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

DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 212 and 236 DEPARTMENT OF HEALTH AND HUMAN SERVICES 45 CFR Part 410 [DHS Docket No. ICEB-2018-0002] RIN 1653-AA75, 0970-AC42 Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children AGENCY:

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

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The U.S. Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS) (“the Departments”) propose to amend regulations relating to the apprehension, processing, care, custody, and release of alien juveniles. In 1985, plaintiffs in a class action lawsuit, Flores v. Reno, challenged the policies of the legacy Immigration and Naturalization Service (INS) relating to the detention, processing, and release of alien juveniles. The parties reached a settlement agreement, referred to as the Flores Settlement Agreement (FSA). The FSA, as modified in 2001, provides that it will terminate forty-five days after publication of final regulations implementing the agreement. The rule would adopt in regulations provisions that parallel the relevant and substantive terms of the FSA, consistent with the HSA and TVPRA, with some modifications discussed further below to reflect intervening statutory and operational changes while still providing similar substantive protections and standards. It therefore would terminate the FSA. The rule would satisfy the basic purpose of the FSA in ensuring that all juveniles in the government's custody are treated with dignity, respect, and special concern for their particular vulnerability as minors, while doing so in a manner that is workable in light of subsequent changes

hanges while still providing similar substantive protections and standards. It therefore would terminate the FSA. The rule would satisfy the basic purpose of the FSA in ensuring that all juveniles in the government's custody are treated with dignity, respect, and special concern for their particular vulnerability as minors, while doing so in a manner that is workable in light of subsequent changes. The rule would also implement closely related provisions of the HSA and TVPRA.

Most prominently, the rule would create an alternative to the existing licensed program requirement for family residential centers, so that ICE may use appropriate facilities to detain family units together during their immigration proceedings, consistent with applicable law.

DATES:

Written comments and related material must be submitted on or before November 6, 2018.

ADDRESSES:

You may submit comments on the entirety of this proposed rule package identified by DHS Docket No. ICEB-2018-0002, by any one of the following methods:

• Federal eRulemaking Portal (preferred): https://www.regulations.gov. Follow the website instructions for submitting comments.

• Email: ICE.Regulations@ice.dhs.gov. Include DHS Docket No. ICEB-2018-0002 in the subject line of the message.

• Mail: Debbie Seguin, Assistant Director, Office of Policy, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street SW, Washington, DC 20536. To ensure proper handling, include DHS Docket No. ICEB-2018-0002 in your correspondence. Mail must be postmarked by the comment submission deadline.

• Hand Delivery/Courier: Visitor Entrance, U.S. Immigration and Enforcement, Department of Homeland Security, 500 12th Street SW, Washington, DC 20536.

Instructions: All comments submitted outside of the Federal eRulemaking Portal must include the docket number for this rulemaking

DHS Docket No. ICEB-2018-0002 in your correspondence. Mail must be postmarked by the comment submission deadline.

• Hand Delivery/Courier: Visitor Entrance, U.S. Immigration and Enforcement, Department of Homeland Security, 500 12th Street SW, Washington, DC 20536.

Instructions: All comments submitted outside of the Federal eRulemaking Portal must include the docket number for this rulemaking. All comments received may be posted without change to the Federal eRulemaking Portal at https://www.regulations.gov, including any personal or commercial information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

Docket: For access to the docket to read background documents or comments received, go to https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

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

For HHS: Division of Policy, Office of the Director, Office of Refugee Resettlement, Administration for Children and Families, by email at UACPolicy@acf.hhs.gov. Do not email comments on the proposed rule to this address. Office of Refugee Resettlement, 330 C Street SW, Washington, DC 20201. Telephone 202-401-9246.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act II. Table of Abbreviations III. Executive Summary A. Purpose of the Regulatory Action B. Legal Authority C. Costs and Benefits IV. Background and Purpose A. History B. Authority 1. Statutory and Regulatory Authority 2. Flores Settlement Agreement Implementation 3. Recent Court Orders C. Basis and Purpose of Regulatory Action 1. Need for Regulations Implementing the Relevant and Substantive Terms of the FSA 2

f Abbreviations III. Executive Summary A. Purpose of the Regulatory Action B. Legal Authority C. Costs and Benefits IV. Background and Purpose A. History B. Authority 1. Statutory and Regulatory Authority 2. Flores Settlement Agreement Implementation 3. Recent Court Orders C. Basis and Purpose of Regulatory Action 1. Need for Regulations Implementing the Relevant and Substantive Terms of the FSA 2. Purpose of the Regulations V. Discussion of Elements of the Proposed Rule A. DHS Regulations B. HHS Regulations VI. Statutory and Regulatory Requirements A. Executive Orders 12866 and 13563: Regulatory Review B. Regulatory Flexibility Act C. Small Business Regulatory Enforcement Fairness Act of 1996 D. Unfunded Mandates Reform Act of 1995 E. Congressional Review Act F. Paperwork Reduction Act G. Executive Order 13132: Federalism H. Executive Order 12988: Civil Justice Reform I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use J. National Environmental Policy Act (NEPA) K. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights L. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks M. National Technology Transfer and Advancement Act N. Family Assessment VII. List of Subjects and Regulatory Amendments I. Public Participation

We encourage all interested parties to participate in this rulemaking by submitting written comments, views, and data on all aspects of this proposed rule. The Departments also invite comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. All comments received will be posted, without change, to https:// as part of the public record and will include any personal or commercial information you provide.

A. Submitting Comments

All comments must be submitted in English, or an English translation must be provided

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

A. Submitting Comments

All comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to the Departments will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. If you submit comments, please indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. As this rule is being promulgated by two Departments, it is especially helpful if your comment, and each relevant part of that comment, indicates a specific section to which it applies, or at a minimum each specific Department or Departments to which it is addressed. In this way, the comment may be better understood and distributed to the appropriate Department for response. You may submit your comments and materials online or by mail, but please use only one of these means. If you submit a comment online via https://www.regulations.gov, it will be considered received when it is received at the Docket Management Facility.

Instructions: To submit your comments online, go to https://www.regulations.gov, and insert “ICEB-2018-0002” in the “Search” box. Click on the “Comment Now!” box and input your comment in the text box provided. Click the “Continue” box, and if you are satisfied with your comment, follow the prompts to submit it. If you submit your comments by mail, you must include DHS Docket No. ICEB-2018-0002, and submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic scanning and filing

x. Click on the “Comment Now!” box and input your comment in the text box provided. Click the “Continue” box, and if you are satisfied with your comment, follow the prompts to submit it. If you submit your comments by mail, you must include DHS Docket No. ICEB-2018-0002, and submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic scanning and filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at https://www.regulations.gov, and will include any personal or commercial information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal or commercial information that you provide in any voluntary public comment submission you make to the Departments. The Departments may withhold information provided in comments from public viewing that is determined may impact the privacy of an individual or is offensive. For additional information, please read the “Privacy and Security Notice” that is available via the link in the footer of https://www.regulations.gov.

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

Note:

The Departments will only consider comments timely submitted to the docket for this rulemaking. In light of the period of time that has elapsed since the 1998 DOJ proposed rule on this topic, the Departments have established a new docket for this rulemaking. Comments submitted to the Departments on this topic prior to opening of the docket for this proposed rule will not be incorporated into the docket for this rulemaking; commenters should resubmit those comments, with necessary updates, as appropriate.

B

eriod of time that has elapsed since the 1998 DOJ proposed rule on this topic, the Departments have established a new docket for this rulemaking. Comments submitted to the Departments on this topic prior to opening of the docket for this proposed rule will not be incorporated into the docket for this rulemaking; commenters should resubmit those comments, with necessary updates, as appropriate.

B. Viewing Comments and Documents

Docket: To view comments, as well as documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov and insert “ICEB-2018-0002” in the “Search” box. Click on the “Open Docket Folder,” and you can click on “View Comment” or “View All” under the “Comments” section of the page. Individuals without internet access can make alternate arrangements for viewing comments and documents related to this rulemaking by contacting ICE through the FOR FURTHER INFORMATION CONTACT section above. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

C. Privacy Act

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

II. Table of Abbreviations

ACF—Administration for Children and Families BPA—U.S. Border Patrol Agent CBP—U.S. Customs and Border Protection CBPO—U.S. Customs and Border Protection Officer DHS—U.S. Department of Homeland Security DOJ—U.S. Department of Justice EOIR—Executive Office for Immigration Review FRC—Family Residential Center FSA— Flores Settlement Agreement HHS—U.S. Department of Health and Human Services HSA—Homeland Security Act of 2002 ICE—U.S

and Families BPA—U.S. Border Patrol Agent CBP—U.S. Customs and Border Protection CBPO—U.S. Customs and Border Protection Officer DHS—U.S. Department of Homeland Security DOJ—U.S. Department of Justice EOIR—Executive Office for Immigration Review FRC—Family Residential Center FSA— Flores Settlement Agreement HHS—U.S. Department of Health and Human Services HSA—Homeland Security Act of 2002 ICE—U.S. Immigration and Customs Enforcement IIRIRA—Illegal Immigration Reform and Immigrant Responsibility Act of 1996 INA—Immigration and Nationality Act INS—Immigration and Naturalization Service JFRMU—Juvenile and Family Residential Management Unit OFO—U.S. Customs and Border Protection, Office of Field Operations OMB—Office of Management and Budget ORR—Office of Refugee Resettlement, U.S. Department of Health and Human Services TVPRA—William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 UAC(s)—Unaccompanied Alien Child(ren) USCIS—U.S. Citizenship and Immigration Services USBP—U.S. Border Patrol, U.S. Customs and Border Protection III. Executive Summary

A. Purpose of the Regulatory Action

This rulemaking would implement the relevant and substantive terms of the Flores Settlement Agreement (FSA), with such limited changes as are necessary to implement closely-related provisions of the Homeland Security Act of 2002 (HSA), Public Law 107-296, sec. 462, 116 Stat. 2135, 2202, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457, title II, subtitle D, 122 Stat. 5044. The proposed regulations would take account of certain changed circumstances, ensure that the regulations accomplish a sound and proper implementation of governing federal statutes, and set forth a sustainable operational model of immigration enforcement. For example, one operational shift under the FSA has been the extension of the agreement to apply to accompanied minors, i.e., juveniles who arrive at the border with their parents or legal guardians

changed circumstances, ensure that the regulations accomplish a sound and proper implementation of governing federal statutes, and set forth a sustainable operational model of immigration enforcement. For example, one operational shift under the FSA has been the extension of the agreement to apply to accompanied minors, i.e., juveniles who arrive at the border with their parents or legal guardians. That has created a series of operational difficulties, most notably with respect to a state-licensing requirement for a family residential center (FRC) in which such parents/legal guardians and children may be placed during immigration proceedings. Additionally, changes to the operational environment since 1997, as well as the enactment of the HSA and the TVPRA, have rendered some of the substantive terms of the FSA outdated, similarly making compliance with the HSA, the TVPRA, other immigration laws, and the FSA problematic without some modification of the literal text of the FSA. These provisions are designed, however, so that they still implement the substantive

From a practical perspective, one of the most important changes from the literal text of the FSA would be the licensing requirement that applies to programs in which minors may be detained during immigration proceedings. Under the FSA, such facilities must be licensed “by an appropriate State agency . . . for dependent children.” FSA paragraph 6. That requirement is sensible for unaccompanied alien children, because all States have licensing schemes for the housing of unaccompanied juveniles who are by definition “dependent children,” and accordingly the rule would not change that requirement for those juveniles

. Under the FSA, such facilities must be licensed “by an appropriate State agency . . . for dependent children.” FSA paragraph 6. That requirement is sensible for unaccompanied alien children, because all States have licensing schemes for the housing of unaccompanied juveniles who are by definition “dependent children,” and accordingly the rule would not change that requirement for those juveniles. But the need for the license to come specifically from a “state agency” (rather than a federal agency) is problematic now that the FSA has been held to apply to accompanied minors, including those held at FRCs, because States generally do not have licensing schemes for facilities to hold minors who are together with their parents or legal guardians, and therefore are by definition not “dependent children.” The application of the FSA's requirement for “state” licensing to accompanied minors can effectively require DHS to release minors from detention in a non-state-licensed facility even if the parent/legal guardian and child would otherwise continue to be detained together during their removal proceedings, consistent with applicable law. The rule here would eliminate that barrier to the continued use of FRCs, by creating an alternative federal licensing scheme for such facilities. The goal is to provide materially identical assurances about the conditions of such facilities, and thus to implement the underlying purpose of the FSA's licensing requirement, and in turn to allow families to remain together during their immigration proceedings.

B. Legal Authority

The Secretary of Homeland Security derives her authority to promulgate these proposed regulatory amendments primarily from the Immigration and Nationality Act (INA or Act), as amended, 8 U.S.C. 1101 et seq. The Secretary may “establish such regulations” as she deems necessary for carrying out her authorities under the INA. INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3)

proceedings.

B. Legal Authority

The Secretary of Homeland Security derives her authority to promulgate these proposed regulatory amendments primarily from the Immigration and Nationality Act (INA or Act), as amended, 8 U.S.C. 1101 et seq. The Secretary may “establish such regulations” as she deems necessary for carrying out her authorities under the INA. INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). In addition, section 462 of the HSA and section 235 of the TVPRA prescribe substantive requirements and procedural safeguards to be implemented by DHS and HHS with respect to unaccompanied alien children (UACs). There have also been a series of court decisions arising out of the FSA. See, e.g., Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017); Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016); Flores v. Sessions, No. 2:85-cv-04544 (C.D. Cal. June 27, 2017).

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

Consistent with provisions in the HSA, the TVPRA places the responsibility for the care and custody of all UACs who are not eligible to be repatriated to a contiguous country with the Secretary of Health and Human Services. 1 Prior to the transfer of the program, the Commissioner of Immigration and Naturalization, through a delegation from the Attorney General, had authority “to establish such regulations . .

th provisions in the HSA, the TVPRA places the responsibility for the care and custody of all UACs who are not eligible to be repatriated to a contiguous country with the Secretary of Health and Human Services. 1 Prior to the transfer of the program, the Commissioner of Immigration and Naturalization, through a delegation from the Attorney General, had authority “to establish such regulations . . . as he deems necessary for carrying out his authority under the provisions of this Act.” INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 8 CFR 2.1 (2002). In accordance with the relevant savings and transfer provisions of the HSA, see 6 U.S.C. 279, 552, 557; see also 8 U.S.C. 1232(b)(1), the ORR Director now possesses the authority to promulgate regulations concerning ORR's administration of its responsibilities under the HSA and TVPRA, and the FSA at paragraph 40, as well, specifically envisions promulgation of such regulations.

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

C. Costs and Benefits

This proposed rule would implement the FSA by putting in regulatory form measures that materially parallel its standards and protections, and also by codifying the current requirements for complying with the FSA, the HSA, and TVPRA. U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) encounter minors and UACs in different manners. CBP generally encounters UACs and minors at the border. In Fiscal Year (FY) 2017, CBP apprehended 113,920 juveniles. 2 Generally, ICE encounters minors either upon transfer from CBP to a family residential center (FRC), or during interior enforcement actions. In FY 2017, 37,825 family members were booked into ICE's three FRCs, 20,606 of whom were minors. ICE generally encounters UACs when it transports UACs who are transferred out of CBP custody to ORR custody, as well as during interior enforcement actions

les. 2 Generally, ICE encounters minors either upon transfer from CBP to a family residential center (FRC), or during interior enforcement actions. In FY 2017, 37,825 family members were booked into ICE's three FRCs, 20,606 of whom were minors. ICE generally encounters UACs when it transports UACs who are transferred out of CBP custody to ORR custody, as well as during interior enforcement actions.

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

The Departments consider their current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA to be the baseline for the analysis of costs and benefits. DHS already incurs the costs for these operations; therefore, they are not costs of this proposed rule. A primary source of new costs for the proposed rule would be a result of the proposed alternative licensing process, which would allow ICE to continue detaining some minors along with their accompanying parent or legal guardian in FRCs. ICE also is proposing changes to its current practice for parole determinations to align them with applicable statutory and regulatory authority, which may result in fewer minors or their accompanying parent or legal guardian released on parole. These changes may increase variable annual FRC costs paid by ICE. While DHS acknowledges that this rule may result in additional or longer detention for certain minors, DHS is unsure how many individuals will be detained at FRCs after this rule is effective or for how much longer individuals may be detained because there are so many other variables to consider. Therefore, DHS is unable to provide a quantified estimate of any increased FRC costs. DHS is also unable to provide an estimate of the cost of any increased detention on the individuals being detained

ors, DHS is unsure how many individuals will be detained at FRCs after this rule is effective or for how much longer individuals may be detained because there are so many other variables to consider. Therefore, DHS is unable to provide a quantified estimate of any increased FRC costs. DHS is also unable to provide an estimate of the cost of any increased detention on the individuals being detained. HHS does not anticipate significant new costs associated with this rule, although it will assume some costs from the Department of Justice related to hearings for UACs, with potential associated start-up costs.

The primary benefit of the proposed rule would be to implement the FSA in regulations, and in turn to terminate the agreement as contemplated by the FSA itself. The result would be to provide for the sound administration of the detention and custody of alien minors and UACs to be carried out fully, pursuant to the INA, HSA, TVPRA, and existing regulations issued by the Departments responsible for administering those statutes, rather than partially carried out via a decades-old settlement agreement. The rule would ensure that applicable regulations reflect the Departments' current operations with respect to minors and UACs in accordance with the relevant and substantive terms of the FSA and the TVPRA, as well as the INA. Further, by modifying the literal text of the FSA in limited cases to reflect and respond to intervening statutory and operational changes, DHS will ensure that it retains discretion to detain families, as appropriate and pursuant to its statutory and regulatory authorities, to meet its enforcement needs, but while still providing similar protections to minors. HHS was not an original party to the FSA and instead inherited administration of some of its provisions. The proposed rule similarly benefit HHS as it clearly delineates ORR's responsibilities from that of other Federal partners

families, as appropriate and pursuant to its statutory and regulatory authorities, to meet its enforcement needs, but while still providing similar protections to minors. HHS was not an original party to the FSA and instead inherited administration of some of its provisions. The proposed rule similarly benefit HHS as it clearly delineates ORR's responsibilities from that of other Federal partners. Additionally, the proposed implementation of the FSA's substantive provisions, specifically the minimum standards for licensed facilities and the release process, would provide clear standards for the program's network of state licensed facilities.

IV. Background and Purpose

A. History

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

On July 11, 1985, four alien juveniles filed a class action lawsuit in the U.S. District Court for the Central District of California, Flores v. Meese, No. 85-4544 (C.D. Cal. filed July 11, 1985)

les to be released to other adults only in unusual and extraordinary cases at the discretion of the District Director or Chief Patrol Agent. See Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc).

On July 11, 1985, four alien juveniles filed a class action lawsuit in the U.S. District Court for the Central District of California, Flores v. Meese, No. 85-4544 (C.D. Cal. filed July 11, 1985). The case “ar[ose] out of the INS's efforts to deal with the growing number of alien children entering the United States by themselves or without their parents (unaccompanied alien minors).” Flores v. Meese, 934 F.2d 991, 993 (9th Cir. 1990). The class was defined to consist of “all persons under the age of eighteen (18) years who have been, are, or will be arrested and detained pursuant to 8 U.S.C. 1252 by the INS within the INS' Western Region and who have been, are, or will be denied release from INS custody because a parent or legal guardian fails to personally appear to take custody of them.” Id. at 994.). The Flores litigation challenged “(a) the [INS] policy to condition juveniles' release on bail on their parents' or legal guardians' surrendering to INS agents for interrogation and deportation; (b) the procedures employed by the INS in imposing a condition on juveniles' bail that their parents' or legal guardians' [sic] surrender to INS agents for interrogation and deportation; and (c) the conditions maintained by the INS in facilities where juveniles are incarcerated.” See Flores Compl. paragraph 1. The plaintiffs claimed that the INS's release and bond practices and policies violated, among other things, the INA, the Administrative Procedure Act, and the Due Process Clause and Equal Protection Guarantee under the Fifth Amendment. See id. paragraphs 66-69.

Prior to a ruling on any of the issues, on November 30, 1987, the parties entered into a Memorandum of Understanding (MOU) on the conditions of detention

aimed that the INS's release and bond practices and policies violated, among other things, the INA, the Administrative Procedure Act, and the Due Process Clause and Equal Protection Guarantee under the Fifth Amendment. See id. paragraphs 66-69.

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

At approximately the same time that the MOU was executed, the INS published a proposed rule on the Detention and Release of Juveniles to amend 8 CFR parts 212 and 242. See 52 FR 38245 (Oct. 15, 1987). The stated purpose of the rule was “to codify the [INS] policy regarding detention and release of juvenile aliens and to provide a single policy for juveniles in both deportation and exclusion proceedings.” The INS issued a final rule in May 1988. 53 FR 17449 (May 17, 1988). The rule provided for release to a parent, guardian, or other relative, and discretionary release to other adults. See 53 FR at 17451. It also provided that when adults are in detention, INS would consider release of the adult and parent. Id

to provide a single policy for juveniles in both deportation and exclusion proceedings.” The INS issued a final rule in May 1988. 53 FR 17449 (May 17, 1988). The rule provided for release to a parent, guardian, or other relative, and discretionary release to other adults. See 53 FR at 17451. It also provided that when adults are in detention, INS would consider release of the adult and parent. Id.

On May 24, 1988, the district court where the original Flores case was filed held that the recently codified INS regulation, 8 CFR 242.24 (1988), governing the release of detained alien minors, violated substantive due process, and ordered modifications to the regulation. The district court also held that INS release and bond procedures for detained minors in deportation proceedings fell short of the requirements of procedural due process, and therefore ordered the INS “forthwith” to provide to any minor in custody an “administrative hearing to determine probable cause for his arrest and the need for any restrictions placed upon his release.” Flores v. Meese, 934 F.2d 991, 993 (9th Cir. 1990) (quoting the district court). The INS appealed, and the Ninth Circuit reversed the district court's holdings that the INS exceeded its statutory authority in promulgating 8 CFR 242.24 and that the regulation violated substantive due process. The Ninth Circuit also reversed the district court's procedural due process holding, identified the legal standard that the district court should have applied, and remanded the issue for the district court to further explore the issue. Id. at 1013. On rehearing en banc, however, the Ninth Circuit vacated the original panel's opinion, affirmed the district court's holding, and held that INS's regulation was invalid because the regulation violated the alien child's due process and habeas corpus rights, and detention where the alien child was otherwise eligible for release on bond or recognizance to a custodian Flores v. Meese, 942 F.2d 1352 (9th Cir

earing en banc, however, the Ninth Circuit vacated the original panel's opinion, affirmed the district court's holding, and held that INS's regulation was invalid because the regulation violated the alien child's due process and habeas corpus rights, and detention where the alien child was otherwise eligible for release on bond or recognizance to a custodian Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc) (“The district court correctly held that the blanket detention policy is unlawful. The district court's order appropriately requires children to be released to a responsible adult where no relative or legal guardian is available, and mandates a hearing before an immigration judge for the determination of the terms and conditions of release.”).

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

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

The Supreme Court decision in Reno v. Flores only resolved one of the issues in the case. The district court approved the FSA on January 28, 1997

mended in 2002 when the authority to decide issues concerning the detention and release of juveniles was moved to the Director of the Office of Juvenile Affairs from the District Directors and Chief Patrol Agents. See 67 FR 39255, 39258 (June 7, 2002).

The Supreme Court decision in Reno v. Flores only resolved one of the issues in the case. The district court approved the FSA on January 28, 1997. In 1998, the INS published a proposed rule having a basis in the substantive terms of the FSA, entitled Processing, Detention, and Release of Juveniles. See 63 FR 39759 (July 24, 1998). In 2001 the parties added a stipulation in the FSA, which terminates the FSA “45 days following defendants' publication of final regulations implementing t[he] Agreement.” Stipulated Settlement Agreement paragraph 40 [hereinafter FSA], Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Dec. 7, 2001). In January 2002, the INS reopened the comment period on the 1998 proposed rule, 67 FR 1670 (Jan. 14, 2002), but the rulemaking was ultimately abandoned. The U.S. District Court for the Central District of California has continued to rule on various motions filed in the case and oversee enforcement of the MOU and later the FSA.

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

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

To summarize those roles under the current statutory framework: DHS apprehends, provides care and custody for, transfers, and removes alien minors; DHS apprehends, transfers, and removes UACs; and ORR provides for care and custody of UACs who are in federal custody (other than those permitted to withdraw their application for admission) referred to ORR by other Departments. DHS and HHS are therefore now proposing to issue regulations implementing the relevant and substantive terms of the FSA, consistent with the HSA and TVPRA, and in turn to terminate the FSA.

B. Authority

1. Statutory and Regulatory Authority

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

The INA, as amended, provides the primary authority for DHS to detain certain aliens for violations of the immigration laws. Congress expanded legacy INS's detention authority in IIRIRA, Public Law 104-208, 110 Stat. 3009. In that legislation, Congress amended the INA by providing that certain aliens were subject to either mandatory or discretionary detention by the INS. This authorization flowed to DHS after the reorganization under the HSA. Specifically, DHS's authority to detain certain aliens comes from sections 235, 236, and 241 of the INA, 8 U.S.C. 1225, 1226, and 1231. Section 235 of the INA, 8 U.S.C

t. 3009. In that legislation, Congress amended the INA by providing that certain aliens were subject to either mandatory or discretionary detention by the INS. This authorization flowed to DHS after the reorganization under the HSA. Specifically, DHS's authority to detain certain aliens comes from sections 235, 236, and 241 of the INA, 8 U.S.C. 1225, 1226, and 1231. Section 235 of the INA, 8 U.S.C. 1225, provides that applicants for admission to the United States, including those subject to expedited removal, shall be detained during their removal proceedings, although such aliens may be released on parole in limited circumstances, consistent with the statutory standard set forth in 8 U.S.C. 1182(d)(5) and standards set forth in the regulations. Section 236 of the INA, 8 U.S.C. 1226, provides the authority to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, and section 241, 8 U.S.C. 1231, authorizes the detention of aliens during the period following the issuance of a final order of removal. Other provisions of the INA also mandate detention of certain classes of individuals, such as criminal aliens.

b. Homeland Security Act of 2002

As noted, the HSA, Public Law 107-296, 116 Stat. 2135, transferred most of the functions of the INS from DOJ to the newly-created DHS. DHS and its various components are responsible for border security, interior immigration enforcement, and immigration benefits adjudication, among other duties. DOJ's EOIR retained its pre-existing functions relating to the immigration and naturalization of aliens, including conducting removal proceedings and adjudicating defensive filings of asylum claims.

The functions regarding care of UACs were transferred from the INS to ORR. The HSA states ORR shall be responsible to coordinate and implement the care and placement of UACs who are in Federal custody by reason of their immigration status

nctions relating to the immigration and naturalization of aliens, including conducting removal proceedings and adjudicating defensive filings of asylum claims.

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

c. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

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

The Secretary of HHS delegated the authority under the TVPRA to the

2. Flores Settlement Agreement Implementation

As discussed above, in 1996 the U.S. Government and Flores plaintiffs entered into the FSA to resolve nationwide the ongoing litigation concerning the INS's detention regulations for alien minors

72 hours of determining that an alien in its custody is a UAC. 8 U.S.C. 1232(b)(3).

The Secretary of HHS delegated the authority under the TVPRA to the

2. Flores Settlement Agreement Implementation

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

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

The FSA was originally set to expire within five years, but on December 7, 2001, the Parties agreed to a termination date of “45 days following defendants' publication of final regulations implementing this Agreement.” A copy of the FSA and the 2001 Stipulation is available in the docket for this rulemaking. The primary purpose of the regulations is to “implement[] the Agreement,” and in turn to terminate the FSA.

3. Recent Court Orders

a

ve years, but on December 7, 2001, the Parties agreed to a termination date of “45 days following defendants' publication of final regulations implementing this Agreement.” A copy of the FSA and the 2001 Stipulation is available in the docket for this rulemaking. The primary purpose of the regulations is to “implement[] the Agreement,” and in turn to terminate the FSA.

3. Recent Court Orders

a. Motion To Enforce I

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

3 In this context, “class members” means minors (as defined in the FSA), including both UACs and accompanied minors.

b. Motion To Enforce II

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

.e., an alleged policy of detaining all female-headed families, including children, for as long as it takes to determine whether they are entitled to remain in the United States—violated the FSA; (2) ICE's routine confinement of class members in secure, unlicensed facilities breached the Agreement; and (3) CBP exposed class members to harsh and substandard conditions, in violation of the Agreement.

On July 24, 2015, the district court granted Plaintiffs' second motion to enforce and denied Defendant DHS's contemporaneous motion to modify the agreement. Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2015). The court found: (1) The FSA applied to all alien minors in government custody, including those accompanied by their parents or legal guardians; (2) ICE's blanket no-release policy with respect to minors accompanied by their mothers was a material breach of the FSA; (3) the FSA requires Defendant DHS to release minors with their accompanying parent or legal guardian unless this would create a significant flight risk or a safety risk; (4) DHS housing minors in secure and non-licensed FRCs violated the FSA; and (5) CBP violated the FSA by holding minors and UACs in facilities that were not safe and sanitary. Id.

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

rogram” pursuant to the 3- and 5-day requirements of paragraph 12(A), but must transfer such minors “as expeditiously as possible.” In the decision, the court referenced the Government's assertion that DHS, on average, would detain minors who are not UACs for 20 days—the general length of time required to complete credible and reasonable fear processing at that time for aliens in expedited removal. The court agreed that if 20 days was “as fast as [the Government] . . . can possibly go,” the Government's practice of holding accompanied minors in its FRCs, even if not “licensed” and “non-secure” per FSA paragraph 19, may be within the parameters of FSA paragraph 12(A). Id. at 914. In a decision issued on July 6, 2016, the Ninth Circuit agreed with the district court that during an emergency or influx, minors must be transferred “as expeditiously as possible” to a non-secure, licensed facility. Flores v. Lynch, 828 F.3d. 898, 902-03 (9th Cir. 2016). The Ninth Circuit affirmed the district court's holding that the FSA “unambiguously” applies to all alien minors and UACs in government custody 4 and concluded the district court did not abuse its discretion in denying the Government's motion to modify the FSA. The Ninth Circuit, however, reversed the district court's determination that the FSA required the release of accompanying parents. Id.

4 DHS continues to maintain that the terms of the FSA were intended to apply only to those alien children who were unaccompanied. In its brief opposing the Plaintiffs' Motion to Enforce II, DHS pointed out that the FSA was entered into for the purpose of settling a lawsuit challenging the constitutionality of the Government's policies, practices, and regulations regarding the detention and release of unaccompanied minors. See Def.'s Resp. in Opp'n to Mot. To Enforce Settlement of Class Action at 11, Flores v. Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015) (No. CV 58-4544). This proposed rule, however, covers both accompanied and unaccompanied minors.

c

ling a lawsuit challenging the constitutionality of the Government's policies, practices, and regulations regarding the detention and release of unaccompanied minors. See Def.'s Resp. in Opp'n to Mot. To Enforce Settlement of Class Action at 11, Flores v. Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015) (No. CV 58-4544). This proposed rule, however, covers both accompanied and unaccompanied minors.

c. Motion To Enforce III

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

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

The district court also concluded that CBP acted in violation of the FSA in the Rio Grande Valley Border Patrol Sector. The court pointed to allegations that CBP failed to provide class members adequate access to food and water, detained class members in conditions that were not safe and sanitary, and failed to keep the temperature of the holding cells within a reasonable range

right to counsel.

The district court also concluded that CBP acted in violation of the FSA in the Rio Grande Valley Border Patrol Sector. The court pointed to allegations that CBP failed to provide class members adequate access to food and water, detained class members in conditions that were not safe and sanitary, and failed to keep the temperature of the holding cells within a reasonable range. The court ordered the appointment of a Juvenile Coordinator for ICE and CBP, responsible for monitoring the agencies' compliance with the Agreement. The Government's appeal of that decision remains pending. See Flores v. Sessions, No. 17-56297 (9th Cir.) (docketed Aug. 28, 2017). On July 27, 2018, the district court ordered the appointment of an independent monitor to oversee compliance with the June 27, 2017 Order.

d. Motion To Enforce IV

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

On January 20, 2017, the court found that HHS breached the FSA by denying UACs the right to a bond hearing as provided for in the FSA. Flores v. Lynch, No. 2:85-cv-04544, 2017 WL 6049373 (C.D. Cal. Jan. 20, 2017). The Government appealed to the Ninth Circuit. On July 5, 2017, the Ninth Circuit affirmed the district court's ruling. The Ninth Circuit reasoned that if Congress had intended to terminate the settlement agreement in whole or in part through passage of the HSA or TVPRA, it would have said so specifically. Flores v

FSA. Flores v. Lynch, No. 2:85-cv-04544, 2017 WL 6049373 (C.D. Cal. Jan. 20, 2017). The Government appealed to the Ninth Circuit. On July 5, 2017, the Ninth Circuit affirmed the district court's ruling. The Ninth Circuit reasoned that if Congress had intended to terminate the settlement agreement in whole or in part through passage of the HSA or TVPRA, it would have said so specifically. Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017). The Government did not seek further review of this decision.

e. Motion To Enforce V

On April 16, 2018, Plaintiffs filed a fifth motion to enforce the agreement, claiming ORR unlawfully denied class members licensed placements, unlawfully medicated youth without parental authorization, and peremptorily extended minors' detention on suspicion that available custodians may be unfit. On July 30, 2018, the district court issued an Order. Flores v. Sessions, 2:85-cv-04544-DMG-AGR (ECF No. 470, Jul. 30, 2018). 5 The Order discussed the Shiloh Residential Treatment Center and placement therein, as well as informed consent for psychotropic drugs in such Center; placement in secure facilities; notice of placement in secure and staff-secure facilities; Director-level review of children previously placed in secure or staff-secure facilities and other issues. Readers should refer to the full Order for details.

5 The Department of Justice has not yet decided whether to appeal the July 30 order.

f. Motion for Relief

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

ss an Opportunity to Address Family Separation,” the Government sought limited emergency relief from two provisions of the FSA—the release provision of Paragraph 14, as well as the licensing requirements of Paragraph 19. This relief was sought in order to permit DHS to detain alien family units together for the pendency of their immigration proceedings. The court denied this motion on July 9, 2018.

This Motion to Modify sought relief consistent with this proposed rule, although this rule includes some affirmative proposals (like the federal-licensing regime) that were not at issue in that motion. For example, as discussed below, by creating a federal licensing scheme for FRCs, the proposed rule would eliminate a barrier to keeping family units in detention during their immigration proceedings, consistent with all applicable law while still providing similar substantive protections to minors. 6

6 At the time of the publication of this proposed rule, the issue of family separation and reunification is the subject of litigation in multiple jurisdictions. This proposed rule is not intended to directly address matters related to that litigation. A significant purpose of the proposed rule with regard to accompanied minors is to allow decisions regarding the detention of families to be made together as a unit, under a single legal regime, and without having a disparate legal regime applicable to the parent versus the child.

C. Basis and Purpose of Regulatory Action

1

s not intended to directly address matters related to that litigation. A significant purpose of the proposed rule with regard to accompanied minors is to allow decisions regarding the detention of families to be made together as a unit, under a single legal regime, and without having a disparate legal regime applicable to the parent versus the child.

C. Basis and Purpose of Regulatory Action

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

Under the requirements of the FSA, when DHS apprehends an alien parent or legal guardian with his or her child(ren) either illegally entering the United States between the ports of entry or found inadmissible at a port of entry, it has, following initiation of removal proceedings, three primary options for purposes of immigration custody: (1) Parole all family members into the United States; (2) detain the parent(s) or legal guardian(s) and either release the juvenile to another parent or legal guardian or transfer them to HHS to be treated as an UAC; or (3) detain the family unit together by placing them at an appropriate FRC during their immigration proceedings. The practical implications of the FSA, including the lack of state licensing for FRCs, have effectively prevented the Government from using the third option for more than a limited period of time. This rule would, when finalized, eliminate that barrier and allow for the full range of options at each stage of proceedings.

On June 20, 2018, the President issued Executive Order 13841 specifying that “[i]t is . . . the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” E.O. 13841 sec. 1, 83 FR 29435. The President further provided that the Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any . .

family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” E.O. 13841 sec. 1, 83 FR 29435. The President further provided that the Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any . . . immigration proceedings involving their members.” Id. sec. 3. The President further directed agency components to make available additional facilities for housing families. Id. sec. 3(c), (d). And the President provided that the Attorney General “shall, to the extent practicable, prioritize the adjudication of cases involving detained families.” Id. sec. 4.

There are several advantages to maintaining family unity during immigration proceedings. Those include the interest in the child being with and under the considerate care of the parent, the strong interest parents have in caring for their children, the guidance parents can provide to children during immigration proceedings and the manner in which keeping families together facilitates communications among family members, the consolidation of the family members' See Ms. L v. ICE, No. 18-428 (S.D. Cal.).

This rule serves to clear the way for the sensible use of family residential centers when it is lawful and appropriate. In particular, it would create a federal licensing process to resolve the current problem caused by a state-licensing requirement that is ill-suited to family detention, and it would allow for compatible treatment of a family unit in immigration custody and proceedings by eliminating barriers to that compatibility imposed by the FSA

of family residential centers when it is lawful and appropriate. In particular, it would create a federal licensing process to resolve the current problem caused by a state-licensing requirement that is ill-suited to family detention, and it would allow for compatible treatment of a family unit in immigration custody and proceedings by eliminating barriers to that compatibility imposed by the FSA. Further, it would eliminate the disparate legal regime that currently applies to decisions to detain a family unit, with one regime applying to the minor (the FSA, including the state-licensing requirement and release provisions under FSA paragraph 14) and another regime applying to the parent (the existing statutes and regulations governing release on bond or parole under the relevant circumstances). That disparate regime creates problems for maintaining family unity while also enforcing the immigration laws. Instead, the proposed rule would ensure that a single regime applies to the family unit, namely, the existing statutes and regulations governing release on bond or parole.

This rule would allow for detention at FRCs for the pendency of immigration proceedings (subject to all applicable statutes and regulations governing their detention or release) in order to permit families to be detained together and parents not be separated from their children. It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm. The expectation that adults with juveniles will remain in the United States outside of immigration detention may incentivize these risky practices

to the significant and ongoing influx of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm. The expectation that adults with juveniles will remain in the United States outside of immigration detention may incentivize these risky practices.

In the summer of 2014, an unprecedented number of family units from Central America illegally entered or were found inadmissible to the United States. In Fiscal Year 2013, the total number of family units apprehended entering the United States illegally on the Southwest Border was 14,855. By Fiscal Year 2014, that figure had increased to 68,445. See https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP%20Total%20Monthly%20Family%20Units%20by%20Sector%2C%20FY13-FY17.pdf .

7 See https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP%20Total%20Monthly%20Family%20Units%20by%20Sector%2C%20FY13-FY17.pdf (last visited August 17, 2018) See also https://www.cbp.gov/newsroom/stats/sw-border-migration (last visited August 17, 2018).

Table 1—Family Unit Apprehensions at the Southwest Border by Fiscal Year 7 Fiscal Year Family unit apprehensions at the Southwest Border 2013 14,855 2014 68,445 2015 39,838 2016 77,674 2017 75,622 2018 * 77,802 * Partial year data for FY 2018; does not include August and September. Prior to 2014, the only option available to the Government for the large majority of family units entering the United States was the first option described above— i.e., to issue the family a Notice to Appear and release the alien family to temporarily remain in the United States pending their removal proceedings. Thus, when an unprecedented number of families decided to undertake the dangerous journey to the United States in 2014, DHS officials faced an urgent humanitarian situation

mily units entering the United States was the first option described above— i.e., to issue the family a Notice to Appear and release the alien family to temporarily remain in the United States pending their removal proceedings. Thus, when an unprecedented number of families decided to undertake the dangerous journey to the United States in 2014, DHS officials faced an urgent humanitarian situation. DHS encountered numerous alien families and juveniles who were hungry, thirsty, exhausted, scared, vulnerable, and at times in need of medical attention, with some also having been beaten, starved, sexually assaulted or worse during their journey to the United States.

DHS mounted a multi-pronged response to this situation. As one part of this response, DHS placed families at existing FRCs and oversaw the construction of appropriate facilities to detain family units together, in a safe and humane environment, during the pendency of their immigration proceedings, which typically involved expedited removal. Although it is difficult to definitively prove a causal link given the many factors that influence migration, DHS's assessment is that this change helped stem the border crisis, as it correlated with a significant drop in family migration: Family unit apprehensions on the Southwest Border dropped from 68,445 in Fiscal Year 2014 to 39,838 in Fiscal Year 2015.

Although the border crisis prompted DHS to hold family units together, DHS quickly faced legal challenges asserting that the FSA applied to accompanied minors and that family detention did not comply with the provisions of the FSA. In July 2015, a federal court rejected the Government's interpretation of the FSA to permit family residential centers, and declined to modify the FSA to allow DHS to address this significant influx of family units crossing the border and permit family detention. See Flores v. Lynch, 828 F.3d 898, 909-10 (9th Cir. 2016)

inors and that family detention did not comply with the provisions of the FSA. In July 2015, a federal court rejected the Government's interpretation of the FSA to permit family residential centers, and declined to modify the FSA to allow DHS to address this significant influx of family units crossing the border and permit family detention. See Flores v. Lynch, 828 F.3d 898, 909-10 (9th Cir. 2016). The Government had explained to the court that doing so would “mak[e] it impossible for ICE to house families at ICE [FRCs], and to instead require ICE to separate accompanied children from their parents or legal guardians.” Flores v. Lynch, No. 85-4544, Defendants' Opposition to Motion to Enforce, ECF 121 at 17 (C.D. Cal. Feb. 27, 2015).

When the FSA was found to apply to accompanied minors—an interpretation with which the Government continues to disagree—the agencies faced new practical problems. The FSA requires DHS to transfer minors to a non-secure, licensed facility “as expeditiously as possible,” and further provides that a “licensed” facility is one that is “licensed by a State agency.” FSA paragraphs 6, 12(A). That prompted significant and ongoing litigation regarding the ability to obtain state licensing of FRCs, as many States did not have, and have not succeeded in putting in place, licensing schemes governing facilities that hold family units together. That litigation severely limited the ability to maintain detention of families together. Again, although it See Southwest Border Migration 2018, https://www.cbp.gov/newsroom/stats/sw-border-migration .

As long as the licensing must come from a state specifically (rather than from the federal government), DHS's ability to effectively use family detention is limited. A federal program (especially immigration enforcement) that the Constitution and Congress commit to federal discretion should not depend on state licensing, particularly when a well-established state licensing scheme does not already exist

ng as the licensing must come from a state specifically (rather than from the federal government), DHS's ability to effectively use family detention is limited. A federal program (especially immigration enforcement) that the Constitution and Congress commit to federal discretion should not depend on state licensing, particularly when a well-established state licensing scheme does not already exist. In order to avoid separating family units, DHS needs to release adult family members in cases where detention would otherwise be mandatory and DHS determines parole is not appropriate, or in cases where DHS and/or immigration courts believe detention of the parent is needed to ensure appearance at future removal proceedings or to prevent danger to the community. 8 Because of ongoing litigation concerning state licensure for FRCs, ICE rarely is able to hold family units for longer than approximately 20 days. The result is that many families are released in the interior of the United States. While statistics specific to family units have not been compiled, the reality is that a significant number of aliens who are not in detention either fail to appear at the required proceedings or never actually seek asylum relief, thus remaining illegally in the United States. See https://www.justice.gov/eoir/file/1083096/download (in FY 2018 to date, 26 percent of case completions for individual case completions are in absentia orders, and 53 percent of case completions for unaccompanied minors are in absentia orders).

8 Current parole regulations address parole, including for juveniles in custody as well as parole for aliens subject to expedited removal. See 8 CFR 212.5(b)(3) (parole for juveniles); 8 CFR 235.3(b)(2)(iii), (b)(4)(ii) (limiting parole for those in expedited removal proceedings). While DHS proposes amendments to section 212.5(b) as a part of this regulation, this regulation is not intended to address or alter the standards contained in sections 212.5(b) or 235.3(b)

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

As described above, there have been several important changes in law and circumstance since FSA was executed: (1) A significantly changed agency structure addressing the care and custody of juveniles, including the development of FRCs that provide appropriate treatment for minors while allowing them to be held together with their families; (2) a new statutory framework that governs the treatment of UACs; (3) significant increases in the number of families and UACs crossing the border since 1997, thus affecting immigration enforcement priorities and national security; and (4) further recognition of the importance of keeping families together during immigration proceedings when appropriate and the legal and practical implications of not providing uniform proceedings for family units in these circumstances

gnificant increases in the number of families and UACs crossing the border since 1997, thus affecting immigration enforcement priorities and national security; and (4) further recognition of the importance of keeping families together during immigration proceedings when appropriate and the legal and practical implications of not providing uniform proceedings for family units in these circumstances. The agencies have thus determined that it is necessary to put into place regulations that comply with the relevant and substantive terms of the FSA regarding the conditions for custodial settings for minors, but, through federal licensing, will provide the flexibility necessary to protect the public safety and enforce the immigration laws given current challenges that did not exist when the FSA was executed. This proposed rule will provide DHS with the option of keeping families who must or should be detained together at appropriately licensed FRCs for the time needed to complete immigration proceedings, subject to the sound implementation of existing statutes and regulations governing release on parole or bond.

2. Purpose of the Regulations

The primary purpose of this action is to promulgate regulations that would ultimately lead to the termination of the FSA, as provided for in FSA paragraph 40. This proposed rule would implement the relevant and substantive terms of the FSA and provisions of the HSA and TVPRA where they necessarily intersect with the FSA's provisions. The rule would also make some modifications to the literal text of the FSA, but while providing similar substantive protections to juveniles. For example, the rule would allow for detention of families together in federally-licensed programs (rather than facilities licensed specifically by a state). States generally do not have licensing schemes for family residential centers

the FSA's provisions. The rule would also make some modifications to the literal text of the FSA, but while providing similar substantive protections to juveniles. For example, the rule would allow for detention of families together in federally-licensed programs (rather than facilities licensed specifically by a state). States generally do not have licensing schemes for family residential centers. Thus, the literal text of the FSA currently imposes a limitation on DHS's ability to detain family units together in a FRC during their immigration proceedings, consistent with applicable law. The federal licensing scheme in turn would provide similar substantive protections regarding the conditions of such facilities, and thus implement the underlying purpose of the state-licensing requirement.

This rule is proposed under the FSA's guiding principle that the Government treats, and shall continue to treat, all juveniles in its custody with dignity, respect, and special concern for their particular vulnerability as minors.A07SE2.

The current DHS regulations on the detention and release of aliens under the age of 18 found at 8 CFR 236.3 have not been substantively updated since their promulgation in 1988. 9 DHS therefore proposes to revise 8 CFR 236.3 to promulgate the relevant and substantive terms of the FSA as regulations. In addition, there are currently no HHS regulations on this topic. HHS proposes a new 45 CFR part 410 for the same reason.

9 See Detention and Release of Juveniles, 53 FR 17449 (May 17, 1998). When published as a final rule, the provisions applying to the detention and release of juveniles were originally placed in 8 CFR 242.24. After Congress passed IIRIRA, the former INS published a final rule updating several immigration-related provisions of the CFR and moved these provisions from section 242.24 of Title 8 to § 236.3. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum proceedings, 62 FR 10312 (Mar. 6, 1997)

les were originally placed in 8 CFR 242.24. After Congress passed IIRIRA, the former INS published a final rule updating several immigration-related provisions of the CFR and moved these provisions from section 242.24 of Title 8 to § 236.3. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum proceedings, 62 FR 10312 (Mar. 6, 1997).

As noted, the proposed regulations would implement the relevant and substantive terms of the FSA and related statutory provisions. Separate from the FSA, DHS has over time developed various policies and other sub-regulatory documents that address issues related to DHS custody of minor aliens and UACs. 10 In considering these proposed regulations, DHS reviewed such policies, and determined that the proposed regulations are compatible with them. Current policies on the detention, apprehension, and transportation of minors and UACs generally would not, therefore, need to be altered to bring them into conformity with the proposed rule. This rule is not, however, intended to displace or otherwise codify such policies and procedures.

10 See, e.g., ICE, Family Residential Standards, https://www.ice.gov/detention-standards/family-residential (last visited May 1, 2018); CBP, National Standards on Transport, Escort, Detention, and Search (Oct. 2015), https://www.cbp.gov/sites/default/files/assets/documents/2017-Sep/CBP%20TEDS%20Policy%20Oct2015.pdf (last visited May 1, 2018).

Finally, this proposed rule excludes those provisions of the FSA that are 11

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

V

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

V. Discussion of Elements of the Proposed Rule

As stated above, the purpose of this rule is to terminate the FSA by to promulgating regulations that implement it, with minor modifications to reflect changes in governing law and the operational realities on the ground. These proposed regulations, therefore, largely replicate the language of the FSA for publication in the Code of Federal Regulations. The Departments propose some modifications to the literal text of the FSA, however, to ensure the Government continues to comply with the underlying goals of the FSA in a legal and operational environment that has significantly changed since the FSA was signed over 20 years ago.

The Departments have different responsibilities vis-à-vis implementation of the FSA, and so each Department's proposed regulatory text seeks to address these various responsibilities. DHS's proposed regulations seek to establish procedures for the apprehension, processing, care, custody, and release of alien minors, consistent with its obligations under the FSA. While the following sections explain why the proposed regulations do not adopt the literal text of the FSA in certain circumstances, one notable change is the proposal for an alternative licensing process that would allow FRCs to be considered “licensed programs” under FSA paragraph 6, and thus suitable for the detention of non-UAC minors, along with their accompanying parents or legal guardians, for longer periods of time than they are currently used

egulations do not adopt the literal text of the FSA in certain circumstances, one notable change is the proposal for an alternative licensing process that would allow FRCs to be considered “licensed programs” under FSA paragraph 6, and thus suitable for the detention of non-UAC minors, along with their accompanying parents or legal guardians, for longer periods of time than they are currently used. DHS proposes these changes to allow the Department to fully and consistently apply the law to all aliens who are subject to detention, so that aliens do not have the opportunity to abscond from DHS custody simply because they were encountered with children.

HHS's proposed regulations seek to establish procedures for the processing, care, custody, and release of certain UACs that by law are subject to the care and custody of ORR.

A. DHS Regulations

DHS proposes to make edits to current section 212.5 primarily to ensure that the terminology used in that section is consistent with the language used in the additional proposed amendments codifying the FSA, explained below. DHS proposes to remove the term “juvenile” from 8 CFR 212.5(b) and replace it with “minor in DHS custody,” as the proposed amendments to 8 CFR 236.3 remove the term “juvenile,” from its definitions section.

DHS also proposes to remove the words “relative,” “brother,” “sister,” “aunt,” “uncle,” “or grandparent,” and replace these terms with “parent or legal guardian.” Given that, pursuant to the HSA and TVPRA, DHS does not have the legal authority to release a juvenile in its custody to anyone other than a parent or legal guardian, 12 allowing these terms to remain in the regulatory text improperly implies that DHS will engage in an activity not authorized by statute, i.e. releasing a minor on parole into the custody of someone other than a parent or legal guardian

n that, pursuant to the HSA and TVPRA, DHS does not have the legal authority to release a juvenile in its custody to anyone other than a parent or legal guardian, 12 allowing these terms to remain in the regulatory text improperly implies that DHS will engage in an activity not authorized by statute, i.e. releasing a minor on parole into the custody of someone other than a parent or legal guardian. Further, DHS is proposing to remove paragraph (b)(3)(iii) in its entirety due to the same constraints on its legal authority to release minors to individuals who are not parents or legal guardians. DHS is also proposing to replace the term “Director, Deportation and Removal,” with “Executive Assistant Director, Enforcement and Removal Operations,” to reflect the current title of the position used within DHS.

12 See further explanation infra under discussion of proposed 236.3(g), including note 20.

DHS is also proposing to remove the cross-reference to section 235.3(b) as it currently appears in section 212.5(b), to eliminate an ambiguity and to codify its longstanding understanding of how certain provisions in section 235.3(b) relating to parole of aliens in expedited removal proceedings apply to minors. In particular, eliminating that cross reference would make it clear that the provisions in section 235.3(b) governing parole of an aliens in expedited removal apply to all such aliens, and not merely adults. The current cross-reference to section 235.3(b) is confusing, however, because it suggests that the more flexible standard in section 212.5(b) might override those provisions when a minor is in expedited removal. DHS disagrees with that interpretation of its current regulations, which, among other things, is in tension with the text of the relevant statutory provision. See 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (“Any alien subject to [expedited removal] shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”)

r is in expedited removal. DHS disagrees with that interpretation of its current regulations, which, among other things, is in tension with the text of the relevant statutory provision. See 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (“Any alien subject to [expedited removal] shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”). DHS is accordingly amending section 212.5(b) to codify its understanding and to eliminate the ambiguity and any potential tension with the statute. This change is discussed more fully below.” DHS proposes to revise its current regulations on the detention and release of minor aliens by replacing section 236.3 in its entirety. Proposed paragraph 236.3(a)(1) codifies the FSA's general policy statement, found in paragraph 11 of the FSA, that minors and UACs in DHS custody shall be treated with dignity, respect, and special concern for their particular vulnerability.

Current section 236.3 on the “Detention and release of juveniles” is silent with respect to whether its provisions apply to aliens detained under mandatory or discretionary legal authorities. This distinction is often meaningful in immigration law because the authority under which aliens are detained may dictate which regulations apply to those detained aliens. However, the FSA does not distinguish the applicability of its provisions as between aliens held under mandatory or discretionary legal authorities. Proposed § 236.3(a)(2), therefore, provides that the provisions of the section apply equally to those minors who are subject to mandatory detention as those subject to discretionary detention, to the extent authorized by law.

Proposed 8 CFR 236.3(b)—Definitions

The current regulations at section 236.3(a) contain a single definition of the term “juvenile,” which is defined as any alien under the age of 18

236.3(a)(2), therefore, provides that the provisions of the section apply equally to those minors who are subject to mandatory detention as those subject to discretionary detention, to the extent authorized by law.

Proposed 8 CFR 236.3(b)—Definitions

The current regulations at section 236.3(a) contain a single definition of the term “juvenile,” which is defined as any alien under the age of 18. The FSA does not use the term “juvenile,” but it contains several other terms of art that must be defined in DHS regulations to parallel the terms of the agreement. This proposed rule, therefore, removes the term “juvenile” from the definitions in section 236.3 and adds several other definitions that are either explicitly written into the FSA or are necessary to understanding the FSA's provisions, given the changes in law that have occurred since the FSA's signing.

Minor and UAC. Proposed § 236.3(b) removes the definition of “juvenile,” because the term, defined as any alien under the age of 18, is too broad to be See 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(b)(1).

The definitions of minor and UAC are not mutually exclusive, because although most UACs will also meet the definition of minor, some will not. For instance, an alien juvenile who has been legally emancipated does not meet the definition of a minor as set out in the FSA, so the provisions of this proposed rule would not apply to that juvenile. The definition of UAC, however, does not exclude emancipated juveniles. Thus, if an immigration officer encounters any alien juvenile (regardless of whether such juvenile has been emancipated) who has no lawful immigration status, has not attained 18 years of age, and has no parent or legal guardian present in the United States or no parent or legal guardian is available to provide care and physical custody for that juvenile, the juvenile meets the definition of a UAC, and the immigration officer must transfer the juvenile to HHS as set forth under this rule

venile has been emancipated) who has no lawful immigration status, has not attained 18 years of age, and has no parent or legal guardian present in the United States or no parent or legal guardian is available to provide care and physical custody for that juvenile, the juvenile meets the definition of a UAC, and the immigration officer must transfer the juvenile to HHS as set forth under this rule. While the proposed rule does not include a definition of juvenile, this preamble uses the term juvenile to mean any alien under the age of 18.

Emergency and Influx. The FSA also includes definitions of “emergency” and “influx,” to explain the circumstances under which the FSA permits the Government more than three or five days to transfer juveniles to licensed programs. The proposed rule would add definitions of both “emergency” and “influx” to the regulations in the definitions section at 236.3(b), capturing the relevant and substantive terms of paragraph 12(B) of the FSA. The proposed definition of emergency largely tracks the existing text of the FSA, except that it reflects DHS's recognition that emergencies may not only delay placement of minors, but could also delay compliance with other provisions of this proposed rule, or excuse noncompliance on a temporary basis. For example, access to a snack or meal may be delayed if a minor is being transported from a facility in the path of a major hurricane to another facility in a safer location and that transportation happens during a time when the minor would have access to a snack or meal. Once at a safe location or the emergency otherwise abates, the schedule would return to normal for those minors. Under current procedures, the disruption of the scheduled items due to the emergency, and the cause of the delay, would be noted in the applicable system of records for those minors who were impacted

ansportation happens during a time when the minor would have access to a snack or meal. Once at a safe location or the emergency otherwise abates, the schedule would return to normal for those minors. Under current procedures, the disruption of the scheduled items due to the emergency, and the cause of the delay, would be noted in the applicable system of records for those minors who were impacted.

The impact, severity, and timing of a given emergency situation dictate the operational feasibility of providing certain items to minors, and thus the regulations cannot contain every possible reality DHS will face. Thus, the definition of “emergency” is flexible and designed to cover a wide range of possible emergencies.

The FSA defines an influx as a situation where legacy “INS has, at any given time, more than 130 minors eligible for placement in a licensed program under Paragraph 19, including those who have been so placed or are awaiting such placement.” Accordingly, as proposed, DHS would adopt this definition of “influx” without change, except to reflect the transfer of responsibilities from legacy INS to DHS and ORR, and to reflect that DHS maintains custody of minors, as defined in this section, and, for the short period pending their transfer to ORR, UACs.

However, DHS regularly has more than 130 minors and UACs in custody who are eligible for placement in a licensed program, and for years has been operating at the current FSA definition of “influx.” DHS nonetheless believes that this defined term continues to be useful in the context in which it is used. As reflected in the discussion of proposed § 236.3(e) below, the main implication of the threshold for an “influx” is that in general, under the FSA, DHS is required to transfer non-UAC minors to licensed facilities “as expeditiously as possible” rather than within either a 3- or a 5-day timeframe, because DHS is currently operating under an influx

to be useful in the context in which it is used. As reflected in the discussion of proposed § 236.3(e) below, the main implication of the threshold for an “influx” is that in general, under the FSA, DHS is required to transfer non-UAC minors to licensed facilities “as expeditiously as possible” rather than within either a 3- or a 5-day timeframe, because DHS is currently operating under an influx. Notably, the FSA's transfer timeframes no longer control for DHS operations with respect to UACs—the TVPRA requires that UACs be transferred out of DHS custody within 72 hours of determining that the alien is a UAC, absent exceptional circumstances. As a result, although the number of UACs in custody could impact whether DHS is operating under an “influx,” the transfer of UACs to ORR remains governed by the requirements of the TVPRA at all times. Given current operational realities, the “as expeditiously as possible” timeframe contained in the FSA remains appropriate and consistent with DHS's goal to expeditiously transfer minors who are not UACs. DHS also notes that even under this standard, i.e., even in current “influx” conditions, CBP generally transfers minors who are not UACs out of its facilities within 3 to 5 days.

DHS nonetheless welcomes public comment on whether it would be appropriate to revise the definition of influx to better reflect current operational realities. For instance, DHS could define an influx as a situation in which DHS determines that significantly more minors or UACs are awaiting transfer than facility space is available to accommodate them, which prevents or delays timely transport or placement of minors or impacts other conditions provided by the regulations. This definition may effectively codify the relevant and substantive terms of the FSA in today's context. It would also allow for flexibility across the national operations of DHS, without imposing a hard numerical trigger for when the definition of “influx” applies

modate them, which prevents or delays timely transport or placement of minors or impacts other conditions provided by the regulations. This definition may effectively codify the relevant and substantive terms of the FSA in today's context. It would also allow for flexibility across the national operations of DHS, without imposing a hard numerical trigger for when the definition of “influx” applies. Under this option, DHS would not be operating under an “influx” as a steady state, as the FSA's definition of influx currently requires; instead, an influx would only exist when there is a significant number of minors or UACs compared to available bed space in licensed facilities, and that the surrounding circumstances prevent or delay the timely transport or placement of minors or impact other conditions provided by the regulations. A single factor alone would not trigger such a provision.

Licensed Facility and Non-Secure. Paragraph 6 of the FSA defines “licensed program” as a program, agency, or organization that is “licensed by a State agency to provide residential, group, or foster care services for dependent children.” Under paragraph 6, a “licensed program” as used in the agreement must generally be “non-secure,” except in certain cases for special needs minors. The proposed rule in section 236.3(b)(9) & (b)(11) includes definitions of “licensed facility” and “non-secure” to conform as closely as possible to the terms and purpose of the FSA while responding to operational realities of ICE's temporary detention of minors. To parallel the provisions of FSA paragraph 6, DHS is proposing that facilities that temporarily detain minors obtain licensing where appropriate licenses are available from a state, county, or municipality in which the facility is located.

However, most states do not offer licensing for facilities like these FRCs, i.e., locations that house minors together with their parents or legal guardians

To parallel the provisions of FSA paragraph 6, DHS is proposing that facilities that temporarily detain minors obtain licensing where appropriate licenses are available from a state, county, or municipality in which the facility is located.

However, most states do not offer licensing for facilities like these FRCs, i.e., locations that house minors together with their parents or legal guardians. And those states that have previously offered licensing for FRCs have had their licensing schemes challenged (and in at least one case invalidated) through 13 That has imposed a barrier to the continued use of FRCs: It is difficult to continue to detain a family in a state-licensed facility, so continued application of a state-licensing requirement can effectively require DHS to release children (but not their parents) from the FRC. The proposed rule would eliminate that barrier to the continued use of FRCs by creating an alternative federal licensing scheme for such detention. The goal is to provide materially identical assurances about the conditions of confinement at that facility, and thus to implement the underlying purpose of the FSA's licensing requirement. It would in turn allow decisions regarding the detention of families to be made together as a unit, under a single legal regime (the background rules regarding detention and release), rather than under two different regimes (one applicable to the parent and another to the child).

13 See, e.g., Grassroots Leadership, Inc. v. Tex. Dep't of Family and Protective Servs., No. D-1-GN-15-004336 (Tex. Dist. Ct. amended final judgment Dec. 2, 2016) (finding regulatory scheme for FRCs invalid); Commonwealth of Pa., Dep't of Human Servs., Adjudication and Order, Pa. Dep't of Human Servs., Bureau of Hearings and Appeals, BHA Docket No. 061-16-0003 (Apr. 20, 2017) (ordering the Pennsylvania Department of Human Services to rescind its revocation of the license for Berks)

., No. D-1-GN-15-004336 (Tex. Dist. Ct. amended final judgment Dec. 2, 2016) (finding regulatory scheme for FRCs invalid); Commonwealth of Pa., Dep't of Human Servs., Adjudication and Order, Pa. Dep't of Human Servs., Bureau of Hearings and Appeals, BHA Docket No. 061-16-0003 (Apr. 20, 2017) (ordering the Pennsylvania Department of Human Services to rescind its revocation of the license for Berks).

Specifically, DHS proposes that if no such licensing scheme is available in a given jurisdiction, a facility will be considered licensed if DHS employs an outside entity to ensure that the facility complies with family residential standards established by ICE. This alternative licensing process is being proposed to enable DHS to house minors together with their parents or legal guardians in FRCs, subject to appropriate standards and oversight, even in jurisdictions in which an applicable licensing regime is unavailable. By providing an alternative to state licensure where such licensure is unavailable, DHS would appropriately preserve its ability to detain minors together with their parents or legal guardians throughout the removal process, if DHS decides, consistent with the standards in the proposed rule and applicable statutes and regulations, that it is necessary or appropriate to maintain custody for more than a brief period. Moreover, the alternative federal licensing scheme would provide effectively the same substantive protections that the state-licensing requirement exists to provide, and accordingly fulfill the underlying purpose of the state-licensing requirement under the FSA. And by requiring DHS to hire an auditor to ensure compliance with ICE's detention standards, DHS's alternative licensing process would mirror analogous state licensure processes for detention centers and achieve the goals of state licensure by providing third-party oversight of a facility's compliance with an established set of standards

ng purpose of the state-licensing requirement under the FSA. And by requiring DHS to hire an auditor to ensure compliance with ICE's detention standards, DHS's alternative licensing process would mirror analogous state licensure processes for detention centers and achieve the goals of state licensure by providing third-party oversight of a facility's compliance with an established set of standards.

Finally, while the FSA uses the term “non-secure,” as a part of the definition of a licensed program, the FSA does not define this term. The proposed rule provides a definition of non-secure to provide clarity on the use of this term in the immigration detention context. Like the availability of a license for FRCs, the definition of a non-secure facility may vary by state or locality. Accordingly, DHS proposes that a facility will be deemed non-secure if it meets its state's or locality's definition, but if no such definition is provided by the state or locality, the proposed rule provides that a facility will be deemed non-secure if it meets an alternative definition derived from Pennsylvania's definition of secure care. 14

14 See Pa. Code 3800.5 (describing “secure care” as that which is provided in a 24-hour living setting for delinquent children from which “voluntary egress” is prohibited from the building through internal or exterior locks or from the premises through secure, perimeter fencing). DHS chose to use Pennsylvania's definition as a starting point for this proposed definition because of the three family residential centers (FRCs) currently in operation, the facility located in Berks County, PA, is the longest operating of the FRCs.

Other definitions. The FSA also contains definitions of the terms “special needs minor” and “escape-risk,” which DHS proposes to adopt. 15 DHS does not propose to adopt the FSA's term “medium security facility” because DHS does not maintain any medium security facilities for the temporary detention of minors, and the definition is now unnecessary

County, PA, is the longest operating of the FRCs.

Other definitions. The FSA also contains definitions of the terms “special needs minor” and “escape-risk,” which DHS proposes to adopt. 15 DHS does not propose to adopt the FSA's term “medium security facility” because DHS does not maintain any medium security facilities for the temporary detention of minors, and the definition is now unnecessary. The proposed rule does, however, add definitions of the terms “custody,” “family unit,” and “family residential center” because the enactment of the TVPRA and current DHS detention practices require the use of these terms to accurately describe the requirements and processes necessary in the apprehension, processing, care, and custody of alien juveniles.

15 The FSA's definition of “escape-risk” allows consideration of, inter alia, whether “the minor has previously absconded or attempted to abscond from INS custody.” This proposed rule would specifically identify absconding from any federal or state custody as a relevant factor, not just the custody of INS or its successor agencies. This change is consistent with the FSA, which provides only a non-exhaustive list of considerations.

Proposed 8 CFR 236.3(c)—Age Determination

Determining the age of an alien is not discussed in the current regulations, but is essential for DHS to apply the appropriate provisions of the FSA and the TVPRA to an alien in its custody. Paragraph 13 of the FSA provides a “reasonable person” standard for determining whether a detained alien is an adult or a minor. Paragraph 13 also allows medical or dental examinations by a medical professional, or other appropriate procedures, for purposes of age verification. Proposed 8 CFR 236.3(c) would incorporate the FSA's “reasonable person” standard and the FSA's standards with respect to medical and dental examinations, and would also be consistent with the TVPRA's standards for determining whether an alien is under or over the age of 18

s medical or dental examinations by a medical professional, or other appropriate procedures, for purposes of age verification. Proposed 8 CFR 236.3(c) would incorporate the FSA's “reasonable person” standard and the FSA's standards with respect to medical and dental examinations, and would also be consistent with the TVPRA's standards for determining whether an alien is under or over the age of 18. The proposed rule would add that age determinations must be based on the totality of the evidence and circumstances.

Proposed 8 CFR 236.3(d)—Determining Whether an Alien Is a UAC

The current regulations make no distinction between UACs and other minors. While no distinction is included in the language of the FSA, such a distinction is made necessary by the HSA and TVPRA, as explained above. Accordingly, proposed 8 CFR 236.3(d) would explain when DHS makes a determination whether an alien juvenile is a UAC. Under the proposed rule, immigration officers will make a determination of whether an alien meets the definition of a UAC each time they encounter the alien. Therefore, even though an alien may have been previously determined to be a UAC, the alien may no longer meet the statutory definition of a UAC if the alien reaches the age of 18, acquires legal status, or if a parent or legal guardian is available in the United States to provide care and physical custody. The proposed paragraph also highlights that, once an alien no longer meets the definition of a UAC, the legal protections afforded only to UACs under the law cease to apply.

Proposed 8 CFR 236.3(e)—Transfer of Minors Who Are Not UACs From One Facility to Another

This section of the proposed rule would address the FSA's requirement that minors and UACs be transferred to and placed in “licensed programs.” Paragraph 12(A) of the FSA requires DHS to place in a licensed program those minors who are not released

ctions afforded only to UACs under the law cease to apply.

Proposed 8 CFR 236.3(e)—Transfer of Minors Who Are Not UACs From One Facility to Another

This section of the proposed rule would address the FSA's requirement that minors and UACs be transferred to and placed in “licensed programs.” Paragraph 12(A) of the FSA requires DHS to place in a licensed program those minors who are not released. As mentioned above, the FSA defines a licensed program as a program, agency, or organization that is “licensed by a State agency to provide residential, group, or foster care services for dependent children.” Facilities operated by licensed programs must be non- 16 When appropriate, ICE places minors in FRCs together with their parents or legal guardians until ICE can release the minor.

16 The Flores district court has held that ICE FRCs are secure; the Government has appealed that decision. See Flores v. Sessions, No. 2:85-cv-04544 (C.D. Cal. June 27, 2017), appeal pending, No. 17-56297 (9th Cir.) (docketed Aug. 28, 2017).

As discussed above in connection with the proposed definition of “licensed facility” in proposed § 236.3(b)(9), this proposed rule would create an alternative system of regulating facilities, in lieu of state licensure. This system would allow ICE to make decisions regarding the detention of families together as a unit, under the applicable legal standard, while fulfilling the goals of state licensure by ensuring independent oversight of FRCs.

FSA paragraph 12(A) provides that legacy “INS will transfer a minor from a placement under this paragraph to a placement under Paragraph 19 [ i.e., a licensed program] . .

is system would allow ICE to make decisions regarding the detention of families together as a unit, under the applicable legal standard, while fulfilling the goals of state licensure by ensuring independent oversight of FRCs.

FSA paragraph 12(A) provides that legacy “INS will transfer a minor from a placement under this paragraph to a placement under Paragraph 19 [ i.e., a licensed program] . . . within three (3) days, if the minor was apprehended in an INS district in which a licensed program is located and has space available; or (ii) within five (5) days in all other cases; except” in certain circumstances, including “in the event of an emergency or influx of minors into the United States, in which case the INS shall place all minors pursuant to Paragraph 19 as expeditiously as possible.” As noted in the discussion above regarding the FSA's definition of “influx,” DHS has continuously been dealing with an “influx” of minors, as that term is defined in the FSA. Accordingly, the proposed transfer provision in section 236.3(e) would make “as expeditiously as possible” the default for transferring minors who are not UACs to a licensed facility, but notes that if an emergency or influx, as defined in the regulations, does not exist, the FSA's “default” 3- and 5-day timeframes apply.

The revised order of the text ( i.e., making clear that in general the “as expeditiously as possible” standard applies, except where an emergency or influx does not exist) is consistent with the goal of DHS operational offices to transfer all minors who are not UACs as expeditiously as possible, given operational realities. This proposed amendment adds clarity, but does not change the timeframes that have applied with respect to non-UAC minors for two decades under the FSA.

This provision would not retain two additional exceptions to the 3-day transfer timeframe

) is consistent with the goal of DHS operational offices to transfer all minors who are not UACs as expeditiously as possible, given operational realities. This proposed amendment adds clarity, but does not change the timeframes that have applied with respect to non-UAC minors for two decades under the FSA.

This provision would not retain two additional exceptions to the 3-day transfer timeframe. First, the exception at Paragraph 12(A)(2), requiring transfer in the timeline provided by “any court decree or court-approved settlement,” is not needed, as a court order would govern in any event. Second, the exception at paragraph 12(A)(4) of the FSA, allowing transfer within 5 days instead of 3 days in cases involving transport from remote areas or where an alien speaks an “unusual” language that requires the Government to locate an interpreter, is not included. DHS has matured its operations such that these factors no longer materially delay transfer.

Proposed § 236.3(e) would apply only to the transfer of non-UAC minors to licensed facilities because, following passage of the TVPRA, DHS transfers to ORR UACs who are not able to withdraw their application for admission in accordance with that Act. See 8 U.S.C. 1232(a)-(b). Therefore, the timeline of the transfer of UACs from DHS to HHS is governed exclusively by the TVPRA.

Finally, under the proposed rule, as under FSA paragraph 12(c), DHS would continue to maintain a written plan describing the reasonable efforts it will take to place all minors who are not UACs as expeditiously as possible pursuant to FSA paragraph 12(C). (This would include placement in a federally-licensed FRC.) CBP and ICE have maintained such a plan through internal guidance for law enforcement operations.

Proposed 8 CFR 236.3(f)—Transfer of UACs From DHS to ORR

The current regulations also do not address the transfer of UACs from DHS to ORR care and custody under the TVPRA. The FSA is also silent on this topic because the FSA does not distinguish between minors and UACs

n a federally-licensed FRC.) CBP and ICE have maintained such a plan through internal guidance for law enforcement operations.

Proposed 8 CFR 236.3(f)—Transfer of UACs From DHS to ORR

The current regulations also do not address the transfer of UACs from DHS to ORR care and custody under the TVPRA. The FSA is also silent on this topic because the FSA does not distinguish between minors and UACs. Given the passage of the TVPRA and its specific requirements related to the transfer of UACs, the proposed regulations at section 236.3(f) track the TVPRA requirements. Specifically, the proposed regulations at section 236.3(f) prescribe procedures for transferring UACs to the care and custody of ORR within 72 hours (absent exceptional circumstances) of determining that an alien is a UAC. See section 235(b)(3) of the TVPRA, 8 U.S.C. 1232(b)(3). Section 236.3(f) would also reflect the general requirement under section 235(b)(2) (8 U.S.C. 1232(b)(2)) that DHS notify ORR within 48 hours that an apprehended individual is a UAC. While these timelines differ from those provided in the FSA, and differ from those applicable to minors who are not UACs, as described in paragraph 236.3(e), these timelines implement DHS's specific requirements applicable to UACs, as provided in the TVPRA.

Pursuant to the FSA, UACs, like accompanied minors, must be transferred to a licensed program within the 3- and 5-day timeframes provided by Paragraph 12(A), or, in an emergency or influx, “as expeditiously as possible.” The TVPRA timeline for the transfer of UACs to HHS does not address the requirements of Paragraph 12(A) with respect to the transfer of UACs to licensed programs. However, HHS now has the authority to provide care and custody of UACs referred to it, and thus, HHS ensures that a referred UAC is placed in an appropriate licensed program, when required under the TVPRA and the FSA. See 8 U.S.C. 1232(c)(2)(A) (requiring HHS to “promptly” place UACs “in the least restrictive setting that is in the best interest of the child”)

ransfer of UACs to licensed programs. However, HHS now has the authority to provide care and custody of UACs referred to it, and thus, HHS ensures that a referred UAC is placed in an appropriate licensed program, when required under the TVPRA and the FSA. See 8 U.S.C. 1232(c)(2)(A) (requiring HHS to “promptly” place UACs “in the least restrictive setting that is in the best interest of the child”). Accordingly, HHS has addressed this requirement in its proposed rule. In this rule, DHS addresses only the transfer of UACs to HHS, which is governed exclusively by the TVPRA.

The current regulations do not speak to the necessary conditions during the transfer of UACs between DHS and HHS facilities, although such conditions are addressed by paragraph 25 of the FSA. Consistent with paragraph 25 of the FSA, the proposed regulations stipulate that UACs will not be transported with unrelated detained adults except upon initial apprehension when being transferred to a DHS facility, or if separate transportation is impractical or unavailable. 17 In such cases, precautions will be taken to ensure the safety, security, and well-being of the UAC.

17 The FSA includes “impractical” but not “unavailable.” DHS considers the addition of “or unavailable” to be a clarification of the current standard, and not a substantive change.

For the safety and security of UACs and whenever operationally feasible, ICE and CBP currently make every attempt to transport and hold UACs separately from unrelated adults. As an example, CBP's U.S. Border Patrol (USBP) strives to transport UACs and unrelated adults in separate vehicles. However, given the various environments in which USBP operates, such as remote desert locations, separate transportation for UACs from place of apprehension to a USBP station is not always feasible or practical. In these cases, USBP strives to transport the UAC in a manner where she or he can be monitored

.S. Border Patrol (USBP) strives to transport UACs and unrelated adults in separate vehicles. However, given the various environments in which USBP operates, such as remote desert locations, separate transportation for UACs from place of apprehension to a USBP station is not always feasible or practical. In these cases, USBP strives to transport the UAC in a manner where she or he can be monitored. There are numerous

Proposed 8 CFR 236.3(g)—DHS Procedures in the Apprehension and Processing of Minors or UACs

Current section 236.3(g) provides that each juvenile apprehended in the immediate vicinity of the border who permanently resides in Mexico or Canada shall be informed, prior to the presentation of the voluntary departure form or being allowed to withdraw his or her application for admission, that he or she may make a telephone call to a parent, close relative, a friend, or organization on the free legal services list. The current regulation also provides that if the juvenile does not reside in Mexico or Canada, that juvenile must in fact communicate with a parent, adult relative, friend, or with an organization found on the free legal services list prior to presentation of the voluntary departure form.

In addition, the current regulations at 8 CFR 236.3(h) provide for alien juveniles to be given a Form I-770 Notice of Rights and Disposition, which will be read and explained to the juvenile in a language the juvenile understands if he or she is less than 14 years of age. This paragraph further provides that, in the event that a juvenile who has requested a hearing pursuant to the Form I-770 subsequently decides to accept voluntary departure or is allowed to withdraw his or her application for admission, a new Form I-770 shall be given to, and signed by the juvenile.

The former INS promulgated much of 8 CFR 236.3 to implement the U.S. District Court for the Central District of California's order in Perez-Funez v. Dist. Dir., INS, 619 F. Supp. 656 (C.D. Cal

pursuant to the Form I-770 subsequently decides to accept voluntary departure or is allowed to withdraw his or her application for admission, a new Form I-770 shall be given to, and signed by the juvenile.

The former INS promulgated much of 8 CFR 236.3 to implement the U.S. District Court for the Central District of California's order in Perez-Funez v. Dist. Dir., INS, 619 F. Supp. 656 (C.D. Cal. 1985), which required INS to afford certain procedural safeguards to unaccompanied juveniles who are taken into immigration custody prior to permitting voluntary departure. See 53 FR 17449 (May 17, 1988).

Paragraph 12(A) of the FSA provides that whenever the Government takes a minor or UAC into custody, it shall expeditiously process the minor or UAC and shall provide the minor or UAC with a notice of rights, including the right to a bond redetermination hearing, if applicable. Under paragraph 24(D) of the FSA, DHS promptly provides all non-UAC minors who are not released with a Form I-770, an explanation of the right of judicial review, and a list of free legal services. The proposed rule's section 236.3(g) would retain the provisions related to the presentation of the Form I-770, explanation of the right of judicial review, and the list of free legal services, as set out in current regulations and the FSA.

The proposed regulations at 8 CFR 236.3(g)(1) would change the regulatory text to reflect current operations, but also preserve the intent of these regulations and FSA paragraphs 12(A) and 24(D), and would continue to comply with Perez-Funez. Specifically, proposed § 236.3(g)(1)(i) would update the requirements related to the Form I-770 to reflect Paragraph 12(A) and current operational realities. It also would make minor clarifications to the current regulatory language by adding that the Form I-770 can be provided in a language “and manner” the minor or UAC understands

s 12(A) and 24(D), and would continue to comply with Perez-Funez. Specifically, proposed § 236.3(g)(1)(i) would update the requirements related to the Form I-770 to reflect Paragraph 12(A) and current operational realities. It also would make minor clarifications to the current regulatory language by adding that the Form I-770 can be provided in a language “and manner” the minor or UAC understands. FSA Paragraph 12(A) requires that all minors in DHS custody, even those who request to withdraw their application for admission or request voluntary departure (which includes voluntary departure, as described at 8 CFR 240.25(a), sometimes referred to as a “voluntary return”), will be provided with a notice of rights.

Pursuant to the requirements of the current regulations and FSA Paragraph 12(A), CBP currently provides an I-770 to each minor or UAC during processing. If, after processing, CBP determines that a minor or UAC who was processed for a voluntary departure or a withdrawal of his or her application for admission is no longer amenable to such a disposition because, for instance, the minor or UAC is no longer eligible for voluntary departure, CBP will re-process the minor or UAC for a more appropriate disposition, such as the issuance of a Notice to Appear before an immigration judge. When the minor or UAC is reprocessed, the minor or UAC is issued a new I-770, or the original one is updated accordingly. By issuing a new I-770, or updating the original one, CBP ensures that, in situations in which it is appropriate to change a minor or UAC's immigration disposition, the minor or UAC continues to remain aware of his or her rights. In addition, CBP generally provides a minor or UAC who is being processed for a Notice to Appear with the list of free legal service providers.

Proposed 8 CFR 236.3(g) would provide that minors or UACs who enter DHS custody will be provided an I-770 that will include a statement that the minor or UAC may make a telephone call to a parent, close relative, or friend

ain aware of his or her rights. In addition, CBP generally provides a minor or UAC who is being processed for a Notice to Appear with the list of free legal service providers.

Proposed 8 CFR 236.3(g) would provide that minors or UACs who enter DHS custody will be provided an I-770 that will include a statement that the minor or UAC may make a telephone call to a parent, close relative, or friend. The proposed rule would specifically address the list of free legal service providers at proposed § 236.3(g)(1)(iii), which would apply to every minor who is not a UAC who is transferred to or remains in a DHS detention facility.

In addition, pursuant to the TVPRA, DHS currently screens all UACs from contiguous countries to determine whether such a UAC may be permitted to withdraw his or her application for admission. As part of this screening, the UAC is provided with an I-770 Notice of Rights. UACs from non-contiguous countries are not permitted to withdraw their application for admission, but are similarly provided with the I-770 Notice of Rights. These TVPRA requirements similarly ensure that the due process concerns identified by the court in Perez-Funez are adequately addressed.

Proposed § 236.3(g)(1)(i) also does not include the requirement in current section 8 CFR 236.3(g) that a juvenile who does not reside in Mexico or Canada must in fact communicate with a parent, adult relative, friend, or with an organization found on the free legal services list prior to presentation of the voluntary departure form. However, the passage of the TVPRA has made this requirement no longer necessary. Specifically, pursuant to the TVRPA, only UACs who reside permanently in Mexico or Canada are permitted to withdraw their application for admission. 8 U.S.C. 1232(a)(2)

a parent, adult relative, friend, or with an organization found on the free legal services list prior to presentation of the voluntary departure form. However, the passage of the TVPRA has made this requirement no longer necessary. Specifically, pursuant to the TVRPA, only UACs who reside permanently in Mexico or Canada are permitted to withdraw their application for admission. 8 U.S.C. 1232(a)(2). Additionally, any minor who is not a UAC, but who is accompanied by a parent or legal guardian who is permitted to voluntarily depart the United States or withdraw his or her application for admission as a member of a family unit would, in general, be undertaking such action along with his or her accompanying parent or legal guardian. Therefore, the minor would, by default, have an opportunity to communicate with his or her parent or legal guardian at that time.

Proposed § 236.3(g)(1)(i) relates only to situations in which DHS processes a minor or UAC. Thus, it does not address situations in which a minor or UAC is in immigration proceedings before an immigration judge. For example, this regulation does not address a situation in which a minor or UAC has been granted voluntary departure by an immigration judge, but then subsequently requests to proceed to a hearing. In such a situation, DHS envisions that, consistent with current practice, the immigration judge would provide the minor or UAC with an appropriate advisal of rights.

Similarly, proposed §§ 236.3(g)(1)(ii) and (g)(1)(iii) would reflect the requirements in Paragraph 24(D) of the FSA related to the provision of the notice of judicial review and the notice

Proposed § 236.3(g)(2) discusses DHS's custodial care of a minor or UAC immediately following apprehension. Therefore, this paragraph applies, in general, to the time that a minor or UAC remains in a CBP facility prior to being transferred to ICE or to HHS. This paragraph parallels the requirements of FSA paragraphs 11 and 12(A)

ed to the provision of the notice of judicial review and the notice

Proposed § 236.3(g)(2) discusses DHS's custodial care of a minor or UAC immediately following apprehension. Therefore, this paragraph applies, in general, to the time that a minor or UAC remains in a CBP facility prior to being transferred to ICE or to HHS. This paragraph parallels the requirements of FSA paragraphs 11 and 12(A). For instance, paragraph (g)(2), like the FSA, would require that minors and UACs shall be held in the least restrictive setting appropriate to the minor or UAC's age and special needs, provided that such setting is consistent with the need to protect the minor or UAC's well-being and that of others, as well as with any other laws, regulations, or legal requirements. The proposed rule would also include a cross-reference to DHS's regulations at 6 CFR 115.114, dealing specifically with sexual abuse and assault prevention for juvenile and family detainees in DHS's short-term holding facilities.

Proposed paragraph (g)(2), like the FSA, would require that minors and UACs be housed in facilities that are safe and sanitary, and that the facilities provide access to toilets and sinks, drinking water and food as appropriate, access to emergency medical assistance as needed, and adequate temperature and ventilation.

Consistent with FSA paragraphs 11 and 12(A), proposed paragraph (g)(2)(i) provides for contact between a minor or UAC and family members arrested with the minor or UAC. Following arrest of a minor or UAC and accompanying family members, CBP transports all individuals to a CBP facility for processing. During the time that the family group spends at the facility, CBP provides contact between the minor or UAC and all accompanying family members, absent concerns about the safety of the minor or UAC. This paragraph, therefore, addresses only the issue of contact between family members while they remain in CBP custody

g family members, CBP transports all individuals to a CBP facility for processing. During the time that the family group spends at the facility, CBP provides contact between the minor or UAC and all accompanying family members, absent concerns about the safety of the minor or UAC. This paragraph, therefore, addresses only the issue of contact between family members while they remain in CBP custody. The proposed rule is more detailed than FSA paragraph 12(A), insofar as it states, consistent with FSA paragraph 11, that the safety and well-being of the minor or UAC and operational feasibility are relevant considerations when allowing such contact. This is consistent with FSA paragraph 11, which requires that the setting of a juvenile's detention or holding be consistent with a range of factors, including the need to protect the juvenile's well-being or that of others. It is also consistent with DHS's regulations on the prevention of sexual abuse and assault in its facilities. See 6 CFR 115.14, 115.114.

DHS's use of the term “operationally feasible” in this paragraph does not mean “possible,” but is intended to indicate that there may be limited short-term circumstances in which, while a minor or UAC remains together with family members in the same CBP facility, providing such contact would place an undue burden on agency operations. For instance, if a family member arrested with a minor or UAC requires short-term, immediate medical attention, CBP may be required to temporarily limit contact between that family member and the minor or UAC, in order to provide appropriate medical treatment. Or, CBP may have a legitimate law enforcement reason to temporarily limit contact between a minor or UAC and accompanying family members, such as when CBP decides it is in the minor or UAC's best interest to interview all family members separately

on, CBP may be required to temporarily limit contact between that family member and the minor or UAC, in order to provide appropriate medical treatment. Or, CBP may have a legitimate law enforcement reason to temporarily limit contact between a minor or UAC and accompanying family members, such as when CBP decides it is in the minor or UAC's best interest to interview all family members separately. However, CBP will provide contact with family members arrested with the minor or UAC, and/or will hold accompanied minors in the same hold rooms as their accompanying family members, if doing so is consistent with the minor or UAC's safety and well-being and does not place an undue burden on agency operations.

Similarly, the proposed regulations would contain the same limit as the FSA on the amount of time UACs can be housed with an unrelated adult (no more than 24 hours), but the proposed regulations would explicitly allow DHS to depart from this standard in emergencies or other exigent circumstances, to the extent consistent with 6 CFR 115.14(b) and 115.114(b). For example, it may be necessary to house UACs with unrelated adults for more than 24 hours during a weather-related disaster such as hurricanes in southern Texas, or if an outbreak of a communicable disease such as scabies or chicken pox at a facility requires the temporary commingling of the detainee population. Appropriate consideration is given to age, mental condition, physical condition, and other factors when placing UACs into space with unrelated adults.

Where a juvenile is apprehended with his or her parent or legal guardian, the current regulations indicate that such parent or legal guardian may swear out an affidavit designating a person to whom the juvenile may be released. 8 CFR 236.3(b)(3). Since the passage of the TVPRA, however, DHS no longer has the authority to release a juvenile to someone who is not a parent or legal guardian, so this provision must be amended

hended with his or her parent or legal guardian, the current regulations indicate that such parent or legal guardian may swear out an affidavit designating a person to whom the juvenile may be released. 8 CFR 236.3(b)(3). Since the passage of the TVPRA, however, DHS no longer has the authority to release a juvenile to someone who is not a parent or legal guardian, so this provision must be amended. 18 If a parent or legal guardian is unavailable to provide care and physical custody for an alien under the age of 18, and the alien has no lawful status in the United States, the alien meets the definition of a UAC. 6 U.S.C. 279(g). Under section 235(b)(3) of the TVPRA (8 U.S.C. 1232(b)(3)), DHS must transfer UACs to HHS custody within 72 hours of determining that a juvenile is a UAC, absent exceptional circumstances. Thus, a parent or legal guardian must be available for a minor without lawful status in DHS custody for DHS to release that minor. The proposed rule would therefore remove the current regulatory language at 8 CFR 236.3(b)(3) authorizing a parent or legal guardian to swear an affidavit authorizing the release of the minor to anyone who is not also a parent or legal guardian.

18 Pursuant to the requirements of the HSA and TVPRA, only HHS has the authority to release a minor to a non-parent or legal guardian, through the process of finding a sponsor for a UAC. See 8 U.S.C. 1232.

Proposed 8 CFR 236.3(h)—Detention of Family Units

DHS's policy, consistent with E.O. 13841, is to maintain family unity, including by detaining families together where appropriate and consistent with law and available resources. The current regulations, however, do not address the detention of non-UAC minors together with their parents or legal guardians as “family units” while in the custody of DHS

osed 8 CFR 236.3(h)—Detention of Family Units

DHS's policy, consistent with E.O. 13841, is to maintain family unity, including by detaining families together where appropriate and consistent with law and available resources. The current regulations, however, do not address the detention of non-UAC minors together with their parents or legal guardians as “family units” while in the custody of DHS. Similarly, while the FSA considers that juveniles may be initially held with related family members, the FSA does not address whether the Government may continue to hold minors together with their parents or legal guardians after transfer to a “licensed program.” The proposed regulations in the new section 236.3(h) would set out requirements that must be met for a family to be detained together in an FRC. Per the definitions in proposed paragraph (b), and in accordance with the TVPRA, only minors, not UACs, would be held in DHS custody at an FRC.

The intention of this proposed paragraph is to clarify that DHS may, pursuant to its existing legal authorities, see, e.g., INA sec. 235(b), (b)(1)(B), (b)(1)(B)(iii)(I); 236; 241(a), detain See, e.g., INA sec. 235(b), (b)(1)(B), (b)(1)(B)(iii)(IV); 241(a).

If the parent or legal guardian of a family unit is subject to mandatory detention, but the non-UAC minor of the family unit is otherwise eligible for release, DHS must continue to detain the parent or legal guardian, consistent with applicable law and policy.

Proposed 8 CFR 236.3(i)—Detention of Minors Who Are Not UACs in DHS Custody

The current regulations contain one short paragraph about juvenile detention, stating that DHS may detain a juvenile if such detention is “necessary, for such interim period of time as is required to locate suitable placement for the juvenile” either with a parent, legal guardian, adult relative, or other suitable custodian or custodial facility. 8 CFR 236.3(d)

rs Who Are Not UACs in DHS Custody

The current regulations contain one short paragraph about juvenile detention, stating that DHS may detain a juvenile if such detention is “necessary, for such interim period of time as is required to locate suitable placement for the juvenile” either with a parent, legal guardian, adult relative, or other suitable custodian or custodial facility. 8 CFR 236.3(d). As explained several times throughout this preamble, the FSA contains significant detail about requirements for DHS to detain juveniles, including a list of requirements for conditions of detention in the FSA's Exhibit 1. The proposed regulations at section 236.3(i) would completely replace the current regulations at section 236.3(d) with respect to the detention of minors who are not UACs.

The current regulations require that juveniles who are detained by DHS be housed in detention facilities that have separate accommodations for juveniles. See 8 CFR 236.3(d). In addition, 6 CFR 115.14, first promulgated in 2014, provides that minors are detained in the least restrictive setting appropriate for the minor's age and needs. That regulation tracks FSA paragraph 11. Accordingly, this proposed rule would cross-reference that regulation and expand on it. Additionally, the proposed regulations would make clear that minors are placed temporarily in a licensed facility, as defined in paragraph (b) of proposed § 236.3, until release can be effectuated as described in proposed § 236.3(j).

The proposed regulations at § 236.3(i)(1) would provide, like paragraph 21 of the FSA, that minors who are not UACs must be transferred to state or county juvenile detention facilities, a secure DHS detention facility, or a DHS-contracted facility having separate accommodations for minors if they meet certain criteria

§ 236.3, until release can be effectuated as described in proposed § 236.3(j).

The proposed regulations at § 236.3(i)(1) would provide, like paragraph 21 of the FSA, that minors who are not UACs must be transferred to state or county juvenile detention facilities, a secure DHS detention facility, or a DHS-contracted facility having separate accommodations for minors if they meet certain criteria. A non-UAC minor may be placed in one of these facilities because the minor is charged with, is chargeable with, or convicted of a crime or has been charged with, is chargeable with, is the subject to delinquency proceedings or has been adjudicated as delinquent. There is an exception for petty offenses, and another exception for when the offense is isolated, not within a pattern or practice of criminal activity, does not involve violence against a person, and does not involve the use or carrying of a weapon. DHS has retained these exceptions in the proposed rule, but has reworded them in the affirmative for clarity. Rather than explain when DHS would not use secure detention (such as the exception to secure detention for petty offenses in paragraph 21(A)(ii) of the FSA), the proposed rule would more clearly explain when DHS would use secure detention. As a consequence of these changes, there may be some isolated, non-violent offenses that, although not “petty” as defined in paragraph 21(A)(ii) of the FSA, are insufficient cause to place a minor in secure detention. These clarifications are consistent with DHS's current practice, and are consistent with the intent underlying FSA paragraph 21.

Also included in the FSA's list of reasons to house a minor in a secure facility are committing, or making credible threats to commit, a violent or malicious act while in custody or while in the presence of an immigration officer; engaging, while in a licensed facility, in certain conduct that is unacceptably disruptive of the normal functioning of the licensed facility; being an escape risk; or for the minor's own security

list of reasons to house a minor in a secure facility are committing, or making credible threats to commit, a violent or malicious act while in custody or while in the presence of an immigration officer; engaging, while in a licensed facility, in certain conduct that is unacceptably disruptive of the normal functioning of the licensed facility; being an escape risk; or for the minor's own security. DHS chose not to include in the proposed regulatory text the specific examples of behavior or offenses that could result in the secure detention of a minor, as they appear in FSA paragraph 21, because the examples are non-exhaustive and imprecise. For instance, examples listed in paragraph 21 of what may be considered nonviolent, isolated offenses ( e.g., breaking and entering, vandalism, or driving under the influence) may be classified as violent offenses in some states. Including these examples as part of codified regulatory text may inadvertently lead to more confusion than clarity.

Under proposed § 236.3(i)(2), consistent with FSA paragraph 23, DHS would place a minor in a less restrictive alternative if such an alternative is available and appropriate in the circumstances, even if the provisions of section 236.3(i)(1) apply. Finally, as provided under paragraph 6 of the FSA, proposed § 236.3(i)(3) would provide that, unless a secure facility is appropriate pursuant to proposed § 236.3(i)(1) and (2), DHS facilities used for the detention of minors would be non-secure facilities. This proposed paragraph, like FSA paragraph 32(C), provides that agreements for the placement of minors in non-INS facilities shall permit attorney-client visits. Proposed § 236.3(i)(2) explains that the secure facilities used by DHS to detain non-UAC minors will also permit attorney-client visits pursuant to applicable facility rules and regulations

ntion of minors would be non-secure facilities. This proposed paragraph, like FSA paragraph 32(C), provides that agreements for the placement of minors in non-INS facilities shall permit attorney-client visits. Proposed § 236.3(i)(2) explains that the secure facilities used by DHS to detain non-UAC minors will also permit attorney-client visits pursuant to applicable facility rules and regulations.

Proposed § 236.3(i)(3) sets forth concepts also articulated in FSA paragraphs 12, 14, and 19, that unless a detention in a secure facility is otherwise required, facilities used for the detention of minors shall be non-secure.

Proposed § 236.3(i)(4) would set out the standards for “licensed programs,” as in paragraphs 6 and 19 of the FSA. While the proposed rule would not define “licensed program,” DHS proposes that all non-secure facilities used for the detention of non-UAC minors would abide by these standards. These standards mirror the requirements of Exhibit 1 of the FSA and the current ICE Family Residential Standards. In addition, the standards in proposed paragraph (i)(4) would serve as a baseline of what would be required of a facility audited by a third-party when licensing by the state, county, or municipality is otherwise unavailable, pursuant to proposed paragraph (b)(9) of this section. At a minimum, these standards must include, but are not limited to, proper physical care, including living accommodations, food, clothing, routine medical and dental care, family planning services, emergency care (including a screening for infectious disease) within 48 hours of admission, a needs assessment including both educational and special needs assessments, educational services including instruction in the English language, appropriate foreign language reading materials for leisure time reading, recreation and leisure time activities, mental health services, group counseling, orientation including legal assistance that is available, access to religious services of the minor's choice,

Related to the requirement

ational and special needs assessments, educational services including instruction in the English language, appropriate foreign language reading materials for leisure time reading, recreation and leisure time activities, mental health services, group counseling, orientation including legal assistance that is available, access to religious services of the minor's choice,

Related to the requirements placed on facilities used for the detention of minors, but not included in the Exhibit 1 standards, is the requirement found at FSA paragraph 19. FSA paragraph 19 permits “licensed programs” to transfer temporary physical custody of minors prior to securing permission from the Government in the event of an emergency, provided that they notify the Government as soon as practicable, but in all cases within 8 hours. Proposed paragraph 236.3(i)(5) does the same, although applies it to “licensed, non-secure facilities,” instead of “licensed programs,” for reasons explained above.

Proposed 8 CFR 236.3(j)—Release of Minors From DHS Custody

The current regulations at § 236.3(b) address the release of juveniles when a determination is made that such juveniles may be released on bond, parole, or on their own recognizance. Provided detention of a juvenile is not required to secure the juvenile's appearance before DHS or the immigration court, and is not necessary to ensure the juvenile's safety or that of others, the current regulations allow a juvenile to be released to a parent, legal guardian, or an adult relative who is not currently in immigration detention. Current paragraph (b) goes on to state that if the parent, legal guardian, or relative is located at a place far from the current location of the juvenile, the relative can secure the release of the juvenile at the closest DHS office to that relative. The issue of transportation of the juvenile to the relative once release is secured is not discussed in the current regulation

mmigration detention. Current paragraph (b) goes on to state that if the parent, legal guardian, or relative is located at a place far from the current location of the juvenile, the relative can secure the release of the juvenile at the closest DHS office to that relative. The issue of transportation of the juvenile to the relative once release is secured is not discussed in the current regulation.

FSA paragraph 14 requires DHS to release a minor without unnecessary delay when DHS determines that the detention of the minor is not required either to secure timely appearance before DHS or an immigration judge, or to ensure the minor's safety or that of others. FSA paragraph 14 also provides a list of custodians to whom a minor may be released: A parent; legal guardian; adult relative (brother, sister, aunt, uncle, or grandparent); an adult individual or entity designated by the parent or legal guardian as capable and willing to care for the minor's well-being; a licensed program; or an adult individual or entity seeking custody when it appears that no other likely alternative to long term detention is available and family reunification is not a reasonable possibility. FSA paragraph 26 states that the Government shall assist in making transportation arrangements to the office nearest the location of the person or facility to whom a minor is to be released pursuant to paragraph 14. Despite the language of the current regulations and the FSA, pursuant to the TVPRA and the HSA, DHS does not have the authority to release a minor to anyone other than HHS or a parent or legal guardian. Therefore, in order to comply with both paragraph 14 and the TVPRA, DHS may be required, in some situations, to transfer a child to HHS when it is necessary to continue to detain a parent or legal guardian. DHS typically has discretion under existing authorities to simultaneously parole the child and the parent or legal guardian, which would remain unchanged

than HHS or a parent or legal guardian. Therefore, in order to comply with both paragraph 14 and the TVPRA, DHS may be required, in some situations, to transfer a child to HHS when it is necessary to continue to detain a parent or legal guardian. DHS typically has discretion under existing authorities to simultaneously parole the child and the parent or legal guardian, which would remain unchanged. 19

19 This rule would delete a reference to such discretion at current 8 CFR 236.3(b)(2), but such reference is unnecessary to ensure DHS discretion to effect simultaneous release. For instance, in the expedited removal context, DHS may parole the parent or legal guardian pursuant to the standards at 8 CFR part 235. And other parole standards are contained at 8 CFR 212.5. There are also other tools available to effect simultaneous release, such as bond.

The proposed regulation at § 236.3(j) would amend the approach laid out in current § 236.3(b), and make it consistent with the requirements of the TVPRA and the HSA (enacted after the regulation was originally promulgated), and executive orders, as well as with the current operational environment, which has also changed since the provision's original promulgation. With the exception of removing the list of individuals to whom a minor may be released, as described above, the rule largely incorporates the text of paragraph 14. However, the proposed rule would align the FSA paragraph 14 standards with existing statutes and regulations, and thus permit DHS to exercise its existing discretionary authorities governing release.

Aliens, including minors in family units, who are subject to expedited removal and who have not been found to have a credible fear or are still pending a credible fear determination are subject to mandatory detention. 8 U.S.C. 1225(b)(1)(B)(iii)(IV). DHS, however, retains the discretion to release such aliens on parole, based on a case-by-case determination that parole is for an “urgent humanitarian need or significant public benefit.” Id

who are subject to expedited removal and who have not been found to have a credible fear or are still pending a credible fear determination are subject to mandatory detention. 8 U.S.C. 1225(b)(1)(B)(iii)(IV). DHS, however, retains the discretion to release such aliens on parole, based on a case-by-case determination that parole is for an “urgent humanitarian need or significant public benefit.” Id. 1182(d)(5)(A). Pursuant to the regulations, aliens who are in expedited removal proceedings and are pending a credible fear determination or who have been found not to have such fear, release on parole can only satisfy this standard when there is a medical necessity or a law enforcement need. 8 CFR 235.3(b)(4)(ii), (b)(2)(iii). Nothing indicates that, by entering into the FSA, the Government intended to subvert the intent of Congress with regard to the detention of minors in family units, allowing for their release into the United States simply based on consideration of those factors listed in paragraph 14 of the FSA. 20

20 The U.S. District Court for the Central District of California has rejected this argument, but in doing so, it did not consider the regulatory provisions at 8 CFR 235.3. Flores v. Sessions, No. 2:85-cv-04544, at 25 n.18 (C.D. Cal. June 27, 2017). That decision requires that ICE must ignore Congress's plain intent with regard to the availability of parole for aliens in expedited removal proceedings and in some instances must consider parole for individuals subject to final orders of removal. The appeal from this decision is currently pending before the U.S. Court of Appeals for the Ninth Circuit. See Flores v. Sessions, No. 17-56297 (9th Cir.) (docketed Aug. 28, 2017).

The intended effect of the draft rule is to change current practice and the text of FSA paragraph 14 to affirm that parole is within the discretion of DHS as intended by statute. For example, minors in expedited removal will be subject to the heightened standard in the 8 CFR 235.3(b)

is not and should not be detained or required to post bond except on a finding that he is a threat to the national security, or that he is a poor bail risk.”). This is the same standard used under paragraph 14 of the FSA; thus the text in proposed paragraph (j) would not reflect a substantive change in the initial custody determinations made by DHS for those minors eligible for such determinations.

Once it is determined that the applicable statutes and regulations permit release, proposed § 236.3(j) would permit release of a minor only to a parent or legal guardian who is available to provide care and custody, in accordance with the TVPRA, using the same factors for determining whether release is appropriate as are contained in paragraph 14. Included in the relevant factors would typically be consideration of whether detention is “required either to secure his or her timely appearance before [DHS] or the immigration court, or to ensure the minor's safety or that of others.” DHS also considers family unity when evaluating whether release of a minor is appropriate. This approach is consistent with the President's June 20, 2018, Executive Order 13841, “Affording Congress an Opportunity to Address Family Separation,” which identifies a policy of “maintain[ing] family unity, including by detaining alien families together where appropriate and consistent with law and available resources.” 21 Moreover, in most cases, the parent is in the best position to represent the minor's rights and wishes and can help the minor to prepare his or her case. It is also more expedient for the family, if the cases are interrelated, to have a single proceeding adjudicated in the same location, by the same adjudicator.

21 E.O. 13841 (June 20, 2018), 83 FR 29435.

When determining whether an individual is a parent or legal guardian, DHS would use all available evidence, such as birth certificates or other available documentation, to ensure the parental relationship or legal guardianship is bona fide

e cases are interrelated, to have a single proceeding adjudicated in the same location, by the same adjudicator.

21 E.O. 13841 (June 20, 2018), 83 FR 29435.

When determining whether an individual is a parent or legal guardian, DHS would use all available evidence, such as birth certificates or other available documentation, to ensure the parental relationship or legal guardianship is bona fide. If the relationship cannot be established, the juvenile would be treated as a UAC and would be transferred into HHS custody. If the relationship is established, but the parent or legal guardian lives far away, the proposed regulations use the FSA paragraph 26 language, stating that DHS shall assist with making arrangements for transportation and maintains the discretion to actually provide transportation to the DHS office nearest the parent or legal guardian.

Finally, the proposed rule would not include provisions parallel to the requirements in paragraphs 15 or 16 related to release from custody. These requirements have been superseded in part by the TVPRA, under which DHS cannot release a juvenile to anyone other than a parent or legal guardian. Further, parents have no affirmative right of release under the provisions of the FSA. Therefore, if DHS determines that the accompanying parent should be detained, releasing a minor under these circumstances would be either a release to a parent who is not currently in detention, or, in all other cases, a transfer to HHS custody, rather than a release from custody as envisioned under the FSA. In addition, the requirements of paragraphs 15 and 16, which are primarily for the Government's benefit, are not currently implemented.

Proposed 8 CFR 236.3(k)—Procedures Upon Transfer

Current 8 CFR 236.3 does not set out any procedures to specifically govern the transfer of minors

r, in all other cases, a transfer to HHS custody, rather than a release from custody as envisioned under the FSA. In addition, the requirements of paragraphs 15 and 16, which are primarily for the Government's benefit, are not currently implemented.

Proposed 8 CFR 236.3(k)—Procedures Upon Transfer

Current 8 CFR 236.3 does not set out any procedures to specifically govern the transfer of minors. FSA paragraph 27 provides that a minor who is transferred from a placement in one “licensed program” to another shall be transferred with his/her possessions and legal papers, unless the possessions exceed the amount permitted by carriers, in which case the possessions will be shipped to the minor in a timely manner. The proposed regulations at § 236.3(k) include the same requirement for the transfer of possessions when a minor who is not a UAC is transferred between licensed, non-secure facilities. While DHS understands paragraph 27 of the FSA to, in practice, refer to transfer between ICE facilities (the only DHS facilities that qualify as “placements” in “licensed programs,” under the meaning of the FSA), minors are generally transferred with their possessions if they are moving between CBP facilities, or from a CBP facility to an ICE facility.

Paragraph 27 of the FSA also provides that no minor represented by counsel shall be transferred without advance notice to such counsel except in unusual and compelling circumstances. The proposed regulations also provide that if a minor or UAC is represented by counsel, notice to counsel will be provided prior to any transfer of a minor or UAC from one ICE placement to another, or from an ICE placement to an ORR placement, unless unusual and compelling reasons, such as safety or escape-risk, exist, in which case counsel will receive notification within 24 hours of transfer

es. The proposed regulations also provide that if a minor or UAC is represented by counsel, notice to counsel will be provided prior to any transfer of a minor or UAC from one ICE placement to another, or from an ICE placement to an ORR placement, unless unusual and compelling reasons, such as safety or escape-risk, exist, in which case counsel will receive notification within 24 hours of transfer.

Proposed 8 CFR 236.3(l)—Notice to Parent of Refusal of Release or Application for Relief

The current regulations provide that if a parent of a detained juvenile can be located, and is otherwise suitable to receive custody of the juvenile, and the juvenile indicates a refusal to be released to his or her parent, the parent(s) shall be notified of the juvenile's refusal to be released to the parent(s), and the parent(s) shall be afforded the opportunity to present their views before a custody determination is made (§ 236.3(e)). Similarly, the current regulations provide that if a juvenile seeks release from detention, voluntary departure, parole, or any form of relief from removal, where it appears that the grant of such relief may effectively terminate some interest inherent in the parent-child relationship and/or the juvenile's rights a

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