as a teacher or coach, and in which it is
possible to ensure that a healthy and viable relationship exists
between the unaccompanied child and proposed sponsor. Proposed Sec.
410.1202, discussed below, describes ORR's proposed sponsor suitability
assessment process, which includes an assessment of the potential
sponsor's previous and existing relationship with the unaccompanied
child.
Under proposed Sec. 410.1201(b), consistent with existing policy,
ORR would not disqualify potential sponsors based solely on their
immigration status. In addition, ORR proposes that it shall not collect
information on immigration status of potential sponsors for law
enforcement or immigration enforcement related purposes. ORR will not
share any immigration status information relating to potential sponsors
with any law enforcement or immigration related entity at any time. To
the extent ORR does collect information on the immigration status of a
potential sponsor, it would be only for the purposes of evaluating the
potential sponsor's ability to provide care for the child (e.g.,
whether there is a plan in place to care for the child if the potential
sponsor is undocumented and detained).
Proposed Sec. 410.1201(c) provides that, in making determinations
regarding the release of unaccompanied children to potential sponsors,
ORR shall not release unaccompanied children on their own recognizance.
Section 410.1202 Sponsor Suitability
Before releasing an unaccompanied child to a sponsor, ORR has a
responsibility to ensure that the sponsor has been determined to be
able to care for the child's physical and mental wellbeing and has not
engaged in activity that would indicate a potential risk to the
child.\86\ Further, under the FSA, ORR may require a positive result in
a suitability assessment of an individual or program prior to releasing
an unaccompanied child to that entity, which may include an
investigation of the living conditions in which the unaccompanied child
would be placed and the standard of care the child would receive,
verification of the identity and employment of the individuals offering
support, interviews of members of the household, and a home visit. The
FSA also provides that any such assessment should also take into
consideration the wishes and concerns of the minor. ORR believes that
this assessment of suitability may also include review of past criminal
history, if any, and fingerprinting, as discussed subsequently in this
section.
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\86\ See 8 U.S.C. 1232(c)(3)(A). See also FSA paragraph 17.
---------------------------------------------------------------------------
Consistent with statutory authorities and the FSA, and with
existing policy, proposed Sec. 410.1202(a) would require potential
sponsors to complete an application package to be considered as a
sponsor for an unaccompanied child. Application packages, in the
potential sponsor's native or preferred language, would be able to be
obtained from either the care provider facility or from ORR directly to
ensure sponsors have access to the application.
Also consistent with existing policy, proposed Sec. 410.1202(b)
establishes that suitability assessments will be conducted for all
sponsors prior to release of a child to a potential sponsor and
describes the minimum requirements for a suitability assessment.
Consistent with ORR's responsibilities under 8 U.S.C. 1232(c)(3)(A),
and with its current policies, suitability assessments would, at
minimum, consist of review of the proposed sponsor's application
package described in Sec. 410.1202(a), including verification of the
proposed sponsor's identity and the proposed sponsor's relationship to
the child. ORR may consult with the issuing agency (e.g., consulate or
embassy) of the sponsor's identity documentation to verify the validity
of the sponsor identity document presented and may also conduct a
background check on the proposed sponsor.
Proposed Sec. 410.1202(c) through (i) describe additional
requirements or discretionary provisions related to completion of a
suitability assessment. These proposed requirements are in addition to
those described at 8 U.S.C. 1232(c)(3)(A) (describing ``minimum''
requirements for suitability assessments), and ORR proposes them
consistent with its authority to implement policies with respect to the
care and placement of unaccompanied children as described at 6 U.S.C.
279(b)(1)(E). Proposed Sec. 410.1202(c) would provide ORR the
discretion to evaluate the overall living conditions into which the
unaccompanied child would be placed upon release to the potential
sponsor. Proposed paragraph (c) therefore provides that ORR may
interview members of the potential sponsor's household, conduct a home
visit or home study pursuant to proposed Sec. 410.1204, and conduct
background and criminal records checks, which may include biometric
checks such as fingerprint-based criminal record checks on a potential
sponsor and on adult household members, consistent with the TVPRA
requirement to make an independent finding that the proposed sponsor
has not engaged in any activity that would indicate a potential risk to
the child. Proposed Sec. 410.1202(c) also permits ORR to verify the
employment, income, or other information provided by the individuals
offering support. The TVPRA at 8 U.S.C. 1232(c)(3) does not require a
verification of the sponsor's employment. However, ORR is
[[Page 68929]]
proposing to include this as a permissible consideration as part of the
suitability assessment to ensure sponsors can show they have resources
to provide for the child's physical and mental well-being. Although ORR
believes this information may be relevant, it will not automatically
deny an otherwise qualified sponsor solely on the basis of low income
or employment status (either formal or informal). Finally, proposed
Sec. 410.1202(c) establishes that any suitability assessment also take
into consideration the wishes and concerns of the unaccompanied child,
consistent with FSA paragraph 17.
As part of a suitability assessment and determining whether a
proposed sponsor can care for not just an unaccompanied child's
physical well-being but also an unaccompanied child's mental well-
being, ORR proposes to include additional assessment components to
evaluate the environment into which the unaccompanied child may be
placed. Under proposed Sec. 410.1202(d), ORR would assess the nature
and extent of the sponsor's previous and current relationship with the
unaccompanied child and, if applicable, the child's family. ORR
proposes that it would be able to deny release of an unaccompanied
child to unrelated sponsors who have no pre-existing relationship with
the child or the child's family prior to the child's entry into ORR
custody. ORR intends that this proposed language be read consistently
with proposed Sec. 410.1201(a)(4), such that ORR may release an
unaccompanied child to an individual with no pre-existing relationship
with the child if the individual is designated by the child's parent or
legal guardian, but ORR would not be required to do so. Additionally,
under proposed Sec. 410.1202(e), ORR would consider the sponsor's
motivation for sponsorship; the opportunity for the potential sponsor
and unaccompanied child to have the opportunity to build a healthy
relationship while the child is in ORR care; the unaccompanied child's
preferences and perspective regarding release to the sponsor; and the
unaccompanied child's parent's or legal guardian's preferences and
perspective on release to the sponsor, as applicable.
Proposed Sec. 410.1202(f) specifies an unaccompanied child's risks
or specific, individual concerns that should be evaluated in
conjunction with ORR's evaluation of the child's current functioning
and strengths. ORR proposes that these shall include risks or concerns
such as: (1) whether the unaccompanied child is a victim of sex or
labor trafficking or other crime, or is considered to be at risk for
such trafficking due, for example, to observed or expressed current
needs, e.g., expressed need to work or earn money because of
indebtedness or financial hardship; (2) the child's history of
involvement with the criminal justice system or juvenile justice system
(including evaluation of the nature of the involvement, for example,
whether the child was adjudicated and represented by counsel, and the
type of offense), or gang involvement; (3) the child's history of
behavioral issues; (4) the child's history of violence; (5) any
individualized needs, including those related to disabilities or other
medical or behavioral/mental health issues; (6) the child's history of
substance use; and/or (7) the child is either a parent or is pregnant.
In proposed Sec. 410.1202(g), ORR establishes a non-exhaustive
list of factors that it would consider when evaluating a potential
sponsor's ability to ensure the physical or mental well-being of a
child. ORR proposes it would consider the potential sponsor's strengths
and resources in conjunction with any risks or concerns including: (1)
the potential sponsor's criminal background; (2) the potential
sponsor's current illegal drug use or history of abuse or neglect; (3)
the physical environment of the home; and/or (4) other child welfare
concerns. ORR notes that the term ``other child welfare concerns'' is
intentionally broad to allow for discretion and notes that the term may
include the wellbeing of any other unaccompanied children currently or
previously under the potential sponsor's care. Pursuant to section 504
of the Rehabilitation Act and HHS' implementing regulations at 45 CFR
part 85, ORR notes that it shall not discriminate against a qualified
individual with a disability when evaluating their ability to serve as
a sponsor. In addition, ORR notes that it does not consider these
listed risks or concerns as necessarily disqualifying to potential
sponsorship; however, in keeping with its responsibility to ensure the
best interest of the child, ORR must assess the extent to which any of
these risks or concerns could be detrimental to or seriously impede a
potential sponsor's ability to care for the unaccompanied child and the
possibility of safe release given thorough consideration of the
sponsor's specific situation and adaptation of a release plan to ensure
the unaccompanied child's well-being pursuant to proposed Sec.
410.1202(i).
Under proposed Sec. 410.1202(h), ORR would assess the potential
sponsor's understanding of the unaccompanied child's needs, plan to
provide the child with adequate care, supervision, and housing,
understanding and awareness of responsibilities related to compliance
with the UC's immigration court proceedings, school attendance, and
U.S. child labor laws and awareness of and ability to access community
resources.
Finally, under proposed Sec. 410.1202(i), ORR would develop a
release plan that could enable a safe release to the potential sponsor
through the provision of post-release services, if needed.
Section 410.1203 Release Approval Process
Section 410.1203 proposes ORR's process for approving an
unaccompanied child's release. Proposed Sec. 410.1203(a) reflects the
FSA requirement that ORR makes and records timely and continuous
efforts towards safe and timely release of unaccompanied children.
These efforts include intakes and admissions assessments and the
provision of ongoing case management services to identify potential
sponsors.
Under proposed Sec. 410.1203(b), if a potential sponsor is
identified, ORR would provide an explanation to both the unaccompanied
child and the potential sponsor of the requirements and procedures for
release.
Proposed Sec. 410.1203(c) details the information that a potential
sponsor must provide to ORR in the required sponsor application package
for release of the unaccompanied child. Proposed information
requirements include supporting information and documentation
regarding: the sponsor's identity; the sponsor's relationship to the
child; background information on the potential sponsor and the
potential sponsor's household members; the sponsor's ability to provide
care for the child; and the sponsor's commitment to fulfill the
sponsor's obligations in the Sponsor Care Agreement. The Sponsor Care
Agreement, which shall be made available in a potential sponsor's
native or preferred language pursuant to proposed Sec. 410.1306(f),
requires a potential sponsor to commit to: (1) provide for the
unaccompanied child's physical and mental well-being; (2) ensure the
unaccompanied child's compliance with DHS and immigration courts'
requirements; (3) adhere to existing Federal and applicable state child
labor and truancy laws; (4) notify DHS, EOIR at the Department of
Justice, and other relevant parties of changes of address; (5) provide
notice of initiation of any dependency proceedings or any risk to the
unaccompanied child as
[[Page 68930]]
described in the Sponsor Care Agreement; and (6) in the case of
sponsors other than parents or legal guardians, notify ORR of a child
moving to another location with another individual or change of
address. This provision also proposes that in the event of an emergency
(for example, a serious illness or destruction of the sponsor's home),
a sponsor may transfer temporary physical custody of the unaccompanied
child, but the sponsor must notify ORR as soon as possible and no later
than 72 hours after the transfer. ORR notes that this departs from the
2019 Final Rule and the FSA to the extent that ORR is not proposing to
require the sponsor to seek ORR's permission to transfer custody of the
unaccompanied child. This departure reflects that ORR does not retain
legal custody of an unaccompanied child after the child is released to
a sponsor; however, ORR retains an interest in knowing this information
for the provision of post-release services, tracking concerns related
to potential trafficking, and for potential future sponsor assessments
should the child's sponsor step forward to sponsor a different
child.\87\
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\87\ See, e.g., 6 U.S.C. 279(b)(2).
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Under proposed Sec. 410.1203(d), ORR would conduct a sponsor
suitability assessment consistent with the requirements of proposed
Sec. 410.1202.
Under proposed Sec. 410.1203(e), consistent with existing
policies, ORR would not release an unaccompanied child to any person or
agency it has reason to believe may harm or neglect the unaccompanied
child, or that it has reason to believe will fail to present the
unaccompanied child before DHS or the immigration courts when requested
to do so. For example, ORR would deny release to a potential sponsor if
the potential sponsor is not willing or able to provide for the
unaccompanied child's physical or mental well-being; the physical
environment of the home presents risks to the unaccompanied child's
safety and well-being; or the release of the unaccompanied child to
that potential sponsor would present a risk to him or herself or
others.
Furthermore, in proposed Sec. 410.1203(f), ORR shall educate the
potential sponsor about the needs of the unaccompanied child as part of
the release process and would also work with the sponsor to develop an
appropriate plan to care for the unaccompanied child if the child is
released to the sponsor. Such plans would cover a broad range of topics
including providing the unaccompanied child with adequate care,
supervision, access to community resources, housing, and education.\88\
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\88\ Regarding education, ORR understands that under the laws of
every state, children up to a certain age must attend school and
have a right to attend public school. Public schools may not refuse
to enroll children, including unaccompanied children, because of
their (or their parents or sponsors') immigration status or race,
color, or national origin. See, e.g., Plyler v. Doe, 457 U.S. 202
(1982) (finding that under the Equal Protection Clause of the
Fourteenth Amendment of the U.S. Constitution, a State may not deny
access to a basic public education to any child residing in the
State, whether present in the United States legally or otherwise).
Additionally, Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d et seq., and the Equal Educational Opportunity Act of 1974, 20
U.S.C. 1701 et seq., prohibit public schools from discriminating on
the basis of race, color, or national origin. ORR also understands
that school districts may not insist on documentation requirements
that effectively prevent enrollment of an unaccompanied child. See
42 U.S.C. 2000d; see also U.S. Dep't of Justice, Civil Rights
Division & U.S. Dep't of Education, Office for Civil Rights,
Information on the Rights of All Children to Enroll in School:
Questions and Answers for States, School Districts and Parents,
Answers 3, 5, 7, and 8 (rev. May 8, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201405.pdf.
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Section 410.1204 Home Studies
The TVPRA requires a home study be performed for the release of an
unaccompanied child in certain circumstances.\89\ In this section of
the proposed rule, therefore, ORR proposes both required and
discretionary home studies depending upon specific circumstances,
including for those circumstances in which the safety and well-being of
the child is in question.
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\89\ See 8 U.S.C. 1232(c)(3)(B).
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In proposed Sec. 410.1204(a), ORR establishes that, as part of the
sponsor suitability assessment, it may require a home study which
includes an investigation of the living conditions in which the
unaccompanied child would be placed, the standard of care the child
would receive, and interviews with the potential sponsor and others in
the sponsor's households. If ORR requires a home study, such home study
shall take place prior to the child's physical release.
In Sec. 410.1204(b), ORR proposes three circumstances in which a
home study shall be required. The first is under the conditions
identified in the TVPRA at 8 U.S.C. 1232(c)(3)(B): ``a home study shall
be conducted for a child who is a victim of a severe form of
trafficking in persons, a special needs child with a disability (as
defined in section 12102 of title 42), a child who has been a victim of
physical or sexual abuse under circumstances that indicate that the
child's health or welfare has been significantly harmed or threatened,
or a child whose proposed sponsor clearly presents a risk of abuse,
maltreatment, exploitation, or trafficking to the child based on all
available objective evidence.''
Consistent with existing policy, ORR also proposes other
circumstances in which it would require a home study. The second
circumstance in which a home study is proposed to be required is before
releasing any child to a non-relative sponsor who is seeking to sponsor
multiple children, or who has previously sponsored or sought to sponsor
a child and is seeking to sponsor additional children. The third
circumstance in which a home study is proposed to be required is before
releasing any child who is 12 years old or younger to a non-relative
sponsor. ORR believes that these latter two categories are consistent
with the statutory requirement that HHS determine that a proposed
sponsor ``is capable of providing for the child's physical and mental
well-being,'' \90\ to ``establish policies and programs to ensure that
unaccompanied alien children in the United States are protected from
traffickers and other persons seeking to victimize or otherwise engage
such children in criminal, harmful, or exploitative activity.'' \91\
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\90\ 8 U.S.C. 1232(c)(3)(A).
\91\ 8 U.S.C. 1232(c)(1).
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Under proposed Sec. 410.1204(c), ORR would have the discretion to
initiate home studies if it determines that a home study is likely to
provide additional information which could assist in determining that
the potential sponsor is able to care for the health, safety, and well-
being of the unaccompanied child.
Under proposed Sec. 410.1204(d), the care provider would inform a
potential sponsor whenever it plans to conduct a home study, explain
the scope and purpose of the study to the potential sponsor, and answer
questions the potential sponsor has about the process. In addition,
under this proposed paragraph, the home study would provide its report
to the potential sponsor if the release request is denied, as well as
any subsequent addendums if created.
Finally, proposed Sec. 410.1204(e) establishes that an
unaccompanied child for whom a home study is conducted shall receive
post-release services as described at Sec. 410.1210. This requirement
would be consistent with 8 U.S.C. 1232(c)(3)(B), which states that
``The Secretary of Health and Human Services shall conduct follow-up
services, during the pendency of removal proceedings, on children for
whom a home study was conducted and is authorized to conduct follow-up
[[Page 68931]]
services in cases involving children with mental health or other needs
who could benefit from ongoing assistance from a social welfare
agency.''
Section 410.1205 Release Decisions; Denial of Release to a Sponsor
Proposed Sec. 410.1205 would provide guidance for situations in
which ORR denies the release of an unaccompanied child to a potential
sponsor. Under proposed Sec. 410.1205(a), a sponsorship would be
denied if, as part of the sponsor assessment process described at
proposed Sec. 410.1202 or the release process described at proposed
Sec. 410.1203, ORR determines that the proposed sponsor is not capable
of providing for the physical and mental well-being of the
unaccompanied child or that the placement would result in danger to the
unaccompanied child or the community.
Under proposed Sec. 410.1205(b), if ORR denies release of an
unaccompanied child to a potential sponsor who is a parent or legal
guardian, ORR must notify the parent or legal guardian of the denial in
writing. Such Notification of Denial letter would include: (1) an
explanation of the reason(s) for the denial; (2) evidence and
information supporting ORR's denial decision, including the evidentiary
basis for the denial; (3) instructions for requesting an appeal of the
denial; (4) notice that the potential sponsor may submit additional
evidence, in writing before a hearing occurs, or orally during a
hearing; (5) notice that the potential sponsor may present witnesses
and cross-examine ORR's witnesses, if such witnesses are willing to
voluntarily testify; and (6) notice that the potential sponsor may be
represented by counsel in proceedings related to the release denial at
no cost to the Federal Government. Relatedly, in Sec. 410.1205(c), ORR
proposes that if a potential sponsor who is the unaccompanied child's
parent or legal guardian is denied, ORR shall inform the unaccompanied
child, the child advocate, and the unaccompanied child's attorney of
record or EOIR accredited representative (or if the unaccompanied child
has no attorney of record or EOIR accredited representative, the local
legal service provider) of that denial.
ORR proposes in Sec. 410.1205(d) that if the sole reason for
denial of release is a concern that the unaccompanied child is a danger
to themself or the community, ORR must send the unaccompanied child a
copy of the Notification of Denial letter, in a language that the child
understands, described at Sec. 410.1205(b). If the potential sponsor
who has been denied is the unaccompanied child's parent or legal
guardian and is not already seeking appeal of the decision, the
unaccompanied child may appeal the denial.
Proposed Sec. 410.1205(e) recognizes that unaccompanied children
may have the assistance of counsel, at no cost to the Federal
Government, with respect to release or the denial of release to a
proposed sponsor.
ORR notes that as part of the Lucas R. litigation, it is currently
subject to a preliminary injunction that includes certain requirements
regarding notification and appeal rights for individuals who have
applied to sponsor unaccompanied children, including potential sponsors
who are not an unaccompanied child's parent or legal guardian. ORR is
complying with the requirements of applicable court orders and has
issued sub-regulatory policy guidance to do so. Once the Lucas R.
litigation is resolved, ORR will evaluate whether further rulemaking is
warranted.
Section 410.1206 Appeals of Release Denials
Proposed Sec. 410.1206 would establish procedures for parents and
legal guardians of unaccompanied children to appeal a release denial.
ORR is responsible for making and implementing placement determinations
for unaccompanied children and must do so in a manner that protects the
best interest of the unaccompanied children, including ensuring they
are protected from traffickers and other persons seeking to victimize
or otherwise engage such children in criminal, harmful, or exploitative
activity.\92\ ORR also recognizes the strong interest of parents and
legal guardians in custody of their children. Consistent with its
statutory responsibilities and existing policy, ORR proposes to create
an administrative appeal process for parents and legal guardians who
are denied sponsorship of an unaccompanied child. Subject to the
availability of resources, as determined by ORR, ORR may consider
providing language services to parents and legal guardians during the
appeals process, if the parent or guardian is unable to obtain such
services on their own.
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\92\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c).
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Section 410.1206(a) proposes that parents and legal guardians of
unaccompanied children who are denied sponsorship by ORR may seek an
appeal of ORR's decision by submitting a written request to the
Assistant Secretary of ACF or the Assistant Secretary's neutral and
detached designee.
Proposed Sec. 410.1206(b) would provide that parents and legal
guardians of unaccompanied children who are denied sponsorship by ORR
may seek an appeal either with or without a hearing and pursuant to
processes described by ORR in agency guidance. ORR proposes that the
Assistant Secretary or their neutral and detached designee will
acknowledge the request for appeal within a reasonable time.
Additionally, proposed Sec. 410.1206(c) establishes a procedure
for the unaccompanied child to also appeal a release denial if the sole
reason for denial is a concern that the unaccompanied child poses a
danger to self or others. In such a case, ORR proposes that the
unaccompanied child may seek an appeal of the denial as described in
Sec. 410.1206(a). If the unaccompanied child expresses a desire to
appeal, the unaccompanied child may consult with their attorney of
record or a legal service provider for assistance with the appeal. The
unaccompanied child may seek such appeal at any time after denial of
release while still in ORR custody.
Section 410.1207 Ninety (90)-Day Review of Pending Release Applications
In the interest of the timely and efficient placement of
unaccompanied children with sponsors, proposed Sec. 410.1207 describes
a process to review release applications that have been pending for 90
days. Consistent with existing policy, proposed Sec. 410.1207(a) would
require ORR Federal staff, who supervise case management services
performed by ORR grantees and contractors, to review all pending
sponsor applications or Family Reunification Packets (FRP) for
unaccompanied children who have been in ORR custody for 90 days after
submission of the sponsor application or FRP in order to identify and
resolve the reasons that a release application remains pending in a
timely manner, as well as to determine possible steps to accelerate the
children's safe release.
Proposed Sec. 410.1207(b) would establish that, upon completion of
the review, UC Program case managers or other designated agency or care
provider staff must update the potential sponsor and unaccompanied
child on the status of the case and explain the reasons that the
release process is incomplete. ORR proposes that UC Program case
managers or other designated agency or care provider staff would work
with the potential sponsor, relevant stakeholders, and ORR to address
the portions of the
[[Page 68932]]
sponsorship application or FRP that remain unresolved.
Further, to ensure that timeliness of placement remains a priority,
for cases that are not resolved after the initial 90-Day Review, ORR
proposes that ORR Federal staff supervising the case management process
would conduct additional reviews at least every 90 days until the
pending sponsor application or FRP is resolved as described in Sec.
410.1207(c).
Section 410.1208 ORR's Discretion To Release an Unaccompanied Child to
the Unaccompanied Refugee Minors Program
Proposed Sec. 410.1208 describes specific eligibility criteria for
release of an unaccompanied child to the Unaccompanied Refugee Minors
(URM) Program. The TVPRA permits ORR to place unaccompanied children in
a URM Program, pursuant to section 412(d) of the Immigration and
Nationality Act, if a suitable family member is not available to
provide care.\93\ Proposed Sec. 410.1208(a) states that an
unaccompanied child may be eligible for services through the ORR
Unaccompanied Refugee Minors (URM) Program, including unaccompanied
children in the following categories: (1) Cuban and Haitian entrant as
defined in section 501 of the Refugee Education Assistance Act of 1980,
8 U.S.C. 1522 note and as provided for at 45 CFR 400.43; (2) an
individual determined to be a victim of a severe form of trafficking as
defined in 22 U.S.C. 7105(b)(1)(C); (3) an individual DHS has
classified as a Special Immigrant Juvenile (SIJ) under section
101(a)(27)(J) of the Immigration and Nationality Act (INA), 8 U.S.C.
1101(a)(27)(J), and who was either in the custody of HHS at the time a
dependency order was granted for such child or who was receiving
services pursuant to section 501(a) of the Refugee Education Assistance
Act of 1980, 8 U.S.C. 1522 note, at the time such dependency order was
granted; (4) an individual with U nonimmigrant status under 8 U.S.C.
1101(a)(15)(U), as authorized by TVPRA, pursuant to section 1263 of the
Violence Against Women Reauthorization Act of 2013, which amends
section 235(d)(4) of the TVPRA to add individuals with U nonimmigrant
status who were in ORR custody as unaccompanied children eligible for
the URM Program; or (5) other populations of children as authorized by
Congress.
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\93\ 8 U.S.C. 1232(c)(2)(A).
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With respect to unaccompanied children described in proposed
paragraph (a) of this section, under proposed Sec. 410.1208(b), ORR
would evaluate each case to determine whether it is in an unaccompanied
child's best interests to be referred to the URM Program.
At proposed Sec. 410.1208(c), ORR notes that when it discharges an
unaccompanied child pursuant to this section to receive services
through the URM Program, relevant requirements of the ORR Refugee
Resettlement Program regulations would apply, including the requirement
that the receiving entity establish legal responsibility of the
unaccompanied child, including legal custody or guardianship, under
state law.\94\ Under proposed Sec. 410.1208(c), until such legal
custody or guardianship is established, the ORR Director would retain
legal custody of the child.
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\94\ See 45 CFR 400.115.
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Section 410.1209 Requesting Specific Consent From ORR Regarding Custody
Proceedings
Proposed Sec. 410.1209 addresses the specific consent process and
is informed by the TVPRA. Specific consent is a process through which
an unaccompanied child in ORR custody obtains consent from HHS to have
a state juvenile court make decisions concerning the unaccompanied
child's placement or custody. As relevant to this proposed section, ORR
notes that the TVPRA modified section 101(a)(27)(J) of the Immigration
and Nationality Act, concerning SIJ classification.\95\ To obtain SIJ
classification under the TVPRA modifications, a child must be declared
dependent or legally committed to or placed under the custody of an
individual or entity by a state juvenile court. However, an
unaccompanied child in ORR custody who seeks to invoke the jurisdiction
of a state juvenile court to determine or alter their custody status or
placement must first receive ``specific consent'' from HHS to such
jurisdiction. For example, if an unaccompanied child wishes to have a
state juvenile court of competent jurisdiction, not HHS, decide to move
them out of HHS custody and into a state-funded foster care home, the
unaccompanied child must first receive ``specific consent'' from HHS to
go before the state juvenile court. If the unaccompanied child wishes
to go to state juvenile court to be declared dependent in order to
petition for SIJ classification (i.e., receive an ``SIJ-predicate
order''), the unaccompanied child does not need HHS' consent. Although
the TVPRA transferred authority to grant specific consent from DHS to
ORR, DHS retains sole authority over the ultimate determination on SIJ
classification.\96\
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\95\ See 8 U.S.C. 1101(a)(27)(J) (providing that ``no juvenile
court has jurisdiction to determine the custody status or placement
of an alien in the custody of the Secretary of Health and Human
Services unless the Secretary of Health and Human Services
specifically consents to such jurisdiction . . .''). See also 8
U.S.C. 1232(d)(2) (``All applications for special immigrant status
under section 101(a)(27)(J) of the Immigration and Nationality Act
(8 U.S.C. 1101(a)(27)(J)) shall be adjudicated by the Secretary of
Homeland Security not later than 180 days after the date on which
the application is filed.'').
\96\ Although the TVPRA refers to special immigrant ``status,''
see, e.g., 8 U.S.C. 1232(d), in this proposed rule ORR uses the term
special immigrant ``classification,'' consistent with current United
States Citizenship and Immigration Services (USCIS) policy. See
generally U.S. Citizenship and Immigration Services Policy Manual,
Vol. 6, Part J, Ch. 1, available at: https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-1.
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Proposed Sec. 410.1209(a) states that an unaccompanied child in
ORR custody is required to request specific consent from ORR if the
unaccompanied child seeks to invoke the jurisdiction of a state
juvenile court to determine or alter the child's custody status or
release from ORR custody.
Under proposed Sec. 410.1209(b), if an unaccompanied child seeks
to invoke the jurisdiction of a state juvenile court for a dependency
order so that they can petition for SIJ classification or to otherwise
permit a state juvenile court to establish jurisdiction regarding
placement, but does not seek the state juvenile court's jurisdiction to
determine or alter the child's custody status or release, the
unaccompanied child would not need to request specific consent from
ORR.
Proposed Sec. 410.1209(c) through (g) explain the process to make
a specific consent request to ORR. Under proposed Sec. 410.1209(c),
prior to a state juvenile court determining or altering the
unaccompanied child's custody status or release from ORR, attorneys or
others acting on behalf of an unaccompanied child would be required to
complete a request for specific consent. ORR proposes in Sec.
410.1209(d) that it would acknowledge receipt of the request within two
business days.
ORR proposes in Sec. 410.1209(e) that it will consider whether ORR
custody is required to: (1) ensure a child's safety; or (2) ensure the
safety of the community. As ORR does not consider runaway risk for
purposes of release, it does not intend to do so here for purposes of
adjudicating specific consent requests. ORR notes that such
requirements would be consistent with 8 U.S.C. 1232(c)(2)(A) (stating
that when making placement determinations, HHS
[[Page 68933]]
``may consider danger to self, danger to the community, and risk of
flight.'').
Under proposed Sec. 410.1209(f), ORR shall make determinations on
specific consent requests within 60 business days of receipt. ORR
proposes that it shall attempt to expedite urgent requests when
possible.
In Sec. 410.1209(g), ORR proposes that it shall inform the
unaccompanied child, the unaccompanied child's attorney, or other
authorized representative of the unaccompanied child of the decision on
the specific consent request in writing, along with the evidence used
to make the decision. Finally, proposed Sec. 410.1209(h) and (i)
detail procedures related to a request for reconsideration in the event
ORR denies specific consent. Under proposed Sec. 410.1209(h), the
unaccompanied child, the child's attorney of record, or EOIR accredited
representative of the child would be able to request reconsideration of
ORR's denial with the Assistant Secretary for ACF within 30 business
days of receipt of the ORR notification of denial of the request. The
unaccompanied child, the child's attorney, or the child's authorized
representative may submit additional (including new) evidence to be
considered with the reconsideration request.
Under proposed Sec. 410.1209(i), the Assistant Secretary for ACF
or designee would consider the request for reconsideration and any
additional evidence, and send a final administrative decision to the
unaccompanied child, the child's attorney, or the child's other
authorized representative, within 15 business days of receipt of the
request.
Section 410.1210 Post-Release Services
Proposed Sec. 410.1210 sets forth the requirements for post-
release services (PRS). The TVPRA authorizes, and in some cases
requires, HHS to provide PRS during the pendency of removal proceedings
for certain unaccompanied children.\97\ ORR provides PRS by funding
providers to facilitate access to relevant services. Generally, ORR
believes that providing necessary services after an unaccompanied
child's release from ORR care is essential to promote the child's
safety and well-being.
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\97\ See 8 U.S.C. 1232(c)(3)(B) (``The Secretary of Health and
Human Services shall conduct follow-up services, during the pendency
of removal proceedings, on children for whom a home study was
conducted and is authorized to conduct follow-up services in cases
involving children with mental health or other needs who could
benefit from ongoing assistance from a social welfare agency.'').
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Under proposed Sec. 410.1210(a)(1), consistent with existing
policy, care provider facilities would work with sponsors and
unaccompanied children to prepare them for the unaccompanied children's
safe and timely release, to assess the sponsors' ability to access
community resources, and to provide guidance regarding safety planning
and accessing services.
Proposed Sec. 410.1210(a)(2) and (3) describe circumstances when
ORR would be required to provide PRS to unaccompanied children.
Consistent with 8 U.S.C. 1232(c)(3)(B), under proposed Sec.
410.1210(a)(2), ORR would conduct follow-up services, or PRS, during
the pendency of removal proceedings for unaccompanied children for whom
a home study was conducted. ORR proposes to apply this requirement to
any case where a home study is conducted, including home studies that
are explicitly required by the TVPRA and those that ORR performs under
other circumstances as described at proposed Sec. 410.1204. Under
proposed Sec. 410.1210(a)(3), ORR proposes it would have the
discretion, to the extent ORR determines that appropriations are
available, to provide PRS to unaccompanied children with mental health
or other needs who would benefit from the ongoing assistance of a
community-based service provider, even if their case did not involve a
home study pursuant to proposed Sec. 410.1204. ORR notes that proposed
Sec. 410.1210(c) further lists certain situations where ORR may,
within its discretion, refer unaccompanied children for PRS. These
proposals expand upon the situations whereby ORR may provide PRS. ORR's
current practice, described in the ORR Guide at section 6.2, requires
ORR to provide PRS for an unaccompanied child whose sponsor required a
home study \98\ or for whom ORR determines the release is safe and
appropriate but the unaccompanied child and sponsor would benefit from
ongoing assistance from a community-based service provider. ORR also
proposes that PRS furnished to these unaccompanied children may include
home visits by the PRS provider. ORR seeks public comment on proposed
Sec. 410.1210(a)(2) and (3), particularly with respect to the possible
expansion of PRS to additional unaccompanied children.
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\98\ ORR Guide section 2.4.2 requires a home study before
releasing an unaccompanied child to a non-relative sponsor who is
seeking to sponsor: (1) multiple unaccompanied children; (2)
additional unaccompanied children and the non-relative sponsor has
previously sponsored or sought to sponsor an unaccompanied child; or
(3) unaccompanied children who are 12 years and under.
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ORR is aware of concerns that, in some cases, release of UC to
sponsors may be unduly delayed by a lack of available PRS providers and
services near the sponsor. Accordingly, ORR proposes in Sec.
410.1210(a)(4) that ORR would not delay the release of an unaccompanied
child if PRS are not immediately available (e.g., due to a referral
delay or waitlist for PRS). ORR notes that Sec. 410.1210(g) specifies
the timeframes in which PRS providers are required to start PRS for
unaccompanied children once they are released from ORR care.
Proposed Sec. 410.1210(b) lists the types of services that would
be available as part of PRS, as described in section 6.2.2 of the ORR
Guide. PRS providers would be required to ensure PRS are furnished in a
manner that is sensitive to the individual needs of the unaccompanied
child and in a way the child effectively understands regardless of
spoken language, reading comprehension, or disability to ensure
meaningful access for all eligible children, including those with
limited English proficiency. The comprehensiveness of PRS shall depend
on the extent appropriations are available. Specifically, ORR proposes
to codify the availability of PRS to support unaccompanied children and
sponsors in accessing services in the following areas: placement and
stability; immigration proceedings; guardianship; legal services;
education; medical services; individual mental health services; family
stabilization and counseling; substance use; gang prevention; education
about employment laws and workers' rights; and other specialized
services based on need and at the request of unaccompanied children. In
addition, ORR believes that PRS should specifically include service
areas such as: assisting in school enrollment, including connecting
unaccompanied children and sponsors to educational programs for
students with disabilities where appropriate; ensuring access to family
reunification and medical support services, including support and
counseling for the family and mental health counseling; supporting
sponsors in obtaining necessary medical records and necessary personal
documentation; and ensuring that sponsors of unaccompanied children
with medical needs receive support in accessing appropriate medical
care. ORR notes that these services areas are currently covered in
section 6.2.2 of the ORR Guide, which ORR is proposing to codify in
Sec. 410.1210(b). In conducting PRS, ORR and any entities through
[[Page 68934]]
which ORR provides PRS shall make reasonable modifications in their
policies, practices, and procedures if needed to enable released
unaccompanied children with disabilities to live in the most integrated
setting appropriate to their needs, such as with a sponsor. ORR is not
required, however, to take any action that it can demonstrate would
result in a fundamental alteration in the nature of a program or
activity. Additionally, ORR is aware of the importance of health
literacy for unaccompanied children to increase awareness of health
issues and to ensure continuity of care after their release, and so
proposes at Sec. 410.1210(b)(7) that PRS providers would be required
to provide unaccompanied children and sponsors with information and
services relevant to health-related considerations for the
unaccompanied child. ORR seeks public comment on this paragraph,
specifically on how to protect the comprehensiveness of PRS against
significant reductions in funding allocated to PRS while still
balancing the need to maintain funding for capacity during emergencies
and influxes. ORR also seeks public comment on what other services
should be within the scope of PRS.
Under proposed Sec. 410.1210(c), ORR proposes to require that
unaccompanied children with certain needs receive additional
consideration of those case-specific needs, and may be referred for PRS
to address those needs. Consistent with 8 U.S.C. 1232(c)(3)(B), ORR
proposes that unaccompanied children who would receive additional
consideration include those that are especially vulnerable
unaccompanied children and would include, but are not limited to:
unaccompanied children in need of particular services or treatment;
unaccompanied children with disabilities; unaccompanied children with
LGBTQI+ status; unaccompanied children who are adjudicated delinquent
or have been involved in, or are at high risk of involvement with, the
juvenile justice system; unaccompanied children who entered ORR care
after being separated from a parent or legal guardian by DHS;
unaccompanied children who are victims of human trafficking or other
crimes; unaccompanied children who are victims of worker exploitation;
unaccompanied children who are at risk for labor trafficking;
unaccompanied children enrolled in school who are chronically absent or
retained at the end of their school year; and certain parolees. ORR
typically considers certain parolees who are also unaccompanied
children to include Unaccompanied Afghan Minors, Unaccompanied
Ukrainian children, and other children who are in the UC program (such
as those eligible for humanitarian parole). ORR notes that under this
proposed section it may refer unaccompanied children for PRS, based on
these concerns, even after they have been released. Such referrals may
be made pursuant to ORR becoming aware of the situations listed above--
e.g., through post-release notifications of concern or calls to its
national call center. In that event, ORR would require the relevant PRS
provider to follow up with the child and assess whether PRS would be
appropriate.
Under proposed Sec. 410.1210(d), the PRS provider assigned to a
particular unaccompanied child's case would assess the released
unaccompanied child and sponsor for services needed and document the
assessment. The assessment would be developmentally appropriate for the
unaccompanied child, meaning the PRS provider would be required to
tailor it to the released unaccompanied child's level of cognitive,
physical, and emotional ability. Further, the assessment is proposed to
be trauma-informed, as defined in proposed Sec. 410.1001, and
consistent with the 6 Guidelines To A Trauma-Informed Approach
developed by the CDC in collaboration with the SAMHSA.\99\ During the
assessment, PRS providers should also identify any traumatic events and
symptoms by using validated screening measures developed for use when
screening and assessing trauma in children.
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\99\ CDC; SAMHSA. (2020, Sept. 17). 6 Guidelines To A Trauma-
Informed Approach. https://www.cdc.gov/orr/infographics/6_principles_trauma_info.htm. The six guidelines include: safety;
trustworthiness and transparency; peer support; collaboration and
mutuality; empowerment and choice; and cultural, historical, and
gender issues.
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ORR notes that under existing policy, it provides Safety and Well
Being Follow Up Calls (SWB calls) for all unaccompanied children who
are released to sponsors. The purpose of SWB calls is to determine
whether the child is still residing with the sponsor, is enrolled in or
attending school, is aware of upcoming court dates, and is safe. ORR
understands that these calls are authorized under 8 U.S.C.
1232(c)(3)(B) as a form of follow-up services. Although ORR plans to
continue conducting SWB calls under this proposed rule, nevertheless
ORR does not propose to codify them, to preserve its flexibility in
making continuous improvements to the reach and nature of the SWB calls
themselves, as well as in integrating SWB calls into the suite of
available PRS. ORR seeks public comment on whether it should consider
codifying SWB calls in this proposed rule or in future rulemaking and
whether ORR should integrate SWB call into PRS, including what factors
ORR should consider in integrating SWB calls into PRS.
In the final version of this rule, ORR is considering codifying a
requirement that the PRS provider's assessment must include a
recommendation regarding the ``level'' of PRS to be provided in direct
response to the unaccompanied child's and the sponsor's needs, based on
regular and repeated assessments. As described in proposed Sec.
410.1210(b), PRS include services in a range of service areas. But ORR
notes that unaccompanied children and sponsors receiving PRS do not
necessarily require follow-up services in every service area; rather,
unaccompanied children and sponsors who are referred for PRS have
individual needs reflecting their own circumstances. Similarly, ORR
believes that the appropriate level of involvement by the PRS provider
in coordinating the delivery of those services should accord with the
unaccompanied child's and/or sponsor's individual needs. Consistent
with this approach, ORR currently provides two ``levels'' of PRS--Level
One and Level Two. Level One services currently include assessments of
the needs of unaccompanied children and their sponsors in accessing
community services, including enrolling in school. Further,
unaccompanied children and their sponsors receive Level One services if
they do not require intensive case management as provided with Level
Two PRS. Unaccompanied children and their sponsors receive Level Two
services if they received Level One Services, and the PRS providers
assessed them to need more intensive case management, or the
unaccompanied children require a higher level of services as assessed
during the unaccompanied children's release from ORR care (e.g., during
the sponsor suitability assessment). Level Two services provide a
higher level of engagement between the PRS provider and the
unaccompanied child and sponsor and include regularly-scheduled home
visits (at least once a month), ongoing needs assessments of the
unaccompanied child, comprehensive case management, and access to
therapeutic support services. ORR is considering updating the levels of
PRS available to unaccompanied children and sponsors, from a framework
that contains two levels of
[[Page 68935]]
PRS to a framework that contains three levels, and further, ORR is
considering codifying this PRS level framework. To that end, ORR seeks
input from the public on one potential way to update its policies to
incorporate additional levels, as described below.
ORR is considering requiring the PRS provider's assessment to
include the level of PRS recommended to be provided be in direct
response to the unaccompanied child's and the sponsor's needs, based on
regular and repeated assessments. Under a revised framework for PRS
levels, ORR is considering an option in which Level One PRS would
include safety and well-being virtual check-ins; \100\ Level Two PRS
would cover case management services; and Level Three PRS would include
intensive home engagements. Additionally, ORR is considering requiring
that a released unaccompanied child may receive one or more levels of
PRS depending on the needs and circumstances of the unaccompanied child
and sponsor. ORR is considering codifying a requirement that PRS
providers would be required to furnish specific levels of PRS to
unaccompanied children required to receive PRS under the TVPRA to
ensure the safety and well-being of these unaccompanied children post-
release and their successful transition into the community. ORR is also
considering time limits on the availability of PRS at each level that
the PRS provider would furnish to the unaccompanied child and sponsor,
which at a minimum would be furnished for six (6) months after release.
For example, an unaccompanied child and sponsor referred to Level Three
PRS would receive this level of service for at least six months after
release, and ORR would subsequently assess every 30 days thereafter
whether services are still needed. Further, ORR is considering
requiring PRS providers to furnish levels of PRS to unaccompanied
children required to receive PRS under the TVPRA and their sponsors for
timeframes that may continue beyond the timeframes to be established
for the levels. ORR notes that the timeframes for providing PRS would
not extend past the circumstances in which PRS would be terminated as
specified in proposed Sec. 410.1210(h).
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\100\ ORR notes that care provider facilities currently conduct
safety and well-being follow-up calls 30 days after the
unaccompanied child's release date.
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Under proposed Sec. 410.1210(e)(1), the PRS provider would, in
consultation with the unaccompanied child and sponsor, decide the
appropriate methods, timeframes, and schedule for ongoing contact with
the released unaccompanied child and sponsor based on the level of need
and support needed. PRS providers would be required in proposed Sec.
410.1210(e)(2) to make, at a minimum, monthly contact with their
assigned released unaccompanied children and their sponsors, either in
person or virtually for six months after release. ORR is considering
limiting the minimum monthly contact to unaccompanied children and
sponsors receiving Level Two and/or Level Three PRS. ORR seeks public
comment on this proposal including consideration for applicable factors
that should be included in determining how often PRS providers would be
required to contact their assigned unaccompanied children and sponsors
after release. Under proposed Sec. 410.1210(e)(3), PRS providers would
be required to document all ongoing check-ins and in-home visits as
well as the progress and outcomes of those home visits.
Under proposed Sec. 410.1210(f)(1), PRS providers would work with
released unaccompanied children and their sponsors to ensure they can
access community resources. ORR has opted not to enumerate ways that
PRS providers could comply with this proposed requirement, because the
nature of such assistance would vary by case. But as examples, ORR
anticipates that PRS providers could assist unaccompanied children and
sponsors with issues such as making appointments; communicating
effectively with their service provider; requesting interpretation
services, if needed; understanding a service's costs, if applicable;
enrollment in school; for younger children, enrollment in child care
where needed; for three-and four-year old children, enrollment in
preschool where accessible; and other issues relevant to accessing
relevant services. ORR also anticipates that PRS providers would assist
the released unaccompanied children and sponsors in accessing the
following community-based resources: legal services; education and
English classes; youth- and community-based programming; medical care
and behavioral healthcare; services related to the unaccompanied
children's cultural and other traditions; and supporting the
unaccompanied children's independence and integration.
Under proposed Sec. 410.1210(f)(2), PRS providers would be
required to document any community resource referrals and their
outcomes.
ORR proposes to codify at Sec. 410.1210(g) timeframes for when PRS
providers would be required to start PRS. ORR notes that although the
TVPRA mandates PRS in certain cases, it does not address the timing of
providing PRS. ORR proposes to codify in Sec. 410.1210(g)(1) its
existing policy from section 6.2.3 of the ORR Guide that specifies a
timeframe for the delivery of PRS to released unaccompanied children
who are required to receive PRS pursuant to the TVPRA at 8 U.S.C.
1232(c)(3)(B). As proposed, PRS providers would be required, to the
greatest extent practicable, to start services within two (2) days of
the unaccompanied children's release from ORR care. PRS shall start no
later than 30 days after release if PRS providers are unable to start
services within two (2) days of release. Further, at Sec.
410.1210(g)(2), ORR proposes to codify its policy from section 6.2.3 of
the ORR Guide that for released unaccompanied children who are referred
to PRS but who are not mandated to receive PRS following a home study,
PRS providers would be required, to the greatest extent practicable, to
start services within two (2) days of accepting a referral.
Proposed Sec. 410.1210(h) describes the circumstances required for
termination of PRS, which are based on ORR's existing policy at section
6.2.3 of the ORR Guide. At Sec. 410.1210(h)(1), ORR would require that
PRS for an unaccompanied child required to receive PRS pursuant to the
TVPRA at 8 U.S.C. 1232(c)(3)(B) would continue until the unaccompanied
child turns 18 or the unaccompanied child is granted voluntary
departure, immigration status, or the child receives an order of
removal. In the event the unaccompanied child is granted voluntary
departure or receives an order of removal, PRS would be discontinued
until the child is repatriated, and PRS would end once the
unaccompanied child's case is closed. Under proposed Sec.
410.1210(h)(2), ORR would require that PRS for an unaccompanied child
receiving PRS, but who is not required to receive PRS following a home
study, would continue for not less than six months or until the
unaccompanied child turns 18, whichever occurs first; or until the PRS
provider assesses the unaccompanied child and determines PRS are no
longer needed, but in that case for not less than six months.
Finally, proposed (i) describes records and reporting requirements
for PRS providers. Keeping accurate and confidential records is
important to ensure the security of any information the PRS provider
documents about the unaccompanied child and sponsor. Accordingly, under
proposed Sec. 410.1210(i)(1)(i), ORR would require
[[Page 68936]]
PRS providers to maintain comprehensive, accurate, and current case
files that are kept confidential and secure, and that are accessible to
ORR upon request. PRS providers would be required to keep all case file
information together in the PRS provider's physical and electronic
files. Section 410.1210(i)(1)(ii) would also require PRS providers to
upload all documentation related to services provided to unaccompanied
children and sponsors to ORR's case management system, as available,
within seven (7) days of completion of the services.
To prevent unauthorized access to electronic and paper records,
proposed Sec. 410.1210(i)(2)(i) would require PRS providers establish
and maintain written policies and procedures for organizing and
maintaining the content of active and closed case files. Under proposed
Sec. 410.1210(i)(2)(ii), prior to providing PRS, PRS providers would
be required to have established administrative and physical controls to
prevent unauthorized access to the records that include keeping
sensitive health information in a locked space when not in use. ORR
believes that any information collected from the unaccompanied child or
sponsor should not be shared for any other purposes except for
coordinating services for them. ORR therefore proposes to codify a
requirement at Sec. 410.1210(i)(2)(iii) that PRS providers may not
release records to any third party without the prior approval of ORR.
If a PRS provider is no longer providing PRS for ORR, ORR proposes
further that the PRS provider would be required to provide all active
and closed case file records in their original format to ORR according
to ORR's instructions.
Proposed Sec. 410.1210(i)(3) sets forth requirements to protect
the privacy of all unaccompanied children receiving PRS. Under proposed
Sec. 410.1210(i)(3)(i), PRS providers would be required to have a
written policy and procedure that protects the sensitive information of
released unaccompanied children from access by unauthorized users, such
as encrypting electronic communication (including, but not limited to,
email and text messaging) containing sensitive healthcare or
identifying information of released unaccompanied children. PRS
providers would be required under proposed Sec. 410.1210(i)(3)(ii) to
explain to released unaccompanied children and their sponsors how,
when, and under what circumstances sensitive information may be shared
during the course of their PRS. PRS providers would also be required to
have appropriate controls on information sharing within the PRS
provider network. ORR believes these controls are necessary to ensure
that sensitive information is not exploited by unauthorized users to
the detriment of the released unaccompanied children.
ORR proposes that if a PRS provider is concerned about the
unaccompanied child's safety and well-being, it must notify ORR and
other appropriate agencies of such concerns. Proposed Sec.
410.1210(i)(4)(i) covers the procedures and requirements regarding such
notifications of concern (NOC). A PRS provider concerned about an
unaccompanied child's safety and well-being would be required to
document and report a NOC to ORR and, as applicable, to other
investigative agencies (e.g., law enforcement or child protective
services). Consistent with section 6.1 of the ORR Guide, ORR
anticipates that situations when PRS providers would submit a NOC would
include: an emergency; a current case of human trafficking; abuse,
abandonment, neglect, and maltreatment; possible exploitative
employment situation; kidnapping, disappearances, or a runaway; alleged
criminal activity; child protection services involvement; potential
fraud, such as document fraud or fees charged for services that are to
be provided free of charge; unaccompanied child behavioral incident
that raises safety concern; media attention; sponsor declined services;
contact or involvement with organized crime; PRS provider unable to
contact the unaccompanied child within 30 days of release; and when PRS
provider is providing services to an unaccompanied child, loses contact
with that child, and there are safety concerns.
Additionally, under proposed Sec. 410.1210(i)(4)(ii), a PRS
provider would be required to submit a NOC to ORR within 24 hours of
first knowledge or suspicion of events raising concerns about the
unaccompanied child's safety and well-being, and to document the NOC.
Proposed Sec. 410.1210(i)(5) would codify requirements for PRS
providers regarding case closures. ORR proposes that a case file be
formally closed when the PRS are terminated by ORR, and that ORR would
supply instructions, including relevant forms, that the PRS provider
would be required to follow when closing out a case. For example,
similar to current practice, ORR anticipates that it may require PRS
providers to complete a case closure form and upload it to ORR's online
case management system within 72 hours of a case's closure.
Subpart D--Minimum Standards and Required Services
Section 410.1300 Purpose of This Subpart
In order to ensure that all unaccompanied children receive the same
minimum services and at least a specified level of quality of those
services, ORR is proposing a set of minimum standards and required
services. ORR proposes to establish these standards and requirements
consistent with its authorities at 6 U.S.C. 279(b)(1) (making ORR
responsible for, among other things, ensuring that the interest of
unaccompanied children are considered in decisions and actions relating
to their care and custody, implementing policies with respect to the
care and placement of unaccompanied children, and overseeing the
infrastructure and personnel of facilities in which unaccompanied
children reside), and 8 U.S.C. 1232(c) (requiring HHS to establish
policies and programs to ensure that unaccompanied children are
protected from certain risks, and requiring placement of unaccompanied
children in the least restrictive setting that is in their best
interest). As described at proposed Sec. 410.1300, the purpose of this
subpart would be to establish the standards and services that care
provider facilities must meet and provide in keeping with the
principles of treating unaccompanied children in ORR care with dignity,
respect and special concern for their particular vulnerability. ORR
welcomes public comment on this proposal.
Section 410.1301 Applicability of This Subpart
ORR believes that care provider facilities serving unaccompanied
children should be required to meet standards and requirements tailored
to their particular placement setting so that children receive at least
the same standard of care within a given placement setting. In proposed
Sec. 410.1301, ORR proposes to apply these care provider facility
standards to all standard programs and to non-standard programs where
specified.
Section 410.1302 Minimum Standards Applicable to Standard Programs
In proposed Sec. 410.1302, ORR proposes minimum standards of care
and services applied to standard programs; these standards closely
reflect the minimum standards of care listed in Exhibit 1 of the FSA,
which ORR believes are consistent with the concern for unaccompanied
children's interests expressed in the HSA and TVPRA.
[[Page 68937]]
Under proposed Sec. 410.1302(a), ORR would require standard
programs be licensed by an appropriate state or Federal agency, or meet
other requirements specified by ORR if licensure is unavailable in a
state to programs providing services to unaccompanied children, to
provide residential, group, or foster care services for dependent
children. ORR is including this requirement to ensure unaccompanied
children are cared for in facilities that are safe and sanitary, and
that the facilities have needed oversight. Additionally, because there
are other state and local laws and other ORR requirements that are
critical to ensuring the safe and sanitary conditions at care provider
facilities, ORR would further require, in proposed Sec. 410.1302(b),
that standard programs comply with all applicable state child welfare
laws and regulations and all state and local building, fire, health and
safety codes, or other requirements specified by ORR if licensure is
unavailable in their state to standard programs providing services to
unaccompanied children. In many instances, ORR requirements exceed
requirements of state law, and a provider can comply with both without
acting inconsistent with either. If there is a potential conflict
between ORR's regulations and state law, ORR will review the
circumstances to determine how to ensure that it is able to meet its
statutory responsibilities. It is important to note, however, that if a
State law or license, registration, certification, or other requirement
conflicts with an ORR employee's duties within the scope of their ORR
employment, the ORR employee is required to abide by their Federal
duties.
In order to ensure that each unaccompanied child receives the same
minimum services that are necessary to support their safety and
wellbeing for daily living while in ORR care, under proposed Sec.
410.1302(c), ORR would establish that the services that standard
programs must provide or arrange for each unaccompanied child in care.
Under proposed Sec. 410.1302(c)(1), ORR would establish minimum
requirements related to the provision of proper physical care and
maintenance, including suitable living accommodations, food, drinking
water, appropriate clothing, personal grooming and hygiene items,
access to toilets and sinks, adequate temperature control and
ventilation, and adequate supervision to protect unaccompanied children
from others. ORR is additionally proposing to require that food be of
adequate variety, quality, and in sufficient quantity to supply the
nutrients needed for proper growth and development according to the
USDA Dietary Guidelines for Americans,\101\ and appropriate for the
child and activity level, and that drinking water is always available
to each unaccompanied child.
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\101\ Dietary Guidelines for Americans. Available at https://www.dietaryguidelines.gov/current-dietary-guidelines.
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ORR believes that the unique needs and background of each
unaccompanied child should be assessed by standard programs to ensure
that these needs are being addressed and supported by the standard
program. Therefore, under proposed Sec. 410.1302(c)(2), and consistent
with ORR's existing policy and practice, ORR would require that each
unaccompanied child receive an individualized needs assessment that
includes: various initial intake forms; essential data relating to
identification and history of the unaccompanied child and their family;
identification of any special needs the unaccompanied child may have,
including any specific problems that appear to require immediate
intervention; an education assessment and plan; whether an indigenous
language speaker; an assessment of family relationships and interaction
with adults, peers and authority figures; a statement of religious
preference and practice; assessment of personal goals, strengths, and
weaknesses; and identifying information regarding immediate family
members, other relatives, or friends who may be residing in the United
States and may be able to assist in the safe and timely release of the
unaccompanied child to a sponsor. ORR notes that the use of ``special
needs'' in this paragraph is being included to match Appendix 1 of the
FSA; it is ORR's preference, for the reasons articulated in the
preamble to Sec. Sec. 410.1103 and 410.1106, to update the language to
``individualized needs,'' and solicits comments on such substitution.
Access to education services for unaccompanied children in care
from qualified professionals is critical to avoid lost instructional
time while in care and ensure unaccompanied children are receiving
appropriate social, emotional and academic supports and services. Under
proposed Sec. 410.1302(c)(3), ORR would require standard programs to
provide educational services appropriate to the unaccompanied child's
level of development, communication skills, and disability, if
applicable. ORR believes that this requirement helps ensure that
educational services are tailored to meet the educational and
developmental needs of unaccompanied children, including children with
disabilities who may require program modifications (such as specialized
instruction), reasonable modifications, or auxiliary aids and services.
ORR is also proposing that educational services are required to take
place 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). The educational
services must include instruction and educational and other reading
materials in such languages as needed. Basic academic areas must
include science, social studies, math, reading, writing and physical
education. The services must provide unaccompanied children with
appropriate reading materials in languages other than English and
spoken by the unaccompanied children in care for use during their
leisure time. ORR notes that under 45 CFR 85.51, care provider
facilities shall also ensure effective communication with unaccompanied
children with disabilities. This means the communication is as
effective as communication with children without disabilities in terms
of affording an equal opportunity to participate in the UC Program and
includes furnishing appropriate auxiliary aids and services such as
qualified sign language interpreters, Braille materials, audio
recordings, note-takers, and written materials, as appropriate for the
unaccompanied child. ORR also notes that it is specifying additional
staffing requirements inclusive of the provision of educational and
other services proposed under Sec. 410.1305.
ORR strongly believes that time for recreation is essential to
supporting the health and wellbeing of unaccompanied children. Under
proposed Sec. 410.1302(c)(4), ORR would require standard programs to
have a recreation and leisure time plan that includes daily outdoor
activity, weather permitting, and at least one hour per day of large
muscle activity and one hour per day of structured leisure time
activities, which does not include time spent watching television.
Activities must be increased to at least three hours on days when
school is not in session.
The psychological and emotional wellbeing of unaccompanied children
are an important component of their overall health and wellbeing, and
therefore, consistent with existing policy and practice, ORR is
proposing that these needs must be met by standard programs. Under
proposed Sec. 410.1302(c)(5), ORR would require
[[Page 68938]]
standard programs to provide counseling and mental health supports to
unaccompanied children that includes at least one individual counseling
session per week conducted by certified counseling staff with the
specific objectives of reviewing the unaccompanied child's progress,
establishing new short and long-term objectives, and addressing both
the developmental and crisis-related needs of each unaccompanied child.
Group counseling sessions are another way that the psychological and
emotional wellbeing of unaccompanied children can be supported while in
ORR care. Therefore, ORR is proposing to require under Sec.
410.1302(c)(6) that group counseling sessions are provided at least
twice a week. These sessions can be informal and can take place with
all unaccompanied children present, providing a time when new
unaccompanied children are given the opportunity to get acquainted with
the staff, other children, and the rules of the program. Group
counseling sessions can provide an open forum where each unaccompanied
child has an opportunity to speak and discuss what is on their minds
and to resolve problems. Group counseling sessions can be informal and
designed so that unaccompanied children do not feel pressured to
discuss their private issues in front of other children. Daily program
management may be discussed at group counseling sessions, allowing
unaccompanied children to be part of the decision-making process
regarding recreational and other program activities, for example. In
addition, ORR notes that additional mental health and substance use
disorder treatment services are provided to unaccompanied children
based on their medical needs, including specialized care, as
appropriate, and in person and virtual options, depending on what best
fits the child's needs.
Under proposed Sec. 410.1302(c)(7), ORR would require that
unaccompanied children receive 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. ORR believes these services are
important to supporting the social development and meeting the cultural
needs of unaccompanied children in standard programs.
Establishing an admissions process that includes assessments that
unaccompanied children should receive upon admission to a standard
program helps ensure the immediate needs of unaccompanied children are
met in a consistent way, that other needs are identified and can be
supported while in ORR care, and that all unaccompanied children are
provided a standardized orientation and information about their care in
ORR custody. ORR is therefore proposing to require in proposed Sec.
410.1302(c)(8)(i) that upon admission standard programs must address
unaccompanied children's immediate needs for food, hydration, and
personal hygiene needs including the provision of clean clothing and
bedding. Under proposed Sec. 410.1302(c)(8)(ii), standard programs
must conduct an initial intakes assessment covering biographic, family,
migration, health history, substance use, and mental health history of
the unaccompanied child. If the unaccompanied child's responses to
questions during any examination or assessment indicate the possibility
that the unaccompanied child may have been a victim of human
trafficking or labor exploitation, the care provider facility must
notify the ACF Office of Trafficking in Persons within twenty-four (24)
hours. Care providers must also provide unaccompanied children with a
comprehensive orientation in formats accessible to all children
regarding program intent, services, rules (provided in writing and
orally), expectations, the availability of legal assistance,
information about U.S. immigration and employment/labor laws, and
services from the Office of the Ombuds that are proposed in Sec.
410.2002 in simple, non-technical terms and in a language and manner
that the child understands, if possible, under proposed Sec.
410.1302(c)(8)(iii). In conjunction with services supporting visitation
and contact with family members required under proposed Sec.
410.1302(c)(10), newly admitted unaccompanied children would receive
assistance with contacting family members, following ORR guidance and
the standard program's internal safety procedures under proposed Sec.
410.1302(c)(8)(iv). ORR notes that medical needs upon admission are
required to be assessed comprehensively under Sec. 410.1307. Finally,
ORR notes that standard programs are required under existing Sec.
411.33 to provide orientation information related to sexual abuse and
sexual harassment and must follow 45 CFR part 411, subpart E, regarding
assessment of an unaccompanied child's risk of sexual victimization and
abusiveness.
ORR believes the cultural, religious, and spiritual needs of
unaccompanied children should be provided for while in ORR care.
Therefore, under proposed Sec. 410.1302(c)(9) ORR would require that
standard programs, whenever possible, provide access to religious
services of an unaccompanied child's choice, celebrating culture-
specific events and holidays, being culturally aware in daily
activities as well as food menus, choice of clothing, and hygiene
routines, and covering various cultures in educational services. ORR
notes that it operates the UC Program in compliance with the
requirements of the Religious Freedom Restoration Act and other
applicable Federal conscience protections, as well as all other
applicable Federal civil rights laws and applicable HHS
regulations.\102\
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\102\ See 45 CFR part 87.
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Under proposed Sec. 410.1302(c)(10), ORR would require standard
programs to provide unaccompanied children with visitation and contact
with family members (regardless of their immigration status) which is
structured to encourage such visitation, such as offering visitation
and contact at regular, scheduled intervals throughout the week.
Standard programs should provide unaccompanied children with at least
15 minutes of phone or video contact three times a week with parents
and legal guardians, other family members, and caregivers located in
the United States and abroad, in a private space that ensures
confidentiality and at no cost to the unaccompanied child, parent,
legal guardian, family member, or caregiver. ORR emphasizes that this
is the minimum amount of phone or video time that standard programs
must provide to unaccompanied children and that standard programs may
provide additional time over and above this requirement, like daily
phone or videos calls. Standard programs would also be required to
respect the unaccompanied children's privacy during visitation while
reasonably preventing unauthorized release of the unaccompanied
children. ORR notes that standard programs should also encourage in-
person visitation between unaccompanied children and parents, legal
guardians, family members, or caregivers (unless there is a documented
reason to believe there is a safety concern) and have policies in place
to ensure the safety and privacy of unaccompanied children and staff,
such as an alternative public place for visits.
To facilitate the safe and timely release of unaccompanied children
to sponsors or their family, under proposed Sec. 410.1302(c)(11) ORR
would require standard programs to assist with family unification
services designed to identify and verify relatives in the
[[Page 68939]]
United States as well as in foreign countries and assistance in
obtaining legal guardianship when necessary for release of the
unaccompanied children.
Under proposed Sec. 410.1302(c)(12), ORR would require standard
programs to provide unaccompanied children with information on legal
services, including the availability of free legal assistance, and that
they may be represented by counsel at no expense to the government; the
right to a removal hearing before an immigration judge; the ability to
apply for asylum with United States Citizenship and Immigration
Services (USCIS) in the first instance; and the ability to request
voluntary departure in lieu of removal. These services are foundational
to ensuring that unaccompanied children are aware of their legal rights
and have access to legal resources.
Finally, under proposed Sec. 410.1302(c)(13), ORR would require
standard programs to provide information about U.S. child labor laws
and education around permissible work opportunities in a manner that is
sensitive to the age, culture and native language of each unaccompanied
child.
Cultural competency among ORR standard programs is considered an
important component of a successful program by ORR and under the FSA.
Under proposed Sec. 410.1302(d), standard programs are required to
deliver the services included in Sec. 410.1302(c) in a manner that is
sensitive to the age, culture, native language, and the complex needs
of each unaccompanied child.
Under proposed Sec. 410.1302(e), standard programs would be
required to develop a comprehensive and realistic individual service
plan for each unaccompanied child in accordance with the child's needs
as determined by the individualized needs assessment. Individual plans
would be implemented and closely coordinated through an operative case
management system. To ensure that service plans are addressing
meaningful and appropriate goals in partnership with unaccompanied
children, service plans should identify individualized, person-centered
goals with measurable outcomes and note steps or tasks to achieve the
goals, be developed with input from the children, and be reviewed and
updated at regular intervals. Under current practice, this is every 30
days the child is in custody following the child's case review.
Unaccompanied children aged 14 and older should be given a copy of the
plan, and unaccompanied children under age 14 should be given a copy of
the plan when appropriate for that particular child's development.
Individual plans shall be in that child's native language or other mode
of auxiliary aid or services and/or by the use of clear, easily
understood language, using concise and concrete sentences and/or visual
aids and check for understanding where appropriate.
Section 410.1303 Reporting, Monitoring, Quality Control, and
Recordkeeping Standards
ORR conducts ongoing and multi-layered monitoring of all components
of care provider facilities' activities. These efforts ensure
consistent oversight, accountability standards and put in place
checkpoints at regular intervals, consistent with ORR's
authorities.\103\ Proposed Sec. 410.1303 describes how ORR would
ensure that care provider facilities are providing services as required
by these regulations. Under proposed Sec. 410.1303(a), ORR would
monitor all care provider facilities for compliance with the terms of
the regulations in parts 410 and 411. ORR is proposing the types of
monitoring activities that it would perform: desk monitoring, routine
site visits, site visits in response to ORR or other reports, and
monitoring visits. Desk monitoring would include ongoing oversight from
ORR headquarters. Examples of desk monitoring include monthly check-ins
by ORR Federal staff with the care provider facility, regular record
and report reviews, financial/budget statements analysis, ongoing
reviews of staff background checks and vetting of employees,
subcontractors, and grantees, and communications review. Routine site
visits would be day-long visits to facilities to review compliance for
policies, procedures, and practices and guidelines. Typically, routine
site visits occur on a once or twice monthly basis, both unannounced
and announced. Site visits in response to ORR or other requests would
be visits for a specific purpose or investigation (e.g., regarding a
corrective action plan). Routine monitoring visits would be conducted
as part of comprehensive reviews of all care provider facilities.
Typically, these may be week-long visits and are usually conducted by
ORR not less than every two (2) years.
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\103\ See, e.g., 6 U.S.C. 279(b)(1) (describing ORR
responsibilities including implementing policies with the respect to
the care of unaccompanied children, ensuring the interests of
unaccompanied children are considered, and overseeing the
infrastructure and personnel of facilities where unaccompanied
children reside).
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When care provider facilities are out of compliance with ORR
policies and procedures, ORR issues a corrective action. A list of
corrective actions may be communicated by ORR to care provider
facilities, for example, as part of a report provided to the care
provider facility after a monitoring visit. Under proposed Sec.
410.1303(b), ORR would issue corrective actions to care provider
facilities when it finds that a care provider facility is out of
compliance with its regulations and sub-regulatory policies, including
guidance and terms of its contracts and cooperative agreements. If ORR
finds a care provider facility to be out of compliance, under this
paragraph it would communicate the concerns in writing to the care
provider facility's facility director or appropriate person through a
written monitoring or site visit report, with a list of corrective
actions and child welfare best practice recommendations, as
appropriate. ORR would request a response to the corrective action
findings from the care provider facility and specify a time frame for
resolution and the disciplinary consequences for not responding within
the required timeframes. Examples of disciplinary consequences would
include stopping placements at the care provider facility until all
corrective actions have been addressed or possible non-renewal of the
grant for the program, as appropriate.\104\
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\104\ ORR also notes that to the extent that a care provider has
acted contrary to the terms and conditions of its funding, they may
be subject to consequences described at 45 CFR part 75, subpart D.
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Proposed Sec. 410.1303(c) describes additional monitoring
activities that ORR would conduct at secure facilities. In addition to
other monitoring activities, consistent with existing policy and
practice, ORR would review individual unaccompanied children's case
files to ensure unaccompanied children placed in secure facilities are
assessed at least every 30 days for the possibility of a transfer to a
less restrictive setting.
Proposed Sec. 410.1303(d) describes monitoring of long-term home
care and transitional home care facilities. ORR proposes that long-term
and transitional foster care homes be subject to the same types of
monitoring as other ORR care, but tailored to the foster care
arrangement. For example, under proposed Sec. 410.1303(d), during on
site monitoring visits, ORR would be able to schedule a visit with the
staff of a particular home care facility to conduct a first-hand
assessment of the home environment and the care provider's oversight of
the home. In addition to ORR monitoring, ORR proposes that ORR long-
term home care and transitional home care facilities that provide
services through a sub-contract or sub-grant be responsible for
[[Page 68940]]
conducting annual monitoring or site visits of the sub-recipient, as
well as weekly desk monitoring. Finally, ORR proposes to require that
care providers provide the findings of such reviews to the designated
ORR point of contact.
In proposed Sec. 410.1303(e), ORR proposes that the care provider
facilities develop quality assurance assessment procedures that
accurately measure and evaluate service delivery in compliance with the
requirements of this part, as well as those delineated in 45 CFR part
411.
Under proposed Sec. 410.1303(f), ORR would establish care provider
facility reporting requirements. The purpose of such reporting is to
help ensure that incidents involving unaccompanied children are
documented and responded to in a way that protects the best interests
of children in ORR care, including their safety and well-being.
Requirements on reporting can increase safety for children in ORR's
care, and promote transparency, accuracy, and improvement in the care
provided. ORR would require care provider facilities to report any
emergency incident, significant incident, or program-level event to
ORR, and in accordance with any applicable Federal, State, and local
reporting laws. Accurately documenting incidents and program-level
events is essential to ensuring the health and wellbeing of all
unaccompanied children in care.
ORR proposes under Sec. 410.1303(f)(1) to require that care
provider facilities document incidents and events with sufficient
detail to ensure that any relevant entity can facilitate any required
follow-up; document incidents in a way that is trauma-informed and
grounded in child welfare best practices; and update the report with
any findings or documentation that are made after the fact.
Additionally, proposed Sec. 410.1303(f)(2) states that care provider
facilities must never: fabricate, exaggerate, or minimize incidents;
use disparaging or judgmental language about unaccompanied children in
incident reports; use incident reporting or the threat of incident
reporting as a way to manage the behavior of unaccompanied children or
for any other illegitimate reason. By ``illegitimate reason,'' ORR
means a reason that is unrelated to the purposes of incident reporting,
which as stated above are to help ensure that incidents involving
unaccompanied children are documented and responded to in a way that
protects the best interest of children in ORR care, including their
safety and well-being. Further, illegitimate reasons include those that
would be inconsistent with ORR's statutory responsibilities (e.g., to
ensure that the interest of the child are considered in decisions and
actions relating to the care and custody of an unaccompanied child, to
place unaccompanied children in the least restrictive setting that is
in the best interest of the child); or inconsistent with these proposed
regulations and sub-regulatory policies, including ORR guidance and the
terms of its contracts or cooperative agreements.
ORR is proposing limitations on how certain reports may be used by
ORR or care provider facilities. ORR believes that these limitations
will protect the best interests of unaccompanied children and put their
safety first as well as help ensure that reports do not become a
potential hindrance to placement in the least restrictive setting.
Under proposed Sec. 410.1303(f)(3), ORR would prohibit care provider
facilities from using reports of significant incidents as a method of
punishment or threat towards any child in ORR care for any reason.
Under proposed Sec. 410.1303(f)(4), ORR is proposing that the
existence of a report of a significant incident may not be used by ORR
as a basis for an unaccompanied child's step up to a restrictive
placement or as the sole basis for a refusal to step a child down to a
less restrictive placement. Care provider facilities would likewise be
prohibited from using the existence of a report of a significant
incident as a basis for refusing an unaccompanied child's placement in
their facilities. Reports of significant incidents could be used as
examples or citations of concerning behavior; however, the existence of
a report itself would not be sufficient for a step up, a refusal to
step down, or a care provider facility to refuse a placement.
ORR notes that 45 CFR part 411, subpart G, requires reporting to
ORR of any allegation, suspicion, or knowledge of sexual abuse, sexual
harassment, inappropriate sexual behavior, and Staff Code of Conduct
\105\ violations occurring in ORR care, along with any retaliatory
actions resulting from reporting such incidents; ORR also notes that
part 411 requires compliance with required staff background checks at
subpart B.
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\105\ ORR Unaccompanied Children Policy Guide 4.3.5. Available
at https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide-section-4#4.3.5.
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ORR also notes that in proposed Sec. 410.1307(c) ORR proposes to
require that ORR monitor compliance with the requirements to issue
required notices and documentation for medical services requiring
heightened ORR involvement, as well as the other listed requirements.
ORR proposes to initiate a Graduated Corrective Action Plan, with
reporting requirements increasing along with oversight measures if
programs remain non-compliant. Please see proposed Sec. 410.1307(c)
for more discussion.
Safeguarding and maintaining the confidentiality of unaccompanied
children's case file records is critical to carrying out ORR's
responsibilities under the HSA and the TVPRA. The HSA places
responsibility on ORR for implementing policies with respect to the
care and placement of unaccompanied children, ensuring that the
interests of the child are considered in decisions and actions relating
to their care and custody, overseeing the infrastructure and personnel
of facilities in which unaccompanied children reside, and maintaining
data on unaccompanied children.\106\ Additionally, the TVPRA places
responsibility for the care and custody of unaccompanied children on
HHS and requires HHS to ``establish policies and programs to ensure
that unaccompanied alien children in the United States are protected
from traffickers and other persons seeking to victimize or otherwise
engage such children in criminal, harmful, or exploitative activity,
including policies and programs reflecting best practices in witness
security programs.'' \107\ These program statutes recognize that ORR is
responsible for maintaining unaccompanied children's records and data
and that unaccompanied children are vulnerable persons, and therefore,
the privacy and confidentiality of their records is paramount.
Unaccompanied children may have histories of abuse, may be seeking
safety from threats of violence, or may have been trafficked or
smuggled into the U.S. Accordingly, HHS' longstanding policy is to
protect from disclosure information about unaccompanied children that
could compromise the children's and sponsors' location, identity,
safety, and privacy.
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\106\ See 6 U.S.C. 279(b).
\107\ See 8 U.S.C. 1232(c)(1); see also id. at 1232(b).
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Consistent with its statutory responsibilities, ORR proposes in
Sec. 410.1303(g) that all care provider facilities must develop,
maintain, and safeguard the individual case file records of
unaccompanied children. The provisions in Sec. 410.1303(g) would apply
to all care provider facilities responsible for the care and custody of
unaccompanied children, whether the program is a standard program or
not. ORR notes that under its current policies the records of
unaccompanied children generated in the course of post-
[[Page 68941]]
release services (PRS) are not always considered to be included in the
individual case files of unaccompanied children. However, under this
proposed rule, ORR would consider all unaccompanied children's records,
including those produced for PRS, to be included in the individual case
file records of unaccompanied children, whether generated while the
child is in ORR custody or after release to their sponsor.\108\ PRS
records are created by, or on behalf of, ORR and assist ORR in
coordinating supportive services for the child and their sponsor in the
community where the child resides, as authorized under 8 U.S.C.
1232(c)(3)(B), which provides HHS authority to ``conduct follow-up
services in cases involving children with mental health or other needs
who could benefit from ongoing assistance from a social welfare
agency.'' ORR facilitates the provision of PRS services through its
network of PRS providers under cooperative agreements with ORR.
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\108\ See 8 FR 46682 (July 18, 2016) (stating that ``[t]he case
file contains information that is pertinent to the care and
placement of unaccompanied children, including . . . post-release
service records[.]'').
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Under proposed Sec. 410.1303(g)(1), ORR would require care
provider facilities and PRS providers to maintain the confidentiality
of case file records and protect them from unauthorized use or
disclosure. ORR also proposes in Sec. 410.1303(g)(2) that the records
in unaccompanied children's case files are the property of ORR, whether
in the possession of ORR a care provider facility, or PRS provider,
including those entities that receive funding from ORR through
cooperative agreements, and care provider facilities and PRS providers
may not release unaccompanied children's case file records or
information contained in the case files for purposes other than program
administration without prior approval from ORR. This provision allows
ORR to ensure that disclosure of unaccompanied children's records is
compatible with program goals, to ensure the safety and privacy of
unaccompanied children, to not discourage unaccompanied children from
disclosing information relevant to their care and placement, and to
prevent potential sponsors from being deterred from sponsoring
unaccompanied children. Further, under Sec. 410.1303(g)(3), ORR would
require care provider facilities and PRS providers to provide the case
files of unaccompanied children to ORR immediately upon ORR's request.
Under Sec. 410.1303(g)(4), ORR proposes that employees, former
employees, or contractors of a care provider facility or PRS provider
must not disclose unaccompanied children's case file records or provide
information about unaccompanied children, their sponsors, family or
household members to anyone except for purposes of program
administration, without first providing advance notice to ORR of the
request, allowing ORR to ensure that disclosure of unaccompanied
children's information is compatible with program goals and ensures the
safety and privacy of unaccompanied children. Safeguarding
unaccompanied children's information is consistent with ORR's
responsibilities under its program statutes, including 8 U.S.C.
1232(c)(1), which requires the Secretary to establish ``policies and
programs reflecting best practices in witness security programs,'' and
House Report 116-450 recommendations to restrict sharing certain
information with other Federal agencies. A request for UC case file
information must be made directly to ORR, allowing ORR to consider
whether disclosure meets these requirements, is in the best interest of
the unaccompanied child, safeguards the unaccompanied child's and their
sponsor's, family and household member's personally identifiable and
protected health information, and is compatible with statutory program
goals and all applicable Federal laws and regulations.
Finally, for purposes of facilitating efficient program
administration, ORR policy is to pre-approve certain limited
disclosures by ORR grantees and contractors such as (1) registration
for school and for other routine educational purposes; (2) routine
medical, dental, or mental health treatment; (3) emergency medical
care; (4) to obtain services for unaccompanied children in accordance
with ORR policies; and (5) pursuant to all available whistleblower
protection laws. This pre-approved disclosure policy allows ORR to
protect the privacy and safety of each unaccompanied child while also
ensuring that certain routine and emergency services and treatment are
provided expeditiously without waiting for approval from ORR.
Proposed Sec. 410.1303(h) would require standard programs to
maintain adequate records and make regular reports as required by ORR
that permit ORR to monitor and enforce the regulations in parts 410 and
411 and other requirements and standards as ORR may determine are in
the best interests of each unaccompanied child. ORR welcomes public
comment on these proposals.
Section 410.1304 Behavior Management and Prohibition on Seclusion and
Restraint
Proposed Sec. 410.1304 describes the requirements for behavior
management and the prohibition on seclusion and restraint. ORR proposes
these requirements consistent with its statutory responsibilities to
implement policies with respect to the care and placement of
unaccompanied children, to place unaccompanied children in the least
restrictive setting available that is in their best interest, and to
ensure the interest of unaccompanied children are considered in
decisions and actions related to their care and custody. ORR
understands that its responsibilities apply to each unaccompanied child
in its care, including unaccompanied children who are subject to
behavioral interventions, as well as to other unaccompanied children
placed at the same care provider facility as an unaccompanied child who
are subject to behavioral interventions.
Effective behavior management is critical to supporting the health,
safety, and wellbeing of unaccompanied children in ORR care and can
help prevent emergencies and safety situations. Consistent with ORR's
statutory responsibilities, proposed Sec. 410.1304(a) would
incorporate FSA paragraph 11 requirements and child welfare best
practices by requiring care provider facilities to have behavior
management strategies that include techniques for care provider
facilities to follow. Under proposed Sec. 410.1304(a), care provider
facilities must develop behavior management strategies that include
evidence-based, trauma-informed, and linguistically responsive program
rules and behavior management policies that take into consideration the
range of ages and maturity of unaccompanied children in the program and
that are culturally sensitive to the needs of each unaccompanied child.
Examples of evidence-based standards and approaches may include setting
clear and healthy expectations and limits for their behaviors and the
behaviors of others, creating a healthy structured environment with
routines and schedules, utilizing positive reinforcement strategies and
avoiding negative reinforcement strategies, and fostering a supportive
environment that encourages cooperation, problem-solving, healthy de-
escalation strategies, and positive behavioral management skills.
Further, ORR proposes that the behavior management strategies must not
use any practices that involve negative reinforcement or involve
[[Page 68942]]
consequences or measures that are not constructive or not logically
related to the behavior being regulated. This would include, as
proposed under Sec. 410.1304(a)(1), prohibiting the use or threatened
use of corporal punishment, significant incident reports as punishment,
and unfavorable consequences related to family/sponsor unification or
legal matters (e.g., immigration, asylum). It would also include
prohibiting the use of use forced chores or activities that serves no
purpose except to demean or humiliate an unaccompanied child, forced
physical movement, such as push-ups and running, or uncomfortable
physical positions as a form of punishment or humiliation; search an
unaccompanied child's personal belongings solely for the purpose of
behavior management, and medical interventions that are not prescribed
by a medical provider acting within the usual course of professional
practice for a medical diagnosis or that increase risk of harm to the
unaccompanied child or others. Under proposed Sec. 410.1304(a)(2), ORR
would require that any sanctions employed not adversely affect either
an unaccompanied child's health or physical, emotional, or
psychological well-being; or deny an unaccompanied child meals,
hydration, sufficient sleep, routine personal grooming activities,
exercise (including daily outdoor activity), medical care,
correspondence or communication privileges, or legal assistance. ORR
notes that under proposed Sec. 410.1305 it would require training for
care provider facility staff on the behavior management strategies,
including the use of de-escalation strategies. Under proposed Sec.
410.1304(a)(3), ORR is prohibiting the use prone physical restraints,
chemical restraints, or peer restraints for any reason in any care
provider facility setting.
Under proposed Sec. 410.1304(b), involvement of law enforcement
would be a last resort and a call by a care provider facility to law
enforcement may trigger an evaluation of staff involved regarding their
qualifications and training in trauma-informed, de-escalation
techniques. ORR notes that calls to law enforcement are not considered
a behavior management strategy, and care provider facilities are
expected to apply other means to de-escalate concerning behavior. But
in some cases, such as emergencies or where the safety of unaccompanied
children or staff are at issue, care provider facilities may need to
call 9-1-1. ORR also notes that proposed Sec. 410.1302(f) describes
requirements for care provider facilities regarding the sharing of
information about unaccompanied children. Additionally, because ORR
would like to ensure law enforcement is called in response to an
unaccompanied child's behavior only as a last resort in emergencies or
where the safety of unaccompanied children or staff are at issue, ORR
is requesting comment on the process ORR should require care provider
facilities to follow before engaging law enforcement, such as the de-
escalation strategies that must first be attempted and the specific
sets of behaviors exhibited by unaccompanied children that warrant
intervention from law enforcement.
Proposed Sec. 410.1304(c) would prohibit standard programs and
RTCs from the use of seclusion as a behavioral intervention. ORR notes
that this prohibition on the use of seclusion specifically relates to
its potential use as a behavioral intervention, and not to a medical
need for isolation or quarantine, as discussed in Sec.
410.1307(a)(10). Standard programs and RTCs would also be prohibited
from using restraints, except as described at proposed Sec.
410.1304(d) and (f). In emergency safety situations only, ORR is
proposing that standard programs and RTCs are permitted to use personal
restraint under Sec. 410.1304(d). ORR believes that emergency safety
situations should be prevented wherever possible and that personal
restraint should only be used after de-escalation strategies and less
restrictive approaches have been attempted and failed. As such, ORR
emphasizes its proposed requirements under Sec. 410.1304(a) that
behavior management strategies used by care provider facilities be
evidence-based, trauma-informed, and linguistically responsive. ORR
further emphasizes its requirements under proposed Sec. 410.1305 that
staff must be trained in these behavior management strategies,
including de-escalation techniques,
In secure facilities, not including RTCs, there may be situations
where an unaccompanied child becomes a danger to themselves, other
unaccompanied children, care provider facility staff, or property. As a
result, secure facilities may need to employ more restrictive forms of
behavior management than shelters or other types of care provider
facilities in emergency safety situations or during transport to or at
immigration court or asylum interviews when there are certain imminent
safety concerns. ORR notes that under proposed Sec. 410.1303(f) and
ORR's current policy, all care provider facilities, regardless of
setting, are required to report any emergency incident, significant
incident, or program-level event to ORR, and in accordance with any
applicable Federal, State, and local reporting laws.
Therefore, ORR is proposing under Sec. 410.1304(e)(1) to allow
secure facilities except for RTCs to use personal restraints,
mechanical restraints, and/or seclusion in emergency safety situations.
ORR notes that under proposed Sec. 410.1304(a)(3) that the use of
prone physical restraints, chemical restraints, or peer restraints is
prohibited for any reason for all care provider facilities, including
secure facilities. Proposed Sec. 410.1304(e)(2) would allow secure
facilities to restrain an unaccompanied child for their own immediate
safety or that of others during transport to an immigration court or an
asylum interview. ORR is proposing under proposed Sec. 410.1304(e)(3)
that secure facilities may restrain an unaccompanied child while at an
immigration court or asylum interview if the child exhibits imminent
runaway behavior, makes violent threats, demonstrates violent behavior,
or if the secure facility has made an individualized determination that
the child poses a serious risk of violence or running away if the child
is unrestrained in court or the interview. ORR notes that while secure
facilities may have safety or runaway risk concerns for which they deem
restraints necessary for certain unaccompanied children, immigration
judges retain discretion to provide input as to whether the
unaccompanied child remains in restraints while in their courtroom. ORR
is proposing to require under Sec. 410.1304(e)(4) that secure
facilities must provide all mandated services under this subpart to an
unaccompanied child to the greatest extent practicable under the
circumstances while ensuring the safety of the unaccompanied child,
other unaccompanied children at the secure facility, and others.
Finally, under proposed Sec. 410.1304(f) ORR would allow care provider
facilities to use soft restraints (e.g., zip ties and leg or ankle
weights) only during transport to and from secure facilities, and only
when the care provider believes a child poses a serious risk of
physical harm to self or others or a serious risk of running away from
ORR custody.
Section 410.1305 Staff, Training, and Case Manager Standards
Having standards for staff, training, and case managers is in the
best interest of unaccompanied children and is supportive to their
health and development while in ORR care. Proposed Sec. 410.1305 would
establish certain requirements consistent with
[[Page 68943]]
ORR's authority to oversee the infrastructure and personnel of
facilities in which unaccompanied children reside.\109\ Under proposed
Sec. 410.1305(a), ORR would require that standard programs,
restrictive placements, and post-release service providers, must
provide training to all staff, contractors, and volunteers; and that
training ensures that staff, contractors, and volunteers understand
their obligations under ORR regulations and policies and are responsive
to the challenges faced by staff and unaccompanied children at the
facility. ORR anticipates that examples of training topics under this
proposed paragraph would include the rights of unaccompanied children,
including to educational services, creating bias free environments,
supporting children with disabilities, supporting the mental health
needs of unaccompanied children, trauma, child development, prevention
of sexual abuse, the identification of victims of human trafficking,
and racial and cultural sensitivity. Standard programs and restrictive
placements would also be required to ensure that staff are
appropriately trained on its behavior management strategies, including
de-escalation techniques, as established pursuant to proposed Sec.
410.1304. All trainings would be required to be tailored to the unique
needs, attributes, and gender of the unaccompanied children in care at
the individual care provider facility. For example, staff who work with
early childhood unaccompanied children should be provided training in
early childhood care best practices. Additionally, case managers should
be trained on child welfare best practices before providing services to
children.\110\ Care provider facilities must document the completion of
all trainings in personnel files. In addition to training, ORR would
require all staff to complete background check requirements and vetting
for their respective roles prior to service provision and care provider
facilities would need to provide documentation to ORR of compliance.
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\109\ See 6 U.S.C. 279(b)(1)(G).
\110\ Operational Challenges Within ORR and the ORR Emergency
Intake Site at Fort Bliss Hindered Case Management for Children.
Available at: https://oig.hhs.gov/oei/reports/OEI-07-21-00251.pdf.
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Under proposed Sec. 410.1305(b) standard programs and restrictive
placements would be required to meet the staff to child ratios
established by their respective states or other licensing entities, or
ratios established by ORR if state licensure is not available. Under
current practice, ORR generally requires staffing ratios of a minimum
of 1 staff to 8 unaccompanied children during the day and 1 staff to 16
unaccompanied children at night while children are sleeping. If,
however, state requirements require a stricter staff to child ratio,
then under proposed Sec. 410.1305(b), ORR likewise would require the
care provider to abide by that smaller ratio.
Standard programs and restrictive placements are required to
provide case management services in their facilities. Effective case
management systems and policy are important to ensuring care provider
facilities are effective in attaining positive outcomes for
unaccompanied children. Areas for attention include specifying case
manager to unaccompanied child ratios that take the occupancy level of
the facility into account, ensuring that case management staff are
site-based and provide their services in person, and ensuring that case
management staffing levels are appropriate to meet ORR's standards for
the length of care of unaccompanied children. ORR is proposing to
require under Sec. 410.1305(c) that standard programs and restrictive
placements have case managers based at the facility's site. To meet the
unique needs of a given facility, ORR could then determine the
appropriate ratio of case managers per unaccompanied child through its
cooperative agreements and contracts with care provider facilities, as
appropriate. This will allow ORR to include changes in the staffing
ratio relative to the occupancy of unaccompanied children at the
facility and consider the policies related to unaccompanied children's
length of stay.
Section 410.1306 Language Access Services
Proposed Sec. 410.1306 describes requirements to provide language
accessibility for unaccompanied children. ORR believes that it is
important to establish specific, minimum language access requirements,
which are critical to ensuring that unaccompanied children understand
their rights, the release process, and the services they may receive
while in ORR care.
Under proposed Sec. 410.1306(a), standard programs and restrictive
placements would be required, to the greatest extent practicable, to
consistently offer all unaccompanied children the option of
interpretation and translation services in their native or preferred
language, depending on their preference, and in a way they understand
to the greatest extent practicable. ORR notes that under 45 CFR 85.51,
standard programs and restrictive placements shall also ensure
effective communication with unaccompanied children with disabilities.
This includes furnishing appropriate auxiliary aids and services such
as qualified sign language interpreters, Braille materials, audio
recordings, note-takers, and written materials, as appropriate for the
unaccompanied child. Under ORR's existing policies, standard programs
and restrictive placements are required to make every effort possible
to provide interpretation and translation services; however, ORR
believes it is important to propose the additional requirement that
standard programs and restrictive placements consistently offer each
unaccompanied child the option of effective interpretation and
translation services to ensure meaningful and timely access to these
services. If standard programs and restrictive placements are unable to
obtain a qualified interpreter or translator in the unaccompanied
children's native or preferred language, depending on their preference,
after taking reasonable efforts, standard programs and restrictive
placements would then be required to consult with qualified ORR staff
(under current policy, the Federal Field Specialist and Project
Officer) for guidance on how to provide meaningful access to their
programs and activities to children with limited English proficiency.
Standard programs and restrictive placements would be permitted to use
professional telephonic interpreter services after they take reasonable
efforts to obtain in-person, qualified interpreters (as defined). ORR
believes that these proposals strike a good balance between the
importance of interpretation and translation services and the reality
of the vast array of language access needs of unaccompanied children.
Standard programs and restrictive placements would also be required to
translate all documents and materials shared with unaccompanied
children in their native or preferred language, depending on their
preference, and in a timely manner.
To ensure efficient and reliable access to necessary interpretation
and translation services during placement, under Sec. 410.1306(b) ORR
would be required to make placement decisions informed by language
access considerations. To the extent it is appropriate and practicable,
giving due consideration to unaccompanied child's individualized needs,
ORR would place unaccompanied children with similar language needs
within the same standard program or restrictive
[[Page 68944]]
placement. ORR believes that this would further ensure the efficient
use of resources while also considering the need for timely and
appropriate placement.
Proposed Sec. 410.1306(c) would codify language access
requirements during intake, orientation, and while informing
unaccompanied children of their rights to confidentiality and limits of
confidentiality of information while in ORR care. Under current ORR
practice, among other things, standard programs and heightened
supervision facilities complete an initial intakes assessment of an
unaccompanied child; provide a standardized orientation that is
appropriate for the age, culture, language, and accessibility needs of
the unaccompanied child; and complete a UC Assessment that covers
biographic, family, legal/migration, medical, substance use, and mental
health history and is subject to ongoing updates. Under current
practice, standard programs and restrictive placements provide
unaccompanied children with a Disclosure Notice, which is an ORR
document explaining the limits to the confidentiality of information
unaccompanied children share while in ORR care and custody, as well as
the types of information that standard programs and restrictive
placements and ORR must share if disclosed by the unaccompanied
children for the safety of the unaccompanied children or for the safety
of others.
Under proposed Sec. 410.1306(c)(1), standard programs and
restrictive placements would be required both to provide a written
notice of the limits of confidentiality they share while in ORR care
and custody, and to orally explain the contents of the written notice
to the unaccompanied children, in their native preferred language,
depending on their preference, and in a way they can effectively
understand. Standard programs and restrictive placements would be
required to do both prior to the completion of the UC Assessment, and
prior to unaccompanied children starting counseling services as
proposed at Sec. 410.1302(c)(5) and (6).
Under proposed Sec. 410.1306(c)(2), standard programs and
restrictive placements would be required to ensure assessments and
initial medical exams are conducted in the unaccompanied children's
native or preferred language, depending on their preference, and in a
way they effectively understand. Proposed Sec. 410.1306(c)(3) would
require that standard programs and heightened supervision facilities
provide a standardized and comprehensive orientation to all
unaccompanied children within 48 hours of admission in the
unaccompanied children's native or preferred language and in a way they
effectively understand regardless of spoken language, reading
comprehension level, or disability. Further, under proposed Sec.
410.1306(c)(4), for all step-ups to and step-downs from restrictive
placements, standard programs and restrictive placements would be
required to specifically explain to the unaccompanied children why they
were placed in a restrictive placement or, if stepped down, why their
placement was changed, while doing so in the unaccompanied children's
native or preferred language, and in a way they effectively understand.
Under proposed Sec. 410.1306(c)(5), if the unaccompanied children
are not literate, or if documents provided during intakes and/or
orientation are not in a language that they can read and effectively
understand, standard programs and restrictive placements would be
required to have a qualified interpreter orally translate or sign
language translate and explain all the documents in the unaccompanied
children's native or preferred language, depending on their preference,
and confirm with the unaccompanied children that they fully comprehend
all materials. Additionally, at proposed Sec. 410.1306(c)(6) and (7),
standard programs and restrictive placements would be required to
provide unaccompanied children information regarding grievance and
ORR's sexual abuse and harassment policies and procedures in the
unaccompanied children's native or preferred language, based on their
preference, and in a way they effectively understand. Under Sec.
410.1306(c)(8), standard programs and restrictive placements would be
required to notify the unaccompanied children that standard programs
and restrictive placements will accommodate the unaccompanied
children's language needs while they remain in ORR care.
Under proposed Sec. 410.1306(c)(9), with respect to all
requirements described in proposed Sec. 410.1306(c), standard programs
and restrictive placements would be required to document in each
unaccompanied children's case file that they acknowledged that they
effectively understand what was provided to them.
Proposed Sec. 410.1306(d) describes requirements regarding
language access and education. In order to provide meaningful education
services to unaccompanied children, ORR believes that it is important
to ensure that educational services are presented to unaccompanied
children in a language that is accessible to them. Proposed Sec.
410.1306(d)(1) would require standard programs and heightened
supervision facilities to provide educational instruction and relevant
materials in a format and language accessible to all unaccompanied
children, regardless of their native or preferred language, including
by providing in-person interpretation, professional telephonic
interpretation, and written translations, all by qualified interpreters
or translators. Proposed Sec. 410.1306(d)(2) would require standard
programs and heightened supervision facilities to provide recreational
reading materials in formats and languages accessible to all
unaccompanied children, which would facilitate their out-of-class
enrichment and engagement. Proposed Sec. 410.1306(d)(3) would require
standard programs and heightened supervision facilities to translate
all ORR-required documents provided to unaccompanied children for use
in educational lessons, in formats and languages accessible to all
unaccompanied children.
ORR believes that it is important to ensure that the unaccompanied
children's religious and cultural expressions, practices, and
identities are accommodated to the extent practicable. Accordingly,
under proposed Sec. 410.1306(e), when an unaccompanied child makes a
reasonable request for religious and/or cultural information or other
religious/cultural items, such as books or clothing, the standard
program or heightened supervision facility would be required to provide
the applicable items, in the unaccompanied child's native or preferred
language, depending on the unaccompanied child's preference. At the
same time, with respect to the obligations of care provider facilities,
ORR notes that it operates the Unaccompanied Children program in
compliance with the requirements of the Religious Freedom Restoration
Act and other applicable Federal conscience protections, as well as all
other applicable Federal civil rights laws and applicable HHS
regulations.\111\
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\111\ See 45 CFR 87.3(a).
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ORR proposes in Sec. 410.1306(f) that standard programs and
restrictive placements would be required to utilize any necessary
professional interpretation or translation services needed to ensure
meaningful access by an unaccompanied child's parent(s), guardian(s),
and/or potential sponsor(s). Standard programs and restrictive
placements would also be required to translate all documents and
materials shared with the parent(s), guardian(s), and/or potential
sponsors in their native
[[Page 68945]]
or preferred language, depending on their preference. ORR notes that
under 45 CFR 85.51, standard programs and restrictive placements shall
also ensure effective communication with parent(s), guardian(s), and/or
potential sponsor(s) with disabilities.
ORR acknowledges the importance of making appropriate
interpretation and translation services available to all unaccompanied
children while receiving healthcare services so that they understand
the services that are being offered and/or provided. Under proposed
Sec. 410.1306(g), while unaccompanied children are receiving
healthcare services, standard programs and restrictive placements would
be required to ensure that unaccompanied children are able to
communicate with physicians, clinicians, and other healthcare staff in
their native or preferred language, depending on their preference, and
in a way they effectively understand, prioritizing services from an in-
person, qualified interpreter before using professional telephonic
interpretation services.
Section 410.1306(h) proposes language access requirements for
standard programs and restrictive placements while unaccompanied
children receive legal services. To facilitate unaccompanied children
receiving effective legal services, ORR believes that it is essential
that unaccompanied children understand the legal services offered to
them and the process for participation in removal proceedings post-
release, and accordingly, unaccompanied children should be provided
with meaningful access to language services as relates to legal
services. ORR is proposing to require that standard programs and
restrictive placements make qualified interpretation and translation
services available upon request to unaccompanied children, child
advocates, and legal service providers while unaccompanied children are
being provided with legal services. Additionally, ORR proposes in Sec.
410.1306(i) that interpreters and translators would be required to keep
information about the unaccompanied children's cases and/or services
confidential from non-ORR grantees, contractors, and Federal staff.
Section 410.1307 Healthcare Services
The provision of healthcare to unaccompanied children is
foundational to their health and wellbeing and to supporting their
childhood development. Therefore, proposed Sec. 410.1307(a) would
codify that ORR shall ensure the provision of appropriate routine
medical and dental care; access to medical services requiring
heightened ORR involvement, consistent with Sec. 410.1307(c); family
planning services; and emergency health services in standard programs
and restrictive placements. This proposed paragraph would codify
corresponding requirements from Exhibit 1 of the FSA. Further, under
proposed Sec. 410.1307(b), care providers must establish a network of
licensed healthcare providers, including specialists, emergency care
services, mental health practitioners, and dental providers that will
accept ORR's fee-for-service billing system under proposed Sec.
410.1307(b)(1). To assess the unique healthcare needs of each
unaccompanied child, consistent with existing policy and practice, ORR
is including a requirement that unaccompanied children receive a
complete medical examination (including screening for infectious
disease) within two business days of admission unless an unaccompanied
child was recently examined at another facility and if an unaccompanied
child is still in ORR custody 60 to 90 days after admission, an initial
dental exam, or sooner if directed by state licensing requirements
under proposed Sec. 410.1307(b)(2).
In order to prevent the spread of diseases in care provider
facilities and avoid preventable illness among unaccompanied children,
ORR is also proposing to require appropriate immunizations as
recommended by the Advisory Committee on Immunization Practices' Child
and Adolescent Immunization Schedule and approved by HHS' Centers for
Disease Control and Prevention under proposed Sec. 410.1307(b)(3). To
aid in the early detection of potential health conditions and ensure
unaccompanied children's health conditions are appropriately managed,
under proposed Sec. 410.1307(b)(4) ORR would require an annual
physical examination, including hearing and vision screening, and
follow-up care for acute and chronic conditions. ORR notes that it
facilitates an array of health services, such as medications,
surgeries, or other follow-up care, that have been ordered or
prescribed by a healthcare provider. ORR would require the
administration of prescribed medication and special diets under
proposed Sec. 410.1307(b)(5) and appropriate mental health
interventions when necessary under proposed Sec. 410.1307(b)(6). ORR
notes that it is proposing to require routine individual and group
counseling session at proposed Sec. 410.1302(c)(5) and (6).
There are a number of policies and procedures related to medical
care and medications that ORR is proposing to require in order to
promote health and safety at their facilities. Under proposed Sec.
410.1307(b)(7), care provider facilities must have policies and
procedures for identifying, reporting, and controlling communicable
diseases that are consistent with applicable State, local, and Federal
laws and regulations. Under proposed Sec. 410.1307(b)(8), care
provider facilities must have policies and procedures that enable
unaccompanied children, including those with language and literacy
barriers, to convey written and oral requests for emergency and non-
emergency healthcare services. Finally, under proposed Sec.
410.1307(b)(9), ORR would require care provider facilities have
policies and procedures based on state or local laws and regulations to
ensure the safe, discreet, and confidential provision of prescription
and nonprescription medications to unaccompanied children, secure
storage of medications, and controlled administration and disposal of
all drugs. A licensed healthcare provider must write or orally order
all nonprescription medications and oral orders must be documented in
the unaccompanied child's file.
At times, the use of medical isolation or quarantine for
unaccompanied children may be required to prevent the spread of an
infectious disease due to a potential exposure. Proposed Sec.
410.1307(b)(10) would allow unaccompanied children to be placed in
medical isolation and excluded from contact with general population
when medically necessary to prevent the spread of an infectious disease
due to a potential exposure, protect other unaccompanied children and
care provider facility staff for a medical purpose or as required under
state, local, or other licensing rules, as long as the medically
required isolation is limited to only the extent necessary to ensure
the health and welfare of the unaccompanied child, other unaccompanied
children at a care provider facility and care provider facility staff,
or the public at large. To ensure that unaccompanied children have
access to necessary services during medical isolation, ORR is proposing
that care provider facilities must provide all mandated services under
this subpart to the greatest extent practicable under the circumstances
of the medical isolation. A medically isolated unaccompanied child
still must be supervised under state, local, or other licensing ratios,
and, if multiple unaccompanied children are in medical isolation, they
should be placed in units or housing together (as practicable, given
the nature
[[Page 68946]]
or type of medical issue giving rise to the requirement for isolation
in the first instance).
In Sec. 410.1307(c), ORR proposes requirements ensuring access to
medical care for unaccompanied children. At Sec. 410.1307(c)(1),
consistent with the requirements of proposed Sec. 410.1103, ORR
proposes that to the greatest extent possible, an unaccompanied child
whom ORR determines requires medical care or who reasonably requests
such medical care will be placed in a care provider facility that has
available and appropriate bed space, is able to care for such an
unaccompanied child, and is in a location where the relevant medical
services are accessible. This proposal aligns with proposed subpart B,
Determining the Placement of an Unaccompanied Child at a Care Provider
Facility, which would require that ORR place unaccompanied children in
the least restrictive setting that is in the best interest of the child
and appropriate to the child's age and individualized needs, and that
ORR considers ``any specialized services or treatment required'' when
determining placement of all unaccompanied children.
Additionally, ORR proposes that if an initial placement in a care
provider facility that meets the requirements in Sec. 410.1307(c)(1)
is not immediately available or if a medical need or reasonable
request, as described in Sec. 410.1307(c)(1), arises after the Initial
Medical Exam, ORR shall transfer the unaccompanied child to a care
provider facility that is able to accommodate the medical needs of the
unaccompanied child. If the medical need is identified, or the
reasonable request is received, after the Initial Medical Exam, the
care provider facility shall immediately notify ORR. This proposal
aligns with subpart G, Transfers, which would require transfer of an
unaccompanied child within the ORR care provider facility network when
it is determined that an alternate placement for the unaccompanied
child that would best meet the child's individual needs. Care provider
facilities would be required to follow the process proposed in subpart
G such as submitting a transfer recommendation to ORR for approval
within three (3) business days of identifying the need for a transfer.
As described in Sec. 410.1307(c)(2), ORR proposes to codify
requirements ensuring that unaccompanied children are provided
transportation to access medical services, including across state lines
if necessary, and associated ancillary services. This would ensure
unaccompanied children can access appointments with medical specialists
(e.g., neonatologists, oncologists, pediatric cardiologists, pediatric
surgeons, or others), family planning services, prenatal services and
pregnancy care, or care that may be geographically limited including
but not limited to an unaccompanied child's need or request for medical
services requiring heightened ORR involvement. This proposal is
consistent with current policy, as noted in subpart E, Transportation
of an Unaccompanied Child, that ORR, or its care provider facilities,
provide transportation for purposes of service provision including
medical services. If there is a potential conflict between ORR's
regulations and state law, ORR will review the circumstances to
determine how to ensure that it is able to meet its statutory
responsibilities. It is important to note, however, that if a State law
or license, registration, certification, or other requirement conflicts
with an ORR employee's duties within the scope of their ORR employment,
the ORR employee is required to abide by their Federal duties.
These proposals maintain existing policy that ORR must not prevent
unaccompanied children in ORR care from accessing healthcare services,
which may include medical services requiring heightened ORR involvement
or family planning services, and must make reasonable efforts to
facilitate access to those services if requested by the unaccompanied
child.\112\ This includes providing transport across state lines and
associated ancillary services if necessary to access appropriate
medical services, including access to medical specialists and medical
services requiring heightened ORR involvement. Under these proposals,
ORR will continue to facilitate access to medical services requiring
heightened ORR involvement, including access to abortions, in light of
ORR's statutory responsibility to ensure that the interests of the
unaccompanied child are considered in decisions and actions relating to
their care and custody, and to implement policies with respect to their
care and placement.\113\ ORR would continue to permit such access in a
manner consistent with limitations on the use of Federal funds for
abortions which are regularly included in HHS' annual appropriations,
commonly referred to as the ``Hyde Amendment.'' \114\ Consistent with
current policy, ORR will facilitate such access regardless of whether
the Federal Government may pay for the abortion under the Hyde
Amendment. ORR further notes that it operates the UC Program in
compliance with the requirements of the Religious Freedom Restoration
Act and other applicable Federal conscience protections, as well as all
other applicable Federal civil rights laws and applicable HHS
regulations.\115\
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\112\ See, e.g., Administration for Children and Families. FIELD
GUIDANCE--Issued Oct. 1, 2021, revised Nov. 10, 2022, RE: Field
Guidance #21--Compliance with Garza Requirements and Procedures for
Unaccompanied Children Needing Reproductive Healthcare, available at
https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-21.pdf. See also 45 CFR 411.92(d). See also 45 CFR
411.92(d) (requiring timely and comprehensive information about
lawful pregnancy-related medical services and timely access to such
services for unaccompanied children who experience sexual abuse
while in ORR care). ORR notes that it was a party to a settlement
agreement reached in Federal litigation concerning unaccompanied
children's access to abortion (Garza settlement). See Joint
Stipulation of Dismissal Without Prejudice, J.D. v. Azar, No. 1:17-
cv-02122 (D.D.C. Sep. 29, 2020), ECF No. 168. ORR implemented
various policies to effectuate the terms of the Garza settlement.
\113\ See 6 U.S.C. 279(b)(1)(B), (E).
\114\ See, e.g., Consolidated Appropriations Act, 2023, Public
Law 117-328, Div. H, tit. V, sections 506-507; see also Department
of Justice, Office of Legal Counsel, Application of the Hyde
Amendment to the Provision of Transportation for Women Seeking
Abortions (Sept. 27, 2022), https://www.justice.gov/d9/2022-11/2022-09-27-hyde_amendment_application_to_hhs_transportation.pdf.
\115\ See 45 CFR part 87.
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Lastly, ORR proposes a requirement in Sec. 410.1307(d) that care
provider facilities shall notify ORR within 24 hours of an
unaccompanied child's need or request for a medical service requiring
heightened ORR involvement or the discovery of a pregnancy. This
proposal is consistent with ORR's current policy requirements for
notifying ORR of significant incidents and medical services requiring
heightened ORR involvement.
Section 410.1308 Child Advocates
ORR proposes, at Sec. 410.1308, to codify standards and
requirements relating to the appointment of independent child advocates
for child trafficking victims and other vulnerable unaccompanied
children (see particularly statement at proposed Sec. 410.1308(a). The
TVPRA, at 8 U.S.C. 1232(c)(6), authorizes HHS to appoint child
advocates for child trafficking victims and other vulnerable
unaccompanied children. In 2016, the Government Accountability Office
(GAO) carried out an assessment of the ORR child advocate program \116\
and recommended improving ORR monitoring of contractor referrals to the
program, as well as improving information sharing with child
[[Page 68947]]
advocates regarding the unaccompanied children assigned to them. ORR
notes that the need for child advocates in helping to protect the
interests of unaccompanied children has continued to grow over time,
especially given the increasing numbers of unaccompanied children who
are referred to ORR custody. Proposed Sec. 410.1308 is intended to
codify specific child advocates' roles and responsibilities which are
currently described primarily in ORR policy documents.
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\116\ See GAO, April 19, 2016, ``Unaccompanied Children: HHS
Should Improve Monitoring and Information Sharing Policies to
Enhance Child Advocate Program Effectiveness,'' GAO-16-367.
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At Sec. 410.1308(b), ORR proposes to define the role of child
advocates as third parties who identify and make independent
recommendations regarding the best interest of unaccompanied children.
The recommendations of child advocates are based on information
obtained from the unaccompanied children and other sources (including
the unaccompanied child's parents, family, potential sponsors/sponsors,
government agencies, legal service providers, protection and advocacy
system representatives in appropriate cases, representatives of the
unaccompanied child's care provider, health professionals, and others).
Child advocates formally submit their recommendations to ORR and/or the
immigration court as written best interest determinations (BIDs). ORR
considers BIDs when making decisions regarding the care, placement, and
release of unaccompanied children, but it is not bound to follow BID
recommendations.
With respect to the role of child advocates, ORR considered several
ways to strengthen or expand the role, including granting child
advocates rights of access to ORR records and information on
unaccompanied children (in order to advocate for unaccompanied children
more effectively); allowing advocates to be present at all ORR hearings
and interviews with their client (excepting meetings between an
unaccompanied child and their attorney or EOIR accredited
representative); and expanding the child advocates program to operate
at more locations, or expanding eligibility for the program to allow
unaccompanied children who age past their 18th birthday to continue
receiving advocates' services. ORR considered the suggestions it
received, and notes that, as required by the TVPRA, it already provides
child advocates with access to materials necessary to effectively
advocate for the best interest of unaccompanied children. In
particular, per current ORR policies, and as reflected in this section,
child advocates have access both to their clients and to their clients'
records. Child advocates may access their clients' entire original case
files at care provider facilities, or request copies from care
providers. Further, they may participate in case staffings, which are
meetings organized by an unaccompanied child's care provider with other
relevant stakeholders to help discuss and plan for the unaccompanied
child's care. In drafting this NPRM, ORR believes that the proposed
language at Sec. 410.1308(b) (together with other paragraphs proposed
in Sec. 410.1308) represent an appropriate balance in codifying the
role of child advocates. ORR invites comment on these issues, and on
the proposals of Sec. 410.1308(b).
At paragraph Sec. 410.1308(c), ORR proposes to specify the
responsibilities of child advocates, which include: (1) visiting with
their unaccompanied children clients, (2) explaining the consequences
and potential outcomes of decisions that may affect the unaccompanied
child, (3) advocating for the unaccompanied child client's best
interest with respect to care, placement, services, release, and, where
appropriate, within proceedings to which the child is a party, (4)
providing best interest determinations, where appropriate and within a
reasonable time to ORR, an immigration court, and/or other interested
parties involved in a proceeding or matter in which the child is a
party or has an interest, and (5) regularly communicating case updates
with the care provider, ORR, and/or other interested parties in the
planning and performance of advocacy efforts, including updates related
to services provided to unaccompanied children after their release from
ORR care.
Consistent with the TVPRA at 8 U.S.C. 1232(c)(6)(A), under proposed
Sec. 410.1308(d), ORR may appoint child advocates for unaccompanied
children who are victims of trafficking or are especially vulnerable.
Under proposed Sec. 410.1308(d)(1), an interested party may refer an
unaccompanied child to ORR for a child advocate after notifying ORR
that a particular unaccompanied child in or previously in ORR's care is
a victim of trafficking or is especially vulnerable. As used in this
section, ``interested parties'' means individuals or organizations
involved in the care, service, or proceeding involving an unaccompanied
child, including but not limited to, ORR Federal or contracted staff;
an immigration court judge; DHS staff; a legal service provider,
attorney of record, or EOIR accredited representative; an ORR care
provider; a healthcare professional; or a child advocate organization.
Under proposed Sec. 410.1308(d)(2), ORR would make an appointment
decision within five (5) business days of referral for a child
advocate, except under exceptional circumstances including, but not
limited to, natural disasters (such as hurricane, fire, or flood) or
operational capacity issues due to influx which may delay a decision
regarding an appointment. ORR typically would consider the available
resources, including the availability of child advocates in a
particular region, when appointing a child advocate for unaccompanied
children in ORR care. ORR would appoint child advocates only for
unaccompanied children who are currently in or were previously in ORR
care. And under proposed Sec. 410.1308(d)(3), child advocate
appointments would terminate upon the closure of the unaccompanied
child's case by the child advocate, when the unaccompanied child turns
18, or when the unaccompanied child obtains lawful immigrant status.
Regarding the appointment of child advocates, ORR considered allowing
that any stakeholder should be able to make a confidential referral of
an unaccompanied child for child advocate services, and also that any
termination of such services should be determined in collaboration with
the unaccompanied child and the unaccompanied child's parent or legal
guardian (if applicable). In terms of referrals, proposed Sec.
410.1308(d) would allow for referrals for child advocate services from
a broad range of possible individuals. In terms of terminating child
advocate services, ORR considered making terminations contingent on a
collaborative process between the child advocate, the unaccompanied
child, and the unaccompanied child's sponsor, but ORR believes that the
current proposal at Sec. 410.1308(d)(3) would impose reasonable limits
for the termination of child advocate services, and that termination
itself otherwise falls within the role and responsibilities of child
advocates when advocating for an unaccompanied child's best interests.
Under Sec. 410.1308(e), ORR proposes standards concerning child
advocates' access to information about unaccompanied children for whom
they are appointed. After a child advocate is appointed for an
unaccompanied child, the child advocate would be provided access to
materials to effectively advocate for the best interest of the
unaccompanied child.\117\ Consistent with existing policy, child
advocates would be provided access to their
[[Page 68948]]
clients during normal business hours at an ORR care provider facility
in a private area, would be provided access to all their client's case
file information, and may request copies of the case file directly from
the unaccompanied child's care provider without going through ORR's
standard case file request process, subject to confidentiality
requirements described below. A child advocate would receive timely
notice concerning any transfer of an unaccompanied child assigned to
them.
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\117\ See 8 U.S.C. 1232(c)(6)(A) (``. . . A child advocate shall
be provided access to materials necessary to effectively advocate
for the best interest of the child . . .'').
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Under Sec. 410.1308(f), ORR proposes standards for a child
advocate's responsibility with respect to confidentiality of
information. Notwithstanding the access to their clients' case file
information granted to child advocates under proposed paragraph (e),
child advocates would be required to keep the information in the case
file, and information about the unaccompanied child's case,
confidential. Child advocates would be prohibited from sharing case
file information with anyone except with ORR grantees, contractors, and
Federal staff. Child advocates would not be permitted to disclose case
file information to other parties, including parties with an interest
in a child's case. Other parties are able to request an unaccompanied
child's case file information according to existing procedures. ORR
proposes these protections consistent with its interest in protecting
the privacy of unaccompanied children in its care, and for effective
control and management of its records. Proposed Sec. 410.1308(f) also
establishes that, with regard to an unaccompanied child in ORR care,
ORR would allow the child advocate of that unaccompanied child to
conduct private communications with the child, in a private area that
allows for confidentiality for in-person and virtual or telephone
meetings. In drafting proposed Sec. 410.1308(f), ORR considered
suggestions that a child advocate should be protected from compelled
disclosure of any information concerning an unaccompanied child shared
with them in the course of their advocacy work and that unaccompanied
children and child advocates must have access to private space to
ensure confidentiality of in-person meetings and virtual meetings. ORR
notes that proposed Sec. 410.1308(f) is to be read consistently with
the TVPRA requirement that child advocates ``shall not be compelled to
testify or provide evidence in any proceeding concerning any
information or opinion received from the child in the course of serving
as a child advocate.'' \118\ Also, ORR is seeking comment on specific
ways to ensure confidentiality of unaccompanied child-child advocate
meetings, and invites public comment on that issue, in particular on
appropriate ways to ensure privacy, as well as on the proposed text of
Sec. 410.1308(f) generally.
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\118\ 8 U.S.C. 1232(c)(6)(A).
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Under proposed Sec. 410.1308(g), ORR proposes that it would not
retaliate against a child advocate for actions taken within the scope
of their responsibilities. For example, ORR would not retaliate against
a child advocate because of any disagreement with a best interest
determination or because of a child advocate's advocacy on behalf of an
unaccompanied child. ORR notes that proposed Sec. 410.1308(g) is
intended to be read consistently with its statutory obligation to
provide access to materials necessary to effectively advocate for the
best interest of the child, and consistently with a presumption that
the child advocate acts in good faith with respect to their advocacy on
behalf of the child.\119\ At the same time, ORR has the responsibility
and authority to effectively manage its unaccompanied children's
program which includes, for example, ensuring that the interests of the
child are considered in decisions and actions relating to care and
custody, implementing policies with respect to the care and placement
of unaccompanied children, and overseeing the infrastructure and
personnel of facilities in which unaccompanied children reside.\120\
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\119\ See 8 U.S.C. 1232(c)(6)(A).
\120\ See 6 U.S.C. 279(b)(1)(B), (E), and (G).
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Section 410.1309 Legal Services
ORR proposes, at Sec. 410.1309, standards and requirements
relating to the provision of legal services to unaccompanied children
following entry into ORR care. The proposals under Sec. 410.1309 also
include standards relating to ORR funding for Legal Service Providers
for unaccompanied children.
ORR believes that Legal Service Providers who represent
unaccompanied children undertake an important function by representing
such children while in ORR care and in some instances after release.
The proposals under Sec. 410.1309 build on current ORR policies, which
articulate standards for legal services for unaccompanied children. ORR
strives for 100% legal representation of unaccompanied children and
will continue to work towards that goal to the extent possible. ORR
invites public comment as to whether and how there are further ways to
broaden representation for unaccompanied children.
ORR notes that under the TVPRA, at 8 U.S.C. 1232(c)(5), the
Secretary of HHS must ``ensure, to the greatest extent practicable and
consistent with section 292 of the Immigration and Nationality Act (8
U.S.C. 1362),'' that all unaccompanied children who are or have been in
its the custody or in the custody of DHS, with exceptions for children
who are habitual residents of certain countries, have counsel ``to
represent them in legal proceedings or matters and protect them from
mistreatment, exploitation, and trafficking.'' The Secretary of Health
and Human Services ``shall make every effort to utilize the services of
pro bono counsel who agree to provide representation to such children
without charge.'' The INA, 8 U.S.C. 1362, provides, ``In any removal
proceedings before an immigration judge and in any appeal proceedings
before the Attorney General from any such removal proceedings, the
person concerned shall have the privilege of being represented (at no
expense to the Government) by such counsel, authorized to practice in
such proceedings, as he shall choose.''
Thus, under the TVPRA, HHS has an obligation, ``to the greatest
extent practicable,'' to ensure that unaccompanied children have
counsel in (1) immigration proceedings and (2) to protect them from
mistreatment, exploitation, and trafficking. Because 8 U.S.C.
1232(c)(5) states these responsibilities are ``consistent with'' 8
U.S.C. 1362, ORR reads these provisions together as establishing that,
while the statute establishes HHS' obligations in relation to legal
services, there is not a right to government-funded counsel under 8
U.S.C. 1232(c)(5). Rather, ORR understands that it has a duty to ensure
to the greatest extent practicable that unaccompanied children have
counsel at no expense to the government, for both purposes described by
the TVPRA. Further, the second sentence of 8 U.S.C. 1232(c)(5) states
that the Secretary of HHS shall, to the greatest extent practicable,
make every effort to utilize the services of pro bono counsel. ORR
understands this requirement as establishing the preferred means by
which counsel is provided to unaccompanied children, but also that the
Secretary has authority to utilize other types of services--namely
services that are not pro bono--in areas where pro bono services are
not available. In summary, insofar as it is not practicable for the
Secretary of HHS to utilize the services of pro bono counsel for all
unaccompanied children specified at 8
[[Page 68949]]
U.S.C. 1232(c)(5), the Secretary has discretion under that section (but
not the obligation) also to fund client representation for counsel for
the unaccompanied children both (1) in immigration proceedings, and (2)
to protect them from mistreatment, exploitation, and trafficking--as
such concerns may arise outside the context of immigration proceedings
(e.g., other discrete services outside the context of immigration
proceedings as described in the paragraphs below).
ORR proposes, at Sec. 410.1309(a)(1), that ORR would ensure, to
the greatest extent practicable and consistent with section 292 of the
Immigration and Nationality Act (8 U.S.C. 1362), that all unaccompanied
children who are or have been in ORR care, and who are not subject to
special rules for children from contiguous countries, have access to
legal advice and representation in immigration legal proceedings or
matters, consistent with current policy and as further described in
this section. ORR understands ``to the greatest extent practicable'' to
reflect that the provision of legal services must be subject to
available resources, as determined by ORR, and otherwise practicable.
ORR proposes, at Sec. 410.1309(a)(2), that an unaccompanied child
in ORR care receive (1) a presentation concerning the rights and
responsibilities of unaccompanied children in the immigration system,
including information about protections under child labor laws and
educational rights, presented in the language of the unaccompanied
child and in an in age-appropriate manner; (2) information regarding
availability of free legal assistance, and that they may be represented
by counsel, at no expense to the government; \121\ (3) notification of
the ability to petition for SIJ classification, to request that a state
juvenile court determine dependency or placement, and notification of
the ability to apply for asylum or other forms of relief from removal;
(4) information regarding the unaccompanied child's right to a removal
hearing before an immigration judge, the ability to apply for asylum
with USCIS in the first instance, and the ability to request voluntary
departure in lieu of removal; and (5) a confidential legal consultation
with a qualified attorney (or paralegal working under the direction of
an attorney, or EOIR accredited representative) to determine possible
forms of legal relief in relation to the unaccompanied child's
immigration case. ORR also proposes in Sec. 410.1309(a)(2) that an
unaccompanied child in ORR care be able to communicate privately with
their attorney of record, EOIR accredited representative, or legal
service provider, in a private enclosed area that allows for
confidentiality for in-person and virtual or telephone meetings. ORR
notes that these proposed services go beyond that which is required
under the FSA. For example, although both the FSA and proposed Sec.
410.1309(a)(2) require that unaccompanied children receive information
regarding their legal rights and availability of free legal assistance,
proposed Sec. 410.1309(a)(2) would provide additional specificity to
the type of information that would be provided. Additionally, ORR notes
that proposed Sec. 410.1309(a)(2) goes beyond the scope of what is
required under the FSA by providing that unaccompanied children receive
not just information regarding the availability of legal counsel, but
also requiring that unaccompanied children receive a confidential legal
consultation with a qualified attorney (or paralegal working under the
direction of an attorney, or a DOJ accredited representative) to help
them understand their individual immigration case. Finally, although
the FSA requires that unaccompanied children have ``a reasonable right
to privacy,'' which includes the right to talk privately on the phone
and meet privately with guests (as permitted by the facility's house
rules and regulations), FSA Exhibit 1 at paragraph A.12, proposed Sec.
410.1309(a)(2) would go beyond the FSA's requirement to make explicit
that communications and meetings with the unaccompanied child's
attorney of record, EOIR accredited representative, and legal service
provider must be held in enclosed designated spaces, without reference
to any limitation on such rights by the facility's house rules and
regulations.
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\121\ This language is intended, consistent with ORR's statutory
authorities, to implement paragraph A.14 of Exhibit 1 of the FSA,
which states: ``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 deportation
or exclusion hearing before an immigration judge, the right to apply
for political asylum or to request voluntary departure in lieu of
deportation.'' With respect to information regarding the
availability of free legal assistance, ORR understands the proposed
language at Sec. 410.1309(a)(2)(ii) to be consistent with paragraph
A.14, but updated to avoid potential confusion. As discussed above,
8 U.S.C. 1232(c)(5) does not describe an unaccompanied child's
ability to access legal counsel as a ``right;'' and ORR cannot, by
regulation, confer such a right. Rather, by reference to the
Immigration and Nationality Act, the TVPRA describes unaccompanied
children's access to counsel as a ``privilege,'' and also makes HHS
responsible for ensuring such privilege ``to the greatest extent
practicable.'' ORR notes that this clarification does not represent
a change in ORR's existing policies or practices, and as described
elsewhere in this section, ORR proposes to expand the availability
of legal services to unaccompanied children beyond current practice.
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With respect to the confidential legal consultation, ORR notes the
importance of allowing unaccompanied children and their legal service
providers, attorneys of record, or EOIR accredited representatives
access to private space, to ensure that any communications or meetings
about legal matters can be held confidentially. In addition, in
developing the proposal to require a presentation on the rights of
unaccompanied children in the immigration system, ORR is considering
including a requirement for additional presentations for unaccompanied
children who remain in ORR care beyond six months.
ORR proposes, at Sec. 410.1309(a)(3), that ORR would require this
information, regarding unaccompanied children's legal rights and access
to services while in ORR care, be posted in an age-appropriate format
and translated into each child's preferred language consistent with
proposed Sec. 410.1306, in any ORR contracted or grant-funded facility
where unaccompanied children are in ORR care.
ORR proposes, at Sec. 410.1309(a)(4), that to the extent that
appropriations are available, and insofar as it is not practicable to
secure pro bono counsel for unaccompanied children as specified at 8
U.S.C. 1232(c)(5), ORR would fund legal service providers to provide
direct immigration legal representation to certain unaccompanied
children subject to ORR's discretion to the extent it determines
appropriations are available. Examples of direct immigration legal
representation include, but are not limited to: (1) for unrepresented
unaccompanied children who become enrolled in ORR URM Programs,
provided they have not yet obtained lawful status or reached 18 years
of age at the time of retention of an attorney; (2) for unaccompanied
children in ORR care who must appear before EOIR, including children
seeking voluntary departure, or who must appear before U.S. Citizenship
and Immigration Services (USCIS); (3) for unaccompanied children
released to a sponsor residing in the defined service area of the same
legal service provider who provided the child legal services in ORR
care, to promote continuity of legal services; and (4) for other
unaccompanied children, in ORR's discretion.
Under proposed Sec. 410.1309(b), ORR would fund legal services for
the protection of an unaccompanied child's
[[Page 68950]]
interests in certain matters not involving direct immigration
representation, consistent with its obligations under the HSA, 6 U.S.C.
279(b)(1)(B), and the TVPRA, 8 U.S.C. 1232(c)(5). In addition to the
direct immigration representation outlined in Sec. 410.1309(a)(4), to
the extent ORR determines that appropriations are available and use of
pro bono counsel is impracticable, ORR proposes that ORR may (but is
not required to) make funding for additional access to counsel
available for unaccompanied children in the following enumerated
situations for proceedings outside of the immigration system when
appropriations allow and subject to ORR's discretion in no particular
order of prioritization: (1) ORR appellate procedures, including the
Placement Review Panel (PRP) related to placement in restrictive
facilities under Sec. 410.1902, risk determination hearings under
Sec. 410.1903, and the denial of a release to the child's parent or
legal guardian under Sec. 410.1206; (2) for unaccompanied children
upon their placement in ORR long-term home care or in an RTC outside a
licensed ORR facility and for whom other legal assistance does not
satisfy the legal needs of the individual child; (3) for unaccompanied
children with no identified sponsor who are unable to be placed in ORR
long-term home care or ORR transitional home care; (4) for purposes of
judicial bypass or similar legal processes as necessary to enable an
unaccompanied child to access certain lawful medical procedures that
require the consent of the parent or legal guardian under state law and
the unaccompanied child is unable or unwilling to obtain such consent;
(5) for the purpose of representing an unaccompanied child in state
juvenile court proceedings, when the unaccompanied child already
possesses SIJ classification; and (6) for the purpose of helping an
unaccompanied child to obtain an employment authorization document. ORR
invites comment on these proposals under Sec. 410.1309(b), and also
with regard to how a mechanism might be incorporated into the rule to
help prevent, or reduce the likelihood of, the zeroing-out of funding
for legal representation, while also ensuring sufficient funding for
capacity to address influxes.
At Sec. 410.1309(c), ORR proposes to establish relevant
requirements and expectations for the provision of the legal services
described at Sec. 410.1309(a) and (b). ORR proposes at Sec.
410.1309(c)(1) that in the course of funding legal counsel for any
unaccompanied children under proposed Sec. 410.1309(a)(4) or (b)(2),
in-person meetings would be preferred, although unaccompanied children
and their representatives would be able to meet by telephone or
teleconference as an alternative option when needed and when such
meetings can be facilitated in such a way as to preserve the
unaccompanied child's privacy. Either the unaccompanied child's
attorney of record or EOIR accredited representative or an ORR staff
member or care provider would always accompany the unaccompanied child
to any in-person hearing or proceeding, in connection with any legal
representation of an unaccompanied child pursuant to Sec. 410.1309.
When developing proposed Sec. 410.1309(c)(1), ORR considered the
alternatives of enacting a requirement that an unaccompanied child's
attorney of record or BIA accredited representative always be required
to attend court hearings and proceedings in-person with the
unaccompanied child, or that the attorney of record or EOIR accredited
representative always engage in in-person meetings with the
unaccompanied child while representing them, absent a good cause reason
not to do so. ORR concluded that the current proposal at Sec.
410.1309(c)(1) reflects a balance between ensuring that unaccompanied
children have effective access to legal representation and services,
while establishing a preference for in-person meetings, and ensuring
that unaccompanied children will not have to walk into physical
proceedings alone.
Under proposed Sec. 410.1309(c)(2), ORR would require the sharing
of certain information with an unaccompanied child's representative,
including certain notices. Under paragraph (c)(2), upon receipt by ORR
of (1) proof of representation and (2) authorization for release of
records signed by the unaccompanied child or other authorized
representative, ORR would, upon request, share the unaccompanied
child's complete case file apart from any legally required redactions
to assist with legal representation of that child. Section
410.1309(c)(2) reflects current ORR policy guidance describing the
process by which an individual will be recognized by ORR as the
attorney of record or EOIR accredited representative for an
unaccompanied child. Under current practice, ORR recognizes an
individual as an unaccompanied child's attorney of record or EOIR
accredited representative through the submission of an ORR form, the
ORR Notice of Attorney Representation. ORR notes that this form is not
identified specifically in the proposed regulatory text, so as to
preserve operational flexibility for ORR to accept different forms of
proof as appropriate, as needed. ORR also considered the importance of
timely notice by ORR to the unaccompanied child's representative in
order to allow for effective legal representation, in connection with
law enforcement events, age redetermination processes, and allegations
of sexual abuse or harassment.
ORR seeks public comment on these issues, including the scope of
reportable events or interactions with law enforcement and scope of
notice depending on the unaccompanied child's involvement in the
reportable event (i.e., as an alleged victim, alleged perpetrator, or
as a witness). With allegations or accusations of sexual abuse or
harassment, ORR solicits public comment on privacy concerns and other
considerations. ORR also solicits comment on the appropriate timeframes
for various types of notification.
As discussed in section IV.B of this NPRM, the Secretary's
authority under 8 U.S.C. 1232 has been delegated to the ORR Director.
As discussed above, ORR understands that in addition to expanding
access to pro bono services and funding legal services in immigration-
related proceedings or matters, it may also promote pro bono services
and fund legal services for broader purposes that relate to protecting
unaccompanied children from mistreatment, exploitation, and
trafficking. Consistent with the TVPRA, ORR makes every effort to use
pro bono legal services to the greatest extent practicable to secure
counsel for unaccompanied children in these contexts. Specifically,
ORR-funded legal service providers may help coordinate a referral to
pro bono services, and ORR provides each unaccompanied child with lists
of pro bono legal service providers by state and pro bono services
available through a national organization upon admission into a care
provider facility.\122\ That said, in some cases it is impracticable
for ORR to secure pro bono legal services for unaccompanied children.
For example, it may be impracticable to secure pro bono services if the
demand for such services exceeds the supply of pro bono services, as
may occur at certain locations or during times of influx. To
[[Page 68951]]
the extent pro bono legal services are unavailable or impracticable to
secure because it has limited resources, ORR must be selective in the
kinds of legal services it funds. As a result, ORR proposes through
this rule to establish its discretion to fund legal services for
specific purposes, based on its judgment and priorities.
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\122\ See 6 U.S.C. 279(b)(1)(I). See also Office of Refugee
Resettlement Division of Unaccompanied Children Operations, Legal
Resource Guide--Legal Service Provider List for [UC] in ORR Care,
https://www.acf.hhs.gov/sites/default/files/documents/orr/english_legal_service_providers_guide_with_form_508.pdf.
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In terms of funding legal services, at proposed Sec. 410.1309(d),
ORR also proposes to, in its discretion and subject to available
resources, make available funds (if appropriated) to relevant agencies
or organizations to provide legal services for unaccompanied children
who have been released from ORR care and custody. ORR would establish
authority to make available grants--including formula grants
distributed geographically in proportion to the population of released
unaccompanied children--or contracts for immigration legal
representation, assistance, and related services to unaccompanied
children.
To prevent retaliation against legal service providers, at Sec.
410.1309(e), ORR proposes that it shall presume that legal service
providers are acting in good faith with respect to their advocacy on
behalf of unaccompanied children, and ORR shall not retaliate against a
legal service provider for actions taken within the scope of the legal
service providers' responsibilities. For example, ORR shall not engage
in retaliatory actions against legal service providers or any other
representative for reporting harm or misconduct on behalf of an
unaccompanied child. As noted at proposed Sec. 410.1309(e), ORR will
not retaliate against legal service providers; however, ORR has the
responsibility and authority to effectively manage its unaccompanied
children's program which includes, for example, ensuring that the
interests of the child are considered in decisions and actions relating
to care and custody, implementing policies with respect to the care and
placement of unaccompanied children, and overseeing the infrastructure
and personnel of facilities in which unaccompanied children reside.
Section 410.1310 Psychotropic Medications
ORR is proposing requirements related to the administration of
psychotropic medications to unaccompanied children while in ORR care.
ORR notes that the third of the five plaintiff classes certified by the
United States District Court for the Central District of California in
the Lucas R. v. Becerra case, as discussed in section IV.A.4. of this
proposed rule, is the ``drug administration class.'' The class is
comprised of unaccompanied children in ORR custody ``who are or will be
prescribed or administered one or more psychotropic medications without
procedural safeguards[.]'' \123\ ORR will be bound by any potential
future court decisions or settlements in the case.\124\ The Court's
Preliminary Injunction ordered on August 30, 2022, did not address this
claim and, as of April 2023, ORR remains in active litigation regarding
this claim.
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\123\ Amended Order re Defendants' Mot. to Dismiss and
Plaintiffs' Mot. for Class Cert., Lucas R., et al. v. Xavier
Becerra, et al., No. 18-CV-5741 (C.D. Cal. Dec. 27, 2018).
\124\ Lucas R., et al. v. Xavier Becerra, et al., 18-CV-5741
(DMG) (C.D. Cal. filed Jun. 29, 2018).
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ORR believes that psychotropic medications should only be
administered appropriately and in the best interest of the child and
with meaningful oversight. Therefore, ORR is proposing in Sec.
410.1310(a) that, except in the case of a psychiatric emergency, ORR
must ensure that, whenever possible, authorized individuals provide
informed consent prior to the administration of psychotropic
medications to unaccompanied children. In Sec. 410.1310(b), ORR
proposes that it would ensure meaningful oversight of the
administration of psychotropic medication(s) to unaccompanied children.
Examples of such oversight are the review of cases flagged by care
providers, and secondary retrospective reviews of the administration of
psychotropic medication(s) in certain circumstances, such as based on
the child's age, the number of psychotropic medications that have been
prescribed, or the dosages of such psychotropic medications.
Section 410.1311 Unaccompanied Children With Disabilities
ORR believes that protection against discrimination and equal
access to the UC Program is inherent to ensuring that unaccompanied
children with disabilities receive appropriate care while in ORR
custody. ORR notes that the Lucas R. case, discussed in the Background
of this proposed rule, is relevant to this topic area and that ORR will
be bound by any potential future court decisions or settlements in the
case. The fifth of the five plaintiff classes certified by the United
States District Court for the Central District of California in Lucas
R. is the ``disability class'' that includes unaccompanied children
``who have or will have a behavioral, mental health, intellectual, and/
or developmental disability as defined in 29 U.S.C. 705, and who are or
will be placed in a secure facility, medium-secure facility, or [RTC]
because of such disabilities [(i.e., the `disability class')].'' \125\
The Court's Preliminary Injunction ordered on August 30, 2022, did not
settle this claim and, as of April 2023, ORR remains in active
litigation regarding this claim. ORR is proposing requirements to
ensure the UC Program's compliance with the HHS section 504
implementing regulations at 45 CFR part 85. ORR is therefore proposing
at Sec. 410.1311(a) to provide notice of the protections against
discrimination assured to unaccompanied children with disabilities by
section 504 at 45 CFR part 85 while in the custody of ORR and the
available procedures for seeking reasonable modifications or making a
complaint about alleged discrimination against children with
disabilities in ORR's custody.
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\125\ Amended Order re Defendants' Mot. to Dismiss and
Plaintiffs' Mot. for Class Cert., Lucas R., et al. v. Xavier
Becerra, et al., No. 18-CV-5741 (C.D. Cal. Dec. 27, 2018).
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ORR understands its obligations under section 504 to administer
programs and activities in the most integrated setting appropriate to
the needs of qualified unaccompanied children with disabilities.\126\
ORR is proposing at Sec. 410.1311(b) ORR shall administer the UC
Program in the most integrated setting appropriate to the needs of
children with disabilities, in accordance with 45 CFR 85.21(d), unless
ORR can demonstrate that this would fundamentally alter the nature of
its UC Program. As noted, the most integrated setting is a setting that
enables individuals with disabilities to interact with non-disabled
individuals to the fullest extent possible.\127\
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\126\ 45 CFR 85.21(d).
\127\ 53 FR 25595, 25600 (July 8, 1988).
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ORR is proposing at Sec. 410.1311(c) that it would provide
reasonable modifications to the UC Program for each unaccompanied child
with one or more disabilities as needed to ensure equal access to the
UC Program. ORR would not, however, be required to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity. Under proposed Sec. 410.1311(d), ORR
would require that services, supports, and program modifications being
provided to an unaccompanied child with one or more disabilities be
documented in the child's case file, where applicable.
Under proposed Sec. 410.1311(e), in addition to the requirements
for release of unaccompanied children established elsewhere in this
regulation and through
[[Page 68952]]
any subregulatory guidance ORR may issue, ORR is proposing requirements
regarding the release of an unaccompanied child with one or more
disabilities to a sponsor. Section 410.1311(e)(1) would require that
ORR's assessment under Sec. 410.1202 of a potential sponsor's
capability to provide for the physical and mental well-being of the
unaccompanied child must include explicit consideration of the impact
of the child's disability or disabilities. Under Sec. 410.1311(e)(2),
in conducting PRS, ORR and any entities through which ORR provides PRS
shall make reasonable modifications in their policies, practices, and
procedures if needed to enable released unaccompanied children with
disabilities to live in the most integrated setting appropriate to
their needs, such as with a sponsor. ORR is not required, however, to
take any action that it can demonstrate would result in a fundamental
alteration in the nature of a program or activity. Additionally, ORR
would affirmatively support and assist otherwise viable potential
sponsors in accessing and coordinating appropriate post-release,
community-based services and supports available in the community to
support the sponsor's ability to care for the unaccompanied child with
one or more disabilities, as provided for under proposed Sec.
410.1210. Under Sec. 410.1311(e)(3), ORR would not delay the release
of an unaccompanied child with one or more disabilities solely because
post-release services are not in place prior to the child's release.
Subpart E--Transportation of an Unaccompanied Child
Section 410.1400 Purpose of This Subpart
This proposed subpart concerns the safe transportation of each
unaccompanied child while in ORR's care. ORR notes that ORR generally
does not provide transport for initial placements upon referral from
another Federal agency, but rather, it is the responsibility of other
Federal agencies to transfer the unaccompanied child to ORR custody
within 72 hours of determining the individual is an unaccompanied
child.\128\ ORR, or its care provider facilities, does provide
transportation while the unaccompanied child is under its care
including in the following circumstances: (1) for purposes of service
provision, such as for medical services, immigration court hearings, or
community services; (2) when transferring between facilities or to an
out of network placement; (3) group transfers due to an emergency or
influx; and (4) for release of an unaccompanied child to a sponsor who
is not able to pick up the unaccompanied child, as approved by ORR.
Proposed subpart E provides certain requirements for such
transportation while unaccompanied children are under ORR care.
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\128\ See 8 U.S.C. 1232(b)(3).
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Section 410.1401 Transportation of an Unaccompanied Child in ORR's Care
ORR proposes transportation requirements for care provider
facilities to help ensure that unaccompanied children are safely
transported during their time in ORR care. Proposed Sec. 410.1401(a)
would require care provider facilities to transport an unaccompanied
child in a manner that is appropriate to the child's age and physical
and mental needs, including proper use of car seats for young children,
and consistent with proposed Sec. 410.1304. For example, individuals
transporting unaccompanied children would be able to use de-escalation
or other positive behavior management techniques to ensure safety, as
explained in the discussion of proposed Sec. 410.1304(a). As discussed
in proposed Sec. 410.1304(f), care provider facilities may only use
soft restraints (e.g., zip ties and leg or ankle weights) during
transport to and from secure facilities, and only when the care
provider facility believes the child poses a serious risk of physical
harm to self or others or a serious risk of running away from ORR
custody. As discussed in proposed Sec. 410.1304(e)(2), secure
facilities, except for RTCs, may restrain a child for their own
immediate safety or that of others during transport to an immigration
court or an asylum interview. ORR believes the proposed requirements at
Sec. 410.1401(a) are important to ensuring the safety of unaccompanied
children as well as those around them while being transported in ORR
care.
Under proposed Sec. 410.1401(b), ORR would codify a requirement in
the FSA that it assist without undue delay in making transportation
arrangements where it has approved the release of an unaccompanied
child to a sponsor, pursuant to proposed Sec. Sec. 410.1202 and
410.1203. ORR also proposes that it would have the authority to require
the care provider facility to transport an unaccompanied child. In
these circumstances, ORR may, in its discretion, reimburse the care
provider facility or pay directly for the child and/or sponsor's
transportation, as appropriate, to facilitate timely release.
To further ensure safe transportation of unaccompanied children,
proposed Sec. 410.1401(c) proposes to codify existing ORR policy that
care provider facilities shall comply with all relevant State and local
licensing requirements and state and Federal regulations regarding
transportation of children, such as meeting or exceeding the minimum
staff/child ratio required by the care provider facility's licensing
agency, maintaining and inspecting all vehicles used for
transportation, etc. If there is a potential conflict between ORR's
regulations and state law, ORR will review the circumstances to
determine how to ensure that it is able to meet its statutory
responsibilities. It is important to note, however, that if a State law
or license, registration, certification, or other requirement conflicts
with an ORR employee's duties within the scope of their ORR employment,
the ORR employee is required to abide by their Federal duties, which
ORR proposes at Sec. 410.1401(d). Under proposed Sec. 410.1401(e),
ORR proposes to require the care provider facility to conduct all
necessary background checks for drivers transporting unaccompanied
children, in compliance with proposed Sec. 410.1305(a). Finally,
proposed Sec. 410.1401(f) proposes to codify existing ORR policy that
if a care provider facility is transporting an unaccompanied child,
then at least one transport staff of the same gender as the
unaccompanied child being transported must be present in the vehicle to
the greatest extent possible under the circumstances.
Subpart F--Data and Reporting Requirements
Proposed 45 CFR part 410, subpart F, provides guidelines for care
provider facilities to report information such that ORR may compile and
maintain statistical information and other data on unaccompanied
children.
Section 410.1500 Purpose of This Subpart
The HSA requires the collection of certain data about the children
in ORR's care and custody.\129\ Specifically, ORR is required to
maintain statistical and other information on unaccompanied children
for whom ORR is responsible, including information available from other
government agencies and including information related to a child's
biographical information, the date the child entered Federal custody
due to immigration status, documentation of placement, transfer,
removal, and release from ORR facilities, documentation of and
rationale for any detention, and
[[Page 68953]]
information about the disposition of any actions in which the child is
the subject.
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\129\ 6 U.S.C. 279(b)(1)(J).
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Section 410.1501 Data on Unaccompanied Children
This proposed section implements the HSA by requiring care provider
facilities to maintain and periodically report to ORR data described in
proposed Sec. 410.1501(a) through (e): biographical information, such
as an unaccompanied child's name, gender, date of birth, country of
birth, whether of indigenous origin and country of habitual residence;
the date on which the unaccompanied child came into Federal custody by
reason of immigration status; information relating to the unaccompanied
child's placement, removal, or release from each care provider facility
in which the child has resided, including the date and to whom and
where placed, transferred, removed, or released in any case in which
the unaccompanied child is placed in detention or released, an
explanation relating to the detention or release; and the disposition
of any actions in which the child is the subject. In addition, for
purposes of ensuring that ORR can continue to appropriately support and
care for children in its care throughout their time in ORR care
provider facilities, as well as to allow additional program review, ORR
proposes in Sec. 410.1501(f) and (g) that care provider facilities
also document and periodically report to ORR information gathered from
assessments, evaluations, or reports of the child and data necessary to
evaluate and improve the care and services for unaccompanied children.
ORR notes that some of the information described in this section, such
as requirements described at paragraphs (f) and (g), or reporting
regarding whether an unaccompanied child is of indigenous origin, is
not specifically enumerated at 6 U.S.C. 279(b)(1)(J). Nevertheless, ORR
proposes including such information in the rule text because it
understands maintaining such information to be consistent with other
duties under the HSA to coordinate and implement the care and placement
of unaccompanied children.
Subpart G--Transfers
In this NPRM, ORR proposes to codify requirements and policies
regarding the transfer of an unaccompanied child in ORR care. The
following provisions identify general requirements for the transfer of
an unaccompanied child, as well as certain circumstances in which
transfers are necessary, such as in emergencies.
Section 410.1600 Purpose of This Subpart
ORR proposes at Sec. 410.1600 to codify the purpose of this
subpart as providing the guidelines for the transfer of an
unaccompanied child.
Section 410.1601 Transfer of an Unaccompanied Child Within the ORR Care
Provider Facility Network
ORR proposes, at Sec. 410.1601(a), to codify general requirements
for transfers of an unaccompanied child within the ORR care provider
network. ORR proposes that care provider facilities would be required
to continuously assess an unaccompanied child in their care to ensure
the unaccompanied child placements are appropriate. This proposed
requirement is consistent with the TVPRA, which provides that an
unaccompanied child shall be placed in the least restrictive setting
that is in their best interests, subject to considerations of danger to
self or the community and runaway risk.\130\ Additionally, care
provider facilities would be required to follow ORR policy guidance,
including guidance regarding placement considerations, when making
transfer recommendations. ORR also proposes requirements for care
provider facilities to ensure the health and safety of an unaccompanied
child. The proposed requirements align with proposed Sec. 410.1307(b),
where ORR proposes procedures related to placements upon the ORR
transfer of an unaccompanied child to a facility that is able to
accommodate the medical needs or requests of the unaccompanied child.
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\130\ 8 U.S.C. 1232(c)(3)(A).
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At proposed Sec. 410.1601(a)(1), care provider facilities would be
required to make transfer recommendations to ORR if they identify an
alternate placement for a child that best meets a child's needs. Under
proposed Sec. 410.1601(a)(2), when ORR transfers an unaccompanied
child, the unaccompanied child's current care provider facility would
be required to ensure that the unaccompanied child is medically cleared
for transfer within three business days, provided the unaccompanied
child's health allows and unless otherwise waived by ORR. For an
unaccompanied child with acute or chronic medical conditions, or
seeking medical services requiring heightened ORR involvement, the
appropriate care provider facility staff and ORR would be required to
meet to review the transfer recommendation. Should the unaccompanied
child not be medically cleared for transfer within three business days,
the care provider facility would be required to notify ORR. ORR would
provide the final determination of a child's fitness for travel if the
child is not medically cleared for transfer by a care provider
facility. Should ORR determine the unaccompanied child is not fit for
travel, ORR would be required to notify the unaccompanied child's
current care provider facility of the denial and specify a timeframe
for the care provider facility to re-evaluate the transfer of the
unaccompanied child. ORR welcomes public comment on these proposals.
At proposed Sec. 410.1601(a)(3), ORR describes notifications that
would be required when ORR transfers an unaccompanied child to another
care provider facility, including required timeframes for such
notifications. Specifically, ORR proposes that within 48 hours prior to
the unaccompanied child's physical transfer, the referring care
provider facility would be required to notify all appropriate
interested parties of the transfer, including the child, the child's
attorney of record, legal service provider, or Child Advocate, as
applicable. ORR notes, in addition, that interested parties may include
EOIR. Proposed Sec. 410.1601(a)(3) further provides that advanced
notice shall not be required in unusual and compelling circumstances.
In such a case, notice to interested parties must be provided within 24
hours following the transfer of an unaccompanied child in such
circumstances. ORR is aware of concerns around notifications regarding
the transfer of an unaccompanied child and believes that these proposed
requirements provide an effective timeline and notice while still
allowing for flexibility if there are unusual and compelling
circumstances. ORR believes proposed Sec. 410.1601(a)(3) is consistent
with, and even goes beyond, the requirements set out in the FSA at
paragraph 27, which requires only ``advance notice'' to counsel when an
unaccompanied child is transferred but does not specify how much
advance notice is required.
Proposed Sec. 410.1601(a)(4) and (5) would codify requirements
from paragraph 27 of the FSA that children be transferred with their
possessions and legal papers, and any possessions that exceed the
normally permitted amount by carriers be shipped in a timely manner to
where the child is placed. ORR would also require that children be
transferred with a 30-day supply of medications if applicable.
Consistent with existing practice, ORR would require that the accepting
care provider is instructed in the proper administration of the
unaccompanied child's medications.
[[Page 68954]]
Proposed Sec. 410.1601(b) would codify current ORR practices
regarding the review of restrictive placements. When unaccompanied
children are placed in a restrictive setting (secure, heightened
supervision, or Residential Treatment Center), the receiving care
provider facility and ORR would be required to review their placement
at least every 30 days to determine if another level of care is
appropriate. Should the care provider facility and ORR determine that
continued placement in a restrictive setting is necessary, the care
provider facility would be required to document, and as requested,
provide the rationale for continued placement to the child's attorney
of record, legal service provider, and their Child Advocate.
Proposed Sec. 410.1601(c) describes requirements related to group
transfers. Group transfers are described as circumstances where a care
provider facility transfers more than one child at a time, due to
emergencies or program closures, for example. Under proposed Sec.
410.1601(c), when group transfers are necessary, care provider
facilities would be required to follow ORR policy guidance and
additionally be required to follow the substantive requirements
provided in Sec. 410.1601(a). ORR believes that clarifying these
requirements for care provider facilities engaging in group transfers
would help to ensure the safety and health of unaccompanied children in
emergency and other situations that require the transfer of multiple
unaccompanied children. ORR seeks public comment on these proposals.
Proposed Sec. 410.1601(d) describes requirements related to the
transfer of an unaccompanied child in a care provider facility's care
to an RTC. Under this proposed provision, care provider facilities
would be permitted to request the transfer of an unaccompanied child in
their care pursuant to the requirements of proposed Sec. 410.1105(c).
ORR proposes, at Sec. 410.1601(e), requirements concerning the
temporary transfer of an unaccompanied child during emergency
situations. In Sec. 410.1601(e), ORR makes clear that, consistent with
the HSA and TVPRA, an unaccompanied child remains in the legal custody
of ORR and may only be transferred or released by ORR. As allowed under
the FSA, ORR proposes, in emergency situations, to allow care provider
facilities to temporarily change the physical placement of an
unaccompanied child prior to securing permission from ORR. But in these
situations, ORR would require the care provider to notify ORR of the
change of placement as soon as possible, but in all cases within eight
hours of transfer.
As a general matter and given the standard that placements must be
in the best interests of the child, it is ORR's preference to minimize
the transfer of an unaccompanied child and limit transfers to
situations in which a transfer is necessary in order to promote
stability and encourage establishment of relationships, particularly
among vulnerable children in ORR care. ORR broadly invites public
comment on all of the proposals under subpart G, and solicits input
regarding the specifics, language, and scope of additional provisions
related to minimizing the transfers of an unaccompanied child and the
placement of an unaccompanied child with disabilities.
Subpart H--Age Determinations
In subpart H of this proposed rule, ORR provides guidelines for
determining the age of an individual in ORR care. The TVPRA instructs
HHS to devise age determination procedures for individuals without
lawful immigration status in consultation with DHS.\131\ Consistent
with the TVPRA, HHS and DHS jointly developed policies and procedures
to assist in the process of determining the correct age of individuals
in Federal custody. Establishing the age of the individual is critical
because, for purposes of the UC Program, HHS only has authority to
provide care to unaccompanied children, who are defined in relevant
part as individuals who have not attained 18 years of age. ORR also
notes that the FSA allows for age determinations in the event there is
a question as to veracity of the individual's alleged age.
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\131\ See 8 U.S.C. 1232(b)(4).
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Section 410.1700 Purpose of This Subpart
ORR acknowledges the challenges in determining the age of
individuals who are in Federal care and custody. These challenges
include but are not limited to: lack of available documentation;
contradictory or fraudulent identity documentation and/or statements;
ambiguous physical appearance of the individual; and diminished
capacity of the individual. Proposed Sec. 410.1700 sets forth the
purpose of this subpart as providing the provisions for determining the
age of an individual in ORR custody. ORR notes that under this proposed
section, and as a matter of current practice, it would only conduct age
determination procedures if there is a reasonable suspicion that an
individual is not a minor. ORR believes that the proposed requirements
and standards described within this subpart properly balance the
concerns of children who are truly unaccompanied children with the
importance of ensuring individuals are appropriately identified as a
minor. ORR notes that proposed Sec. 410.1309 regards required
notification to legal counsel regarding age determinations.
Section 410.1701 Applicability
Proposed Sec. 410.1701 states that this subpart would apply to
individuals in the custody of ORR. This would be consistent with 8
U.S.C. 1232(b)(4), which specifies that DHS' and HHS' age determination
procedures ``shall'' be used by each department ``for children in their
respective custody.'' Proposed Sec. 410.1701 also reiterates that
under the statutory definition of an unaccompanied child,\132\ an
individual must be under 18 years of age.
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\132\ See 6 U.S.C. 279(g)(2).
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Section 410.1702 Conducting Age Determinations
Proposed Sec. 410.1702 would codify general requirements for
conducting age determinations. The TVPRA requires that age
determination procedures, at a minimum, consider multiple forms of
evidence, including non-exclusive use of radiographs. Given these
minimum requirements, proposed Sec. 410.1702 would allow for the use
of medical or dental examinations, including X-rays, conducted by a
medical professional, and other appropriate procedures. The terms
``medical'' and ``dental examinations'' are taken from the FSA at
paragraph 13, and ORR interprets them to include ``radiographs'' as
discussed in the TVPRA. Under proposed Sec. 410.1702, ORR would
require that procedures for determining the age of an individual
consider the totality of the circumstances and evidence rather than
rely on any single piece of evidence to the exclusion of all others.
Section 410.1703 Information Used as Evidence To Conduct Age
Determinations
Proposed Sec. 410.1703 describes information that ORR would be
able to use as evidence to conduct age determination. Under proposed
Sec. 410.1703(a), ORR would establish that it considers multiple forms
of evidence, and that it makes age determinations based upon a totality
of evidence. Under proposed Sec. 410.1703(b), ORR may consider
information or documentation to make an age determination, including
but not limited to: (1) birth certificate, including a certified copy,
photocopy, or facsimile copy if there is no
[[Page 68955]]
acceptable original birth certificate and proposes that ORR may consult
with the consulate or embassy of the individual's country of birth to
verify the validity of the birth certificate presented; (2) authentic
government-issued documents issued to the bearer; (3) other
documentation, such as baptismal certificates, school records, and
medical records, which indicate an individual's date of birth; (4)
sworn affidavits from parents or other relatives as to the individual's
age or birth date; (5) statements provided by the individual regarding
the individual's age or birth date; (6) statements from parents or
legal guardians; (7) statements from other persons apprehended with the
individual; and (8) medical age assessments, which should not be used
as a sole determining factor but only in concert with other factors.
Regarding the proposed use of medical age assessments, at proposed
Sec. 410.1703(b)(8), ORR would codify a 75 percent probability
threshold, that, when used in conjunction with other evidence, reflects
a reasonable standard that would prevent inappropriate placements in
housing intended for unaccompanied children. The examining doctor would
be required to submit a written report indicating the probability
percentage that the individual is a minor or an adult. If an
individual's estimated probability of being 18 or older is 75 percent
or greater according to a medical age assessment, then ORR would accept
the assessment as one piece of evidence in favor of a finding that the
individual is not an unaccompanied child. But consistent with the
TVPRA, ORR would not be permitted to rely on such a finding alone; only
if such a finding has been considered together with other forms of
evidence, and the totality of the evidence supports such a finding
would ORR determines that the individual is 18 or older. The 75 percent
probability threshold applies to all medical methods and approaches
identified by the medical community as appropriate methods for
assessing age. Ambiguous, debatable, or borderline forensic examination
results are resolved in favor of finding the individual is a minor. ORR
believes that requirements at proposed Sec. 410.1703 would enable ORR
to utilize multiple forms of evidence.
Section 410.1704 Treatment of an Individual Who Appears To Be an Adult
Proposed Sec. 410.1704 would codify the substantive requirement
from paragraph 13 of the FSA regarding treatment of an individual who
appears to be an adult. Specifically, if the procedures in this subpart
would result in a reasonable person concluding, based on the totality
of the evidence, that an individual is an adult, despite the
individual's claim to be under the age of 18, ORR would treat such
person as an adult for all purposes. As provided in current ORR
policy,\133\ an individual in ORR care or their attorney of record may,
at any time, present new information or evidence that they are 18 or
older for re-evaluation of an age determination. If the new information
or evidence indicates that an individual who is presumed to be an
unaccompanied child is an adult, then ORR will coordinate with DHS to
take appropriate actions, which may include transferring the individual
out of ORR custody back to DHS custody.
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\133\ ORR Policy Guide 1.6.2, ``Instructions for Age
Determinations''. Available at: https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide-section-1.
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Subpart I--Emergency and Influx Operations
In subpart I of this proposed rule, ORR proposes to codify
guidelines applicable to emergency or influx facilities that ORR opens
or operates during a time of and in response to emergency or influx.
This subpart applies the requirement at paragraph 12.C of the FSA to
have a written plan that describes the reasonable efforts the former
INS, now ORR, will take to place all unaccompanied children as
expeditiously as possible.
As a matter of policy, ORR has a strong preference to house
unaccompanied children in standard programs; however, ORR recognizes
that in times of emergency or influx additional facilities may be
needed, on short notice, to house unaccompanied children. As used in
this subpart, 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 unaccompanied children, or
impacts other conditions provided by this part. Influx means a
situation in which the net bed capacity of ORR's existing capacity in
standard programs that is occupied or held for placement by
unaccompanied children meets or exceeds 85 percent for a period of
seven consecutive days. In this proposed rule, ORR defines ``Emergency
or Influx Facilities'' as a single term to encompass a care provider
facility opened in response to either an emergency or influx and to
propose that such a facility would meet the minimum requirements
described in this subpart. These facilities may be contracted for and
stood up in advance of an emergency or an influx in preparation of such
an event, but no children would be placed in such a facility until an
emergency or influx exists.
Importantly, this definition of ``influx'' departs from that used
in the FSA which defined ``influx'' as a situation in which 130 or more
unaccompanied children were awaiting placement. In this proposed rule,
ORR takes a new approach to defining ``influx'' based on its
experiences in the years after the settlement agreement and in light of
the increased numbers of unaccompanied children over time. In this
rule, ORR proposes to define an ``influx'' without reference to a set
number of unaccompanied children, but rather to circumstances
reflecting a significant increase in the number of unaccompanied
children that exceeds the standard capabilities of the Federal
Government to process and transport them timely and/or to shelter them
with existing resources. ORR believes that using the 85 percent
threshold provides a reasonable measure to determine when bed capacity
in the standard programs is strained to the point that accepting
referrals from DHS within 72 hours becomes very challenging. ORR notes
that this 85 percent threshold would align with ORR's current practices
and is based on ORR's experience with influx trends and organizational
capacity. During these times of emergency or influx, ORR may house
unaccompanied children at emergency or influx facilities. ORR notes
that, consistent with current policy, placements of unaccompanied
children at emergency or influx facilities during a period of influx
cease when operational capacity in standard programs drops below 85
percent for a period of at least seven consecutive days.
Section 410.1800 Contingency Planning and Procedures During an
Emergency or Influx
ORR recognizes that during times of emergency or when there is an
influx of unaccompanied children, it is important to have policies and
procedures in place to ensure that all unaccompanied children have
their needs met and receive appropriate care and protection. ORR opens
additional facilities in times of influx or emergency when its standard
provider network does not have sufficient bed space available to
provide shelter and services for children. Because these facilities are
intended to be a temporary response to an influx or emergency, when
speed
[[Page 68956]]
may be critical, they may not be licensed or may be exempted from
licensing requirements by state or local licensing agencies, or both.
Although ORR's preference is to place unaccompanied children in
licensed facilities whenever possible, these emergency or influx
facilities may be used to house unaccompanied children temporarily when
time is of the essence. Regardless of licensure status, these
facilities must meet ORR standards and must comply to the greatest
extent possible with state child welfare laws and regulations. If there
is a potential conflict between ORR's regulations and state law, ORR
will review the circumstances to determine how to ensure that it is
able to meet its statutory responsibilities. It is important to note,
however, that if a State law or license, registration, certification,
or other requirement conflicts with an ORR employee's duties within the
scope of their ORR employment, the ORR employee is required to abide by
their Federal duties. ORR proposes at Sec. 410.1800 to codify
guidelines for contingency planning and procedures to use during an
emergency or influx.
Under proposed Sec. 410.1800(a), ORR would regularly reevaluate
the number of placements needed for unaccompanied children to determine
whether the number of shelters, heightened supervision facilities, and
ORR transitional home care beds should be adjusted to accommodate an
increased or decreased number of unaccompanied children eligible for
placement in care in ORR custody provider facilities.
At Sec. 410.1800(b), consistent with paragraph 12A of the FSA, ORR
proposes that in the event of an emergency or influx that prevents the
prompt placement of unaccompanied children in standard programs, ORR
shall make all reasonable efforts to place each unaccompanied child in
a standard program as expeditiously as possible. As described in
proposed Sec. 410.1800(a) and consistent with ORR's preference to
place unaccompanied children in standard care provider facilities,
ORR's commitment to regularly reevaluating the number of placements
needed will help this effort to place unaccompanied children in
licensed programs quickly.
At Sec. 410.1800(c), ORR proposes that activities during an influx
or emergency include the following: (1) ORR implements its contingency
plan on emergencies and influxes, which may include opening facilities
in times of emergency or influx; (2) ORR continually develops standard
programs that are available to accept emergency or influx placements;
and (3) ORR maintains a list of unaccompanied children affected by the
emergency or influx including each unaccompanied child's: (i) name;
(ii) date and country of birth; (iii) date of placement in ORR's
custody; and (iv) place and date of current placement.
Section 410.1801 Minimum Standards for Emergency or Influx Facilities
At Sec. 410.1801(a), ORR notes that in addition to the standards
it has for standard programs and restrictive placements, this section
provides a set of minimum standards that must be followed for emergency
or influx facilities. ORR notes, as described Sec. 410.1000(c), that
it does not operate facilities other than standard programs,
restrictive placements, or emergency or influx facilities, absent a
specific waiver as described below at Sec. 410.1801(d) or such
additional waivers as are permitted by law.
At Sec. 410.1801(b), ORR proposes a list of minimum services that
must be provided to all unaccompanied children in the care of emergency
or influx facilities, and available at the time of the facility
opening. These services, which are consistent with Exhibit 1 of the
FSA, would apply the same minimum service requirements that apply under
the FSA to standard care facilities to emergency or influx facilities.
Under Sec. 410.1801(b)(1), these proposed minimum services would
require that emergency or influx facilities provide unaccompanied
children with proper physical care and maintenance, including suitable
living accommodations, food, appropriate clothing, and personal
grooming items. ORR proposes at Sec. 410.1801(b)(2) that emergency and
influx facilities provide unaccompanied children with appropriate
routine medical and dental care; family planning services, including
pregnancy tests; medical services requiring heightened ORR involvement;
emergency healthcare services; a complete medical examination
(including screenings for infectious diseases) generally within 48
hours of admission; appropriate immunizations as recommended by the
Advisory Committee on Immunization Practices' Child and Adolescent
Immunization Schedule and approved by HHS' Centers for Disease Control
and prevention; administration of prescribed medication and special
diets; and appropriate mental health interventions when necessary.
ORR believes that the unique needs and background of each
unaccompanied child should be assessed by emergency or influx
facilities to ensure that these needs are being addressed and supported
by the emergency or influx facility. Therefore, under proposed Sec.
410.1801(b)(3), and consistent with ORR's existing policy and practice,
ORR would require that each unaccompanied child receive an
individualized needs assessment that includes: the various initial
intake forms, collection of essential data relating to the
identification and history of the child and the child's family,
identification of the unaccompanied child's special needs including any
specific problems which appear to require immediate intervention, an
educational assessment and plan, and an assessment of family
relationships and interaction with adults, peers and authority figures;
a statement of religious preference and practice; an assessment of the
unaccompanied child's personal goals, strengths and weaknesses;
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 connecting the child with family
members.
Access to education services for unaccompanied children in care
from qualified professionals is critical to avoid learning loss while
in care and ensure unaccompanied children are developing academically.
Under proposed Sec. 410.1801(b)(4), ORR would require that emergency
or influx facilities provide educational services appropriate to the
unaccompanied child'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. ORR
proposes that, as part of these minimum services for unaccompanied
children in emergency or influx facilities, the educational program
shall include instruction and educational and other reading materials
in such languages as needed. Basic academic areas should include
Science, Social Studies, Math, Reading, Writing and Physical Education.
The program must provide unaccompanied children with appropriate
reading materials in languages other than English for use during
leisure time.
ORR strongly believes that time for recreation is essential to
supporting the health and wellbeing of unaccompanied children. Under
proposed Sec. 410.1801(b)(5), ORR would require that emergency or
influx facilities provide unaccompanied children with activities
according to a recreation and leisure time plan that include daily
outdoor activity--weather permitting--
[[Page 68957]]
with at least one hour per day of large muscle activity and one hour
per day of structured leisure time activities (that 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.
The psychological and emotional wellbeing of unaccompanied children
are an important component of their overall health and wellbeing, and
therefore ORR is proposing that these needs must be met by emergency or
influx facilities. Under proposed Sec. 410.1801(b)(6), emergency or
influx facilities would be required to provide at least one individual
counseling session per week conducted by trained social work staff with
the specific objective of reviewing the child's progress, establishing
new short-term objectives, and addressing both the developmental and
crisis-related needs of each child. Group counseling sessions are
another way that the psychological and emotional wellbeing of
unaccompanied children can be supported while in ORR care. Therefore,
under Sec. 410.1801(b)(7), ORR proposes that unaccompanied children
would also receive group counseling sessions at least twice a week.
Sessions are usually informal and take place with all unaccompanied
children present. ORR believes that these group sessions would give new
children the opportunity to get acquainted with staff, other children,
and the rules of the program, as well as provide them with an open
forum where everyone gets a chance to speak. Daily program management
is discussed, and decisions are made about recreational and other
activities. ORR notes that these group sessions would provide a
meaningful opportunity to allow staff and unaccompanied children to
discuss whatever is on their minds and to resolve problems.
At proposed Sec. 410.1801(b)(8), emergency or influx facilities
would be required to provide unaccompanied children with acculturation
and adaptation services, which include information regarding the
development of social and interpersonal skills which contribute to
those abilities necessary to live independently and responsibly. ORR
believes these services are important to supporting the social
development and meeting the cultural needs of unaccompanied children in
emergency or influx facilities. ORR proposes to require, under Sec.
410.1801(b)(9), that emergency or influx facilities provide a
comprehensive orientation regarding program intent, services, rules
(written and verbal), expectations, and the availability of legal
assistance. In an effort to support each child's spiritual and
religious practices, ORR proposes at Sec. 410.1801(b)(10), that
emergency or influx facilities would be required to provide
unaccompanied children access to religious services of the child's
choice whenever possible. At the same time, with respect to the
obligations of care provider facilities, ORR notes that it operates the
Unaccompanied Children program in compliance with the requirements of
the Religious Freedom Restoration Act and other applicable Federal
conscience protections, as well as all other applicable Federal civil
rights laws and applicable HHS regulations.\134\
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\134\ See 45 CFR 87.3(a).
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ORR proposes at Sec. 410.1801(b)(11) that emergency or influx
facilities would make visitation and contact with family members
(regardless of their immigration status) available to unaccompanied
children in such a way that is structured to encourage such visitation.
ORR notes that the staff must respect the child's privacy while
reasonably preventing the unauthorized release of the unaccompanied
child. Under proposed Sec. 410.1801(b)(12), unaccompanied children at
emergency or influx facilities would have a reasonable right to
privacy, which includes the right to wear the child's own clothes when
available, retain a private space in the residential facility, group or
foster home for the storage of personal belongings, talk privately on
the phone and visit privately with guests, as permitted by the house
rules and regulations, receive and send uncensored mail unless there is
a reasonable belief that the mail contains contraband. ORR proposes at
Sec. 410.1801(b)(13) that unaccompanied children at emergency or
influx facilities would be provided services designed to identify
relatives in the United States as well as in foreign countries and
assistance in obtaining legal guardianship when necessary for the
release of the unaccompanied child. Under proposed Sec.
410.1801(b)(14), emergency or influx facilities would be required to
provide unaccompanied children with legal services information,
including the availability of free legal assistance, and that they may
be represented by counsel at no expense to the government the right to
a removal hearing before an immigration judge; the ability to apply for
asylum with USCIS in the first instance; and the ability to request
voluntary departure in lieu of deportation.
ORR proposes at Sec. 410.1801(b)(15) that emergency or influx
facilities, whether state-licensed or not, must comply, to the greatest
extent possible, with State child welfare laws and regulations (such as
mandatory reporting of abuse), as well as State and local building,
fire, health and safety codes, that ORR determines are applicable to
non-State licensed facilities. If there is a potential conflict between
ORR's regulations and state law, ORR will review the circumstances to
determine how to ensure that it is able to meet its statutory
responsibilities. It is important to note, however, that if a State law
or license, registration, certification, or other requirement conflicts
with an ORR employee's duties within the scope of their ORR employment,
the ORR employee is required to abide by their Federal duties. Under
proposed Sec. 410.1801(b)(16), emergency or influx facilities must
deliver services in a manner that is sensitive to the age, culture,
native language, and needs of each unaccompanied child. To support this
proposed minimum service, emergency or influx facilities would be
required to develop an individual service plan for the care of each
child. Finally, proposed Sec. 410.1801(b)(17) would require that the
emergency or influx facility maintains records of case files and make
regular reports to ORR. Emergency or influx facilities must have
accountability systems in place, which preserve the confidentiality of
client information and protect the records from unauthorized use or
disclosure.
At Sec. 410.1801(c), ORR proposes that emergency or influx
facilities must do the following when providing services to
unaccompanied children: (1) Maintain safe and sanitary conditions that
are consistent with ORR's concern for the particular vulnerability of
minors; (2) Provide access to toilets, showers and sinks, as well as
personal hygiene items such as soap, toothpaste and toothbrushes,
floss, towels, feminine care items, and other similar items; (3)
Provide drinking water and food; (4) Provide medical assistance if the
unaccompanied child is in need of emergency services; (5) Maintain
adequate temperature control and ventilation; (6) Provide adequate
supervision to protect unaccompanied children; (7) separate from other
unaccompanied children those unaccompanied children who are
subsequently found to have past criminal or juvenile detention
histories or have perpetrated sexual abuse that present a danger to
themselves or others; (8) Provide contact with family members who were
arrested with the unaccompanied child; and (9) Provide access to legal
services as proposed at
[[Page 68958]]
Sec. 410.1309 in this proposed rule. ORR notes that these requirements
are based in part on standards described in the FSA at paragraph 12A.
Although ORR understands these requirements apply specifically to the
conditions in DHS facilities following initial arrest or encounter by
immigration officers at DHS, nevertheless, because they set out
additional safeguards for unaccompanied children, ORR proposes to adopt
them for purposes of emergency or influx facilities under this rule. In
addition to these proposed minimum standards, ORR proposes in subpart D
at Sec. 410.1306, certain language access requirements for care
provider facilities which directly relate to these minimum requirements
described. Specifically, ORR proposes that care provider facilities be
required to consistently offer unaccompanied children the option of
interpretation services in their native or preferred language to the
greatest extent practicable. This includes, but is not limited to,
providing language access during intake and orientation, while
receiving healthcare services, while receiving information related to
the sexual assault and abuse program, and while being provided with
legal services. Additionally, consistent with paragraph 12A of the FSA,
ORR would transfer an unaccompanied child to another care provider
facility if necessary to provide adequate language services. These
language access requirements are intended to protect unaccompanied
children's interests and ensure that they understand their legal rights
and options available to them, the nature of ORR custody and the
general ORR principles regarding their care, and that they have access
to adequate and effective legal representation if necessary. Many of
these services are provided by case managers, who must have a presence
onsite at the emergency or influx facility.
At Sec. 410.1801(d), ORR proposes certain scenarios in which ORR
may grant waivers for an emergency or influx facility operator, either
a contractor or grantee, from the standards proposed under Sec.
410.1801(b). Specifically, waivers may be granted for one or all of the
services identified under Sec. 410.1801(b) if the facility is
activated for a period of six consecutive months or less and ORR
determines that such standards are operationally infeasible. For
example, an emergency or influx facility operator may be unable to
provide services at the site within the timeframe required by ORR. ORR
determines whether certain standards are operationally infeasible on a
case-by-case basis, taking into consideration the circumstances
presented by a specific emergency or influx facility. ORR also would
require that such waivers be made publicly available.
Section 410.1802 Placement Standards for Emergency or Influx Facilities
ORR proposes at Sec. 410.1802 to codify the criteria and
requirements that apply to placement of unaccompanied children at
emergency or influx facilities. ORR notes that these proposed
requirements are consistent with existing ORR practices currently
provided under section 7.2.1 of the ORR Policy Guide.\135\
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\135\ ORR Policy Guide 7.2.1, ``Criteria for Placement''.
Available at: https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide-section-7.
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Under proposed Sec. 410.1802(a), ORR would require that, to the
extent feasible, unaccompanied children who are placed in an emergency
or influx facility meet all of the following criteria: the child (1) is
expected to be released to a sponsor within 30 days; (2) is age 13 or
older; (3) speaks English or Spanish as their preferred language; (4)
does not have a known disability or other mental health or medical
issue or dental issue requiring additional evaluation, treatment, or
monitoring by a healthcare provider; (5) is not a pregnant or parenting
teen; (6) would not have a diminution of legal services as a result of
the transfer to an unlicensed facility; and (7) is not a danger to
themselves or to others (including not having been charged with or
convicted of a criminal offense). Additionally, if ORR becomes aware
that a child does not meet any of the criteria specified under Sec.
410.1802(a) at any time after placement into an emergency or influx
facility, ORR will transfer the unaccompanied child to the least
restrictive setting appropriate for that child's need as expeditiously
as possible. ORR believes that these proposed criteria will help to
ensure that the unaccompanied child is placed in a setting that is
appropriate to accommodate the child's specific needs.
ORR proposes at Sec. 410.1802(b) that it shall also consider the
following factors for the placement of an unaccompanied child in an
emergency or influx facility: (1) the unaccompanied child should not be
part of a sibling group with a sibling(s) age 12 years or younger; (2)
the unaccompanied child should not be subject to a pending age
determination; (3) the unaccompanied child should not be involved in an
active State licensing, child protective services, or law enforcement
investigation, or an investigation resulting from a sexual abuse
allegation; (4) the unaccompanied child should not have a pending home
study; (5) the unaccompanied child should not be turning 18 years old
within 30 days of the transfer to an emergency or influx facility; (6)
the unaccompanied child should not be scheduled to be discharged in
three days or less; (7) the unaccompanied child should not have a
current set docket date in immigration court or State/family court
(juvenile included), not have a pending adjustment of legal status, and
not have an attorney of record or EOIR accredited representative; (8)
the unaccompanied child should be medically cleared and vaccinated as
required by the emergency or influx care facility (for instance, if the
influx care facility is on a U.S. Department of Defense site); and (9)
the unaccompanied child should have no known mental health, dental, or
medical issues, including contagious diseases requiring additional
evaluation, treatment, or monitoring by a healthcare provider. ORR
believes that these proposed provisions will help support the safe and
appropriate placement of unaccompanied children in ORR care.
Subpart J--Availability of Review of Certain ORR Decisions
Section 410.1900 Purpose of This subpart
Ensuring that placement decisions involving restrictive
placements,\136\ such as decisions to place unaccompanied children in a
restrictive placement, to step-up a child to a more restrictive level
of care, to step-down a child from one restrictive placement to another
(e.g., from secure to a heightened supervision facility), or to
continue to keep a child in a restrictive placement, are subject to
review is fundamental to ensuring unaccompanied children are placed in
the least restrictive setting that is in their best interest while also
considering the safety of others and runaway risk. ORR believes that
establishing the availability of administrative review helps ensure,
for the minority of unaccompanied children that are placed in
restrictive placements, that such placement is appropriate and based on
clear and convincing evidence, as discussed in subpart B. ORR notes
that its proposals in this subpart are consistent with the preliminary
injunction issued on August 30, 2022 in Lucas R. v. Becerra, as
discussed in section IV.A.4. of this proposed rule.
[[Page 68959]]
Under proposed Sec. 410.1900, ORR would establish that the purpose of
this subpart is to describe the availability of review of certain ORR
decisions regarding the care and placement of unaccompanied children.
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\136\ In Sec. 410.1001, restrictive placement is defined to
include a secure facility, heightened supervision facility, or RTC.
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Section 410.1901 Restrictive Placement Case Reviews
ORR is required under the TVPRA to place unaccompanied children in
the least restrictive setting that is in their best interests, and in
making placements may consider danger to self, danger to the community,
and runaway risk.\137\ ORR believes that this requirement entails
consideration of the safety of individual unaccompanied children whom
it places, as well as the other unaccompanied children who have already
been placed at the same care provider facility. ORR continually and
routinely assesses whether an unaccompanied child's placement in a
restrictive placement meets the criteria for such placements as
discussed in proposed Sec. 410.1105 Criteria for Placing an
Unaccompanied Child in Restrictive Placement. Under proposed Sec.
410.1901(a), and consistent with the preliminary injunction in the
Lucas R. case discussed above, in all cases involving restrictive
placements, ORR would determine, based on clear and convincing
evidence, that sufficient grounds exist for stepping up or continuing
to hold an unaccompanied child in a restrictive placement. ORR is
further proposing a requirement that the evidence supporting a
restrictive placement decision be recorded in the unaccompanied child's
case file.
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\137\ 8 U.S.C. 1232(c)(2)(A).
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ORR believes that it is imperative that unaccompanied children
placed in restrictive placements understand the reasons for their
placement and their rights, including their right to contest such a
placement and their right to counsel. Therefore, under proposed Sec.
410.1901(b), ORR would require that a written Notice of Placement (NOP)
be provided to unaccompanied children no later than 48 hours after
step-up to a restrictive placement, as well as at least every 30 days
an unaccompanied child remains in a restrictive placement. ORR notes
that whenever possible, ORR seeks to provide NOPs in advance of a step-
up to a restrictive placement. ORR further proposes requiring that the
NOP clearly and thoroughly set forth the reason(s) for placement and a
summary of supporting evidence under proposed Sec. 410.1901(b)(1);
inform the unaccompanied child of their right to contest the
restrictive placement before the Placement Review Panel (PRP) upon
receipt of the NOP, the procedures by which the unaccompanied child may
do so, and all other available administrative review processes under
Sec. 410.1901(b)(2); and include an explanation of the unaccompanied
child's right to be represented by counsel in challenging such
restrictive placements under Sec. 410.1901(b)(3). Finally, to ensure
that the unaccompanied child understands the information provided under
this paragraph, ORR is proposing that a case manager would be required
to explain the NOP to the unaccompanied child, in the child's native or
preferred language, depending on the child's preference, and in a way
the child understands, under Sec. 410.1901(b)(4). ORR notes that
communications with unaccompanied children would be required to meet
ORR's proposed language access standards under Sec. 410.1306.
As part of ensuring that unaccompanied children are informed
regarding their restrictive placement, it is critical that any legal
counsel or other representative or advocate, and parent or guardian for
an unaccompanied child also receive such notification. Therefore, under
Sec. 410.1901(c), ORR is proposing to require that the care provider
facility provide a copy of the NOP to the unaccompanied child's legal
counsel of record, legal service provider, child advocate, and to a
parent or legal guardian of record, no later than 48 hours after step-
up, as well as every 30 days the unaccompanied child remains in a
restrictive placement. ORR notes that this proposed requirement may be
subject to specific child welfare-related exceptions.
ORR believes that placements of unaccompanied children in
restrictive placements should be routinely assessed to ensure they meet
the criteria at proposed Sec. 410.1105. If unaccompanied children do
not meet the criteria, they should accordingly be stepped up or stepped
down to a placement that is the least restrictive setting that is in
their best interests, prioritizing their safety and the safety of
others. Under proposed Sec. 410.1901(d), ORR would establish regular
administrative reviews for restrictive placements. ORR is proposing
regular intervals for administrative reviews depending on the type of
restrictive placement: 30-day, at minimum, for all restrictive
placements under proposed Sec. 410.1901(d)(1); more intensive 45-day
reviews by ORR supervisory staff for unaccompanied children in secure
facilities, under proposed Sec. 410.1901(d)(2).\138\ For unaccompanied
children in RTCs, the 30-day review at proposed Sec. 410.1901(d)(1)
would be required to involve a psychiatrist or psychologist to
determine whether the unaccompanied child should remain in restrictive
residential care, under proposed Sec. 410.1901(d)(3). ORR welcomes
public comment on these proposals.
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\138\ If, hypothetically, an unaccompanied child was in secure
care for 90 days, they would receive both their third 30-day review
and their second, more intensive 45-day review concurrently.
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Section 410.1902 Placement Review Panel.
ORR believes that unaccompanied children who are placed in a
restrictive placement should have the ability to request
reconsideration of their placement at any time after receiving an NOP.
Consistent with existing policy, under proposed paragraph (a), ORR
would convene a Placement Review Panel (PRP) when an unaccompanied
child requests reconsideration of their placement in a restrictive
placement, for the purposes of reviewing the unaccompanied child's
reconsideration request. Under current practice, the PRP is a three-
member panel consisting of ORR's senior-level career staff with
requisite experience in child welfare, including restorative justice,
adverse childhood experiences, special populations, and/or mental
health. Under proposed Sec. 410.1902(a), upon request for
reconsideration of their placement in a restrictive placement, ORR
would afford the unaccompanied child a hearing before the PRP, at which
the unaccompanied child may, with the assistance of counsel if
preferred, present evidence on their own behalf. An unaccompanied child
may present witnesses and cross-examine ORR's witnesses, if such
witnesses are willing to voluntarily testify. ORR notes that an
unaccompanied child and/or their legal counsel of record are provided
with the child's case file information, in accordance with ORR's case
file policies. An unaccompanied child that does not wish to request a
hearing may also have their placement reconsidered by submitting a
request for a reconsideration along with any supporting documents as
evidence.
Under proposed Sec. 410.1902(b), the PRP would afford any
unaccompanied children in a restrictive placement the opportunity to
request a PRP review as soon as the unaccompanied child receives a NOP
and anytime thereafter.
Under proposed Sec. 410.1902(c), ORR would require itself to
convene the PRP within a reasonable timeframe, to allow
[[Page 68960]]
the unaccompanied child to have a hearing without undue delay. ORR
would require, under proposed Sec. 410.1902(d), that the PRP would
issue a decision within 30 calendar days of the PRP request whenever
possible. ORR believes these requirements would help ensure
reconsideration requests are decisioned in a timely manner.
Finally, ORR believes ORR staff members should be recused from
participation in a PRP under certain circumstances to help ensure an
impartial reconsideration of an unaccompanied child's placement. Under
proposed Sec. 410.1902(e), ORR would require that an ORR staff member
who was involved with the decision to step up an unaccompanied child to
a restrictive placement may not serve as a Placement Review Panel
member with respect to that unaccompanied child's placement.
ORR welcomes public comment on these proposals.
Section 410.1903 Risk Determination Hearings
The decision in Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017),
held that notwithstanding the passage of the HSA and the TVPRA,
unaccompanied children in ORR custody continue to have the ability to
seek a bond hearing before an immigration judge in every case, unless
waived by the unaccompanied child.\139\ The proposed regulations under
this section are intended to afford the same type of hearing for
unaccompanied children, while recognizing that the HSA, enacted after
the FSA went into effect, transferred the responsibility of care and
custody of unaccompanied children from the former INS to ORR.\140\
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\139\ See FSA at paragraph 24A.
\140\ See 6 U.S.C. 279(a).
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Under proposed Sec. 410.1903, ORR would establish a hearing
process that provides the same substantive protections as immigration
court bond hearings under the FSA, but through an independent and
neutral HHS hearing officer. Further, these hearings would take place
at HHS rather than the Department of Justice (DOJ). This arrangement
would parallel the arrangement under the FSA because when the FSA was
enacted, the former INS, which then was responsible for the custody of
unaccompanied minors, and the immigration courts were located in the
same department, DOJ. Similarly, ORR proposes the availability of risk
determination hearings before hearing officers who are within the same
department, HHS, but independent of ORR. ORR believes that utilizing an
independent hearing officer within HHS would help prevent undue delay
for a hearing while the unaccompanied child is in ORR care because
generally HHS hearing schedules have greater availability in the short
term, particularly as compared to immigration courts. ORR notes that it
codified a similar provision in the 2019 Final Rule which the Ninth
Circuit held was consistent with the FSA, except where it did not
automatically place unaccompanied children in restrictive placements in
bond hearings.\141\ ORR now proposes to implement a process
substantially the same as the one in the 2019 Final Rule, but updated
to conform with the Ninth Circuit's ruling.
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\141\ See Flores v. Rosen, 984 F. 3d 720 (9th Cir. 2020).
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Unlike typical ``bond redetermination hearings'' in the immigration
court context, which refer to an immigration judge's review of a
custody decision, including any bond set, by DHS,\142\ ORR does not
require payment of money in relation to any aspect of its care and
placement. Instead, the function of risk determination hearings in the
ORR context is to determine whether an unaccompanied child would be a
danger to the community or a runaway risk if released.\143\ With
respect to these functions, ORR notes, first, that consistent with its
discretion as described at 8 U.S.C. 1232(c)(2)(A), it does not consider
runaway risk when making release decisions regarding unaccompanied
children in its care. As a result, unlike when the FSA was implemented
in 1997, runaway risk is no longer a relevant issue in risk
determination hearings for unaccompanied children.\144\ Therefore, the
relevant issue for risk determination hearings for unaccompanied
children is whether they would present a danger if released from ORR
custody. With respect to this function, ORR notes that for the great
majority of unaccompanied children in ORR custody, it has determined
they are not a danger and therefore has placed them in non-restrictive
placements such as shelters and group homes. These unaccompanied
children remain in ORR care only because a suitable sponsor has not yet
been found.
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\142\ See 8 CFR 1003.19, 1236.1.
\143\ See Flores v. Lynch, 392 F. Supp. 3d 1144, 1150 (C.D. Cal.
2017) (``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.'').
\144\ In contrast, under paragraph 14 of the FSA the former INS
would detain a minor if detention was required ``to secure his or
her timely appearance before the INS or immigration court.'' As a
result, as they pertained to the former INS, bond hearings afforded
an opportunity for the unaccompanied children to have a hearing
before an independent officer to determine whether the unaccompanied
children in fact posed a risk of flight if released from custody.
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Under proposed Sec. 410.1903(a), ORR would codify that all
unaccompanied children in restrictive placements would be afforded a
risk determination hearing before an independent HHS hearing officer to
determine, through a written decision, whether the unaccompanied child
would present a risk of danger to the community if released, unless the
unaccompanied child indicates in writing that they refuse such a
hearing. For all other unaccompanied children in ORR custody, ORR
proposes that they may request such a hearing.
ORR is proposing to establish a process for providing notifications
and receiving requests related to risk determination hearings. Under
proposed Sec. 410.1903(a)(1), ORR would require that requests under
this section be made in writing by the unaccompanied child, their
attorney of record, or their parent or legal guardian by submitting a
form provided by ORR to the care provider facility or by making a
separate written request that contains the information requested in
ORR's form. Under proposed Sec. 410.1903(a)(2), unaccompanied children
in restrictive placements based on a finding of dangerousness would
automatically be provided a risk determination hearing, unless they
refuse in writing. They would also receive a notice of the procedures
under this section and would be able to use a form provided to them to
decline a hearing under this section. ORR proposes that unaccompanied
children in restrictive placements may decline the hearing at any time,
including after consultation with counsel. ORR would require that such
choice be communicated to ORR in writing.
ORR is proposing to establish procedures related to risk
determination hearings so that the roles of each party are clear. Under
proposed Sec. 410.1903(b), ORR would bear an initial burden of
production, providing relevant arguments and documents to support its
determination that an unaccompanied child would pose a danger if
discharged from ORR care and custody. Then, ORR is proposing that the
unaccompanied child would have a burden of persuasion to show that they
would not be a danger to the community if released, under a
preponderance of the evidence standard. ORR notes that it has
established a subregulatory process to ensure access to case files and
documents for unaccompanied children
[[Page 68961]]
and their legal counsel in a timely manner for these purposes. Under
proposed paragraph (c), the unaccompanied child would have the ability
to be represented by a person of the unaccompanied child's choosing,
would be permitted to present oral and written evidence to the hearing
officer, and would be permitted to appear by video or teleconference.
Finally, ORR is proposing that ORR may also choose to present evidence
at the hearing, whether in writing, or by appearing in person or by
video or teleconference.
ORR is also proposing regulations related to hearing officers'
decisions in risk determination hearings. First, under proposed
paragraph (d), a decision that an unaccompanied child would not be a
danger to the community if released would be binding upon ORR unless
appealed. ORR believes that unaccompanied children must also have the
availability to appeal decisions finding that they are a danger to the
community if released. However, HHS does not have a two-tier
administrative appellate system that closely mirrors that of the EOIR
within the DOJ, where immigration court decisions may be appealed to
the Board of Immigration Appeals. To provide similar protections
without such a two-tier system, ORR is proposing to allow appeals to
the Assistant Secretary of ACF or their designee. Therefore, under
Sec. 410.1903(e), ORR is proposing that decisions under this section
may be appealed to the Assistant Secretary of ACF, or the Assistant
Secretary's designee. ORR is proposing that appeal requests be in
writing and be received by the Assistant Secretary or their designee
within 30 days of the hearing officer's decision under Sec.
410.1903(e)(1). Under Sec. 410.1903(e)(2), ORR is proposing that the
Assistant Secretary, or their designee, will reverse a hearing officer
decision only if there is a clear error of fact, or if the decision
includes an error of law. Further, under Sec. 410.1903(e)(3), ORR is
proposing that if the hearing officer finds that the unaccompanied
child would not pose a danger to the community if released, and such
decision would result in ORR releasing the unaccompanied child from its
custody (e.g., because ORR had otherwise completed its assessment for
the release of the unaccompanied child to a sponsor, and the only
factor preventing release was its determination that the unaccompanied
child posed a danger to the community), an appeal to the Assistant
Secretary would not effect a stay of the hearing officer's decision,
unless the Assistant Secretary or their designee issues a decision in
writing within five business days of such hearing officer decision that
release of the unaccompanied child would likely result in a danger to
the community. ORR is proposing to require that such a stay decision
must include a description of behaviors of the unaccompanied child
while in ORR custody and/or documented criminal or juvenile behavior
records from the unaccompanied child demonstrating that the
unaccompanied child would present a danger to community, if released.
Alternatively, ORR is considering an appeal structure under which a
politically accountable official (e.g., the Assistant Secretary of ACF,
or their designee) would have discretion to conduct de novo review of
hearing officer determinations. As under the current proposed approach,
the official conducting de novo review would be able to reverse hearing
officer determinations. But unlike the current proposed approach, the
official would not be constrained to reversing hearing officer
determinations based only on clear error of fact, or error of law.
Instead, the official would step into the position of the hearing
officer and re-decide the issues. We request comments as to whether ORR
should adopt this alternative scheme.
ORR reiterates that in the context of risk determination hearings,
although a finding of non-dangerousness may result in an unaccompanied
child's release, neither the hearing officer nor the Assistant
Secretary, on appeal, may order the release or change of placement of
an unaccompanied child. Placement and release decision-making authority
is vested in the Director of ORR under the HSA and TVPRA.\145\ The
fundamental question at issue in an ORR risk determination hearing is
whether an unaccompanied child would pose a danger to the community if
released.\146\
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\145\ See 8 U.S.C. 1232(c)(3); see also Flores v. Sessions, 862
F.3d 863, 868 (9th Cir. 2017) (``As was the case under the Flores
Settlement prior to the passage of the HSA and TVPRA, the
determinations made at hearings held under Paragraph 24A will not
compel a child's release. Regardless of the outcome of a bond
hearing, a minor may not be released unless the agency charged with
his or her care identifies a safe and appropriate placement.'').
\146\ To the extent the hearing officer or Assistant Secretary,
or designee, makes other findings with respect to the unaccompanied
children, ORR will consider those in making placement and release
decisions. For example, if a hearing officer finds that the child is
not a flight risk, ORR will consider that finding when assessing the
child's placement and conditions of placement--though the decision
does not affect release because ORR does not make a determination of
flight risk for purposes of deciding whether a child will be
released.
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ORR is proposing under Sec. 410.1903(f) that decisions under this
section would be final and binding on the Department, meaning that when
deciding whether to release an unaccompanied child (in accordance with
the ordinary procedures on release for unaccompanied children as
discussed in subpart C of this proposed rule), the ORR Director would
not be able to disregard a determination that an unaccompanied child is
not a danger. Further, in the case of an unaccompanied child who was
determined to pose a danger to the community if released, the child
would be permitted to seek another hearing under this section only if
they can demonstrate a material change in circumstances. Similarly,
because ORR may not have located a suitable sponsor at the time a
hearing officer issues a decision, it 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, ORR is proposing
that it 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/or ORR can show that a material change in circumstances
means the unaccompanied child should no longer be released due to
presenting a danger to the community. Based on experience under current
policies, ORR believes one month is a reasonable length of time for a
material change in circumstances to have occurred and best balances
operational constraints with the safety concerns of all children under
ORR care. It also ensures that children who have newly exhibited
dangerous behaviors are accurately adjudicated. ORR notes that it
previously proposed and finalized this same length of time (one month)
in the 2019 Final Rule. ORR notes that because it always seeks to
release an unaccompanied child to a sponsor whenever appropriate, ORR
can make determinations to release a child previously determined to be
a danger to the community without a new risk determination hearing
because the purpose of a risk determination hearing is to ensure a
child who is not a danger to the community is not kept in ORR custody.
ORR is proposing under Sec. 410.1903(g) that this section cannot
be used to determine whether an unaccompanied child has a suitable
sponsor, and neither the hearing officer nor the Assistant Secretary,
or the Assistant Secretary's designee, would be authorized to order the
unaccompanied child released. This means that an unaccompanied child
that has been determined by a hearing officer to not present a danger
would only be released in accordance with the
[[Page 68962]]
ordinary procedures on release for unaccompanied children as discussed
in subpart C of this proposed rule.
Finally, ORR is proposing under Sec. 410.1903(h) that this section
may not be invoked to determine an unaccompanied child's placement
while in ORR custody or to determine level of custody for the
unaccompanied child. Under this proposed section, the purpose of a risk
determination hearing is only to determine whether an unaccompanied
child presents a danger to the community if released, not to determine
placement or level of custody. ORR would determine placement and level
of custody as part of its ordinary procedures for the placement of
unaccompanied children as discussed in subpart B of this proposed rule.
That said, ORR would be able to take into consideration the hearing
officer's decision on an unaccompanied child's level of danger (and
runaway risk) for those purposes.
Subpart K--UC Office of the Ombuds
ORR proposes establishing an independent ombuds office that would
promote important protections for all children in ORR care. An ombuds
office to address unaccompanied children's issues does not currently
exist, and ORR believes that the creation of an ombuds office would
advance its duty to ``ensur[e] that the interests of the child are
considered in decisions and actions relating to the care and custody of
an unaccompanied alien child.'' \147\ An ombuds for the UC Program
would be an independent, impartial, and confidential public official
with authority and responsibility to receive, investigate and
informally address complaints about government actions, make findings
and recommendations and publicize them when appropriate, and publish
reports on its activities. Although an ombud's office would not have
authority to compel ORR to take certain actions, ORR believes an Office
of the Ombuds would provide a mechanism by which unaccompanied
children, sponsors, and other stakeholders, including ORR agency staff
and care provider facility staff, could confidentially raise concerns
with an independent, impartial entity that could conduct investigations
and make recommendations to ORR regarding program operations and
decision-making, and refer concerns to other Federal agencies (e.g.,
HHS Office of the Inspector General, Department of Justice, etc.) or
entities. ORR believes that an Office of the Ombuds is a sound solution
to serve a similar function as the oversight currently provided by the
Flores monitor. While this proposed section would not create an
oversight mechanism with authorities that equate with court oversight
under a consent decree, ORR notes that it is important to maintain an
independent mechanism to identify and report concerns regarding the
care of unaccompanied children; it further believes that this
independent mechanism should have the ability to investigate such
claims, to work collaboratively with ORR to potentially resolve such
issues, and publish reports on its activities. ORR therefore proposes
to add new subpart K to part 410 to establish the UC Office of the
Ombuds.
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\147\ 6 U.S.C. 279(b)(1)(B).
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Key Principles of an Office of the Ombuds
ORR reviewed literature published by several national
organizations--including the Administrative Conference of the United
States (ACUS), American Bar Association (ABA), International Ombudsman
Association (IOA), the United States Ombudsman Association (USOA), and
the Coalition of Federal Ombudsman (COFO)--pertaining to standards of
practice and establishment of ombuds offices.\148\ The literature
identifies independence, confidentiality, and impartiality as core
standards of any Federal ombuds office. The literature also identifies
common definitional characteristics among Federal ombuds offices, such
as informality (i.e., ombuds offices do not make decisions binding on
the agency or provide formal rights-based processes for redress) and a
commitment to credible practices and procedures. In addition, most
ombuds offices adhere to the concepts of providing credible review of
the issues that come to the office, a commitment to fairness, and
assistance in the resolution of issues without making binding agency
decisions.\149\ These attributes align with ORR's goals for the
creation of an office that can provide an independent and impartial
body that can receive reports and grievances regarding the care,
placement, services, and release of unaccompanied children. ORR
therefore proposes the creation of an Office of the Ombuds that
incorporates lessons and recommendations identified in the 2016 ACUS
report, follows the model of other established Federal ombuds offices,
and takes into consideration feedback from interested parties.
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\148\ For example, see Standards Committee of the United States
Ombudsman Association, Governmental Ombudsmen Standards (2003) at 1,
https://www.usombudsman.org/wp-content/uploads/USOA-STANDARDS1.pdf
(promoting a model that defines a governmental ombudsman as an
independent, impartial public official with authority and
responsibility to receive, investigate or informally address
complaints about Government actions, and, when appropriate, make
findings and recommendations, and publish reports). See also Houk et
al., A Reappraisal-The Nature and Value of Ombudsmen in Federal
Agencies, Administrative Conference of the United States (2016) at
258-67, https://www.acus.gov/report/ombudsman-federal-agencies-final-report-2016 (``2016 ACUS Report'') (reviewing association
standards and practices of different Federal ombudsman offices, and
concluding that independent, confidentiality, and impartiality are
essential to the ombudsman profession.).
\149\ 2016 ACUS Report at 28.
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Section 410.2000 Establishment of the UC Office of the Ombuds
ORR proposes, at Sec. 410.2000, to establish a UC Office of the
Ombuds. As the literature identified independence of the office as one
of the key standards of an ombuds, ORR proposes in Sec. 410.2000(a)
that the ombuds will report directly to the ACF Assistant Secretary and
will be managed as a distinct entity separate from the UC Program. ORR
requests input on options relating to placement and reporting structure
of this office within ORR or in another part of ACF.
At Sec. 410.2000(b), ORR proposes that the UC Office of the Ombuds
would be an independent, impartial office with authority to
confidentially and informally receive and investigate complaints and
concerns related to unaccompanied children's experiences in ORR care.
This paragraph captures two additional key standards of an ombuds
identified by literature: impartiality and confidentiality. ORR notes
the UC Office of the Ombuds would not serve as a legal advocate for any
person or issue binding decisions; rather, it would work as a neutral
third party that can investigate concerns and attempt to resolve issues
which are brought to the office. ORR intends for the UC Office of the
Ombuds to be an additional resource for the UC Program and ORR,
unaccompanied children, their sponsors and advocates, and other
interested parties. The UC Office of the Ombuds will not supplant other
roles and responsibilities of other entities such as the HHS/Office of
Inspector General, ORR's own monitoring activities of its grants and
contracts, or services included in this proposed rule, such as child
advocate services (discussed in Sec. 410.1308 of this proposed rule)
or Legal Services (discussed in Sec. 410.1309 of this proposed rule).
Rather, the UC Office of the Ombuds would be responsible for acting as
a neutral third party to receive, investigate, or address complaints
about Government actions.
[[Page 68963]]
Section 410.2001 UC Office of the Ombuds Policies and Procedures;
Contact Information.
At proposed Sec. 410.2001(a) and (b), the UC Office of the Ombuds
shall develop and make publicly available the office's standards,
practices, and policies and procedures giving consideration to the
recommendations by nationally recognized ombuds organizations. ORR
requests comments identifying potential standards, practices, and
policies and procedures for ombuds consideration. For example, ORR
requests comments regarding whether the UC Office the Ombuds should
adopt standards, practices, and policies and procedures that are
consistent with the ABA, IOA, USOA, COFO, or another nationally
recognized ombuds organization that ORR should consider.
ORR further proposes in Sec. 410.2001(c) that the UC Office of the
Ombuds ensure that information about the office, including how to
contact the office, is publicly available and that the office provide
notice to unaccompanied children, sponsors, and others of its scope and
responsibilities, in both English and other languages spoken and
understood by unaccompanied children in ORR care. Notice shall be
provided in an accessible manner, including through the provision of
auxiliary aids and services and in clear, easily understood language,
using concise and concrete sentences and/or visual aids. ORR's review
of other ombuds office outreach activities found multiple approaches to
raising awareness about an ombuds office, such as flyers, information
posted at care provider facilities, a website and onsite visits to
facilities or constituents.\150\ ORR proposes providing the UC Office
of the Ombuds with the discretion to determine the best approaches to
providing outreach and awareness of the ability to act as a neutral
third party, including visiting ORR facilities and publishing
aggregated information annually about the number and types of concerns
the UC Office of the Ombuds receives.
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\150\ See, e.g., 9 NYCRR 177.7 (NYS Office of Children and
Family Services; Regulations for the Office of the Ombudsman; Visits
to Facilities and Programs) and 6 U.S.C. 205 (Ombudsman for
Immigration Detention).
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Section 410.2002 UC Office of the Ombuds Scope and Responsibilities
The 2016 ACUS Report described different kinds of ombuds offices
which perform different functions based on their mandates. They may
identify new issues and patterns of concerns that are not well known or
are being ignored; support procedural changes; contribute to
significant cost savings by dealing with identified issues, often at
the earliest or pre-complaint stages, thereby reducing litigation and
settling serious disputes; prevent problems through training and
briefings; and serve as an important liaison between colleagues, units,
or agencies.\151\ ORR intends to establish an ombuds office as an
independent, impartial office with authority to receive and investigate
issues and concerns related to unaccompanied children's experience in
ORR care.
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\151\ 2016 ACUS Report at 2.
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In Sec. 410.2002(a), ORR proposes that the scope of the activities
of the UC Office of the Ombuds may include: reviewing ORR compliance
with Federal law and meeting with interested parties to hear input on
ORR's implantation of and adherence to Federal law; visiting ORR
facilities where unaccompanied children are or will be housed;
investigating issues or concerns related to unaccompanied children's
access to services while in ORR care; reviewing the implementation and
execution of ORR policy and procedures; reviewing individual
circumstances that raise concerns such as issues with access to
services, communications with advocates or sponsors, transfers, or
discharge from ORR care; and providing general education and
information about ORR and the legal and regulatory landscape relevant
to unaccompanied children. ORR proposes that the UC Office of the
Ombuds may request information and documents from ORR and ORR care
provider facilities and shall be provided with the information and
documents to the fullest extent possible. ORR further proposes that the
UC Office of the Ombuds may recommend new or revised UC Program
policies and procedures, or other process improvements. ORR includes
these anticipated areas of activity at proposed Sec. 410.2002(a).
ORR anticipates that the UC Office of the Ombuds may have the
opportunity to not only field individual concerns from unaccompanied
children, their representatives, and program and facility staff, but
may also identify patterns of concerns and may be well positioned to
offer recommendations to improve ORR program processes and procedures.
ORR proposes that, as an independent office reporting to the ACF
Assistant Secretary, the UC Office of the Ombuds may determine its
caseload and agenda and expects that such caseload may vary due to a
variety of circumstances.
In Sec. 410.2002(b), ORR proposes that, because the UC Office of
the Ombuds is not an enforcement entity, it should have the discretion
to refer matters to other offices or entities, such as state or local
law enforcement or the Office of Inspector General (OIG), as
appropriate.
Finally, to assist the UC Office of the Ombuds in accomplishing its
responsibilities, ORR proposes in Sec. 410.2002(c) that the Ombuds
must be able to meet with unaccompanied children in ORR care upon
receiving a complaint or based on relevant findings during the course
of investigating issues or concerns; have access to ORR facilities,
premises, and case file information; and have access to care provider
and Federal staff responsible for the children's care.
Section 410.2003 Organization of the UC Office of the Ombuds
The 2016 ACUS Report recommends that agencies should support the
credibility of offices of the ombuds by selecting an ombuds with
sufficient professional stature and requisite knowledge, skills, and
abilities to effectively execute the duties of the office.\152\ This
should include, at a minimum, knowledge of informal dispute resolution
practices as well as, depending on the office mandate, familiarity with
process design, training, data analysis, and facilitation and group
work with diverse populations.\153\ To align with the recommendations,
ORR proposes in Sec. 410.2003(a) that the UC Ombuds should be hired as
a career civil servant. ORR believes that requiring the UC Ombuds
position be hired as a career civil servant, rather than a political
appointee, will support the important goal of impartiality. In Sec.
410.2003(b), ORR proposes that the UC Ombuds have the requisite
knowledge and experience to effectively fulfill the work and role,
including membership in good standing in a nationally recognized
organization, state bar association, or association of ombudsmen.
Expertise should include but is not limited to informal dispute
resolution practices, services and matters related to unaccompanied
children and in child welfare, familiarity and experience with
oversight and regulatory matters, and knowledge of ORR policy and
regulations. In addition, ORR proposes in Sec. 410.2003(c) that the
Ombuds may engage additional staff as it deems necessary and
practicable to support the functions and responsibilities of the
Office; and, at Sec. 410.2003(d), ORR proposes that the UC Ombuds
shall establish procedures for training, certification, and continuing
education
[[Page 68964]]
for staff and other representatives of the Office.
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\152\ 2016 ACUS Report at 56.
\153\ 2016 ACUS Report at 66.
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Section 410.2004 Confidentiality
At proposed Sec. 410.2004(a), ORR proposes basic requirements that
the Ombuds ensure that records and proceedings should be kept in a
confidential manner, except to address an imminent risk of serious harm
or in response to judicial action. Additionally, the Ombuds is
prohibited from using or sharing information for any immigration
enforcement related purpose. This proposal is in line with the 2016
ACUS Report identification of confidentiality of ombuds communications
and proceedings as being of paramount importance to encourage reporting
of concerns, thereby affording the ombuds the opportunity to assist the
constituent and the agency in resolving the concern.\154\ ORR also
proposes at Sec. 410.2004(b) that the UC Office of the Ombuds may
accept reports from anonymous reporters.
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\154\ 2016 ACUS Report at 41.
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To align to these goals and to help in the development of the UC
Office of the Ombuds, ORR requests public comment on best practices for
preserving the confidentiality of parties that may submit a complaint,
as well as building trust in the confidentiality of the office so that
individuals feel comfortable and safe, without the fear of retaliation,
to report concerns.
Request for Information
ORR believes the UC Office of the Ombuds should be intentionally
designed and requests any other comments and input on how the Ombuds
should handle concerns relating to ORR practices. ORR therefore
includes a request for information for additional public input on the
proposed UC Office of the Ombuds. ORR seeks public comment on whether
the Office should provide services relating to oversight in other
areas, including more generalized concerns about ORR conduct and
services. ORR also seeks comment on potential intersections between the
Ombuds and other avenues for mitigation or redress of grievances (e.g.,
the ORR Placement Review Panel). Additionally, ORR seeks comment on
additional independent and impartial mechanisms to address grievances
or complaints related to children's experiences in ORR care.
Finally, ORR welcomes comments on other organizational and
structural matters relevant to the proposed UC Office of the Ombuds.
VI. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995 (PRA), HHS is required to
provide 60-day notice in the Federal Register and solicit public
comment before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. An
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a control
number assigned by OMB. This proposed rule does not require information
collections for which HHS plans to seek OMB approval.
Under proposed Sec. 410.1902, as discussed in section V. of this
proposed rule, ORR proposes to establish processes for unaccompanied
children to appeal the denial of release and for certain prospective
sponsors to appeal sponsorship denials. While this appeals process may
require unaccompanied children or prospective sponsors to submit
information to ORR, information collections imposed subsequent to an
administrative action are not subject to the PRA under 5 CFR
1320.4(a)(2). Therefore, ORR is not estimating any information
collection burden associated with this process.
ORR has reviewed the requirements being codified in subparts A and
B and determined that the regulatory burden associated with reporting
and recordkeeping requirements is accounted for under OMB control
number 0970-0554 (Placement and Transfer of Unaccompanied Children into
ORR Care Provider Facilities) and OMB control number 0970-0547
(Administration and Oversight of the Unaccompanied Children Program).
ORR is not proposing any new requirements which result in a change in
burden.
ORR has reviewed the requirements being codified in subpart C and
determined that the regulatory burden associated with reporting and
recordkeeping requirements is accounted for under OMB control number
0970-0278 (Family Reunification Packet for Sponsors of Unaccompanied
Children), OMB control number 0970-0552 (Release of Unaccompanied
Children from ORR Custody) and OMB control number 0970-0553 (Services
Provided to Unaccompanied Children). ORR is not proposing any new
requirements which result in a change in burden.
ORR has reviewed the requirements being codified in subpart D and
determined that the regulatory burden associated with reporting and
recordkeeping requirements is accounted for under OMB control number
0970-0547 (Administration and Oversight of the Unaccompanied Children
Program), OMB control number 0970-0564 (Monitoring and Compliance for
Office of Refugee Resettlement (ORR) Care Provider Facilities), and OMB
control number 0970-0565 (Legal Services for Unaccompanied Children).
ORR is not proposing any new requirements which result in a change in
burden.
ORR has reviewed the requirements being codified in subparts E
through I and determined that the regulatory burden associated with
reporting and recordkeeping requirements is accounted for under OMB
control number 0970-0554 (Placement and Transfer of Unaccompanied
Children into ORR Care Provider Facilities). ORR is not proposing any
new requirements which result in a change in burden.
ORR has reviewed the requirements being codified in subpart J and
determined that the regulatory burden associated with reporting and
recordkeeping requirements is accounted for under OMB control number
0970-0565 (Legal Services for Unaccompanied Children). ORR is not
proposing any new requirements which result in a change in burden.
VII. Regulatory Impact Analysis
Executive Orders 12866 and 13563 direct agencies to assess all
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). Section
3(f) of Executive Order 12866, as amended by Executive Order 14094,
defines a ``significant regulatory action'' as an action that is likely
to result in a rule: (1) having an annual effect on the economy of $200
million or more (adjusted every 3 years for changes in gross domestic
product), or adversely affecting in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial, or
tribal governments or communities; (2) creating a serious inconsistency
or otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impact of entitlement
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raising legal or policy issues for which
centralized review would meaningfully further the President's
priorities or the principles
[[Page 68965]]
set forth in the Executive order. Executive Order 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. While there is
uncertainty about the magnitude of effects associated with these
regulations, it cannot be ruled out that they exceed the threshold for
significance set forth in section 3(f)(1) of Executive Order 12866.
Therefore, the regulation is section 3(f)(1) significant and has been
reviewed by OMB.
A. Economic Analysis
1. 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.'' ORR considers its current operations and procedures for
implementing the terms of the FSA, the HSA, and the TVPRA to be an
informative baseline for this analysis, from which it estimates the
costs and benefits that would result from implementing the proposals in
this proposed rule if finalized. The section below discusses some
examples of the current cost for ORR's operations and procedures under
this baseline. The costs described below are already being incurred as
part of ORR's implementation of the terms of FSA, the HSA, and the
TVPRA; however, the future in the absence of the rule is unclear,
including because the end of temporary legal structures could change
the UC Program's operations. Relative to some future trajectories--that
is, other analytic baselines--there could be additional new costs (and
new effects more generally) associated with the policies being
promulgated in this proposed rule.
Referrals of unaccompanied children to the UC Program vary
considerably from one year to the next, even from month to month, and
are largely unpredictable. Funding for the UC Program's services are
dependent on annual appropriations, which rely in part on fluctuating
migration numbers. For example, in fiscal year (FY) 2019, the UC
Program served 69,488 unaccompanied children and received $1.3 billion
in appropriations.\155\ In contrast, in FY 2022, ORR served 128,904
unaccompanied children and received $5.5 billion in
appropriations.\156\ Appropriations account for uncertainty inherent in
migration numbers by providing additional resources in any month when
the UC Program receives referrals over a certain threshold. For
example, in FY 2023, a contingency fund provided $27 million for each
increment of 500 referrals (or pro rata share) above a threshold of
13,000 unaccompanied children referrals in a month.\157\
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\155\ Annual Report to Congress, Office of Refugee Resettlement
(FY 2019), https://www.acf.hhs.gov/sites/default/files/documents/orr/orr-arc-fy2019.pdf.
\156\ ACF, Justification of Estimates for Appropriations
Committees, page 70, (FY 2024) https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2024-congressional-justification.pdf.
\157\ Id. at 77.
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The UC Program funds private non-profit and for-profit agencies to
provide shelter, counseling, medical care, legal services, and other
support services to children in custody. In addition, some funding is
provided for limited post-release services to certain unaccompanied
children. Care provider 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 82 percent) are for care in ORR shelters.
Other services for unaccompanied children, such as medical care,
background checks, and family unification services, make up
approximately 16 percent of the budget. Administrative expenses to
carry out the program total approximately 2 percent of the budget.
2. Estimated Costs
This proposed rule would codify current ORR and HHS requirements
for compliance with the HSA, the TVPRA, the FSA, court orders, and
other requirements described under existing ORR policies and
cooperative agreements. Because the majority of requirements being
codified in this proposed rule are already enforced by ORR, ORR does
not expect this proposed rule to impose any additional costs aside from
those costs incurred by the Federal Government to establish the risk
determination hearing process described in proposed Sec. 410.1903 and
the UC Office of the Ombuds described in proposed subpart K. Existing
staff are currently responsible for conducting both Internal Compliance
Reviews and Placement Review Panels as described in Sec. Sec. 410.1901
and 410.1902, respectively, therefore no additional cost will be
incurred.
In Sec. 410.1309, ORR is proposing to the greatest extent
practicable and consistent with section 292 of the Immigration and
Nationality Act (8 U.S.C. 1362), that all unaccompanied children who
are or have been in ORR care would have access to legal advice and
representation in immigration legal proceedings or other matters,
consistent with current policy. ORR is also proposing that to the
extent that appropriations are available, and insofar as it is not
practicable to secure pro bono counsel for unaccompanied children as
specified at 8 U.S.C. 1232(c)(5), ORR would have discretion to fund
legal service providers to provide direct immigration legal
representation.
In Sec. 410.1903, ORR proposes to establish a hearing process that
provides the same substantive protections as immigration court bond
hearings under the FSA, but through an independent and neutral HHS
adjudicator. This proposal would shift responsibility for these
hearings from DOJ to HHS. ORR estimates that some resources will be
required to implement this shift. ORR believes that this burden will
fall on DOJ and HHS staff, and estimates 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, ORR
estimates that the rule will lead to no change in net resources
required for risk determination hearings, and therefore estimate no
incremental costs or savings. ORR seeks public comment on these
estimates.
In subpart K, ORR discusses its proposal to establish an Office of
the Ombuds for the UC Program. Although the scope of the proposed
Office of the Ombuds may be varied, ORR anticipates that it would
provide a mechanism by which unaccompanied children, sponsors, and
other relevant parties could raise concerns, be empowered to
independently investigate claims, issue findings and make
recommendations to ORR, and refer findings to other Federal agencies or
Congress as appropriate. ORR proposes that the Ombuds role would be
filled by a career civil servant who has expertise in dispute
resolution, familiarity with oversight and regulatory matters,
experience working with unaccompanied children or in child welfare, and
knowledge of ORR policy and regulations. In addition to the Ombuds
position itself, ORR anticipates the need for support staff as well. In
order to estimate the costs associated with the proposed Office of the
Ombuds and its potential staffing requirements, ORR conferred with
budgetary experts and analyzed the needs anticipated to accommodate the
likely case load. ORR assumes the Ombuds would be a GS-15
[[Page 68966]]
($176,458 per year) while support staff would consist of one GS-14
($150,016 per year), four GS-13s ($126,949 per year), and four GS-12s
($106,759 per staff per year). For estimating purposes, ORR assumes
each position will be a Step 5 and include a factor 36.25% for
overhead, per OMB.\158\ In total, ORR estimates the cost of
establishing this office would be $1,718,529 per year [($176,458 +
150,016 + ($126,949 x 4) + ($106,759 x 4) x 136.25%]. ORR welcomes
comments on the proposed staffing and structure for the Office of the
Ombuds.
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\158\ https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A76/a76_incl_tech_correction.pdf.
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ORR also notes that all care provider facilities discussed in this
proposed rule are ORR grantees and the costs of maintaining compliance
with these requirements are allowable costs to grant awards under the
Basic Considerations for cost provisions at 45 CFR 75.403 through
75.405, in that the costs are reasonable, necessary, ordinary, treated
consistently, and are allocable to the award. Additional costs
associated with the policies discussed in this proposed rule that were
not budgeted, and cannot be absorbed within existing budgets, would be
allowable for the grant recipient to submit a request for supplemental
funds to cover the costs.
Table 1 shows the changes to ORR's current operational status
compared to the FSA. It contains a preliminary, high-level overview of
how the rule would change ORR's current operations, for purposes of the
economic analysis. The table does not provide a comprehensive
description of all provisions and their basis and purpose.
BILLING CODE 4184-45-P
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ORR seeks public comment on any additional costs associated with
the proposals in this proposed rule which have not been otherwise
addressed.
3. Benefits
The primary benefit of the proposed rule would be to ensure that
applicable regulations reflect ORR's custody and treatment of
unaccompanied children in accordance with the relevant and substantive
terms of the FSA, the HSA, and the TVPRA. Additionally, the proposed
codification of minimum standards for licensed facilities and the
release process, ensures a measure of consistency across the programs
network of standard facilities. ORR also anticipates that many of the
previously discussed costs will be partially offset by a reduction in
legal costs and staff time associated with the FSA and associated
motions to enforce that require significant usage of staff time--often
at extremely short notice--and require ORR to pay attorneys' fees.
B. Regulatory Flexibility Analysis
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.
The purpose of this action is to promulgate regulations that
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. The FSA
provides standards for the detention, treatment, and transfer of minors
and unaccompanied children. Section 462 of the HSA and section 235 of
the TVPRA prescribe substantive requirements and procedural safeguards
to be implemented by ORR with respect to unaccompanied children.
Additionally, court decisions have dictated how the FSA is to be
implemented.\159\
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\159\ 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).
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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 children that were vested by
statute in, or performed by, the Commissioner of Immigration and
Naturalization.'' \160\ 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.\161\
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\160\ 6 U.S.C. 279(a).
\161\ 6 U.S.C. 279(f)(1).
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Consistent with provisions in the HSA, the TVPRA places the
responsibility for the care and custody of unaccompanied children with
the Secretary of Health and Human Services.\162\ Prior to the enactment
of the HSA, 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.'' \163\ In accordance with
the relevant savings and transfer provisions of the HSA,\164\ the ORR
Director now possesses the authority to promulgate regulations
concerning ORR's administration of its responsibilities under the HSA
and TVPRA.
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\162\ 8 U.S.C. 1232(b)(1) (referencing 6 U.S.C. 279).
\163\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 8 CFR 2.1
(2002).
\164\ See 6 U.S.C. 279(e) and (f). See also 6 U.S.C. 552, 557; 8
U.S.C. 1232(b)(1).
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This proposed rule would directly regulate ORR. As of June 2018,
ORR is funding non-profit and private organizations to provide shelter,
counseling, medical care, legal services, and other support services to
unaccompanied children in custody. Because the requirements being
codified in this proposed rule are already enforced by ORR, ORR does
not expect this proposed rule to impose any additional costs to any of
their grantees or contractors related to the provision of these
services. It is possible that some grantees or contractors may
experience costs to remedy any unmet requirements, however ORR is
unable to make any specific assumptions due to the unique nature of
each grantee and contractor. Additional costs associated with remedial
actions necessary to meet requirements promulgated in this proposed
rule that were not budgeted, and cannot be absorbed within existing
budgets, would be allowable for the grant recipient to submit a request
for supplemental funds to cover the costs.
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, ORR funds 52
grantees to provide services to unaccompanied children. ORR finds that
all 52 current grantees are non-profits that do not
[[Page 68976]]
appear to be dominant in their field. Consequently, ORR believes all 52
grantees are likely to be small entities for the purposes of the RFA.
The proposed changes to ORR regulations would not directly financially
impact any small entities. ORR reiterates that additional costs
associated with remedial actions necessary to meet requirements
promulgated in this proposed rule that were not budgeted, and cannot be
absorbed within existing budgets, would be allowable for the small
entity grantee to submit a request for supplemental funds to cover the
costs.
ORR requests 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.
ORR is unaware of any relevant Federal rule that may duplicate,
overlap, or conflict with the proposed rule and is not aware of any
alternatives to the proposed rule which accomplish the stated
objectives that would minimize economic impact of the proposed rule on
small entities. ORR requests comment and also seeks alternatives from
the public that will accomplish the same objectives and minimize the
proposed rule's economic impact on small entities.
Based on this analysis, the Secretary proposes to certify that the
proposed rule, if finalized, will not have a significant economic
impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that agencies assess anticipated costs and benefits before issuing any
rule whose mandates require spending in any 1 year of $100 million in
1995 dollars, updated annually for inflation. The current threshold
after adjustment for inflation is $177 million, using the most current
(2022) Implicit Price Deflator for the Gross Domestic Product. This
proposed rule would not mandate any requirements that meet or exceed
the threshold for state, local, or tribal governments, or the private
sector.
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 ORR
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 ORR. 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.
D. 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)), ORR 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 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. ORR
received approval from OMB for use of its forms under OMB control
number 0970-0278, with an expiration date of August 31, 2025.
Separately, ORR received approval from OMB for its placement and
service forms under OMB control number 0970-0498, with an expiration
date of August 31, 2023. A form associated with the specific consent
process is currently pending approval with OMB (OMB Control Number
0970-0385).
E. 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 would implement ORR
statutory responsibilities and the FSA by codifying ORR practices that
comply with the terms of the FSA and relevant law for the care and
custody of unaccompanied children. In proposing to codify these
practices, ORR was mindful of its obligations to meet the requirements
of Federal statutes and the FSA while also minimizing conflicts between
State law and Federal interests. At the same time, ORR is also mindful
that its fundamental obligations are to ensure that it implements its
statutory responsibilities and the agreement that the Federal
Government entered into through the FSA.
Typically, ORR enters into cooperative agreements or contracts with
non-profit and private organizations to provide shelter and care for
unaccompanied children in a facility licensed by the appropriate state
or local licensing authority if the state licensing agency provides for
licensing of facilities that provide services to unaccompanied
children. Where ORR enters into a cooperative agreement or contract
with a facility, ORR requires that the 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 ORR cooperative agreements and contracts with the
agency's grantees/contractors, to complement applicable State and
licensing rules, not to 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, ORR welcomes any comments from representatives of State and local
juvenile or family residential facilities--among other individuals and
groups--during the course of this rulemaking.
F. Executive Order 12988: Civil Justice Reform
This proposed rule meets the applicable standards set forth in
[[Page 68977]]
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
VIII. Assessment of Federal Regulation and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires Federal agencies to determine whether a proposed
policy or regulation may affect family well-being. If the agency's
determination is affirmative, then the agency must prepare an impact
assessment addressing criteria specified in the law. This regulation
will not have an impact on family well-being as defined in this
legislation, which asks agencies to assess policies with respect to
whether the policy: strengthens or erodes family stability and the
authority and rights of parents in the education, nurture, and
supervision of their children; helps the family perform its functions;
and increases or decreases disposable income.
IX. Alternatives Considered
ORR considered several alternatives to the proposed regulations set
forth in this proposed rule. First, ORR considered not promulgating
this proposed rule in which it proposes to codify requirements that
would protect unaccompanied children in ORR care. However, ORR decided
not to pursue this alternative as it 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. Furthermore, ORR
believes that this proposed rule is warranted at this time in order to
codify a uniform set of standards and procedures open to public
inspection and feedback that will help to ensure the safety and
wellbeing of unaccompanied children in ORR care, implement the
substantive terms of the FSA, and enhance public transparency as to the
policies governing the operation of the UC Program.
Once ORR decided to pursue proposing a framework of regulatory
requirements through a proposed rule, it considered the scope of a
proposed rule and whether to propose additional regulations addressing
further areas of authority under the TVPRA, such as those related to
asylum proceedings for unaccompanied children. ORR rejected this
alternative in order to solely focus this proposed rule on proposing
requirements that relate specifically to the care and placement of
unaccompanied children in ORR custody, pursuant to 6 U.S.C. 279 and 8
U.S.C. 1232, and that would implement the terms of the FSA. ORR notes
that its decision to propose more targeted regulations in this proposed
rule does not preclude ORR or other agencies from subsequently issuing
regulations to address broader issues, including issues ORR has
declined to address at this time that are the subject of pending
litigation, as noted in this preamble.
After considering these alternatives, ORR determined to draft the
proposed standards to reflect and be consistent with current ORR
practices and requirements, proposing enhanced standards, procedures,
and oversight mechanisms to help ensure the safety and wellbeing of
unaccompanied children in ORR care where appropriate, consistent with
ORR's statutory authorities and the FSA. In this way, it would be
possible to propose standards and requirements that are uniform across
care provider facilities and in a way that accords with the way the UC
Program functions. 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.'' In 2020, the U.S.
Court of Appeals for the Ninth Circuit ruled that if the Government
wishes to terminate those portions of the FSA covered by valid portions
of HHS regulations, it may do so by proposing regulations. In this
proposed rule, ORR is therefore proposing to codify terms of the FSA
that prescribe ORR responsibilities for unaccompanied children in order
to ensure that unaccompanied children continue to be treated in
accordance with the FSA, the HSA, and the TVPRA.
Robin Dunn Marcos, Director, Office of Refugee Resettlement
approved this document on September 18, 2023.
Jeff Hild, Acting Assistant Secretary of the Administration for
Children and Families, approved this document on September 20, 2023.
List of Subjects in 45 CFR Part 410
Administrative practice and procedure, Aliens, Child welfare,
Immigration, Reporting and recordkeeping requirements, Unaccompanied
children.
0
For the reasons set forth in the preamble, we propose to revise 45 CFR
part 410 to read as follows:
PART 410--CARE AND PLACEMENT OF UNACCOMPANIED CHILDREN
Subpart A--Care and Placement of Unaccompanied Children
Sec.
410.1000 Scope of this part.
410.1001 Definitions.
410.1002 ORR care and placement of unaccompanied children.
410.1003 General principles that apply to the care and placement of
unaccompanied children.
410.1004 ORR custody of unaccompanied children.
Subpart B--Determining the Placement of an Unaccompanied Child at a
Care Provider Facility
410.1100 Purpose of this subpart.
410.1101 Process for the placement of an unaccompanied child after
referral from another Federal agency.
410.1102 Care provider facility types.
410.1103 Considerations generally applicable to the placement of an
unaccompanied child.
410.1104 Placement of an unaccompanied child in a standard program
that is not restrictive.
410.1105 Criteria for placing an unaccompanied child in a
restrictive placement.
410.1106 Unaccompanied children who need particular services and
treatment.
410.1107 Considerations when determining whether an unaccompanied
child is a runaway risk for purposes of placement decisions.
410.1108 Placement and services for children of unaccompanied
children.
410.1109 Required notice of legal rights.
Subpart C--Releasing an Unaccompanied Child From ORR Custody
410.1200 Purpose of this subpart.
410.1201 Sponsors to whom ORR releases an unaccompanied child.
410.1202 Sponsor suitability.
410.1203 Release approval process.
410.1204 Home studies.
410.1205 Release decisions; denial of release to a sponsor.
410.1206 Appeals of release denials.
410.1207 Ninety (90)-day review of pending release applications.
410.1208 ORR's discretion to release an unaccompanied child to the
Unaccompanied Refugee Minors Program.
410.1209 Requesting specific consent from ORR regarding custody
proceedings.
410.1210 Post-release services.
Subpart D--Minimum Standards and Required Services
410.1300 Purpose of this subpart.
410.1301 Applicability of this subpart.
410.1302 Minimum standards applicable to standard programs.
410.1303 Reporting, monitoring, quality control, and recordkeeping
standards.
410.1304 Behavior management and prohibition on seclusion and
restraint.
410.1305 Staff, training, and case manager requirements.
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410.1306 Language access services.
410.1307 Healthcare services.
410.1308 Child advocates.
410.1309 Legal services.
410.1310 Psychotropic medications.
410.1311 Unaccompanied children with disabilities.
Subpart E--Transportation of an Unaccompanied Child
410.1400 Purpose of this subpart.
410.1401 Transportation of an unaccompanied child in ORR's care.
Subpart F--Data and Reporting Requirements
410.1500 Purpose of this subpart.
410.1501 Data on unaccompanied children.
Subpart G--Transfers
410.1600 Purpose of this subpart.
410.1601 Transfer of an unaccompanied child within the ORR care
provider facility network.
Subpart H--Age Determinations
410.1700 Purpose of this subpart.
410.1701 Applicability.
410.1702 Conducting age determinations.
410.1703 Information used as evidence to conduct age determinations.
410.1704 Treatment of an individual who appears to be an adult.
Subpart I--Emergency and Influx Operations
410.1800 Contingency planning and procedures during an emergency or
influx.
410.1801 Minimum standards for emergency or influx facilities.
410.1802 Placement standards for emergency or influx facilities.
Subpart J--Availability of Review of Certain ORR Decisions
410.1900 Purpose of this subpart.
410.1901 Restrictive placement case reviews.
410.1902 Placement Review Panel.
410.1903 Risk determination hearings.
Subpart K--Unaccompanied Children Office of the Ombuds (UC Office of
the Ombuds)
410.2000 Establishment of the UC Office of the Ombuds.
410.2001 UC Office of the Ombuds policies and procedures; contact
information.
410.2002 UC Office of the Ombuds scope and responsibilities.
410.2003 Organization of the UC Office of the Ombuds.
410.2004 Confidentiality.
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 Children
Sec. 410.1000 Scope of this part.
(a) This part governs those aspects of the placement, care, and
services provided to unaccompanied children in Federal custody by
reason of their immigration status and referred to the Unaccompanied
Children Program (UC 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 (TVPRA), Public Law 110-457, 8 U.S.C. 1232.
This part includes provisions implementing 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).
(b) The provisions of this part are separate and severable from one
another. If any provision is stayed or determined to be invalid, the
remaining provisions shall continue in effect.
(c) ORR does not fund or operate facilities other than standard
programs, restrictive placements (which includes secure facilities,
including residential treatment centers, and heightened supervision
facilities), or emergency or influx facilities, absent a specific
waiver as described under Sec. 410.1801(d) or such additional waivers
as are permitted by law.
Sec. 410.1001 Definitions.
For the purposes of this part, the following definitions apply.
ACF means the Administration for Children and Families, Department
of Health and Human Services.
Attorney of record means an attorney who represents an
unaccompanied child in legal proceedings or matters and protects them
from mistreatment, exploitation, and trafficking, consistent with 8
U.S.C. 1232(c)(5), subject to the consent of the unaccompanied child.
In order to be recognized as an unaccompanied child's attorney of
record by the Office of Refugee Resettlement (ORR), for matters within
ORR's authority, the individual must provide proof of representation of
the child to ORR. ORR notes that that attorneys of record may engage
with ORR in the course of this representation in order to obtain
custody-related document and to engage in other communications
necessary to facilitate the representation.
Best interest is a standard ORR applies in determining the types of
decisions and actions it makes in relation to the care of an
unaccompanied child. When evaluating what is in a child's best
interests, ORR considers, as appropriate, the following inexhaustive
list of factors: the unaccompanied child's expressed interests, in
accordance with the unaccompanied child's age and maturity; the
unaccompanied child's mental and physical health; the wishes of the
unaccompanied child's parents or legal guardians; the intimacy of
relationship(s) between the unaccompanied child and the child's family,
including the interactions and interrelationship of the unaccompanied
child with the child's parents, siblings, and any other person who may
significantly affect the unaccompanied child's well-being; the
unaccompanied child's adjustment to the community; the unaccompanied
child's cultural background and primary language; length or lack of
time the unaccompanied child has lived in a stable environment;
individualized needs, including any needs related to the unaccompanied
child's disability; and the unaccompanied child's development and
identity.
Care provider facility means any physical site that houses
unaccompanied children in ORR custody, operated by an ORR-funded
program that provides residential services for children, including but
not limited to a program of shelters, group homes, individual family
homes, residential treatment centers, secure or heightened supervision
facilities, and emergency or influx facilities. Out of network (OON)
facilities are not included within this definition.
Case file means the physical and electronic records for each
unaccompanied child that are pertinent to the care and placement of the
child. Case file materials include biographical information on each
unaccompanied child; birth and marriage certificates; various ORR forms
and supporting documents (and attachments, e.g., photographs); incident
reports; medical and dental records; mental health evaluations; case
notes and records, including educational records clinical notes and
records; immigration forms and notifications; legal papers; home
studies and/or post-release service records on a sponsor of an
unaccompanied child; family reunification information including the
sponsor's individual and financial data; case disposition;
correspondence; and Social Security number (SSN); juvenile/criminal
history records; and other relevant records. The records of
unaccompanied children are the property of ORR, whether in the
possession of ORR or a grantee or contractor, and grantees and
contractors may not release these records without prior approval from
ORR.
Case manager means the individual that coordinates, in whole or in
part, assessments of unaccompanied children, individual service plans,
and efforts to release unaccompanied children from ORR custody. Case
managers also ensure services for
[[Page 68979]]
unaccompanied children are documented within the case files for each
unaccompanied child.
Chemical restraints include, but are not limited to, drugs
administered to children to chemically restrain them, and external
chemicals such as pepper spray or other forms of inflammatory and/or
aerosol agents.
Child advocates means third parties, appointed by ORR consistent
with its authority under TVPRA at 8 U.S.C. 1232(c)(6), who make
independent recommendations regarding the best interests of an
unaccompanied child.
Clear and convincing evidence means a standard of evidence
requiring that a factfinder be convinced that a contention is highly
probable--i.e., substantially more likely to be true than untrue.
Corrective action means steps taken to correct any care provider
facility noncompliance identified by ORR.
DHS means the U.S. 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.
Disability means, with respect to an individual, the definition
provided by section 3 of the Americans with Disabilities Act of 1990,
42 U.S.C. 12102, which is adopted by reference in section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. 794(a), and its implementing
regulations, 45 CFR 84.3 (programs receiving Department of Health and
Human Services (HHS) financial assistance) and 85.3 (programs conducted
by HHS), as well as in the TVPRA at 8 U.S.C. 1232(c)(3)(B).
Discharge means an unaccompanied child that exits ORR custody, or
the act of an unaccompanied child exiting ORR custody.
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 unaccompanied children, or impacts other
conditions provided by this part.
Emergency incidents means urgent situations in which there is an
immediate and severe threat to a child's safety and well-being that
requires immediate action, and also includes unauthorized absences of
unaccompanied children from a care provider facility. Emergency
incidents include, but are not limited to:
(1) Abuse or neglect in ORR care where there is an immediate and
severe threat to the child's safety and well-being, such as physical
assault resulting in serious injury, sexual abuse, or suicide attempt;
(2) Death of an unaccompanied child in ORR custody, including out-
of-network facilities;
(3) Medical emergencies;
(4) Mental health emergencies requiring hospitalization; and
(5) Unauthorized absences of unaccompanied children in ORR custody.
Emergency or influx facility means a type of care provider facility
that opens temporarily to provide shelter and services for
unaccompanied children during an influx or emergency. These facilities
are not otherwise categorized as a standard or secure facility in this
part. Because of the emergency nature of emergency or influx
facilities, they may not be licensed or may be exempted from licensing
requirements by State and/or local licensing agencies. Emergency or
influx facilities may also be operated on federally-owned or leased
properties, in which case, the facility may not be subject to State or
local licensing standards.
Emergency safety situation means a situation in which a child
presents a risk of imminent physical harm to themselves, or others, as
demonstrated by overt acts or expressed threats.
Executive Office for Immigration Review accredited representative,
or EOIR accredited representative, means a representative of a
qualified nonprofit religious, charitable, social service, or other
similar organization established in the United States and recognized by
the Department of Justice in accordance with 8 CFR part 1292. An EOIR
accredited representative who is representing a child in ORR custody
may file a notice of such representation in order to receive updates on
the unaccompanied child.
Family planning services include, but are not limited to, Food and
Drug Administration (FDA)-approved contraceptive products (including
emergency contraception), pregnancy testing and counseling, sexually
transmitted infection (STI) services, and referrals to appropriate
specialists. ORR notes that the term ``family planning services'' does
not include abortions. Instead, abortion is included in the definition
of medical services requiring heightened ORR involvement, and is
further discussed in Sec. 410.1307.
Family Reunification Packet means an application and supporting
documentation which must be completed by a potential sponsor who wishes
to have an unaccompanied child released from ORR to their care. ORR
uses the application and supporting documentation, as well as other
procedures, to determine the sponsor's ability to provide for the
unaccompanied child's physical and mental well-being.
Heightened supervision 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 standard programs set forth in
Sec. 410.1302, and that is designed for an unaccompanied child who
requires close supervision but does not need placement in a secure
facility, including a residential treatment center (RTC). It provides
24-hour supervision, custody, care, and treatment. It maintains
stricter security measures than a shelter, such as intensive staff
supervision, in order to provide supports, manage problem behavior, and
prevent children from running away. A heightened supervision facility
may have a secure perimeter but shall not be equipped internally with
major restraining construction or procedures typically associated with
juvenile detention centers or correctional facilities.
HHS means the U.S. Department of Health and Human Services.
Home study means an in-depth investigation of the potential
sponsor's ability to ensure the child's safety and well-being,
initiated by ORR as part of the sponsor suitability assessment. A home
study includes an investigation of the living conditions in which the
unaccompanied child would be placed if released to a particular
potential sponsor, the standard of care that the unaccompanied child
would receive, and interviews with the proposed sponsor and other
household members. A home study is conducted for any case where it is
required by the TVPRA, this part, and for other cases at ORR's
discretion, including for those in which the safety and well-being of
the unaccompanied child is in question.
Influx means, for purposes of this part, a situation in which the
net bed capacity of ORR's standard programs that is occupied or held
for placement by unaccompanied children meets or exceeds 85 percent for
a period of seven consecutive days.
Legal guardian means an individual who has been lawfully vested
with the power, and charged with the duty of caring for, including
managing the property, rights, and affairs of, a child or incapacitated
adult by a court of competent jurisdiction, whether foreign or
domestic.
Legal service provider means an organization or individual attorney
who provides legal services to unaccompanied children, either on a pro
bono basis or through ORR funding
[[Page 68980]]
for unaccompanied children's legal services. Legal service providers
provide Know Your Rights presentations and screenings for legal relief
to unaccompanied children, and/or direct legal representation to
unaccompanied children.
LGBTQI+ means lesbian, gay, bisexual, transgender, queer or
questioning, and intersex.
Mechanical restraint means any device attached or adjacent to the
child's body that the child cannot easily remove that restricts freedom
of movement or normal access to the child's body.
Medical services requiring heightened ORR involvement means:
(1) Significant surgical or medical procedures;
(2) Abortions; and
(3) Medical services necessary to address threats to the life of or
serious jeopardy to the health of an unaccompanied child.
Notification of Concern (NOC) means an instrument used by home
study and post-release services providers, ORR care providers, and the
ORR National Call Center staff to document and notify ORR of certain
concerns that arise after a child is released from ORR care and
custody.
Notice of Placement (NOP) means a written notice provided to
unaccompanied children placed in restrictive placements, explaining the
reasons for placement in the restrictive placement and kept as part of
the child's case file. The care provider facility where the
unaccompanied child is placed must provide the NOP to the child within
48 hours after an unaccompanied child's arrival at a restrictive
placement, as well as at minimum every 30 days the child remains in a
restrictive placement.
ORR means the Office of Refugee Resettlement, Administration for
Children and Families, U.S. Department of Health and Human Services.
ORR long-term home care means an ORR-funded family or group home
placement in a community-based setting. An unaccompanied child may be
placed in long-term home care if ORR is unable to identify an
appropriate sponsor with whom to place the unaccompanied child during
the pendency of their legal proceedings. ``Long-term home care'' has
the same meaning as ``long-term foster care,'' as that term is used in
the definition of traditional foster care provided at 45 CFR 411.5.
ORR transitional home care means an ORR-funded short-term placement
in a family or group home. ``Transitional home care'' has the same
meaning as ``transitional foster care,'' as that term is used in the
definition of traditional foster care provided at 45 CFR 411.5.
Out of network placement (OON) means a facility that provides
physical care and services for individual unaccompanied children as
requested by ORR on a case-by-case basis, that operates under a single
case agreement for care of a specific child between ORR and the OON
provider. OON may include hospitals, restrictive settings, or other
settings outside of the ORR network of care.
Peer restraints mean asking or permitting other children to
physically restrain another child.
Personal restraint means the application of physical force without
the use of any device, for the purpose of restraining the free movement
of a child's body. This does not include briefly holding a child
without undue force in order to calm or comfort them.
Placement means delivering the unaccompanied child to the physical
custody and care of either a care provider facility or an alternative
to such a facility. An unaccompanied child who is placed pursuant to
this part is in the legal custody of ORR and may only be transferred or
released by ORR. An unaccompanied child remains in the custody of a
referring agency until the child is physically transferred to a care
provider facility or an alternative to such a facility.
Placement Review Panel means a three-member panel consisting of
ORR's senior-level career staff with requisite experience in child
welfare that is convened for the purposes of reviewing requests for
reconsideration of restrictive placements. An ORR staff member who was
involved with the decision to step up an unaccompanied child to a
restrictive placement may not serve as a Placement Review Panel member
with respect to that unaccompanied child's placement.
Post-release services (PRS) mean follow-up services as that term is
used in the William Wilberforce Trafficking Victims Protection
Reauthorization Act at 8 U.S.C. 1232(c)(3)(B). PRS are ORR-approved
services which may, and when required by statute must, be provided to
an unaccompanied child and the child's sponsor, subject to available
resources as determined by ORR, after the child's release from ORR
custody. Assistance may include linking families to educational and
community resources, home visits, case management, in-home counseling,
and other social welfare services, as needed. When follow-up services
are required by statute, the nature and extent of those services would
be subject to available resources.
Program-level events mean situations that affect the entire care
provider facility and/or unaccompanied children and its staff within
and require immediate action and include, but are not limited to:
(1) Death of a staff member, other adult, or a child who is not an
unaccompanied child but is in the care provider facility's care under
non-ORR funding;
(2) Major disturbances such as a shooting, attack, riot, protest,
or similar occurrence;
(3) Natural disasters such as an earthquake, flood, tornado,
wildfire, hurricane, or similar occurrence;
(4) Any event that affects normal operations for the care provider
facility such as, for instance, a long-term power outage, gas leaks,
inoperable fire alarm system, infectious disease outbreak, or similar
occurrence.
Prone physical restraint means a restraint restricting a child's
breathing, restricting a child's joints or hyperextending a child's
joints, or requiring a child to take an uncomfortable position.
PRS provider means an organization funded by ORR to connect the
sponsor and unaccompanied child to community resources for the child
and for other child welfare services, as needed, following the release
of the unaccompanied child from ORR custody.
Psychotropic medication(s) means medication(s) that are prescribed
for the treatment of symptoms of psychosis or another mental,
emotional, or behavioral disorder and that are used to exercise an
effect on the central nervous system to influence and modify behavior,
cognition, or affective state. The term includes the following
categories:
(1) Psychomotor stimulants;
(2) Antidepressants;
(3) Antipsychotics or neuroleptics;
(4) Agents for control of mania or depression;
(5) Antianxiety agents; and
(6) Sedatives, hypnotics, or other sleep-promoting medications.
Qualified interpreter means:
(1) For an individual with a disability, an interpreter who, via a
video remote interpreting service (VRI) or an on-site appearance, is
able to interpret effectively, accurately, and impartially, both
receptively and expressively, using any necessary specialized
vocabulary. Qualified interpreters include, for example, sign language
interpreters, oral transliterators, and cued-language transliterators.
[[Page 68981]]
(2) For a limited English proficient individual, an interpreter who
via a remote interpreting service or an on-site appearance:
(i) Has demonstrated proficiency in speaking and understanding both
spoken English and at least one other spoken language;
(ii) Is able to interpret effectively, accurately, and impartially
to and from such language(s) and English, using any necessary
specialized vocabulary or terms without changes, omissions, or
additions and while preserving the tone, sentiment, and emotional level
of the original oral statement; and
(iii) Adheres to generally accepted interpreter ethics principles,
including client confidentiality.
Qualified translator means a translator who:
(1) Has demonstrated proficiency in writing and understanding both
written English and at least one other written non-English language;
(2) Is able to translate effectively, accurately, and impartially
to and from such language(s) and English, using any necessary
specialized vocabulary or terms without changes, omissions, or
additions and while preserving the tone, sentiment, and emotional level
of the original written statement; and
(3) Adheres to generally accepted translator ethics principles,
including client confidentiality.
Release means discharge of an unaccompanied child to an ORR-vetted
and approved sponsor. After release, ORR does not have legal custody of
the unaccompanied child, and the sponsor becomes responsible for
providing for the unaccompanied child's physical and mental well-being.
Residential treatment center (RTC) means a sub-acute, time limited,
interdisciplinary, psycho-educational, and therapeutic 24-hour-a-day
structured program with community linkages, provided through non-
coercive, coordinated, individualized care, specialized services, and
interventions. RTCs provide highly customized care and services to
individuals following either a community-based placement or more
intensive intervention, with the aim of moving individuals toward a
stable, less intensive level of care or independence. RTCs are a type
of secure facility and are not a standard program under this part.
Restrictive placement means a secure facility, including RTCs, or a
heightened supervision facility.
Runaway risk means it is highly probable or reasonably certain that
an unaccompanied child will attempt to abscond from ORR care. Such
determinations must be made in view of a totality of the circumstances
and should not be based solely on a past attempt to run away.
Seclusion means the involuntary confinement of a child alone in a
room or area from which the child is physically prevented from leaving.
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, in
a physically secure structure with staff able to control violent
behavior. ORR uses a secure facility as the most restrictive placement
option for an unaccompanied child who poses a danger to self or others
or has been charged with having committed a criminal offense. A secure
facility does not need to meet the requirements of Sec. 410.1302 and
is not defined as a standard program or shelter under this part.
Shelter means a kind of standard program in which all of the
programmatic components are administered on-site, consistent with the
standards set forth in Sec. 410.1302.
Significant incidents mean non-emergency situations that may
immediately affect the safety and well-being of a child. Significant
incidents include, but are not limited to:
(1) Abuse or neglect in ORR care;
(2) Sexual harassment or inappropriate sexual behavior;
(3) Staff Code of Conduct violations;
(4) Contact or threats to an unaccompanied child while in ORR care
from trafficking or smuggling syndicates, organized crime, or other
criminal actors;
(5) Incidents involving law enforcement on site;
(6) Potential fraud schemes perpetrated by outside actors on
unaccompanied children's sponsors;
(7) Pregnancy;
(8) Separation from a parent or legal guardian upon apprehension by
a Federal agency;
(9) Mental health concerns; and
(10) Use of safety measures, such as restraints.
Special needs unaccompanied child means an unaccompanied child
whose mental and/or physical condition requires special services and
treatment by staff. An unaccompanied child may have special needs due
to alcohol or substance use, serious emotional disturbance, mental
illness, intellectual or developmental disability, or a physical
condition or chronic illness that requires special services or
treatment. An unaccompanied child who has suffered serious neglect or
abuse may be considered a special needs minor if the child requires
special services or treatment as a result of neglect or abuse.
Sponsor means an individual (or entity) to whom ORR releases an
unaccompanied child out of ORR custody, in accordance with ORR's
sponsor suitability assessment process and release procedures.
Staff Code of Conduct means the set of personnel requirements
established by ORR in order to promote a safe environment for
unaccompanied children in its care, including protecting unaccompanied
children from sexual abuse and sexual harassment.
Standard program means any program, agency, or organization that is
licensed by an appropriate State agency, or that meets other
requirements specified by ORR if licensure is unavailable in the State
to programs providing services to unaccompanied children, to provide
residential, group, or transitional or long-term home care services for
dependent children, including a program operating family or group
homes, or facilities for special needs unaccompanied children. A
standard program must meet the standards set forth in Sec. 410.1302.
All homes and facilities operated by a standard program, including
facilities for special needs unaccompanied children, shall be non-
secure. However, a facility for special needs unaccompanied children
may maintain that level of security permitted under State law, or under
the requirements specified by ORR if licensure is unavailable in the
State, which is necessary for the protection of an unaccompanied child
or others in appropriate circumstances.
Tender age means twelve years of age or younger.
Transfer means the movement of an unaccompanied child from one ORR
care provider facility to another ORR care provider facility, such that
the receiving care provider facility takes over physical custody of the
child. ORR sometimes uses the terms ``step up'' and ``step down'' to
describe transfers of unaccompanied children to or from restrictive
placements. For example, if ORR transfers an unaccompanied child from a
shelter facility to a heightened supervision facility, that transfer
would be a ``step up,'' and a transfer from a heightened supervision
facility to a shelter facility would be a ``step down.'' But a transfer
from a shelter to a community-based care facility, or vice versa, would
be neither a step up nor a step down, because both placement types are
not considered restrictive.
[[Page 68982]]
Trauma bond means when a trafficker uses rewards and punishments
within cycles of abuse to foster a powerful emotional connection with
the victim.
Trauma-informed means a system, standard, process, or practice that
realizes the widespread impact of trauma and understands potential
paths for recovery; recognizes the signs and symptoms of trauma in
unaccompanied children, families, staff, and others involved with the
system; and responds by fully integrating knowledge about trauma into
policies, procedures, and practices, and seeks to actively resist re-
traumatization.
Unaccompanied child/children means a child who:
(1) Has no lawful immigration status in the United States;
(2) Has not attained 18 years of age; and
(3) 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.
Unaccompanied Refugee Minors (URM) Program means the child welfare
services program available pursuant to 8 U.S.C. 1522(d).
Sec. 410.1002 ORR care and placement of unaccompanied children.
ORR coordinates and implements the care and placement of
unaccompanied children who are in ORR custody by reason of their
immigration status.
Sec. 410.1003 General principles that apply to the care and placement
of unaccompanied children.
(a) Within all placements, unaccompanied children shall be treated
with dignity, respect, and special concern for their particular
vulnerability.
(b) ORR shall hold unaccompanied children in facilities that are
safe and sanitary and that are consistent with ORR's concern for the
particular vulnerability of unaccompanied children.
(c) ORR plans and provides care and services based on the
individual needs of and focusing on the strengths of the unaccompanied
child.
(d) ORR encourages unaccompanied children, as developmentally
appropriate and in their best interests, to be active participants in
ORR's decision-making process relating to their care and placement.
(e) ORR strives to provide quality care tailored to the
individualized needs of each unaccompanied child in its custody,
ensuring the interests of the child are considered, and that
unaccompanied children are protected from traffickers and other persons
seeking to victimize or otherwise engage them in criminal, harmful, or
exploitative activity, both while in ORR custody and upon release from
the UC Program.
(f) In making placement determinations, ORR places each
unaccompanied child in the least restrictive setting that is in the
best interests of the child, giving consideration to the child's danger
to self, danger to others, and runaway risk.
(g) When requesting information or consent from unaccompanied
children ORR consults with parents, legal guardians, child advocates,
and attorneys of record or EOIR accredited representatives as needed.
Sec. 410.1004 ORR custody of unaccompanied children.
All unaccompanied children placed by ORR in care provider
facilities remain in the legal custody of ORR and may be transferred or
released only with ORR approval; provided, however, that in the event
of an emergency, a care provider facility may transfer temporary
physical custody of an unaccompanied child prior to securing approval
from ORR but shall notify ORR of the transfer as soon as is practicable
thereafter, and in all cases within 8 hours.
Subpart B--Determining the Placement of an Unaccompanied Child at a
Care Provider Facility
Sec. 410.1100 Purpose of this subpart.
This subpart sets forth the process by which ORR receives referrals
of unaccompanied children from other Federal agencies and the factors
ORR considers when placing an unaccompanied child in a particular care
provider facility. As used in this subpart, ``placement
determinations'' or ``placements'' refers to placements in ORR-approved
care provider facilities during the time an unaccompanied child is in
ORR care, and not to the location of an unaccompanied child once the
unaccompanied child is released in accordance with subpart C of this
part.
Sec. 410.1101 Process for placement of an unaccompanied child after
referral from another Federal agency.
(a) ORR accepts referrals of unaccompanied children, from any
department or agency of the Federal Government at any time of day,
every day of the year.
(b) Upon notification from any department or agency of the Federal
Government that a child is an unaccompanied child and therefore must be
transferred to ORR custody, ORR identifies an appropriate placement for
the unaccompanied child and notifies the referring Federal agency
within 24 hours of receiving the referring agency's notification
whenever possible, and no later than within 48 hours of receiving
notification, barring exceptional circumstances.
(c) ORR works with the referring Federal Government department or
agency to accept transfer of custody of the unaccompanied child,
consistent with the statutory requirements at 8 U.S.C. 1232(b)(3).
(d) For purposes of paragraphs (b) and (c) of this section, ORR may
be unable to timely identify a placement for and accept transfer of
custody of an unaccompanied child due to exceptional circumstances,
including:
(1) Any court decree or court-approved settlement that requires
otherwise;
(2) An influx, as defined at Sec. 410.1001;
(3) An emergency, including a natural disaster, such as an
earthquake or hurricane, and other events, such as facility fires or
civil disturbances;
(4) A medical emergency, such as a viral epidemic or pandemic among
a group of unaccompanied children;
(5) The apprehension of an unaccompanied child in a remote
location;
(6) The apprehension of an unaccompanied child whom the referring
Federal agency indicates:
(i) Poses a danger to self or others; or
(ii) Has been charged with or has been convicted of a crime, or is
the subject of delinquency proceedings, delinquency charge, or has been
adjudicated delinquent, and additional information is essential in
order to determine an appropriate ORR placement; or
(7) An act or event that could not be reasonably foreseen that
prevents the placement of or accepting transfer of custody of an
unaccompanied child within the timeframes in paragraph (b) or (c) of
this section.
(e) ORR takes legal custody of an unaccompanied child begins when
it assumes physical custody from the referring agency.
Sec. 410.1102 Care provider facility types.
ORR may place unaccompanied children in care provider facilities as
defined at Sec. 410.1001, including but not limited to shelters, group
homes, individual family homes, heightened supervision facilities, or
secure facilities, including RTCs. ORR may place unaccompanied children
in out-of-network (OON) placements under certain, limited
circumstances. In times
[[Page 68983]]
of influx or emergency, as further discussed in subpart I of this part,
ORR may place unaccompanied children in facilities that may not meet
the standards of a standard program, but rather meet the standards in
subpart I.
Sec. 410.1103 Considerations generally applicable to the placement of
an unaccompanied child.
(a) ORR shall place each unaccompanied child in the least
restrictive setting that is in the best interest of the child and
appropriate to the unaccompanied child's age and individualized needs,
provided that such setting is consistent with the interest in ensuring
the unaccompanied child's timely appearance before DHS and the
immigration courts and in protecting the unaccompanied child's well-
being and that of others.
(b) ORR considers the following factors that may be relevant to the
unaccompanied child's placement, including:
(1) Danger to self;
(2) Danger to the community/others;
(3) Runaway risk;
(4) Trafficking in persons or other safety concerns;
(5) Age;
(6) Gender;
(7) LGBTQI+ status;
(8) Disability;
(9) Any specialized services or treatment required or requested by
the unaccompanied child;
(10) Criminal background;
(11) Location of potential sponsor and safe and timely release
options;
(12) Behavior;
(13) Siblings in ORR custody;
(14) Language access;
(15) Whether the unaccompanied child is pregnant or parenting;
(16) Location of the unaccompanied child's apprehension; and
(17) Length of stay in ORR custody.
(c) ORR may utilize information provided by the referring Federal
agency, child assessment tools, interviews, and pertinent documentation
to determine the placement of all unaccompanied children. ORR may
obtain any records from local, State, and Federal agencies regarding an
unaccompanied child to inform placement decisions.
(d) ORR shall review, at least every 30 days, the placement of an
unaccompanied child in a restrictive placement to determine whether a
new level of care is appropriate.
(e) ORR shall make reasonable efforts to provide placements in
those geographical areas where DHS encounters the majority of
unaccompanied children.
(f) A care provider facility must accept the placement of
unaccompanied children as determined by ORR, and may deny placement
only for the following reasons:
(1) Lack of available bed space;
(2) Placement of the unaccompanied child would conflict with the
care provider facility's State or local licensing rules;
(3) Initial placement involves an unaccompanied child with a
significant physical or mental illness for which the referring Federal
agency does not provide a medical clearance; or
(4) In the case of the placement of an unaccompanied child with a
disability, the care provider facility concludes it is unable to meet
the child's disability-related needs, without fundamentally altering
its program, even by providing reasonable modifications and even with
additional support from ORR.
(g) Care provider facilities must submit a written request to ORR
for authorization to deny placement of unaccompanied children,
providing the individualized reasons for the denial. Any such request
must be approved by ORR before the care provider facility may deny a
placement. ORR may follow up with a care provider facility about a
placement denial to find a solution to the reason for the denial.
Sec. 410.1104 Placement of an unaccompanied child in a standard
program that is not restrictive.
ORR places all unaccompanied children in standard programs that are
not restrictive placements, except in the following circumstances:
(a) An unaccompanied child meets the criteria for placement in a
restrictive placement set forth in Sec. 410.1105; or
(b) In the event of an emergency or influx of unaccompanied
children into the United States, in which case ORR shall place the
unaccompanied child as expeditiously as possible in accordance with
subpart I of this part.
Sec. 410.1105 Criteria for placing an unaccompanied child in a
restrictive placement.
(a) Criteria for placing an unaccompanied child in a secure
facility that is not a residential treatment center. (1) ORR may place
an unaccompanied child in a secure facility (that is not an RTC) either
at initial placement or through a transfer to another care provider
facility from the initial placement.
(2) ORR will not place an unaccompanied child in a secure facility
(that is not an RTC) if less restrictive alternatives in the best
interests of the unaccompanied child are available and appropriate
under the circumstances. ORR may place an unaccompanied child in a
heightened supervision facility or other non-secure care provider
facility as an alternative, provided that the unaccompanied child does
not pose a danger to self or others.
(3) ORR may place an unaccompanied child in a secure facility (that
is not an RTC) only if the unaccompanied child:
(i) Has been charged with or has been convicted of a crime, or is
the subject of delinquency proceedings, delinquency charge, or has been
adjudicated delinquent, and where ORR deems that those circumstances
demonstrate that the unaccompanied child poses a danger to self or
others, not including:
(A) 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
(B) A petty offense, which is not considered grounds for stricter
means of detention in any case;
(ii) While in DHS or ORR's custody, or while in the presence of an
immigration officer or ORR official or ORR contracted staff, has
committed, or has made credible threats to commit, a violent or
malicious act (whether directed at the unaccompanied child or others);
or
(iii) Has engaged, while in a restrictive placement, in conduct
that has proven to be unacceptably disruptive of the normal functioning
of the care provider facility, and removal is necessary to ensure the
welfare of the unaccompanied child or others, as determined by the
staff of the care provider facility (e.g., substance or alcohol use,
stealing, fighting, intimidation of others, or sexually predatory
behavior), and ORR determines the unaccompanied child poses a danger to
self or others based on such conduct.
(b) Criteria for placing an unaccompanied child in a heightened
supervision facility. (1) ORR may place an unaccompanied child in a
heightened supervision facility either at initial placement or through
a transfer to another facility from the initial placement.
(2) In determining whether to place an unaccompanied child in a
heightened supervision facility, ORR considers if the unaccompanied
child:
(i) Has been unacceptably disruptive to the normal functioning of a
shelter such that transfer is necessary to ensure the welfare of the
unaccompanied child or others;
(ii) Is a runaway risk;
(iii) Has displayed a pattern of severity of behavior, either prior
to
[[Page 68984]]
entering ORR custody or while in ORR care, that requires an increase in
supervision by trained staff;
(iv) Has a non-violent criminal or delinquent history not
warranting placement in a secure facility, such as isolated or petty
offenses as described in paragraph (b)(2)(iii) of this section; or
(v) Is assessed as ready for step-down from a secure facility,
including an RTC.
(c) Criteria for placing an unaccompanied child in an RTC. (1) An
unaccompanied child with serious mental health or behavioral health
issues may be placed into an RTC only if the unaccompanied child is
evaluated and determined to be a danger to self or others by a licensed
psychologist or psychiatrist consulted by ORR or a care provider
facility, which includes a determination by clear and convincing
evidence documented in the unaccompanied child's case file or referral
documentation by a licensed psychologist or psychiatrist that an RTC is
appropriate. In assessing danger to self or others, ORR uses the
criteria for placement in a secure facility at paragraph (a) of this
section.
(2) ORR may place an unaccompanied child at an OON RTC when a
licensed clinical psychologist or psychiatrist consulted by ORR or a
care provider facility has determined that the unaccompanied child
requires a level of care only found in an OON RTC either because the
unaccompanied child has identified needs that cannot be met within the
ORR network of RTCs or no placements are available within ORR's network
of RTCs, or that an OON RTC would best meet the unaccompanied child's
identified needs.
(3) The criteria for placement in or transfer to an RTC also apply
to transfers to or placements in OON RTCs. Care provider facilities may
request ORR to transfer an unaccompanied child to an RTC in accordance
with Sec. 410.1601(d).
Sec. 410.1106 Unaccompanied children who need particular services and
treatment.
ORR shall assess each unaccompanied child in its care to determine
whether the unaccompanied child requires particular services and
treatment by staff to address their individual needs while in the care
of the UC Program. An unaccompanied child's assessed needs may require
particular services, equipment, and treatment by staff for various
reasons, including, but not limited to disability, alcohol or substance
use, a history of serious neglect or abuse, tender age, pregnancy, or
parenting. If ORR determines that an unaccompanied child's
individualized needs require particular services and treatment by staff
or particular equipment, ORR shall place the unaccompanied child,
whenever possible, in a licensed program in which unaccompanied
children with disabilities can interact with people without
disabilities to the fullest extent possible, and shall make reasonable
modifications to its programs, including the provision of services,
equipment and treatment, so that children with disabilities can have
equal access to the program in the most integrated setting appropriate.
Sec. 410.1107 Considerations when determining whether an
unaccompanied child is a runaway risk for purposes of placement
decisions.
When determining whether an unaccompanied child is a runaway risk
for purposes of placement decisions, ORR considers, among other
factors, whether:
(a) The unaccompanied child is currently under a final order of
removal.
(b) The unaccompanied child'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 unaccompanied child is indebted to organized
smugglers for the child's transport; or
(4) A previous removal from the United States pursuant to a final
order of removal.
(c) The unaccompanied child has previously absconded or attempted
to abscond from State or Federal custody.
(d) The unaccompanied child has displayed behaviors indicative of
flight or has expressed intent to run away.
(e) Evidence that the unaccompanied child is indebted to,
experiencing a strong trauma bond to, or is threatened by a trafficker
in persons or drugs.
Sec. 410.1108 Placement and services for children of unaccompanied
children.
(a) Placement. If unaccompanied children and their children are
referred together to ORR, ORR shall place the unaccompanied children
and their children in the same facility, except in unusual or emergency
situations. Unusual or emergency situations include, but are not
limited to:
(1) The unaccompanied child requires alternate placement due to
hospitalization or need for a specialized care or treatment setting
that cannot provide appropriate care for the child of the unaccompanied
child;
(2) The unaccompanied child requests alternate placement for the
child of the unaccompanied child; or
(3) The unaccompanied child is the subject of allegations of abuse
or neglect against the child of the unaccompanied child (or temporarily
in urgent cases where there is sufficient evidence of child abuse or
neglect warranting temporary separation for the child's protection).
(b) Services. (1) ORR provides the same care and services to the
children of unaccompanied children as it provides to unaccompanied
children, as appropriate, regardless of the children's immigration or
citizenship status.
(2) U.S. citizen children of unaccompanied children are eligible
for public benefits and services to the same extent as other U.S.
citizens. Application(s) for public benefits and services shall be
submitted on behalf of the U.S. citizen children of unaccompanied
children by care provider facilities. Utilization of those benefits and
services shall be exhausted to the greatest extent practicable before
ORR-funded services are utilized.
Sec. 410.1109 Required notice of legal rights.
(a) ORR shall promptly provide each unaccompanied child in its
custody, in a language and manner the unaccompanied child understands,
with:
(1) A State-by-State list of free legal service providers compiled
and annually updated by ORR and that is provided to unaccompanied
children as part of a Legal Resource Guide for unaccompanied children;
(2) The following explanation of the right of potential review:
``ORR usually houses persons under the age of 18 in the least
restrictive setting that is in an unaccompanied child's best interest,
and generally not in restrictive placements (which means secure
facilities, heightened supervision facilities, or residential treatment
centers). 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.''; and
(3) A presentation regarding their legal rights, as provided under
Sec. 410.1309(a)(2).
(b) ORR shall not engage in retaliatory actions against legal
service providers or any other representative because of advocacy or
appearance in an action adverse to ORR.
Subpart C--Releasing an Unaccompanied Child From ORR Custody
Sec. 410.1200 Purpose of this subpart.
This subpart covers the policies and procedures used to release,
without
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unnecessary delay, an unaccompanied child from ORR custody to a vetted
and approved sponsor.
Sec. 410.1201 Sponsors to whom ORR releases an unaccompanied child.
(a) Subject to an assessment of sponsor suitability, when ORR
determines that the detention of the unaccompanied child is not
required either to secure the child's timely appearance before DHS or
the immigration court, or to ensure the minor's safety or that of
others, ORR shall release a minor from its custody without unnecessary
delay, in the following order of preference, to:
(1) A parent;
(2) A legal guardian;
(3) An adult relative;
(4) An adult individual or entity designated by the parent or legal
guardian as capable and willing to care for the unaccompanied child'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 standard 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.
(b) ORR shall not disqualify potential sponsors based solely on
their immigration status and shall not collect information on
immigration status of potential sponsors for law enforcement or
immigration enforcement related purposes. ORR will not share any
immigration status information relating to potential sponsors with any
law enforcement or immigration enforcement related entity at any time.
(c) In making determinations regarding the release of unaccompanied
children to potential sponsors, ORR shall not release unaccompanied
children on their own recognizance.
Sec. 410.1202 Sponsor suitability.
(a) Potential sponsors shall complete an application package to be
considered as a sponsor for an unaccompanied child. The application
package may be obtained from either the care provider facility or ORR
directly.
(b) Prior to releasing an unaccompanied child, ORR shall conduct a
suitability assessment to determine whether the potential sponsor is
capable of providing for the unaccompanied child's physical and mental
well-being. At minimum, such assessment shall consist of review of the
potential sponsor's application package, including verification of the
potential sponsor's identity, physical environment of the sponsor's
home, and relationship to the unaccompanied child, if any, and an
independent finding that the individual has not engaged in any activity
that would indicate a potential risk to the unaccompanied child. ORR
may consult with the issuing agency (e.g., consulate or embassy) of the
sponsor's identity documentation to verify the validity of the sponsor
identity document presented.
(c) As part of its suitability assessment, ORR may also require
such components as an investigation of the living conditions in which
the unaccompanied child would be placed and the standard of care the
unaccompanied child would receive, verification of the employment,
income, or other information provided by the potential sponsor as
evidence of the ability to support the child, interviews with members
of the household, a home visit or home study as discussed at Sec.
410.1204, background and criminal records checks, which may include a
fingerprint based background check, on the potential sponsor and on
adult residents of the potential sponsor's household. Any such
assessment also takes into consideration the wishes and concerns of the
unaccompanied child.
(d) ORR shall assess the nature and extent of the potential
sponsor's previous and current relationship with the unaccompanied
child, and the unaccompanied child's family, if applicable. ORR may
deny release to unrelated individuals who have applied to be a sponsor
but who have no pre-existing relationship with the child or the child's
family prior to the child's entry into ORR custody.
(e) ORR shall consider the potential sponsor's motivation for
sponsorship; the unaccompanied child's preferences and perspective
regarding release to the potential sponsor; and the unaccompanied
child's parent's or legal guardian's preferences and perspective on
release to the potential sponsor, as applicable.
(f) ORR shall evaluate the unaccompanied child's current
functioning and strengths in conjunction with any risks or concerns
such as:
(1) Victim of sex or labor trafficking or other crime, or is
considered to be at risk for such trafficking due, for example, to
observed or expressed current needs, e.g., expressed need to work or
earn money;
(2) History of criminal or juvenile justice system involvement
(including evaluation of the nature of the involvement, for example,
whether the child was adjudicated and represented by counsel, and the
type of offense) or gang involvement;
(3) History of behavioral issues;
(4) History of violence;
(5) Any individualized needs, including those related to
disabilities or other medical or behavioral/mental health issues;
(6) History of substance use; or
(7) Parenting or pregnant unaccompanied child.
(g) For individual sponsors, ORR shall consider the potential
sponsor's strengths and resources in conjunction with any risks or
concerns that could affect their ability to function as a sponsor
including:
(1) Criminal background;
(2) Substance use or history of abuse or neglect;
(3) The physical environment of the home; and/or
(4) Other child welfare concerns.
(h) ORR shall assess the potential sponsor's:
(1) Understanding of the unaccompanied child's needs;
(2) Plan to provide adequate care, supervision, and housing to meet
the unaccompanied child's needs;
(3) Understanding and awareness of responsibilities related to
compliance with the unaccompanied child's immigration court
proceedings, school attendance, and U.S. child labor laws; and
(4) Awareness of and ability to access community resources.
(i) ORR shall develop a release plan that will enable a safe
release to a potential sponsor through the provision of post-release
services if needed.
Sec. 410.1203 Release approval process.
(a) ORR or the care provider providing care for the unaccompanied
child shall make and record the prompt and continuous efforts on its
part towards family unification and the release of the unaccompanied
child pursuant to the provisions of this section. These efforts include
intakes and admissions assessments and the provision of ongoing case
management services to identify potential sponsors.
(b) If a potential sponsor is identified, ORR shall explain to both
the unaccompanied child and the potential sponsor the requirements and
procedures for release.
(c) Pursuant to the requirements of Sec. 410.1202, the potential
sponsor shall
[[Page 68986]]
complete an application for release of the unaccompanied child, which
includes supporting information and documentation regarding the
sponsor's identity; the sponsor's relationship to the child; background
information on the potential sponsor and the potential sponsor's
household members; the sponsor's ability to provide care for the
unaccompanied child; and the sponsor's commitment to fulfill the
sponsor's obligations in the Sponsor Care Agreement, which requires the
sponsor to:
(1) Provide for the unaccompanied child's physical and mental well-
being;
(2) Ensure the unaccompanied child's compliance with DHS and
immigration courts' requirements;
(3) Adhere to existing Federal and applicable state child labor and
truancy laws;
(4) Notify DHS, the Executive Office for Immigration Review (EOIR)
at the Department of Justice, and other relevant parties of changes of
address;
(5) Provide notice of initiation of any dependency proceedings or
any risk to the unaccompanied child as described in the Sponsor Care
Agreement; and
(6) In the case of sponsors other than parents or legal guardians,
notify ORR of a child moving to another location with another
individual or change of address. 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 unaccompanied child to
another person who will comply with the Sponsor Care Agreement, but the
sponsor must notify ORR as soon as possible and no later than 72 hours
after the transfer.
(d) ORR shall conduct a sponsor suitability assessment consistent
with the requirements of Sec. 410.1202.
(e) ORR shall not be required to release an unaccompanied child to
any person or agency it has reason to believe may harm or neglect the
unaccompanied child or fail to present the unaccompanied child before
DHS or the immigration courts when requested to do so.
(f) During the release approval process, ORR shall educate the
sponsor about the needs of the unaccompanied child and develop an
appropriate plan to care for the unaccompanied child.
Sec. 410.1204 Home studies.
(a) As part of assessing the suitability of a potential sponsor,
ORR may require a home study. A home study includes an investigation of
the living conditions in which the unaccompanied child would be placed
and takes place prior to the child's physical release, the standard of
care the child would receive, and interviews with the potential sponsor
and others in the sponsor's household.
(b) ORR requires home studies under the following circumstances:
(1) Under the conditions identified in TVPRA at 8 U.S.C.
1232(c)(3)(B), which requires home studies for the following:
(i) A child who is a victim of a severe form of trafficking in
persons;
(ii) A special needs child with a disability (as defined in 42
U.S.C. 12102);
(iii) A child who has been a victim of physical or sexual abuse
under circumstances that indicate that the child's health or welfare
has been significantly harmed or threatened; or
(iv) A child whose proposed sponsor clearly presents a risk of
abuse, maltreatment, exploitation, or trafficking to the child based on
all available objective evidence.
(2) Before releasing any child to a non-relative sponsor who is
seeking to sponsor multiple children, or who has previously sponsored
or sought to sponsor a child and is seeking to sponsor additional
children.
(3) Before releasing any child who is 12 years old or younger to a
non-relative sponsor.
(c) ORR may, in its discretion, initiate home studies if it
determines that a home study is likely to provide additional
information which could assist in determining that the potential
sponsor is able to care for the health, safety, and well-being of the
unaccompanied child.
(d) The care provider must inform the potential sponsor whenever a
home study is conducted, explaining the scope and purpose of the study
and answering the potential sponsor's questions about the process. In
addition, the home study report, as well as any subsequent addendums if
created, will be provided to the potential sponsor if the release
request is denied.
(e) An unaccompanied child for whom a home study is conducted shall
receive post-release services as described at Sec. 410.1210.
Sec. 410.1205 Release decisions; denial of release to a sponsor.
(a) A potential sponsorship will be denied, if as part of the
sponsor assessment process described at Sec. 410.1202 or the release
process described at Sec. 410.1203, ORR determines that the potential
sponsor is not capable of providing for the physical and mental well-
being of the unaccompanied child or that the placement would result in
danger to the unaccompanied child or the community.
(b) ORR shall adjudicate a potential sponsor who is an
unaccompanied child's parent or legal guardian within 10 calendar days
of receipt of a completed sponsor application or Family Reunification
Package (FRP). If ORR denies release of an unaccompanied child to a
potential sponsor who is a parent or legal guardian, it must notify the
potential sponsor of the denial in writing via a Notification of Denial
letter, which includes:
(1) An explanation of the reason(s) for the denial;
(2) Evidence and information supporting ORR's denial decision,
including the evidentiary basis for the denial;
(3) Instructions for requesting an appeal of the denial;
(4) Notice that the potential sponsor may submit additional
evidence, in writing before a hearing occurs, or orally during a
hearing;
(5) Notice that the potential sponsor may present witnesses and
cross-examine ORR's witnesses, if such witnesses are willing to
voluntarily testify; and
(6) Notice that the potential sponsor may be represented by counsel
in proceedings related to the release denial at no cost to the Federal
Government.
(c) ORR shall inform the unaccompanied child, the unaccompanied
child's child advocate, and the unaccompanied child's counsel (or if
the unaccompanied child has no attorney of record or EOIR accredited
representative, the local legal service provider) of a denial of
sponsorship involving an unaccompanied child's parent or legal
guardian.
(d) If the sole reason for denial of release is a concern that the
unaccompanied child is a danger to self or others, and the potential
sponsor is the unaccompanied child's parent or legal guardian, ORR must
send the unaccompanied child a copy of the Notification of Denial
described at paragraph (b) of this section. If the parent or legal
guardian is not already seeking an appeal, the child may seek an appeal
of the denial.
(e) ORR shall permit unaccompanied children to have the assistance
of counsel, at no cost to the Federal Government, with respect to
release or the denial of release to a proposed sponsor.
Sec. 410.1206 Appeals of release denials.
(a) Denied parent or legal guardian sponsors to whom ORR must send
Notification of Denial letters pursuant to Sec. 410.1205 may seek an
appeal of ORR's decision by submitting a written request
[[Page 68987]]
to the Assistant Secretary of ACF, or the Assistant Secretary's neutral
and detached designee.
(b) The requestor may seek an appeal with a hearing or without a
hearing. The Assistant Secretary, or their neutral and detached
designee, will acknowledge the request for appeal within a reasonable
time.
(c) If the sole reason for denial of release is concern that the
unaccompanied child is a danger to self or others, the unaccompanied
child also may seek an appeal of the denial as described in paragraphs
(a) and (b) of this section. If the unaccompanied child expresses a
desire to seek an appeal, the unaccompanied child may consult with
their attorney of record or a legal service provider for assistance
with the appeal. The unaccompanied child may seek such appeal at any
time after denial of release while the unaccompanied child is in ORR
custody.
Sec. 410.1207 Ninety (90)-day review of pending release applications.
(a) ORR Federal staff who supervise case management services
performed by ORR grantees and contractors shall review all pending
sponsor applications or Family Reunification Packets (FRP) for
unaccompanied children who are in ORR custody for 90 days after the
complete sponsor application or FRP has been submitted to identify and
resolve in a timely manner the reasons that a release application
remains pending and to determine possible steps to accelerate the
unaccompanied child's safe release.
(b) Upon completion of the initial 90-day review, unaccompanied
child case managers or other designated agency or care provider staff
shall update the potential sponsor and unaccompanied child on the
status of the case, explaining the reasons that the release process is
incomplete. Case managers or other designated agency or care provider
staff shall work with the potential sponsor, relevant stakeholders, and
ORR to address the portions of the sponsorship application or FRP that
remain unresolved.
(c) For cases that are not resolved after the initial 90-day
review, ORR Federal staff supervising the case management process shall
conduct additional reviews at least every 90 days until the pending
sponsor application or FRP is resolved. ORR may in its discretion and
subject to resource availability conduct additional reviews on a more
frequent basis than every 90 days.
Sec. 410.1208 ORR's discretion to release an unaccompanied child to
the Unaccompanied Refugee Minors Program.
(a) An unaccompanied child may be eligible for services through the
ORR Unaccompanied Refugee Minors (URM) Program. Eligible categories of
unaccompanied children include:
(1) Cuban and Haitian entrant as defined in section 501 of the
Refugee Education Assistance Act of 1980, 8 U.S.C. 1522 note, and as
provided for at 45 CFR 400.43;
(2) An individual determined to be a victim of a severe form of
trafficking as defined in 22 U.S.C. 7105(b)(1)(C);
(3) An individual DHS has classified as a Special Immigrant
Juvenile (SIJ) under section 101(a)(27)(J) of the Immigration and
Nationality Act (INA), 8 U.S.C. 1101(a)(27)(J), and who was either in
the custody of HHS at the time a dependency order was granted for such
child or who was receiving services pursuant to section 501(a) of the
Refugee Education Assistance Act of 1980, 8 U.S.C. 1522 note, at the
time such dependency order was granted;
(4) U nonimmigrant status recipients under 8 U.S.C. 1101(a)(15)(U);
or
(5) Other populations of children as authorized by Congress.
(b) With respect to unaccompanied children described in paragraph
(a) of this section, ORR will evaluate each unaccompanied child case to
determine whether it is in the child's best interests to be referred to
the URM Program.
(c) When ORR discharges an unaccompanied child pursuant to this
section to receive services through the URM Program, legal
responsibility of the child, including legal custody or guardianship,
must be established under State law as required by 45 CFR 400.115.
Until such legal custody or guardianship is established, the ORR
Director retains legal custody of the child.
Sec. 410.1209 Requesting specific consent from ORR regarding custody
proceedings.
(a) An unaccompanied child in ORR custody is required to request
specific consent from ORR if the child seeks to invoke the jurisdiction
of a juvenile court to alter the child's custody status or release from
ORR custody.
(b) If an unaccompanied child seeks to invoke the jurisdiction of a
juvenile court for a dependency order to petition for SIJ
classification or to otherwise permit a juvenile court to establish
jurisdiction regarding a child's placement and does not seek the
juvenile court's jurisdiction to determine or alter the child's custody
status or release, the unaccompanied child does not need to request
specific consent from ORR.
(c) Prior to a juvenile court determining or altering the
unaccompanied child's custody status or release from ORR, attorneys or
others acting on behalf of an unaccompanied child must complete a
request for specific consent.
(d) ORR shall acknowledge receipt of the request within two
business days.
(e) Consistent with its duty to promptly place unaccompanied
children in the least restrictive setting that is in the best interest
of the child, ORR shall consider whether ORR custody is required to:
(1) Ensure a child's safety; or
(2) Ensure the safety of the community.
(f) ORR shall make determinations on specific consent requests
within 60 business days of receipt of a request. When possible, ORR
shall expedite urgent requests.
(g) ORR shall inform the unaccompanied child, or the unaccompanied
child's attorney or other authorized representative of the decision on
the specific consent request in writing, along with the evidence
utilized to make the decision.
(h) The unaccompanied child, the unaccompanied child's attorney of
record, or other authorized representative may request reconsideration
of ORR's denial with the Assistant Secretary for ACF within 30 business
days of receipt of the ORR notification of denial of the request. The
unaccompanied child, the unaccompanied child's attorney, or authorized
representative may submit additional (including new) evidence to be
considered with the reconsideration request.
(i) The Assistant Secretary for ACF or designee considers the
request for reconsideration and any additional evidence, and sends a
final administrative decision to the unaccompanied child, or the
unaccompanied child's attorney or other authorized representative,
within 15 business days of receipt of the request.
Sec. 410.1210 Post-release services.
(a) General. (1) Before releasing unaccompanied children, care
provider facilities shall work with sponsors and unaccompanied children
to prepare for safe and timely release of the unaccompanied children,
to assess whether the unaccompanied children may need assistance in
accessing community resources, and to provide guidance regarding safety
planning and accessing services.
[[Page 68988]]
(2) ORR shall conduct PRS, during the pendency of removal
proceedings, for unaccompanied children for whom a home study was
conducted pursuant to Sec. 410.1204. An unaccompanied child who
receives a home study and PRS may also receive home visits by a PRS
provider.
(3) To the extent that ORR determines appropriations are available,
and in its discretion, ORR may conduct PRS in additional cases
involving unaccompanied children with mental health or other needs who
could benefit from ongoing assistance from a community-based service
provider. ORR shall determine the level and extent of PRS, if any,
based on the needs of the unaccompanied children and the sponsors and
the extent appropriations are available.
(4) ORR shall not delay the release of an unaccompanied child if
PRS are not immediately available.
(b) Service areas. PRS include services in the areas listed in
paragraphs (b)(1) through (12) of this section, which shall be provided
in a manner that is sensitive to the individual needs of the
unaccompanied child and in a way they effectively understand regardless
of spoken language, reading comprehension, or disability to ensure
meaningful access for all eligible children, including those with
limited English proficiency. The comprehensiveness of PRS shall depend
on the extent appropriations are available.
(1) Placement stability and safety. PRS providers shall work with
sponsors to address challenges in parenting and caring for
unaccompanied children. This may include guidance about maintaining a
safe home; supervision of unaccompanied children; protecting
unaccompanied children from threats by smugglers, traffickers, and
gangs; and information about child abuse, neglect, separation, grief
and loss, and how these issues affect children.
(2) Immigration proceedings. The PRS provider shall help facilitate
the sponsor's plan to ensure the unaccompanied child's attendance at
all immigration court proceedings and compliance with DHS requirements.
(3) Guardianship. If the sponsor is not a parent or legal guardian
of the unaccompanied child, then the PRS provider shall provide the
sponsor information about the benefits of obtaining legal guardianship
of the unaccompanied child. If the sponsor is interested in becoming
the unaccompanied child's legal guardian, then the PRS provider may
assist the sponsor in identifying the legal resources to do so.
(4) Legal services. PRS providers shall assist sponsors in
accessing relevant legal service resources including resources for
immigration matters and unresolved juvenile justice issues.
(5) Education. PRS providers shall assist sponsors with school
enrollment and addressing issues relating to the unaccompanied
children's progress in school, including attendance. PRS providers may
also assist with alternative education plans for unaccompanied children
who exceed the State's minimum age requirement for mandatory school
attendance. PRS providers may also assist sponsors with obtaining
evaluations for unaccompanied children reasonably suspected of having a
disability to determine eligibility for a free appropriate public
education (which can include special education and related services) or
reasonable modifications and auxiliary aids and services.
(6) Employment. PRS providers shall educate sponsors on U.S. child
labor laws and requirements.
(7) Medical services. PRS providers shall assist the sponsor in
obtaining medical insurance for the unaccompanied child if available
and in locating medical providers that meet the individual needs of the
unaccompanied child and the sponsor. If the unaccompanied child
requires specialized medical assistance, the PRS provider shall assist
the sponsor in making and keeping medical appointments and monitoring
the unaccompanied child's medical requirements. PRS providers shall
provide the unaccompanied child and sponsor with information and
referrals to services relevant to health-related considerations for the
unaccompanied child.
(8) Individual mental health services. PRS providers shall provide
the sponsor with relevant mental health resources and referrals for the
unaccompanied child. The resources and referrals shall take into
account the individual needs of the unaccompanied child and sponsor. If
an unaccompanied child requires specialized mental health assistance,
PRS providers shall assist the sponsor in making and keeping mental
health appointments and monitoring the unaccompanied child's mental
health requirements.
(9) Family stabilization/counseling. PRS providers shall provide
the sponsor with relevant resources and referrals for family counseling
and/or individual counseling that meet individual needs of the
unaccompanied child and the sponsor.
(10) Substance use. PRS providers shall assist the sponsor in
locating resources to help address any substance use-related needs of
the unaccompanied child.
(11) Gang prevention. PRS providers shall provide the sponsor
information about gang prevention programs in the sponsor's community.
(12) Other services. PRS providers may assist the sponsor and
unaccompanied child with accessing local resources in other specialized
service areas based on the needs and at the request of the
unaccompanied child.
(c) PRS for unaccompanied children requiring additional
consideration. Additional unaccompanied children may be referred to PRS
based on their individual needs, including, but not limited to:
(1) Unaccompanied children in need of particular services or
treatment;
(2) Unaccompanied children with disabilities;
(3) LGBTQI+ status unaccompanied children;
(4) Unaccompanied children who are adjudicated delinquent or who
have been involved in, or are at high risk of involvement with the
juvenile justice system;
(5) Unaccompanied children who entered ORR care after being
separated by DHS from a parent or legal guardian;
(6) Unaccompanied children who are victims of human trafficking or
other crimes;
(7) Unaccompanied children who are victims of, or at risk of,
worker exploitation;
(8) Unaccompanied children who are at risk for labor trafficking;
(9) Unaccompanied children who are certain parolees; and
(10) Unaccompanied children enrolled in school who are chronically
absent or retained at the end of their school year.
(d) Assessments. The PRS provider shall assess the released
unaccompanied child and sponsor for PRS needs and shall document the
assessment. The assessment shall be developmentally appropriate,
trauma-informed, and focused on the needs of the unaccompanied child
and sponsor.
(e) Ongoing check-ins and in-home visits. (1) In consultation with
the released unaccompanied child and sponsor, the PRS provider shall
make a determination regarding the appropriate methods, timeframes, and
schedule for ongoing contact with the released unaccompanied child and
sponsor based on the level of need and support needed.
(2) PRS providers shall make monthly contact, at a minimum, with
their
[[Page 68989]]
assigned released unaccompanied children and their sponsors, either in
person or virtually for six (6) months after release.
(3) PRS providers shall document all ongoing check-ins and in-home
visits, as well as document progress and outcomes of their home visits.
(f) Referrals to community resources. (1) PRS providers shall work
with released unaccompanied children and their sponsors to access
community resources.
(2) PRS providers shall document any community resource referrals
and their outcomes.
(g) Timeframes for PRS. (1) For a released unaccompanied child who
is required under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to receive PRS,
the PRS provider shall to the greatest extent practicable start
services within two (2) days of the unaccompanied child's released from
ORR care. If a PRS provider is unable to start PRS within two (2) days
of the unaccompanied child's release, PRS shall start no later than 30
days after release.
(2) For a released unaccompanied child who is referred by ORR to
receive PRS but is not required to receive PRS following a home study,
the PRS provider shall to the greatest extent practicable start
services within two (2) days of accepting a referral.
(h) Termination of PRS. (1) For a released unaccompanied child who
is required to receive PRS under the TVPRA at 8 U.S.C. 1232(c)(3)(B),
PRS for the unaccompanied child shall continue until the unaccompanied
child turns 18 or the unaccompanied child is granted voluntary
departure, immigration status, or the child receives an order of
removal, whichever occurs first.
(2) For a released unaccompanied child who is not required to
receive PRS under the TVPRA at 8 U.S.C. 1232(c)(3)(B), but who receives
PRS as authorized under the TVPRA, PRS for the unaccompanied child
shall presumptively continue for not less than six months or until the
unaccompanied child turns 18, whichever occurs first; or until the PRS
provider assesses the unaccompanied child and determines PRS are no
longer needed, but in that case for not less than six months.
(i) Records and reporting requirements for PRS providers--(1)
General. (i) PRS providers shall maintain comprehensive, accurate, and
current case files on unaccompanied children that are kept confidential
and secure at all times and shall be accessible to ORR upon request.
PRS providers shall keep all case file information together in the PRS
provider's physical and electronic files.
(ii) PRS providers shall upload all PRS documentation on services
provided to unaccompanied children and sponsors to ORR's case
management system within seven (7) days of completion of the services.
(2) Records management and retention. (i) PRS providers shall have
written policies and procedures for organizing and maintaining the
content of active and closed case files, which incorporate ORR policies
and procedures. The PRS provider's policies and procedures shall also
address preventing the physical damage or destruction of records.
(ii) Before providing PRS, PRS providers shall have established
administrative and physical controls to prevent unauthorized access to
both electronic and physical records.
(iii) PRS providers may not release records to any third party
without prior approval from ORR.
(iv) If a PRS provider is no longer providing PRS for ORR, the PRS
provider shall provide all active and closed case file records to ORR
according to instructions issued by ORR.
(3) Privacy. (i) PRS providers shall have written policy and
procedure in place that protects the sensitive information of released
unaccompanied children from access by unauthorized users.
(ii) PRS providers shall explain to released unaccompanied children
and their sponsors how, when, and under what circumstances sensitive
information may be shared while the unaccompanied children receive PRS.
(iii) PRS providers shall have appropriate controls on information-
sharing within the PRS provider network, including, but not limited to,
subcontractors.
(4) Notification of Concern. (i) If the PRS provider is concerned
about the about the unaccompanied child's safety and well-being, the
PRS provider shall document a Notification of Concern (NOC) and report
the concern(s) to ORR, and as applicable, the appropriate investigative
agencies (including law enforcement and child protective services).
(ii) PRS providers shall document and submit NOCs to ORR within 24
hours of first suspicion or knowledge of the event(s).
(5) Case closures. (i) PRS providers shall formally close a case
when ORR terminates PRS in accordance with paragraph (h) of this
section.
(ii) ORR shall provide appropriate instructions, including any
relevant forms, that PRS providers must follow when closing a case.
Subpart D--Minimum Standards and Required Services
Sec. 410.1300 Purpose of this subpart.
This subpart covers standards and required services that care
provider facilities must meet and provide in keeping with the
principles of treating unaccompanied children in custody with dignity,
respect, and special concern for their particular vulnerability.
Sec. 410.1301 Applicability of this subpart.
This subpart applies to all standard programs and to non-standard
programs where specified.
Sec. 410.1302 Minimum standards applicable to standard programs.
Standard programs shall:
(a) Be licensed by an appropriate State or Federal agency, or meet
other requirements specified by ORR if licensure is unavailable to
programs providing services to unaccompanied children in their State,
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, or other requirements specified by ORR if licensure is
unavailable in their State to care provider facilities providing
services to unaccompanied children. If there is a potential conflict
between ORR's regulations and State law, ORR will review the
circumstances to determine how to ensure that it is able to meet its
statutory responsibilities. It is important to note, however, that if a
State law or license, registration, certification, or other requirement
conflicts with an ORR employee's duties within the scope of their ORR
employment, the ORR employee is required to abide by their Federal
duties.
(c) Provide or arrange for the following services for each
unaccompanied child in care:
(1) Proper physical care and maintenance, including suitable living
accommodations, food that is of adequate variety, quality, and in
sufficient quantity to supply the nutrients needed for proper growth
and development, which can be accomplished by following the U.S.
Department of Agriculture (USDA) Dietary Guidelines for Americans, and
appropriate for the child and activity level, drinking water that is
always available to each unaccompanied child, appropriate clothing,
personal grooming and hygiene items, access to toilets and
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sinks, adequate temperature control and ventilation, and adequate
supervision to protect unaccompanied children from others;
(2) An individualized needs assessment that shall include:
(i) Various initial intake forms;
(ii) Essential data relating to the identification and history of
the unaccompanied child and family;
(iii) Identification of the unaccompanied child's special needs
including any specific problems that appear to require immediate
intervention;
(iv) An educational assessment and plan;
(v) whether an indigenous language speaker;
(vi) An assessment of family relationships and interaction with
adults, peers and authority figures;
(vii) A statement of religious preference and practice;
(viii) An assessment of the unaccompanied child's personal goals,
strengths and weaknesses; and
(iv) 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;
(3) Educational services appropriate to the unaccompanied child's
level of development, communication skills, and disability, if
applicable, 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 an unaccompanied child of appropriate
reading materials in languages other than English for use during the
unaccompanied child's leisure time;
(4) 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;
(5) At least one individual counseling session per week conducted
by certified counseling staff with the specific objectives of reviewing
the unaccompanied child's progress, establishing new short and long-
term objectives, and addressing both the developmental and crisis-
related needs of each unaccompanied child;
(6) Group counseling sessions at least twice a week;
(7) 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;
(8) An admissions process, including:
(i) Meeting unaccompanied children's immediate needs to food,
hydration, and personal hygiene including the provision of clean
clothing and bedding;
(ii) An initial intakes assessment covering biographic, family,
migration, health history, substance use, and mental health history of
the unaccompanied child. If the unaccompanied child's responses to
questions during any examination or assessment indicate the possibility
that the unaccompanied child may have been a victim of human
trafficking or labor exploitation, the care provider facility must
notify the ACF Office of Trafficking in Persons within twenty-four (24)
hours;
(iii) A comprehensive orientation regarding program purpose,
services, rules (provided in writing and orally), expectations, their
rights in ORR care, and the availability of legal assistance,
information about U.S. immigration and employment/labor laws, and
services from the Unaccompanied Children Office of the Ombuds (UC
Office of the Ombuds) in simple, non-technical terms and in a language
and manner that the child understands, if practicable; and
(iv) Assistance with contacting family members, following the ORR
Guide and the care provider facility's internal safety procedures;
(9) Whenever possible, access to religious services of the
unaccompanied child 's choice, celebrating culture-specific events and
holidays, being culturally aware in daily activities as well as food
menus, choice of clothing, and hygiene routines, and covering various
cultures in children's educational services;
(10) Visitation and contact with family members (regardless of
their immigration status) which is structured to encourage such
visitation. Standard programs should provide unaccompanied children
with at least 15 minutes of phone or video contact three times a week
with parents and legal guardians, family members, and caregivers
located in the United States and abroad, in a private space that
ensures confidentiality and at no cost to the unaccompanied child,
parent, legal guardian, family member, or caregiver. The staff shall
respect the unaccompanied child's privacy while reasonably preventing
the unauthorized release of the unaccompanied child;
(11) Assistance with family unification services designed to
identify and verify relatives in the United States as well as in
foreign countries and assistance in obtaining legal guardianship when
necessary for release of the unaccompanied child;
(12) Legal services information regarding the availability of free
legal assistance, and that they may be represented by counsel at no
expense to the government, the right to a removal hearing before an
immigration judge; the ability to apply for asylum with U.S.
Citizenship and Immigration Services (USCIS) in the first instance, and
the ability to request voluntary departure in lieu of removal; and
(13) Information about U.S. child labor laws and education around
permissible work opportunities in a manner that is sensitive to the
age, culture, and native language of each unaccompanied child.
(d) Deliver services in a manner that is sensitive to the age,
culture, native language, and the complex needs of each unaccompanied
child.
(e) Develop a comprehensive and realistic individual service plan
for the care of each unaccompanied child in accordance with the
unaccompanied child's needs as determined by the individualized needs
assessment. Individual plans must be implemented and closely
coordinated through an operative case management system. Service plans
should identify individualized, person-centered goals with measurable
outcomes and with steps or tasks to achieve the goals, be developed
with input from the unaccompanied child, and be reviewed and updated at
regular intervals. Unaccompanied children ages 14 and older should be
given a copy of the plan, and unaccompanied children under age 14
should be given a copy of the plan when appropriate for that particular
child's development. Individual plans shall be in that child's native
language or other mode of auxiliary aid or services and/or use clear,
easily understood language, using concise and concrete sentences and/or
visual aids and checking for understanding where appropriate.
Sec. 410.1303 ORR Reporting, monitoring, quality control, and
recordkeeping standards.
(a) Monitoring activities. ORR monitors all care provider
facilities for
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compliance with the terms of the regulations in this part and 45 CFR
part 411. ORR monitoring activities include:
(1) Desk monitoring that is ongoing oversight from ORR
headquarters;
(2) Routine site visits that are day-long visits to facilities to
review compliance for policies, procedures, and practices and
guidelines;
(3) Site visits in response to ORR or other reports that are for a
specific purpose or investigation; and
(4) Monitoring visits that are part of comprehensive reviews of all
care provider facilities.
(b) Corrective actions. If ORR finds a care provider facility to be
out of compliance with the regulations in this part and 45 CFR part 411
or sub-regulatory policies such as its guidance and the terms of its
contracts or cooperative agreements, ORR will communicate the concerns
in writing to the care provider facility director or appropriate person
through a written monitoring or site visit report, with a list of
corrective actions and child welfare best practice recommendations, as
appropriate. ORR will request a response to the corrective action
findings from the care provider facility and specify a time frame for
resolution and the disciplinary consequences for not responding within
the required timeframes.
(c) Monitoring of secure facilities. At secure facilities, in
addition to other monitoring activities, ORR reviews individual
unaccompanied child case files to make sure children placed in secure
facilities are assessed at least every 30 days for the possibility of a
transfer to a less restrictive setting.
(d) Monitoring of long-term home care and transitional home care
facilities. ORR long-term home care and transitional home care
facilities are subject to the same types of monitoring as other care
provider facilities, but the activities are tailored to the foster care
arrangement. ORR long-term home care and transitional home care
facilities that provide services through a sub-contract or sub-grant
are responsible for conducting annual monitoring or site visits of the
sub-recipient, as well as weekly desk monitoring. Upon request, care
provider facilities must provide findings of such reviews to the
designated ORR point of contact.
(e) Care provider facility quality assurance. ORR requires care
provider facilities to develop quality assurance assessment procedures
that accurately measure and evaluate service delivery in compliance
with the requirements of the regulations in this part, as well as those
delineated in 45 CFR part 411.
(f) Reporting. Care provider facilities shall report to ORR any
emergency incident, significant incident, or program-level event and in
accordance with any applicable Federal, State, and local reporting
laws. Such reports are subject to the following rules:
(1) Care provider facilities must document incidents with
sufficient detail to ensure that any relevant entity can facilitate any
required follow-up; document incidents in a way that is trauma-informed
and grounded in child welfare best practices; and update the report
with any findings or documentation that are made after the fact.
(2) Care provider facilities must never: fabricate, exaggerate, or
minimize incidents; use disparaging or judgmental language about
unaccompanied children in incident reports; use incident reporting or
the threat of incident reporting as a way to manage the behavior of
unaccompanied children or for any other illegitimate reason.
(3) Care provider facilities are prohibited from using reports of
significant incidents as a method of punishment or threat towards any
child in ORR care for any reason.
(4) The existence of a report of a significant incident may not be
used by ORR as a basis for an unaccompanied child's step up to a
restrictive placement or as the sole basis for a refusal to step a
child down to a less restrictive placement. Care provider facilities
are likewise prohibited from using the existence of a report of a
significant incident as a basis for refusing an unaccompanied child's
placement in their facilities. Reports of significant incidents may be
used as examples or citations of concerning behavior; however, the
existence of a report itself is not sufficient for a step up, a refusal
to step down, or a care provider facility to refuse a placement.
(g) Develop, maintain, and safeguard each individual unaccompanied
child's case file. This paragraph (g) applies to all care provider
facilities responsible for the care and custody of unaccompanied
children, whether the program is a standard program or not.
(1) Care provider facilities and PRS providers must preserve the
confidentiality of unaccompanied child case file records and
information, and protect the records and information from unauthorized
use or disclosure;
(2) The records included in unaccompanied child case files are the
property of ORR, whether in the possession of ORR or a care provider
facility or PRS provider, and care provider facilities and PRS
providers may not release those records without prior approval from ORR
except for limited program administration purposes;
(3) Care provider facilities and PRS providers must provide
unaccompanied child case file records to ORR immediately upon ORR's
request; and
(4) Employees, former employees, or contractors of a care provider
facility or PRS provider must not disclose case file records or
information about unaccompanied children, their sponsors, family, or
household members to anyone for any purpose, except for purposes of
program administration, without first providing advanced notice to ORR
to allow ORR to ensure that disclosure of unaccompanied children's
information is compatible with program goals and to ensure the safety
and privacy of unaccompanied children.
(h) Records. Maintain adequate records in the unaccompanied child
case file and make regular reports as required by ORR that permit ORR
to monitor and enforce the regulations in this part and other
requirements and standards as ORR may determine are in the interests of
the unaccompanied child.
Sec. 410.1304 Behavior management and prohibition on seclusion and
restraint.
(a) Care provider facilities must develop behavior management
strategies that include evidence-based, trauma-informed, and
linguistically responsive program rules and behavior management
policies that take into consideration the range of ages and maturity in
the program and that are culturally sensitive to the needs of each
unaccompanied child. The behavior management strategies must not use
any practices that involve negative reinforcement or involve
consequences or measures that are not constructive and are not
logically related to the behavior being regulated. Care provider
facilities must not:
(1) Use or threaten use of corporal punishment, significant
incident reports as punishment, unfavorable consequences related to
family/sponsor unification or legal matters (e.g., immigration,
asylum); use forced chores or work that serves no purpose except to
demean or humiliate the child, forced physical movement, such as push-
ups and running, or uncomfortable physical positions as a form of
punishment or humiliation; search an unaccompanied child's personal
belongings solely for the purpose of behavior management; apply medical
interventions that are not prescribed by a medical provider acting
within the usual course of professional practice for a medical
diagnosis or that
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increase risk of harm to the unaccompanied child or others; and
(2) Use any sanctions employed in relation to an individual
unaccompanied child that:
(i) Adversely affect an unaccompanied child's health, or physical,
emotional, or psychological well-being; or
(ii) Deny unaccompanied children meals, hydration, sufficient
sleep, routine personal grooming activities, exercise (including daily
outdoor activity), medical care, correspondence or communication
privileges, or legal assistance.
(3) Use prone physical restraints, chemical restraints, or peer
restraints for any reason in any care provider facility setting.
(b) Involving law enforcement should be a last resort. A call by a
facility to law enforcement may trigger an evaluation of staff involved
regarding their qualifications and training in trauma-informed, de-
escalation techniques.
(c) Standard programs and RTCs are prohibited from using seclusion
as a behavioral intervention. Standard programs and RTCs are also
prohibited from using restraints, except as described at paragraphs (d)
and (f) of this section.
(d) Standard programs and RTCs may use personal restraint only in
emergency safety situations.
(e) Secure facilities, except for RTCs:
(1) May use personal restraints, mechanical restraints and/or
seclusion in emergency safety situations.
(2) May restrain an unaccompanied child for their own immediate
safety or that of others during transport to an immigration court or an
asylum interview.
(3) May restrain an unaccompanied child while at an immigration
court or asylum interview if the child exhibits imminent runaway
behavior, makes violent threats, demonstrates violent behavior, or if
the secure facility has made an individualized determination that the
child poses a serious risk of violence or running away if the child is
unrestrained in court or the interview.
(4) Must provide all mandated services under this subpart to the
unaccompanied child to the greatest extent practicable under the
circumstances while ensuring the safety of the unaccompanied child,
other unaccompanied children at the secure facility, and others.
(f) Care provider facilities may only use soft restraints (e.g.,
zip ties and leg or ankle weights) during transport to and from secure
facilities, and only when the care provider believes a child poses a
serious risk of physical harm to self or others or a serious risk of
running away from ORR custody.
Sec. 410.1305 Staff, training, and case manager requirements.
(a) Standard programs, restrictive placements, and post-release
service providers shall provide training to all staff, contractors, and
volunteers, to ensure that they understand their obligations under ORR
regulations in this part and policies and are responsive to the
challenges faced by staff and unaccompanied children at the facility.
All trainings should be tailored to the unique needs, attributes, and
gender of the unaccompanied children in care at the individual care
provider facility. Standard programs and restrictive placements must
document the completion of all trainings in personnel files. All staff,
contractors, and volunteers must have completed all required background
checks and vetting for their respective roles prior to service
provision and care provider facilities must provide documentation to
ORR of compliance;
(b) Standard programs and restrictive placements shall meet the
staff to child ratios established by their respective States or other
licensing entities, or ratios established by ORR if State licensure is
not available; and
(c) Standard programs and restrictive placements must have case
managers based on site at the facility.
Sec. 410.1306 Language access services.
(a) General. (1) To the greatest extent practicable, standard
programs and restrictive placements shall consistently offer
unaccompanied children the option of interpretation and translation
services in their native or preferred language, depending on the
unaccompanied children's preference, and in a way they effectively
understand. If after taking reasonable efforts, standard programs and
restrictive placements are unable to obtain a qualified interpreter or
translator for the unaccompanied children's native or preferred
language, depending on the children's preference, standard programs and
restrictive placements shall consult with qualified ORR staff for
guidance on how to ensure meaningful access to their programs and
activities for the children, including those with limited English
proficiency.
(2) Standard programs and restrictive placements shall prioritize
the ability to provide in-person, qualified interpreters for
unaccompanied children who need them, particularly for rare or
indigenous languages. After the standard programs and restrictive
placements take reasonable efforts to obtain in-person, qualified
interpreters, then they may use professional telephonic interpreter
services.
(3) Standard programs and restrictive placements shall translate
all documents and materials shared with the unaccompanied children,
including those posted in the facilities, in the unaccompanied
children's native or preferred language, depending on the children's
preference, and in a timely manner.
(b) Placement considerations. ORR shall make placement decisions
for the unaccompanied children that are informed in part by language
access considerations and other factors as listed in Sec. 410.1103(b).
To the extent appropriate and practicable, giving due consideration to
an unaccompanied child's individualized needs, ORR shall place
unaccompanied children with similar language needs within the same
standard program or restrictive placement.
(c) Intake, orientation, and confidentiality.(1) Prior to
completing the UC Assessment and starting counseling services, standard
programs and restrictive placements shall provide a written notice of
the limits of confidentiality they share while in ORR care and custody,
and orally explain the contents of the written notice to the
unaccompanied children, in their native or preferred language,
depending on the children's preference, and in a way they can
effectively understand.
(2) Standard programs and restrictive placements shall conduct
assessments and initial medical exams with unaccompanied children in
their native or preferred language, depending on the children's
preference, and in a way they effectively understand.
(3) Standard programs and heightened supervision facilities shall
provide a standardized and comprehensive orientation to all
unaccompanied children in their native or preferred language, depending
on the children's preference, and in a way they effectively understand
regardless of spoken language, reading comprehension level, or
disability.
(4) For all step-ups to and step-downs from restrictive placements,
standard programs and restrictive placements shall explain to the
unaccompanied children why they were placed in a restrictive setting
and/or if their placement was changed and do so in the unaccompanied
children's native or preferred language, depending on the children's
preference, and in a way they effectively understand. All documents
shall be translated into the unaccompanied children's and/or
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sponsor's native or preferred language, depending on the children's
preference.
(5) If unaccompanied children are not literate, or if the documents
provided during intakes and/or orientation are not translated into a
language that they can read and effectively understand, the standard
program or restrictive placement shall have a qualified interpreter
orally translate or sign language translate and explain all the
documents in the unaccompanied children's native or preferred language,
depending on the children's preference, and confirm with the
unaccompanied children that they fully comprehend all material.
(6) Standard programs and restrictive placements shall provide
information regarding grievance policies and procedures in the
unaccompanied children's native or preferred language, depending on the
children's preference, and in a way they effectively understand.
(7) Standard programs and restrictive placements shall educate
unaccompanied children on ORR's sexual abuse and sexual harassment
policies in the unaccompanied children's native or preferred language,
depending on the children's preference, and in a way they effectively
understand.
(8) Standard programs and restrictive placements shall notify the
unaccompanied children that the standard programs and restrictive
placements shall accommodate the unaccompanied children's language
needs while they remain in ORR care.
(9) For paragraphs (c)(1) through (8) of this section, standard
programs and restrictive placements shall document that the
unaccompanied children acknowledge that they effectively understand
what was provided to them in the child's case files.
(d) Education. (1) Standard programs and heightened supervision
facilities shall provide educational instruction and relevant materials
in a format and language accessible to all unaccompanied children,
regardless of the child's native or preferred language, including, but
not limited to, providing services from an in-person, qualified
interpreter, written translations of materials, and professional
telephonic interpretation when in-person interpretation options have
been exhausted.
(2) Standard programs and heightened supervision facilities shall
provide unaccompanied children with appropriate recreational reading
materials in languages in formats and languages accessible to all
unaccompanied children for use during their leisure time.
(3) Standard programs and heightened supervision facilities shall
translate all ORR-required documents provided to unaccompanied children
that are part of educational lessons in formats and languages
accessible to all unaccompanied children. If written translations are
not available, standard programs and heightened supervision facilities
shall orally translate or sign language translate all documents,
prioritizing services from an in-person, qualified interpreter and
translation before using professional telephonic interpretation and
translation services.
(e) Religious and cultural accommodations. If an unaccompanied
child requests religious and/or cultural information or items, the
standard program or heightened supervision facility shall provide the
requested items in the unaccompanied child's native or preferred
language, depending on the child's preference, and as long as the
request is reasonable.
(f) Parent and sponsor communications. Standard programs and
restrictive placements shall utilize any necessary professional
interpretation or translation services needed to ensure meaningful
access by an unaccompanied child's parent(s), guardian(s), and/or
potential sponsor(s). Standard programs and restrictive placements
shall translate all documents and materials shared with the parent(s),
guardian, and/or potential sponsors in their native or preferred
language, depending on their preference.
(g) Healthcare services. While providing or arranging healthcare
services for unaccompanied children, standard programs and restrictive
placements shall ensure that unaccompanied children are able to
communicate with physicians, clinicians, and healthcare staff in their
native or preferred language, depending on the unaccompanied children's
preference, and in a way the unaccompanied children effectively
understand, prioritizing services from an in-person, qualified
interpreter before using professional telephonic interpretation
services.
(h) Legal services. Standard programs and restrictive placements
shall make qualified interpretation and/or translation services
available to unaccompanied children, child advocates, and legal service
providers upon request while unaccompanied children are being provided
with those services. Such services shall be available to unaccompanied
children in enclosed, confidential areas.
(i) Interpreter's and translator's responsibility with respect to
confidentiality of information. Interpreters and translators shall keep
all information about the unaccompanied children's cases and/or
services, confidential from non-ORR grantees, contractors, and Federal
staff. Interpreters and translators shall not disclose case file
information to other interested parties in the unaccompanied child's
cases.
Sec. 410.1307 Healthcare services.
(a) ORR shall ensure that all unaccompanied children in ORR custody
will be provided with routine medical and dental care; access to
medical services requiring heightened ORR involvement, consistent with
paragraph (c) of this section; family planning services; and emergency
healthcare services.
(b) Standard programs and restrictive placements shall be
responsible for:
(1) Establishment of a network of licensed healthcare providers
established by the care provider facility, including specialists,
emergency care services, mental health practitioners, and dental
providers that will accept ORR's fee-for-service billing system;
(2) A complete medical examination (including screening for
infectious disease) within 2 business days of admission, excluding
weekends and holidays, unless the unaccompanied child was recently
examined at another facility and if unaccompanied children are still in
ORR custody 60 to 90 days after admission, an initial dental exam, or
sooner if directed by State licensing requirements;
(3) Appropriate immunizations as recommended by the Advisory
Committee on Immunization Practices' Child and Adolescent Immunization
Schedule and approved by HHS' Centers for Disease Control and
Prevention;
(4) An annual physical examination, including hearing and vision
screening, and follow-up care for acute and chronic conditions;
(5) Administration of prescribed medication and special diets;
(6) Appropriate mental health interventions when necessary;
(7) Having policies and procedures for identifying, reporting, and
controlling communicable diseases that are consistent with applicable
State, local, and Federal laws and regulations.
(8) Having policies and procedures that enable unaccompanied
children, including those with language and literacy barriers, to
convey written and oral requests for emergency and non-emergency
healthcare services;
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(9) Having policies and procedures based on State or local laws and
regulations to ensure the safe, discreet, and confidential provision of
prescription and nonprescription medications to unaccompanied children,
secure storage of medications, and controlled administration and
disposal of all drugs. A licensed healthcare provider must write or
orally order all nonprescription medications, and oral orders must be
documented in the unaccompanied child's file; and
(10) Medical isolation may be used according to the following
requirements:
(i) An unaccompanied child may be placed in medical isolation and
excluded from contact with the general population in order to prevent
the spread of an infectious disease due to a potential exposure,
protect other unaccompanied children, and care provider facility staff
for a medical purpose or as required under State, local, or other
licensing rules, as long as the medically required isolation is limited
only to the extent necessary to ensure the health and welfare of the
unaccompanied child, other unaccompanied children at a care provider
facility and care provider facility staff, or the public at large.
(ii) Standard programs and restrictive placements must provide all
mandated services under this subpart to the greatest extent practicable
under the circumstances to unaccompanied children in medical isolation.
Medically isolated unaccompanied children still must be supervised
under State, local, or other licensing ratios, and, if multiple
unaccompanied children are in medical isolation, they should be placed
in units or housing together (as practicable, given the nature or type
of medical issue giving rise to the requirement for isolation in the
first instance).
(c) Access to medical care--(1) Initial placement and transfer
considerations--(i) Initial placement. Consistent with Sec. 410.1103,
when placing an unaccompanied child, ORR considers the child's
individualized needs and any specialized services or treatment required
or reasonably requested. Such services or treatment include but are not
limited to access to medical specialists, family planning services, and
medical services requiring heightened ORR involvement. When such care
is determined to be medically necessary during the referral, intake
process, Initial Medical Exam, or at any point while the unaccompanied
child is in ORR custody, or the unaccompanied child reasonably requests
such medical care while in ORR custody, ORR shall, to the greatest
extent possible, identify available and appropriate bed space and place
the unaccompanied child at a care provider facility that is able to
provide or arrange such care, is in an appropriate location to support
the unaccompanied child's healthcare needs, and affords access to an
appropriate medical provider who is able to perform any reasonably
requested or medically necessary services.
(ii) Transfers. If an appropriate initial placement is not
immediately available or if the unaccompanied child's need or request
for medical care is identified after the Initial Medical Exam, care
providers shall immediately notify ORR and ORR shall, to the greatest
extent possible, transfer the unaccompanied child needing medical care
to an ORR program that meets the qualifications in paragraph (c)(1)(i)
of this section.
(2) Transportation. ORR shall ensure unaccompanied children have
access to medical care, including transportation across State lines and
associated ancillary services if necessary to access appropriate
medical services, including access to medical specialists, family
planning services, and medical services requiring heightened ORR
involvement. The requirement in this paragraph (c)(2) applies
regardless of whether Federal appropriations law prevents ORR from
paying for the medical care itself. If there is a potential conflict
between ORR's regulations in this part and State law, ORR will review
the circumstances to determine how to ensure that it is able to meet
its statutory responsibilities. It is important to note, however, that
if a State law or license, registration, certification, or other
requirement conflicts with an ORR employee's duties within the scope of
their ORR employment, the ORR employee is required to abide by their
Federal duties.
(d) Notifications. Care provider facilities shall notify ORR within
24 hours of an unaccompanied child's need or request for medical
services requiring heightened ORR involvement or the discovery of a
pregnancy.
Sec. 410.1308 Child advocates.
(a) Child advocates. This section sets forth the provisions
relating to the appointment and responsibilities of independent child
advocates for child trafficking victims and other especially vulnerable
unaccompanied children.
(b) Role of the child advocate. Child advocates are third parties
who make independent recommendations regarding the best interests of an
unaccompanied child. Their recommendations are based on information
obtained from the unaccompanied child and other sources (including, but
not limited to, the unaccompanied child's parents, the family,
potential sponsors/sponsors, government agencies, legal service
providers, protection and advocacy system representatives in
appropriate cases, representatives of the unaccompanied child's care
provider, health professionals, and others). Child advocates formally
submit their recommendations to ORR and/or the immigration court, where
appropriate, in the form of best interest determinations (BIDs).
(c) Responsibilities of the child advocate. The child advocate's
responsibilities include, but are not limited to:
(1) Visiting with their unaccompanied child clients;
(2) Explaining the consequences and potential outcomes of decisions
that may affect their unaccompanied child;
(3) Advocating for their unaccompanied child client's best interest
with respect to care, placement, services, release, and within
proceedings to which the child is a party;
(4) Providing best interest determinations, where appropriate and
within a reasonable time to ORR, an immigration court, and/or other
stakeholders involved in a proceeding or matter in which the
unaccompanied child is a party or has an interest; and,
(5) Regularly communicating case updates with the care provider
facility, ORR, and/or other stakeholders in the planning and
performance of advocacy efforts, including updates related to services
provided to an unaccompanied child after their release from ORR care.
(d) Appointment of child advocates. ORR may appoint child advocates
for unaccompanied children who are victims of trafficking or especially
vulnerable.
(1) An interested party may refer an unaccompanied child to ORR for
a child advocate after notifying ORR that a particular unaccompanied
child who is currently in or was previously in, ORR's care and custody,
is a victim of trafficking or is especially vulnerable. As used in this
paragraph (d)(1), interested parties means individuals or organizations
involved in the care, service, or proceeding involving an unaccompanied
child, including but not limited to, ORR Federal or contracted staff;
an immigration judge; DHS Staff; a legal service provider, attorney of
record, or EOIR accredited representative; an ORR care provider;
healthcare professional; or a child advocate organization.
(2) ORR shall make an appointment decision within five (5) business
days of
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a referral for a child advocate, except under exceptional circumstances
which may delay a decision regarding an appointment. ORR will appoint
child advocates for unaccompanied children who are currently in or were
previously in ORR care and custody. ORR does not appoint child
advocates for unaccompanied children who are not in or were not
previously in ORR care and custody.
(3) Child advocate appointments terminate upon the closure of the
unaccompanied child's case by the child advocate; when the
unaccompanied child turns 18; or when the unaccompanied child obtains
lawful immigration status.
(e) Child advocate's access to information. After a child advocate
is appointed for an unaccompanied child, the child advocate shall be
provided access to materials to effectively advocate for the best
interest of the unaccompanied child. Child advocates shall be provided
access to their clients during normal business hours at an ORR care
provider facility and shall be provided access to all their client's
case file information and may request copies of the case file directly
from the unaccompanied child's care provider without going through
ORR's standard case file request process.
(f) Child advocate's responsibility with respect to confidentiality
of information. Child advocates must keep the information in the case
file, and information about the unaccompanied child's case,
confidential. Child advocates shall not disclose case file information
except to ORR grantees, contractors, and Federal staff. Child advocates
shall not disclose case file information to other parties, including
parties with an interest in a child's case. With regard to an
unaccompanied child in ORR care, ORR shall allow the child advocate of
that unaccompanied child to conduct private communications with the
unaccompanied child, in a private area that allows for confidentiality
for in-person and virtual or telephone meetings.
(g) Non-retaliation against child advocates. ORR shall presume that
child advocates are acting in good faith with respect to their advocacy
on behalf of unaccompanied children, and shall not retaliate against a
child advocate for actions taken within the scope of their
responsibilities. For example, ORR shall not retaliate against child
advocates because of any disagreement with a best interest
determination in regard to an unaccompanied child, or because of a
child advocate's advocacy on behalf of an unaccompanied child.
Sec. 410.1309 Legal services.
(a) Unaccompanied children's access to immigration legal services--
(1) Purpose. This paragraph (a) describes ORR's responsibilities in
relation to legal services for unaccompanied children, consistent with
8 U.S.C. 1232(c)(5).
(2) Orientation. An unaccompanied child in ORR's legal custody
shall receive:
(i) An in-person, telephonic, or video presentation concerning the
rights and responsibilities of undocumented children in the immigration
system, presented in the language of the unaccompanied child and in an
age-appropriate manner.
(A) Such presentation shall be provided by an independent legal
service provider that has appropriate qualifications and experience, as
determined by ORR, to provide such presentation and shall include
information notifying the unaccompanied child of their legal rights and
responsibilities, including protections under child labor laws, and of
services to which they are entitled, including educational services.
The presentation must be delivered in the language of the unaccompanied
child and in an age-appropriate manner.
(B) Such presentation must occur within 10 business days of child's
admission to ORR, within 10 business days of a child's transfer to a
new ORR facility (except ORR long-term home care or ORR transitional
home care), and every 6 months for unrepresented children who remain in
ORR custody, as practicable. If the unaccompanied child is released
before 10 business days, a legal service provider shall follow up as
soon as practicable to complete the presentation, in person or
remotely.
(ii) Information regarding the availability of free legal
assistance and that they may be represented by counsel at no expense to
the government.
(iii) Notification regarding the child's ability to petition for
SIJ classification, to request that a juvenile court determine
dependency or placement in accordance with Sec. 410.1209, and
notification of the ability to apply for asylum or other forms of
relief from removal.
(iv) Information regarding the unaccompanied child's right to a
removal hearing before an immigration judge, the ability to apply for
asylum with USCIS in the first instance, and the ability to request
voluntary departure in lieu of removal.
(v) A confidential legal consultation with a qualified attorney (or
paralegal working under the direction of an attorney, or EOIR
accredited representative) to determine possible forms of relief from
removal in relation to the unaccompanied child's immigration case, as
well as other case disposition options such as, but not limited to,
voluntary departure. Such consultation shall occur within 10 business
days of a child's transfer to a new ORR facility (except ORR long-term
home care or ORR transitional home care) or upon request from ORR. ORR
shall request an additional legal consultation on behalf of a child, if
the child has been identified as:
(A) A potential victim of a severe form of trafficking;
(B) Having been abused, abandoned, or neglected; or
(C) Having been the victim of a crime or domestic violence; or
(D) Persecuted or in fear of persecution due to race, religion,
nationality, membership in a particular social group, or for a
political opinion.
(vi) An unaccompanied child in ORR care shall be able to conduct
private communications with their attorney of record, EOIR accredited
representative, or legal service provider in a private enclosed area
that allows for confidentiality for in-person, virtual, or telephone
meetings.
(3) Accessibility of information. In addition to the requirements
in paragraphs (a)(1) and (2) of this section for orienting and
informing unaccompanied children of their legal rights and access to
services while in ORR care, ORR shall also require this information be
posted for unaccompanied children in an age-appropriate format and
translated into each child's preferred language, in any ORR contracted
or grant-funded facility where unaccompanied children are in ORR care.
(4) Direct immigration legal representation services for
unaccompanied children currently or previously under ORR care. To the
extent ORR determines that appropriations are available, and insofar as
it is not practicable for ORR to secure pro bono counsel, ORR shall
fund legal service providers to provide direct immigration legal
representation for certain unaccompanied children, subject to ORR's
discretion and available appropriations. Examples of direct immigration
legal representation include, but are not limited to:
(i) For unrepresented unaccompanied children who become enrolled in
ORR Unaccompanied Refugee Minor (URM) programs, provided they have not
yet obtained immigration relief or reached 18 years of age at the time
of retention of an attorney;
[[Page 68996]]
(ii) For unaccompanied children in ORR care who are in proceedings
before the Executive Office for Immigration Review (EOIR), including
unaccompanied children seeking voluntary departure, and for whom other
available assistance does not satisfy the legal needs of the individual
child;
(iii) For unaccompanied children released to a sponsor residing in
the defined service area of the same legal service provider who
provided the child legal services in ORR care, to promote continuity of
legal services; and
(iv) For other unaccompanied children, to the extent ORR determines
that appropriations are available.
(b) Legal services for the protection of unaccompanied children's
interests in certain matters not involving direct immigration
representation--(1) Purpose. This paragraph (b) provides for the use of
additional funding for legal services, to the extent that ORR
determines it to be available, to help ensure that the interests of
unaccompanied children are considered in certain matters relating to
their care and custody, to the greatest extent practicable.
(2) Funding. To the extent ORR determines that appropriations are
available, and insofar as it is not practicable for ORR to secure pro
bono counsel, ORR may fund access to counsel for unaccompanied
children, including for purposes of legal representation, in the
following enumerated non-immigration related matters, subject to ORR's
discretion and in no particular order of priority:
(i) ORR appellate procedures, including Placement Review Panel
(PRP), under Sec. 410.1902, and risk determination hearings, under
Sec. 410.1903;
(ii) For unaccompanied children upon their placement in ORR long-
term home care or in a residential treatment center outside a licensed
ORR facility, and for whom other legal assistance does not satisfy the
legal needs of the individual child;
(iii) For unaccompanied children with no identified sponsor who are
unable to be placed in ORR long-term home care or ORR transitional home
care;
(iv) For purposes of judicial bypass or similar legal processes as
necessary to enable an unaccompanied child to access certain lawful
medical procedures that require the consent of the parent or legal
guardian under State law, and when the unaccompanied child is unable or
unwilling to obtain such consent;
(v) For the purpose of representing an unaccompanied child in state
juvenile court proceedings, when the unaccompanied child already
possesses SIJ classification; and
(vi) For the purpose of helping an unaccompanied child to obtain an
employment authorization document.
(c) Standards for legal services for unaccompanied children. (1)
In-person meetings are preferred during the course of providing legal
counsel to any unaccompanied child under paragraph (a) or (b) of this
section, though telephonic or teleconference meetings between the
unaccompanied child's attorney or EOIR accredited representative and
the unaccompanied child may substitute as appropriate. Either the
unaccompanied child's attorney, EOIR accredited representative, or a
care provider staff member or care provider shall always accompany the
unaccompanied child to any in-person courtroom hearing or proceeding,
in connection with any legal representation of an unaccompanied child
pursuant to this section.
(2) Information and notice shared with an unaccompanied child's
attorney or EOIR accredited representative. Upon receipt by ORR of
proof of representation and authorization for release of records signed
by the unaccompanied child or other authorized representative, ORR
shall share, upon request, the unaccompanied child's complete case file
apart from any legally required redactions to assist in the legal
representation of the unaccompanied child.
(d) Grants or contracts for unaccompanied children's immigration
legal services. (1) This paragraph (d) prescribes requirements
concerning grants or contracts to legal service providers to ensure
that all unaccompanied children who are or have been in ORR care have
access to counsel to represent them in immigration legal proceedings or
matters and to protect them from mistreatment, exploitation and
trafficking, to the greatest extent practicable, in accordance with the
TVPRA [at 8 U.S.C. 1232(c)(5)] and 292 of the Immigration and
Nationality Act [at 8 U.S.C. 1362].
(2) ORR may make grants, in its discretion and subject to available
resources--including formula grants distributed geographically in
proportion to the population of released unaccompanied children--or
contracts under this section to qualified agencies or organizations, as
determined by ORR and in accordance with the eligibility requirements
outlined in the authorizing statute, for the purpose of providing
immigration legal representation, assistance and related services to
unaccompanied children who are in ORR care, or who have been released
from ORR care and living in a State or region.
(3) Subject to the availability of funds, grants or contracts shall
be calculated based on the historic proportion of the unaccompanied
child population in the State within a lookback period determined by
the Director, provided annually by the State.
(e) Non-retaliation against legal service providers. ORR shall
presume that legal service providers are acting in good faith with
respect to their advocacy on behalf of unaccompanied children and ORR
shall not retaliate against a legal service provider for actions taken
within the scope of the legal service providers' responsibilities. For
example, ORR shall not engage in retaliatory actions against legal
service providers or any other representative for reporting harm or
misconduct on behalf of an unaccompanied child.
Sec. 410.1310 Psychotropic medications.
(a) Except in the case of a psychiatric emergency, ORR shall ensure
that, whenever possible, authorized individuals provide informed
consent prior to the administration of psychotropic medications to
unaccompanied children.
(b) ORR must ensure meaningful oversight of the administration of
psychotropic medication(s) to unaccompanied children.
Sec. 410.1311 Unaccompanied children with disabilities.
(a) ORR must provide notice to the unaccompanied children in its
custody of the protections against discrimination under section 504 of
the Rehabilitation Act at 45 CFR part 85 assured to children with
disabilities in its custody. ORR must also provide notice of the
available procedures for seeking reasonable modifications or making a
complaint about alleged discrimination against children with
disabilities in ORR's custody.
(b) ORR shall administer the UC Program in the most integrated
setting appropriate to the needs of unaccompanied children with
disabilities in accordance with 45 CFR 85.21(d), unless ORR can
demonstrate that this would fundamentally alter the nature of its UC
Program.
(c) ORR shall provide reasonable modifications needed for an
unaccompanied child with one or more disabilities to have equal access
to the UC Program. ORR is not required, however, to take any action
that it can demonstrate would result in a
[[Page 68997]]
fundamental alteration in the nature of a program or activity.
(d) Where applicable, ORR shall document in the child's ORR case
file any services, supports, or program modifications being provided to
an unaccompanied child with one or more disabilities.
(e) In addition to the requirements for release of unaccompanied
children established elsewhere in this part and through any
subregulatory guidance ORR may issue, ORR shall adhere to the following
requirements when releasing unaccompanied children with disabilities to
a sponsor:
(1) ORR's assessment under Sec. 410.1202 of a potential sponsor's
capability to provide for the physical and mental well-being of the
child must necessarily include explicit consideration of the impact of
the child's disability or disabilities.
(2) In conducting PRS, ORR and any entities through which ORR
provides PRS shall make reasonable modifications in their policies,
practices, and procedures if needed to enable released unaccompanied
children with disabilities to live in the most integrated setting
appropriate to their needs, such as with a sponsor. ORR is not
required, however, to take any action that it can demonstrate would
result in a fundamental alteration in the nature of a program or
activity. ORR will affirmatively support and assist otherwise viable
potential sponsors in accessing and coordinating appropriate post-
release community-based services and supports available in the
community to support the sponsor's ability to care for a child with one
or more disabilities, as provided for under Sec. 410.1210.
(3) ORR shall not delay the release of a child with one or more
disabilities solely because post-release services are not in place
before the child's release.
Subpart E--Transportation of an Unaccompanied Child
Sec. 410.1400 Purpose of this subpart.
This subpart concerns the safe transportation of each unaccompanied
child while in ORR's care.
Sec. 410.1401 Transportation of an unaccompanied child in ORR's care.
(a) ORR care provider facilities shall transport an unaccompanied
child in a manner that is appropriate to the child's age and physical
and mental needs, including proper use of car seats for young children,
and consistent with Sec. 410.1304.
(b) When ORR plans to release an unaccompanied child from its care
to a sponsor under the provisions at subpart C of this part, ORR
assists without undue delay in making transportation arrangements. In
its discretion, ORR may request the care provider facility to transport
an unaccompanied child. In these circumstances, ORR may, in its
discretion, reimburse the care provider facility or directly pay for
the child and/or sponsor's transportation, as appropriate, to
facilitate timely release.
(c) The care provider facility shall comply with all relevant State
and local licensing requirements and state and Federal regulations
regarding transportation of children, such as meeting or exceeding the
minimum staff/child ratio required by the care provider facility's
licensing agency, maintaining and inspecting all vehicles used for
transportation, etc.
(d) If there is a potential conflict between ORR's regulations in
this part and State law, ORR will review the circumstances to determine
how to ensure that it is able to meet its statutory responsibilities.
It is important to note, however, that if a State law or license,
registration, certification, or other requirement conflicts with an ORR
employee's duties within the scope of their ORR employment, the ORR
employee is required to abide by their Federal duties.
(e) The care provider facility shall conduct all necessary
background checks for drivers transporting unaccompanied children, in
compliance with Sec. 410.1305(a).
(f) If a care provider facility is transporting an unaccompanied
child, it shall assign at least one transport staff of the same gender
as the child being transported to the greatest extent possible under
the circumstances.
Subpart F--Data and Reporting Requirements
Sec. 410.1500 Purpose of this subpart.
ORR maintains statistical and other data on the unaccompanied
children for whom it is responsible. ORR shall be responsible for
coordinating with other Departments to obtain some of the statistical
data and shall obtain additional data from care provider facilities.
This subpart describes information that care provider facilities shall
report to ORR such that ORR may compile and maintain statistical
information and other data on unaccompanied children.
Sec. 410.1501 Data on unaccompanied children.
Care provider facilities are required to report information
necessary for ORR to maintain data in accordance with this section.
Data include:
(a) Biographical information, such as an unaccompanied child's
name, gender, date of birth, country of birth, whether of indigenous
origin, and country of habitual residence;
(b) The date on which the unaccompanied child came into Federal
custody by reason of the child's immigration status;
(c) Information relating to the unaccompanied child's placement,
removal, or release from each care provider facility in which the
unaccompanied child has resided, including date and to whom and where
placed, transferred, removed, or released;
(d) In any case in which the unaccompanied child is placed in
detention or released, an explanation relating to the detention or
release;
(e) The disposition of any actions in which the unaccompanied child
is the subject;
(f) Information gathered from assessments, evaluations, or reports
of the child; and,
(g) Data necessary to evaluate and improve the care and services
for unaccompanied children.
Subpart G--Transfers
Sec. 410.1600 Purpose of this subpart. This subpart provides
guidelines for the transfer of an unaccompanied child.
Sec. 410.1601 Transfer of an unaccompanied child within the ORR care
provider facility network.
(a) General requirements for transfers. The care provider facility
shall continuously assess unaccompanied children in their care to
review whether the children's placements are appropriate. An
unaccompanied child shall be placed in the least restrictive setting
that is in the best interests of the child, subject to considerations
regarding danger to self or the community and runaway risk. Care
providers shall follow ORR guidance, including guidance regarding
placement considerations, when making transfer recommendations.
(1) If the care provider facility identifies an alternate placement
for the unaccompanied child that would best meet the child's needs, the
care provider facility shall make a transfer recommendation to ORR for
approval within three (3) business days of identifying the need for a
transfer.
(2) The care provider facility shall ensure the unaccompanied child
is medically cleared for transfer within three (3) business days of ORR
identifying the need for a transfer, unless otherwise waived by ORR.
For an unaccompanied child with acute or
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chronic medical conditions, or seeking medical services requiring
heightened ORR involvement, the appropriate care provider facility
staff and ORR shall meet to review the transfer recommendation. If a
child is not medically cleared for transfer within three (3) business
days, the care provider facility shall notify ORR, and ORR shall review
and determine if the child is fit for travel. If ORR determines the
child is not fit for travel, ORR shall notify the care provider
facility of the denial and specify a timeframe for the care provider
facility to re-evaluate the child for transfer.
(3) Within 48 hours prior to the unaccompanied child's physical
transfer, the referring care provider facility shall notify all
appropriate interested parties of the transfer, including the child's
attorney of record or EOIR accredited representative, legal service
provider, or child advocate, as applicable. However, such advance
notice is not required in unusual and compelling circumstances, such as
the following in which cases notices shall be provided within 24 hours
following transfer:
(i) Where the safety of the unaccompanied child or others has been
threatened;
(ii) Where the unaccompanied child has been determined to be a
runaway risk consistent with Sec. 410.1108; or
(iii) Where the interested party has waived such notice.
(4) The unaccompanied child shall be transferred with the child's
possessions and legal papers, including, but not limited to:
(i) Personal belongings;
(ii) The transfer request and tracking form;
(iii) 30-day medication supply, if applicable;
(iv) All health records; and
(v) Original documents (including birth certificates).
(5) If the unaccompanied child's possessions exceed the amount
permitted normally by the carrier in use, the care provider shall ship
the possessions to a subsequent placement of the unaccompanied child in
a timely manner.
(b) Restrictive care provider facility placements and transfers.
When an unaccompanied child is placed in a restrictive setting (secure,
heightened supervision, or residential treatment center), the care
provider facility in which the child is placed and ORR shall review the
placement at least every 30 days to determine whether a new level of
care is appropriate for the child. If the care provider facility and
ORR determine in the review that continued placement in a restrictive
setting is appropriate, the care provider facility shall document the
basis for its determination and, upon request, provide documentation of
the review and rationale for continued placement to the child's
attorney of record, legal service provider, and/or child advocate.
(c) Group transfers. At times, circumstances may require a care
provider facility to transfer more than one (1) unaccompanied child at
a time (e.g., emergencies, natural disasters, program closures, and bed
capacity constraints). For group transfers, the care provider facility
shall follow ORR guidance and the requirements in paragraph (a) of this
section.
(d) Residential treatment center placements. A care provider
facility may request ORR to transfer an unaccompanied child in its care
to a residential treatment center (RTC), pursuant to the requirements
described at Sec. 410.1105(c). The care provider facility shall review
the placement of a child into an RTC every 30 days in accordance with
paragraph (b) of this section.
(e) Emergency placement changes. An unaccompanied child who is
placed pursuant to subpart B of this part remains in the legal custody
of ORR and may only be transferred or released by ORR. However, in the
event of an emergency, a care provider facility may temporarily change
the physical placement of an unaccompanied child prior to securing
permission from ORR but shall notify ORR of the change of physical
placement, as soon as possible, but in all cases within eight hours of
transfer.
Subpart H--Age Determinations
Sec. 410.1700 Purpose of this subpart.
This subpart sets forth the provisions for determining the age of
an individual in ORR custody.
Sec. 410.1701 Applicability.
This subpart applies to individuals in the custody of ORR. To meet
the definition of an unaccompanied child and remain in ORR custody, an
individual must be under 18 years of age.
Sec. 410.1702 Conducting age determinations.
Procedures for determining the age of an individual must take into
account the totality of the circumstances and 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, including X-rays, conducted by a
medical professional or to submit to other appropriate procedures to
verify their age. If ORR subsequently determines that such an
individual is an unaccompanied child, the individual will be treated in
accordance with ORR's UC Program regulations in this part for all
purposes.
Sec. 410.1703 Information used as evidence to conduct age
determinations.
(a) ORR considers multiple forms of evidence in making age
determinations, and determinations are made based upon a totality of
evidence.
(b) ORR may consider information or documentation to make an age
determination, including but not limited to:
(1) If there is no original birth certificate, certified copy, or
photocopy or facsimile copy of a birth certificate acceptable to ORR,
ORR may consult with the consulate or embassy of the individual's
country of birth to verify the validity of the birth certificate
presented.
(2) Authentic government-issued documents issued to the bearer.
(3) Other documentation, such as baptismal certificates, school
records, and medical records, which indicate an individual's date of
birth.
(4) Sworn affidavits from parents or other relatives as to the
individual's age or birth date.
(5) Statements provided by the individual regarding the
individual's age or birth date.
(6) Statements from parents or legal guardians.
(7) Statements from other persons apprehended with the individual.
(8) Medical age assessments, which should not be used as a sole
determining factor but only in concert with other factors. If an
individual's estimated probability of being 18 years or older is 75
percent or greater according to a medical age assessment, and the
totality of the evidence indicates that the individual is 18 years old
or older, ORR must determine that the individual is 18 years old or
older. The 75 percent probability threshold applies to all medical
methods and approaches identified by the medical community as
appropriate methods for assessing age. Ambiguous, debatable, or
borderline forensic examination results are resolved in favor of
finding the individual is a minor.
Sec. 410.1704 Treatment of an individual who appears to be an adult.
If the procedures in this subpart would result in a reasonable
person concluding that an individual is an adult, despite the
individual's claim to
[[Page 68999]]
be under the age of 18, ORR shall treat such person as an adult for all
purposes.
Subpart I--Emergency and Influx Operations
Sec. 410.1800 Contingency planning and procedures during an emergency
or influx.
(a) ORR regularly reevaluates the number of placements needed for
unaccompanied children to determine whether the number of shelters,
heightened supervision facilities, and ORR transitional home care beds
should be adjusted to accommodate an increased or decreased number of
unaccompanied children eligible for placement in care in ORR care
provider facilities.
(b) In the event of an emergency or influx that prevents the prompt
placement of unaccompanied children in standard programs, ORR shall
make all reasonable efforts to place each unaccompanied child in a
standard program as expeditiously as possible.
(c) ORR activities during an influx or emergency include the
following:
(1) ORR implements its contingency plan on emergencies and
influxes, which may include opening facilities to house unaccompanied
children and prioritization of placement at such facilities of certain
unaccompanied children;
(2) ORR continually develops standard programs that are available
to accept emergency or influx placements; and
(3) ORR maintains a list of unaccompanied children affected by the
emergency or influx including each unaccompanied child's:
(i) Name;
(ii) Date and country of birth;
(iii) Date of placement in ORR's custody; and
(iv) Place and date of current placement.
Sec. 410.1801 Minimum standards for emergency or influx facilities.
(a) In addition to the ``standard program'' and ``restrictive
placements'' defined in this part, ORR provides standards in this
section for all emergency or influx facilities.
(b) Emergency or influx facilities must provide the following
minimum services for all unaccompanied children in their care:
(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, including pregnancy tests; medical services requiring
heightened ORR involvement; and emergency healthcare services; a
complete medical examination (including screenings for infectious
diseases) within 48 hours of admission, excluding weekends and
holidays, unless the unaccompanied child was recently examined at
another ORR care provider facility; appropriate immunizations as
recommended by the Advisory Committee on Immunization Practices' Child
and Adolescent Immunization Schedule and approved by HHS' Centers for
Disease Control and Prevention; administration of prescribed medication
and special diets; and appropriate mental health interventions when
necessary.
(3) An individualized needs assessment, which includes the various
initial intake forms, collection of essential data relating to the
identification and history of the child and the child's family,
identification of the unaccompanied child's special needs including any
specific problems which appear to require immediate intervention, an
educational assessment and plan, and an assessment of family
relationships and interaction with adults, peers and authority figures;
a statement of religious preference and practice; an assessment of the
unaccompanied child's personal goals, strengths and weaknesses;
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 connecting the child with family
members.
(4) Educational services appropriate to the unaccompanied child'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 acquisition. The educational program shall include instruction
and educational and other reading materials in such languages as
needed. Basic academic areas should include science, social studies,
math, reading, writing, and physical education. The program must
provide unaccompanied children with appropriate reading materials in
languages other than English for use during leisure time.
(5) Activities according to a recreation and leisure time plan that
include daily outdoor activity--weather permitting--with at least one
hour per day of large muscle activity and one hour per day of
structured leisure time activities (that 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.
(6) At least one individual counseling session per week conducted
by trained social work staff with the specific objective of reviewing
the child's progress, establishing new short-term objectives, and
addressing both the developmental and crisis-related needs of each
child.
(7) Group counseling sessions at least twice a week. Sessions are
usually informal and take place with all unaccompanied children
present. The sessions give new children the opportunity to get
acquainted with 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 activities. The sessions allow staff and unaccompanied children
to discuss whatever is on their minds and to resolve problems.
(8) Acculturation and adaptation services, which include
information regarding the development of social and interpersonal
skills which contribute to those abilities necessary to live
independently and responsibly.
(9) A comprehensive orientation regarding program intent, services,
rules (written and verbal), expectations, and the availability of legal
assistance.
(10) Whenever possible, access to religious services of the child'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 child's privacy while reasonably
preventing the unauthorized release of the unaccompanied child.
(12) A reasonable right to privacy, which includes the right to
wear the child's own clothes when available, retain a private space in
the residential facility, group or foster home for the storage of
personal belongings, talk privately on the phone and visit privately
with guests, as permitted by the house rules and regulations, receive
and send uncensored mail unless there is a reasonable belief that the
mail contains contraband.
(13) Services designed to identify relatives in the United States
as well as in foreign countries and assistance in obtaining legal
guardianship when necessary for the release of the unaccompanied child.
(14) Legal services information, including the availability of free
legal assistance, and that they may be represented by counsel at no
expense to the government, the right to a removal hearing before an
immigration judge, the ability to apply for asylum with USCIS
[[Page 69000]]
in the first instance, and the ability to request voluntary departure
in lieu of deportation.
(15) Emergency or influx facilities, whether state-licensed or not,
must comply, to the greatest extent possible, with State child welfare
laws and regulations (such as mandatory reporting of abuse), as well as
State and local building, fire, health and safety codes, that ORR
determines are applicable to non-State licensed facilities. If there is
a potential conflict between ORR's regulations and State law, ORR will
review the circumstances to determine how to ensure that it is able to
meet its statutory responsibilities. It is important to note, however,
that if a State law or license, registration, certification, or other
requirement conflicts with an ORR employee's duties within the scope of
their ORR employment, the ORR employee is required to abide by their
Federal duties.
(16) Emergency or influx facilities must deliver services in a
manner that is sensitive to the age, culture, native language, and
needs of each unaccompanied child. Emergency or influx facilities must
develop an individual service plan for the care of each child.
(17) The emergency or influx facility maintains records of case
files and make regular reports to ORR. Emergency or influx facilities
must have accountability systems in place, which preserve the
confidentiality of client information and protect the records from
unauthorized use or disclosure.
(c) Emergency or influx facilities must do the following when
providing services to unaccompanied children:
(1) Maintain safe and sanitary conditions that are consistent with
ORR's concern for the particular vulnerability of minors;
(2) Provide access to toilets, showers and sinks, as well as
personal hygiene items such as soap, toothpaste and toothbrushes,
floss, towels, feminine care items, and other similar items;
(3) Provide drinking water and food;
(4) Provide medical assistance if the unaccompanied child is in
need of emergency services;
(5) Maintain adequate temperature control and ventilation;
(6) Provide adequate supervision to protect unaccompanied children;
(7) Separate from other unaccompanied children those unaccompanied
children who are subsequently found to have past criminal or juvenile
detention histories or have perpetrated sexual abuse that present a
danger to themselves or others;
(8) Provide contact with family members who were arrested with the
unaccompanied child; and
(9) Provide access to legal services described in Sec. 410.701(a).
(d) ORR may grant waivers for an emergency or influx facility from
standards under paragraph (b) of this section, if the facility is
activated for a period of six consecutive months or less and such
standards are operationally infeasible and done in accordance with law.
Such waiver must be made publicly available.
Sec. 410.1802 Placement standards for emergency or influx facilities.
(a) Unaccompanied children who are placed in an emergency or influx
facility must meet all of the following criteria to the extent
feasible. If ORR becomes aware that a child does not meet any of the
following criteria at any time after placement into an emergency or
influx facility, ORR will transfer the unaccompanied child to the least
restrictive setting appropriate for that child's need as expeditiously
as possible.
(1) Is expected to be released to a sponsor within 30 days;
(2) Is age 13 or older;
(3) Speaks English or Spanish as their preferred language;
(4) Does not have a known disability or other mental health or
medical issue or dental issue requiring additional evaluation,
treatment, or monitoring by a healthcare provider;
(5) Is not a pregnant or parenting teen;
(6) Would not have a diminution of legal services as a result of
the transfer to an unlicensed facility; and
(7) Is not a danger to self or others (including not having been
charged with or convicted of a criminal offense).
(b) ORR shall also consider the following factors for the placement
of an unaccompanied child in an emergency or influx facility:
(1) The unaccompanied child should not be part of a sibling group
with a sibling(s) age 12 years or younger;
(2) The unaccompanied child should not be subject to a pending age
determination;
(3) The unaccompanied child should not be involved in an active
State licensing, child protective services, or law enforcement
investigation, or an investigation resulting from a sexual abuse
allegation;
(4) The unaccompanied child should not have a pending home study;
(5) The unaccompanied child should not be turning 18 years old
within 30 days of the transfer to an emergency or influx facility;
(6) The unaccompanied child should not be scheduled to be
discharged in three days or less;
(7) The unaccompanied child should not have a current set docket
date in immigration court or State/family court (juvenile included),
not have a pending adjustment of legal status, and not have an attorney
of record or EOIR accredited representative;
(8) The unaccompanied child should be medically cleared and
vaccinated as required by the emergency or influx care facility (for
instance, if the influx care facility is on a U.S. Department of
Defense site); and
(9) The unaccompanied child should have no known mental health,
dental, or medical issues, including contagious diseases requiring
additional evaluation, treatment, or monitoring by a healthcare
provider.
Subpart J--Availability of Review of Certain ORR Decisions
Sec. 410.1900 Purpose of this subpart.
This subpart describes the availability of review of certain ORR
decisions regarding the care and placement of unaccompanied children.
Sec. 410.1901 Restrictive placement case reviews.
(a) In all cases involving placement in a restrictive setting, ORR
shall determine, based on clear and convincing evidence, that
sufficient grounds exist for stepping up or continuing to hold an
unaccompanied child in a restrictive placement. The evidence supporting
a restrictive placement decision shall be recorded in the unaccompanied
child's case file.
(b) ORR shall provide an unaccompanied child with a Notice of
Placement (NOP) no later than 48 hours after step-up to a restrictive
placement, as well as every 30 days the unaccompanied child remains in
a restrictive placement.
(1) The NOP shall clearly and thoroughly set forth the reason(s)
for placement and a summary of supporting evidence.
(2) The NOP shall inform the unaccompanied child of their right to
contest the restrictive placement before a Placement Review Panel (PRP)
upon receipt of the NOP and the procedures by which the unaccompanied
child may do so. The NOP shall further inform the unaccompanied child
of all other available administrative review processes.
(3) The NOP shall include an explanation of the unaccompanied
child's right to be represented by counsel in challenging such
restrictive placement.
[[Page 69001]]
(4) A case manager shall explain the NOP to the unaccompanied
child, in a language the unaccompanied child understands.
(c) The care provider facility shall provide a copy of the NOP to
the unaccompanied child's legal counsel of record, legal service
provider, child advocate, and to a parent or legal guardian of record,
no later than 48 hours after step-up as well as every 30 days the
unaccompanied child remains in a restrictive placement.
(d) ORR shall further ensure the following automatic administrative
reviews:
(1) At minimum, a 30-day administrative review for all restrictive
placements;
(2) A more intensive 45-day review by ORR supervisory staff for
unaccompanied children in secure facilities; and
(3) For unaccompanied children in RTCs, the 30-day review at
paragraph (d)(1) of this section must involve a psychiatrist or
psychologist to determine whether the unaccompanied child should remain
in restrictive residential care.
Sec. 410.1902 Placement Review Panel.
(a) An unaccompanied child placed in a restrictive placement may
request reconsideration of such placement. Upon such request, ORR shall
afford the unaccompanied child a hearing before the Placement Review
Panel (PRP) at which the unaccompanied child may, with the assistance
of counsel if preferred, present evidence on their own behalf. An
unaccompanied child may present witnesses and cross-examine ORR's
witnesses, if such witnesses are willing to voluntarily testify. An
unaccompanied child that does not wish to request a hearing may also
have their placement reconsidered by submitting a request for a
reconsideration along with any supporting documents as evidence.
(b) The PRP shall afford any unaccompanied child in a restrictive
placement the opportunity to request a PRP review as soon as the
unaccompanied child receives a Notice of Placement (NOP).
(c) ORR shall convene the PRP in a reasonable timeframe without
undue delay in all requisite cases.
(d) The PRP shall issue a decision within 30 calendar days of the
PRP request whenever possible.
(e) An ORR staff member who was involved with the decision to step
up an unaccompanied child to a restrictive placement may not serve as a
Placement Review Panel member with respect to that unaccompanied
child's placement.
Sec. 410.1903 Risk determination hearings.
(a) All unaccompanied children in restrictive placements shall be
afforded a hearing before an independent HHS hearing officer to
determine, through a written decision, whether the unaccompanied child
would present a risk of danger to the community, unless the
unaccompanied child indicates in writing that they refuse such a
hearing. All other unaccompanied children in ORR custody may request
such a hearing.
(1) Requests under this section must be made in writing by the
unaccompanied child, their attorney of record, or their parent or legal
guardian by submitting a form provided by ORR to the care provider
facility or by making a separate written request that contains the
information requested in ORR's form.
(2) Unaccompanied children placed in restrictive placements based
on a finding of dangerousness shall be provided a risk determination
hearing automatically, whether or not they request one, unless they
refuse the hearing in writing. Unaccompanied children placed in
restrictive placements shall receive a notice of the procedures under
this section and may use a form provided to them to decline a hearing
under this section. Unaccompanied children in restrictive placements
may decline the hearing at any time, including after consultation with
counsel.
(b) In hearings conducted under this section, ORR bears the initial
burden of production to support its determination that an unaccompanied
child would pose a danger if discharged from ORR's care and custody.
The burden of persuasion is then on the unaccompanied child to show
that they will not be a danger to the community if released, using a
preponderance of the evidence standard.
(c) In hearings under this section, the unaccompanied child may be
represented by a person of their choosing. The unaccompanied child may
present oral and written evidence to the hearing officer and may appear
by video or teleconference. ORR may also present evidence at the
hearing, whether in writing, or by appearing in person or by video or
teleconference.
(d) A hearing officer's decision that an unaccompanied child would
not be a danger to the community 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
by either the unaccompanied child or ORR to the Assistant Secretary of
ACF, or the Assistant Secretary's designee.
(1) Any such appeal request shall be in writing and must be
received by ACF within 30 days of the hearing officer decision.
(2) The Assistant Secretary, or the Assistant Secretary's designee,
shall review the record of the underlying hearing, and will reverse a
hearing officer decision only if there is a clear error of fact, or if
the decision includes an error of law.
(3) If the hearing officer's decision found that the unaccompanied
child would not pose a danger to the community if released from ORR
custody, and such decision would result in ORR releasing the
unaccompanied child from its custody (e.g., because the only factor
preventing release was ORR's determination that the unaccompanied child
posed a danger to the community), an appeal to the Assistant Secretary
shall not effect a stay of the hearing officer's decision, unless the
Assistant Secretary issues a decision in writing within five business
days of such hearing officer decision that release of the unaccompanied
child would result in a danger to the community. Such a stay decision
must include a description of behaviors of the unaccompanied child
while in ORR custody and/or documented criminal or juvenile behavior
records from the unaccompanied child demonstrating that the
unaccompanied child would present a danger to community if released.
(f) Decisions under this section are final and binding on the
Department, and an unaccompanied child who was determined to pose a
danger to the community if released may only seek another hearing under
this section if the unaccompanied child 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/or ORR can show that a
material change in circumstances means the unaccompanied child should
no longer be released due to presenting a danger to the community.
(g) This section cannot be used to determine whether an
unaccompanied child has a suitable sponsor, and neither the hearing
officer nor the Assistant Secretary may order the unaccompanied child
released.
(h) This section may not be invoked to determine the unaccompanied
child's placement while in ORR custody. Nor may this section be invoked
to determine level of custody for the unaccompanied child.
[[Page 69002]]
Subpart K--Unaccompanied Children Office of the Ombuds (UC Office
of the Ombuds)
Sec. 410.2000 Establishment of the UC Office of the Ombuds.
(a) The Unaccompanied Children Office of the Ombuds (hereafter, the
``UC Office of the Ombuds'') is located within the Office of the ACF
Assistant Secretary, and reports to the ACF Assistant Secretary.
(b) The UC Office of the Ombuds shall be an independent, impartial
office with authority to receive reports, including confidential and
informal reports, of concerns regarding the care of unaccompanied
children; to investigate such reports; to work collaboratively with ORR
to potentially resolve such reports; and issue reports concerning its
efforts.
Sec. 410.2001 UC Office of the Ombuds policies and procedures;
contact information.
(a) The UC Office of the Ombuds shall develop appropriate
standards, practices, and policies and procedures, giving consideration
to the recommendations by nationally recognized Ombudsperson
organizations.
(b) The UC Office of the Ombuds shall make its standards,
practices, certain reports and findings, and policies and procedures
publicly available.
(c) The UC Office of the Ombuds shall make information about the
office and how to contact it publicly available, in both English and
other languages spoken and understood by unaccompanied children in ORR
care. The Ombuds may identify preferred methods for raising awareness
of the office and its activities, which may include, but not be limited
to, visiting ORR facilities or publishing aggregated information about
the type and number of concerns the office receives, as well as giving
recommendations.
Sec. 410.2002 UC Office of the Ombuds scope and responsibilities.
(a) The UC Office of the Ombuds may engage in activities consistent
with Sec. 410.2100, including but not limited to:
(1) Receiving reports from unaccompanied children, potential
sponsors, other stakeholders in a child's case, and the public
regarding ORR's adherence to its own regulations and standards.
(2) Investigating implementation of or adherence to Federal law and
ORR regulations, in response to reports it receives, and meeting with
interested parties to receive input on ORR's compliance with Federal
law and ORR policy;
(3) Requesting and receiving information or documents, such as the
Ombuds deems relevant, from ORR and ORR care provider facilities, to
determine implementation of and adherence to Federal law and ORR
policy;
(4) Preparing formal reports and recommendations on findings to
publish or present, including an annual report describing activities
conducted in the prior year;
(5) Conducting investigations, interviews, and site visits at care
provider facilities as necessary to aid in the preparation of reports
and recommendations;
(6) Visiting ORR care providers in which unaccompanied children are
or will be housed;
(7) Reviewing individual circumstances, including but not limited
to concerns about unaccompanied children's access to services, ability
to communicate with service providers, parents/legal guardians of
children in ORR custody, sponsors, and matters related to transfers
within or discharge from ORR care;
(8) Making efforts to resolve complaints or concerns raised by
interested parties as it relates to ORR's implementation or adherence
to Federal law or ORR policy;
(9) Hiring and retaining others, including but not limited to
independent experts, specialists, assistants, interpreters, and
translators to assist the Ombuds in the performance of their duties;
(10) Making non-binding recommendations to ORR regarding its
policies and procedures, specific to protecting unaccompanied children
in the care of ORR;
(11) Providing general educational information about pertinent
laws, regulations and policies, ORR child advocates, and legal services
as appropriate; and
(12) Advising and updating the Director of ORR, Assistant
Secretary, and the Secretary, as appropriate, on the status of ORR's
implementation and adherence with Federal law or ORR policy.
(b) The UC Office of the Ombuds may in its discretion refer matters
to other Federal agencies or offices with jurisdiction over a
particular matter, for further investigation where appropriate,
including to Federal or State law enforcement.
(c) To accomplish its work, the UC Office of the Ombuds may, as
needed, have timely and direct access to:
(1) Unaccompanied children in ORR care;
(2) ORR care provider facilities;
(3) Case file information;
(4) Care provider and Federal staff responsible for children's
care; and
(5) Statistical and other data that ORR maintains.
Sec. 410.2003 Organization of the UC Office of the Ombuds.
(a) The UC Ombuds shall be hired as a career civil servant.
(b) The UC Ombuds should have the requisite knowledge and
experience to effectively fulfill the work and the role, including
membership in good standing of a nationally recognized organization,
association of ombudsmen, or State bar association throughout the
course of employment as the Ombuds, and to also include but not be
limited to having demonstrated knowledge and experience in:
(1) Informal dispute resolution practices;
(2) Services and matters related to unaccompanied children and
child welfare;
(3) Oversight and regulatory matters; and
(4) ORR policy and regulations.
(c) The Ombuds may engage additional staff as it deems necessary
and practicable to support the functions and responsibilities of the
Office.
(d) The Ombuds shall establish procedures for training,
certification, and continuing education for staff and other
representatives of the Office.
Sec. 410.2004 Confidentiality.
(a) The Ombuds shall manage the files, records, and other
information of the program, regardless of format, and such files must
be maintained in a manner that preserves the confidentiality of the
records except in instances of imminent harm or judicial action and is
prohibited from using or sharing information for any immigration
enforcement related purpose.
(b) The UC Office of the Ombuds may accept reports of concerns from
anonymous reporters.
Dated: September 22, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2023-21168 Filed 9-29-23; 4:15 pm]
BILLING CODE 4184-45-P
