Processing, Detention, and Release of Juveniles

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 236

[INS No. 1906-98]

RIN 1115-AFO5

Processing, Detention, and Release of Juveniles

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization

(Service) regulations by establishing the procedures for processing

juveniles in Service custody. The new rule sets guidelines for the

release of juveniles from custody and the detention of unreleased

juveniles in state-licensed programs and detention facilities. The rule

also governs the transportation and transfer of juveniles in Service

custody.

DATES: Written comments must be submitted on or before September 22,

1998.

ADDRESSES: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC

20536. To ensure proper handling, please reference INS No. 1906-98 on

your correspondence. Comments are available for public inspection at

the above address by calling (202) 514-3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

John J. Pogash, Headquarters Juvenile Coordinator, Immigration and

Naturalization Service, 425 I Street, NW. Room 3008, Washington, DC

20536, telephone (202) 514-1970.

SUPPLEMENTARY INFORMATION:

Background

What is the basis for the proposed rule?

The Service has settled Flores v. Reno, the class-action lawsuit

filed as a challenge to the Service's policies on the detention,

processing, and release of juveniles. Although certain aspects of the

lawsuit were won previously by either the plaintiffs or the Service,

the parties resolved the remaining aspects in a comprehensive

settlement that addressed juvenile processing, transport, release, and

detention. The substantive terms of the settlement form the basis for

the proposed rule.

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Has there been any previous opportunity to comment on the terms of the

proposed rule?

The parties to the Flores v. Reno lawsuit provided the plaintiff

class, composed of all juveniles in Service custody, a 30-day

opportunity to object to the terms of the settlement agreement. In the

absence of any objection, the federal court approved the terms of the

settlement agreement, which now forms the basis for the proposed rule.

Explanation of Changes

What changes are being made to the regulations?

The proposed rule establishes the framework for the processing,

release, and detention of juveniles in Service custody. The proposed

rule revises Sec. 236.3. The section is redesignated: ``Sec. 236.3

Processing, detention, and release of juveniles.''

The rule maintains the substance of former sections Sec. 242.24(f),

(g), and (h) regarding notice to parents of juveniles' applications for

relief, voluntary departure, and the notice and request for

disposition. The language of former Sec. 242.24(g) and (h) has been

amended and redesignated as, respectively, paragraphs (c)(3) and (c)(2)

of this section. The rule amends those provisions to conform more

accurately to the terms of the federal court's ruling in Perez-Funez v.

District Director, 619 F. Supp. 656 (C.D. Cal. 1985). The court's

decision in that case required the Service, prior to offering voluntary

departure from the United States in lieu of deportation, to provide a

simplified rights advisal to each juvenile who was unaccompanied by a

natural or lawful parent when taken into custody. (The court also

required the Service to provide other safeguards, such as the

opportunity to place telephone calls to family members, friends, or

legal representatives prior to being offered voluntary departure. The

Service previously implemented those safeguards at former

Sec. 242.24(g) and now maintains them in paragraph (c)(3) of this

section.) The required rights advisal is incorporated into the Form I-

770, Notice of Rights and Request for Disposition. This form explains

the minor's rights to make telephone calls, to be represented by an

attorney, and to have a removal hearing. Although the Form I-770

accurately states that the proper recipients of the form are those

juveniles who are unaccompanied by a natural or lawful parent, the

former regulation at Sec. 242.24(g) and (h) was overly broad in stating

that the Service should apply the voluntary departure procedures to any

juvenile alien apprehended by the Service. Therefore, the proposed rule

amends the regulatory language to comport with the court's ruling in

Perez-Funez and the instructions on the Form I-770.

Similarly, the rule proposes to amend the former language of

Sec. 242.24(h) to make it clear that the Service must serve the Notice

of Rights (Form I-770) only upon those juveniles who are not ``arriving

aliens'' as defined at Sec. 1.1(q). That section defines an ``arriving

alien'' as ``an applicant for admission coming or attempting to come

into the United States at a port-of-entry, or an alien seeking transit

through the United States at a port-of-entry, or an alien interdicted

in international or United States waters and brought into the United

States by any means, whether or not to a designated port-of-entry, and

regardless of the means of transport. . . .'' The amended language in

paragraph (c)(2) of this section accurately reflects that section 240B

of the Immigration and Nationality Act (the Act) explicitly states that

voluntary departure is not available to ``an alien who is arriving in

the United States.'' The proposed rule's amended language will avoid

any confusion caused by the Service of the Form I-770 on an arriving

alien juvenile.

Adding new regulatory language on the detention and release of

juveniles in custody, the proposed rule provides that the Service shall

place detained juveniles in the least restrictive setting appropriate

to the juvenile's age and circumstances, so long as the placement is

consistent with the need to protect the well-being of the juvenile or

others and to ensure the juvenile's presence before the Service or the

immigration court. The Service will separate unaccompanied juveniles

from unrelated adults in detention. If the Service does not release the

juvenile immediately, the Service will hold the juvenile temporarily in

a Service facility having separate accommodations for juveniles, or in

a juvenile detention facility having separate accommodations for non-

delinquent juveniles, pending placement in a state-licensed residential

program.

The rule provides that if detention of the juvenile is not

necessary to protect the juvenile or others, or to ensure that he or

she will appear in immigration court, the Service shall release him or

her to a custodian meeting certain qualifications. The custodian will

be required to sign an agreement to perform several duties, including

providing for the juvenile's needs and ensuring the juvenile's presence

in immigration court. The Service may require a suitability assessment

and a home visit prior to releasing a juvenile to a custodian.

If a juvenile is to remain in Service custody pending the

completion of his or her immigration court proceedings, the Service

shall place the juvenile in a State-licensed residential program. The

rule requires the Service to place juveniles in such programs within

given time periods, depending on the circumstances of the case.

The Service may place certain juveniles in more secure detention.

If a juvenile has committed a crime or a juvenile delinquent offense,

has committed or threatened to commit violent acts, has engaged in

disruptive behavior, is an escape risk, or is in danger, the Service

may place him or her in a juvenile detention facility or a Service

facility having separate accommodations for juveniles.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in

accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has

reviewed this regulation and, by approving it, certifies that this rule

will not have a significant economic impact on a substantial number of

small entities. The rule addresses only government operations. It

places no new obligations on small entities or other private

individuals or businesses.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and

tribal governments, in the aggregate, or by the private sector, of $100

million or more in any 1 year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Act of 1996. This rule will not

result in an annual effect on the economy of $100 million or more; a

major increase in costs or prices; or significant adverse effects on

competition, employment, investment, productivity, innovation, or on

the ability of United States-based companies to compete with foreign-

based companies in domestic and export markets.

Executive Order 12866

This rule is not considered by the Department of Justice,

Immigration and

[[Page 39761]]

Naturalization Service, to a ``significant regulatory action'' under

Executive Order 12866, section 3(f), Regulatory Planning and Review,

and has not been reviewed by the Office of Management and Budget.

Executive Order 12612

The regulation adopted herein will not have substantial direct

effects on the States, on the relationship between the National

Government and the States, or on the distribution of power and

responsibilities among the various levels of government. Therefore, in

accordance with Executive Order 12612, it is determined that this rule

does not have sufficient federalism implications to warrant the

preparation of a Federalism Assessment.

Executive Order 12988 Civil Justice Reform

This interim rule meets the applicable standards set forth in

sections 3(a) and 3(b)(2) of E.O. 12988.

List of Subjects in 8 CFR Part 236

Administrative practice and procedure, Aliens, Immigration.

Accordingly, part 236 of chapter I of title 8 of the Code of

Federal Regulations is proposed to be amended as follows:

PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE

ALIENS; REMOVAL OF ALIENS ORDERED REMOVED

1. The authority citation for part 236 continues to read as

follows:

Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 8

CFR part 2.

2. Section 236.3 is revised to read as follows:

Sec. 236.3 Processing, detention, and release of juveniles.

(a) Definitions. As used in this part, the term: Chargeable means

that the Service has reasonable grounds to believe that the individual

has committed a specified offense.

Escape-risk means that there is a serious risk that the juvenile

will attempt to escape from custody. Factors to consider when

determining whether a juvenile is an escape-risk include, but are not

limited to, whether:

(i) The juvenile is currently under a final order of removal,

deportation or exclusion;

(ii) The juvenile's immigration history includes: a prior breach of

a bond; a failure to appear before the Service or the immigration

court; evidence that the juvenile is indebted to organized smugglers

for his or her transport; or a voluntary departure or a previous

removal from the United States pursuant to a final order of removal,

deportation, or exclusion;

(iii) The juvenile has previously absconded or attempted to abscond

from Service custody.

Juvenile means a person under the age of 18 years. However,

individuals who have been emancipated by a state court or convicted and

incarcerated for a criminal offense as an adult are not considered

juveniles. Such individuals must be treated as adults for all purposes,

including confinement and release on bond. Similarly, if a reasonable

person would conclude that an individual is an adult despite his or her

claims to be a juvenile, the Service shall treat such person as an

adult for all purposes, including confinement and release on bond or

recognizance. The Service may require such an individual to submit to a

medical or dental examination conducted by a medical professional or to

submit to other appropriate procedures to verify his or her age. If the

Service subsequently determines that such an individual is a juvenile,

he or she will be treated as a juvenile for all purposes.

Licensed program means any program, agency, or organization

licensed by an appropriate state agency and contracted by the Service

to provide residential, group, or foster care services for dependent

juveniles. The term may include a program operating group homes, foster

homes, or facilities for juveniles with special needs, i.e., mental

and/or physical conditions requiring special services and treatment by

staff. When possible, the Service shall place juveniles having special

needs in licensed programs with juveniles without special needs. All

homes and facilities operated by licensed programs shall be non-secure

as required under state law. All licensed programs must also meet the

standards for program content imposed by the Service.

Medium security facility means a state-licensed facility that is

designed for juveniles who require close supervision but not secure

detention. Such a facility provides 24-hour awake supervision and

maintains stricter security measures, such as intense staff

supervision, than a licensed program. It may have a secure perimeter

but shall not be equipped internally with major restraining

construction or procedures typically associated with correctional

facilities. A medium security facility must also meet the standards for

program content imposed on licensed programs by the Service.

Secure facility means a state or county juvenile detention facility

or a Service or Service-contract facility that has separate

accommodations for juveniles.

(b) General policy. The Service will place each detained juvenile

in the least restrictive setting appropriate to the juvenile's age and

special needs, provided that such setting is consistent with the need

to ensure the juvenile's timely appearance before the Service or the

immigration court and to protect the juvenile's well-being and that of

others. Service officers are not required to release a juvenile to any

person or agency who they have reason to believe may harm or neglect

the juvenile or fail to present him or her before the Service or the

immigration court when requested to do so.

(c) Processing. (1) Current list of counsel. Every juvenile placed

in removal proceedings under section 240 of the Act shall be provided a

current list of pro bono counsel prepared pursuant to section 239(b)(2)

of the Act.

(2) Notice of rights and request for disposition. When the Service

apprehends a juvenile alien who is not an arriving alien and who is

unaccompanied by a natural or lawful parent, the Service shall promptly

give him or her a Form I-770, Notice of Rights and Request for

Disposition. If the juvenile is less than 14 years of age or is unable

to understand the Form I-770, it shall be read and explained to the

juvenile in a language he or she understands. In the event a juvenile

who has requested a hearing pursuant to the notice subsequently decides

to accept voluntary departure, a new Form I-770 shall be given to, and

signed by, the juvenile.

(3) Voluntary departure. Each juvenile who is apprehended in the

immediate vicinity of the border while unaccompanied by a natural or

lawful parent, and who resides permanently in Mexico or Canada, shall

be informed, prior to presentation of the voluntary departure form,

that he or she may make a telephone call to a parent, close relative,

friend, or an organization found on the current list of pro bono

counsel. Each other juvenile who is unaccompanied by a natural or

lawful parent shall be provided access to a telephone and must, in

fact, communicate with either a parent, adult relative, friend, or an

organization found on the current list of pro bono counsel prior to

presentation of the voluntary departure form. If such juvenile, of his

or her own volition, asks to contact a consular officer and does, in

fact, make such contact, the requirements of this section are

satisfied.

(4) Notice of right to bond redetermination and judicial review of

placement. A juvenile charged under

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section 237 of the Act and placed in removal proceedings shall be

afforded a bond redetermination hearing before an immigration judge in

every case, unless the juvenile indicates on the Form I-286, Notice of

Custody Determination, that he or she refuses such a hearing. A

juvenile who is not released shall be provided a written explanation of

the right to judicial review of his or her placement.

(5) Notice to parent of application for relief. If a juvenile seeks

release from detention, voluntary departure, parole, or any form of

relief from removal where it appears that the grant of such relief may

effectively terminate some interests inherent in the parent-child

relationship and/or the juvenile's rights and interests are adverse

with those of the parent, and the parent is presently residing in the

United States, the parent shall be given notice of the juvenile's

application for relief and shall be afforded an opportunity to present

his or her views and assert his or her interest to the district

director or immigration judge before a determination is made as to the

merits of the request for relief.

(d) Custody. (1) Placement immediately following arrest. Following

a juvenile's arrest, the Service will provide adequate supervision to

protect the juvenile from others and will permit contact with family

members who were arrested with the juvenile. The Service will separate

unaccompanied juveniles from unrelated adults. Where such segregation

is not immediately possible, an unaccompanied juvenile will not be

detained with an unrelated adult for more than 24 hours.

(2) Temporary placement. If the juvenile is not immediately

released from custody under paragraph (e) of this section, and no

licensed program is available to care for him or her, the juvenile may

be placed temporarily in a secure facility, provided that it separates

non-delinquent juveniles in Service custody from delinquent offenders.

(3) Placement in licensed programs.

(i) Juveniles who remain in Service custody pending the conclusion

of their immigration court proceedings must be placed in a licensed

program within:

(A) Three calendar days if the juvenile was apprehended in a

Service district in which a licensed program is located and has space

available;

(B) Five business days if the juvenile must be transported from

remote areas for processing or speaks an unusual language requiring a

special interpreter for processing; or

(C) Five calendar days in all other cases.

(ii) These time requirements shall not apply, however, if a court

decree or court-approved settlement requires otherwise, or an emergency

or influx of juveniles into the United States prevents compliance, in

which case all juveniles should be placed in licensed programs as

expeditiously as possible. For purposes of this paragraph, the term

emergency means an act or event (such as a natural disaster, facility

fire, civil disturbance, or medical emergency) that prevents timely

placement of juveniles. The phrase influx of juveniles into the United

States means any time at which the Service has more than 130 juveniles

eligible for placement in licensed programs, including those already so

placed and those awaiting placement.

(4) Secure and supervised detention. Notwithstanding paragraph

(d)(3) of this section, a juvenile may be held in or transferred to a

secure facility, whenever the district director or chief patrol agent

determines that the juvenile;

(i) Has been charged with, is chargeable, or has been convicted of

a crime, or is the subject of juvenile delinquency proceedings, is

chargeable with a delinquent act, or has been adjudicated delinquent,

unless the juvenile's offense is:

(A) An isolated offense that was not within a pattern of criminal

activity and did not involve violence against a person or the use or

carrying of a weapon (such as breaking and entering, vandalism DUI,

etc.); or

(B) A petty offense, which is not considered grounds for stricter

means of detention in any case (such as shoplifting, joy riding,

disturbing the peace, etc.);

(ii) Has committed, or has made credible threats to commit, a

violent or malicious act (whether directed at himself or herself or

others) while in Service legal custody or while in the presence of a

Service officer;

(iii) Has engaged in conduct that has proven to be unacceptably

disruptive of the normal functioning of the licensed program in which

he or she has been placed and removal is necessary to ensure the

welfare of the juvenile or others, as determined by the staff of the

licensed program (such as drug or alcohol abuse, stealing, fighting,

intimidation of others, etc.);

(iv) Is an escape-risk; or

(v) Must be held in a secure facility for his or her own safety,

such as when the Service has reason to believe that a smuggler would

abduct or coerce a particular juvenile to secure payment of smuggling

fees.

(5) Alternatives. The Service will not place a juvenile in a secure

facility pursuant to paragraph (d)(4) of this section if less

restrictive alternatives are available and appropriate in the

circumstances, such as transfer to a medium security facility that

provides intensive staff supervision and counseling services or

transfer to another licensed program.

(6) Approval and notice. All determinations to place a juvenile in

a secure facility will be reviewed and approved by the Service regional

Juvenile Coordinator. Service officers must also provide any juvenile

not placed in a licensed program with written notice of the reasons for

housing the juvenile in a secure or medium-security facility.

(7) Service custody. All juveniles not released under paragraph (e)

of this section remain in the legal custody of the Service and may only

be transferred or released under its authority; provided, however, that

in the event of an emergency, a licensed program may transfer temporary

physical custody of a juvenile prior to securing permission from the

Service but shall notify the Service of the transfer as soon as is

practicable, but in all cases within 8 hours.

(e) Release. If the Service determines that detention of a juvenile

is not required to secure timely appearance before the Service or the

immigration court or to ensure the juvenile's safety or that of others,

the Service shall release the juvenile from custody, in the following

order of preference, to:

(1) A parent;

(2) A legal guardian;

(3) An adult relative (brother, sister, aunt, uncle, or

grandparent);

(4) An adult individual or entity designated by the parent or legal

guardian as capable and willing to care for the juvenile's well-being

in:

(i) A declaration signed under penalty of perjury before an

immigration or consular officer, or

(ii) Such other documentation that establishes to the satisfaction

of the Service, in its discretion, that the person who is designating

the custodian is, in fact, the juvenile's parent or guardian;

(5) A program, agency, or organization licensed by an appropriate

state agency to provide residential services to dependent juveniles,

when it is willing to accept legal, as opposed to simply physical,

custody; or

(6) An adult individual or entity seeking custody, in the

discretion of the Service, when it appears that there is no other

likely alternative to long-term detention and family reunification does

not appear to be a reasonable possibility.

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(f) Agreements between the Service and a custodian. (1)

Certification of custodian. Before a juvenile is released from Service

custody, the custodian must execute Form I-134, an Affidavit of

Support, and an agreement to:

(i) Provide for the juvenile's physical, mental, and financial

well-being;

(ii) Ensure the juvenile's presence at all future proceedings

before the Service and the immigration court;

(iii) Notify the Service of any change of address within 5 days

following a move;

(iv) Not transfer custody of the juvenile to another party without

the prior written permission of the district director, unless the

transferring custodian is the juvenile's parent or legal guardian;

(v) Notify the Service at least 5 days prior to the custodian's

departure from the United States, whether the departure is voluntary or

pursuant to a grant of voluntary departure or order of removal; and

(vi) Notify the Service of the initiation of any State court

dependency proceedings involving the juvenile and the State dependency

court of any immigration proceedings pending against the juvenile.

(2) Emergency transfer of custody. In an emergency, a custodian may

transfer temporary physical custody of a juvenile prior to securing

permission from the Service, but must notify the Service of the

transfer as soon as is practicable, and in all cases within 72 hours.

Examples of an ``emergency'' include the serious illness of the

custodian or destruction of the home. In all cases where the custodian

seeks written permission for a transfer, the district director shall

promptly respond to the request.

(3) Termination of custody arrangements. The Service may terminate

the custody arrangements and assume custody of any juvenile whose

custodian fails to comply with the agreement required by paragraph

(f)(1) of this section. However, custody arrangements will not be

terminated for minor violations of the custodian's obligation to notify

the Service of any change of address within 5 days following a move.

(g) Suitability assessment. The Service may require a positive

suitability assessment prior to releasing a juvenile under paragraph

(e) of this section. The Service will always require a suitability

assessment prior to any release under paragraph (e)(6) of this section.

A suitability assessment may include an investigation of the living

conditions in which the juvenile is to be placed and the standard of

care he or she would receive, verification of identify and employment

of the individuals offering support, interviews of members of the

household, and a home visit. The assessment will also take into

consideration the wishes and concerns of the juvenile.

(h) Family reunification. (1) Efforts to reunite. Upon taking a

juvenile into custody, the Service, or the licensed program in which

the juvenile is placed, will promptly attempt to reunite the juvenile

with his or her family to permit the release of the juvenile under

paragraph (e) of this section. Such efforts at family reunification

will continue as long as the juvenile is in Service custody and will be

recorded by the Service or the licensed program in which the juvenile

is placed.

(2) Simultaneous release. If an individual specified in paragraph

(e) of this section cannot be located to accept custody of a juvenile,

and the juvenile has identified a parent, legal guardian, or adult

relative in Service detention, simultaneous release of the juvenile and

the parent, legal guardian, or adult relative shall be evaluated on a

discretionary case-by-case basis.

(3) Refusal of release. If a parent of a juvenile detained by the

Service can be located, and is otherwise suitable to receive custody of

the juvenile, and the juvenile indicates refusal to be released to the

parent, the parent(s) shall be notified of the juvenile's refusal to be

released to the parent(s), and shall be afforded an opportunity to

present their views to the district director, chief patrol agent, or

immigration judge before a custody determination is made.

(i) Transportation and transfer. (1) Separation from adults.

Juveniles unaccompanied by adult relatives or legal guardians should

not be transported in vehicles with detained adults except when being

transported from the place of arrest or apprehension to a Service

office or when separate transportation would be otherwise impractical,

in which case juveniles shall be separated from adults. Service

officers shall take all necessary precautions for the protection of

juveniles during transportation with adults.

(2) Travel arrangements. When a juvenile is to be released from

custody under paragraph (e) of this section, the Service will assist

him or her in making transportation arrangements to the Service office

nearest the location of the person or facility to whom the juvenile is

to be released. In its discretion, the Service may provide

transportation to such juveniles.

(3) Possessions. Whenever a juvenile is transferred from one

placement to another, he or she shall be transferred with all

possessions and legal papers; provided, however, that if the juvenile's

possessions exceed the amount normally permitted by the carrier in use,

the possessions shall be shipped to the juvenile in a timely manner.

(4) Notice. No juvenile who is presented by counsel should be

transferred without advance notice to counsel, except in unusual and

compelling circumstances such as where the safety of the juvenile or

others is threatened, or the juvenile has been determined to be an

escape-risk, or where counsel has waived notice. In these cases notice

must be provided to counsel within 24 hours following transfer.

Dated: June 10, 1998.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

[FR Doc. 98-19712 Filed 7-23-98; 8:45 am]

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