# Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2019-17927

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** August 23, 2019
- **Citation:** 84 FR 44392

## Text

DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 212 and 236
DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 410
RIN 1653-AA75, 0970-AC42
Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children

AGENCY:

U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Homeland Security (DHS); U.S. Customs and Border Protection (CBP), DHS; Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS).

ACTION:

Final rule.

SUMMARY:

This final rule amends regulations relating to the apprehension, processing, care, custody, and release of alien juveniles. The rule replaces regulations that were promulgated in 1988 in response to a lawsuit filed in 1985 against the Attorney General and the Department of Justice's legacy U.S. Immigration and Naturalization Service (INS), in
Flores
v.
Meese.
In January 1997, the parties reached a comprehensive settlement agreement, referred to as the
Flores
Settlement Agreement (FSA). The FSA, as modified in 2001, provides that it will terminate forty-five days after publication of final regulations implementing the agreement. Since 1997, intervening legislation, including the Homeland Security Act of 2002 (HSA) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), have significantly altered the governing legal authorities relating to the detention, custody, processing, and release of alien juveniles. This final rule adopts regulations that implement the relevant and substantive terms of the FSA, consistent with the HSA and the TVPRA, with some modifications discussed further below to reflect intervening statutory and operational changes while still providing similar substantive protections and standards. The final rule satisfies the basic purpose of the FSA in ensuring that all alien juveniles in the government's custody pursuant to its authorities under the immigration laws are treated with dignity, respect, and special concern for their particular vulnerability as minors, while doing so in a manner that is workable in light of subsequent statutory, factual, and operational changes and builds on the government's extensive experience working under the FSA. Most prominently, in response to great difficulty working under the state-licensing requirement for family residential centers, the final rule creates an alternative to the existing licensed program requirement for ICE family residential centers, so that ICE may use appropriate facilities to detain family units together during their immigration proceedings, consistent with applicable law.

DATES:

Effective October 22, 2019.

ADDRESSES:

Comments and related materials received from the public, as well as background documents mentioned in this preamble as being available in the docket, are part of docket DHS Docket No. ICEB-2018-0002. For access to the online docket, go to
https://www.regulations.gov
and enter this rulemaking's eDocket number: DHS Docket No. ICEB-2018-0002 in the “Search” box.

FOR FURTHER INFORMATION CONTACT:

For DHS:
Office of Policy and Planning, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street SW, Washington, DC 20536. Telephone 202-732-6960 (not a toll-free number).

For HHS
: Division of Policy, Office of the Director, Office of Refugee Resettlement, Administration for Children and Families, by email at
UACPolicy@acf.hhs.gov.
Office of Refugee Resettlement, 330 C Street SW, Washington, DC 20201. Telephone 202-401-9246.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Table of Abbreviations

II. Executive Summary

A. Purpose of the Regulatory Action

B. Legal Authority

C. Costs and Benefits

D. Effective Date

III. Background and Purpose

A. History

1. The
Flores
Settlement Agreement

2. The Reorganization of the Immigration and Naturalization Service

3. The Change in Migration and the Creation of the Family Residential Centers

B. Authority

1. Statutory and Regulatory Authority

2.
Flores
Settlement Agreement Implementation

3. Recent Court Orders

C. Basis and Purpose of Regulatory Action

1. Need for Regulations Implementing the Relevant and Substantive Terms of the FSA

2. Purpose of the Regulations

D. Severability

IV. Summary of Changes in the Final Rule

V. Discussion of Public Comments and Responses

A. Section-by-Section Discussion of the DHS Proposed Rule, Public Comments, and the Final Rule

B. Section-by-Section Discussion of the HHS Proposed Rule, Public Comments, and the Final Rule

C. Other Comments Received

VI. Statutory and Regulatory Requirements

A. Executive Orders 12866 and 13563: Regulatory Review

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act of 1996

D. Unfunded Mandates Reform Act of 1995

E. Congressional Review Act

F. Paperwork Reduction Act

G. Executive Order 13132: Federalism

H. Executive Order 12988: Civil Justice Reform

I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

J. National Environmental Policy Act (NEPA)

K. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights

L. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

M. National Technology Transfer and Advancement Act

N. Family Assessment

List of Subjects and Regulatory Amendments

I. Table of Abbreviations

ACF—Administration for Children and Families

BPA—U.S. Border Patrol Agent

CBP—U.S. Customs and Border Protection

DHS—U.S. Department of Homeland Security

DOJ—U.S. Department of Justice

EOIR—Executive Office for Immigration Review

FRC—Family Residential Center

FSA—
Flores
Settlement Agreement

HHS—U.S. Department of Health and Human Services

HSA—Homeland Security Act of 2002

ICE—U.S. Immigration and Customs Enforcement

IIRIRA—Illegal Immigration Reform and Immigrant Responsibility Act of 1996

INA—Immigration and Nationality Act

INS—Immigration and Naturalization Service

JFRMU—Juvenile and Family Residential Management Unit

OFO—Office of Field Operations, U.S. Customs and Border Protection

OMB—Office of Management and Budget

ORR—Office of Refugee Resettlement, U.S. Department of Health and Human Services

PREA—Prison Rape Elimination Act of 2003

TVPRA—William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

UAC(s)—Unaccompanied Alien Child(ren)

USCIS—U.S. Citizenship and Immigration Services

USBP—U.S. Border Patrol, U.S. Customs and Border Protection

YTD—Year to Date

II. Executive Summary

A. Purpose of the Regulatory Action

On September 7, 2018, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS), (the “Departments”) published a notice of proposed rulemaking (NPRM or proposed rule) that would amend regulations related to the Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children.
See
Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children; Proposed Rule, 83 FR 45486 (Sept. 7, 2018). The proposed rule provided a 60-day public comment period ending on November 6, 2018.

This final rule adopts the proposed rule, with some changes in response to comments. The final rule parallels the relevant and substantive terms of the
Flores
Settlement Agreement (FSA), with changes as are necessary to implement closely-related provisions of the Homeland Security Act of 2002 (HSA), Public Law 107-296, sec. 462, 116 Stat. 2135, 2202, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457, title II, subtitle D, 122 Stat. 5044.

This final rule also takes into account changes in factual circumstances since the time the FSA was approved in 1997 as well as extensive experience over the past twenty years operating the immigration system under the FSA. The rule thus reflects the operational environment and ensures that the regulations accomplish a sound and proper implementation of governing Federal statutes—including statutes requiring DHS to retain custody of aliens arriving at or crossing our borders without inspection during the pendency of immigration proceedings. It carefully considers public comments, and sets forth for DHS a sustainable operational model of immigration enforcement, and for HHS, codifies existing policies, procedures, and practices related to the temporary care and custody of UACs.

For example, one shift since the FSA entered into force in 1997 has been the 2015 judicial interpretation of the agreement as applying to accompanied minors,
i.e.,
juveniles encountered with their parents or legal guardians. DHS strongly disagrees with that interpretation and disagrees that the FSA provisions were suited to handling the challenging circumstances that are presented—in exponentially more cases than in 1997—when aliens are apprehended in family units. Indeed, the Federal courts have agreed that the FSA was not designed to address the current-day circumstances presented by accompanied minors.
See Flores,
828 F.3d 898, 906 (9th Cir. 2016) (“the parties gave inadequate attention to some potential problems of accompanied minors”). The FSA's application to accompanied minors has created a series of operational difficulties for DHS, most notably with respect to a state-licensing requirement for an ICE Family Residential Center (FRC) in which such parents/legal guardians may be housed together with their children during immigration proceedings, the need for custody of parents and accompanied minors as required by the immigration laws in certain circumstances, and avoiding the need to separate families to comply with the FSA when immigration custody is necessary for a parent.

Additionally, changes to the operational environment since 1997, as well as the enactment of the HSA and the TVPRA, have rendered some of the substantive terms of the FSA outdated or unsuited to current conditions at the border, similarly making simultaneous compliance with the HSA, the TVPRA, other immigration laws, and the FSA problematic without modification. These provisions are designed to implement the substantive and underlying purpose of the FSA, by ensuring that alien juveniles detained by DHS pursuant to the immigration laws, and UACs who are transferred to the temporary care and custody of HHS, are provided protections that are substantively parallel to protections under the FSA, taking into account intervening developments and changed circumstances. The Departments have also considered comments from the public, and this rule incorporates some adjustments from the proposed regulations based on those comments. The primary purpose of this rule is to codify the purposes of the FSA in regulations, namely, to establish uniform standards for the custody and care of alien juveniles during their immigration proceedings and to ensure they are treated with dignity and respect. The rule accordingly implements the FSA.

Summary of Key Provisions of the Final Rule

As part of the process of codifying the purpose of the FSA into regulations, the final rule clarifies and improves certain policies and practices related to:

• Parole

In the NPRM, DHS proposed to amend 8 CFR 212.5(b),
Parole of aliens into the United States,
by removing an internal cross-reference to 8 CFR 235.3(b). Eliminating that cross-reference is required to clarify that the provisions in § 235.3(b) governing the parole of aliens in expedited removal proceedings (
i.e.,
those pending a credible fear determination or who have been ordered removed in the expedited removal process but still await removal) apply to all such aliens, including minors in DHS custody, and not just adults. The current cross-reference to § 235.3(b) within § 212.5(b) is confusing because it suggests, incorrectly, that the more flexible parole standards in § 212.5(b) might override the provisions in § 235.3(b) that govern parole when any alien, including a minor, is in expedited removal proceedings.

Many commenters expressed concern about a more restrictive parole standard that would allow minors in expedited removal proceedings who have not yet been found to have a credible fear of persecution (or who have been found to lack such a fear) to be paroled only on the basis of medical emergency or law enforcement necessity, the same standards applicable to adult aliens in expedited removal proceedings, while their credible fear claim remains pending.

Many commenters expressed concern about this standard, but it draws from the statute, which imposes a uniquely strong detention mandate for aliens in this cohort: such aliens “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear,
until removed.”
INA 235(b)(1)(B)(iii)(IV). Some commenters stated that accompanied minors would no longer be eligible for parole, which is incorrect, as they will be eligible under the same standard as adults in the same position. Additionally, other commenters mistakenly expressed that the FSA guaranteed parole, which it does not, nor does it provide a standard for parole. ICE will continue to exercise its parole authority, on a case-by-case basis, in appropriate circumstances, including when a family unit establishes credible fear of persecution or torture. The final rule preamble responds to these misconceptions, and the final regulatory text in § 236.3(j)(4) takes into account respondents' concerns by stating clearly that parole for minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) will generally serve an urgent humanitarian reason if DHS determines that detention is not required to secure the minor's appearance before DHS or the immigration court, or to ensure the minor's safety of the safety of others. DHS may also consider aggregate and

historical data, officer experience, statistical information, or any other probative information in making these determinations.

• Licensing

Under the FSA, facilities that house children must be licensed “by an appropriate State agency to provide residential, group, or foster care services for dependent children.” FSA paragraph 6. The state-licensing requirement is sensible for unaccompanied alien children (UACs), because all States have licensing processes for the housing of unaccompanied juveniles who are by definition “dependent children,” and accordingly the rule does not change that requirement for those juveniles. But the need for the license to come specifically from a “State agency” (rather than a Federal agency) is problematic for DHS now that the FSA has been held in recent years to apply to accompanied minors, including those held at FRCs, because States generally do not have licensing schemes for facilities to hold minors who are together with their parents or legal guardians. The application of the FSA's requirement for “state” licensing to accompanied minors has effectively required DHS to release minors and—to avoid family separation—their parents from detention in a non-state-licensed facility, even if the parent/legal guardian and child could and would otherwise continue to be detained together during their immigration proceedings, consistent with applicable law, including statutes that require detention in these circumstances pending removal proceedings or to effectuate a removal order.
See, e.g.,
INA 235(b)(1)(B)(iii)(IV).

DHS proposed to define “licensed facility” as an ICE detention facility that is licensed by the state, county or municipality in which it is located. But because most States do not offer a licensing program for family unit detention, DHS also proposed that where state licensing is unavailable, a facility will be licensed if DHS employs an outside entity to ensure that the facility complies with family residential standards established by ICE. Section 236.3(b)(9) requires DHS to employ third parties to conduct audits of FRCs to ensure compliance with ICE's family residential standards. This rule adopts these provisions as final, and thus eliminates the barrier to the continued use of FRCs by creating a Federal alternative to meet the “licensed facility” definition.
1

The goal is to provide materially identical standards for these facilities as what the FSA and state licensing would otherwise require, and thus implement the underlying purpose of the FSA's licensing requirement, and in turn to allow families to remain together during their immigration proceedings in an appropriate environment.

1
The FSA defines the term “licensed program,” but because DHS does not operate programs outside of facilities, the new DHS regulations would define the term “licensed facility.” The HHS regulations define the term “licensed program.”

Commenters stated that DHS has previously not shared the results of third-party audits. While ICE has publicly posted the results of all facility inspection reports submitted by third-party contractors within 60 days of inspection since May 2018, these posts have not included results of FRC inspections.
See
Facility Inspections,
https://www.ice.gov/facility-inspections
(last updated Mar. 15, 2019). To directly address the commenters' concerns, the final rule provides that third-party inspections of FRCs will be posted in the same manner and adds the phrase “DHS will make the results of these audits publicly available” to the definition of “licensed facility.”

Commenters also stated that DHS should not be allowed to self-license detention facilities because current facilities do not have adequate oversight and, as a result, DHS is not currently capable of maintaining clean, humane, and safe detention centers. They cited the Office of the Inspector General, DHS, OIG-18-67 report,
ICE's Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements
(June 26, 2018) to highlight the deficiencies in the agency's self-inspections by third-party contractors. However, this report did not examine oversight of the FRCs. As such, it is of limited value in assessing ICE's oversight of the FRCs. FRCs are subject to a different set of detention standards than other facilities and receive inspections more frequently, and by a larger number of outside entities than those detention centers reviewed in the OIG report. DHS also notes that ICE has already taken several steps to address OIG's recommendations. The agency's existing commitment to considering seriously OIG's recommendations regarding detention facilities and instituting them as appropriate will not change as a result of this final rule. In this final rule, however, DHS has added to the definition of licensed facilities that audits will occur when an FRC opens and regularly going forward. In addition, DHS has added a more thorough explanation of its standards and inspection processes to address the commenters' underlying concern, to emphasize the important role third parties play in this process, and to underscore DHS's commitment to ensuring that individuals in FRCs are indeed held in appropriate conditions and treated with dignity and respect.

The licensing change does not impact CBP facilities. Under the FSA, juveniles are transferred to licensed facilities “in any case in which [DHS] does not release a minor . . . .” FSA paragraph 19. Thus, the only facilities which must be licensed under the FSA are those facilities to which juveniles are transferred following their initial encounter. Facilities at which juveniles are held immediately following their arrest, including CBP holding facilities, are governed by paragraph 12 of the FSA, and are not required to be licensed under the FSA. Accordingly, these facilities are also not included within the definition of “licensed facility” in this rule. DHS notes that CBP facilities are also subject to regular oversight and inspection by entities such as CBP's Office of Professional Responsibility (OPR), DHS' Office of Inspector General, DHS' Office of Civil Rights and Civil Liberties, and the Government Accountability Office.

• Bond Hearings

DHS proposed revisions to § 236.3(m) to state that bond hearings are only required for minors in DHS custody who are in removal proceedings under section 240 of the INA, to the extent permitted by 8 CFR 1003.19. DHS also proposed updating the language regarding bond hearings to be consistent with the changes in immigration law. Several commenters supported or acknowledged that proposed 8 CFR 236.3(m) maintained the process required by FSA paragraph 24(A), while another set of commenters did not explicitly endorse the provision but acknowledged that it provided the protections and processes required by the FSA. Other commenters expressed due process concerns.

DHS agrees with commenters that the proposed regulatory text at 8 CFR 236.3(m) reflects the provisions of the FSA regarding existence of bond redetermination hearings for minors in DHS custody who are in removal proceedings pursuant to INA 240, to the extent permitted by 8 CFR 1003.19. The understanding that the term “deportation hearings” in paragraph 24(A) of the FSA refers to what are now known as removal proceedings has been reiterated throughout the
Flores
litigation. Accordingly, FSA paragraph 24(A) requires bond redetermination

hearings solely for those alien minors in DHS custody who are in removal proceedings under INA 240. Minors who are in expedited removal proceedings are not entitled to bond hearings; rather, DHS may parole such aliens on a case-by-case basis.
See Jennings
v.
Rodriguez,
138 S. Ct. 830, 844 (2018) (holding that INA 235(b)(1) unambiguously prohibits release on bond and permits release only on parole). Minors in removal proceedings under INA 240 may appeal bond redetermination decisions made by an immigration judge to the Board of Immigration Appeals, in accordance with existing regulations found in 8 CFR 1003.19, and are informed of their right to review. Accordingly, DHS is not amending regulatory provisions regarding the bond provisions for minors based on public comments.

Major Commenter Concerns

• Trauma

Many commenters expressed serious concerns about child trauma. Comments focused on the trauma juveniles experience during their dangerous journey to the United States (often at the hands of smugglers and traffickers), trauma associated with experiences in their country of origin, the possibility of government custody-induced trauma in the United States, and in particular trauma caused by detention itself, and the need for trauma-related training and awareness throughout the immigration lifecycle, to include repatriation. Some commenters suggested, incorrectly, that the FSA explicitly prohibits the custody of children entirely and therefore, temporarily detaining family units together is unjustified.

DHS disagrees with the view that the FSA altogether prohibits detention of juveniles (including in family units). The FSA clearly contemplates, allows, and articulates standards for the custody of juveniles in a variety of circumstances. The final rule accordingly allows for the detention of minors as well. Moreover, DHS's experience shows that family units who are released often abscond, and detention is an important enforcement tool, particularly in controlling the border.

DHS acknowledges, however, that detention and custody may have negative impacts for minors and adults, and acknowledges the importance of identifying signs of trauma and ensuring that personnel are properly trained to identify and respond to signs of trauma, particularly among juveniles. DHS notes that this rule does not mandate detention for all family units. On the contrary, DHS will make and record continuous efforts to release a minor in its custody and, as discussed more fully below, will generally consider paroling minors detained pursuant to INA 235(b)(1)(B)(ii) or 8 CFR 235.3(c) who do not present a safety risk or risk of absconding as serving an urgent humanitarian reason.

Moreover, DHS has adopted rigorous standards for facilities precisely to minimize further negative impacts on minors. DHS mandates training for personnel who regularly interact with minors and UACs during the course of their official duties. For example, ICE Enforcement and Removal Operations (ERO) officers receive training on family units and UACs in the Basic Immigration Enforcement Training Program (BIETP). The BIETP is the basic training for ERO officers and occurs at the beginning of their career. Additionally, ERO's Field Office Juvenile Coordinators (FOJC) participate in annual training. This annual training focuses on policies, procedures and protocols in accordance with the FSA, HSA, and TVPRA. FOJCs constitute a specialized officer corps whose expertise informs colleagues and leaders often confronting high-profile cases involving UACs and family units. FOJCs liaise with HHS ORR's Federal Field Specialists, who make case-by-case placement decisions. FOJC training covers best practices for case processing, A-file management, docket management, age determination, child interviewing techniques, child development and trauma, screening for human trafficking, transport, the ORR placement process and an overview of FRCs and Family Residential Standards. FRCs are staffed with medical professionals and social workers specially trained to recognize the symptoms of trauma and provide appropriate treatment.

CBP generally employs contracted medical staff, who provide medical screening and appropriate triage to minors and UACs in custody along the southwest border. Where appropriations and funding permits, CBP also employs other contracted staff who are able to address the unique needs of juveniles. Additionally, all Border Patrol agents and CBP officers receive training related to the processing and interviewing of juveniles, screening UACs for trafficking concerns, and the appropriate custodial treatment of juveniles.

Separately, HHS ensures that ORR-funded care provider staff are trained in techniques for child-friendly and trauma-informed interviewing, ongoing assessment, observation, and treatment of the medical and behavioral health needs of UACs. Care provider staff are trained to identify UACs who have been smuggled (
i.e.,
transported illegally over a national border) and/or trafficked into the United States. Care providers must deliver services that are sensitive to the age, culture, and native language of each child as well.

Each ORR-funded care provider program maintains ORR-approved policies and procedures for interdisciplinary clinical services, including standards on professional licensing and education for staff, according to staff role or discipline. Staff who are required to have professional certifications must maintain licensure through continuing education requirements, and all care provider staff must complete at a minimum 40 hours of training annually.

All UACs in HHS' care participate in weekly individual counseling sessions with trained social work staff, where the provider reviews the child's progress, establishes short term objectives, and addresses developmental and crisis-related needs. Clinical staff may increase these once-a-week sessions if a more intensive approach is needed. If children have acute or chronic mental health illnesses, HHS refers them for mental health services in the community.

UACs participate in informal group counseling sessions at least twice a week, where all children are present. The sessions give UACs who are new to the program the opportunity to get acquainted with staff, other children in HHS care, and the rules of the program. These sessions provide an open forum where everyone has an opportunity to speak. Together, UACs and care providers make decisions on recreational activities and resolve issues affecting the UACs in care.

• Best Interests of the Child

Commenters raised issues regarding what was in the best interests of the child. DHS and HHS recognize that this is the heart of the FSA. Both Departments take seriously their responsibility to provide appropriate care to juveniles, many of whom have recently endured a hazardous journey to the United States. Juveniles are subject to different custody protocols depending upon whether they are unaccompanied or part of a family unit. Under the HSA, responsibility for the apprehension, temporary detention, transfer, and repatriation of UACs is delegated to DHS; whereas the responsibility for coordinating and implementing the care and placement of UACs with sponsors is delegated to HHS.

CBP takes temporary custody of UACs apprehended and encountered at the border, while ICE handles custody transfer and repatriation responsibilities, apprehends UACs in the interior of the country, and represents the Federal Government in removal proceedings. Within 72 hours, UACs in DHS custody are generally transferred into HHS custody, absent exceptional circumstances. Minors who do not meet the statutory definition of a UAC, including accompanied minors who enter the country as part of a family unit, may be placed in FRCs. These FRCs are designed to take into account the best interests of children during custody, pursuant to applicable laws., including by keeping the child with his or her parent(s) as a family unit.

Several commenters suggested, incorrectly, that the FSA prohibits temporary custody of juveniles entirely and that, therefore, detention goes inherently against the best interests of a child. DHS notes that even the authors of the FSA understood some amount of physical custody was going to be necessary and appropriate, as discussed above. The conditions of facilities and shelters that house children in DHS custody are designed to afford a protective environment for the best interests of the child and must adhere to the statutory, regulatory, and court-ordered requirements and standards governing the care and custody of children. FRCs are also designed to allow the child to live with his or her family, and thus to preserve family unity even when custody is warranted. And HHS care-provider facilities undergo rigorous State licensing processes in order to serve as residential child care shelters for the temporary care of UACs. This final rule implements those care and custody requirements and standards in full force.

Summary of Changes From the Proposed Rule

Following careful consideration of the public comments received, the Departments have made several modifications to the regulatory text proposed in the NPRM. These changes are:

• Section 212.5(b) now provides that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention.

• Section 236.3(b)(2) defines
Special Needs Minor.
DHS agrees to remove “retardation” and replace it with “intellectual disability.”

• Section 236.3(b)(9), which defines
Licensed Facility,
requires DHS to employ third parties to conduct audits of FRCs to ensure compliance with ICE's family residential standards. In response to comments and for full transparency, DHS is adding the phrase “DHS will make the results of these audits publicly available” to the definition. DHS has also included in the definition that audits will occur upon the opening of a facility and on a regular basis thereafter to address comments regarding oversight of current facilities.

• In § 236.3(b)(11), which defines a
Non-Secure Facility,
DHS agrees with commenters that the intention of the proposed rule was to provide a definition of non-secure when the term was not otherwise defined under the state law where the facility is located. Given commenters' concerns that the regulatory text was unclear, DHS will clarify the definition in this final rule and add “under state law” to the definition.

• In § 236.3(f)(1) regarding transfer of UACs from DHS to HHS, DHS agrees to amend the proposed regulatory text to clarify that the reference to 8 U.S.C. 1232(a)(2) refers to the processing of a UAC from a contiguous country. DHS is deleting “subject to the terms of” and replacing it with “processed in accordance with.”

• In § 236.3(f)(4)(i) regarding the transportation of UACs, DHS is amending the regulatory text to make clear that, as a general matter, UACs are not transported with unrelated detained adults. The two situations described in the regulatory text are limited exceptions to this general rule. DHS is adding the reference to unrelated “detained” adults, for clarity.

• In § 236.3(g)(1)(i), DHS is amending the procedures applicable to the apprehension and processing of minors or UACs. The regulatory text will be clear that the notices required, including Form I-770, will be provided, read, or explained to all minors and UACs in a language and manner that they understand, not just to those minors believed to be less than 14 or who are unable to understand the notice, as was proposed in the NPRM.

• In § 236.3(g)(2)(i) regarding DHS custodial care immediately following apprehension, DHS agrees to delete the term “exigent circumstances,” as it is redundant to “emergency.”

• In § 236.3(i)(4), commenters requested additional language tracking the verbatim text of FSA Ex. 1 paragraph B and C. DHS reiterates that these standards in § 236.3(i)(4) apply to the non-secure, licensed facilities used for housing family units—FRCs.

• Section 236.3(j) and (n) now provide that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention and is otherwise available to provide care and physical custody.

• DHS has added new § 236.3(j)(2)-(4) to identify the specific statutory and regulatory provisions that govern the custody and/or release of non-UAC minors in DHS custody based on the type and status of immigration proceedings.

• DHS has added a new § 236.3(j)(4) to state clearly that the Department will consider parole for all minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c), and that paroling such minors who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason. Paragraph (j) now also states that DHS takes aggregate and historical data, officer experience, statistical information or any other probative information into account when determining whether release may be appropriate.

• Section 236.3(o) is amended to clarify that the Juvenile Coordinator's duty to collect statistics is in addition to the requirement to monitor compliance with the terms of the regulations.

• In § 410.101, HHS agrees to amend the definition of “special needs minor,” replacing the term “retardation” with “intellectual disability.”

• In § 410.201(e), HHS agrees with multiple legal advocacy organizations' analysis that the FSA and TVPRA run in contradiction to each other on the placement of UACs in secure facilities based solely on the lack of appropriate licensed program availability; therefore, ORR is striking the following clause from this section: “. . . or a State or county juvenile detention facility.”

• In § 410.202, in response to commenters' concerns, HHS clarifies that it places UACs in licensed programs except if a reasonable person would conclude “based on the totality of the evidence and in accordance with subpart G” that the UAC is an adult.

• In § 410.203, in response to commenters' concerns, HHS clarifies that it reviews placements of UACs in secure facilities at least monthly and that the rule does not abrogate any requirements that HHS place UACs in the least restrictive setting appropriate to their age and any special needs.

• In § 410.302(a), in response to commenters' concerns, HHS clarifies that the licensed program providing care for a UAC shall make continual efforts at family reunification as long as the

UAC is in the care of the licensed program.

• In § 410.600(a) regarding transfer of UAC, the proposed regulatory text stated that, “ORR takes all necessary precautions for the protection of UACs during transportation with adults.” However, as ORR does not transport adult aliens, HHS has decided to strike this language from the final rule.

• In § 410.700 HHS is adding the “totality of the evidence and circumstances” for age determinations standards to mirror the DHS standard in compliance with statute.
See
8 U.S.C. 1232(b)(4).

• In § 410.810(b), HHS declines to place the burden of evidence in the independent internal custody hearings on itself; however, it has modified the rule text to indicate that HHS bears the initial burden of production supporting its determination that a UAC would pose a danger or flight risk if discharged from HHS' care. The UAC bears the burden of persuading the independent hearing officer to overrule the government's position, under a preponderance of the evidence standard.

B. Legal Authority

The Secretary of Homeland Security derives authority to promulgate these regulatory amendments primarily from the Immigration and Nationality Act (INA or Act), as amended, 8 U.S.C. 1101
et seq.
The Secretary may “establish such regulations” as he deems necessary for carrying out his authorities under the INA. INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). In addition, section 462 of the HSA and section 235 of the TVPRA prescribe substantive requirements and procedural safeguards to be implemented by DHS and HHS with respect to unaccompanied alien children (UACs).

Section 462 of the HSA also transferred to the Office of Refugee Resettlement (ORR) Director “functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization.” 6 U.S.C. 279(a). The ORR Director may, for purposes of performing a function transferred by this section, “exercise all authorities under any other provision of law that were available with respect to the performance of that function to the official responsible for the performance of the function” immediately before the transfer of the program. 6 U.S.C. 279(f)(1).

Consistent with provisions in the HSA, the TVPRA places the responsibility for the care and custody of all UACs who are not eligible to be repatriated to a contiguous country with the Secretary of Health and Human Services.
2

Prior to the transfer of the program, the Commissioner of Immigration and Naturalization, through a delegation from the Attorney General, had authority “to establish such regulations . . . as he deem[ed] necessary for carrying out his authority under the provisions of this Act.” INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 8 CFR 2.1 (2002). In accordance with the relevant savings and transfer provisions of the HSA,
see
6 U.S.C. 279, 552, 557;
see also
8 U.S.C. 1232(b)(1), the ORR Director now possesses the authority to promulgate regulations concerning ORR's administration of its responsibilities under the HSA and TVPRA, and the FSA at paragraph 40 (as modified) specifically envisions promulgation of such regulations.

2
Some UACs from contiguous countries may be permitted to withdraw their application for admission and be repatriated. These UACs are not referred to HHS. 8 U.S.C. 1232(a)(2).

C. Costs and Benefits

This rule implements the FSA by establishing uniform standards for the custody and care of alien juveniles during their immigration proceedings and to ensure they are treated with dignity and respect. The rule adopts regulatory measures that materially parallel the FSA standards and protections, and also by codifying the current requirements for complying with the FSA, the HSA, and the TVPRA, and respond to changed factual and operational circumstances.

U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) encounter minors and UACs in different manners. CBP generally encounters UACs and minors at or near the border. In Fiscal Year (FY) 2017, CBP apprehended 113,920 juveniles.
3

In FY 2018, CBP apprehended 107,498 juveniles. Generally, ICE encounters minors either upon transfer from CBP to an FRC, or during interior enforcement actions. In FY 2017, 37,825 individuals were booked into ICE's three FRCs, 20,606 of whom were minors. In FY 2018, 45,755 individuals were booked into ICE's three FRCs, 24,265 of whom were minors. ICE generally encounters UACs when it transports UACs who are transferred from CBP custody to ORR custody, as well as during interior enforcement actions. The Office of Refugee Resettlement (ORR) encounters UACs when they are referred to ORR custody and care by CBP, after border encounters, or by direct referral from ICE, after ICE-initiated interior immigration enforcement. It is important to note that HHS does not enforce immigration measures; that is the role and responsibility of HHS' Federal partners within DHS. ORR is a child welfare agency and provides shelter, care, and other essential services to UACs, while working to reunite them with family or other approved sponsors as soon as possible, with safety governing the process. In FY 2017, 40,810 UACs were placed in ORR's care. In FY 2018, 49,100 UACs were placed in ORR's care. (Please note that these numbers may reflect UACs who were in ORR's care from one fiscal year into the next.)

3
Throughout this final rule, the Departments generally use the term “juvenile” to refer to any alien under the age of 18. For further explanation, see below for discussion of the terms “juvenile,” “minor,” and “unaccompanied alien child (UAC).”

The Departments' current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA are the primary baseline against which to assess the costs and benefits of this rule. DHS and HHS already incur the costs for these operations; therefore, they are not costs of this rule.

The primary changes to DHS's current operational environment resulting from this rule are implementing an alternative licensing process for FRCs and making changes to 8 CFR 212.5 to align parole for minors in expedited removal with all other aliens in expedited removal, consistent with the applicable statutory authority. Subject always to resource constraints, these changes may result in additional or longer detention for some groups of minors. Specifically, minors who are in expedited removal proceedings whose credible-fear determination is still pending or who lack a credible fear and are awaiting removal are more likely to be held until removal can be effectuated. Furthermore, minors who have been found to have a credible fear or who are otherwise in INA section 240 proceedings, and who pose a flight risk or danger if released, are more likely to be held until the end of their removal proceedings, although limited bed space in FRCs imposes a significant constraint on custody of this cohort. DHS estimates the total number of minors in FY 2017 in groups that might be detained longer was 2,787 and in FY 2018 was 3,663. The numbers of accompanying parents or legal guardians are not included in these estimates. While the above estimates reflects the number of minors in FY 2017 and FY 2018 in groups of individuals that would likely be held until removal can be effectuated, DHS is unable to forecast the future total

number of such minors that may experience additional or longer detention as a result of this rule, or for how much longer individuals may be detained because there are many other variables that may affect such estimates. DHS also notes that resource constraints on the availability of bed space mean that if some individuals are detained for longer periods of time, then less bed space will be available to detain other aliens, who in turn could be detained for less time than they would have been absent the rule. DHS is unable to provide an aggregate estimate of the cost of any increased detention on the individuals being detained. To the extent this rule results in filling any available bed space at current FRCs, this may thereby increase variable annual costs paid by ICE to operators of current FRCs.

DHS notes that while additional or longer detention could result in the need for additional bed space, there are many factors that would be considered in opening a new FRC and at this time ICE is unable to determine if this rule would result in costs to build additional bed space. If ICE awarded additional contracts for expanded bed space as a result of this rule, ICE would also incur additional fixed costs and variable costs to provide contracted services beyond current FRC capacity.

The primary purpose of the rule is to implement applicable statutory law and the FSA through regulations, to respond to changes in law and circumstances, and in turn enable termination of the agreement as contemplated by the FSA itself, in doing so DHS will move away from judicial governance to executive government via regulation. The result is to provide for the sound administration of the detention and custody of alien minors and UACs to be carried out fully, pursuant to the INA, HSA, TVPRA, and existing regulations issued by the Departments responsible for administering those statutes, rather than partially carried out via a decades-old settlement agreement. The rule ensures that applicable regulations reflect the Departments' current operations with respect to minors and UACs in accordance with the relevant and substantive terms of the FSA and the TVPRA, as well as the INA. Further, by modifying the literal text of the FSA (to the extent it has been interpreted to apply to accompanied minors) in limited cases to reflect and respond to intervening statutory and operational changes, DHS ensures that it retains discretion to detain families, as appropriate and pursuant to its statutory and regulatory authorities, to meet its enforcement needs, while still providing protections to minors that the FSA intended.

D. Effective Date

This final rule will be effective on October 22, 2019, 60 days from the date of publication in the
Federal Register
.

III. Background and Purpose

A. History

1. The Flores Settlement Agreement

Prior to the enactment of the HSA, the Attorney General and the legacy INS had the primary authority to administer and enforce the immigration laws. In the period leading up to the
Flores
litigation in the mid-1980s, the general nationwide INS policy, based on regulations promulgated in 1963 and the Juvenile Justice and Delinquency Prevention Act of 1974, was that alien juveniles could petition an immigration judge for release from INS custody if an order of deportation was not final.
See Reno
v.
Flores,
507 U.S. 292, 324-25 (1993). In 1984, the Western Region of the INS implemented a different release policy for juveniles, and the INS later adopted that policy nationwide. Under that policy, juveniles could only be released to a parent or a legal guardian. The rationale for the policy was two-fold: (1) To protect the juvenile's welfare and safety, and (2) to shield the INS from possible legal liability. The policy allowed such alien juveniles to be released to other adults only in unusual and extraordinary cases at the discretion of the District Director or Chief Patrol Agent.
See Flores
v.
Meese,
942 F.2d 1352 (9th Cir. 1991) (en banc).

On July 11, 1985, four alien juveniles filed a class action lawsuit in the U.S. District Court for the Central District of California,
Flores
v.
Meese,
No. 85-4544 (C.D. Cal. filed July 11, 1985). The case “ar[ose] out of the INS's efforts to deal with the growing number of alien children entering the United States by themselves or without their parents (unaccompanied alien minors).”
Flores
v.
Meese,
934 F.2d 991, 993 (9th Cir. 1990). The class was defined to consist of “all persons under the age of eighteen (18) years who have been, are, or will be arrested and detained pursuant to 8 U.S.C. 1252 by the INS within the INS' Western Region and who have been, are, or will be denied release from INS custody because a parent or legal guardian fails to personally appear to take custody of them.”
Id.
at

994. The
Flores
litigation challenged “(a) the [INS] policy to condition juveniles' release on bail on their parents' or legal guardians' surrendering to INS agents for interrogation and deportation; (b) the procedures employed by the INS in imposing a condition on juveniles' bail that their parents' or legal guardians' [sic] surrender to INS agents for interrogation and deportation; and (c) the conditions maintained by the INS in facilities where juveniles are incarcerated.”
See Flores
Compl. paragraph 1. The plaintiffs claimed that the INS's release and bond practices and policies violated, among other things, the INA, the Administrative Procedure Act, and the Due Process Clause and Equal Protection Guarantee under the Fifth Amendment.
See id.
paragraphs 66-69.

Prior to a ruling on any of the issues, on November 30, 1987, the parties entered into a Memorandum of Understanding (MOU) on the conditions of detention. The MOU stated that minors in INS custody for more than 72 hours following arrest would be housed in facilities that met or exceeded the standards set forth in the April 29, 1987, U.S. Department of Justice Notice of Funding in the
Federal Register
and in the document “Alien Minors Shelter Care Program—Description and Requirements.”
See
Notice of Availability of Funding for Cooperative Agreements; Shelter Care and Other Related Services to Alien Minors, 52 FR 15569, 15570 (Apr. 29, 1987). The Notice provided that eligible grant applicants for the funding described in the Notice included organizations that were “appropriately licensed or can expeditiously meet applicable state licensing requirements for the provision of shelter care, foster care, group care and other related services to dependent children . . . .”
Id.

At approximately the same time that the MOU was executed, the INS published a proposed rule on the Detention and Release of Juveniles to amend 8 CFR parts 212 and 242.
See
52 FR 38245 (Oct. 15, 1987). The stated purpose of the rule was “to codify the [INS] policy regarding detention and release of juvenile aliens and to provide a single policy for juveniles in both deportation and exclusion proceedings.” Again, however, the proposed regulations did not address the considerations that might arise if the INS ever held an accompanied minor in custody along with his or her parent, together as a unit. For example, the preamble discussed the need to coordinate “family
re
unification” and “locating suitable placement of juvenile detainees,” but did not discuss preserving family unity when a minor is already in custody together with the parent.
Id.
(emphasis added).

The INS issued a final rule in May 1988. 53 FR 17449 (May 17, 1988). The rule provided for release to a parent,

guardian, or other relative, and discretionary release to other adults.
See
53 FR at 17451. It also provided that when adults are in detention, INS would consider release of the adult and juvenile.
Id.

On May 24, 1988, the district court where the original
Flores
case was filed held that the recently codified INS regulation, 8 CFR 242.24 (1988), governing the release of detained alien minors, violated substantive due process, and ordered modifications to the regulation. The district court also held that INS release and bond procedures for detained minors in deportation proceedings fell short of the requirements of procedural due process, and therefore ordered the INS “forthwith” to provide to any minor in custody an “administrative hearing to determine probable cause for his arrest and the need for any restrictions placed upon his release.”
Flores
v.
Meese,
934 F.2d 991, 993 (9th Cir. 1990) (quoting the district court). The INS appealed, and the Ninth Circuit reversed the district court's holdings that the INS exceeded its statutory authority in promulgating 8 CFR 242.24 and that the regulation violated substantive due process. The Ninth Circuit also reversed the district court's procedural due process holding, identified the legal standard that the district court should have applied, and remanded the issue for the district court to further explore the issue.
Id.
at 1013. On rehearing en banc, however, the Ninth Circuit vacated the original panel's opinion, affirmed the district court's holding, and held that INS's regulation was invalid because the regulation violated the alien child's due process and habeas corpus rights, and detention where the alien child was otherwise eligible for release on bond or recognizance to a custodian served no legitimate purpose of the INS.
Flores
v.
Meese,
942 F.2d 1352 (9th Cir. 1991) (en banc) (“The district court correctly held that the blanket detention policy is unlawful. The district court's order appropriately requires children to be released to a responsible adult where no relative or legal guardian is available and mandates a hearing before an immigration judge for the determination of the terms and conditions of release.”).

The INS appealed, and in 1993, the U.S. Supreme Court rejected Plaintiffs' facial challenge to the constitutionality of the INS's regulation concerning the care of alien juveniles.
Reno
v.
Flores,
507 U.S. 292 (1993). The Supreme Court held that the regulations did not violate any substantive or procedural due process rights or equal protection principles.
Id.
at 306, 309. According to the Court, the regulations did not exceed the scope of the Attorney General's discretion under the INA to continue custody over arrested aliens, because the challenged regulations rationally pursued the lawful purpose of protecting the welfare of such juveniles.
Id.
at 315.

The regulations promulgated in 1988 have remained in effect since publication but were moved to 8 CFR 236.3 in 1997.
See
62 FR 10312, 10360 (Mar. 6, 1997). They were amended in 2002 when the authority to decide issues concerning the detention and release of juveniles was moved to the Director of the Office of Juvenile Affairs from the District Directors and Chief Patrol Agents.
See
67 FR 39255, 39258 (June 7, 2002).

The Supreme Court's decision in
Reno
v.
Flores
did not fully resolve all of the issues in the case. After that decision, the parties agreed to settle the matter and resolved the remainder of the litigation in the FSA, which the district court approved on January 28, 1997. In 1998, the INS published a proposed rule having a basis in the substantive terms of the FSA, entitled Processing, Detention, and Release of Juveniles.
See
63 FR 39759 (July 24, 1998). Over the subsequent years, that proposed rule was not finalized. In 2001, as the original termination date of the FSA approached, the parties added a stipulation in the FSA, which terminates the FSA “45 days following defendants' publication of final regulations implementing t[he] Agreement.” Stipulated Settlement Agreement,
Flores
v.
Reno,
No. CV 85-4544-RJK(Px) (C.D. Cal. Dec. 7, 2001). In January 2002, the INS reopened the comment period on the 1998 proposed rule, 67 FR 1670 (Jan. 14, 2002), but the rulemaking was ultimately abandoned. 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.

After the 2001 Stipulation, Congress enacted the HSA and the TVPRA, both of which impact the treatment of alien juveniles. Among other changes, the HSA created DHS and, along with the TVPRA, transferred the functions under the immigration laws with respect to the care and then custody of UACs referred by other Federal agencies to HHS ORR. The TVPRA also further regulated the Departments' respective roles with respect to UACs.
See
6 U.S.C. 111(a), 279; 8 U.S.C. 1232(b)(1).

The HSA also contained a general savings clause at 6 U.S.C. 552(a) with respect to the transfer of functions from the INS to ORR and DHS. The savings clause has been interpreted by courts to have maintained the FSA as enforceable against HHS and DHS. By promulgating these final rules, HHS and DHS are completing an administrative action to terminate the FSA.

To summarize agency roles under the current statutory framework: DHS apprehends, provides care and custody for, transfers, and removes alien minors; DHS apprehends, transfers, and removes UACs; and HHS ORR provides for care and custody of UACs who are in Federal custody (other than those permitted to withdraw their application for admission) and referred to HHS ORR by other Departments.

2. The Reorganization of the Immigration and Naturalization Service

The FSA was entered into by the INS, which was under the U.S. Department of Justice, and the plaintiffs in the
Flores
lawsuit. INS had within it all of the immigration functions: Border patrol, detention, enforcement, deportation, investigations, and adjudication of immigration benefits. After the 9/11 attacks a major reorganization of the government took place, and most of the INS functions were transferred to the newly formed DHS in 2003 and divided into three distinct components. The U.S. Citizenship and Immigration Services (USCIS) took over adjudication of immigration benefits. ICE took over the investigative and enforcement functions of INS, which included longer-term detention of aliens when warranted. CBP took over the functions on the border, including apprehension of those entering illegally and inspections of individuals entering at ports of entry, as well as short-term detention for the purposes of processing aliens. The Homeland Security Act also transferred the responsibility for the care and custody of UACs to HHS' ORR. 6 U.S.C. 279(a). The obligations under the FSA therefore also had to be divided after the reorganization.

In 2008, Congress passed the TVPRA, which further provided that all UACs in government custody (other than those able to withdraw their application for admission and be immediately repatriated) must be transferred to HHS ORR.

3. The Change in Migration Patterns and the Creation of the Family Residential Centers as a Response

When the FSA was first entered into and even when DHS was first created, migration at the southern border primarily consisted of single adults and unaccompanied juveniles, mostly in their teens. Since then, the numbers of minors, both accompanied and

unaccompanied, has skyrocketed. In 1993, for instance, the Supreme Court recognized that a surge of “more than 8,500” unaccompanied minors represented a “problem” that is “serious.”
Reno,
507 U.S. at 294. Before 2012, the number of UACs encountered by the government stayed relatively consistent with an average of about 7,000 to 8,000 UACs typically placed in ORR custody each year before FY 2012.
4

4

See
U.S. Department of Health and Human Services, Administration for Children and Families, Office of Refugee Resettlement, Unaccompanied Alien Children Program,
Fact Sheet
(May 2014),
https://www.acf.hhs.gov/sites/default/files/orr/unaccompanied_childrens_services_fact_sheet.pdf.

But that then changed. From Fiscal Year 2011 through 2018, apprehensions of UACs between ports of entry along the southwest border increased dramatically: Were as follows, resulting in a substantial net increase over that time period: FY 2011: 15,949; FY 2012: 24,403; FY 2013: 38,759; FY 2014: 68,541; FY 2015: 39,970; FY 2016: 59,692; FY 2017: 41,435; FY 2018: 50,036.
5

At ports of entry along the southwest border, 10,678 UACs were found inadmissible in FY 2016; 7,246 UACs were found inadmissible in FY 2017; and 8,624 UACs were found inadmissible in FY 2018.
6

5

See
U.S. Border Patrol, Total Unaccompanied Alien Children (0-17 years old Apprehensions,
https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-uacs-sector-fy2010-fy2018.pdf
).

6

See https://www.cbp.gov/newsroom/stats/ofo-sw-border-inadmissibles-fy2017,

https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018.

Additionally, a new trend also began of families with young children crossing the border. For family units, the overall numbers of apprehensions have increased dramatically: FY 2013: 14,855; FY 2014: 68,445; FY 2015: 39, 838; FY 2016: 77,674; FY 2017: 75,622; FY 2018: 107,212.
7

At ports of entry, 26,062 family units were found inadmissible in FY 2016, 29,375 family units were found inadmissible in FY 2017, and 53,901 family units were found inadmissible in FY 2018.
8

7

See
U.S. Border Patrol, Total Family Unit Apprehensions,
https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-family-units-sector-fy13-fy18.pdf.

8

See https://www.cbp.gov/newsroom/stats/ofo-sw-border-inadmissibles-fy2017,

https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018.

In FY 2019 so far, from October 2018 through June 2019, the total number of UAC apprehensions along the Southwest border was 63,624, and the total number of family unit apprehensions was 390,308. An additional 3,572 UACs and 37,573 family units have been found inadmissible at ports of entry.
9

9

See
U.S. Customs and Border Protection, Southwest Border Migration FY2019, available at:
https://www.cbp.gov/newsroom/stats/sw-border-migration.

As the number of family units increased, the Government faced a new challenge: Housing children primarily in adult facilities, even with their parents, while still trying to provide all of the services juveniles need. In the early 2000s, the government created ICE Family Residential Centers (FRCs). By 2016, there were three FRCs. Unlike the CBP facilities where juveniles are temporarily held following apprehension or encounter (which are designed for short-term detention), FRCs are more akin to a dormitory setting. For example, the first FRC in Berks, Pennsylvania, was converted from a senior living center. It has suites where each family is housed separately. Beds, tables, chests of drawers, and other standard amenities are provided. Bedding, towels, basic clothing, and toiletries are provided. There is also a laundry facility on premises. There is a large community “living room” that has a large screen television, large cushioned couches and lounge chairs, a gaming area and a separate library that contains books, smaller television sets, video games, and board games. The facility also has an entire wing dedicated to classroom learning where minors at the facility go to school five days a week and study English and other age appropriate subjects. Another wing is a medical facility where minors and their parents receive any necessary medical care, including all immunizations required for later admission to U.S. public schools, and a treatment area for those who have entered the country with a communicable disease, such as tuberculosis. There are also phone banks to call relatives, consulates, or attorney/representatives.

In all FRCs, three hot “all-you-can-eat” meals a day are provided, and snacks are available throughout the day. All three FRCs offer a variety of indoor and outdoor daily recreation activities for children and adults, and a monthly recreational schedule is posted within communal areas in each facility. Indoor activities offered include a variety of sports (
e.g.,
basketball, badminton, indoor soccer, and volleyball), group exercise classes, arts and crafts classes, karaoke, movie nights, and seasonal and holiday-themed activities. Outdoor recreational facilities include soccer fields, sand volleyball courts, handball courts, sand boxes, and play structures with slides and jungle gyms. The facility is non-secure and a family is not physically prevented from leaving the facility.

The FRCs have video conferencing set up for court hearings and private meeting rooms so that families can meet with their attorneys or representatives. Child care is provided to the parents while they meet with their attorneys/representatives or attend their court hearings. Interpreting services are available 24 hours a day via telephone. Attorneys and representatives approved to appear at immigration court hearings are provided access to the residents at various times each week, enabling families to obtain counsel and not have to appear at immigration hearings as pro se respondents.

B. Authority

1. Statutory and Regulatory Authority

a. Immigration and Nationality Act and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

The INA, as amended, provides the primary authority for DHS to detain certain aliens for violations of the immigration laws. Congress expanded legacy INS detention authority in IIRIRA, Public Law 104-208, 110 Stat. 3009. In that legislation, Congress amended the INA by providing that certain aliens were subject to either mandatory or discretionary detention by the INS. This authorization flowed to DHS after the reorganization under the HSA. Specifically, DHS's authority to detain certain aliens comes from sections 235, 236, and 241 of the INA, 8 U.S.C. 1225, 1226, and 1231. Section 235 of the INA, 8 U.S.C. 1225, provides that applicants for admission to the United States, including those subject to expedited removal, shall be detained during their removal proceedings, although such aliens may be released on parole in limited circumstances, consistent with the statutory standard set forth in INA 212(d)(5), 8 U.S.C. 1182(d)(5) and standards set forth in the regulations. Section 236 of the INA, 8 U.S.C. 1226, provides the authority to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, and section 241, 8 U.S.C. 1231, authorizes the detention of aliens during the period following the issuance of a final order of removal. Other provisions of the INA also mandate detention of certain classes of individuals, such as criminal aliens.

b. Homeland Security Act of 2002

As noted, the HSA, Public Law 107-296, 116 Stat. 2135, transferred most of

the functions of the INS from DOJ to the newly-created DHS. DHS and its various components are responsible for border security, interior immigration enforcement, and immigration benefits adjudication, among other duties. DOJ's EOIR retained its pre-existing functions relating to the immigration and naturalization of aliens, including conducting removal proceedings and adjudicating defensive filings of asylum claims.

The functions regarding care of UACs were transferred from the INS to HHS ORR. The HSA states ORR shall be responsible to coordinate and implement the care and placement of UACs who are in Federal custody by reason of their immigration status. ORR was also tasked with identifying a sufficient number of qualified individuals, entities, and facilities to house UACs, and with ensuring that the interests of the child are considered in decisions and actions relating to his or her care and custody.

c. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457, Title II, Subtitle D, 122 Stat. 5044 (codified in principal part at 8 U.S.C. 1232), states that consistent with the HSA, and except as otherwise provided with respect to certain UAC from contiguous countries (
see
8 U.S.C. 1232(a)), the care and custody of all UACs, including responsibility for their detention, where appropriate, shall be the responsibility of HHS. The TVPRA, among other things, requires Federal agencies to notify HHS within 48 hours of apprehending or discovering a UAC, or receiving a claim or having suspicion that an alien in their custody is under 18 years of age. 8 U.S.C. 1232(b)(2). The TVPRA further requires that, absent exceptional circumstances, any Federal agency transfer a UAC to the care and custody of HHS within 72 hours of determining that an alien in its custody is a UAC. 8 U.S.C. 1232(b)(3).

The Secretary of HHS delegated the authority under the TVPRA to the Assistant Secretary for Children and Families, 74 FR 14564 (2009), who in turn delegated the authority to the ORR Director, 74 FR 1232 (2009).

2. Flores Settlement Agreement Implementation

As discussed above, in the 1990s, the U.S. Government and
Flores
plaintiffs entered into the FSA to resolve nationwide the ongoing litigation concerning the INS's detention regulations for alien minors. The FSA was executed on behalf of the Government on September 16, 1996. The U.S. District Court for the Central District of California approved the FSA on January 28, 1997. The FSA became effective 30 days after its approval by the district court and provided for continued oversight by that court.

Paragraph 9 of the FSA explains its purpose: To establish a “nationwide policy for the detention, release, and treatment of minors in the custody of the INS.” Paragraph 4 defines a “minor” as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS,” but the definition excludes minors who have been emancipated or incarcerated due to a criminal conviction as an adult. The FSA established procedures and conditions for processing, transportation, and detention following apprehension, and set forth the procedures and practices that the parties agreed should govern the INS's discretionary decisions to release or detain minors and to whom they should or may be released.

The FSA was originally set to expire within five years, but on December 7, 2001, the Parties agreed to a termination date of “45 days following defendants' publication of final regulations implementing this Agreement.” However, the proposed rule that was published for that purpose was never finalized.
See
67 FR 1670 (reopening the comment period for the 1998 proposed rule). A copy of the FSA and the 2001 Stipulation is available in the docket for this rulemaking. A principal purpose of these regulations is to “implement[] the Agreement,” and in turn to terminate the FSA.

3. Recent Court Orders

a. Motion to Enforce I

On January 26, 2004, Plaintiffs filed their first motion to enforce the agreement, alleging, among other things, that CBP and ICE: (1) Regularly failed to release minors covered by the FSA to caregivers other than parents when parents refused to appear; (2) routinely failed to place detained class members in the least restrictive setting; (3) failed to provide class members adequate education and mental health services, and (4) exposed minors covered by the FSA to dangerous and unhealthy conditions. Ultimately, after a lengthy discovery process in which the government provided Plaintiffs numerous documents related to the government's compliance with the FSA, Plaintiffs filed a Notice of Withdrawal of Motion to Enforce Settlement on November 14, 2005. The court dismissed the matter on May 10, 2006.

b. Motion To Enforce II

On February 2, 2015, Plaintiffs filed a second motion to enforce the agreement, alleging that CBP and ICE were in violation of the FSA because: (1) ICE's supposed no-release policy—
i.e.,
an alleged policy of detaining all female-headed families, including children, for as long as it takes to determine whether they are entitled to remain in the United States—violated the FSA; (2) ICE's routine confinement of class members in secure, unlicensed facilities breached the Agreement; and (3) CBP exposed class members to harsh and substandard conditions, in violation of the Agreement.

On July 24, 2015, the district court granted Plaintiffs' second motion to enforce and denied Defendant DHS's contemporaneous motion to modify the agreement.
Flores
v.
Johnson,
212 F. Supp. 3d 864 (C.D. Cal. 2015). The court found: (1) The FSA applied to all alien minors in government custody, including those accompanied by their parents or legal guardians; (2) ICE's continuing detention of minors accompanied by their mothers was a material breach of the FSA; (3) the FSA requires Defendant DHS to release minors with their accompanying parent or legal guardian unless this would create a significant flight risk or a safety risk; (4) DHS housing minors in secure and non-licensed FRCs violated the FSA; and (5) CBP violated the FSA by holding minors and UACs in facilities that were not safe and sanitary.
Id.
The Court ordered the government to show cause why certain remedies should not be implemented as a result of these violations.

The government filed a response to the Court's order to show cause on August 6, 2015. On August 21, 2015, the court issued a subsequent remedial order for DHS to implement six remedies.
Flores
v.
Lynch,
212 F. Supp. 3d 907 (C.D. Cal. 2015). In the decision, the court clarified that, as provided in FSA paragraph 12(A), in the event of an emergency or influx, DHS need not transfer minors to a “licensed program” pursuant to the 3- and 5-day requirements of paragraph 12(A), but must transfer such minors “as expeditiously as possible.” In the decision, the court referenced the Government's assertion that DHS, on average, would detain minors who are not UACs for 20 days—the general length of time required to complete credible or reasonable fear processing at that time for aliens in expedited

removal. The court agreed that if 20 days was “as fast as [the Government] . . . can possibly go,” the Government's practice of holding accompanied minors in its FRCs, even if not “licensed” and “non-secure” per FSA paragraph 19, may be within the parameters of FSA paragraph 12(A).
Id.
at 914. In a decision issued on July 6, 2016, the Ninth Circuit agreed with the district court that during an emergency or influx, minors must be transferred “as expeditiously as possible” to a non-secure, licensed facility.
Flores
v.
Lynch,
828 F.3d. 898, 902-03 (9th Cir. 2016). The Ninth Circuit affirmed the district court's holding that the FSA applies to all alien minors and UACs in government custody and concluded the district court did not abuse its discretion in denying the Government's motion to modify the FSA. The Ninth Circuit, however, reversed the district court's determination that the FSA required the release of accompanying parents.
Id.

The government maintains that the terms of the FSA were intended to apply only to those alien children in custody who are unaccompanied.

Nonetheless, reflecting existing circuit precedent that the FSA applies to accompanied minors, this rule applies to both accompanied and unaccompanied minors.

c. Motion To Enforce III

On May 17, 2016, plaintiffs filed a third motion to enforce the agreement, claiming that DHS was violating the agreement by: (1) Holding class members in CBP facilities that did not meet the requirements of the FSA; (2) failing to advise class members of their rights under the FSA; (3) making no efforts to release or reunify class members with family members; (4) holding class members routinely with unrelated adults; (5) detaining class members for weeks or months in secure, unlicensed facilities in violation of the FSA; and (6) interfering with class members' right to counsel. The Government filed a response on June 3, 2016.

On June 27, 2017, the district court issued an opinion concluding that ICE had not complied with the FSA because it had failed to advise class members of their rights under the FSA, failed to make continuous efforts to release class members, and failed to release class members as required by FSA paragraphs 12(A) and 14. The Court also found that FRCs were unlicensed and secure.
Flores
v.
Sessions,
No. 2:85-cv-04544 (C.D. Cal. June 27, 2017). The district court, however, rejected the claims that ICE had impermissibly detained class members with unrelated adults and interfered with class members' right to counsel.

The district court also concluded that CBP acted in violation of the FSA in the Rio Grande Valley Border Patrol Sector. The court pointed to allegations that CBP failed to provide class members adequate access to food and water, detained class members in conditions that were not safe and sanitary, and failed to keep the temperature of the holding cells within a reasonable range. The court ordered the appointment of a Juvenile Coordinator for ICE and CBP, responsible for monitoring the agencies' compliance with the Agreement. On August 15, 2019, the Ninth Circuit dismissed the Government's appeal of that decision based on a lack of jurisdiction.
See Flores
v.
Barr,
No. 17-56297 (9th Cir. Aug. 15, 2019). On October 5, 2018, the U.S. District Court for the Central District of California appointed a Special Master/Independent Monitor to oversee compliance with the Agreement and with the June 27, 2017 Order. The Court's order appointing the Monitor also allowed for oversight over HHS related to Motion to Enforce V, discussed below.

d. Motion To Enforce IV

On August 12, 2016, Plaintiffs filed a fourth motion to enforce the agreement, claiming that ORR violated the agreement by failing to provide UACs in ORR custody with a bond redetermination hearing by an immigration judge. The Government argued that the HSA and the TVPRA effectively superseded the FSA's bond-hearing requirement with respect to UACs, that only HHS could determine the suitability of a sponsor (an essential part of release decision-making), and that immigration judges lacked jurisdiction over UACs in ORR custody.

On January 20, 2017, the court found that HHS breached the FSA by denying UACs the right to a bond hearing as provided for in the FSA.
Flores
v.
Lynch,
No. 2:850-cv-04544, 2017 WL 6049373 (C.D. Cal. Jan. 20, 2017). The district court agreed that only HHS could determine the suitability of a sponsor, but disagreed that subsequent laws fully superseded the FSA. The Government appealed to the Ninth Circuit. On July 5, 2017, the Ninth Circuit affirmed the district court's ruling. The Ninth Circuit reasoned that if Congress had intended to terminate the settlement agreement in whole or in part through passage of the HSA or TVPRA, it would have said so specifically.
Flores
v.
Sessions,
862 F.3d 863 (9th Cir. 2017). However, while affirming the district court's decision, the Ninth Circuit also acknowledged that determinations made at hearings held under Paragraph 24A of the FSA will not compel a child's release, because “a minor may not be released unless the agency charged with his or her care identifies a safe and appropriate placement.”
Id.
at 868. The Government did not seek further review of the decision.

e. Motion To Enforce V

On April 16, 2018, Plaintiffs filed a fifth motion to enforce the agreement, claiming ORR unlawfully denied class members licensed placements, unlawfully medicated youth without parental authorization, and peremptorily extended minors' detention on suspicion that available custodians may be unfit. On July 30, 2018, the district court issued an Order.
Flores
v.
Sessions,
2:85-cv-04544-DMG-AGR (ECF No. 470, Jul. 30, 2018). The Order discussed the Shiloh Residential Treatment Center and placement therein, as well as informed consent for psychotropic drugs in such Center; placement in secure facilities; notice of placement in secure and staff-secure facilities; Director-level review of children previously placed in secure or staff-secure facilities; and other issues. Readers should refer to the full Order for details.

f. Motion for Relief From Settlement

On June 21, 2018, in accordance with the President's June 20, 2018, Executive Order “Affording Congress an Opportunity to Address Family Separation,” the Government sought limited emergency relief from two provisions of the FSA—the release provision of Paragraph 14, as well as the licensing requirements of Paragraph 19. This relief was sought in order to permit DHS to detain alien family units together for the pendency of their immigration proceedings. The court denied this motion on July 9, 2018, and denied reconsideration of the motion on November 5, 2018.

That motion sought relief consistent with the proposed rule, although the proposed rule included some affirmative proposals (like the Federal-licensing regime) that were not at issue in that motion. For example, as discussed below, by creating an alternative for meeting the “licensed facility” definition for FRCs, the final rule will eliminate a barrier to keeping family units in custody during their immigration proceedings, consistent with applicable law, while still providing similar substantive protections to minors.

The issue of family separation and reunification continues to be the subject of litigation in multiple jurisdictions. This rule does not directly address matters related to that litigation. A significant purpose of this rule with regard to accompanied minors is to allow DHS to make decisions regarding the detention of families applying a single legal framework, and to enable DHS to hold a family together as a unit in an FRC when lawful and appropriate.

g. Motion To Enforce VI

On November 2, 2018, Plaintiffs filed their sixth motion to enforce, which requests the court to enjoin the Government from implementing regulations that fail to implement the FSA. Plaintiffs allege the Government's proposed rulemaking of September 2018 is an anticipatory breach of the FSA, claiming that DHS's portion of the proposed regulations proposed to detain accompanied children indefinitely and consign them to unlicensed family detention centers. Plaintiffs also claim that the proposed rule replaces mandatory protections with aspirational statements and does not provide certain the protections granted minors. Plaintiffs also requested the court to provisionally adjudicate the Government in civil contempt to make it clear to that implementing the proposed regulations would place it in contempt. The motion is held in abeyance pending publication of this final rule and further briefing from the parties.

h. Motion To Enforce VII

On May 30, 2019, Plaintiffs filed a motion to enforce the FSA alleging that HHS' use of the Homestead influx shelter facility violates the FSA because the facility is not licensed, and, in Plaintiffs' opinion, HHS is not releasing UACs from the facility as expeditiously as possible. By agreement of the parties, the motion has been referred to mediation with the Monitor in order to avoid the need for adjudication by the district court.

i. Ex Parte Request for Temporary Restraining Order

On June 26, 2019, Plaintiffs filed an
ex parte
request for a temporary restraining order, which alleged that CBP facilities in the El Paso and Rio Grande Valley Border Patrol Sectors violated the terms of the FSA; that CBP failed to provide adequate medical care; and that CBP failed to comply with the release requirements of Paragraph 14 of the FSA. Plaintiffs requested emergency relief, including (1) immediate inspection of CBP facilities in the El Paso and RGV Sectors by “a public health expert authorized to mandate a remediation plan that [CBP] must follow to make these facilities safe and sanitary;” (2) immediate access to CBP facilities in the El Paso and RGV Sectors by medical professionals “who can assess the medical and psychological needs of the children and triage appropriately;” (3) “deployment of an intensive case management team to focus on expediting the release of [certain UACs] to alleviate the backlog caused by the inadequate [HHS ORR] placement array;” and (4) that CBP be held in contempt. On June 28, 2019, the Court referred the TRO to an expedited mediation schedule in front of the independent monitor. Dkt. 576. On July 8, 2019, the court appointed a medical expert, who would “consult with and assist the [court-appointed independent monitor] in assessing child health and safety conditions in [CBP facilities].” Dkt. 591. On July 10, 2019, the parties engaged in mediation, and agreed that the court-appointed monitor would submit a draft report of findings and recommendations to the parties and the monitor, and that the parties would reconvene in mediation following the submission of that report.
See
Joint Status Report, Dkt. 599.

C. Basis and Purpose of Regulatory Action

1. Need for Regulations Implementing the Relevant and Substantive Terms of the FSA.

When DHS encounters a removable alien parent or legal guardian with his or her removable alien child(ren), it has, following initiation of removal proceedings, three primary options for purposes of immigration custody: (1) Release all family members into the United States; (2) detain the parent(s) or legal guardian(s) and either release the juvenile to another parent or legal guardian or transfer the juvenile to HHS as a UAC; or (3) detain the family unit together as a family by placing them at an appropriate FRC during their immigration proceedings. The practical implications of the FSA, as interpreted by the Federal district court and the court of appeals (and the lack of state licensing for FRCs), is to prevent the Government from using the third option for more than a limited period of time. This final rule will eliminate that barrier to the use of FRCs.

DHS believes there are several advantages to maintaining family unity during immigration proceedings. These include the child being under the care of the parent, immigration proceedings occurring together and any removal or release occurring at the same time. But the practical implications of the FSA, as recently interpreted, and in particular the lack of state licensing for FRCs and the release requirements for minors who are not in state-licensed facilities, have effectively prevented DHS from using family detention for more than a limited period of time (typically approximately 20 days), and in turn often required the release of families regardless of the flight risk posed. DHS believes that combination of factors creates a powerful incentive for adults to bring juveniles on the dangerous journey to the United States and then put them in further danger by illegally crossing the United States border, in the expectation that coming as a family will result in an immediate release into the United States. At the same time, the alternative—that of separating family members so the adult may be detained pending immigration proceedings—should be avoided when possible, and has generated significant litigation.
See, e.g., Ms. L
v.
ICE,
No. 18-428 (S.D. Cal.).

This final rule serves to clear the way for the sensible use of FRCs when it is lawful and appropriate, to allow custody over a family unit as such. In particular, it creates a Federal licensing process to resolve the current problem caused by the FSA's state-licensing requirement that is ill-suited to family detention, and allows for compatible treatment of a family unit in immigration custody and proceedings by eliminating artificial barriers to that compatibility imposed by the FSA. Further, it helps to ensure that decisions to detain a family unit can be made under a single legal framework and that take into account the interest in family unity. In particular, the rule will ensure that custody decisions for both the parent and minor will be made pursuant to the existing statutes and regulations governing release on bond or parole (not under a freestanding FSA standard). Moreover, when exercising its parole discretion, DHS will continue to consider a detainee's status as a minor as a factor in exercising its parole discretion, on a case-by-case basis, and consistent with all requisite statutory and regulatory authority.

It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing surge of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm. The expectation that adults with juveniles

will remain in the United States outside of immigration detention may incentivize these risky practices.

In the summer of 2014, an unprecedented number of family units from Central America illegally entered or were found inadmissible to the United States. In FY 2013, the total number of family units apprehended entering the United States illegally between ports of entry on the Southwest Border was 14,855. By FY 2014, that figure had increased to 68,445.
See https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-family-units-sector-fy13-fy18.pdf.
By June of 2019, that figure had increased to 390,308, with an additional 37,573 found inadmissible at ports of entry.

Table 1—Family Unit Apprehensions and Inadmissibles at the Southwest Border by Fiscal Year
10

Fiscal year

Family unit
apprehensions at
the Southwest Border

Family units found
inadmissible at

the Southwest Border
11

2013
14,855

2014
68,445

2015
39,838

2016
77,674
26,062

2017
75,622
29,375

2018
107,212
53,901

2019 *
390,308
37,573

* Partial year data for FY 2019; through June.

ER23AU19.000

Prior to

2014, given the highly limited detention capacity, the only option available to the Government for the large majority of family units entering the United States was to issue the family Notices to Appear and release the alien family to temporarily remain in the United States pending their removal proceedings. Thus, when an unprecedented number of families decided to undertake the dangerous journey to the United States in 2014, DHS officials faced an urgent humanitarian situation. DHS encountered numerous alien families and juveniles who were hungry, thirsty, exhausted, scared, vulnerable, and at times in need of medical attention, with some also having been beaten, starved, sexually assaulted or worse during their journey to the United States.

10
Note that Family Unit represents the number of individuals (either a child under 18 years old, parent or legal guardian) apprehended with a family member.
See
United States Border Patrol Total Family Unit Apprehensions By Month—FY 2013 through FY 2018 at
https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-total-monthly-family-units-sector-fy13-fy18.pdf
(last visited May 10, 2019)
See
also U.S. Border Patrol Southwest Border Apprehensions by Sector Fiscal Year 2019 at
https://www.cbp.gov/newsroom/stats/sw-border-migration/usbp-sw-border-apprehensions#
(last visited August 5, 2019)
See
also Southwest Border Migration FY 2019 at
https://www.cbp.gov/newsroom/stats/sw-border-migration
(last visited August 5, 2019).

11
OFO did not start tracking family units until March of 2016.

DHS mounted a multi-pronged response to this situation. As one part of this response, DHS placed more families at the one existing FRC, stood up another FRC (which was later closed

down), and oversaw the development of additional FRCs to detain family units together, in a safe and humane environment, during the pendency of their immigration proceedings, which typically involved expedited removal. Although it is difficult to definitively prove a causal link given the many factors that influence migration, DHS's assessment is that this change was one factor that helped stem the border crisis, as it correlated with a significant drop in family migration: Family unit apprehensions on the Southwest Border dropped from 68,445 in FY 2014 to 39,838 in FY 2015.

Although the border crisis prompted DHS to increase its use of FRCs to hold family units together, DHS quickly faced legal challenges asserting that the FSA applied to accompanied minors and that family detention did not comply with the provisions of the FSA. In July 2015, the
Flores
court rejected the Government's position that the FRCs comply with the FSA and declined to modify the FSA to allow DHS to address this significant influx of family units crossing the border and permit family detention.
See Flores
v.
Lynch,
828 F.3d 898, 909-10 (9th Cir. 2016). The Government had explained to the district court that declining to modify the FSA as requested would “mak[e] it impossible for ICE to house families at ICE [FRCs], and to instead require ICE to separate accompanied children from their parents or legal guardians.”
Flores
v.
Lynch,
No. 85-4544, Defendants' Opposition to Motion to Enforce, ECF 121 at 17 (C.D. Cal. Feb. 27, 2015).

When the courts then found the FSA to apply to accompanied minors—an interpretation with which the Government continues to disagree—the agencies faced new practical problems. Indeed, the government has never understood the FSA to apply to accompanied minors. The Supreme Court in
Flores
understood the case to involve “the constitutionality of institutional custody over unaccompanied juveniles.” 507 U.S. at 305;
see id.
at 315 (“[T]he INS policy now in place is a reasonable response to the difficult problems presented when the Service arrests unaccompanied alien juveniles.”).

The FSA in turn has FSA has no language directly addressing the specific issues raised by custody over families as a unit. The FSA explains that the settlement arose from a lawsuit about “detention and release of
unaccompanied
minors,” FSA paragraph 1 (emphasis added); it provides for the INS to make efforts at releasing a minor “to” a parent or guardian, not “with” a parent or guardian, FSA paragraph 14, suggesting an underlying assumption that the minor is not already together with the parent as a family; the FSA indicates that the purpose of the release “to” another relative is to promote “family reunification,” which makes little sense if the family is already together as a unit,
id.;
the FSA generally requires custody to occur in a facility “licensed by an appropriate State agency,” FSA paragraph 6, but no State in the country had at the time an agency that would license facilities for holding families together in custody as a unit. The government used FRCs for more than 10 years—from 2001, when it first used the Berks facility to hold families in custody until 2014—with the class counsel's knowledge, and without the government ever considering that the FSA applied to minors accompanied by their parents.

The FSA requires DHS to transfer minors to a non-secure, licensed facility “as expeditiously as possible,” and further provides that a “licensed” facility is one that is “licensed by a State agency.” FSA paragraphs 6, 12(A). That prompted significant and ongoing litigation regarding the ability to obtain state licensing of FRCs, as many States did not have, and have not succeeded in putting in place, licensing schemes governing facilities that hold family units together. That litigation severely limited the ability to maintain detention of families together. Those limitations correlated with a sharp increase in family migration: The number of family units apprehended by CBP between the ports of entry along the Southwest Border again spiked—from 39,838 in FY 2015 to the highest level ever up until that time, 77,674 in FY 2016. In FY 2016, CBP also found 26,062 family units inadmissible at ports of entry along the Southwest Border. The number of such apprehensions and individuals found inadmissible along the Southwest Border has continued to rise, and reached 107,212 apprehensions between the ports of entry, and 53,901 family units found inadmissible at ports of entry in FY 2018. In the first nine months of FY 2019 (through June 30, 2019), the number of family unit apprehensions has already reached 390,308, a 469 percent increase from the same period in FY 2018. During this same time period, 37,573 family units have been found inadmissible at ports of entry along the Southwest Border.
12

12

See
Southwest Border Migration FY 2019,
https://www.cbp.gov/newsroom/stats/sw-border-migration.

As long as the licensing must come from a State specifically (rather than from the Federal Government), DHS's ability to effectively use family detention is unduly limited. A Federal program (especially immigration enforcement) that the Constitution and Congress commit to Federal authority and discretion should not depend on state licensing. And that is particularly true when a well-established state-licensing process does not already exist and the FSA, as the Ninth Circuit pointed out, “gave inadequate attention to some problems of accompanied minors” and “does not contain standards related to the detention of . . . family units.”
Flores,
828 F.3d at 906. In order to avoid separating family units, DHS must release adult family members in cases where detention would otherwise be mandatory and DHS determines parole is not appropriate, or in cases where DHS and/or immigration courts believe detention of the parent is needed to ensure appearance at future removal proceedings or to prevent danger to the community.
13

Because of ongoing litigation concerning state licensure for FRCs, ICE must release minors who are a part of family units as expeditiously as possible, which means that ICE rarely is able to hold family units for longer than approximately 20 days. As such, of the 107,212 FY 2018 family unit apprehensions at the Southwest border, 45,755 individuals were booked into FRCs in FY 2018. The result is that many families are released in the interior of the United States, even in cases when DHS or immigration courts deem detention is needed to effectuate removal proceedings or even when there are safety concerns.

13
Current regulations address parole, including for juveniles in custody as well as parole for aliens subject to expedited removal.
See
8 CFR 212.5(b)(3) (parole for juveniles); 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (limiting parole for those in expedited removal proceedings). While DHS is amending § 212.5(b) as a part of this regulation, this regulation is not intended to address or alter the standards contained in § 212.5(b) or § 235.3(b). To the extent that paragraph 14 of the FSA has been interpreted to require application of the juvenile parole regulation to release during expedited removal proceedings,
see Flores
v.
Sessions,
Order at 23-27 (June 27, 2017), this regulation is intended to permit detention in FRCs in lieu of release (except where parole is appropriate under 8 CFR 235.3(b)(2)(iii) or (b)(4)(ii)) in order to avoid the need to separate or release families in these circumstances.

According to EOIR, 43 percent of cases completed from January 1, 2014 through March 31, 2019 involving family unit aliens who were in detention, released, failed to appear at the required proceedings, and were issued final orders of removal
in absentia.
14

14
Of the 5,326 completed cases from January 1, 2014 through March 31, 2019 that started at an FRC,

2,281 were issued final orders of removal
in absentia.

ER23AU19.001

Table 3 below reports DHS Office of Immigration Statistics (OIS) data on
in absentia
rates for aliens encountered at the Southwest Border by year of their initial enforcement encounter. For each of these initial encounter cohorts, the table reports on the number of aliens referred to EOIR, the number of EOIR cases completed (
i.e.
excluding cases that are still in proceedings), and the number of EOIR in absentia orders issued, as of the end of FY 2018. The bottom rows of the table show both the
in absentia
rate as a percentage of all referrals to EOIR, and as a percentage of all completed cases. DHS reports both statistics because DHS is aware that both indicators are biased indicators of the “true” rate at which people are ordered removed
in absentia. In absentia
as a percent of all completed cases is biased upward (
i.e.,
tends to overestimate the true
in absentia
rate), especially for more recent fiscal years, because
in absentia
cases may take less time to complete cases with other types of final outcomes. The
in absentia
rates for people encountered in earlier years, such as FY 2014 and FY 2015, may be somewhat more meaningful than for those encountered more recently because the longer-standing cases have been working their way through proceedings for four to five years; but, more than half the cases remain in proceedings even for this longer-standing group. Viewing
in absentia
as a share of all referrals to EOIR is not affected by that bias. However, this statistic is biased downward (
i.e.,
tends to be lower than the true in absentia rate), because it does not account for cases still in proceedings—again, more than half the cases—that may eventually result in an
in absentia
order. The “true”
in absentia
rate for encounters in any given fiscal year can't be observed until all the cases from that year are completed, at which time the two statistics will be the same number. As seen in Table 3, DHS OIS has found that when looking at all family unit aliens encountered at the Southwest Border from FY 2014 through FY 2018, the
in absentia
rate for completed cases as of the end of FY 2018 was

66 percent.

15
DHS OIS estimates the
in absentia
rate by linking DHS and DOJ/EOIR records at the person-level as part of OIS' Enforcement Lifecycle analysis. Family unit data are available for USBP apprehensions beginning in FY 2014, and available for OFO encounters with inadmissible aliens beginning in FY 2016. Family unit data are available for USBP apprehensions beginning in FY 2014, and available for OFO encounters with inadmissible aliens beginning in FY 2016. DHS referrals to EOIR include CBP Notices to Appear (NTAs), ERO NTAs, positive USCIS fear determinations and negative USCIS fear determinations vacated by EOIR, and any other DHS NTAs reported by EOIR. Completed EOIR cases include EOIR removal orders/grants of voluntary departure and grants of relief.

ER23AU19.002

Based on the similar timeframes of the two rates from EOIR and DHS OIS, DHS can assume that family units who did not start their cases in FRCs have a higher
in absentia
rate. However, this does not account for other factors that may or may not have an impact the likelihood of appearance, such as enrollment in a monitoring program or

access to representation. However, DHS still concludes that the
in absentia
rates of family units even who started their cases at an FRC is a serious concern, and flight risk can warrant detention throughout proceedings. Statistics that purport to show lower
in absentia
rates often count all court appearances, rather than only completed cases, thus counting multiple times aliens who appear for multiple court appearances and often not counting the time when being absent is most likely—at hearings where proceedings are completed and likely to result in a removal order. Addressing DHS's ability to effectively use family detention through an alternative licensing that will help ensure appropriate standards of care consistent with the terms of the FSA would enable DHS to ensure family units who are identified as flight risks appear at removal proceedings and for removal following the issuance of a final order.

ICE's mission is to remove individuals subject to final orders of removal. DHS OIS data show that, as of the end of FY 2018, aliens encountered from FY 2014 through FY 2018 and detained at the time a final order of removal was issued, were removed at a much higher rate than those not detained: 97 percent of aliens detained as compared to just over 18 percent of individuals not detained.
See
Table 4 below. The table reports for all aliens (not just family units) who were encountered by DHS from FY 2014 through FY 2018 and ordered removed, if they have been removed or not removed as of the end of FY 2018, and if they were detained or not detained at the time the removal order was issued. As shown in the table, detaining a person until the time of removal correlates strongly with the likelihood that removal will be effectuated. ICE has finite resources and bed space at FRCs and this rule would provide DHS the ability to use its detention authority and existing space at FRCs where lawful and appropriate to effectuate removal of family units determined not to be eligible for relief.

16
DHS OIS.

ER23AU19.003

As described above, there have been several important changes in law and circumstance since the FSA was executed: (1) A significantly changed agency structure addressing the care and custody of juveniles, including the development of FRCs that can provide appropriate treatment for minors while allowing them to be held together with their families; (2) a new statutory framework that governs the treatment of UACs; (3) significant increases in the number of families and UACs crossing the border since 1997, thus affecting immigration enforcement priorities and national security; (4) a novel judicial interpretation that the FSA applies to accompanied minors; and (5) further recognition of the importance of keeping families together during immigration proceedings when appropriate, and the legal and practical implications of not providing uniform proceedings for family units in these circumstances. The Departments have thus determined that it is necessary to put into place regulations that will be consistent with the relevant and substantive terms of the FSA regarding the conditions for custodial settings for minors, but, through Federal licensing of FRCs, will provide the flexibility necessary to protect the public safety, enforce the immigration laws, and maintain family unity given current challenges that did not exist when the FSA was executed. This rule provides DHS the option of keeping together families who must or should be detained at appropriately licensed FRCs for the time needed to complete immigration proceedings, subject to the sound implementation of existing statutes and regulations governing release on parole or bond.

2. Purpose of the Regulations

A principal purpose of this action is to 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, and taking into account the agencies' expertise in addressing current factual circumstances, thereby terminating the FSA, as provided for in FSA paragraph 40 as well as general principles governing termination of settlements or decrees in institutional litigation. As it accounts for circumstances that have changed since the FSA was entered into and agency expertise in addressing current circumstances, the rule does not always track the literal text of the FSA, but provides similar substantive protections to juveniles. For example, the rule allows for detention of families together in federally-licensed programs (rather than facilities licensed specifically by a State). States generally do not have licensing schemes that apply to FRCs. Thus, the terms of the FSA currently impose a limitation on DHS's ability to detain family units together in an FRC during their immigration proceedings, consistent with applicable law. The Federal licensing process in turn will provide similar substantive protections regarding the conditions of such facilities, and thus implement the underlying purpose of the state-licensing requirement. These changes will allow for release in a manner consistent with the INA and applicable regulations. The rule also provides for third-party monitoring, and for publicizing the results of those inspections, to ensure that conditions

on the ground in FRCs satisfy those standards.

This rule conforms to the FSA's guiding principle that the Government treats, and shall continue to treat, all juveniles in its custody with dignity, respect, and special concern for their particular vulnerability as minors.

The current DHS regulations on the detention and release of aliens under the age of 18 found at 8 CFR 236.3 have not been substantively updated since their promulgation in 1988.
17

DHS therefore is revising 8 CFR 236.3 to promulgate the relevant and substantive terms of the FSA as regulations. In addition, there are currently no HHS regulations on this topic. HHS is promulgating a new 45 CFR part 410 for the same reason.

17

See
Detention and Release of Juveniles, 53 FR 17449 (May 17, 1988). When published as a final rule, the provisions applying to the detention and release of juveniles were originally placed in 8 CFR 242.24. After Congress passed IIRIRA, the former INS published a final rule updating several immigration-related provisions of the CFR and moved these provisions from § 242.24 of title 8 to § 236.3.
See
Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Proceedings, 62 FR 10312 (Mar. 6, 1997).

As noted, these regulations implement the relevant and substantive terms of the FSA and related statutory provisions. Separate from the FSA, DHS has over time developed various policies and other sub-regulatory documents that address issues related to DHS custody of minor aliens and UACs.
18

In considering these regulations, DHS reviewed such policies, and determined that these regulations are compatible with them. Current policies on the custody, apprehension, and transportation of minors and UACs generally would not, therefore, need to be altered to bring them into conformity with this rule. This rule is not, however, intended to displace or otherwise codify such policies and procedures. Similarly, the rule is consistent with and does not abrogate existing ORR policies and procedures; nor does it necessitate any alteration in those policies and procedures, except in regards to the transfer of bond redetermination hearings from immigration courts to the HHS hearing officer as found at 8 CFR 410.810. Again, however, the idea is for the UAC to enjoy the same basic substantive protection (review of the custody determination), but simply to shift review from DOJ to HHS given that Congress has made HHS responsible for custody and care of UACs.

18

See, e.g.,
ICE, Family Residential Standards,
https://www.ice.gov/detention-standards/family-residential
(last visited May 1, 2019); CBP, National Standards on Transport, Escort, Detention, and Search (Oct. 2015),
https://www.cbp.gov/sites/default/files/assets/documents/2017-Sep/CBP%20TEDS%20Policy%20Oct2015.pdf
(last visited May 1, 2019).

Finally, this rule excludes those provisions of the FSA that are relevant solely by virtue of the FSA's existence as a settlement agreement. For instance, the FSA contains a number of provisions that relate specifically to class counsel and the supervising court with respect to the Departments' compliance with the FSA. Following termination of the FSA, such provisions will no longer be necessary, because compliance with the published regulations will replace compliance with the settlement agreement. As a result, they are not included in this rule.
19

19
For instance, paragraphs 32(A), (B), and (D), and 33 of the FSA grants
Flores
class counsel special access to covered minors and UACs and to certain facilities that hold such minors and UACs; it is unnecessary to codify these provisions in regulation. Similarly, paragraphs 29 to 31 include special reporting requirements with respect to class counsel and the supervising court; reporting to these entities would be unnecessary following termination of the FSA.

D. Severability

To the extent that any portion of this final rule is declared invalid by a court, the Departments intend 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. Thus, even if a court decision invalidating a portion of this final rule results in a partial reversion to the current regulations or to the statutory language itself, the Departments intend that the rest of the final rule continue to operate, if at all possible in tandem with the reverted provisions.

IV. Summary of Changes in the Final Rule

Following careful consideration of public comments received and relevant data provided by stakeholders, DHS and HHS have amended the regulatory text proposed in the NPRM published in the
Federal Register
on September 7, 2018. As discussed elsewhere in this preamble, these changes in this final rule include the following:

• Section 212.5(b) now considers that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention.

• Section 236.3(b)(2) defines
Special Needs Minor
and includes the term “retardation,” which commenters noted was an outdated term and should be removed. DHS agrees to replace that term with “intellectual disability.” HHS likewise agrees to use “intellectual disability” in the corresponding definition of
Special Needs Minor
at § 410.101.

• Section 236.3(b)(9), which defines
Licensed Facility,
requires DHS to employ third parties to conduct audits of FRCs to ensure compliance with family residential standards. Commenters stated that DHS has previously not shared the results of such audits. While ICE has publicly posted the results of facility inspection reports submitted by third-party contractors since May 2018, these posts have not included results of FRC inspections. To directly address the comment, the phrase “DHS will make the results of these audits publicly available” is added to the definition. DHS also adds to the final rule that the audits of licensed facilities will take place at the opening of a facility and take place on an ongoing basis.

• In § 236.3(b)(11), which defines a
Non-Secure Facility,
DHS agrees with commenters that a non-secure facility means a facility that meets the definition of non-secure under state law in the State in which the facility is located, as was intended by the language of the proposed rule, and is adding “under state law” to the definition to clarify this point.

• In § 236.3(f)(1) regarding transfer of UACs from DHS to HHS, DHS agrees to amend the proposed regulatory text to clarify that a UAC from a contiguous country who is not permitted to withdraw his or her application for admission, or if no determination can be made within 48 hours of apprehension or encounter, will be immediately transferred to HHS. The Departments believe that commenters misunderstood the intent of the regulatory text due to imprecise wording, which is now clarified by deleting “subject to the terms of” and replacing with “processed in accordance with.”

• In § 236.3(f)(4)(i) regarding the transportation of UACs, DHS is amending the regulatory text to make it clear that, as a general matter, UACs are not transported with unrelated detained adults. The two situations described in the regulatory text are limited exceptions to this general rule. DHS is adding the specific reference to unrelated “detained” adults, for clarity.

• In § 236.3(g)(1)(i) regarding DHS procedures in the apprehension and processing of minors or UACs, Notice of Rights and Request for Disposition, DHS is removing the qualification that the notice will be read and explained when the minor or UAC is believed to be less than 14 years of age or is unable to

comprehend the information contained in the Form I-770, and is clarifying that the notice will be provided, read, or explained to all minors and UACs in a language and manner that they understand. DHS is making this change to avoid confusion related to DHS's legal obligations regarding this notice, while still acknowledging that it may be necessary to implement slightly different procedures depending on the particular minor or UAC's age and other characteristics.

• In § 236.3(g)(2)(i) regarding DHS custodial care immediately following apprehension, the proposed regulatory text stated that UACs “may be housed with an unrelated adult for no more than 24 hours except in the case of an emergency or exigent circumstances.” Commenters objected to the use of the term “exigent circumstances” as it was not defined. DHS agrees to delete the term “exigent circumstances” as it is redundant to “emergency.”

• In § 236.3(i)(4), commenters requested additional language tracking the verbatim text of FSA Ex. 1. In response to these comments, DHS added language of FSA Ex. 1 paragraph.

• Section 236.3(j) and (n) now consider that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention and is otherwise available to provide care and physical custody.

• DHS has added a new § 236.3(j)(4) to state clearly that the Department will consider parole for all minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) and that paroling such minors who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason. DHS will also consider aggregate and historical data, officer experience, statistical information, or any other probative information in determining the detention of a minor.

• Section 236.3(o) is amended to clarify that the Juvenile Coordinator's duty to collect statistics is in addition to the requirement to monitor compliance with the terms of the regulations.

• In § 410.101, HHS agrees to amend the definition of “special needs minor,” replacing the term “retardation” with “intellectual disability.”

• In § 410.201(e), HHS agrees with multiple legal advocacy organizations' analysis that the FSA and TVPRA run in contradiction to each other in placing UACs in secure facilities based solely on the lack of appropriate licensed program availability; therefore, ORR is striking the following clause from this section: “. . . or a State or county juvenile detention facility.”

• In § 410.202, in response to commenters' concerns, HHS clarifies that ORR places UACs in licensed programs except if a reasonable person would conclude, “based on the totality of the evidence and in accordance with subpart G” that the UAC is an adult.

• In § 410.203, in response to commenters' concerns, HHS clarifies that it reviews placements of UACs in secure facilities at least monthly and that the rule does not abrogate any requirements that ORR place UACs in the least restrictive setting appropriate to their age and any special needs.

• In § 410.302(a), in response to commenters' concerns, HHS clarifies that the licensed program providing care for a UAC shall make continual efforts at family reunification as long as the UAC is in the care of the licensed program.

• In § 410.600(a) regarding transfer of UAC, the proposed regulatory text states that, “ORR takes all necessary precautions for the protection of UACs during transportation with adults.” However, as ORR does not transport adult aliens, HHS has decided to strike this language from the final rule.

• In § 410.700 HHS is adding the “totality of the evidence and circumstances” for age determinations standards to mirror the DHS standard in compliance with statute.
See
8 U.S.C. 1232(b)(4).

• In § 410.810(b), HHS declines to place the burden of evidence in the independent internal custody hearings on itself; however, it has modified the rule text to indicate that HHS does bear the initial burden of production supporting its determination that a UAC would pose a danger or flight risk if discharged from HHS' care. The UAC must bear the burden of persuading the independent hearing officer to overrule the government's position, under a preponderance of the evidence standard.

V. Discussion of Public Comments and Responses

A. Section-by-Section Discussion of the DHS Proposed Rule, Public Comments, and the Final Rule

1. Parole (§ 212.5)

Summary of Proposed Rule

In § 212.5(b), DHS proposed to remove the cross-referenc

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2019-17927. Public record. Not legal advice.