Unaccompanied Children Program Foundational Rule

Federal RegisterOct 4, 2023

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 410

RIN 0970-AC93

Unaccompanied Children Program Foundational Rule

AGENCY:

Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS).

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

This NPRM proposes to adopt and replace regulations relating to the key aspects of the placement, care, and services provided to unaccompanied children referred to the Office of Refugee Resettlement (ORR), pursuant to ORR's responsibilities for coordinating and implementing the care and placement of unaccompanied children who are in Federal custody by reason of their immigration status under the Homeland Security Act of 2002 (HSA) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). ORR intends to promulgate a final rule that would establish a foundation for the Unaccompanied Children Program (UC Program) that is consistent with its statutory duties, for the benefit of unaccompanied children and to enhance public transparency as to the policies governing the operation of the UC Program. ORR also proposes this rule for the purpose of implementing the 1997

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Settlement Agreement (FSA), which remains in effect as a court-ordered consent decree to which the UC Program is subject. As modified in 2001, the FSA provides that it will terminate forty-five days after publication of final regulations implementing the agreement. ORR anticipates that any termination of the settlement based on the adoption of this proposal as a final rule would only be effective for those provisions that affect ORR and would not terminate provisions of the FSA for other Federal Government agencies.

DATES:

Consideration will be given to comments on this NPRM on or before December 4, 2023.

ADDRESSES:

You may send comments, identified by Regulatory Information Number (RIN), by any of the following methods:

•

Federal eRulemaking Portal: https://www.regulations.gov.

Follow the instructions for submitting comments.

•

Email: UCPolicy-RegulatoryAffairs@acf.hhs.gov.

Include the RIN in the subject line of the message.

Instructions:

All submissions received must include the agency name and RIN for this rulemaking. All comments received will be posted without change to

www.regulations.gov,

including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the

SUPPLEMENTARY INFORMATION

section of this document.

FOR FURTHER INFORMATION CONTACT:

Toby Biswas, Director of Policy, Unaccompanied Children Program, Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services, Washington, DC, (202) 205-4440 or

UCPolicy-RegulatoryAffairs@acf.hhs.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

A. Submitting Comments

B. Viewing Comments and Documents

C. Privacy Act

II. Table of Abbreviations

III. Executive Summary

A. Purpose of the Proposed Rule

B. Summary of the Major Provisions

C. Summary of Costs and Benefits

IV. Background and Purpose

A. The UC Program

B. History and Statutory Structure

C. Statutory and Regulatory Authority

D. Basis and Purpose of Regulatory Action

E. Severability

V. Discussion of Elements of the Proposed Rule

VI. Collection of Information Requirements

VII. Regulatory Impact Analysis

A. Economic Analysis

B. Regulatory Flexibility Analysis

C. Unfunded Mandates Reform Act

D. Paperwork Reduction Act

E. Executive Order 13132: Federalism

F. Executive Order 12988: Civil Justice Reform

VIII. Assessment of Federal Regulation and Policies on Families

IX. Alternatives Considered

I. Public Participation

We encourage all interested parties to participate in this rulemaking by submitting written comments, views, and data on all aspects of this proposed rule. ORR also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. All comments received will be posted, without change, to

https://www.regulations.gov

as part of the public record and will include any personal or commercial information you provide.

A. Submitting Comments

Comments that will provide the most assistance to ORR will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. If you submit comments, please indicate the specific section of this document to which each comment applies and provide a reason for each suggestion or recommendation. You may submit your comments and materials online or by email, but please use only one of these means. If you submit a comment online via

https://www.regulations.gov,

it will be considered received when it is received at the Docket Management Facility.

Instructions: To submit your comments online, go to

https://www.regulations.gov

and insert “0970-AC93” in the “Search” box. Click on the “Comment Now!” box and input your comment in the text box provided. Click the “Continue” box, and if you are satisfied with your comment, follow the prompts to submit it.

All comments received by the accepted methods and due date specified above may be posted without change to content to

https://www.regulations.gov,

which may include personal information provided about the commenter, and such posting may occur after the closing of the comment period. However, the Department may redact certain content from comments before posting, including threatening language, hate speech, profanity, graphic images, or individually identifiable information about a third-party individual other than the commenter.

For additional information, please read the “Privacy and Security Notice” that is available via the link in the footer of

https://www.regulations.gov.

ORR will consider all comments and materials received during the comment period and may change this rule based on your comments.

B. Viewing Comments and Documents

Docket: To view comments, as well as documents mentioned in this preamble as being available in the docket, go to

https://www.regulations.gov

and insert “0970-AC93” in the “Search” box. Click on the “Open Docket Folder,” and you can click on “View Comment” or “View All” under the “Comments” section of the page. Individuals without internet access can make alternate arrangements for viewing comments and documents related to this rulemaking by contacting ORR through the

FOR

FURTHER INFORMATION CONTACT

section above. You may sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

C. Privacy Act

As stated in the Submitting Comments section above, please be aware that anyone can search the electronic form of comments received into any dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

II. Table of Abbreviations

ACF—Administration for Children and Families

DHS—U.S. Department of Homeland Security

DOJ—U.S. Department of Justice

EOIR—Executive Office for Immigration Review

FSA—

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Settlement Agreement

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

HSA—Homeland Security Act of 2002

INS—Immigration and Naturalization Service

OMB—Office of Management and Budget

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

TVPRA—William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

UC Program—Unaccompanied Children Program

III. Executive Summary

A. Purpose of the Proposed Rule

In this notice of proposed rulemaking (NPRM), the Office of Refugee Resettlement (ORR) proposes to replace and supersede regulations at 45 CFR part 410, and to codify policies and requirements concerning the placement, care, and services provided to unaccompanied children in Federal custody by reason of their immigration status and referred to ORR. This NPRM is based on statutory authorities and requirements provided under the Homeland Security Act of 2002 (HSA)

and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA),

and would implement those terms of the 1997

Flores

Settlement Agreement (FSA) that create responsibilities for HHS and ORR. These proposed regulations are published under the authority granted to the Secretary of Health and Human Services (HHS) by the TVPRA

and to the Director of ORR by the HSA.

The proposed regulations would implement requirements that are consistent with the substantive protections provided by, and the underlying purpose of, the FSA with regard to unaccompanied children who are placed in ORR care. The proposed requirements would apply to all care provider facilities, including both standard programs and non-standard programs, as defined below, unless otherwise specified. ORR believes that this proposed rule is warranted at this time in order to codify a uniform set of standards and procedures that will help to ensure the safety and well-being of unaccompanied children in ORR care, implement the substantive terms of the FSA, and enhance public transparency as to the policies governing the operation of the Unaccompanied Children Program (UC Program).

Public Law 107-296, sec. 462, 116 Stat. 2135, 2202.

Public Law 110-457, title II, subtitle D, 122 Stat. 5044.

8 U.S.C. 1232.

6 U.S.C. 279.

B. Summary of the Major Provisions

This proposed rule would codify ORR policies and requirements for the placement, care, and services provided to unaccompanied children in Federal custody by reason of their immigration status and referred to ORR, as discussed in section V. of this proposed rule. In subpart A, ORR proposes to define terms that are relevant to the criteria and requirements in this proposed rule and to codify the general principles that apply to the care and placement of unaccompanied children in ORR care. In subpart B, ORR proposes the criteria and requirements that apply with respect to placement of unaccompanied children at ORR care provider facilities, including specific criteria for placement at particular types of ORR care provider facilities. ORR proposes, in subpart C, policies and procedures regarding the release of an unaccompanied child from ORR care to a vetted and approved sponsor. In subpart D, ORR proposes the standards and services that it must meet and provide to unaccompanied children in ORR care provider facilities. ORR proposes requirements for the safe transportation of each unaccompanied child while in ORR's care in subpart E of this proposed rule. ORR proposes, in subpart F, guidelines for care provider facilities to report information such that ORR may compile and maintain statistical information and other data on unaccompanied children. In subpart G, ORR proposes to codify requirements and policies regarding the transfer of unaccompanied children in ORR care. Subpart H discusses proposed guidelines for determining the age of an individual in ORR care. ORR proposes, in subpart I, to codify guidelines for emergency or influx facilities, which are ORR facilities that are opened during a time of emergency or influx. In subpart J, ORR proposes guidelines and requirements regarding the availability of administrative review of ORR decisions. Finally, in subpart K, ORR proposes to establish an independent ombud's office that would promote important protections for all children in ORR care.

C. Summary of Costs and Benefits

This rule proposes to codify current ORR requirements for compliance with the FSA, court orders, and statutes, as well as certain requirements under existing ORR policy and cooperative agreements. As discussed in section VII.A of this proposed rule, ORR expects this proposed rule to impose limited additional costs, including those costs incurred by the Federal Government to increase the provision of legal services to unaccompanied children in limited circumstances, supplement costs incurred by grant recipients in order to comply with the proposed requirements (see below), establish a risk determination hearing process, and also to establish the Unaccompanied Children Office of the Ombuds (UC Office of the Ombuds) and other administrative staffing needs. In proposed subpart D at § 410.1309, ORR is proposing, to the greatest extent practicable, subject to available resources as determined by ORR, and consistent with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), that all unaccompanied children who are or have been in ORR care would have access to legal advice and representation in immigration legal proceedings or matters funded by ORR. In proposed subpart J, ORR proposes the establishment of a risk determination hearing process. In proposed subpart K, ORR discusses its proposal to establish an Office of the Ombuds for the UC Program. In addition to the Ombuds position itself, ORR anticipates the need for support staff in the office. ORR estimates the annual cost of establishing and maintaining this office would be $1,718,529 which includes the cost of 10 full-time personnel, as discussed in further detail in VII.A.2 of this proposed rule.

ORR also notes that all care provider facilities and service providers discussed in this proposed rule are recipients of Federal awards (

e.g.,

cooperative agreements or contracts), and the costs of maintaining compliance with these proposed requirements are allowable costs under the Basic Considerations for cost provisions at 45

CFR 75.403 through 75.405,

in that the costs are reasonable, necessary, ordinary, treated consistently, and are allocable to the award. If there are additional costs associated with the policies discussed in this proposed rule that were not budgeted, and cannot be absorbed within existing budgets, the recipient would be able to submit a request for supplemental funds to cover the costs.

See also

45 CFR 75.101.

IV. Background and Purpose

A. The UC Program

The purpose of this proposed rule is to codify policies, standards, and protections for the UC Program, consistent with the HSA and TVPRA, as well as with the substantive requirements of the FSA as they pertain to ORR. On March 1, 2003, section 462 of the HSA transferred responsibilities for the care and placement of unaccompanied children from the Commissioner of the Immigration and Naturalization Service to the Director of ORR. The HSA defines unaccompanied children and establishes ORR responsibilities with respect to unaccompanied children. The HSA defines “unaccompanied alien child,” a term ORR uses synonymously with “unaccompanied child,” as “a child who—(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and (C) with respect to whom—(i) there is no parent or legal guardian in the United States; or (ii) no parent or legal guardian in the United States is available to provide care and physical custody.”

The TVPRA, meanwhile, added requirements for other executive branch departments and agencies to expeditiously transfer unaccompanied children in their custody to ORR's care and custody once identified, and requires ORR to ensure unaccompanied children are protected from human trafficking and other crimes. Both statutes are described in further detail in the paragraphs below. Pursuant to these statutory requirements, the UC Program provides a safe and appropriate environment to children and youth who come to the United States without immigration status and who have no parent or legal guardian in the United States or one available in the United States to provide for their care and physical custody. In most cases, unaccompanied children enter ORR custody via transfer from DHS. When DHS immigration officials with an unaccompanied child in custody transfer that child to ORR, ORR promptly places the unaccompanied child in the least restrictive setting that is in the best interests of the child, taking into consideration danger to self, danger to the community, and risk of flight. ORR considers the unique nature of each child's situation, the best interest of the child, and child welfare principles when making placement, clinical, case management, and release decisions. To carry out its statutory responsibilities for the care and custody of unaccompanied children as established in the TVPRA and the HSA, and consistent with its responsibilities under the FSA, ORR currently funds residential care providers that provide temporary housing and other services to unaccompanied children in ORR custody. These care providers have been primarily state-licensed and must also meet ORR requirements to ensure a high-quality level of care. These multiple providers create a continuum of care for children, including placements in individual and group homes, shelter, heightened supervision, and secure facilities, and residential treatment centers. While under ORR care, unaccompanied children are provided with classroom education, healthcare, socialization/recreation, mental health services, access to religious and legal services, and case management. Unaccompanied children generally remain in ORR custody until they are released to a parent or other sponsor in the United States, are repatriated to their home country, obtain legal status, or otherwise no longer meet the statutory definition of unaccompanied children (

e.g.,

turn 18). In accordance with current ORR policy, all children who turn 18 years old while in ORR's care and custody are transferred to DHS for a custody determination. Once transferred to DHS, that agency considers placement in the least restrictive setting available after taking into account the individual's danger to self, danger to the community, and risk of flight and in accordance with all applicable legal authority.

6 U.S.C. 279(g)(2).

B. History and Statutory Structure

1. HSA and TVPRA

The HSA abolished the former Immigration and Naturalization Service (INS) and created DHS. The HSA transferred many of the immigration functions from the INS to DHS, but it transferred functions under the immigration laws with respect to the care and custody of unaccompanied children to ORR.

The HSA makes the ORR Director responsible for a number of functions with respect to unaccompanied children, including coordinating and implementing their care and placement, ensuring that unaccompanied children's interests are considered in actions and decisions relating to their care, making and implementing placement determinations, implementing policies with respect to the care and placement of children, and overseeing the infrastructure and personnel of facilities in which unaccompanied children reside.

The HSA also states that ORR shall not release unaccompanied children from custody upon their own recognizance, and requires ORR to consult with appropriate juvenile justice professionals and certain Federal agencies in relation to placement determinations to ensure that unaccompanied children are likely to appear at all hearings and proceedings in which they are involved; are protected from smugglers, traffickers, and others who might seek to victimize or otherwise engage them in criminal, harmful, or exploitative activity; and are placed in a setting in which they are not likely to pose a danger to themselves or others.

ORR notes that under its current policies, such consultation is subject to privacy protections for unaccompanied children. For example, ORR restricts sharing certain case-specific information with the Executive Office for Immigration Review (EOIR) and DHS that may dissuade a child from seeking legal relief, or that may bias the court's length of continuances. Subject to such protections, ORR provides notification of the placement decisions to U.S. Immigration and Customs Enforcement (ICE) and, if referred by U.S. Customs and Border Protection (CBP), to CBP. ORR provides the following notification information: identifying information of the unaccompanied child, ORR care provider name and address, and ORR care provider point of contact (name and telephone number).

6 U.S.C. 279(a).

See

6 U.S.C. 279(b)(1).

6 U.S.C. 279(b)(2).

Memorandum of Agreement Among the Office of Refugee Resettlement of the U.S. Department of Health and Human Services and U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection of the U.S. Department of Homeland Security Regarding Consultation and Information Sharing in Unaccompanied Alien Children Matters (Mar. 11, 2021).

In 2008, Congress passed the TVPRA, which further elaborated duties with respect to the care and custody of unaccompanied children. The TVPRA provides that, consistent with the HSA, the care and custody of all

unaccompanied children, including responsibility for their detention, where appropriate, is the responsibility of the Secretary of HHS, except as otherwise specified. The TVPRA states that each department or agency of the Federal Government must notify HHS within 48 hours upon the apprehension or discovery of an unaccompanied child or any claim or suspicion that a non-citizen individual in the custody of such department is under the age of 18.

The TVPRA states further that, except in exceptional circumstances, any department or agency of the Federal Government that has an unaccompanied child in its custody shall transfer the custody of such child to HHS not later than 72 hours after determining such child is an unaccompanied child. Furthermore, the TVPRA requires the Secretary of HHS to establish policies and programs to ensure that unaccompanied children in the United States are protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity.

The TVPRA describes requirements with respect to safe and secure placements for unaccompanied children, safety and suitability assessments of proposed sponsors for unaccompanied children, legal orientation presentations, access to counsel, and child advocates, among other requirements. HHS delegated its authority under the TVPRA to the Assistant Secretary for Children and Families, which then re-delegated the authority to the Director of ORR.

8 U.S.C. 1232(b)(2)

8 U.S.C. 1232(c)(1).

See

Delegation of Authority, 74 FR 14564 (Mar. 31, 2009);

see also

Delegation of Authority, 74 FR 19232 (Apr. 28, 2009).

2. The

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Settlement Agreement Terms and Implementation

On July 11, 1985, four non-citizen children in Immigration and Naturalization Service (INS)

custody filed a class action lawsuit in the U.S. District Court for the Central District of California on behalf of a class of minors detained in the custody of the INS (

Flores

litigation).

At that time, the INS was responsible for the custody of minors entering the United States unaccompanied by a parent or legal guardian. The

Flores

litigation challenged “(a) the [INS] policy to condition juveniles' release on bail on their parents' or legal guardians' surrendering to INS agents for interrogation and deportation; (b) the procedures employed by the INS in imposing a condition on juveniles' bail that their parents' or legal guardians' [sic] surrender to INS agents for interrogation and deportation; and (c) the conditions maintained by the INS in facilities where juveniles are incarcerated.”

The plaintiffs claimed that the INS's release and bond practices and policies violated, among other things, the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), and the Due Process Clause and Equal Protection Guarantee under the Fifth Amendment.

After over ten years of litigation, the U.S. Government and

Flores

plaintiffs entered into the “

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Settlement Agreement” (FSA), which was approved by the district court as a consent decree on January 28, 1997.

As discussed further, below, INS was abolished when the Department of Homeland Security was established in 2002. 6 U.S.C. 291.

See

Complaint for Injunctive and Declaratory Relief, and Relief in the Nature of Mandamus at 2,

Flores

Meese,

No. 85-4544 (C.D. Cal. filed July 11, 1985).

Id. Flores

Compl. at paragraph 1.

See id.

at ¶ 66-69.

See

Stipulated Settlement Agreement,

Flores

Reno,

No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001).

The FSA applies to both unaccompanied children, as defined in the HSA, and to children accompanied by their parents or legal guardians,

but ORR notes that this proposed rule is intended specifically to codify requirements regarding the care of unaccompanied children who have been transferred to the care and custody of ORR. As relevant to ORR, the FSA imposes several substantive requirements for government custody of unaccompanied children, requiring first and foremost that minors be placed in the “least restrictive setting appropriate to the minor's age and special needs,”

and establishing a general policy favoring release of unaccompanied children where it is determined that detention of the unaccompanied child is not required either to secure the child's timely appearance for immigration proceedings or to ensure the unaccompanied child's safety or that of others.

When release is appropriate, the FSA establishes the following order of priority with respect to potential sponsors: a parent, legal guardian, adult relative, or another adult designated by the parent or legal guardian as capable and willing to care for the minor's well-being. If no sponsor is available, an unaccompanied child will be placed at a care provider facility licensed by an appropriate state agency. Under the original terms of the FSA, unaccompanied children who were not released remained in INS custody; currently, under the FSA, unaccompanied children who are not released remain in ORR legal custody and may be transferred or released only under the authority of ORR. The FSA also mandates that any non-citizen child who remains in government custody for removal proceedings is entitled to a bond hearing before an immigration judge, “unless the minor indicates on the Notice of Custody Determination form that he or she refuses such a hearing.”

The FSA contains many other provisions relating to the care of unaccompanied children, including Exhibit 1, which describes the minimum standards required at licensed care provider facilities caring for unaccompanied children.

See Flores

Lynch,

828 F.3d 898 (9th Cir. 2016) (holding that the FSA applies to accompanied minors as well as unaccompanied minors).

Id.

at ¶ 11.

Id.

at ¶¶ 12A, 14.

Id.

at ¶ 24A.

The FSA states that within 120 days of the final district court approval of the agreement, the Government shall initiate action to publish the relevant and substantive terms of this Agreement in regulation.

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.”

Over the subsequent years, that proposed rule was not finalized. The FSA originally included a termination date, but in 2001, the parties agreed to extend the agreement and added a stipulation that terminates the FSA “45 days following defendants' publication of final regulations implementing t[he] Agreement.”

In January 2002, the INS reopened the comment period on the 1998 proposed rule,

but the rulemaking was ultimately terminated. Thus, as a result of the 2001 Stipulation, the FSA has not terminated. The U.S. District Court for the Central District of California has continued to rule on various motions filed in the case and oversee enforcement of the FSA.

Id.

at ¶ 9.

See 63 FR 39759 (July 24, 1998).

Stipulated Settlement Agreement,

Flores

Reno,

No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001), at ¶ 40.

67 FR 1670 (Jan. 14, 2002).

3. The 2019 Final Rule

On September 7, 2018, DHS and HHS issued a joint proposed rule, entitled “Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children” (2018 Proposed Rule).

The purpose of the proposed rule was to implement the substantive terms of the FSA, and thus enable the district court to terminate the

agreement. The rule proposed to adopt provisions that were intended to parallel the relevant substantive terms of the FSA, with some modifications to reflect statutory and operational changes put in place since the FSA was entered into in 1997, along with certain other changes.

A final rule was promulgated on August 23, 2019 (2019 Final Rule), which comprised two sets of regulations: one issued by DHS and the other by HHS. The HHS regulations addressed only the care and custody of unaccompanied children.

The DHS regulations addressed other provisions of the FSA that pertained to DHS, including the requirement that after DHS apprehends unaccompanied children it should transfer them to the custody of HHS.

83 FR 45486 (Sep. 7, 2018).

Id.

Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 FR 44392, 44530-44535 (Aug. 23, 2019).

Id.

at 44526.

After DHS and HHS issued the 2018 Proposed Rule and before the 2019 Final Rule was published, plaintiffs in the

Flores

litigation filed a Motion to Enforce the FSA. The court deferred ruling on the Motion, ordering DHS and HHS to file a notice upon issuance of final regulations, which DHS and HHS did in August 2019. Later that month DHS and HHS also filed a Notice of Termination and Motion in the Alternative to Terminate the FSA, while Plaintiffs filed a supplemental brief addressing their Motion to Enforce. Plaintiffs' Motion to Enforce presented two separate but related issues: (1) whether the 2019 Final Rule would effectively terminate the FSA, and (2) if not, to what extent the Court should enjoin the government from implementing the 2019 Final Rule. On September 27, 2019, approximately one month after the 2019 Final Rule was published, the District Court for the Central District of California entered an Order granting Plaintiffs' Motion to Enforce insofar as it sought an order declaring that the Government failed to terminate the FSA, denied the Government's Motion to Terminate the FSA, and issued a permanent injunction consistent with its order.

Flores

Barr,

407 F. Supp. 3d 909 (C.D. Cal. 2019).

On December 29, 2020, in

Flores

Rosen,

the U.S. Court of Appeals for the Ninth Circuit affirmed in part and reversed in part the District Court Order.

Regarding the HHS regulations applicable to the care and custody of unaccompanied children in the 2018 Proposed Rule, the Court of Appeals held that the regulations were “largely consistent” with the FSA, with two exceptions.

First, it held that the HHS regulation allowing placement of a minor in a secure facility upon an agency determination that the minor is otherwise a danger to self or others broadened the circumstances in which a minor may be placed in a secure facility, and therefore was inconsistent with the FSA. Second, it held that provisions providing a hearing to unaccompanied children held in secure or staff-secure placement only if requested was inconsistent with the FSA's opt-out process for obtaining a bond hearing. Although the Ninth Circuit held that the majority of the HHS regulations could take effect, it also held that the District Court did not abuse its discretion in declining to terminate the portions of the FSA covered by those regulations, noting that the Government moved to “terminate the Agreement in full, not to modify or terminate it in part.”

Consistent with its findings, the Ninth Circuit held that the FSA “therefore remains in effect, notwithstanding the overlapping HHS regulations” and that the Government if it wished could move to terminate those portions of the FSA covered by the valid portions of the HHS regulations.

Flores

Rosen,

984 F. 3d 720 (9th Cir. 2020).

The underlying District Court case also found a third problematic aspect of the HHS regulations, that the HHS regulations were inconsistent with the FSA because they used descriptive, not mandatory, language in implementing certain provisions (

e.g.,

while the FSA requires that minors not released “shall be placed temporarily in a licensed program” whose homes and facilities “shall be non-secure as required under state law,” FSA ¶¶ 6, 19, the regulations stated that “ORR places [unaccompanied minors] into a licensed program” and that “ORR places each [minor] in the least restrictive setting that is in the best interest of the child and appropriate to the [minor's] age and special needs,” 84 FR 44,392, 44,531.). But on appeal, the Ninth Circuit ruled that where the 2019 Final Rule did not use mandatory language, nevertheless “HHS and ORR are bound by and must comply with the descriptive language in the HHS regulations as equivalent to the mandatory requirements in the Agreement. So interpreted, the descriptive language in the regulations is consistent with the Agreement.”

Flores

Rosen,

984 F.3d 720, 731 (9th Cir. 2020).

984 F.3d 720, 737 (9th Cir. 2020).

Id.

With respect to the DHS portions of the 2019 Final Rule, the Ninth Circuit held that some of the DHS regulations regarding initial apprehension and detention were consistent with the FSA and could take effect, but that the remaining DHS regulations were inconsistent with the FSA and the district court properly enjoined them and the inconsistent HHS regulations from taking effect.

See id.

at 744.

Separately, a group of states brought litigation in the District Court for the Central District of California seeking to enjoin the government from implementing the 2019 Final Rule (

California

Mayorkas

), based on other grounds including the Administrative Procedure Act.

The court stayed the case, given the related litigation brought by

Flores

plaintiffs, which culminated in the Ninth Circuit decision in

Flores

Rosen.

After that decision, the plaintiffs in

California

Mayorkas

filed supplemental briefing requesting a narrowed preliminary injunction, alleging that several portions of the HHS provisions of the 2019 Final Rule violated the Administrative Procedure Act. Subsequently, the parties entered into settlement discussions. As of December 10, 2021, the parties informed the court that HHS did not plan to seek termination of the FSA under the terms of the stipulation or to ask the court to lift its injunction of the HHS regulations. Instead, HHS would consider a future rulemaking that would more broadly address issues related to the custody of unaccompanied children by HHS and that would replace the rule being challenged in

California

Mayorkas.

Based on this agreement, the court ordered that the

California

Mayorkas

litigation should be placed into abeyance with regard to the Plaintiffs' claims against HHS while HHS engaged in new rulemaking to replace and supersede the HHS regulations in the 2019 Final Rule.

Further, among other things, HHS agreed that while it underwent new rulemaking, it would not seek to lift the injunction of the 2019 Final Rule, nor seek to terminate the FSA as to HHS under the 2019 Final Rule, and that it would make best efforts to submit a notice of proposed rulemaking to the OMB by April 15, 2023, providing quarterly updates to the Court should it not meet that deadline.

In accord with the relevant order ORR made best efforts to submit the NPRM to OMB, and ultimately sent the document to OMB on April 28, 2023.

This NPRM initiates that broader rulemaking effort, and reflects the stipulated agreement in

California

Mayorkas,

and applies, as relevant, the findings of the Ninth Circuit regarding the 2019 Final Rule in

Flores

Rosen.

Note, because the permanent injunction of the 2019 Final Rule was never lifted, and the FSA continued to remain in effect, ORR does not anticipate that any third parties would have developed reliance interests

on the HHS regulations in the 2019 Final Rule.

California

Mayorkas,

No. 2:19-v-07390 (C.D. Cal. filed Aug. 26, 2019).

See

Stipulation re Request to Hold Plaintiffs' Claims as to HHS Under Abeyance,

California

Mayorkas,

No. 2:19-v-07390 (C.D. Cal. Apr. 12, 2022), ECF No. 159.

See also

Order Approving Stipulation, ECF No. 160.

See id.

Pending E.O. 12866 Regulatory Review,

https://www.reginfo.gov/public/do/eoDetails?rrid=312162.

4. Lucas R. Litigation

Another ongoing litigation involving ORR, filed in 2018, also has ramifications for this NPRM.

Lucas R.

Becerra,

a class action lawsuit, was filed in the U.S. District Court for the Central District of California, alleging ORR had violated the FSA, the TVPRA, the U.S. Constitution, and section 504 of the Rehabilitation Act of 1973 (section 504). Based on the plaintiffs' allegations, the court certified five plaintiff classes comprising of all children in ORR custody:

Lucas R.

Becerra,

Case No. 2:18-cv-5741 (C.D. Cal. filed Jun. 29, 2018).

(1) who are or will be placed in a secure facility, medium-secure facility, or residential treatment center (RTC), or whom ORR has continued to detain in any such facility for more than 30 days, without being afforded notice and an opportunity to be heard before a neutral and detached decisionmaker regarding the grounds for such placement (

i.e.,

the “step-up class”);

(2) whom ORR is refusing or will refuse to release to parents or other available custodians within 30 days of the proposed custodian's submission of a complete family reunification packet on the ground that the proposed custodian is or may be unfit (

i.e.,

the “unfit custodian class”);

(3) who are or will be prescribed or administered one or more psychotropic medications without procedural safeguards (

i.e.,

the “drug administration class”);

(4) who are natives of non-contiguous countries and to whom ORR is impeding or will impede legal assistance in legal matters or proceedings involving their custody, placement, release, and/or administration of psychotropic drugs (

i.e.,

the “legal representation class”); and

(5) who have or will have a behavioral, mental health, intellectual, and/or developmental disability as defined in 29 U.S.C. [section] 705, and who are or will be placed in a secure facility, medium-secure facility, or [RTC] because of such disabilities (

i.e.,

the “disability class”).

Order re Defendants' Motion to Dismiss [101] and Plaintiff's Motion for Class Certification [97],

Lucas R.

Becerra,

No. 2:18-cv-05741 (C.D. Cal. Nov. 2, 2018), ECF No. 126.

On August 30, 2022, the U.S. District Court for the Central District of California granted preliminary injunctive relief concerning the allegations of the unfit custodian, step-up, and legal representation classes. As of October 31, 2022, ORR implemented new policies and procedures on issues identified in the Court's preliminary injunction order. As of September 2023, ORR remains in active litigation in the

Lucas R.

class action. Depending on developments in the case, ORR may incorporate additional provisions in the final rule as discussed in this preamble.

C. Statutory and Regulatory Authority

As discussed above, under the HSA and TVPRA, the ORR Director is responsible for the care and placement of unaccompanied children. Under the HSA, ORR is responsible for “coordinating and implementing the care and placement of [unaccompanied children] who are in Federal custody by reason of their immigration status,” “identifying a sufficient number of qualified individuals, entities, and facilities to house [unaccompanied children],” “overseeing the infrastructure and personnel of facilities in which [unaccompanied children reside],” and “conducting investigations and inspections of facilities and other entities in which [unaccompanied children] reside, including regular follow-up visits to such facilities, placements, and other entities, to assess the continued suitability of such placements.”

Under the TVPRA, Federal agencies are required to notify HHS within 48 hours of apprehending or discovering a UC or receiving a claim or having suspicion that a non-citizen in their custody is an unaccompanied child under 18 years of age.

The TVPRA further requires that, absent exceptional circumstances, any Federal agency must transfer an unaccompanied child to the care and custody of HHS within 72 hours of determining that a non-citizen child in its custody is an unaccompanied child. With respect to the care and placement of unaccompanied children, the TVPRA requires that HHS establish policies and programs to ensure that unaccompanied children are protected from traffickers and other persons seeking to victimize or exploit children. Among other things, it also requires HHS to place unaccompanied children in the least restrictive setting that is in the best interest of the child, and states that in making such placements it may consider danger to self, danger to the community, and risk of flight. As previously discussed, the Secretary of HHS delegated the authority under the TVPRA to the Assistant Secretary for Children and Families,

who in turn delegated the authority to the Director of ORR.

It is under this delegation of authority that ORR now proposes to issue regulations describing how ORR meets its statutory responsibilities under the HSA and TVPRA and to implement the relevant and substantive terms of the FSA for the care and custody of unaccompanied children.

Id.

8 U.S.C. 1232(b)(2).

74 FR 14564 (2009)

74 FR 1232 (2009).

In addition to requirements and standards related to the direct care of unaccompanied children, ORR proposes to establish a new UC Office of the Ombuds, to create a mechanism that allows unaccompanied children and stakeholders to raise concerns with ORR policies and practices to an independent body. The Ombuds will be tasked with fielding concerns from any party relating to the implementation of ORR regulations, policies, and procedures; reviewing individual cases, conducting site visits and publishing reports including reports on systemic issues in ORR custody, particularly where there are concerns about access to services or release from ORR care; and following up on grievances made by children, sponsors, or other stakeholders. HHS has authority to establish this office under its authority to “establish policies and programs to ensure that unaccompanied alien children in the United States are protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity.”

8 U.S.C. 1232(c)(1);

see also

6 U.S.C. 279(b)(1)(L) (describing ORR's responsibility to conduct investigations and inspections of facilities and other entities in which unaccompanied children reside, including regular follow-up visits to such facilities, placements, and other entities, to assess the continued suitability of such placements).

D. Basis and Purpose of Regulatory Action

The purpose of this NPRM is to propose a regulatory framework that would: (1) codify policies and practices related to the care and custody of unaccompanied children, consistent with ORR's statutory authorities; and (2) implement relevant provisions described by the FSA. The FSA describes “minimum” standards for care of unaccompanied children at licensed care provider facilities, but Congress subsequently enacted legislation establishing requirements for the UC Program. This NPRM proposes both to implement the protections set forth in the FSA and to broaden them consistent with the current legal and operational environment, which has significantly

changed since the FSA was signed over 25 years ago.

E. Severability

To the extent that any portion of the requirements arising from the final rule is declared invalid by a court, ORR intends for all other parts of the final rule that are capable of operating in the absence of the specific portion that has been invalidated to remain in effect. While our expectation is that all parts of the final rule that are operable in such an environment would remain in effect, ORR will assess at that time whether further rulemaking is necessary to amend any provisions subsequent to any holding that ORR exceeded its discretion or the provisions are inconsistent with the FSA or are vacated or enjoined on any other basis.

V. Discussion of Elements of the Proposed Rule

Subpart A—Care and Placement of Unaccompanied Children

In this NPRM, ORR proposes to codify requirements and policies regarding the placement, care, and services provided to unaccompanied children in ORR custody. The following provisions identify the scope of this part, the definitions used throughout this part, and principles that apply to ORR placement, care, and services decisions.

Section 410.1000 Scope of This Part

ORR proposes, in § 410.1000(a), that the scope of this part pertain to the placement, care, and services provided to unaccompanied children in Federal custody by reason of their immigration status and referred to ORR. As described in section IV. of this proposed rule, ORR's care, custody, and placement of unaccompanied children is governed by the HSA and TVPRA, and ORR provides its services to unaccompanied children in accordance with the terms of the FSA. ORR also clarifies that proposed part 410 would not govern or describe the entire program. For example, part 411 (describing requirements related to the prevention of sexual abuse of unaccompanied children in ORR care) would remain in effect under this proposed rule. ORR notes that its current policies and practices are described in the online ORR Policy Guide,

Field Guidance,

manuals describing compliance with ORR policies and procedures, and other communications from ORR to care provider facilities. ORR will continue to utilize these vehicles for its subregulatory guidance and will revise them in connection with publication of the final rule as needed to ensure compliance with the final rule. The proposed provisions of this part would, in many cases, codify existing ORR policies and practices. Further, upon publication of a final rule, ORR would continue to publish subregulatory guidance as needed to clarify the application of these regulations.

ORR Unaccompanied Children Program Policy Guide,

https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide.

Unaccompanied Children's Program Field Guidance,

https://www.acf.hhs.gov/orr/policy-guidance/uc-program-field-guidance.

ORR also proposes, in § 410.1000(b), that the provisions of this part are separate and severable from one another and that if any provision is stayed or determined to be invalid, the remaining provisions shall continue in effect. Additionally, ORR proposes in § 410.1000(c) that ORR does not fund or operate facilities other than standard programs, restrictive placements (which includes secure facilities, including residential treatment centers, and heightened supervision facilities), or emergency or influx facilities, absent a specific waiver as described under proposed § 410.1801(d) or such additional waivers as are permitted by law.

Section 410.1001 Definitions

ORR proposes, in § 410.1001, to codify the definitions of terms that apply to this part. Some definitions are the same as those found in statute, or other authorities (

e.g.,

the definition of “unaccompanied child” is the same as the definition of “unaccompanied alien child” as found in the HSA, 6 U.S.C. 279(g)(2)). Notably, for purposes of this proposed rule, ORR would update certain terms and definitions provided in the FSA (

e.g.,

the definition of “influx”). Below is an explanation for certain definitions, to further explain ORR's rationale when the proposed rule applies the relevant terms.

The proposed definition of “care provider facility” is intended to generally describe any placement type for unaccompanied children, except out of network (OON) placements, and as a result is broader than the term “standard program,” provided below, which for example does not include emergency or influx facilities. ORR also notes that this proposed definition does not reference “facilities for children with special needs,” a term used in the definition of “licensed program” in the FSA and 45 CFR 411.5. ORR is considering not using the term “facilities for children with special needs” within the part for the reasons set forth below in this section at the proposed definition of “standard program.” Moreover, ORR understands this proposed definition for “care provider facility” to encompass any facility in which an unaccompanied child may be placed while in the custody of ORR, including any facility exclusively serving children in need of particular services and treatment.

The proposed definition of “disability” is distinct from its proposed definition for a “special needs unaccompanied child,” discussed later in this section and which is derived specifically from the FSA. Although some unaccompanied children may have a disability and also have special needs, the terms are not synonymous. For example, an unaccompanied child exiting ORR custody may be considered to have a disability within the definition set forth in section 504 of the Rehabilitation Act of 1973 even if the child does not require services or treatments for a mental and/or physical impairment.

The proposed definition of “emergency” differs from the definition finalized at 45 CFR 411.5, which defines the term as “a sudden, urgent, usually unexpected occurrence or occasion requiring immediate action.” “Emergency,” for purposes of this proposed rule, would reflect the term's usage in the context of the requirements in this proposed rule.

With respect to the proposed definition of “EOIR accredited representative,” ORR notes that DOJ refers to these individuals simply as “accredited representatives,” see 8 CFR 1292.1(a)(4), but for purposes of this proposed rule, ORR adopts the term “EOIR accredited representative.”

The proposed definition of “heightened supervision facility” incorporates language consistent with the definition of “medium secure facility” provided in the FSA at paragraph 8. This term is meant to replace the term “staff secure facility” as used under existing ORR policies. ORR has decided to change its terminology because it has become clear that the prior term was not well understood and did not effectively convey information about the nature of such facilities.

The proposed definition of “influx” would change the threshold for declaring an influx, for ORR's purposes, from the FSA standard, which ORR believes is out of date considering current migration patterns and its organizational capacity. The FSA defines influx as “those circumstances where the INS has, at any given time, more than 130 minors eligible for placement in a licensed program.” ORR's proposed definition, however,

would not impact the rights, and responsibilities of other parties of the FSA. ORR believes that the proposed definition more appropriately reflects significantly changed circumstances since the inception of the FSA and provides a more realistic, fair, and workable threshold for implementing safeguards necessary in cases where a high percentage of ORR's bed capacity is in use. The 1997 standard of 130 minors awaiting placement does not reflect the realities of unaccompanied children referrals in the past decade, in which the number of unaccompanied children referrals each day typically exceeds, and sometimes greatly exceeds, 130. To leave this standard as the definition of influx would mean, in effect, that the program was always in influx status. Accordingly, ORR has developed a more realistic and workable threshold for implementing safeguards necessary in cases where a high percentage of ORR bed capacity is in use.

With respect to the proposed definition of “post-release services,” ORR notes that assistance linking families to educational resources may include but is not limited to, in appropriate circumstances, assisting with school enrollment; requesting an English language proficiency assessment; seeking an evaluation to determine whether the child is eligible for a free appropriate public education (which can include special education and related services) or reasonable modifications and auxiliary aids and services under the Individuals with Disabilities Education Act or section 504 of the Rehabilitation Act of 1973; and monitoring the unaccompanied child's attendance at and progress in school. ORR notes that while the TVPRA requires that follow-up services must be provided during the pendency of removal proceedings in cases in which a home study occurred, the nature and extent of those services would be subject to available resources.

With respect to the proposed definition of “runaway risk,” ORR notes that the FSA and ORR policy currently uses the term “escape risk.” See FSA paragraph 22 (defining “escape risk” as “a serious risk that the minor will attempt to escape from custody,” and providing a non-exhaustive list of factors ORR may consider when determining whether an unaccompanied child is an escape risk—

e.g.,

whether the unaccompanied child is currently under a final order of removal, the unaccompanied child's immigration history, and whether the unaccompanied child has previously absconded or attempted to abscond from government custody). ORR proposes to update this term to “runaway risk,” which is a term used by state child welfare agencies and Federal agencies to describe children at risk from running away from home or their care setting. Rather than basing its determination of runaway risk solely on the factors described in the FSA, ORR proposes under this rule that such determinations must be made in view of a totality of the circumstances and should not be based solely on a past attempt to run away. This proposed definition of runaway risk is meant to be consistent with how the term is used in the FSA to describe escape from ORR care,

i.e.,

from a care provider facility. ORR notes here and throughout this proposed rule that the TVPRA uses the term “risk of flight,” stating HHS “may” consider “risk of flight,” among other factors, when making placement determinations.

ORR understands that in the immigration law context, “risk of flight” refers to an individual's risk of not appearing for their immigration proceedings.

ORR proposes, with respect to its responsibilities toward unaccompanied children in its custody, to interpret “risk of flight” as including “runaway risk,” thereby adding runaway risk to the list of factors it would consider in making placement determinations. Runaway risk often overlaps with concern that an unaccompanied child may not appear for the child's immigration proceedings. ORR also notes that runaway risk may also relate to potential danger to self or the community, given the inherent risks to unaccompanied children who run away from custody.

8 U.S.C. 1232(c)(2)(A).

See e.g.,

hearings conducted by the Department of Justice's Executive Office for Immigration Review to decide custody redeterminations under section 236(a) of the Immigration and Nationality Act, 8 U.S.C. 1226(a), “where an alien must establish that the alien does not present a danger to others, a threat to the national security, or a flight risk.”

Matter of Guerra,

24 I&N Dec. 37, 40 (BIA 2006).

With respect to the proposed definition of “secure facility,” ORR notes that the FSA uses but does not provide a definition for this term. Nevertheless, the proposed definition is consistent with the provisions of the FSA applying to secure facilities. Also, this proposed definition differs from the definition in the 2019 Final Rule, which could have been read to indicate that any contract or cooperative agreement for a facility with separate accommodations for minors is a secure facility. Such a definition risks erroneously confusing other types of ORR placements that are not secure with secure placements and therefore ORR is proposing an updated definition in this proposed rule.

With respect to the proposed definition of “special needs unaccompanied child,” ORR notes that this definition has been included to incorporate the term “special needs minor” as described within the FSA at paragraph 7, except ORR proposes to update the definition by using the phrase “intellectual or developmental disability” instead of “mental illness or retardation” as used in the FSA. ORR understands that this update reflects current terminology which has superseded the terminology used in the FSA (“retardation”). Although an unaccompanied child with a disability, as defined in this section, could also be a “special needs unaccompanied child” as incorporated here, the definition of disability is broader and thus the terms are not synonymous. To further this clarification, ORR proposes a separate definition for disability earlier in this section that incorporates the meaning of the term across applicable governing statutory authorities. ORR is also considering not defining and not using the term “special needs unaccompanied child” within the part for the reasons set forth below at proposed §§ 410.1103 and 410.1106.

The proposed definition of “standard program” reflects and updates the term “licensed program” at paragraph 6 of the FSA. The FSA does not discuss situations where states discontinue licensing, or exempt from licensing, child care facilities that contract with the Federal Government to care for unaccompanied children, as has happened recently in some states.

ORR has included this proposed definition of “standard program” that is broader in scope to account for circumstances wherein licensure is unavailable in the state to programs that provide residential, group, or home care services for dependent children when those programs are serving unaccompanied children. ORR notes that most states where ORR has care provider facilities have not taken such actions, and that wherever possible standard programs would continue to be licensed consistent with current practice under the FSA. However, ORR

is considering substituting the term “licensed program” with the proposed updated term “standard program” in order to establish that the requirement that facilities in those states must still meet minimum standards, consistent with requirements for licensed facilities expressed in the FSA at Exhibit 1, in any circumstance in which a state refuses to license a facility because the facility is housing unaccompanied children.

ORR solicits comments on using the proposed definition of “standard program” in lieu of the term “licensed program.”

See, e.g.,

Proclamation by the Governor of the State of Texas, May 31, 2021,

available at: https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf

(directing the Texas Health and Human Service Commission (HHSC) to amend its regulations to “discontinue state licensing of any child-care facility in this state that shelters or detains [UC] under a contract with the Federal government.”);

see also

Fl. Executive Order No. 21-223 (Sep. 28, 2021),

available at: https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf.

Separate from this notice of proposed rulemaking and in the spirit of current FSA requirements, ACF is currently developing a notice of proposed rulemaking that would describe the creation of a Federal licensing scheme for ORR care providers located in states where licensure is unavailable to programs serving unaccompanied children.

ORR understands this proposed definition for “standard program” to encompass any program operating non-secure facilities that provide services to unaccompanied children in need of particular services and treatment or children with particular mental or physical conditions. Given this, ORR believes the continued use of language such as “facilities for children with special needs” and “facilities for special needs minors,” as used in the FSA definition of “licensed program,” is unnecessary for this regulation, and potentially problematic for reasons discussed elsewhere within this section and at proposed §§ 410.1103 and 410.1106. For now, ORR has included this language in the proposed rule to ensure consistency with the FSA, but it is considering not using the term “special needs unaccompanied child” or specifying that facilities for special needs unaccompanied children operated by a standard program are covered by the requirements that apply to standard programs in the part. Therefore, ORR also solicits comments in this section on its proposal to not include in the definition of “standard program” the FSA terminology used in the term “licensed program” referencing facilities for special needs unaccompanied children or a facility for special needs unaccompanied children.

The proposed definition of “trauma bond” is consistent with how the Office to Monitor and Combat Trafficking in Persons, Department of State defined the term in its factsheet, Trauma Bonding in Human Trafficking.

Office to Monitor and Combat Trafficking in Persons. (2020, June).

Trauma Bonding in Human Trafficking.

U.S. Department of State.

https://www.state.gov/wp-content/uploads/2020/10/TIP_Factsheet-Trauma-Bonding-in-Human-Trafficking-508.pdf.

With respect to the proposed definition of “trauma-informed,” ORR believes that a trauma-informed approach to the care and placement of unaccompanied children is essential to ensuring that the interests of children are considered in decisions and actions relating to their care and custody.

ORR understands trauma-informed system, standard, process, or practices consistently with the 6 Guidelines To A Trauma-Informed Approach developed by the Centers for Disease Control and Prevention (CDC) in collaboration with the Substance Abuse and Mental Health Services Administration (SAMHSA).

See 6 U.S.C. 279(b)(1)(B); 8 U.S.C. 1232(c)(2)(A).

Section 410.1002 ORR Care and Placement of Unaccompanied Children

ORR proposes, at § 410.1002, a description of ORR's authority to coordinate and implement the care and placement of unaccompanied children who are in ORR custody by reason of their immigration status. ORR notes that this substantive requirement is aligned with the requirement established in the 2019 Final Rule at 45 CFR 410.102(a), concerning the scope of authority of ORR regarding the care and placement of unaccompanied children. That section of the 2019 Final Rule was not found to be inconsistent with the FSA by the 9th Circuit in

Flores

Rosen,

but as discussed in section IV.B.3 of this proposed rule, the 2019 Final Rule in its entirety is currently enjoined and will be superseded by the standards proposed in this proposed rule, once finalized.

Section 410.1003 General Principles That Apply to the Care and Placement of Unaccompanied Children

ORR proposes, at § 410.1003, to describe principles that would apply to the care and placement for unaccompanied children in its custody. These principles are based on ORR's statutory duties to provide care and custody for unaccompanied children in a manner that is consistent with their best interests.

See, e.g.,

6 U.S.C. 279(b)(1) (making ORR responsible for, among other things, “coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status,” “ensuring that the interest of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child,” and “overseeing the infrastructure and personnel of facilities in which unaccompanied alien children reside.”);

see also

8 U.S.C. 1232(c)(1) (requiring HHS to “establish policies and programs to ensure that unaccompanied alien children in the United States are protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity, including policies and programs reflecting best practices in witness security programs.”); 1232(c)(2)(A) (“. . . an unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child . . .”).

At § 410.1003(a), ORR proposes that for all placements, unaccompanied children shall be treated with dignity, respect, and special concern for their particular vulnerability as unaccompanied children. In addition to ORR's statutory authorities, this proposal is consistent with the substantive criteria set forth at paragraph 11 of the FSA, and current ORR policies.

At § 410.1003(b), ORR proposes that ORR shall hold unaccompanied children in facilities that are safe and sanitary and that are consistent with ORR's concern for the particular vulnerability of unaccompanied children. This is consistent with the substantive requirement from paragraph 12A of the FSA that “[f]ollowing arrest, the INS shall hold minors in facilities that are safe and sanitary and that are consistent with the INS's concern for the particular vulnerability of minors.” ORR notes that although this provision applies to the arrest and detention of unaccompanied children prior to their placement in an ORR care provider facility, and not to unaccompanied children after they are placed in ORR's care, ORR is proposing to adopt this standard for its facilities and custody of unaccompanied children as well. ORR also notes that it is proposing the phrasing “the particular vulnerability of unaccompanied children” as opposed to “the particular vulnerability of minors,” as it believes that the specific vulnerability of the population of unaccompanied children should be considered when providing them with safe and sanitary conditions.

At proposed § 410.1003(c), ORR would be required to plan and provide care and services based on the individual needs of and focusing on the strengths of the unaccompanied child. As a complementary provision, ORR proposes, at § 410.1003(d), to encourage unaccompanied children, as developmentally appropriate and in their best interests, to be active participants in ORR's decision-making process relating to their care and placement. ORR believes that these collaborative approaches to care provision allow for the recognition of each child's specific needs and strengths while providing opportunities for unaccompanied children to become more empowered, resilient, and self-efficacious.

ORR proposes, at § 410.1003(e), to codify a requirement that care of unaccompanied children be tailored to the individualized needs of each unaccompanied child in ORR custody, ensuring the interests of the child are considered, and that unaccompanied children are protected from traffickers and other persons seeking to victimize or otherwise engage them in criminal, harmful, or exploitative activity, both while in ORR custody and upon release from the UC Program. ORR recognizes the utmost importance of protecting unaccompanied children from traffickers and other persons seeking to victimize or otherwise engage in harmful activities, including unscrupulous employers. ORR believes the provisions proposed at § 410.1003(e) reinforce ORR's commitment to ensuring the best interests of unaccompanied children are considered and actions are taken to safeguard them from harm. ORR also believes that codifying the requirement to consider each unaccompanied child's individualized needs reinforces that unaccompanied children will be assessed by ORR to determine whether they may require particular services and treatment while in the UC Program, such as to address the ramifications of a history of severe neglect or abuse, as provided for in paragraph 7 of the FSA.

Consistent with the substantive criteria set forth in the TVPRA, 8 U.S.C. 1232(c)(2)(A), ORR proposes at § 410.1003(f) to require that unaccompanied children be promptly placed in the least restrictive setting that is in the best interest of the child, with placement considerations including danger to self; danger to the community; and runaway risk, as defined in § 410.1001. In addition to ORR's statutory authorities, this proposal is consistent with the substantive criteria set forth at paragraph 11 of the FSA, and current ORR policies.

At proposed § 410.1003(g), ORR would require consultation with parents, legal guardians, child advocates, and attorneys of record or EOIR accredited representatives as needed when requesting information or consent from all unaccompanied children.

Section 410.1004 ORR Custody of Unaccompanied Children

Proposed § 410.1004 describes the scope of ORR's custody of unaccompanied children. Consistent with its statutory authorities and the FSA, this proposed provision specifies that all unaccompanied children placed by ORR in care provider facilities remain in the legal custody of ORR and may be transferred or released only with ORR approval.

The provision would also provide that in the event of an emergency, a care provider facility may transfer temporary physical custody of an unaccompanied child prior to securing approval from ORR but shall notify ORR of the transfer as soon as is practicable thereafter, and in all cases within 8 hours.

See

8 U.S.C. 1232(b)(1) (“Consistent with section 279 of title 6, and except as otherwise provided under subsection (a), the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of the Secretary of Health and Human Services.”).

See

FSA at ¶ 19.

Subpart B—Determining the Placement of an Unaccompanied Child at a Care Provider Facility

In subpart B of this proposed rule, ORR proposes to codify the criteria and requirements that apply to placement of unaccompanied children at particular types of care provider facilities. The HSA makes ORR responsible for, among other things, “coordinating and implementing the care and placement of unaccompanied alien children who are in federal custody by reason of their immigration status,” “making placement determinations for all unaccompanied alien children who are in federal custody by reason of their immigration status,” “implementing the placement determinations,” and “implementing policies with respect to the care and placement of unaccompanied alien children.”

In addition, subpart B would clarify and strengthen placement criteria to better ensure appropriate placement based on each unaccompanied child's individual background, characteristics, and needs. ORR believes that these proposed provisions can help to protect the interests of unaccompanied children in ORR care by supporting safe and appropriate placement in the least restrictive setting appropriate to the child's age and individualized needs, consistent with existing legal requirements and child welfare best practices.

6 U.S.C. 279(b)(1).

See also

8 U.S.C. 1232(c)(2)(A).

Section 410.1100 Purpose of This Subpart

Proposed § 410.1100 describes the purposes of subpart B, which are to set forth the process by which ORR receives referrals from other Federal agencies and the factors ORR considers when placing an unaccompanied child in a particular care provider facility. In addition, proposed § 410.1100 would clarify that, as used in this subpart, “placement determinations” or “placements” refers to placements in ORR-approved care provider facilities during the time an unaccompanied child is in ORR care, and not to the location of an unaccompanied child once the child is released in accordance with provisions proposed in subpart C.

Section 410.1101 Process for the Placement of an Unaccompanied Child After Referral From Another Federal Agency

ORR proposes, at new § 410.1101, to codify its existing process for accepting referrals of unaccompanied children from another Federal agency and for placement of an unaccompanied child in a care provider facility upon such referral. Consistent with the TVPRA at 8 U.S.C. 1232(b)(3), which requires any department or agency of the Federal Government that has an unaccompanied child in its custody to transfer the custody of such child to HHS not later than 72 hours after determining that the child is an unaccompanied child, unless there are exceptional circumstances,

and with existing policy, under proposed § 410.1101(a), ORR accepts referrals from any department or agency of the Federal Government of unaccompanied children in the referring department or agency's custody. Further, consistent with existing policy and in cooperation with referring agencies, ORR accepts such referrals at any time of day, every day of the year. ORR may seek clarification about the information provided by the referring agency (including about how the referred individual meets the statutory definition of unaccompanied child). In such instances, ORR shall notify the referring agency and work with the referring agency, including by requesting additional information, in accordance with statutory time frames for transferring unaccompanied children to ORR.

The TVPRA also contains specific provisions for DHS to screen children who are from contiguous countries to determine whether such children meet statutory criteria to be returned to the child's country of nationality or of last habitual residence. Such screening should occur within 48 hours of apprehension. If the child does not meet the criteria to be returned or no determination can be made within 48 hours of apprehension, the TVPRA states that the child shall “immediately be transferred to the Secretary of HHS and treated in accordance with subsection (b).” 8 U.S.C. 1232(a)(4). We read this language in concert with the language in 8 U.S.C. 1232(b)(3) and, thus, include the one 72-hour standard in this proposed rule.

At § 410.1101(b) and (c), ORR proposes timeframes for identifying, and notifying a referring Federal agency of ORR's identification of, an appropriate placement for an unaccompanied child, and for accepting transfer of custody of

an unaccompanied child after a referring Federal agency determines that a child is an unaccompanied child who should be referred to ORR. At § 410.1101(b), ORR proposes to codify its current policy that upon notification from any department or agency of the Federal Government that a child is an unaccompanied child and therefore must be transferred to ORR custody, ORR must identify an appropriate placement for the unaccompanied child and notify the referring Federal agency within 24 hours of receiving the referring agency's notification whenever possible, and no later than 48 hours of receiving the referring agency's notification, barring exceptional circumstances (see paragraph below). ORR believes that setting a maximum time frame of 48 hours for ORR to identify a placement and notify a referring Federal agency of ORR's identification of a placement would help to expedite transfer of unaccompanied children from the referring Federal agency to ORR care, but also that certain exceptions to this time frame may be necessary in certain circumstances, as discussed in the following paragraph. Proposed § 410.1101(c) would require ORR to work with the referring Federal department or agency to accept transfer of custody of the unaccompanied child, consistent with the statutory requirements at 8 U.S.C. 1232(b)(3) (the referring Federal agency must transfer custody of an unaccompanied child to HHS not later than 72 hours after determining that the child is an unaccompanied child, except in the case of exceptional circumstances).

As noted above, the TVPRA provides that referring Federal agencies must transfer custody of unaccompanied children to HHS within 72 hours unless there are exceptional circumstances. In order to help facilitate this requirement in coordination with referring agencies, proposed § 410.1101(b) and (c) describe internal timeframes for ORR to identify and notify referring Federal agencies of placements and to accept transfer of custody from referring agencies. But ORR notes that it may in certain “exceptional circumstances” be unable to timely identify placements for and help facilitate other agencies' timely transfers of unaccompanied children to its custody. For purposes of proposed § 410.1101(b) and (c), proposed § 410.1101(d) describes circumstances which would prevent ORR from timely identifying a placement for an unaccompanied child or accepting transfer of custody. At proposed § 410.1101(d), ORR describes these exceptional circumstances consistent with those described in paragraph 12.A of the FSA, some of which were also incorporated into the 2019 Final Rule at § 410.202. The proposed “exceptional circumstances,” for ORR's purposes, would include the following: (1) any court decree or court-approved settlement that requires otherwise; (2) an influx, as defined in proposed § 410.1001; (3) an emergency, including a natural disaster, such as an earthquake or hurricane, and other events, such as facility fires or civil disturbances; (4) a medical emergency, such as a viral epidemic or pandemic among a group of unaccompanied children; (5) the apprehension of an unaccompanied child in a remote location, and (6) the apprehension of an unaccompanied child whom the referring agency indicates (i) poses a danger to self or others or (ii) has been charged with or has been convicted of a crime, or is the subject of delinquency proceedings, delinquency charge, or has been adjudicated delinquent, and additional information is essential in order to determine an appropriate ORR placement. Notably, the unavailability of documents will not necessarily prevent the prompt transfer of a child to ORR. In addition, “exceptional circumstances,” for ORR's purposes, would include an act or event that could not be reasonably foreseen that prevents the placement of or accepting transfer of custody of an unaccompanied child within the proposed timeframes. Given the mandate under the TVPRA, 8 U.S.C. 1232(c)(2), that ORR place an unaccompanied child in the least restrictive setting that is in the best interests of the unaccompanied child, subject to consideration of danger to self, danger to the community/others, and risk of flight, additional time may be needed in some circumstances to determine the most appropriate and safe placement that comports with the best interests of the unaccompanied child. Thus, ORR believes that this general exception for acts or events that could not be reasonably foreseen is appropriate to afford additional time to assess these considerations, though ORR is mindful of avoiding prolonged placements in DHS facilities that are not designed for the long-term care of children. As discussed previously, these proposed exceptional circumstances would, as appropriate, modify the timeframes applicable to ORR under proposed § 410.1101(b) and (c).

ORR notes that the FSA also includes an exception to these timeframe requirements for unaccompanied children who do not speak English and for whom an interpreter is unavailable. However, ORR does not propose to include this as an exceptional circumstance for purposes of § 410.1101(b) and (c). Because ORR is able to serve unaccompanied children regardless of their primary language through the use of telephonic interpreters, ORR does not view this as an insurmountable impediment to the prompt placement of unaccompanied children. In addition, the FSA includes an exception in which a reasonable person would conclude that an individual is an adult despite the individual's claim to be an unaccompanied child. However, ORR does not propose to include this as an exceptional circumstance for purposes of proposed § 410.1101(b) and (c) because ORR does not believe that such a situation poses the type of urgency inherent in exceptional circumstances as described above. For further information on ORR's proposed policies regarding age determinations, ORR refers readers to its discussion of proposed subpart H.

As discussed previously, the TVPRA contemplates the referral and transfer of unaccompanied children to ORR from other Federal agencies or departments, requiring that, absent exceptional circumstances, such transfer must occur no later than 72 hours after determining that a child is an unaccompanied child.

ORR seeks to accept transfer of unaccompanied children as quickly as possible after a placement has been identified within this time frame. In identifying placements for unaccompanied children, ORR balances the need for expeditious identification of placement with the need to ensure safe and appropriate placement in the best interests of the unaccompanied child, which necessitates a comprehensive review of information regarding an unaccompanied child's background and needs before placement. Under existing policy, to determine the appropriate placement for an unaccompanied child, ORR requests and assesses extensive background information on the unaccompanied child from the referring agency, including the following: (1) how the referring agency made the determination that the child is an unaccompanied child; (2) health related information; (3) whether the unaccompanied child has any medication or prescription information, including how many days' supply of the medication will be provided with the unaccompanied child when transferred into ORR custody; (4) biographical and biometric information,

such as name, gender, alien number, date of birth, country of birth and nationality, date(s) of entry and apprehension, place of entry and apprehension, manner of entry, and the unaccompanied child's current location; (5) any information concerning whether the unaccompanied child is a victim of trafficking or other crimes; (6) whether the unaccompanied child was apprehended with a sibling or other relative; (7) identifying information and contact information for a parent, legal guardian, or other related adult providing care for the unaccompanied child prior to apprehension, if known, and information regarding whether the unaccompanied child was separated from a parent, legal guardian, or adult relative after apprehension, and the reason for separation; (8) if the unaccompanied child was apprehended in transit to a final destination, what the final destination was and who the unaccompanied child planned to meet or live with at that destination, if known; (9) whether the unaccompanied child is a runaway risk, and if so, the runaway risk indicators; (10) any information on a history of violence, juvenile or criminal background, or gang involvement known or suspected, risk of danger to self or others, state court proceedings, and probation; (11) if the unaccompanied child is being returned to ORR custody after arrest on alleged gang affiliation or involvement, ORR requests all documentation confirming whether the unaccompanied child is a

Saravia

class member and information on the

Saravia

hearing, including the date and time;

and (12) any particular needs or other information that would affect the care and placement of the unaccompanied child, including, as applicable, information about services, supports, or program modifications provided to the child on the basis of disability.

See 8 U.S.C. 1232(b)(2) and (3).

Saravia

class member is defined as a noncitizen minor who (1) came to the United States as an unaccompanied child, as defined at 6 U.S.C. 279(g)(2); (2) was previously detained in the custody of the Department of Health and Human Services (HHS), Office of Refugee Resettlement (ORR) but then released to a sponsor by ORR; and (3) has been or will be rearrested by the Department of Homeland Security (DHS) on the basis of a removability warrant based in whole or in part on allegations of gang affiliation. In

Saravia

bond hearings DHS bears the burden to demonstrate changed circumstances since the minor's release by ORR which demonstrate the minor is a danger to the community. DHS must demonstrate that circumstances have changed since the child's release from ORR custody such that the child poses a danger to the community or is a flight-risk.

See

Order Certifying the Settlement Class and Granting Final Approval of Class Action Settlement,

Saravia

Barr,

Case No.: 3:17-cv-03615 (N.D. Cal. Jan. 19, 2021), ECF No. 249.

Furthermore, the TVPRA places the responsibility for the transfer of custody on referring Federal agencies.

ORR custody begins when it assumes physical custody from the referring agency. Proposed § 410.1101(e) would codify this practice, which is currently reflected at section 1.1 of the Policy Guide.

8 U.S.C. 1232(b)(3).

Section 410.1102 Care Provider Facility Types

Proposed § 410.1102 describes the types of care provider facilities in which unaccompanied children may be placed. The basis for this section is ORR's statutory authority to make placement determinations for unaccompanied children in its care, as well as other responsibilities such as implementing policies with respect to their care and overseeing the infrastructure and personnel of facilities in which unaccompanied children reside.

Specifically, this section proposes that ORR may place an unaccompanied child in a care provider facility as defined at proposed § 410.1001, including but not limited to shelters, group homes, individual family homes, heightened supervision facilities, or secure facilities, including RTCs. ORR proposes that it may also place unaccompanied children in out-of-network (OON) placements under certain, limited circumstances, such as an OON RTC (which would need to meet the standards that apply to RTCs that are ORR care provider facilities) or a temporary stay at hospital (for example, for surgery). ORR would make such placements taking into account the considerations and criteria set forth in proposed §§ 410.1103 through 410.1109 and 410.1901, as further discussed below. In addition, ORR proposes that in times of influx or emergency, as further discussed in proposed subpart I (Emergency and Influx Operations), ORR may place unaccompanied children in facilities that may not meet the standards of a standard program, but rather meet the standards in subpart I. ORR believes that this proposed provision is consistent with the FSA requirement that unaccompanied children be placed in licensed programs until such time as release can be effected or until immigration proceedings are concluded, except that in the event of an emergency or influx of children into the United States, ORR must place unaccompanied children into licensed programs as expeditiously as possible.

See generally

6 U.S.C. 279(b)(1).

See FSA at paragraph 19 and Exhibit 3.

Consistent with proposed § 410.1102, ORR would place unaccompanied children in group homes or individual family homes, including long-term and transitional home care settings, as appropriate, based on the unaccompanied child's age and individualized needs and circumstances. Proposed definitions of “ORR long-term home care” and “ORR transitional home care” are included in § 410.1001, which would replace the terms “long-term foster care” and “transitional foster care” as those terms are used in the definition of “traditional foster care” provided at 45 CFR 411.5. Where possible, ORR believes that based on an unaccompanied child's age, individualized needs, and circumstances, as well as a care provider facility's capacity, it should favor placing unaccompanied children in transitional and long-term home care settings while they are awaiting release to sponsors. Having said that, ORR notes that efforts to place more unaccompanied children out of congregate care shelters that house more than 25 children together is a long-term aspiration, given the large number of children in its custody and the number of additional programs that would be required to care for them in home care settings or small-scale shelters of 25 children or less. Given this reality, care provider facilities structured and licensed to accommodate more than 25 children continue to serve a vital role in meeting this need.

Finally, for the final rule, ORR is also considering replacing its current long-term and transitional home care placement approach with a community-based care model that would expand upon the current types of care provider facilities that may care for unaccompanied children in community-based settings. This is in line with a vision of moving towards a framework of community-based care as described in the following paragraphs. ORR believes such a framework would be consistent with the language of this proposed rule and that ORR would be able to implement it in a manner consistent with this proposed rule.

If ORR were to finalize the community-based care model in the final rule, references to ORR long-term home care and ORR transitional home care as used in this proposed rule would be replaced with the term community-based care, and ORR would define “community-based care” in § 410.1001 as an ORR-funded and administered family or group home placement in a community-based setting, whether for a short-term or a long-term placement. The proposed definition of

“community-based care” encompasses the term “traditional foster care” that is codified at existing § 411.5.

“Community-based care” would be a continuum of care that would include basic and therapeutic foster family settings as well as supervised independent living group home settings for unaccompanied children, which are funded and administered by ORR. It aims to more effectively place and support unaccompanied children who are best served in family settings, such as tender age unaccompanied children, pregnant/parenting unaccompanied children, unaccompanied children with extended stays, and unaccompanied children who are moving towards independent living or close to aging out of ORR care. Thus, a community-based care model would include placements in care provider facilities capable of accommodating unaccompanied children with both long-term (

e.g.,

where there is no reasonable prospect of release to a sponsor) and short-term (

e.g.,

rapid release expected) care needs. For purposes of UC Program management, the term community-based care would encompass and replace the term “traditional foster care” provided at existing § 411.5 as well as the terms “ORR long-term home care” and “ORR transitional home care” as used in this proposed rule. Components of the ORR community-based care model would include caregivers (either the foster parent or the designated official for a child care institution, inclusive of care provider facility staff) providing care in a manner consistent with their state licensing requirements, such as exercising the Reasonable and Prudent Parent Standard, as defined at 42 U.S.C. 675(10)(A), to make daily decisions on age-appropriate activities for the child. The Reasonable and Prudent Parent Standard is the standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child, while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care to participate in extracurricular, enrichment, cultural, and social activities. Under an ORR community-based care model, when unaccompanied children are in community-based settings on an extended basis, they would be eligible to attend local schools under applicable school policies to the same extent that unaccompanied children in long-term home care placements can, to facilitate integration into the local community and the development of relationships with peers and adults. Under a community-based care model, caregivers would support: (1) unaccompanied children's integration into their local communities, development of healthy and nurturing relationships with adults and peers, and engagement and connection to local services, activities, and opportunities; (2) the development of unaccompanied children's independent living skills when they are of the age that supports transition to adulthood (

e.g.,

16 years or older); and (3) proactive permanency planning for unaccompanied children who do not have a viable sponsor, including identification of trusted adults and alternative care options that promote permanency for the unaccompanied children. Additionally, under a community-based care model, in consultation as appropriate with the child's attorney or other relevant stakeholder such as a legal service provider or child advocate, ORR will consider a child's eligibility for or access to legal relief (including, for example, a special immigrant juvenile predicate order) in a specific jurisdiction as part of the placement decision. ORR welcomes public comment on this vision of community-based care, its inclusion as a care provider facility type in the final rule in place of ORR's current long-term and transitional home care placement approach, and any other concerns relevant to this change based on existing language in the proposed rule.

Section 410.1103 Considerations Generally Applicable to the Placement of an Unaccompanied Child

Proposed § 410.1103 sets forth considerations generally applicable to the placement of unaccompanied children consistent with the TVPRA, 8 U.S.C. 1232(c)(2)(A) and the FSA. The TVPRA mandates that ORR place each unaccompanied child in the least restrictive setting that is in the best interest of the unaccompanied child, with due consideration by HHS of danger to self, danger to community, and risk of flight. Similarly, paragraph 11 of the FSA requires that each unaccompanied child be placed in the least restrictive setting appropriate to the child's age and “special needs,” provided that such setting is consistent with the interest in ensuring the unaccompanied child's timely appearance before DHS and the immigration courts and protecting the unaccompanied child's well-being and that of others. Consistent with the statutory mandate and the FSA provision, as well as existing policy, under proposed § 410.1103(a), ORR would place each unaccompanied child in the least restrictive setting that is in the best interest of the unaccompanied child and appropriate to the unaccompanied child's age and individualized needs, provided that such setting is consistent with the interest in ensuring the unaccompanied child's timely appearance before DHS and the immigration courts and protecting the unaccompanied child's well-being and that of others.

ORR considers the following factors when evaluating an unaccompanied child's best interest: the unaccompanied child's expressed interests, in accordance with the unaccompanied child's age and maturity; the unaccompanied child's mental and physical health; the wishes of the unaccompanied child's parents or legal guardians; the intimacy of relationship(s) between the unaccompanied child and the child's family, including the interactions and interrelationship of the unaccompanied child with the child's parents, siblings, and any other person who may significantly affect the unaccompanied child's well-being; the unaccompanied child's adjustment to the community; the unaccompanied child's cultural background and primary language; length or lack of time the unaccompanied child has lived in a stable environment; individualized needs, including any needs related to the unaccompanied child's disability; and the unaccompanied child's development and identity. ORR also notes that its care provider facilities are usually congregate care settings. As a result, consistent with prioritizing the safety and well-being of all unaccompanied children, when making a placement determination, ORR evaluates the best interests of both the individual unaccompanied child being placed and the best interests of the other unaccompanied children at the care provider facility where the individual unaccompanied child may be placed. ORR notes that the factors and considerations in proposed § 410.1103(b) and proposed § 410.1105 also are evaluated in determining the best interest of the child for purposes of placement.

ORR also proposes to use the term “individualized needs,” in proposed § 410.1103(a), rather than “special needs” (as used in the FSA and regulations established in the 2019 Final Rule at 45 CFR 410.201(a)), because it believes the term “special needs” has created confusion. The term “special needs” may imply that, in determining placement, ORR considers only a limited range of needs that fall within

a special category. Instead, in assessing the appropriate placement of an unaccompanied child, ORR takes into account any need it becomes aware of that is specific to the individual being assessed, regardless of the nature of that need. In addition, the term “special needs” may imply that, in determining placement, ORR considers only those needs related to an unaccompanied child's disability, which as explained, is not the case. To avoid the suggestion that, in determining placement of an unaccompanied child, ORR only takes into account a limited range of needs that fall within a special category, we are using the broader term “individualized needs” for purposes of proposed § 410.1103(a).

ORR further notes that as used in the FSA, including the considerations required at paragraph 11, “special needs” is not synonymous with disability or disability-related needs. The term “special needs” has no clear legal meaning; of note, it is not used in section 504 or the HHS implementing regulations at 45 CFR part 85. Aside from its particular usage in the FSA, the term “special needs” is often understood to be a placeholder or euphemism for “disability.” As with the term “handicapped,” ORR is concerned about perpetuating language that has become stigmatized over time. For these reasons, as discussed above at § 410.1001, ORR invites comments concerning the continued use of the terms “special needs minor” or “special needs unaccompanied child” but has included these terms in the proposed rule in order to ensure consistency with the FSA.

Under proposed § 410.1103(b), consistent with existing policy and with certain requirements under the TVPRA,

ORR proposes that it would consider additional factors that may be relevant to the unaccompanied child's placement, to the extent such information is available, including but not limited to the following: danger to self and the community/others, runaway risk, trafficking in persons or other safety concerns, age, gender, LGBTQI+ status, disability, any specialized services or treatment required or requested by the unaccompanied child, criminal background, location of potential sponsor and safe and timely release options, behavior, siblings in ORR custody, language access, whether the unaccompanied child is pregnant or parenting, location of the unaccompanied child's apprehension, and length of stay in ORR custody. ORR believes that this information, to the extent available, is necessary for a comprehensive review of an unaccompanied child's background and needs, and for appropriate and safe placement of an unaccompanied child.

See

8 U.S.C. 1232(c).

In addition, with respect to the consideration of whether any specialized services or treatments are required, ORR is aware of the importance of ascertaining an unaccompanied child's health status, including the need for proximity to medical specialists, the child's reproductive health status (such as information relating to pregnancy or post-partum status; use of birth control; and any recent procedures, medications, or current needs related to pregnancy), and whether the child is a victim of a sex crime (

e.g.,

sexual assault, sex trafficking)), and other healthcare needs, upon entering ORR care in order to ensure the most appropriate placement, and relies on information provided from referring Federal agencies to make appropriate placements. For further discussion of proposed policies related to access to medical care, ORR refers readers to proposed § 410.1307(b). When it receives a referral of an unaccompanied child from another Federal agency, ORR documents and reviews the unaccompanied child's biographical and apprehension information, as submitted by the referring Federal agency in ORR's case management system, including any information about an unaccompanied child's health status, including their reproductive health status and need for medical specialists.

Under proposed § 410.1103(c), ORR would be able to utilize information provided by the referring Federal agency, child assessment tools, interviews, and pertinent documentation to determine the placement of all unaccompanied children. In addition, ORR proposes that it may obtain any relevant records from local, State, and Federal agencies regarding an unaccompanied child to inform placement decisions. Such information is vital in carrying out ORR's general duty to coordinate the care and placement of unaccompanied children, including determining whether a restrictive placement may be necessary.

ORR is proposing to add these provisions to the regulations to clarify the broad range of information it may utilize in making placement determinations.

See generally

6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c)(2).

The TVPRA requires that the placement of an unaccompanied child in a secure facility be reviewed on a monthly basis to determine if such placement remains warranted.

ORR notes that it exceeds the statutory requirement here because under its current policies all restrictive placements, not only secure placements, must be reviewed at least every thirty days. Proposed § 410.1103(d) would codify the practice of reviewing restrictive placements at least every thirty days to determine if such placements remain warranted.

See

8 U.S.C. 1232(c)(2)(A);

see also

2019 Final Rule at § 410.203(c).

Additionally, in proposed § 410.1103(e), ORR proposes to codify its existing policy that ORR make reasonable efforts to provide placements in those geographical areas where DHS encounters the majority of unaccompanied children. ORR believes this provision is justified in order to facilitate the orderly and expeditious transfer of children from DHS border facilities to ORR care provider facilities, which is in the child's best interest. This requirement reflects the requirement at paragraph 6 of the FSA. ORR notes that in making any placement decision, it also would take into account the considerations set forth in proposed § 410.1103(a) and (b).

Finally, ORR proposes at § 410.1103(f) to codify a requirement that care provider facilities accept all unaccompanied children placed by ORR at their facilities, except in limited circumstances. Such a requirement is consistent with ORR's authority to make and implement placement determinations, and to oversee its care provider facilities, as established at 6 U.S.C. 279(b)(1). Consistent with existing policy, under proposed § 410.1103(f), a care provider facility may only deny ORR's request for placement based on the following reasons: (1) lack of available bed space; (2) the placement of the unaccompanied child would conflict with the care provider facility's state or local licensing rules; (3) the initial placement involves an unaccompanied child with a significant physical or mental illness for which the referring Federal agency does not provide a medical clearance; or (4) in the case of the placement of an unaccompanied child with a disability, the care provider facility concludes it is unable to meet the child's disability-related needs without fundamentally altering its program, even by providing reasonable modifications and even with additional support from ORR. ORR proposes that if a care provider facility wishes to deny a placement, it must make a written request to ORR providing the individualized reasons for

the denial. ORR proposes that any such request must be approved by ORR before the care provider facility may deny a placement. In addition, under proposed § 410.1103(f), ORR would be able to follow up with a care provider facility about a placement denial to find a solution to the reason for the denial.

ORR is not proposing to codify in subpart B the provisions finalized in the 2019 Final Rule at § 410.201(b) or (e), which were based on requirements set forth in paragraph 12A of the FSA. The 2019 Final Rule at § 410.201(b) provided that ORR separates unaccompanied children from delinquent offenders. However, ORR notes that paragraph 12A of the FSA concerns detention of unaccompanied children following arrest by the former INS, and currently DHS, before transfer of custody to ORR. ORR is not involved in the apprehension or encounter of unaccompanied children or their immediate detention following apprehension or encounter and thus ORR proposes to omit this provision from this regulation. Having said that, ORR proposes that it will apply the facility standards described as paragraph 12A of the FSA to its care provider facilities, consistent with standards set forth in proposed subpart D (Minimum Standards and Required Services) and proposed subpart I (Emergency and Influx Operations).

The 2019 Final Rule at § 410.201(c) provides that if there is no appropriate licensed program immediately available for placement, and no one to whom ORR may release an unaccompanied child, the unaccompanied child may be placed in an ORR-contracted facility, having separate accommodations for children, or a state or county juvenile detention facility, shall be separated from delinquent offenders, and that every effort must be taken to ensure the safety and well-being of the unaccompanied child detained in these facilities. ORR proposes omitting this provision from these regulations. This provision was also based on paragraph 12A of the FSA, which concerns detention of the unaccompanied child following arrest by the former INS, and currently following encounter by DHS, before transfer of custody to placement in an ORR care provider facility. Instead, consistent with existing policies, under proposed § 410.1101(b) ORR would identify an appropriate placement for the unaccompanied child at a care provider facility within 24 hours of receiving the referring agency's notification, whenever possible, and no later than 48 hours of receiving such notification, barring exceptional circumstances. Also, as further discussed in the next section (addressing proposed § 410.1104), in the event of an emergency or influx of unaccompanied children into the United States, ORR would place unaccompanied children as expeditiously as possible in accordance with proposed subpart I (Emergency and Influx Operations).

Section 410.1104 Placement of an Unaccompanied Child in a Standard Program That Is Not Restrictive

At proposed § 410.1104, ORR proposes to codify substantive criteria for placement of an unaccompanied child in a standard program that is not a restrictive placement. The TVPRA requires ORR to promptly place unaccompanied children “in the least restrictive setting that is in the best interest of the child,” and states that in making such placements ORR “may consider danger to self, danger to the community, and risk of flight.”

ORR also notes that under paragraph 19 of the FSA, with certain exceptions, an unaccompanied child must be placed temporarily in a licensed program until release can be effectuated or until immigration proceedings are concluded. Consistent with the TVPRA and existing policy, under proposed § 410.1104, ORR would place all unaccompanied children in a standard program that is not a restrictive placement (in other words, that is not a heightened supervision facility) after the unaccompanied child is transferred to ORR legal custody, except in the following circumstances: (a) the unaccompanied child meets the criteria for placement in a restrictive placement set forth at proposed § 410.1105; or (b) in the event of an emergency or influx of unaccompanied children into the United States, in which case ORR shall place the unaccompanied child as expeditiously as possible in accordance with proposed subpart I (Emergency and Influx Operations). ORR understands these exceptions to be consistent with placement considerations described in the TVPRA at 8 U.S.C. 1232(c)(2)(A) (noting, for example, that in making placements HHS “may consider danger to self, danger to the community, and risk of flight”), and exceptions provided for in section paragraph 19 of the FSA.

8 U.S.C. 1232(c)(2)(A).

ORR does not propose to codify certain other exceptions described in the FSA and included in the 2019 Final Rule at § 410.202(b) and (d). The 2019 Final Rule at § 410.202(b) provided that unaccompanied children do not have to be placed in a standard program as otherwise required by any court decree or court-approved settlement. ORR does not believe it is necessary to include this exception, as any court decree or settlement that would require ORR to implement placement criteria that differ from those at proposed § 410.1104 would take effect pursuant to its own terms even without specifying these potential circumstances in the regulation. Section 410.202(d) provided that an unaccompanied child does not have to be placed in a standard program if a reasonable person would conclude that the unaccompanied child is an adult despite the individual's claims to be a child. ORR also does not believe it is necessary to include this exception in proposed § 410.1104 because a person determined by ORR to be an adult (has attained 18 years of age) would be excluded from the definition of unaccompanied child and thus would not be placed in any ORR care provider facility (see proposed subpart H for discussion of age determinations).

Section 410.1105 Criteria for Placing an Unaccompanied Child in a Restrictive Placement

Proposed § 410.1105 addresses the criteria for placing unaccompanied children in restrictive placements. As defined in proposed § 410.1001, restrictive placements would include secure facilities, heightened supervision facilities, and RTCs. The proposed criteria for placement in each of these facilities are further discussed below.

Proposed § 410.1105(a) addresses placement at secure facilities that are not RTCs. At proposed § 410.1105(a)(1), ORR proposes that, consistent with existing policies, it may place an unaccompanied child in a secure facility (that is not also an RTC) either upon referral from another agency or department of the Federal Government (

i.e.,

as an initial placement), or through a transfer to another care provider facility after the initial placement.

Under proposed § 410.1105(a)(2), ORR would not place an unaccompanied child in a secure facility (that is not also an RTC) if less restrictive alternative placements are available. Such placements must also be appropriate under the circumstances, and in the best interests of the unaccompanied child. In determining whether there is a less restrictive placement available to meet the individualized needs of an unaccompanied child with a disability, consistent with section 504 of the Rehabilitation Act, 29 U.S.C. 794(a), ORR must consider whether there are any reasonable modifications to the policies, practices, or procedures of an available less restrictive placement or any provision of auxiliary aids and

services that would allow the unaccompanied child with a disability to be placed in that less restrictive facility. However, ORR is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity. The proposed regulation text is consistent with 8 U.S.C. 1232(c)(2)(A). Also, ORR notes that this proposed requirement is consistent with paragraph 23 of the FSA, which provides that ORR may not place an unaccompanied child in a secure facility if there are less restrictive alternatives that are available and appropriate in the circumstances. Under the FSA, less restrictive alternatives include transfer to (a) a medium security facility, which is equivalent to “heightened supervision facility” as defined at proposed § 410.1001, or (b) another licensed program, a term which for purposes of this proposed rule is superseded by “standard program” as defined at proposed § 410.1001. Consistent with the FSA, ORR further proposes in § 410.1105(a)(2) that it may place an unaccompanied child in a heightened supervision facility or other non-secure care provider facility as an alternative, provided that the unaccompanied child does not pose a danger to self or others. ORR believes that such alternative placements may not be appropriate for unaccompanied children who pose a danger to self or others, as less restrictive placements may not have the level of staff supervision and requisite security procedures to address the needs of such unaccompanied children.

ORR proposes to place unaccompanied children in secure facilities (that are not RTCs) in limited, enumerated circumstances set forth at proposed § 410.1105(a)(3). Specifically, ORR proposes that it may place an unaccompanied child in a secure facility (that is not an RTC) only if the unaccompanied child meets one of three criteria. First, ORR proposes at § 410.1105(a)(3)(i) that it may place the unaccompanied child in a secure facility (that is not an RTC) if the unaccompanied child has been charged with or has been convicted of a crime, or is the subject of delinquency proceedings, a delinquency charge, or has been adjudicated delinquent, and where ORR deems that those circumstances demonstrate that the unaccompanied child poses a danger to self or others, not including: (1) an isolated offense that was not within a pattern or practice of criminal activity and did not involve violence against a person or the use or carrying of a weapon; or (2) a petty offense, which is not considered grounds for stricter means of detention in any case. These proposed provisions were also included in the 2019 Final Rule at § 410.203(a)(1), except that proposed § 410.1105(a)(3) omits language from the FSA and previous § 410.203(a)(1) that allows an unaccompanied child to be placed in a secure facility if the unaccompanied child is “chargeable with a delinquent act” (which under the FSA means that ORR has probable cause to believe that the unaccompanied child has committed a specified offense). ORR believes it is appropriate to omit such language because being “chargeable” with an offense is not a permissible reason for placement in a secure facility identified by the TVPRA.

Further, because it is not a law enforcement agency, unlike the former INS, ORR is not in a position to make determinations such as whether an unaccompanied child is “chargeable.” Even without this language, ORR believes this proposed provision is consistent with the substantive criteria of the FSA. Furthermore, consistent with 8 U.S.C. 1232(c)(2)(A) (which does not list runaway risk as a permissible reason for placement in a secure facility), ORR does not propose runaway risk as a factor in determining placement in a secure facility, even though that is a permissible ground under the FSA for placement in a secure facility.

See

8 U.S.C. 1232(c)(2)(A) (“A child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.”).

Second, ORR proposes in § 410.1105(a)(3)(ii) that it may place an unaccompanied child in a secure facility (that is not an RTC) if the unaccompanied child, while in DHS or ORR custody, or while in the presence of an immigration officer, ORR official, or ORR contracted staff, has committed, or has made credible threats to commit, a violent or malicious act (whether directed at the unaccompanied child or others). The 2019 Final Rule at § 410.203(a)(2) and paragraph 21B of the FSA contain a similar provision, except that in contrast to § 410.203(a)(2) and the FSA, this proposed provision would include acts committed in the presence of an “ORR official or ORR contracted staff.” ORR believes that the addition of this language is appropriate given that ORR officials and contracted staff would more often be in a position to observe an unaccompanied child's behavior and actions and to assess whether an unaccompanied child has committed, or made credible threats to commit, the acts referenced in this provision. Again, ORR does not believe this proposed change constitutes a substantive deviation from the requirements of the FSA.

Third, ORR proposes at § 410.1105(a)(3)(iii) that it may place an unaccompanied child in a secure facility (that is not an RTC) if the unaccompanied child has engaged, while in a restrictive placement, in conduct that has proven to be unacceptably disruptive of the normal functioning of the care provider facility, and removal is necessary to ensure the welfare of the unaccompanied child or others, as determined by the staff of the care provider facility (

e.g.,

substance or alcohol use, stealing, fighting, intimidation of others, or sexually predatory behavior), and ORR determines the unaccompanied child poses a danger to self or others based on such conduct. The 2019 Final Rule contained a similar provision at § 410.203(a)(3), which was based on paragraph 21C of the FSA. But in contrast to § 410.203(a)(3) of the 2019 Final Rule and the FSA, the proposed provision requires that the conduct at issue be engaged in while in a “restrictive placement,” rather than a “licensed program.” ORR believes that such disruptive behavior should initially result in potential transfer to a heightened supervision facility before placement in a secure facility (that is not an RTC)—in other words, that disruptive behavior in a standard program that is not a restrictive placement should not result in immediate transfer, or “step up,” to such a secure facility. As discussed above, the 2019 Final Rule was intended to implement the provisions of the FSA that relate to HHS; however, ORR is proposing this change in order to ensure that unaccompanied children in such circumstances are stepped up to a more structured program rather than being immediately placed in a secure facility. ORR believes this update is consistent with its authorities under the HSA and TVPRA,

and does not believe it constitutes a substantive deviation from the requirements of the FSA, which provides that unaccompanied children “may” be transferred to secure facilities based on unacceptably disruptive conduct where transfer is necessary to ensure the welfare of the unaccompanied child or others but does not require such transfer.

See, e.g.,

8 U.S.C. 1232(c)(2)(A) (requiring that unaccompanied children “shall be promptly placed in the least restrictive setting that is in the best interest of the child.”).

FSA at paragraph 21C.

At proposed § 410.1105(b), ORR outlines the policies and criteria that it would apply in placing unaccompanied children in heightened supervision facilities. The term “heightened supervision facility,” as defined at proposed § 410.1001, would be used in place of the term “medium secure” facility provided in the FSA, and in place of the term “staff secure facility” currently used by ORR in its regulations and sub-regulatory guidance. ORR believes that the term “heightened supervision facility,” as defined in this proposed rule, better reflects the nature and purpose of such facilities, which is to provide care to unaccompanied children who require close supervision but do not need placement at a secure facility, including an RTC. As reflected in the proposed definition, heightened supervision facilities maintain stricter security measures than a shelter such as intensive staff supervision in order to provide supports, manage problem behavior and prevent an unaccompanied child from running away. ORR proposes at § 410.1105(b)(1) that it may place unaccompanied children in this type of facility either at initial placement (upon referral from another agency or department of the Federal Government) or through a transfer from the initial placement. Furthermore, at proposed § 410.1105(b)(2), ORR proposes to codify factors it would consider in determining whether to place unaccompanied children in a heightened supervision facility. Specifically, ORR would consider if the unaccompanied child (1) has been unacceptably disruptive to the normal functioning of a shelter such that transfer is necessary to ensure the welfare of the unaccompanied child or others; (2) is a runaway risk, based on the criteria at proposed § 410.1107; (3) has displayed a pattern of severity of behavior, either prior to entering ORR custody or while in ORR care, that requires an increase in supervision by trained staff; (4) has a non-violent criminal or delinquent history not warranting placement in a secure facility, such as isolated or petty offenses as described previously; or (5) is assessed as ready for step-down from a secure facility, including an RTC. ORR believes that each of these proposed criteria identifies pertinent background and behavioral concerns that may warrant heightened supervision, rather than placement in a secure facility, including an RTC, consistent with the purpose of heightened supervision facilities.

Proposed § 410.1105(c) sets forth the criteria ORR would consider for placing an unaccompanied child in an RTC, as defined at proposed § 410.1001. ORR would place an unaccompanied child at an RTC only if it is the least restrictive setting that is in the best interest of the unaccompanied child and appropriate to the unaccompanied child's age and individualized needs, consistent with the TVPRA at 8 U.S.C. 1232(c)(2)(A) (“an unaccompanied alien child shall be promptly placed in the least restrictive setting that is in the best interest of the child.”). Similar to other secure facilities and heightened supervision facilities, ORR proposes that an unaccompanied child may be placed at an RTC both as an initial placement upon referral from another agency or department of the Federal Government, and upon transfer from another care provider facility. In addition, ORR proposes at § 410.1105(c)(1) that unaccompanied children who have serious mental or behavioral health issues may be placed in an RTC only if the unaccompanied child is evaluated and determined to be a danger to self or others by a licensed psychologist or psychiatrist consulted by ORR or a care provider facility, which includes a determination by clear and convincing evidence documented in the unaccompanied child's case file or referral documentation by a licensed psychologist or psychiatrist that an RTC is appropriate. This requirement is consistent with the factors the Secretary of HHS may consider under the TVPRA at 8 U.S.C. 1232(c)(2)(A) in making placement determinations for unaccompanied children and was also included in the 2019 Final Rule at § 410.203(a)(4).

ORR also notes that when it determines whether placement in an RTC, or any care provider facility is appropriate, it considers the best interests not only of the unaccompanied child being placed, but also the best interests of other unaccompanied children who are housed at the proposed receiving care provider facility, including their safety and well-being. ORR believes it is authorized to consider these factors under the TVPRA.

ORR also considers the safety of care provider facility staff when making placement determinations for unaccompanied children, consistent with its duty to oversee the infrastructure and personnel of facilities in which unaccompanied children reside.

For an unaccompanied child with one or more disabilities, consistent with section 504 of the Rehabilitation Act, 29 U.S.C. 794(a), the determination whether to place the unaccompanied child in an RTC would need to consider whether reasonable modifications to policies, practices, and procedures in the unaccompanied child's current placement or any provision of auxiliary aids or services, could sufficiently reduce the danger to the child or others. However, ORR is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity. Finally, consistent with its existing policies, ORR proposes at § 410.1105(c)(1) that it would use the criteria for placement in a secure facility described at proposed § 410.1105(a) to assess whether the unaccompanied child is a danger to self or others. ORR believes that it is appropriate to apply these criteria in making this assessment in the context of RTC placement, because all secure facilities (including RTCs) are intended for unaccompanied children who pose a danger to self and others (although RTCs are intended for unaccompanied children who also have a serious mental health or behavioral health issue that warrants placement in an RTC).

See also

Order Re Plaintiffs' Motion to Enforce Class Action Settlement at *11,

Flores vs. Sessions,

No. 2:85-cv-04544, (C.D. Cal. Jul. 30, 2018), ECF No. 470 (ordering ORR to transfer all unaccompanied children placed at a particular RTC out of that facility unless a licensed psychologist or psychiatrist determined that a particular child posed a risk of harm to self or others).

8 U.S.C. 1232(c)(2)(A) (“In making such placements, the Secretary may consider danger to self, danger to the community, and risk of flight.”).

See

6 U.S.C. 279(b)(1)(G).

Consistent with existing policies, under proposed § 410.1105(c)(2), ORR would be able to place an unaccompanied child at an out-of-network (OON) RTC when a licensed clinical psychologist or psychiatrist consulted by ORR or a care provider facility has determined that the unaccompanied child requires a level of care only found in an OON RTC (either because the unaccompanied child has identified needs that cannot be met within the ORR network of RTCs or no placements are available within ORR's network of RTCs), or that an OON RTC would best meet the unaccompanied child's identified needs. Also consistent with existing policies, in these circumstances, even though an unaccompanied child would be physically located at the OON RTC, the unaccompanied child would remain in ORR legal custody. ORR would monitor the unaccompanied child's progress and ensure the unaccompanied child is receiving required services. OON RTCs are vetted prior to placement via state licensing authorities to ensure that the program is in good standing and is

complying with all applicable state welfare laws and regulations and state and local building, fire, health, and safety codes. ORR also may confer with other Federal agencies and non-governmental stakeholders (

e.g.,

the protection and advocacy (P&A) systems) when vetting OON RTCs to determine, in its discretion, the appropriateness of such OON RTCs for placement of unaccompanied children. ORR appreciates that P&As may have valuable information relating to the vetting process because they may have prior experience with certain facilities with respect to their past care and treatment of individuals with disabilities (

e.g.,

findings of abuse and neglect, compliance issues).

Under proposed § 410.1105(c)(3), the criteria for placement in or transfer to an RTC would also apply to transfers to or placements in OON RTCs (that is, the clinical criteria considered in placing an unaccompanied child at an RTC level of care would not change regardless of whether the RTC is in ORR's network or OON). Proposed § 410.1105(c)(3) would also permit care provider facilities to request that ORR transfer certain unaccompanied children to RTCs. Proposed § 410.1601(d), discussed later in this preamble, further addresses when a care provider facility may make such a request.

Section 410.1106 Unaccompanied Children Who Need Particular Services and Treatment

Proposed § 410.1106 would codify the requirements for ORR when placing unaccompanied children assessed to have a need for particular services, equipment, and treatment by staff. This section satisfies and updates paragraph 7 of the FSA, which requires ORR to assess unaccompanied children to determine if they have “special needs,” and, if so, to place such unaccompanied children, whenever possible, in licensed programs in which ORR places unaccompanied children without “special needs,” but which provide services and treatment for such “special needs.” As indicated by the definition for “special needs unaccompanied child” from the FSA and included above at proposed § 410.1001, an unaccompanied child is considered to have “special needs” if ORR determines that the unaccompanied child has a mental and/or physical condition that requires particular services and treatment by staff. ORR may determine that an unaccompanied child needs particular services and treatment by staff for a variety of reasons including, but not limited to, those delineated within the definition of “special needs unaccompanied child” and specified in paragraph 7 of the FSA. For this reason, ORR is proposing this section without limiting its scope to “special needs unaccompanied child.” ORR notes that an unaccompanied child may need particular services and treatment due to a disability, as defined at proposed § 410.1001, but not all unaccompanied children with disabilities necessarily require particular services and treatment by staff. Likewise, an unaccompanied child does not need to have been identified as having a disability to be determined to require particular services and treatment to meet their individualized needs.

To avoid confusion, ORR refers in this section to unaccompanied children with individualized needs rather than using the outdated “special needs” terminology found in the FSA at paragraph 7. As noted above regarding proposed § 410.1103, the term “special needs” has created confusion and may imply that in determining placement, ORR considers only a limited range of needs that fall within a special category. Instead, in assessing the appropriate placement of an unaccompanied child, ORR considers any need it becomes aware of that is specific to each unaccompanied child being assessed, regardless of the nature of that need. The examples provided in this section of individualized needs that may require particular services, equipment, and treatment by staff are illustrative, and not exhaustive. Furthermore, as also discussed above at proposed §§ 410.1001 and 410.1103, ORR is concerned about using the term “special needs” given its association as a placeholder or euphemism for disability whereas this section does not apply only to unaccompanied children with disabilities who require particular services and treatment.

ORR also notes that this section incorporates the preference for inclusive placements that serve unaccompanied children with a diversity of needs, including the need for particular services or treatments, whenever possible, as provided in paragraph 7 of the FSA, and particular equipment. This section is distinct from, but in alignment with, HHS' implementing regulation for section 504 of the Rehabilitation Act of 1973 at 45 CFR 85.21(d) that prohibits discrimination on the basis of disability by requiring that the agency administer programs and activities in the most integrated setting appropriate to the needs of individuals with disabilities. The most integrated setting appropriate to the needs of an individual with a disability is a setting that enables individuals with disabilities to interact with individuals without disabilities to the fullest extent possible.

53 FR 25591, 25600 (July 8, 1988).

Section 410.1107 Considerations When Determining Whether an Unaccompanied Child Is a Runaway Risk for Purposes of Placement Decisions

Proposed § 410.1107 would codify factors that ORR considers in determining whether an unaccompanied child is a runaway risk for purposes of placement decisions. As described in § 410.1001, the FSA and ORR policy currently use the term “escape risk,” and ORR proposes in this proposed rule to update the terminology to “runaway risk” and also proposes to update the definition provided in the FSA. ORR notes that the TVPRA provides that HHS “may” consider “risk of flight,” among other factors, when making placement determinations.

As proposed, ORR would interpret “risk of flight,” which is used in immigration law regarding an individual's risk of not appearing for their immigration proceedings, as including runaway risk. In its discretion, ORR considers these runaway risk factors when evaluating whether to transfer an unaccompanied child to another care provider facility, in accordance with proposed § 410.1601. For example, an unaccompanied child may be transferred from a non-secure level of care to a heightened supervision facility where there is higher staff ratio and a secure perimeter (stepped up) if ORR determines the unaccompanied child is a runaway risk in accordance with proposed § 410.1107.

8 U.S.C. 1232(c)(2)(A). Note that 8 U.S.C. 1232(c)(2)(A) does not list risk of flight as a ground for placing an unaccompanied child in a secure facility. Therefore, even though paragraph 21.D of the FSA states that being an escape risk (or runaway risk as proposed in this rule) is a ground upon which ORR may place an unaccompanied child in a secure facility, ORR does not propose in this rule that runaway risk is a basis for placement in a secure facility.

Proposed § 410.1107(a) through (c) would codify the risk factors to consider when evaluating whether an unaccompanied child is a runaway risk for purposes of placement. These factors are consistent with paragraph 22 of the FSA, which are also included in the 2019 Final Rule at § 410.204. Specifically, ORR proposes it would consider the following factors: (a) whether the unaccompanied child is currently under a final order of removal (

i.e.,

the unaccompanied child has a legal duty to report for deportation); (b) whether the unaccompanied child's immigration history includes: (1) a prior

breach of bond, (2) a failure to appear before DHS or the immigration court, (3) evidence that the unaccompanied child is indebted to organized smugglers for their transport, or (4) a previous removal from the U.S. pursuant to a final order of removal; and (c) whether the unaccompanied child has previously absconded or attempted to abscond from state or Federal custody. ORR notes that under paragraph 22(B) of the FSA, a voluntary departure from the U.S. by the unaccompanied child is also a risk factor. Based on ORR's experience in placing an unaccompanied child, ORR proposes not to codify whether the child's immigration history includes a voluntary departure because this factor has not been relevant in determining whether the child is a runaway risk.

ORR notes that paragraph 22 of the FSA provides a non-exhaustive list of factors to consider when evaluating runaway risk.

77 78

Consistent with this language, as well as with ORR's authority generally to consider runaway risk in making placement determinations, ORR proposes additional factors at § 410.1107(d) and (e) for ORR to consider when determining whether an unaccompanied child is a runaway risk for purposes of placement decisions. Proposed § 410.1107(d) would require ORR to consider whether the unaccompanied child has displayed behaviors indicative of flight or has expressed intent to run away. Under proposed § 410.1107(e), ORR would consider evidence that the unaccompanied child is indebted to, experiencing a strong trauma bond to, or is threatened by a trafficker in persons or drugs, in determining whether the unaccompanied child is a runaway risk. ORR developed this proposal through its practical experience of making runaway risk placement decisions and believes it is appropriate to add as an additional factor to consider. ORR seeks public comment on these proposed factors and welcomes feedback on other factors ORR should or should not consider when determining if an unaccompanied child is a runaway risk for purposes of placement decisions.

See

FSA at paragraph 22 (“Factors to consider when determining whether a minor is an escape-risk or not include, but are not limited to . . .”).

Existing § 410.204 also does not limit ORR to considering just the factors listed in the regulation and states “ORR considers, among other factors . . .”

Section 410.1108 Placement and Services for Children of Unaccompanied Children

At proposed § 410.1108, ORR proposes the requirements for the placement of children of unaccompanied children and services they would receive while in ORR care. ORR believes that when unaccompanied children are parents of children, it is in the best interests of the children to be placed in the same facility as their unaccompanied children parents. Accordingly, ORR proposes at § 410.1108(a) to codify its existing policy that it will place unaccompanied children and their children together at the same care provider facilities, except in unusual or emergency situations. ORR considered limiting this proposal to the biological children of unaccompanied children; however, at the time of intake and placement, it may not be known whether the children are the biological children of the unaccompanied children. Accordingly, ORR proposes to not limit this proposal to the biological children of unaccompanied children and instead proposes broader language to allow for flexibility in placing unaccompanied children and their children to account for other situations (for example, the unaccompanied child may not be the biological parent of a child but is the child's caretaker).

Consistent with existing policy, and with its responsibility to consider the best interests of children in making placement decisions, ORR proposes that unusual or emergency situations would include, but not be limited to: hospitalization or need for a specialized care or treatment setting that cannot provide appropriate care for the child of the unaccompanied child; a request by the unaccompanied child for alternate placement of the child of the unaccompanied child; and when the unaccompanied child is the subject of substantiated allegations of abuse or neglect against the child of the unaccompanied child (or temporarily in urgent cases where there is sufficient evidence of child abuse or neglect warranting temporary separation for the child's protection). ORR proposes to codify these requirements into regulation at § 410.1108(a)(1) through (3).

ORR is aware that children of unaccompanied children may not be unaccompanied children within the definition provided in the HSA at 6 U.S.C. 279(g)(2). For example, a child born in the United States will likely be a U.S. citizen at birth under section 1401(a) of the Immigration and Nationality Act, 8 U.S.C. 1401(a), and the U.S. Constitution, as amended, XIV section 2. Additionally, a noncitizen child who is in the custody of a parent who is an unaccompanied child who is available to provide care and physical custody, is not an unaccompanied child. ORR understands that it has custody of the unaccompanied child, consistent with its statutory authorities, and that the unaccompanied child has custody of their child. Under the proposed rule, ORR would not seek to place the parent and child in different facilities or shelters except in the limited circumstances noted above. ORR understands this to be consistent with its responsibility to consider the interests of unaccompanied children.

If the child who is in the custody of their unaccompanied child parent has another parent who is a citizen present in the U.S., ORR would consider whether it is in the best interests of the child to place the child with the unaccompanied child parent or the parent who is a U.S. citizen. ORR requests comments regarding this interpretation of its authorities under the TVPRA and the HSA, because neither statute expressly contemplates scenarios where an unaccompanied child is a parent.

See, e.g.,

6 U.S.C. 279(b)(1)(B) (making ORR responsible for “ensuring that the interests of the child are considered in decisions and actions relating to the care and custody of an unaccompanied alien child”).

Proposed § 410.1108(b) describes requirements for providing services to children of unaccompanied children while in ORR care. Under proposed § 410.1108(b)(1), children of unaccompanied children would receive the same care and services as ORR provides to the unaccompanied children, as appropriate, regardless of the children's immigration or citizenship status. Additionally, U.S. citizen children of unaccompanied children would be eligible for mainstream public benefits and services to the same extent as other U.S. citizens (for example, Medicaid). Application(s) for public benefits and services shall be submitted on behalf of the U.S. citizen children of unaccompanied children by the care provider facilities. This may include, but is not limited to, helping file for birth certificates or other legal documentation as necessary. Further, under proposed § 410.1108(b)(2), utilization of those public benefits and services should be exhausted to the greatest extent practicable for U.S. citizen children of unaccompanied children before ORR-funded services are utilized for these children.

Section 410.1109 Required Notice of Legal Rights

In proposed § 410.1109(a), ORR would be required to promptly provide each unaccompanied child in its custody with the information described in § 410.1109(a)(1) through (3) in a

language and manner the unaccompanied child understands. First, ORR would require, under proposed § 410.1109(a)(1), that unaccompanied children in ORR custody be promptly provided with a state-by-state list of free legal service providers compiled and annually updated by ORR and that is provided to unaccompanied children as part of a Legal Resource Guide for unaccompanied children. This proposed requirement is consistent with TVPRA at 8 U.S.C. 1232(c)(5) (requiring that HHS “ensure, to the greatest extent practicable and consistent with section 292 of the Immigration and Nationality Act (8 U.S.C. 1362), that all unaccompanied alien children who are or have been in the custody of the Secretary or the Secretary of Homeland Security, and who are not described in subsection (a)(2)(A), have counsel to represent them in legal proceedings or matters and protect them from mistreatment, exploitation, and trafficking,” and that to the greatest extent practicable HHS “make every effort to utilize the services of pro bono counsel who agree to provide representation to such children without charge.”). In addition, the proposed requirement is consistent with the HSA at 6 U.S.C. 279(b)(1)(I) (requiring ORR to compile, update, and publish “at least annually a state-by-state list of professionals or other entities qualified to provide guardian and attorney representation services for unaccompanied alien children”). ORR notes that the list of free legal service providers may also be compiled and updated by an ORR contractor or grantee.

Second, under proposed § 410.1109(a)(2), ORR would also be required to provide the following explanation of the right of potential review: “ORR usually houses persons under the age of 18 in the least restrictive setting that is in an unaccompanied child's best interest, and generally not in restrictive placements (which means secure facilities, heightened supervision facilities, or residential treatment centers). If you believe that you have not been properly placed or that you have been treated improperly, you may call a lawyer to seek assistance. If you cannot afford a lawyer, you may call one from the list of free legal services given to you with this form.” This requirement updates language described in the requirement to deliver a similar notice under Exhibit 6 of the FSA,

to reflect current placement requirements detailed in this proposed rule. The FSA language, for example, refers to the former INS, instead of ORR, and to “detention facilities” rather than restrictive settings or placements.

Exhibit 6 of the FSA provides the following notice language: “The INS usually houses persons under the age of 18 in an open setting, such as a foster or group home, and not in detention facilities. If you believe that you have not been properly placed or that you have been treated improperly, you may ask a federal judge to review your case. You may call a lawyer to help you do this. If you cannot afford a lawyer, you may call one from the list of free legal services given to you with this form.”

ORR also proposes at § 410.1109(a)(3) that a presentation regarding their legal rights would be provided to each unaccompanied child as provided under proposed § 410.1309(a)(2). We refer readers to proposed § 410.1309(a) for additional information regarding this presentation. ORR would take appropriate steps to ensure that the information it presents to unaccompanied children is communicated effectively to individuals with disabilities, including through the provision of auxiliary aids and services as required by section 504 of the Rehabilitation Act of 1973 and HHS' implementing regulations at 45 CFR 85.51. ORR would also take reasonable steps to ensure that individuals with limited English proficiency have a meaningful opportunity to access information and participate in ORR programs, including through the provision of interpreters or translated documents. We request comments on steps ORR should take to ensure that it provides effective communication access to unaccompanied children who are individuals with disabilities. We also request comment on steps ORR should take to ensure meaningful access to unaccompanied children who are limited English proficient regarding information about and participation in ORR programs.

Finally, under proposed § 410.1109(b), consistent with ORR's existing policy, ORR shall not engage in retaliatory actions against legal service providers or any other practitioner because of advocacy or appearance in an action adverse to ORR. ORR proposes this text, notwithstanding the general presumption that government agencies and officials act with integrity and regularity,

to further express ORR's intent to promote and protect unaccompanied children's ability to access legal counsel. For discussion regarding the availability of administrative review of ORR placement decisions, ORR refers readers to proposed subpart J of this proposed rule.

See, e.g., Nat'l Archives & Records Admin.

Favish,

541 U.S. 157, 174 (2004).

Subpart C—Releasing an Unaccompanied Child From ORR Custody

Section 410.1200 Purpose of This Subpart

This proposed subpart regards ORR's policies and procedures regarding release, without unnecessary delay, of an unaccompanied child from ORR custody to a vetted and approved sponsor. Release is defined in subpart A as the ORR-approved transfer of an unaccompanied child from ORR care and custody to a vetted and approved sponsor in the United States. Accordingly, release does not include discharge for other reasons, including but not limited to those such as the child turning 18, attaining legal immigration status, or being removed to their home country.

As discussed in this proposed subpart, once an unaccompanied child is released by ORR to a sponsor, that unaccompanied child is no longer in ORR's custody. The TVPRA distinguishes minors in HHS custody from those released to “proposed custodians” determined by ORR to be “capable of providing for the child's physical and mental well-being.”

In addition, under the FSA, once an unaccompanied child is released to a sponsor, the sponsor assumes custody.

This subpart includes the proposed process for determining that sponsors are able to care for the child's physical and mental well-being.

8 U.S.C. 1232(c)(3)(A).

See, e.g.,

FSA at paragraph 15 (requiring sponsors to sign an Affidavit of Support and an agreement to, among other things, provide for the unaccompanied child's physical, mental, and financial well-being); see also paragraph 19 (noting that in any case where an unaccompanied child is not released to a sponsor, the unaccompanied child “shall remain in INS legal custody.”).

Subpart C also proposes notice and appeal processes and procedures that certain potential sponsors will be afforded. This NPRM proposes that parents or legal guardians of an unaccompanied child who are denied sponsorship of that unaccompanied child be afforded the ability to appeal such denials. Because issues relating to procedures for non-parent relatives are currently in litigation in the

Lucas R.

case, they are not part of this rulemaking.

Section 410.1201 Sponsors to Whom ORR Releases an Unaccompanied Child

Proposed § 410.1201 describes sponsors to whom ORR may release an unaccompanied child and criteria that

ORR employs when assessing a potential sponsor. As discussed, the HSA makes ORR responsible for making and implementing placement determinations for unaccompanied children.

In addition to these statutory requirements, the FSA establishes a general policy favoring release of unaccompanied children to sponsors, and further describes a preferred order of release, which ORR follows as a matter of policy.

See

6 U.S.C. 279(b)(1).

See also

8 U.S.C. 1232(c)(2)(A).

See

FSA at paragraph 14.

Consistent with its statutory authority and the FSA, proposed § 410.1201(a) lists potential sponsors in order of release preference. ORR notes that this order of preference reflects its strong belief that, generally, placement with a vetted and approved family member or other vetted and approved sponsor, as opposed to in an ORR care provider facility, whenever feasible, is in the best interests of unaccompanied children. Proposed § 410.1201(a) would therefore codify the following order of preference for release of unaccompanied children: (1) to a parent; (2) to a legal guardian; (3) to an adult relative; (4) to an adult individual or entity, designated by the parent or legal guardian as capable and willing to care for the unaccompanied child's well-being through a declaration signed by the parent or legal guardian under penalty of perjury before an immigration or consular officer, or through such other document(s) that establish(es) to the satisfaction of ORR, in its discretion, the affiant's maternity, paternity, or guardianship; (5) to a standard program willing to accept legal custody of the unaccompanied child; or (6) to an adult individual or entity seeking custody, in the discretion of ORR, when it appears that there is no other likely alternative to long term custody and release to family members does not appear to be a reasonable possibility. Possible scenarios in which ORR envisions (6) may be applicable include, for example, foster parents or other adults who have built or are building a relationship with an unaccompanied child while in ORR care, such as a teacher or coach, and in which it is possible to ensure that a healthy and viable relationship exists between the unaccompanied child and proposed sponsor. Proposed § 410.1202, discussed below, describes ORR's proposed sponsor suitability assessment process, which includes an assessment of the potential sponsor's previous and existing relationship with the unaccompanied child.

Under proposed § 410.1201(b), consistent with existing policy, ORR would not disqualify potential sponsors based solely on their immigration status. In addition, ORR proposes that it shall not collect information on immigration status of potential sponsors for law enforcement or immigration enforcement related purposes. ORR will not share any immigration status information relating to potential sponsors with any law enforcement or immigration related entity at any time. To the extent ORR does collect information on the immigration status of a potential sponsor, it would be only for the purposes of evaluating the potential sponsor's ability to provide care for the child (

e.g.,

whether there is a plan in place to care for the child if the potential sponsor is undocumented and detained).

Proposed § 410.1201(c) provides that, in making determinations regarding the release of unaccompanied children to potential sponsors, ORR shall not release unaccompanied children on their own recognizance.

Section 410.1202 Sponsor Suitability

Before releasing an unaccompanied child to a sponsor, ORR has a responsibility to ensure that the sponsor has been determined to be able to care for the child's physical and mental wellbeing and has not engaged in activity that would indicate a potential risk to the child.

Further, under the FSA, ORR may require a positive result in a suitability assessment of an individual or program prior to releasing an unaccompanied child to that entity, which may include an investigation of the living conditions in which the unaccompanied child would be placed and the standard of care the child would receive, verification of the identity and employment of the individuals offering support, interviews of members of the household, and a home visit. The FSA also provides that any such assessment should also take into consideration the wishes and concerns of the minor. ORR believes that this assessment of suitability may also include review of past criminal history, if any, and fingerprinting, as discussed subsequently in this section.

See

8 U.S.C. 1232(c)(3)(A).

See also

FSA paragraph 17.

Consistent with statutory authorities and the FSA, and with existing policy, proposed § 410.1202(a) would require potential sponsors to complete an application package to be considered as a sponsor for an unaccompanied child. Application packages, in the potential sponsor's native or preferred language, would be able to be obtained from either the care provider facility or from ORR directly to ensure sponsors have access to the application.

Also consistent with existing policy, proposed § 410.1202(b) establishes that suitability assessments will be conducted for all sponsors prior to release of a child to a potential sponsor and describes the minimum requirements for a suitability assessment. Consistent with ORR's responsibilities under 8 U.S.C. 1232(c)(3)(A), and with its current policies, suitability assessments would, at minimum, consist of review of the proposed sponsor's application package described in § 410.1202(a), including verification of the proposed sponsor's identity and the proposed sponsor's relationship to the child. ORR may consult with the issuing agency (

e.g.,

consulate or embassy) of the sponsor's identity documentation to verify the validity of the sponsor identity document presented and may also conduct a background check on the proposed sponsor.

Proposed § 410.1202(c) through (i) describe additional requirements or discretionary provisions related to completion of a suitability assessment. These proposed requirements are in addition to those described at 8 U.S.C. 1232(c)(3)(A) (describing “minimum” requirements for suitability assessments), and ORR proposes them consistent with its authority to implement policies with respect to the care and placement of unaccompanied children as described at 6 U.S.C. 279(b)(1)(E). Proposed § 410.1202(c) would provide ORR the discretion to evaluate the overall living conditions into which the unaccompanied child would be placed upon release to the potential sponsor. Proposed paragraph (c) therefore provides that ORR may interview members of the potential sponsor's household, conduct a home visit or home study pursuant to proposed § 410.1204, and conduct background and criminal records checks, which may include biometric checks such as fingerprint-based criminal record checks on a potential sponsor and on adult household members, consistent with the TVPRA requirement to make an independent finding that the proposed sponsor has not engaged in any activity that would indicate a potential risk to the child. Proposed § 410.1202(c) also permits ORR to verify the employment, income, or other information provided by the individuals offering support. The TVPRA at 8 U.S.C. 1232(c)(3) does not require a verification of the sponsor's employment. However, ORR is

proposing to include this as a permissible consideration as part of the suitability assessment to ensure sponsors can show they have resources to provide for the child's physical and mental well-being. Although ORR believes this information may be relevant, it will not automatically deny an otherwise qualified sponsor solely on the basis of low income or employment status (either formal or informal). Finally, proposed § 410.1202(c) establishes that any suitability assessment also take into consideration the wishes and concerns of the unaccompanied child, consistent with FSA paragraph 17.

As part of a suitability assessment and determining whether a proposed sponsor can care for not just an unaccompanied child's physical well-being but also an unaccompanied child's mental well-being, ORR proposes to include additional assessment components to evaluate the environment into which the unaccompanied child may be placed. Under proposed § 410.1202(d), ORR would assess the nature and extent of the sponsor's previous and current relationship with the unaccompanied chil

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