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Proposed Rule2023-21168

Unaccompanied Children Program Foundational Rule

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Published

October 4, 2023

Issuing agencies

Health and Human Services DepartmentChildren and Families Administration

Abstract

This NPRM proposes to adopt and replace regulations relating to the key aspects of the placement, care, and services provided to unaccompanied children referred to the Office of Refugee Resettlement (ORR), pursuant to ORR's responsibilities for coordinating and implementing the care and placement of unaccompanied children who are in Federal custody by reason of their immigration status under the Homeland Security Act of 2002 (HSA) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). ORR intends to promulgate a final rule that would establish a foundation for the Unaccompanied Children Program (UC Program) that is consistent with its statutory duties, for the benefit of unaccompanied children and to enhance public transparency as to the policies governing the operation of the UC Program. ORR also proposes this rule for the purpose of implementing the 1997 Flores Settlement Agreement (FSA), which remains in effect as a court-ordered consent decree to which the UC Program is subject. As modified in 2001, the FSA provides that it will terminate forty-five days after publication of final regulations implementing the agreement. ORR anticipates that any termination of the settlement based on the adoption of this proposal as a final rule would only be effective for those provisions that affect ORR and would not terminate provisions of the FSA for other Federal Government agencies.

Full Text

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<title>Federal Register, Volume 88 Issue 191 (Wednesday, October 4, 2023)</title>
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[Federal Register Volume 88, Number 191 (Wednesday, October 4, 2023)]
[Proposed Rules]
[Pages 68908-69002]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21168]

[[Page 68907]]

Vol. 88

Wednesday,

No. 191

October 4, 2023

Part II

Department of Health and Human Services

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Administration for Children and Families

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45 CFR Part 410

Unaccompanied Children Program Foundational Rule; Proposed Rule

Federal Register / Vol. 88 , No. 191 / Wednesday, October 4, 2023 /
Proposed Rules

[[Page 68908]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 410

RIN 0970-AC93

Unaccompanied Children Program Foundational Rule

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This NPRM proposes to adopt and replace regulations relating
to the key aspects of the placement, care, and services provided to
unaccompanied children referred to the Office of Refugee Resettlement
(ORR), pursuant to ORR's responsibilities for coordinating and
implementing the care and placement of unaccompanied children who are
in Federal custody by reason of their immigration status under the
Homeland Security Act of 2002 (HSA) and the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). ORR
intends to promulgate a final rule that would establish a foundation
for the Unaccompanied Children Program (UC Program) that is consistent
with its statutory duties, for the benefit of unaccompanied children
and to enhance public transparency as to the policies governing the
operation of the UC Program. ORR also proposes this rule for the
purpose of implementing the 1997 Flores Settlement Agreement (FSA),
which remains in effect as a court-ordered consent decree to which the
UC Program is subject. As modified in 2001, the FSA provides that it
will terminate forty-five days after publication of final regulations
implementing the agreement. ORR anticipates that any termination of the
settlement based on the adoption of this proposal as a final rule would
only be effective for those provisions that affect ORR and would not
terminate provisions of the FSA for other Federal Government agencies.

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

ADDRESSES: You may send comments, identified by Regulatory Information
Number (RIN), by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#045147546b686d677d29566163716865706b767d456262656d7677446567622a6c6c772a636b72">[email&#160;protected]</a>. Include the
RIN in the subject line of the message.
Instructions: All submissions received must include the agency name
and RIN for this rulemaking. All comments received will be posted
without change to <a href="http://www.regulations.gov">www.regulations.gov</a>, including any personal
information provided. For detailed instructions on submitting comments
and additional information on the rulemaking process, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document.

FOR FURTHER INFORMATION CONTACT: Toby Biswas, Director of Policy,
Unaccompanied Children Program, Office of Refugee Resettlement,
Administration for Children and Families, Department of Health and
Human Services, Washington, DC, (202) 205-4440 or <a href="/cdn-cgi/l/email-protection#81d4c2d1eeede8e2f8acd3e4e6f4ede0f5eef3f8c0e7e7e0e8f3f2c1e0e2e7afe9e9f2afe6eef7">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Table of Abbreviations
III. Executive Summary
A. Purpose of the Proposed Rule
B. Summary of the Major Provisions
C. Summary of Costs and Benefits
IV. Background and Purpose
A. The UC Program
B. History and Statutory Structure
C. Statutory and Regulatory Authority
D. Basis and Purpose of Regulatory Action
E. Severability
V. Discussion of Elements of the Proposed Rule
VI. Collection of Information Requirements
VII. Regulatory Impact Analysis
A. Economic Analysis
B. Regulatory Flexibility Analysis
C. Unfunded Mandates Reform Act
D. Paperwork Reduction Act
E. Executive Order 13132: Federalism
F. Executive Order 12988: Civil Justice Reform
VIII. Assessment of Federal Regulation and Policies on Families
IX. Alternatives Considered

I. Public Participation

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

A. Submitting Comments

Comments that will provide the most assistance to ORR will
reference a specific portion of the proposed rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change. If you submit comments, please
indicate the specific section of this document to which each comment
applies and provide a reason for each suggestion or recommendation. You
may submit your comments and materials online or by email, but please
use only one of these means. If you submit a comment online via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, it will be considered received when it is
received at the Docket Management Facility.
Instructions: To submit your comments online, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and insert ``0970-AC93'' in the ``Search'' box.
Click on the ``Comment Now!'' box and input your comment in the text
box provided. Click the ``Continue'' box, and if you are satisfied with
your comment, follow the prompts to submit it.
All comments received by the accepted methods and due date
specified above may be posted without change to content to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, which may include personal information provided
about the commenter, and such posting may occur after the closing of
the comment period. However, the Department may redact certain content
from comments before posting, including threatening language, hate
speech, profanity, graphic images, or individually identifiable
information about a third-party individual other than the commenter.
For additional information, please read the ``Privacy and Security
Notice'' that is available via the link in the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
ORR will consider all comments and materials received during the
comment period and may change this rule based on your comments.

B. Viewing Comments and Documents

Docket: To view comments, as well as documents mentioned in this
preamble as being available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and insert ``0970-AC93'' in the ``Search'' box.
Click on the ``Open Docket Folder,'' and you can click on ``View
Comment'' or ``View All'' under the ``Comments'' section of the page.
Individuals without internet access can make alternate arrangements for
viewing comments and documents related to this rulemaking by contacting
ORR through the FOR

[[Page 68909]]

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

C. Privacy Act

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

II. Table of Abbreviations

ACF--Administration for Children and Families
DHS--U.S. Department of Homeland Security
DOJ--U.S. Department of Justice
EOIR--Executive Office for Immigration Review
FSA--Flores Settlement Agreement
HHS--U.S. Department of Health and Human Services
HSA--Homeland Security Act of 2002
INS--Immigration and Naturalization Service
OMB--Office of Management and Budget
ORR--Office of Refugee Resettlement, U.S. Department of Health and
Human Services
TVPRA--William Wilberforce Trafficking Victims Protection
Reauthorization Act of 2008
UC Program--Unaccompanied Children Program

III. Executive Summary

A. Purpose of the Proposed Rule

In this notice of proposed rulemaking (NPRM), the Office of Refugee
Resettlement (ORR) proposes to replace and supersede regulations at 45
CFR part 410, and to codify policies and requirements concerning the
placement, care, and services provided to unaccompanied children in
Federal custody by reason of their immigration status and referred to
ORR. This NPRM is based on statutory authorities and requirements
provided under the Homeland Security Act of 2002 (HSA) \1\ and the
William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (TVPRA),\2\ and would implement those terms of the 1997 Flores
Settlement Agreement (FSA) that create responsibilities for HHS and
ORR. These proposed regulations are published under the authority
granted to the Secretary of Health and Human Services (HHS) by the
TVPRA \3\ and to the Director of ORR by the HSA.\4\ The proposed
regulations would implement requirements that are consistent with the
substantive protections provided by, and the underlying purpose of, the
FSA with regard to unaccompanied children who are placed in ORR care.
The proposed requirements would apply to all care provider facilities,
including both standard programs and non-standard programs, as defined
below, unless otherwise specified. ORR believes that this proposed rule
is warranted at this time in order to codify a uniform set of standards
and procedures that will help to ensure the safety and well-being of
unaccompanied children in ORR care, implement the substantive terms of
the FSA, and enhance public transparency as to the policies governing
the operation of the Unaccompanied Children Program (UC Program).
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\1\ Public Law 107-296, sec. 462, 116 Stat. 2135, 2202.
\2\ Public Law 110-457, title II, subtitle D, 122 Stat. 5044.
\3\ 8 U.S.C. 1232.
\4\ 6 U.S.C. 279.
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B. Summary of the Major Provisions

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

C. Summary of Costs and Benefits

This rule proposes to codify current ORR requirements for
compliance with the FSA, court orders, and statutes, as well as certain
requirements under existing ORR policy and cooperative agreements. As
discussed in section VII.A of this proposed rule, ORR expects this
proposed rule to impose limited additional costs, including those costs
incurred by the Federal Government to increase the provision of legal
services to unaccompanied children in limited circumstances, supplement
costs incurred by grant recipients in order to comply with the proposed
requirements (see below), establish a risk determination hearing
process, and also to establish the Unaccompanied Children Office of the
Ombuds (UC Office of the Ombuds) and other administrative staffing
needs. In proposed subpart D at Sec. 410.1309, ORR is proposing, to
the greatest extent practicable, subject to available resources as
determined by ORR, and consistent with section 292 of the Immigration
and Nationality Act (8 U.S.C. 1362), that all unaccompanied children
who are or have been in ORR care would have access to legal advice and
representation in immigration legal proceedings or matters funded by
ORR. In proposed subpart J, ORR proposes the establishment of a risk
determination hearing process. In proposed subpart K, ORR discusses its
proposal to establish an Office of the Ombuds for the UC Program. In
addition to the Ombuds position itself, ORR anticipates the need for
support staff in the office. ORR estimates the annual cost of
establishing and maintaining this office would be $1,718,529 which
includes the cost of 10 full-time personnel, as discussed in further
detail in VII.A.2 of this proposed rule.
ORR also notes that all care provider facilities and service
providers discussed in this proposed rule are recipients of Federal
awards (e.g., cooperative agreements or contracts), and the costs of
maintaining compliance with these proposed requirements are allowable
costs under the Basic Considerations for cost provisions at 45

[[Page 68910]]

CFR 75.403 through 75.405,\5\ in that the costs are reasonable,
necessary, ordinary, treated consistently, and are allocable to the
award. If there are additional costs associated with the policies
discussed in this proposed rule that were not budgeted, and cannot be
absorbed within existing budgets, the recipient would be able to submit
a request for supplemental funds to cover the costs.
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\5\ See also 45 CFR 75.101.
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IV. Background and Purpose

A. The UC Program

The purpose of this proposed rule is to codify policies, standards,
and protections for the UC Program, consistent with the HSA and TVPRA,
as well as with the substantive requirements of the FSA as they pertain
to ORR. On March 1, 2003, section 462 of the HSA transferred
responsibilities for the care and placement of unaccompanied children
from the Commissioner of the Immigration and Naturalization Service to
the Director of ORR. The HSA defines unaccompanied children and
establishes ORR responsibilities with respect to unaccompanied
children. The HSA defines ``unaccompanied alien child,'' a term ORR
uses synonymously with ``unaccompanied child,'' as ``a child who--(A)
has no lawful immigration status in the United States; (B) has not
attained 18 years of age; and (C) with respect to whom--(i) there is no
parent or legal guardian in the United States; or (ii) no parent or
legal guardian in the United States is available to provide care and
physical custody.'' \6\ The TVPRA, meanwhile, added requirements for
other executive branch departments and agencies to expeditiously
transfer unaccompanied children in their custody to ORR's care and
custody once identified, and requires ORR to ensure unaccompanied
children are protected from human trafficking and other crimes. Both
statutes are described in further detail in the paragraphs below.
Pursuant to these statutory requirements, the UC Program provides a
safe and appropriate environment to children and youth who come to the
United States without immigration status and who have no parent or
legal guardian in the United States or one available in the United
States to provide for their care and physical custody. In most cases,
unaccompanied children enter ORR custody via transfer from DHS. When
DHS immigration officials with an unaccompanied child in custody
transfer that child to ORR, ORR promptly places the unaccompanied child
in the least restrictive setting that is in the best interests of the
child, taking into consideration danger to self, danger to the
community, and risk of flight. ORR considers the unique nature of each
child's situation, the best interest of the child, and child welfare
principles when making placement, clinical, case management, and
release decisions. To carry out its statutory responsibilities for the
care and custody of unaccompanied children as established in the TVPRA
and the HSA, and consistent with its responsibilities under the FSA,
ORR currently funds residential care providers that provide temporary
housing and other services to unaccompanied children in ORR custody.
These care providers have been primarily state-licensed and must also
meet ORR requirements to ensure a high-quality level of care. These
multiple providers create a continuum of care for children, including
placements in individual and group homes, shelter, heightened
supervision, and secure facilities, and residential treatment centers.
While under ORR care, unaccompanied children are provided with
classroom education, healthcare, socialization/recreation, mental
health services, access to religious and legal services, and case
management. Unaccompanied children generally remain in ORR custody
until they are released to a parent or other sponsor in the United
States, are repatriated to their home country, obtain legal status, or
otherwise no longer meet the statutory definition of unaccompanied
children (e.g., turn 18). In accordance with current ORR policy, all
children who turn 18 years old while in ORR's care and custody are
transferred to DHS for a custody determination. Once transferred to
DHS, that agency considers placement in the least restrictive setting
available after taking into account the individual's danger to self,
danger to the community, and risk of flight and in accordance with all
applicable legal authority.
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\6\ 6 U.S.C. 279(g)(2).
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B. History and Statutory Structure

1. HSA and TVPRA
The HSA abolished the former Immigration and Naturalization Service
(INS) and created DHS. The HSA transferred many of the immigration
functions from the INS to DHS, but it transferred functions under the
immigration laws with respect to the care and custody of unaccompanied
children to ORR.\7\ The HSA makes the ORR Director responsible for a
number of functions with respect to unaccompanied children, including
coordinating and implementing their care and placement, ensuring that
unaccompanied children's interests are considered in actions and
decisions relating to their care, making and implementing placement
determinations, implementing policies with respect to the care and
placement of children, and overseeing the infrastructure and personnel
of facilities in which unaccompanied children reside.\8\ The HSA also
states that ORR shall not release unaccompanied children from custody
upon their own recognizance, and requires ORR to consult with
appropriate juvenile justice professionals and certain Federal agencies
in relation to placement determinations to ensure that unaccompanied
children are likely to appear at all hearings and proceedings in which
they are involved; are protected from smugglers, traffickers, and
others who might seek to victimize or otherwise engage them in
criminal, harmful, or exploitative activity; and are placed in a
setting in which they are not likely to pose a danger to themselves or
others.\9\ ORR notes that under its current policies, such consultation
is subject to privacy protections for unaccompanied children. For
example, ORR restricts sharing certain case-specific information with
the Executive Office for Immigration Review (EOIR) and DHS that may
dissuade a child from seeking legal relief, or that may bias the
court's length of continuances. Subject to such protections, ORR
provides notification of the placement decisions to U.S. Immigration
and Customs Enforcement (ICE) and, if referred by U.S. Customs and
Border Protection (CBP), to CBP. ORR provides the following
notification information: identifying information of the unaccompanied
child, ORR care provider name and address, and ORR care provider point
of contact (name and telephone number).\10\
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\7\ 6 U.S.C. 279(a).
\8\ See 6 U.S.C. 279(b)(1).
\9\ 6 U.S.C. 279(b)(2).
\10\ Memorandum of Agreement Among the Office of Refugee
Resettlement of the U.S. Department of Health and Human Services and
U.S. Immigration and Customs Enforcement and U.S. Customs and Border
Protection of the U.S. Department of Homeland Security Regarding
Consultation and Information Sharing in Unaccompanied Alien Children
Matters (Mar. 11, 2021).
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In 2008, Congress passed the TVPRA, which further elaborated duties
with respect to the care and custody of unaccompanied children. The
TVPRA provides that, consistent with the HSA, the care and custody of
all

[[Page 68911]]

unaccompanied children, including responsibility for their detention,
where appropriate, is the responsibility of the Secretary of HHS,
except as otherwise specified. The TVPRA states that each department or
agency of the Federal Government must notify HHS within 48 hours upon
the apprehension or discovery of an unaccompanied child or any claim or
suspicion that a non-citizen individual in the custody of such
department is under the age of 18.\11\ The TVPRA states further that,
except in exceptional circumstances, any department or agency of the
Federal Government that has an unaccompanied child in its custody shall
transfer the custody of such child to HHS not later than 72 hours after
determining such child is an unaccompanied child. Furthermore, the
TVPRA requires the Secretary of HHS to establish policies and programs
to ensure that unaccompanied children in the United States are
protected from traffickers and other persons seeking to victimize or
otherwise engage such children in criminal, harmful, or exploitative
activity.\12\ The TVPRA describes requirements with respect to safe and
secure placements for unaccompanied children, safety and suitability
assessments of proposed sponsors for unaccompanied children, legal
orientation presentations, access to counsel, and child advocates,
among other requirements. HHS delegated its authority under the TVPRA
to the Assistant Secretary for Children and Families, which then re-
delegated the authority to the Director of ORR.\13\
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\11\ 8 U.S.C. 1232(b)(2)
\12\ 8 U.S.C. 1232(c)(1).
\13\ See Delegation of Authority, 74 FR 14564 (Mar. 31, 2009);
see also Delegation of Authority, 74 FR 19232 (Apr. 28, 2009).
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2. The Flores Settlement Agreement Terms and Implementation
On July 11, 1985, four non-citizen children in Immigration and
Naturalization Service (INS) \14\ custody filed a class action lawsuit
in the U.S. District Court for the Central District of California on
behalf of a class of minors detained in the custody of the INS (Flores
litigation).\15\ At that time, the INS was responsible for the custody
of minors entering the United States unaccompanied by a parent or legal
guardian. The Flores litigation challenged ``(a) the [INS] policy to
condition juveniles' release on bail on their parents' or legal
guardians' surrendering to INS agents for interrogation and
deportation; (b) the procedures employed by the INS in imposing a
condition on juveniles' bail that their parents' or legal guardians'
[sic] surrender to INS agents for interrogation and deportation; and
(c) the conditions maintained by the INS in facilities where juveniles
are incarcerated.'' \16\ The plaintiffs claimed that the INS's release
and bond practices and policies violated, among other things, the
Immigration and Nationality Act (INA), the Administrative Procedure Act
(APA), and the Due Process Clause and Equal Protection Guarantee under
the Fifth Amendment.\17\ After over ten years of litigation, the U.S.
Government and Flores plaintiffs entered into the ``Flores Settlement
Agreement'' (FSA), which was approved by the district court as a
consent decree on January 28, 1997.\18\
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\14\ As discussed further, below, INS was abolished when the
Department of Homeland Security was established in 2002. 6 U.S.C.
291.
\15\ See Complaint for Injunctive and Declaratory Relief, and
Relief in the Nature of Mandamus at 2, Flores v. Meese, No. 85-4544
(C.D. Cal. filed July 11, 1985).
\16\ Id. Flores Compl. at paragraph 1.
\17\ See id. at ] 66-69.
\18\ See Stipulated Settlement Agreement, Flores v. Reno, No. CV
85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001).
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The FSA applies to both unaccompanied children, as defined in the
HSA, and to children accompanied by their parents or legal
guardians,\19\ but ORR notes that this proposed rule is intended
specifically to codify requirements regarding the care of unaccompanied
children who have been transferred to the care and custody of ORR. As
relevant to ORR, the FSA imposes several substantive requirements for
government custody of unaccompanied children, requiring first and
foremost that minors be placed in the ``least restrictive setting
appropriate to the minor's age and special needs,'' \20\ and
establishing a general policy favoring release of unaccompanied
children where it is determined that detention of the unaccompanied
child is not required either to secure the child's timely appearance
for immigration proceedings or to ensure the unaccompanied child's
safety or that of others.\21\ When release is appropriate, the FSA
establishes the following order of priority with respect to potential
sponsors: a parent, legal guardian, adult relative, or another adult
designated by the parent or legal guardian as capable and willing to
care for the minor's well-being. If no sponsor is available, an
unaccompanied child will be placed at a care provider facility licensed
by an appropriate state agency. Under the original terms of the FSA,
unaccompanied children who were not released remained in INS custody;
currently, under the FSA, unaccompanied children who are not released
remain in ORR legal custody and may be transferred or released only
under the authority of ORR. The FSA also mandates that any non-citizen
child who remains in government custody for removal proceedings is
entitled to a bond hearing before an immigration judge, ``unless the
minor indicates on the Notice of Custody Determination form that he or
she refuses such a hearing.'' \22\ The FSA contains many other
provisions relating to the care of unaccompanied children, including
Exhibit 1, which describes the minimum standards required at licensed
care provider facilities caring for unaccompanied children.
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\19\ See Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) (holding
that the FSA applies to accompanied minors as well as unaccompanied
minors).
\20\ Id. at ] 11.
\21\ Id. at ]] 12A, 14.
\22\ Id. at ] 24A.
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The FSA states that within 120 days of the final district court
approval of the agreement, the Government shall initiate action to
publish the relevant and substantive terms of this Agreement in
regulation.\23\ In 1998, the INS published a proposed rule having a
basis in the substantive terms of the FSA, entitled ``Processing,
Detention, and Release of Juveniles.'' \24\ Over the subsequent years,
that proposed rule was not finalized. The FSA originally included a
termination date, but in 2001, the parties agreed to extend the
agreement and added a stipulation that terminates the FSA ``45 days
following defendants' publication of final regulations implementing
t[he] Agreement.'' \25\ In January 2002, the INS reopened the comment
period on the 1998 proposed rule,\26\ but the rulemaking was ultimately
terminated. Thus, as a result of the 2001 Stipulation, the FSA has not
terminated. The U.S. District Court for the Central District of
California has continued to rule on various motions filed in the case
and oversee enforcement of the FSA.
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\23\ Id. at ] 9.
\24\ See 63 FR 39759 (July 24, 1998).
\25\ Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-
4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001), at
] 40.
\26\ 67 FR 1670 (Jan. 14, 2002).
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3. The 2019 Final Rule
On September 7, 2018, DHS and HHS issued a joint proposed rule,
entitled ``Apprehension, Processing, Care, and Custody of Alien Minors
and Unaccompanied Alien Children'' (2018 Proposed Rule).\27\ The
purpose of the proposed rule was to implement the substantive terms of
the FSA, and thus enable the district court to terminate the

[[Page 68912]]

agreement. The rule proposed to adopt provisions that were intended to
parallel the relevant substantive terms of the FSA, with some
modifications to reflect statutory and operational changes put in place
since the FSA was entered into in 1997, along with certain other
changes.\28\ A final rule was promulgated on August 23, 2019 (2019
Final Rule), which comprised two sets of regulations: one issued by DHS
and the other by HHS. The HHS regulations addressed only the care and
custody of unaccompanied children.\29\ The DHS regulations addressed
other provisions of the FSA that pertained to DHS, including the
requirement that after DHS apprehends unaccompanied children it should
transfer them to the custody of HHS.\30\
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\27\ 83 FR 45486 (Sep. 7, 2018).
\28\ Id.
\29\ Apprehension, Processing, Care, and Custody of Alien Minors
and Unaccompanied Alien Children, 84 FR 44392, 44530-44535 (Aug. 23,
2019).
\30\ Id. at 44526.
---------------------------------------------------------------------------

After DHS and HHS issued the 2018 Proposed Rule and before the 2019
Final Rule was published, plaintiffs in the Flores litigation filed a
Motion to Enforce the FSA. The court deferred ruling on the Motion,
ordering DHS and HHS to file a notice upon issuance of final
regulations, which DHS and HHS did in August 2019. Later that month DHS
and HHS also filed a Notice of Termination and Motion in the
Alternative to Terminate the FSA, while Plaintiffs filed a supplemental
brief addressing their Motion to Enforce. Plaintiffs' Motion to Enforce
presented two separate but related issues: (1) whether the 2019 Final
Rule would effectively terminate the FSA, and (2) if not, to what
extent the Court should enjoin the government from implementing the
2019 Final Rule. On September 27, 2019, approximately one month after
the 2019 Final Rule was published, the District Court for the Central
District of California entered an Order granting Plaintiffs' Motion to
Enforce insofar as it sought an order declaring that the Government
failed to terminate the FSA, denied the Government's Motion to
Terminate the FSA, and issued a permanent injunction consistent with
its order.\31\
---------------------------------------------------------------------------

\31\ Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal. 2019).
---------------------------------------------------------------------------

On December 29, 2020, in Flores v. Rosen, the U.S. Court of Appeals
for the Ninth Circuit affirmed in part and reversed in part the
District Court Order.\32\ Regarding the HHS regulations applicable to
the care and custody of unaccompanied children in the 2018 Proposed
Rule, the Court of Appeals held that the regulations were ``largely
consistent'' with the FSA, with two exceptions.\33\ First, it held that
the HHS regulation allowing placement of a minor in a secure facility
upon an agency determination that the minor is otherwise a danger to
self or others broadened the circumstances in which a minor may be
placed in a secure facility, and therefore was inconsistent with the
FSA. Second, it held that provisions providing a hearing to
unaccompanied children held in secure or staff-secure placement only if
requested was inconsistent with the FSA's opt-out process for obtaining
a bond hearing. Although the Ninth Circuit held that the majority of
the HHS regulations could take effect, it also held that the District
Court did not abuse its discretion in declining to terminate the
portions of the FSA covered by those regulations, noting that the
Government moved to ``terminate the Agreement in full, not to modify or
terminate it in part.'' \34\ Consistent with its findings, the Ninth
Circuit held that the FSA ``therefore remains in effect,
notwithstanding the overlapping HHS regulations'' and that the
Government if it wished could move to terminate those portions of the
FSA covered by the valid portions of the HHS regulations.\35\
---------------------------------------------------------------------------

\32\ Flores v. Rosen, 984 F. 3d 720 (9th Cir. 2020).
\33\ The underlying District Court case also found a third
problematic aspect of the HHS regulations, that the HHS regulations
were inconsistent with the FSA because they used descriptive, not
mandatory, language in implementing certain provisions (e.g., while
the FSA requires that minors not released ``shall be placed
temporarily in a licensed program'' whose homes and facilities
``shall be non-secure as required under state law,'' FSA ]] 6, 19,
the regulations stated that ``ORR places [unaccompanied minors] into
a licensed program'' and that ``ORR places each [minor] in the least
restrictive setting that is in the best interest of the child and
appropriate to the [minor's] age and special needs,'' 84 FR 44,392,
44,531.). But on appeal, the Ninth Circuit ruled that where the 2019
Final Rule did not use mandatory language, nevertheless ``HHS and
ORR are bound by and must comply with the descriptive language in
the HHS regulations as equivalent to the mandatory requirements in
the Agreement. So interpreted, the descriptive language in the
regulations is consistent with the Agreement.'' Flores v. Rosen, 984
F.3d 720, 731 (9th Cir. 2020).
\34\ 984 F.3d 720, 737 (9th Cir. 2020).
\35\ Id. With respect to the DHS portions of the 2019 Final
Rule, the Ninth Circuit held that some of the DHS regulations
regarding initial apprehension and detention were consistent with
the FSA and could take effect, but that the remaining DHS
regulations were inconsistent with the FSA and the district court
properly enjoined them and the inconsistent HHS regulations from
taking effect. See id. at 744.
---------------------------------------------------------------------------

Separately, a group of states brought litigation in the District
Court for the Central District of California seeking to enjoin the
government from implementing the 2019 Final Rule (California v.
Mayorkas), based on other grounds including the Administrative
Procedure Act.\36\ The court stayed the case, given the related
litigation brought by Flores plaintiffs, which culminated in the Ninth
Circuit decision in Flores v. Rosen. After that decision, the
plaintiffs in California v. Mayorkas filed supplemental briefing
requesting a narrowed preliminary injunction, alleging that several
portions of the HHS provisions of the 2019 Final Rule violated the
Administrative Procedure Act. Subsequently, the parties entered into
settlement discussions. As of December 10, 2021, the parties informed
the court that HHS did not plan to seek termination of the FSA under
the terms of the stipulation or to ask the court to lift its injunction
of the HHS regulations. Instead, HHS would consider a future rulemaking
that would more broadly address issues related to the custody of
unaccompanied children by HHS and that would replace the rule being
challenged in California v. Mayorkas. Based on this agreement, the
court ordered that the California v. Mayorkas litigation should be
placed into abeyance with regard to the Plaintiffs' claims against HHS
while HHS engaged in new rulemaking to replace and supersede the HHS
regulations in the 2019 Final Rule.\37\ Further, among other things,
HHS agreed that while it underwent new rulemaking, it would not seek to
lift the injunction of the 2019 Final Rule, nor seek to terminate the
FSA as to HHS under the 2019 Final Rule, and that it would make best
efforts to submit a notice of proposed rulemaking to the OMB by April
15, 2023, providing quarterly updates to the Court should it not meet
that deadline.\38\ In accord with the relevant order ORR made best
efforts to submit the NPRM to OMB, and ultimately sent the document to
OMB on April 28, 2023.\39\ This NPRM initiates that broader rulemaking
effort, and reflects the stipulated agreement in California v.
Mayorkas, and applies, as relevant, the findings of the Ninth Circuit
regarding the 2019 Final Rule in Flores v. Rosen. Note, because the
permanent injunction of the 2019 Final Rule was never lifted, and the
FSA continued to remain in effect, ORR does not anticipate that any
third parties would have developed reliance interests

[[Page 68913]]

on the HHS regulations in the 2019 Final Rule.
---------------------------------------------------------------------------

\36\ California v. Mayorkas, No. 2:19-v-07390 (C.D. Cal. filed
Aug. 26, 2019).
\37\ See Stipulation re Request to Hold Plaintiffs' Claims as to
HHS Under Abeyance, California v. Mayorkas, No. 2:19-v-07390 (C.D.
Cal. Apr. 12, 2022), ECF No. 159. See also Order Approving
Stipulation, ECF No. 160.
\38\ See id.
\39\ Pending E.O. 12866 Regulatory Review, <a href="https://www.reginfo.gov/public/do/eoDetails?rrid=312162">https://www.reginfo.gov/public/do/eoDetails?rrid=312162</a>.
---------------------------------------------------------------------------

4. Lucas R. Litigation
Another ongoing litigation involving ORR, filed in 2018, also has
ramifications for this NPRM. Lucas R. v. Becerra,\40\ a class action
lawsuit, was filed in the U.S. District Court for the Central District
of California, alleging ORR had violated the FSA, the TVPRA, the U.S.
Constitution, and section 504 of the Rehabilitation Act of 1973
(section 504). Based on the plaintiffs' allegations, the court
certified five plaintiff classes comprising of all children in ORR
custody:
---------------------------------------------------------------------------

\40\ Lucas R. v. Becerra, Case No. 2:18-cv-5741 (C.D. Cal. filed
Jun. 29, 2018).
---------------------------------------------------------------------------

(1) who are or will be placed in a secure facility, medium-secure
facility, or residential treatment center (RTC), or whom ORR has
continued to detain in any such facility for more than 30 days, without
being afforded notice and an opportunity to be heard before a neutral
and detached decisionmaker regarding the grounds for such placement
(i.e., the ``step-up class'');
(2) whom ORR is refusing or will refuse to release to parents or
other available custodians within 30 days of the proposed custodian's
submission of a complete family reunification packet on the ground that
the proposed custodian is or may be unfit (i.e., the ``unfit custodian
class'');
(3) who are or will be prescribed or administered one or more
psychotropic medications without procedural safeguards (i.e., the
``drug administration class'');
(4) who are natives of non-contiguous countries and to whom ORR is
impeding or will impede legal assistance in legal matters or
proceedings involving their custody, placement, release, and/or
administration of psychotropic drugs (i.e., the ``legal representation
class''); and
(5) who have or will have a behavioral, mental health,
intellectual, and/or developmental disability as defined in 29 U.S.C.
[section] 705, and who are or will be placed in a secure facility,
medium-secure facility, or [RTC] because of such disabilities (i.e.,
the ``disability class'').\41\
---------------------------------------------------------------------------

\41\ Order re Defendants' Motion to Dismiss [101] and
Plaintiff's Motion for Class Certification [97], Lucas R. v.
Becerra, No. 2:18-cv-05741 (C.D. Cal. Nov. 2, 2018), ECF No. 126.
---------------------------------------------------------------------------

On August 30, 2022, the U.S. District Court for the Central
District of California granted preliminary injunctive relief concerning
the allegations of the unfit custodian, step-up, and legal
representation classes. As of October 31, 2022, ORR implemented new
policies and procedures on issues identified in the Court's preliminary
injunction order. As of September 2023, ORR remains in active
litigation in the Lucas R. class action. Depending on developments in
the case, ORR may incorporate additional provisions in the final rule
as discussed in this preamble.

C. Statutory and Regulatory Authority

As discussed above, under the HSA and TVPRA, the ORR Director is
responsible for the care and placement of unaccompanied children. Under
the HSA, ORR is responsible for ``coordinating and implementing the
care and placement of [unaccompanied children] who are in Federal
custody by reason of their immigration status,'' ``identifying a
sufficient number of qualified individuals, entities, and facilities to
house [unaccompanied children],'' ``overseeing the infrastructure and
personnel of facilities in which [unaccompanied children reside],'' and
``conducting investigations and inspections of facilities and other
entities in which [unaccompanied children] reside, including regular
follow-up visits to such facilities, placements, and other entities, to
assess the continued suitability of such placements.'' \42\ Under the
TVPRA, Federal agencies are required to notify HHS within 48 hours of
apprehending or discovering a UC or receiving a claim or having
suspicion that a non-citizen in their custody is an unaccompanied child
under 18 years of age.\43\ The TVPRA further requires that, absent
exceptional circumstances, any Federal agency must transfer an
unaccompanied child to the care and custody of HHS within 72 hours of
determining that a non-citizen child in its custody is an unaccompanied
child. With respect to the care and placement of unaccompanied
children, the TVPRA requires that HHS establish policies and programs
to ensure that unaccompanied children are protected from traffickers
and other persons seeking to victimize or exploit children. Among other
things, it also requires HHS to place unaccompanied children in the
least restrictive setting that is in the best interest of the child,
and states that in making such placements it may consider danger to
self, danger to the community, and risk of flight. As previously
discussed, the Secretary of HHS delegated the authority under the TVPRA
to the Assistant Secretary for Children and Families,\44\ who in turn
delegated the authority to the Director of ORR.\45\ It is under this
delegation of authority that ORR now proposes to issue regulations
describing how ORR meets its statutory responsibilities under the HSA
and TVPRA and to implement the relevant and substantive terms of the
FSA for the care and custody of unaccompanied children.
---------------------------------------------------------------------------

\42\ Id.
\43\ 8 U.S.C. 1232(b)(2).
\44\ 74 FR 14564 (2009)
\45\ 74 FR 1232 (2009).
---------------------------------------------------------------------------

In addition to requirements and standards related to the direct
care of unaccompanied children, ORR proposes to establish a new UC
Office of the Ombuds, to create a mechanism that allows unaccompanied
children and stakeholders to raise concerns with ORR policies and
practices to an independent body. The Ombuds will be tasked with
fielding concerns from any party relating to the implementation of ORR
regulations, policies, and procedures; reviewing individual cases,
conducting site visits and publishing reports including reports on
systemic issues in ORR custody, particularly where there are concerns
about access to services or release from ORR care; and following up on
grievances made by children, sponsors, or other stakeholders. HHS has
authority to establish this office under its authority to ``establish
policies and programs to ensure that unaccompanied alien children in
the United States are protected from traffickers and other persons
seeking to victimize or otherwise engage such children in criminal,
harmful, or exploitative activity.'' \46\
---------------------------------------------------------------------------

\46\ 8 U.S.C. 1232(c)(1); see also 6 U.S.C. 279(b)(1)(L)
(describing ORR's responsibility to conduct investigations and
inspections of facilities and other entities in which unaccompanied
children reside, including regular follow-up visits to such
facilities, placements, and other entities, to assess the continued
suitability of such placements).
---------------------------------------------------------------------------

D. Basis and Purpose of Regulatory Action

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

[[Page 68914]]

changed since the FSA was signed over 25 years ago.

E. Severability

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

V. Discussion of Elements of the Proposed Rule

Subpart A--Care and Placement of Unaccompanied Children

In this NPRM, ORR proposes to codify requirements and policies
regarding the placement, care, and services provided to unaccompanied
children in ORR custody. The following provisions identify the scope of
this part, the definitions used throughout this part, and principles
that apply to ORR placement, care, and services decisions.
Section 410.1000 Scope of This Part
ORR proposes, in Sec. 410.1000(a), that the scope of this part
pertain to the placement, care, and services provided to unaccompanied
children in Federal custody by reason of their immigration status and
referred to ORR. As described in section IV. of this proposed rule,
ORR's care, custody, and placement of unaccompanied children is
governed by the HSA and TVPRA, and ORR provides its services to
unaccompanied children in accordance with the terms of the FSA. ORR
also clarifies that proposed part 410 would not govern or describe the
entire program. For example, part 411 (describing requirements related
to the prevention of sexual abuse of unaccompanied children in ORR
care) would remain in effect under this proposed rule. ORR notes that
its current policies and practices are described in the online ORR
Policy Guide,\47\ Field Guidance,\48\ manuals describing compliance
with ORR policies and procedures, and other communications from ORR to
care provider facilities. ORR will continue to utilize these vehicles
for its subregulatory guidance and will revise them in connection with
publication of the final rule as needed to ensure compliance with the
final rule. The proposed provisions of this part would, in many cases,
codify existing ORR policies and practices. Further, upon publication
of a final rule, ORR would continue to publish subregulatory guidance
as needed to clarify the application of these regulations.
---------------------------------------------------------------------------

\47\ ORR Unaccompanied Children Program Policy Guide, <a href="https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide">https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide</a>.
\48\ Unaccompanied Children's Program Field Guidance, <a href="https://www.acf.hhs.gov/orr/policy-guidance/uc-program-field-guidance">https://www.acf.hhs.gov/orr/policy-guidance/uc-program-field-guidance</a>.
---------------------------------------------------------------------------

ORR also proposes, in Sec. 410.1000(b), that the provisions of
this part are separate and severable from one another and that if any
provision is stayed or determined to be invalid, the remaining
provisions shall continue in effect. Additionally, ORR proposes in
Sec. 410.1000(c) that ORR does not fund or operate facilities other
than standard programs, restrictive placements (which includes secure
facilities, including residential treatment centers, and heightened
supervision facilities), or emergency or influx facilities, absent a
specific waiver as described under proposed Sec. 410.1801(d) or such
additional waivers as are permitted by law.
Section 410.1001 Definitions
ORR proposes, in Sec. 410.1001, to codify the definitions of terms
that apply to this part. Some definitions are the same as those found
in statute, or other authorities (e.g., the definition of
``unaccompanied child'' is the same as the definition of
``unaccompanied alien child'' as found in the HSA, 6 U.S.C. 279(g)(2)).
Notably, for purposes of this proposed rule, ORR would update certain
terms and definitions provided in the FSA (e.g., the definition of
``influx''). Below is an explanation for certain definitions, to
further explain ORR's rationale when the proposed rule applies the
relevant terms.
The proposed definition of ``care provider facility'' is intended
to generally describe any placement type for unaccompanied children,
except out of network (OON) placements, and as a result is broader than
the term ``standard program,'' provided below, which for example does
not include emergency or influx facilities. ORR also notes that this
proposed definition does not reference ``facilities for children with
special needs,'' a term used in the definition of ``licensed program''
in the FSA and 45 CFR 411.5. ORR is considering not using the term
``facilities for children with special needs'' within the part for the
reasons set forth below in this section at the proposed definition of
``standard program.'' Moreover, ORR understands this proposed
definition for ``care provider facility'' to encompass any facility in
which an unaccompanied child may be placed while in the custody of ORR,
including any facility exclusively serving children in need of
particular services and treatment.
The proposed definition of ``disability'' is distinct from its
proposed definition for a ``special needs unaccompanied child,''
discussed later in this section and which is derived specifically from
the FSA. Although some unaccompanied children may have a disability and
also have special needs, the terms are not synonymous. For example, an
unaccompanied child exiting ORR custody may be considered to have a
disability within the definition set forth in section 504 of the
Rehabilitation Act of 1973 even if the child does not require services
or treatments for a mental and/or physical impairment.
The proposed definition of ``emergency'' differs from the
definition finalized at 45 CFR 411.5, which defines the term as ``a
sudden, urgent, usually unexpected occurrence or occasion requiring
immediate action.'' ``Emergency,'' for purposes of this proposed rule,
would reflect the term's usage in the context of the requirements in
this proposed rule.
With respect to the proposed definition of ``EOIR accredited
representative,'' ORR notes that DOJ refers to these individuals simply
as ``accredited representatives,'' see 8 CFR 1292.1(a)(4), but for
purposes of this proposed rule, ORR adopts the term ``EOIR accredited
representative.''
The proposed definition of ``heightened supervision facility''
incorporates language consistent with the definition of ``medium secure
facility'' provided in the FSA at paragraph 8. This term is meant to
replace the term ``staff secure facility'' as used under existing ORR
policies. ORR has decided to change its terminology because it has
become clear that the prior term was not well understood and did not
effectively convey information about the nature of such facilities.
The proposed definition of ``influx'' would change the threshold
for declaring an influx, for ORR's purposes, from the FSA standard,
which ORR believes is out of date considering current migration
patterns and its organizational capacity. The FSA defines influx as
``those circumstances where the INS has, at any given time, more than
130 minors eligible for placement in a licensed program.'' ORR's
proposed definition, however,

[[Page 68915]]

would not impact the rights, and responsibilities of other parties of
the FSA. ORR believes that the proposed definition more appropriately
reflects significantly changed circumstances since the inception of the
FSA and provides a more realistic, fair, and workable threshold for
implementing safeguards necessary in cases where a high percentage of
ORR's bed capacity is in use. The 1997 standard of 130 minors awaiting
placement does not reflect the realities of unaccompanied children
referrals in the past decade, in which the number of unaccompanied
children referrals each day typically exceeds, and sometimes greatly
exceeds, 130. To leave this standard as the definition of influx would
mean, in effect, that the program was always in influx status.
Accordingly, ORR has developed a more realistic and workable threshold
for implementing safeguards necessary in cases where a high percentage
of ORR bed capacity is in use.
With respect to the proposed definition of ``post-release
services,'' ORR notes that assistance linking families to educational
resources may include but is not limited to, in appropriate
circumstances, assisting with school enrollment; requesting an English
language proficiency assessment; seeking an evaluation to determine
whether the child is eligible for a free appropriate public education
(which can include special education and related services) or
reasonable modifications and auxiliary aids and services under the
Individuals with Disabilities Education Act or section 504 of the
Rehabilitation Act of 1973; and monitoring the unaccompanied child's
attendance at and progress in school. ORR notes that while the TVPRA
requires that follow-up services must be provided during the pendency
of removal proceedings in cases in which a home study occurred, the
nature and extent of those services would be subject to available
resources.
With respect to the proposed definition of ``runaway risk,'' ORR
notes that the FSA and ORR policy currently uses the term ``escape
risk.'' See FSA paragraph 22 (defining ``escape risk'' as ``a serious
risk that the minor will attempt to escape from custody,'' and
providing a non-exhaustive list of factors ORR may consider when
determining whether an unaccompanied child is an escape risk--e.g.,
whether the unaccompanied child is currently under a final order of
removal, the unaccompanied child's immigration history, and whether the
unaccompanied child has previously absconded or attempted to abscond
from government custody). ORR proposes to update this term to ``runaway
risk,'' which is a term used by state child welfare agencies and
Federal agencies to describe children at risk from running away from
home or their care setting. Rather than basing its determination of
runaway risk solely on the factors described in the FSA, ORR proposes
under this rule that such determinations must be made in view of a
totality of the circumstances and should not be based solely on a past
attempt to run away. This proposed definition of runaway risk is meant
to be consistent with how the term is used in the FSA to describe
escape from ORR care, i.e., from a care provider facility. ORR notes
here and throughout this proposed rule that the TVPRA uses the term
``risk of flight,'' stating HHS ``may'' consider ``risk of flight,''
among other factors, when making placement determinations.\49\ ORR
understands that in the immigration law context, ``risk of flight''
refers to an individual's risk of not appearing for their immigration
proceedings.\50\ ORR proposes, with respect to its responsibilities
toward unaccompanied children in its custody, to interpret ``risk of
flight'' as including ``runaway risk,'' thereby adding runaway risk to
the list of factors it would consider in making placement
determinations. Runaway risk often overlaps with concern that an
unaccompanied child may not appear for the child's immigration
proceedings. ORR also notes that runaway risk may also relate to
potential danger to self or the community, given the inherent risks to
unaccompanied children who run away from custody.
---------------------------------------------------------------------------

\49\ 8 U.S.C. 1232(c)(2)(A).
\50\ See e.g., hearings conducted by the Department of Justice's
Executive Office for Immigration Review to decide custody
redeterminations under section 236(a) of the Immigration and
Nationality Act, 8 U.S.C. 1226(a), ``where an alien must establish
that the alien does not present a danger to others, a threat to the
national security, or a flight risk.'' Matter of Guerra, 24 I&N Dec.
37, 40 (BIA 2006).
---------------------------------------------------------------------------

With respect to the proposed definition of ``secure facility,'' ORR
notes that the FSA uses but does not provide a definition for this
term. Nevertheless, the proposed definition is consistent with the
provisions of the FSA applying to secure facilities. Also, this
proposed definition differs from the definition in the 2019 Final Rule,
which could have been read to indicate that any contract or cooperative
agreement for a facility with separate accommodations for minors is a
secure facility. Such a definition risks erroneously confusing other
types of ORR placements that are not secure with secure placements and
therefore ORR is proposing an updated definition in this proposed rule.
With respect to the proposed definition of ``special needs
unaccompanied child,'' ORR notes that this definition has been included
to incorporate the term ``special needs minor'' as described within the
FSA at paragraph 7, except ORR proposes to update the definition by
using the phrase ``intellectual or developmental disability'' instead
of ``mental illness or retardation'' as used in the FSA. ORR
understands that this update reflects current terminology which has
superseded the terminology used in the FSA (``retardation''). Although
an unaccompanied child with a disability, as defined in this section,
could also be a ``special needs unaccompanied child'' as incorporated
here, the definition of disability is broader and thus the terms are
not synonymous. To further this clarification, ORR proposes a separate
definition for disability earlier in this section that incorporates the
meaning of the term across applicable governing statutory authorities.
ORR is also considering not defining and not using the term ``special
needs unaccompanied child'' within the part for the reasons set forth
below at proposed Sec. Sec. 410.1103 and 410.1106.
The proposed definition of ``standard program'' reflects and
updates the term ``licensed program'' at paragraph 6 of the FSA. The
FSA does not discuss situations where states discontinue licensing, or
exempt from licensing, child care facilities that contract with the
Federal Government to care for unaccompanied children, as has happened
recently in some states.\51\ ORR has included this proposed definition
of ``standard program'' that is broader in scope to account for
circumstances wherein licensure is unavailable in the state to programs
that provide residential, group, or home care services for dependent
children when those programs are serving unaccompanied children. ORR
notes that most states where ORR has care provider facilities have not
taken such actions, and that wherever possible standard programs would
continue to be licensed consistent with current practice under the FSA.
However, ORR

[[Page 68916]]

is considering substituting the term ``licensed program'' with the
proposed updated term ``standard program'' in order to establish that
the requirement that facilities in those states must still meet minimum
standards, consistent with requirements for licensed facilities
expressed in the FSA at Exhibit 1, in any circumstance in which a state
refuses to license a facility because the facility is housing
unaccompanied children.\52\ ORR solicits comments on using the proposed
definition of ``standard program'' in lieu of the term ``licensed
program.''
---------------------------------------------------------------------------

\51\ See, e.g., Proclamation by the Governor of the State of
Texas, May 31, 2021, available at: <a href="https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf">https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf</a> (directing
the Texas Health and Human Service Commission (HHSC) to amend its
regulations to ``discontinue state licensing of any child-care
facility in this state that shelters or detains [UC] under a
contract with the Federal government.''); see also Fl. Executive
Order No. 21-223 (Sep. 28, 2021), available at: <a href="https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf">https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf</a>.
\52\ Separate from this notice of proposed rulemaking and in the
spirit of current FSA requirements, ACF is currently developing a
notice of proposed rulemaking that would describe the creation of a
Federal licensing scheme for ORR care providers located in states
where licensure is unavailable to programs serving unaccompanied
children.
---------------------------------------------------------------------------

ORR understands this proposed definition for ``standard program''
to encompass any program operating non-secure facilities that provide
services to unaccompanied children in need of particular services and
treatment or children with particular mental or physical conditions.
Given this, ORR believes the continued use of language such as
``facilities for children with special needs'' and ``facilities for
special needs minors,'' as used in the FSA definition of ``licensed
program,'' is unnecessary for this regulation, and potentially
problematic for reasons discussed elsewhere within this section and at
proposed Sec. Sec. 410.1103 and 410.1106. For now, ORR has included
this language in the proposed rule to ensure consistency with the FSA,
but it is considering not using the term ``special needs unaccompanied
child'' or specifying that facilities for special needs unaccompanied
children operated by a standard program are covered by the requirements
that apply to standard programs in the part. Therefore, ORR also
solicits comments in this section on its proposal to not include in the
definition of ``standard program'' the FSA terminology used in the term
``licensed program'' referencing facilities for special needs
unaccompanied children or a facility for special needs unaccompanied
children.
The proposed definition of ``trauma bond'' is consistent with how
the Office to Monitor and Combat Trafficking in Persons, Department of
State defined the term in its factsheet, Trauma Bonding in Human
Trafficking.\53\
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\53\ Office to Monitor and Combat Trafficking in Persons. (2020,
June). Trauma Bonding in Human Trafficking. U.S. Department of
State. <a href="https://www.state.gov/wp-content/uploads/2020/10/TIP_Factsheet-Trauma-Bonding-in-Human-Trafficking-508.pdf">https://www.state.gov/wp-content/uploads/2020/10/TIP_Factsheet-Trauma-Bonding-in-Human-Trafficking-508.pdf</a>.
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With respect to the proposed definition of ``trauma-informed,'' ORR
believes that a trauma-informed approach to the care and placement of
unaccompanied children is essential to ensuring that the interests of
children are considered in decisions and actions relating to their care
and custody.\54\ ORR understands trauma-informed system, standard,
process, or practices consistently with the 6 Guidelines To A Trauma-
Informed Approach developed by the Centers for Disease Control and
Prevention (CDC) in collaboration with the Substance Abuse and Mental
Health Services Administration (SAMHSA).
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\54\ See 6 U.S.C. 279(b)(1)(B); 8 U.S.C. 1232(c)(2)(A).
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Section 410.1002 ORR Care and Placement of Unaccompanied Children
ORR proposes, at Sec. 410.1002, a description of ORR's authority
to coordinate and implement the care and placement of unaccompanied
children who are in ORR custody by reason of their immigration status.
ORR notes that this substantive requirement is aligned with the
requirement established in the 2019 Final Rule at 45 CFR 410.102(a),
concerning the scope of authority of ORR regarding the care and
placement of unaccompanied children. That section of the 2019 Final
Rule was not found to be inconsistent with the FSA by the 9th Circuit
in Flores v. Rosen, but as discussed in section IV.B.3 of this proposed
rule, the 2019 Final Rule in its entirety is currently enjoined and
will be superseded by the standards proposed in this proposed rule,
once finalized.
Section 410.1003 General Principles That Apply to the Care and
Placement of Unaccompanied Children
ORR proposes, at Sec. 410.1003, to describe principles that would
apply to the care and placement for unaccompanied children in its
custody. These principles are based on ORR's statutory duties to
provide care and custody for unaccompanied children in a manner that is
consistent with their best interests.\55\
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\55\ See, e.g., 6 U.S.C. 279(b)(1) (making ORR responsible for,
among other things, ``coordinating and implementing the care and
placement of unaccompanied alien children who are in Federal custody
by reason of their immigration status,'' ``ensuring that the
interest of the child are considered in decisions and actions
relating to the care and custody of an unaccompanied alien child,''
and ``overseeing the infrastructure and personnel of facilities in
which unaccompanied alien children reside.''); see also 8 U.S.C.
1232(c)(1) (requiring HHS to ``establish policies and programs to
ensure that unaccompanied alien children in the United States are
protected from traffickers and other persons seeking to victimize or
otherwise engage such children in criminal, harmful, or exploitative
activity, including policies and programs reflecting best practices
in witness security programs.''); 1232(c)(2)(A) (``. . . an
unaccompanied alien child in the custody of the Secretary of Health
and Human Services shall be promptly placed in the least restrictive
setting that is in the best interest of the child . . .'').
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At Sec. 410.1003(a), ORR proposes that for all placements,
unaccompanied children shall be treated with dignity, respect, and
special concern for their particular vulnerability as unaccompanied
children. In addition to ORR's statutory authorities, this proposal is
consistent with the substantive criteria set forth at paragraph 11 of
the FSA, and current ORR policies.
At Sec. 410.1003(b), ORR proposes that ORR shall hold
unaccompanied children in facilities that are safe and sanitary and
that are consistent with ORR's concern for the particular vulnerability
of unaccompanied children. This is consistent with the substantive
requirement from paragraph 12A of the FSA that ``[f]ollowing arrest,
the INS shall hold minors in facilities that are safe and sanitary and
that are consistent with the INS's concern for the particular
vulnerability of minors.'' ORR notes that although this provision
applies to the arrest and detention of unaccompanied children prior to
their placement in an ORR care provider facility, and not to
unaccompanied children after they are placed in ORR's care, ORR is
proposing to adopt this standard for its facilities and custody of
unaccompanied children as well. ORR also notes that it is proposing the
phrasing ``the particular vulnerability of unaccompanied children'' as
opposed to ``the particular vulnerability of minors,'' as it believes
that the specific vulnerability of the population of unaccompanied
children should be considered when providing them with safe and
sanitary conditions.
At proposed Sec. 410.1003(c), ORR would be required to plan and
provide care and services based on the individual needs of and focusing
on the strengths of the unaccompanied child. As a complementary
provision, ORR proposes, at Sec. 410.1003(d), to encourage
unaccompanied children, as developmentally appropriate and in their
best interests, to be active participants in ORR's decision-making
process relating to their care and placement. ORR believes that these
collaborative approaches to care provision allow for the recognition of
each child's specific needs and strengths while providing opportunities
for unaccompanied children to become more empowered, resilient, and
self-efficacious.

[[Page 68917]]

ORR proposes, at Sec. 410.1003(e), to codify a requirement that
care of unaccompanied children be tailored to the individualized needs
of each unaccompanied child in ORR custody, ensuring the interests of
the child are considered, and that unaccompanied children are protected
from traffickers and other persons seeking to victimize or otherwise
engage them in criminal, harmful, or exploitative activity, both while
in ORR custody and upon release from the UC Program. ORR recognizes the
utmost importance of protecting unaccompanied children from traffickers
and other persons seeking to victimize or otherwise engage in harmful
activities, including unscrupulous employers. ORR believes the
provisions proposed at Sec. 410.1003(e) reinforce ORR's commitment to
ensuring the best interests of unaccompanied children are considered
and actions are taken to safeguard them from harm. ORR also believes
that codifying the requirement to consider each unaccompanied child's
individualized needs reinforces that unaccompanied children will be
assessed by ORR to determine whether they may require particular
services and treatment while in the UC Program, such as to address the
ramifications of a history of severe neglect or abuse, as provided for
in paragraph 7 of the FSA.
Consistent with the substantive criteria set forth in the TVPRA, 8
U.S.C. 1232(c)(2)(A), ORR proposes at Sec. 410.1003(f) to require that
unaccompanied children be promptly placed in the least restrictive
setting that is in the best interest of the child, with placement
considerations including danger to self; danger to the community; and
runaway risk, as defined in Sec. 410.1001. In addition to ORR's
statutory authorities, this proposal is consistent with the substantive
criteria set forth at paragraph 11 of the FSA, and current ORR
policies.
At proposed Sec. 410.1003(g), ORR would require consultation with
parents, legal guardians, child advocates, and attorneys of record or
EOIR accredited representatives as needed when requesting information
or consent from all unaccompanied children.
Section 410.1004 ORR Custody of Unaccompanied Children
Proposed Sec. 410.1004 describes the scope of ORR's custody of
unaccompanied children. Consistent with its statutory authorities and
the FSA, this proposed provision specifies that all unaccompanied
children placed by ORR in care provider facilities remain in the legal
custody of ORR and may be transferred or released only with ORR
approval.\56\ The provision would also provide that in the event of an
emergency, a care provider facility may transfer temporary physical
custody of an unaccompanied child prior to securing approval from ORR
but shall notify ORR of the transfer as soon as is practicable
thereafter, and in all cases within 8 hours.\57\
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\56\ See 8 U.S.C. 1232(b)(1) (``Consistent with section 279 of
title 6, and except as otherwise provided under subsection (a), the
care and custody of all unaccompanied alien children, including
responsibility for their detention, where appropriate, shall be the
responsibility of the Secretary of Health and Human Services.'').
\57\ See FSA at ] 19.
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Subpart B--Determining the Placement of an Unaccompanied Child at a
Care Provider Facility

In subpart B of this proposed rule, ORR proposes to codify the
criteria and requirements that apply to placement of unaccompanied
children at particular types of care provider facilities. The HSA makes
ORR responsible for, among other things, ``coordinating and
implementing the care and placement of unaccompanied alien children who
are in federal custody by reason of their immigration status,''
``making placement determinations for all unaccompanied alien children
who are in federal custody by reason of their immigration status,''
``implementing the placement determinations,'' and ``implementing
policies with respect to the care and placement of unaccompanied alien
children.'' \58\ In addition, subpart B would clarify and strengthen
placement criteria to better ensure appropriate placement based on each
unaccompanied child's individual background, characteristics, and
needs. ORR believes that these proposed provisions can help to protect
the interests of unaccompanied children in ORR care by supporting safe
and appropriate placement in the least restrictive setting appropriate
to the child's age and individualized needs, consistent with existing
legal requirements and child welfare best practices.
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\58\ 6 U.S.C. 279(b)(1). See also 8 U.S.C. 1232(c)(2)(A).
---------------------------------------------------------------------------

Section 410.1100 Purpose of This Subpart
Proposed Sec. 410.1100 describes the purposes of subpart B, which
are to set forth the process by which ORR receives referrals from other
Federal agencies and the factors ORR considers when placing an
unaccompanied child in a particular care provider facility. In
addition, proposed Sec. 410.1100 would clarify that, as used in this
subpart, ``placement determinations'' or ``placements'' refers to
placements in ORR-approved care provider facilities during the time an
unaccompanied child is in ORR care, and not to the location of an
unaccompanied child once the child is released in accordance with
provisions proposed in subpart C.
Section 410.1101 Process for the Placement of an Unaccompanied Child
After Referral From Another Federal Agency
ORR proposes, at new Sec. 410.1101, to codify its existing process
for accepting referrals of unaccompanied children from another Federal
agency and for placement of an unaccompanied child in a care provider
facility upon such referral. Consistent with the TVPRA at 8 U.S.C.
1232(b)(3), which requires any department or agency of the Federal
Government that has an unaccompanied child in its custody to transfer
the custody of such child to HHS not later than 72 hours after
determining that the child is an unaccompanied child, unless there are
exceptional circumstances,\59\ and with existing policy, under proposed
Sec. 410.1101(a), ORR accepts referrals from any department or agency
of the Federal Government of unaccompanied children in the referring
department or agency's custody. Further, consistent with existing
policy and in cooperation with referring agencies, ORR accepts such
referrals at any time of day, every day of the year. ORR may seek
clarification about the information provided by the referring agency
(including about how the referred individual meets the statutory
definition of unaccompanied child). In such instances, ORR shall notify
the referring agency and work with the referring agency, including by
requesting additional information, in accordance with statutory time
frames for transferring unaccompanied children to ORR.
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\59\ The TVPRA also contains specific provisions for DHS to
screen children who are from contiguous countries to determine
whether such children meet statutory criteria to be returned to the
child's country of nationality or of last habitual residence. Such
screening should occur within 48 hours of apprehension. If the child
does not meet the criteria to be returned or no determination can be
made within 48 hours of apprehension, the TVPRA states that the
child shall ``immediately be transferred to the Secretary of HHS and
treated in accordance with subsection (b).'' 8 U.S.C. 1232(a)(4). We
read this language in concert with the language in 8 U.S.C.
1232(b)(3) and, thus, include the one 72-hour standard in this
proposed rule.
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At Sec. 410.1101(b) and (c), ORR proposes timeframes for
identifying, and notifying a referring Federal agency of ORR's
identification of, an appropriate placement for an unaccompanied child,
and for accepting transfer of custody of

[[Page 68918]]

an unaccompanied child after a referring Federal agency determines that
a child is an unaccompanied child who should be referred to ORR. At
Sec. 410.1101(b), ORR proposes to codify its current policy that upon
notification from any department or agency of the Federal Government
that a child is an unaccompanied child and therefore must be
transferred to ORR custody, ORR must identify an appropriate placement
for the unaccompanied child and notify the referring Federal agency
within 24 hours of receiving the referring agency's notification
whenever possible, and no later than 48 hours of receiving the
referring agency's notification, barring exceptional circumstances (see
paragraph below). ORR believes that setting a maximum time frame of 48
hours for ORR to identify a placement and notify a referring Federal
agency of ORR's identification of a placement would help to expedite
transfer of unaccompanied children from the referring Federal agency to
ORR care, but also that certain exceptions to this time frame may be
necessary in certain circumstances, as discussed in the following
paragraph. Proposed Sec. 410.1101(c) would require ORR to work with
the referring Federal department or agency to accept transfer of
custody of the unaccompanied child, consistent with the statutory
requirements at 8 U.S.C. 1232(b)(3) (the referring Federal agency must
transfer custody of an unaccompanied child to HHS not later than 72
hours after determining that the child is an unaccompanied child,
except in the case of exceptional circumstances).
As noted above, the TVPRA provides that referring Federal agencies
must transfer custody of unaccompanied children to HHS within 72 hours
unless there are exceptional circumstances. In order to help facilitate
this requirement in coordination with referring agencies, proposed
Sec. 410.1101(b) and (c) describe internal timeframes for ORR to
identify and notify referring Federal agencies of placements and to
accept transfer of custody from referring agencies. But ORR notes that
it may in certain ``exceptional circumstances'' be unable to timely
identify placements for and help facilitate other agencies' timely
transfers of unaccompanied children to its custody. For purposes of
proposed Sec. 410.1101(b) and (c), proposed Sec. 410.1101(d)
describes circumstances which would prevent ORR from timely identifying
a placement for an unaccompanied child or accepting transfer of
custody. At proposed Sec. 410.1101(d), ORR describes these exceptional
circumstances consistent with those described in paragraph 12.A of the
FSA, some of which were also incorporated into the 2019 Final Rule at
Sec. 410.202. The proposed ``exceptional circumstances,'' for ORR's
purposes, would include the following: (1) any court decree or court-
approved settlement that requires otherwise; (2) an influx, as defined
in proposed Sec. 410.1001; (3) an emergency, including a natural
disaster, such as an earthquake or hurricane, and other events, such as
facility fires or civil disturbances; (4) a medical emergency, such as
a viral epidemic or pandemic among a group of unaccompanied children;
(5) the apprehension of an unaccompanied child in a remote location,
and (6) the apprehension of an unaccompanied child whom the referring
agency indicates (i) poses a danger to self or others or (ii) has been
charged with or has been convicted of a crime, or is the subject of
delinquency proceedings, delinquency charge, or has been adjudicated
delinquent, and additional information is essential in order to
determine an appropriate ORR placement. Notably, the unavailability of
documents will not necessarily prevent the prompt transfer of a child
to ORR. In addition, ``exceptional circumstances,'' for ORR's purposes,
would include an act or event that could not be reasonably foreseen
that prevents the placement of or accepting transfer of custody of an
unaccompanied child within the proposed timeframes. Given the mandate
under the TVPRA, 8 U.S.C. 1232(c)(2), that ORR place an unaccompanied
child in the least restrictive setting that is in the best interests of
the unaccompanied child, subject to consideration of danger to self,
danger to the community/others, and risk of flight, additional time may
be needed in some circumstances to determine the most appropriate and
safe placement that comports with the best interests of the
unaccompanied child. Thus, ORR believes that this general exception for
acts or events that could not be reasonably foreseen is appropriate to
afford additional time to assess these considerations, though ORR is
mindful of avoiding prolonged placements in DHS facilities that are not
designed for the long-term care of children. As discussed previously,
these proposed exceptional circumstances would, as appropriate, modify
the timeframes applicable to ORR under proposed Sec. 410.1101(b) and
(c).
ORR notes that the FSA also includes an exception to these
timeframe requirements for unaccompanied children who do not speak
English and for whom an interpreter is unavailable. However, ORR does
not propose to include this as an exceptional circumstance for purposes
of Sec. 410.1101(b) and (c). Because ORR is able to serve
unaccompanied children regardless of their primary language through the
use of telephonic interpreters, ORR does not view this as an
insurmountable impediment to the prompt placement of unaccompanied
children. In addition, the FSA includes an exception in which a
reasonable person would conclude that an individual is an adult despite
the individual's claim to be an unaccompanied child. However, ORR does
not propose to include this as an exceptional circumstance for purposes
of proposed Sec. 410.1101(b) and (c) because ORR does not believe that
such a situation poses the type of urgency inherent in exceptional
circumstances as described above. For further information on ORR's
proposed policies regarding age determinations, ORR refers readers to
its discussion of proposed subpart H.
As discussed previously, the TVPRA contemplates the referral and
transfer of unaccompanied children to ORR from other Federal agencies
or departments, requiring that, absent exceptional circumstances, such
transfer must occur no later than 72 hours after determining that a
child is an unaccompanied child.\60\ ORR seeks to accept transfer of
unaccompanied children as quickly as possible after a placement has
been identified within this time frame. In identifying placements for
unaccompanied children, ORR balances the need for expeditious
identification of placement with the need to ensure safe and
appropriate placement in the best interests of the unaccompanied child,
which necessitates a comprehensive review of information regarding an
unaccompanied child's background and needs before placement. Under
existing policy, to determine the appropriate placement for an
unaccompanied child, ORR requests and assesses extensive background
information on the unaccompanied child from the referring agency,
including the following: (1) how the referring agency made the
determination that the child is an unaccompanied child; (2) health
related information; (3) whether the unaccompanied child has any
medication or prescription information, including how many days' supply
of the medication will be provided with the unaccompanied child when
transferred into ORR custody; (4) biographical and biometric
information,

[[Page 68919]]

such as name, gender, alien number, date of birth, country of birth and
nationality, date(s) of entry and apprehension, place of entry and
apprehension, manner of entry, and the unaccompanied child's current
location; (5) any information concerning whether the unaccompanied
child is a victim of trafficking or other crimes; (6) whether the
unaccompanied child was apprehended with a sibling or other relative;
(7) identifying information and contact information for a parent, legal
guardian, or other related adult providing care for the unaccompanied
child prior to apprehension, if known, and information regarding
whether the unaccompanied child was separated from a parent, legal
guardian, or adult relative after apprehension, and the reason for
separation; (8) if the unaccompanied child was apprehended in transit
to a final destination, what the final destination was and who the
unaccompanied child planned to meet or live with at that destination,
if known; (9) whether the unaccompanied child is a runaway risk, and if
so, the runaway risk indicators; (10) any information on a history of
violence, juvenile or criminal background, or gang involvement known or
suspected, risk of danger to self or others, state court proceedings,
and probation; (11) if the unaccompanied child is being returned to ORR
custody after arrest on alleged gang affiliation or involvement, ORR
requests all documentation confirming whether the unaccompanied child
is a Saravia class member and information on the Saravia hearing,
including the date and time; \61\ and (12) any particular needs or
other information that would affect the care and placement of the
unaccompanied child, including, as applicable, information about
services, supports, or program modifications provided to the child on
the basis of disability.
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\60\ See 8 U.S.C. 1232(b)(2) and (3).
\61\ A Saravia class member is defined as a noncitizen minor who
(1) came to the United States as an unaccompanied child, as defined
at 6 U.S.C. 279(g)(2); (2) was previously detained in the custody of
the Department of Health and Human Services (HHS), Office of Refugee
Resettlement (ORR) but then released to a sponsor by ORR; and (3)
has been or will be rearrested by the Department of Homeland
Security (DHS) on the basis of a removability warrant based in whole
or in part on allegations of gang affiliation. In Saravia bond
hearings DHS bears the burden to demonstrate changed circumstances
since the minor's release by ORR which demonstrate the minor is a
danger to the community. DHS must demonstrate that circumstances
have changed since the child's release from ORR custody such that
the child poses a danger to the community or is a flight-risk. See
Order Certifying the Settlement Class and Granting Final Approval of
Class Action Settlement, Saravia v. Barr, Case No.: 3:17-cv-03615
(N.D. Cal. Jan. 19, 2021), ECF No. 249.
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Furthermore, the TVPRA places the responsibility for the transfer
of custody on referring Federal agencies.\62\ ORR custody begins when
it assumes physical custody from the referring agency. Proposed Sec.
410.1101(e) would codify this practice, which is currently reflected at
section 1.1 of the Policy Guide.
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\62\ 8 U.S.C. 1232(b)(3).
---------------------------------------------------------------------------

Section 410.1102 Care Provider Facility Types
Proposed Sec. 410.1102 describes the types of care provider
facilities in which unaccompanied children may be placed. The basis for
this section is ORR's statutory authority to make placement
determinations for unaccompanied children in its care, as well as other
responsibilities such as implementing policies with respect to their
care and overseeing the infrastructure and personnel of facilities in
which unaccompanied children reside.\63\ Specifically, this section
proposes that ORR may place an unaccompanied child in a care provider
facility as defined at proposed Sec. 410.1001, including but not
limited to shelters, group homes, individual family homes, heightened
supervision facilities, or secure facilities, including RTCs. ORR
proposes that it may also place unaccompanied children in out-of-
network (OON) placements under certain, limited circumstances, such as
an OON RTC (which would need to meet the standards that apply to RTCs
that are ORR care provider facilities) or a temporary stay at hospital
(for example, for surgery). ORR would make such placements taking into
account the considerations and criteria set forth in proposed
Sec. Sec. 410.1103 through 410.1109 and 410.1901, as further discussed
below. In addition, ORR proposes that in times of influx or emergency,
as further discussed in proposed subpart I (Emergency and Influx
Operations), ORR may place unaccompanied children in facilities that
may not meet the standards of a standard program, but rather meet the
standards in subpart I. ORR believes that this proposed provision is
consistent with the FSA requirement that unaccompanied children be
placed in licensed programs until such time as release can be effected
or until immigration proceedings are concluded, except that in the
event of an emergency or influx of children into the United States, ORR
must place unaccompanied children into licensed programs as
expeditiously as possible.\64\
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\63\ See generally 6 U.S.C. 279(b)(1).
\64\ See FSA at paragraph 19 and Exhibit 3.
---------------------------------------------------------------------------

Consistent with proposed Sec. 410.1102, ORR would place
unaccompanied children in group homes or individual family homes,
including long-term and transitional home care settings, as
appropriate, based on the unaccompanied child's age and individualized
needs and circumstances. Proposed definitions of ``ORR long-term home
care'' and ``ORR transitional home care'' are included in Sec.
410.1001, which would replace the terms ``long-term foster care'' and
``transitional foster care'' as those terms are used in the definition
of ``traditional foster care'' provided at 45 CFR 411.5. Where
possible, ORR believes that based on an unaccompanied child's age,
individualized needs, and circumstances, as well as a care provider
facility's capacity, it should favor placing unaccompanied children in
transitional and long-term home care settings while they are awaiting
release to sponsors. Having said that, ORR notes that efforts to place
more unaccompanied children out of congregate care shelters that house
more than 25 children together is a long-term aspiration, given the
large number of children in its custody and the number of additional
programs that would be required to care for them in home care settings
or small-scale shelters of 25 children or less. Given this reality,
care provider facilities structured and licensed to accommodate more
than 25 children continue to serve a vital role in meeting this need.
Finally, for the final rule, ORR is also considering replacing its
current long-term and transitional home care placement approach with a
community-based care model that would expand upon the current types of
care provider facilities that may care for unaccompanied children in
community-based settings. This is in line with a vision of moving
towards a framework of community-based care as described in the
following paragraphs. ORR believes such a framework would be consistent
with the language of this proposed rule and that ORR would be able to
implement it in a manner consistent with this proposed rule.
If ORR were to finalize the community-based care model in the final
rule, references to ORR long-term home care and ORR transitional home
care as used in this proposed rule would be replaced with the term
community-based care, and ORR would define ``community-based care'' in
Sec. 410.1001 as an ORR-funded and administered family or group home
placement in a community-based setting, whether for a short-term or a
long-term placement. The proposed definition of

[[Page 68920]]

``community-based care'' encompasses the term ``traditional foster
care'' that is codified at existing Sec. 411.5.
``Community-based care'' would be a continuum of care that would
include basic and therapeutic foster family settings as well as
supervised independent living group home settings for unaccompanied
children, which are funded and administered by ORR. It aims to more
effectively place and support unaccompanied children who are best
served in family settings, such as tender age unaccompanied children,
pregnant/parenting unaccompanied children, unaccompanied children with
extended stays, and unaccompanied children who are moving towards
independent living or close to aging out of ORR care. Thus, a
community-based care model would include placements in care provider
facilities capable of accommodating unaccompanied children with both
long-term (e.g., where there is no reasonable prospect of release to a
sponsor) and short-term (e.g., rapid release expected) care needs. For
purposes of UC Program management, the term community-based care would
encompass and replace the term ``traditional foster care'' provided at
existing Sec. 411.5 as well as the terms ``ORR long-term home care''
and ``ORR transitional home care'' as used in this proposed rule.
Components of the ORR community-based care model would include
caregivers (either the foster parent or the designated official for a
child care institution, inclusive of care provider facility staff)
providing care in a manner consistent with their state licensing
requirements, such as exercising the Reasonable and Prudent Parent
Standard, as defined at 42 U.S.C. 675(10)(A), to make daily decisions
on age-appropriate activities for the child. The Reasonable and Prudent
Parent Standard is the standard characterized by careful and sensible
parental decisions that maintain the health, safety, and best interests
of a child, while at the same time encouraging the emotional and
developmental growth of the child, that a caregiver shall use when
determining whether to allow a child in foster care to participate in
extracurricular, enrichment, cultural, and social activities. Under an
ORR community-based care model, when unaccompanied children are in
community-based settings on an extended basis, they would be eligible
to attend local schools under applicable school policies to the same
extent that unaccompanied children in long-term home care placements
can, to facilitate integration into the local community and the
development of relationships with peers and adults. Under a community-
based care model, caregivers would support: (1) unaccompanied
children's integration into their local communities, development of
healthy and nurturing relationships with adults and peers, and
engagement and connection to local services, activities, and
opportunities; (2) the development of unaccompanied children's
independent living skills when they are of the age that supports
transition to adulthood (e.g., 16 years or older); and (3) proactive
permanency planning for unaccompanied children who do not have a viable
sponsor, including identification of trusted adults and alternative
care options that promote permanency for the unaccompanied children.
Additionally, under a community-based care model, in consultation as
appropriate with the child's attorney or other relevant stakeholder
such as a legal service provider or child advocate, ORR will consider a
child's eligibility for or access to legal relief (including, for
example, a special immigrant juvenile predicate order) in a specific
jurisdiction as part of the placement decision. ORR welcomes public
comment on this vision of community-based care, its inclusion as a care
provider facility type in the final rule in place of ORR's current
long-term and transitional home care placement approach, and any other
concerns relevant to this change based on existing language in the
proposed rule.
Section 410.1103 Considerations Generally Applicable to the Placement
of an Unaccompanied Child
Proposed Sec. 410.1103 sets forth considerations generally
applicable to the placement of unaccompanied children consistent with
the TVPRA, 8 U.S.C. 1232(c)(2)(A) and the FSA. The TVPRA mandates that
ORR place each unaccompanied child in the least restrictive setting
that is in the best interest of the unaccompanied child, with due
consideration by HHS of danger to self, danger to community, and risk
of flight. Similarly, paragraph 11 of the FSA requires that each
unaccompanied child be placed in the least restrictive setting
appropriate to the child's age and ``special needs,'' provided that
such setting is consistent with the interest in ensuring the
unaccompanied child's timely appearance before DHS and the immigration
courts and protecting the unaccompanied child's well-being and that of
others. Consistent with the statutory mandate and the FSA provision, as
well as existing policy, under proposed Sec. 410.1103(a), ORR would
place each unaccompanied child in the least restrictive setting that is
in the best interest of the unaccompanied child and appropriate to the
unaccompanied child's age and individualized needs, provided that such
setting is consistent with the interest in ensuring the unaccompanied
child's timely appearance before DHS and the immigration courts and
protecting the unaccompanied child's well-being and that of others.
ORR considers the following factors when evaluating an
unaccompanied child's best interest: the unaccompanied child's
expressed interests, in accordance with the unaccompanied child's age
and maturity; the unaccompanied child's mental and physical health; the
wishes of the unaccompanied child's parents or legal guardians; the
intimacy of relationship(s) between the unaccompanied child and the
child's family, including the interactions and interrelationship of the
unaccompanied child with the child's parents, siblings, and any other
person who may significantly affect the unaccompanied child's well-
being; the unaccompanied child's adjustment to the community; the
unaccompanied child's cultural background and primary language; length
or lack of time the unaccompanied child has lived in a stable
environment; individualized needs, including any needs related to the
unaccompanied child's disability; and the unaccompanied child's
development and identity. ORR also notes that its care provider
facilities are usually congregate care settings. As a result,
consistent with prioritizing the safety and well-being of all
unaccompanied children, when making a placement determination, ORR
evaluates the best interests of both the individual unaccompanied child
being placed and the best interests of the other unaccompanied children
at the care provider facility where the individual unaccompanied child
may be placed. ORR notes that the factors and considerations in
proposed Sec. 410.1103(b) and proposed Sec. 410.1105 also are
evaluated in determining the best interest of the child for purposes of
placement.
ORR also proposes to use the term ``individualized needs,'' in
proposed Sec. 410.1103(a), rather than ``special needs'' (as used in
the FSA and regulations established in the 2019 Final Rule at 45 CFR
410.201(a)), because it believes the term ``special needs'' has created
confusion. The term ``special needs'' may imply that, in determining
placement, ORR considers only a limited range of needs that fall within

[[Page 68921]]

a special category. Instead, in assessing the appropriate placement of
an unaccompanied child, ORR takes into account any need it becomes
aware of that is specific to the individual being assessed, regardless
of the nature of that need. In addition, the term ``special needs'' may
imply that, in determining placement, ORR considers only those needs
related to an unaccompanied child's disability, which as explained, is
not the case. To avoid the suggestion that, in determining placement of
an unaccompanied child, ORR only takes into account a limited range of
needs that fall within a special category, we are using the broader
term ``individualized needs'' for purposes of proposed Sec.
410.1103(a).
ORR further notes that as used in the FSA, including the
considerations required at paragraph 11, ``special needs'' is not
synonymous with disability or disability-related needs. The term
``special needs'' has no clear legal meaning; of note, it is not used
in section 504 or the HHS implementing regulations at 45 CFR part 85.
Aside from its particular usage in the FSA, the term ``special needs''
is often understood to be a placeholder or euphemism for
``disability.'' As with the term ``handicapped,'' ORR is concerned
about perpetuating language that has become stigmatized over time. For
these reasons, as discussed above at Sec. 410.1001, ORR invites
comments concerning the continued use of the terms ``special needs
minor'' or ``special needs unaccompanied child'' but has included these
terms in the proposed rule in order to ensure consistency with the FSA.
Under proposed Sec. 410.1103(b), consistent with existing policy
and with certain requirements under the TVPRA,\65\ ORR proposes that it
would consider additional factors that may be relevant to the
unaccompanied child's placement, to the extent such information is
available, including but not limited to the following: danger to self
and the community/others, runaway risk, trafficking in persons or other
safety concerns, age, gender, LGBTQI+ status, disability, any
specialized services or treatment required or requested by the
unaccompanied child, criminal background, location of potential sponsor
and safe and timely release options, behavior, siblings in ORR custody,
language access, whether the unaccompanied child is pregnant or
parenting, location of the unaccompanied child's apprehension, and
length of stay in ORR custody. ORR believes that this information, to
the extent available, is necessary for a comprehensive review of an
unaccompanied child's background and needs, and for appropriate and
safe placement of an unaccompanied child.
---------------------------------------------------------------------------

\65\ See 8 U.S.C. 1232(c).
---------------------------------------------------------------------------

In addition, with respect to the consideration of whether any
specialized services or treatments are required, ORR is aware of the
importance of ascertaining an unaccompanied child's health status,
including the need for proximity to medical specialists, the child's
reproductive health status (such as information relating to pregnancy
or post-partum status; use of birth control; and any recent procedures,
medications, or current needs related to pregnancy), and whether the
child is a victim of a sex crime (e.g., sexual assault, sex
trafficking)), and other healthcare needs, upon entering ORR care in
order to ensure the most appropriate placement, and relies on
information provided from referring Federal agencies to make
appropriate placements. For further discussion of proposed policies
related to access to medical care, ORR refers readers to proposed Sec.
410.1307(b). When it receives a referral of an unaccompanied child from
another Federal agency, ORR documents and reviews the unaccompanied
child's biographical and apprehension information, as submitted by the
referring Federal agency in ORR's case management system, including any
information about an unaccompanied child's health status, including
their reproductive health status and need for medical specialists.
Under proposed Sec. 410.1103(c), ORR would be able to utilize
information provided by the referring Federal agency, child assessment
tools, interviews, and pertinent documentation to determine the
placement of all unaccompanied children. In addition, ORR proposes that
it may obtain any relevant records from local, State, and Federal
agencies regarding an unaccompanied child to inform placement
decisions. Such information is vital in carrying out ORR's general duty
to coordinate the care and placement of unaccompanied children,
including determining whether a restrictive placement may be
necessary.\66\ ORR is proposing to add these provisions to the
regulations to clarify the broad range of information it may utilize in
making placement determinations.
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\66\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c)(2).
---------------------------------------------------------------------------

The TVPRA requires that the placement of an unaccompanied child in
a secure facility be reviewed on a monthly basis to determine if such
placement remains warranted.\67\ ORR notes that it exceeds the
statutory requirement here because under its current policies all
restrictive placements, not only secure placements, must be reviewed at
least every thirty days. Proposed Sec. 410.1103(d) would codify the
practice of reviewing restrictive placements at least every thirty days
to determine if such placements remain warranted.
---------------------------------------------------------------------------

\67\ See 8 U.S.C. 1232(c)(2)(A); see also 2019 Final Rule at
Sec. 410.203(c).
---------------------------------------------------------------------------

Additionally, in proposed Sec. 410.1103(e), ORR proposes to codify
its existing policy that ORR make reasonable efforts to provide
placements in those geographical areas where DHS encounters the
majority of unaccompanied children. ORR believes this provision is
justified in order to facilitate the orderly and expeditious transfer
of children from DHS border facilities to ORR care provider facilities,
which is in the child's best interest. This requirement reflects the
requirement at paragraph 6 of the FSA. ORR notes that in making any
placement decision, it also would take into account the considerations
set forth in proposed Sec. 410.1103(a) and (b).
Finally, ORR proposes at Sec. 410.1103(f) to codify a requirement
that care provider facilities accept all unaccompanied children placed
by ORR at their facilities, except in limited circumstances. Such a
requirement is consistent with ORR's authority to make and implement
placement determinations, and to oversee its care provider facilities,
as established at 6 U.S.C. 279(b)(1). Consistent with existing policy,
under proposed Sec. 410.1103(f), a care provider facility may only
deny ORR's request for placement based on the following reasons: (1)
lack of available bed space; (2) the placement of the unaccompanied
child would conflict with the care provider facility's state or local
licensing rules; (3) the initial placement involves an unaccompanied
child with a significant physical or mental illness for which the
referring Federal agency does not provide a medical clearance; or (4)
in the case of the placement of an unaccompanied child with a
disability, the care provider facility concludes it is unable to meet
the child's disability-related needs without fundamentally altering its
program, even by providing reasonable modifications and even with
additional support from ORR. ORR proposes that if a care provider
facility wishes to deny a placement, it must make a written request to
ORR providing the individualized reasons for

[[Page 68922]]

the denial. ORR proposes that any such request must be approved by ORR
before the care provider facility may deny a placement. In addition,
under proposed Sec. 410.1103(f), ORR would be able to follow up with a
care provider facility about a placement denial to find a solution to
the reason for the denial.
ORR is not proposing to codify in subpart B the provisions
finalized in the 2019 Final Rule at Sec. 410.201(b) or (e), which were
based on requirements set forth in paragraph 12A of the FSA. The 2019
Final Rule at Sec. 410.201(b) provided that ORR separates
unaccompanied children from delinquent offenders. However, ORR notes
that paragraph 12A of the FSA concerns detention of unaccompanied
children following arrest by the former INS, and currently DHS, before
transfer of custody to ORR. ORR is not involved in the apprehension or
encounter of unaccompanied children or their immediate detention
following apprehension or encounter and thus ORR proposes to omit this
provision from this regulation. Having said that, ORR proposes that it
will apply the facility standards described as paragraph 12A of the FSA
to its care provider facilities, consistent with standards set forth in
proposed subpart D (Minimum Standards and Required Services) and
proposed subpart I (Emergency and Influx Operations).
The 2019 Final Rule at Sec. 410.201(c) provides that if there is
no appropriate licensed program immediately available for placement,
and no one to whom ORR may release an unaccompanied child, the
unaccompanied child may be placed in an ORR-contracted facility, having
separate accommodations for children, or a state or county juvenile
detention facility, shall be separated from delinquent offenders, and
that every effort must be taken to ensure the safety and well-being of
the unaccompanied child detained in these facilities. ORR proposes
omitting this provision from these regulations. This provision was also
based on paragraph 12A of the FSA, which concerns detention of the
unaccompanied child following arrest by the former INS, and currently
following encounter by DHS, before transfer of custody to placement in
an ORR care provider facility. Instead, consistent with existing
policies, under proposed Sec. 410.1101(b) ORR would identify an
appropriate placement for the unaccompanied child at a care provider
facility within 24 hours of receiving the referring agency's
notification, whenever possible, and no later than 48 hours of
receiving such notification, barring exceptional circumstances. Also,
as further discussed in the next section (addressing proposed Sec.
410.1104), in the event of an emergency or influx of unaccompanied
children into the United States, ORR would place unaccompanied children
as expeditiously as possible in accordance with proposed subpart I
(Emergency and Influx Operations).
Section 410.1104 Placement of an Unaccompanied Child in a Standard
Program That Is Not Restrictive
At proposed Sec. 410.1104, ORR proposes to codify substantive
criteria for placement of an unaccompanied child in a standard program
that is not a restrictive placement. The TVPRA requires ORR to promptly
place unaccompanied children ``in the least restrictive setting that is
in the best interest of the child,'' and states that in making such
placements ORR ``may consider danger to self, danger to the community,
and risk of flight.'' \68\ ORR also notes that under paragraph 19 of
the FSA, with certain exceptions, an unaccompanied child must be placed
temporarily in a licensed program until release can be effectuated or
until immigration proceedings are concluded. Consistent with the TVPRA
and existing policy, under proposed Sec. 410.1104, ORR would place all
unaccompanied children in a standard program that is not a restrictive
placement (in other words, that is not a heightened supervision
facility) after the unaccompanied child is transferred to ORR legal
custody, except in the following circumstances: (a) the unaccompanied
child meets the criteria for placement in a restrictive placement set
forth at proposed Sec. 410.1105; or (b) in the event of an emergency
or influx of unaccompanied children into the United States, in which
case ORR shall place the unaccompanied child as expeditiously as
possible in accordance with proposed subpart I (Emergency and Influx
Operations). ORR understands these exceptions to be consistent with
placement considerations described in the TVPRA at 8 U.S.C.
1232(c)(2)(A) (noting, for example, that in making placements HHS ``may
consider danger to self, danger to the community, and risk of
flight''), and exceptions provided for in section paragraph 19 of the
FSA.
---------------------------------------------------------------------------

\68\ 8 U.S.C. 1232(c)(2)(A).
---------------------------------------------------------------------------

ORR does not propose to codify certain other exceptions described
in the FSA and included in the 2019 Final Rule at Sec. 410.202(b) and
(d). The 2019 Final Rule at Sec. 410.202(b) provided that
unaccompanied children do not have to be placed in a standard program
as otherwise required by any court decree or court-approved settlement.
ORR does not believe it is necessary to include this exception, as any
court decree or settlement that would require ORR to implement
placement criteria that differ from those at proposed Sec. 410.1104
would take effect pursuant to its own terms even without specifying
these potential circumstances in the regulation. Section 410.202(d)
provided that an unaccompanied child does not have to be placed in a
standard program if a reasonable person would conclude that the
unaccompanied child is an adult despite the individual's claims to be a
child. ORR also does not believe it is necessary to include this
exception in proposed Sec. 410.1104 because a person determined by ORR
to be an adult (has attained 18 years of age) would be excluded from
the definition of unaccompanied child and thus would not be placed in
any ORR care provider facility (see proposed subpart H for discussion
of age determinations).
Section 410.1105 Criteria for Placing an Unaccompanied Child in a
Restrictive Placement
Proposed Sec. 410.1105 addresses the criteria for placing
unaccompanied children in restrictive placements. As defined in
proposed Sec. 410.1001, restrictive placements would include secure
facilities, heightened supervision facilities, and RTCs. The proposed
criteria for placement in each of these facilities are further
discussed below.
Proposed Sec. 410.1105(a) addresses placement at secure facilities
that are not RTCs. At proposed Sec. 410.1105(a)(1), ORR proposes that,
consistent with existing policies, it may place an unaccompanied child
in a secure facility (that is not also an RTC) either upon referral
from another agency or department of the Federal Government (i.e., as
an initial placement), or through a transfer to another care provider
facility after the initial placement.
Under proposed Sec. 410.1105(a)(2), ORR would not place an
unaccompanied child in a secure facility (that is not also an RTC) if
less restrictive alternative placements are available. Such placements
must also be appropriate under the circumstances, and in the best
interests of the unaccompanied child. In determining whether there is a
less restrictive placement available to meet the individualized needs
of an unaccompanied child with a disability, consistent with section
504 of the Rehabilitation Act, 29 U.S.C. 794(a), ORR must consider
whether there are any reasonable modifications to the policies,
practices, or procedures of an available less restrictive placement or
any provision of auxiliary aids and

[[Page 68923]]

services that would allow the unaccompanied child with a disability to
be placed in that less restrictive facility. However, ORR is not
required to take any action that it can demonstrate would result in a
fundamental alteration in the nature of a program or activity. The
proposed regulation text is consistent with 8 U.S.C. 1232(c)(2)(A).
Also, ORR notes that this proposed requirement is consistent with
paragraph 23 of the FSA, which provides that ORR may not place an
unaccompanied child in a secure facility if there are less restrictive
alternatives that are available and appropriate in the circumstances.
Under the FSA, less restrictive alternatives include transfer to (a) a
medium security facility, which is equivalent to ``heightened
supervision facility'' as defined at proposed Sec. 410.1001, or (b)
another licensed program, a term which for purposes of this proposed
rule is superseded by ``standard program'' as defined at proposed Sec.
410.1001. Consistent with the FSA, ORR further proposes in Sec.
410.1105(a)(2) that it may place an unaccompanied child in a heightened
supervision facility or other non-secure care provider facility as an
alternative, provided that the unaccompanied child does not pose a
danger to self or others. ORR believes that such alternative placements
may not be appropriate for unaccompanied children who pose a danger to
self or others, as less restrictive placements may not have the level
of staff supervision and requisite security procedures to address the
needs of such unaccompanied children.
ORR proposes to place unaccompanied children in secure facilities
(that are not RTCs) in limited, enumerated circumstances set forth at
proposed Sec. 410.1105(a)(3). Specifically, ORR proposes that it may
place an unaccompanied child in a secure facility (that is not an RTC)
only if the unaccompanied child meets one of three criteria. First, ORR
proposes at Sec. 410.1105(a)(3)(i) that it may place the unaccompanied
child in a secure facility (that is not an RTC) if the unaccompanied
child has been charged with or has been convicted of a crime, or is the
subject of delinquency proceedings, a delinquency charge, or has been
adjudicated delinquent, and where ORR deems that those circumstances
demonstrate that the unaccompanied child poses a danger to self or
others, not including: (1) an isolated offense that was not within a
pattern or practice of criminal activity and did not involve violence
against a person or the use or carrying of a weapon; or (2) a petty
offense, which is not considered grounds for stricter means of
detention in any case. These proposed provisions were also included in
the 2019 Final Rule at Sec. 410.203(a)(1), except that proposed Sec.
410.1105(a)(3) omits language from the FSA and previous Sec.
410.203(a)(1) that allows an unaccompanied child to be placed in a
secure facility if the unaccompanied child is ``chargeable with a
delinquent act'' (which under the FSA means that ORR has probable cause
to believe that the unaccompanied child has committed a specified
offense). ORR believes it is appropriate to omit such language because
being ``chargeable'' with an offense is not a permissible reason for
placement in a secure facility identified by the TVPRA.\69\ Further,
because it is not a law enforcement agency, unlike the former INS, ORR
is not in a position to make determinations such as whether an
unaccompanied child is ``chargeable.'' Even without this language, ORR
believes this proposed provision is consistent with the substantive
criteria of the FSA. Furthermore, consistent with 8 U.S.C.
1232(c)(2)(A) (which does not list runaway risk as a permissible reason
for placement in a secure facility), ORR does not propose runaway risk
as a factor in determining placement in a secure facility, even though
that is a permissible ground under the FSA for placement in a secure
facility.
---------------------------------------------------------------------------

\69\ See 8 U.S.C. 1232(c)(2)(A) (``A child shall not be placed
in a secure facility absent a determination that the child poses a
danger to self or others or has been charged with having committed a
criminal offense.'').
---------------------------------------------------------------------------

Second, ORR proposes in Sec. 410.1105(a)(3)(ii) that it may place
an unaccompanied child in a secure facility (that is not an RTC) if the
unaccompanied child, while in DHS or ORR custody, or while in the
presence of an immigration officer, ORR official, or ORR contracted
staff, has committed, or has made credible threats to commit, a violent
or malicious act (whether directed at the unaccompanied child or
others). The 2019 Final Rule at Sec. 410.203(a)(2) and paragraph 21B
of the FSA contain a similar provision, except that in contrast to
Sec. 410.203(a)(2) and the FSA, this proposed provision would include
acts committed in the presence of an ``ORR official or ORR contracted
staff.'' ORR believes that the addition of this language is appropriate
given that ORR officials and contracted staff would more often be in a
position to observe an unaccompanied child's behavior and actions and
to assess whether an unaccompanied child has committed, or made
credible threats to commit, the acts referenced in this provision.
Again, ORR does not believe this proposed change constitutes a
substantive deviation from the requirements of the FSA.
Third, ORR proposes at Sec. 410.1105(a)(3)(iii) that it may place
an unaccompanied child in a secure facility (that is not an RTC) if the
unaccompanied child has engaged, while in a restrictive placement, in
conduct that has proven to be unacceptably disruptive of the normal
functioning of the care provider facility, and removal is necessary to
ensure the welfare of the unaccompanied child or others, as determined
by the staff of the care provider facility (e.g., substance or alcohol
use, stealing, fighting, intimidation of others, or sexually predatory
behavior), and ORR determines the unaccompanied child poses a danger to
self or others based on such conduct. The 2019 Final Rule contained a
similar provision at Sec. 410.203(a)(3), which was based on paragraph
21C of the FSA. But in contrast to Sec. 410.203(a)(3) of the 2019
Final Rule and the FSA, the proposed provision requires that the
conduct at issue be engaged in while in a ``restrictive placement,''
rather than a ``licensed program.'' ORR believes that such disruptive
behavior should initially result in potential transfer to a heightened
supervision facility before placement in a secure facility (that is not
an RTC)--in other words, that disruptive behavior in a standard program
that is not a restrictive placement should not result in immediate
transfer, or ``step up,'' to such a secure facility. As discussed
above, the 2019 Final Rule was intended to implement the provisions of
the FSA that relate to HHS; however, ORR is proposing this change in
order to ensure that unaccompanied children in such circumstances are
stepped up to a more structured program rather than being immediately
placed in a secure facility. ORR believes this update is consistent
with its authorities under the HSA and TVPRA,\70\ and does not believe
it constitutes a substantive deviation from the requirements of the
FSA, which provides that unaccompanied children ``may'' be transferred
to secure facilities based on unacceptably disruptive conduct where
transfer is necessary to ensure the welfare of the unaccompanied child
or others but does not require such transfer.\71\
---------------------------------------------------------------------------

\70\ See, e.g., 8 U.S.C. 1232(c)(2)(A) (requiring that
unaccompanied children ``shall be promptly placed in the least
restrictive setting that is in the best interest of the child.'').
\71\ FSA at paragraph 21C.

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[[Page 68924]]

At proposed Sec. 410.1105(b), ORR outlines the policies and
criteria that it would apply in placing unaccompanied children in
heightened supervision facilities. The term ``heightened supervision
facility,'' as defined at proposed Sec. 410.1001, would be used in
place of the term ``medium secure'' facility provided in the FSA, and
in place of the term ``staff secure facility'' currently used by ORR in
its regulations and sub-regulatory guidance. ORR believes that the term
``heightened supervision facility,'' as defined in this proposed rule,
better reflects the nature and purpose of such facilities, which is to
provide care to unaccompanied children who require close supervision
but do not need placement at a secure facility, including an RTC. As
reflected in the proposed definition, heightened supervision facilities
maintain stricter security measures than a shelter such as intensive
staff supervision in order to provide supports, manage problem behavior
and prevent an unaccompanied child from running away. ORR proposes at
Sec. 410.1105(b)(1) that it may place unaccompanied children in this
type of facility either at initial placement (upon referral from
another agency or department of the Federal Government) or through a
transfer from the initial placement. Furthermore, at proposed Sec.
410.1105(b)(2), ORR proposes to codify factors it would consider in
determining whether to place unaccompanied children in a heightened
supervision facility. Specifically, ORR would consider if the
unaccompanied child (1) has been unacceptably disruptive to the normal
functioning of a shelter such that transfer is necessary to ensure the
welfare of the unaccompanied child or others; (2) is a runaway risk,
based on the criteria at proposed Sec. 410.1107; (3) has displayed a
pattern of severity of behavior, either prior to entering ORR custody
or while in ORR care, that requires an increase in supervision by
trained staff; (4) has a non-violent criminal or delinquent history not
warranting placement in a secure facility, such as isolated or petty
offenses as described previously; or (5) is assessed as ready for step-
down from a secure facility, including an RTC. ORR believes that each
of these proposed criteria identifies pertinent background and
behavioral concerns that may warrant heightened supervision, rather
than placement in a secure facility, including an RTC, consistent with
the purpose of heightened supervision facilities.
Proposed Sec. 410.1105(c) sets forth the criteria ORR would
consider for placing an unaccompanied child in an RTC, as defined at
proposed Sec. 410.1001. ORR would place an unaccompanied child at an
RTC only if it is the least restrictive setting that is in the best
interest of the unaccompanied child and appropriate to the
unaccompanied child's age and individualized needs, consistent with the
TVPRA at 8 U.S.C. 1232(c)(2)(A) (``an unaccompanied alien child shall
be promptly placed in the least restrictive setting that is in the best
interest of the child.''). Similar to other secure facilities and
heightened supervision facilities, ORR proposes that an unaccompanied
child may be placed at an RTC both as an initial placement upon
referral from another agency or department of the Federal Government,
and upon transfer from another care provider facility. In addition, ORR
proposes at Sec. 410.1105(c)(1) that unaccompanied children who have
serious mental or behavioral health issues may be placed in an RTC only
if the unaccompanied child is evaluated and determined to be a danger
to self or others by a licensed psychologist or psychiatrist consulted
by ORR or a care provider facility, which includes a determination by
clear and convincing evidence documented in the unaccompanied child's
case file or referral documentation by a licensed psychologist or
psychiatrist that an RTC is appropriate. This requirement is consistent
with the factors the Secretary of HHS may consider under the TVPRA at 8
U.S.C. 1232(c)(2)(A) in making placement determinations for
unaccompanied children and was also included in the 2019 Final Rule at
Sec. 410.203(a)(4).\72\ ORR also notes that when it determines whether
placement in an RTC, or any care provider facility is appropriate, it
considers the best interests not only of the unaccompanied child being
placed, but also the best interests of other unaccompanied children who
are housed at the proposed receiving care provider facility, including
their safety and well-being. ORR believes it is authorized to consider
these factors under the TVPRA.\73\ ORR also considers the safety of
care provider facility staff when making placement determinations for
unaccompanied children, consistent with its duty to oversee the
infrastructure and personnel of facilities in which unaccompanied
children reside.\74\ For an unaccompanied child with one or more
disabilities, consistent with section 504 of the Rehabilitation Act, 29
U.S.C. 794(a), the determination whether to place the unaccompanied
child in an RTC would need to consider whether reasonable modifications
to policies, practices, and procedures in the unaccompanied child's
current placement or any provision of auxiliary aids or services, could
sufficiently reduce the danger to the child or others. However, ORR is
not required to take any action that it can demonstrate would result in
a fundamental alteration in the nature of a program or activity.
Finally, consistent with its existing policies, ORR proposes at Sec.
410.1105(c)(1) that it would use the criteria for placement in a secure
facility described at proposed Sec. 410.1105(a) to assess whether the
unaccompanied child is a danger to self or others. ORR believes that it
is appropriate to apply these criteria in making this assessment in the
context of RTC placement, because all secure facilities (including
RTCs) are intended for unaccompanied children who pose a danger to self
and others (although RTCs are intended for unaccompanied children who
also have a serious mental health or behavioral health issue that
warrants placement in an RTC).
---------------------------------------------------------------------------

\72\ See also Order Re Plaintiffs' Motion to Enforce Class
Action Settlement at *11, Flores vs. Sessions, No. 2:85-cv-04544,
(C.D. Cal. Jul. 30, 2018), ECF No. 470 (ordering ORR to transfer all
unaccompanied children placed at a particular RTC out of that
facility unless a licensed psychologist or psychiatrist determined
that a particular child posed a risk of harm to self or others).
\73\ 8 U.S.C. 1232(c)(2)(A) (``In making such placements, the
Secretary may consider danger to self, danger to the community, and
risk of flight.'').
\74\ See 6 U.S.C. 279(b)(1)(G).
---------------------------------------------------------------------------

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

[[Page 68925]]

complying with all applicable state welfare laws and regulations and
state and local building, fire, health, and safety codes. ORR also may
confer with other Federal agencies and non-governmental stakeholders
(e.g., the protection and advocacy (P&A) systems) when vetting OON RTCs
to determine, in its discretion, the appropriateness of such OON RTCs
for placement of unaccompanied children. ORR appreciates that P&As may
have valuable information relating to the vetting process because they
may have prior experience with certain facilities with respect to their
past care and treatment of individuals with disabilities (e.g.,
findings of abuse and neglect, compliance issues).
Under proposed Sec. 410.1105(c)(3), the criteria for placement in
or transfer to an RTC would also apply to transfers to or placements in
OON RTCs (that is, the clinical criteria considered in placing an
unaccompanied child at an RTC level of care would not change regardless
of whether the RTC is in ORR's network or OON). Proposed Sec.
410.1105(c)(3) would also permit care provider facilities to request
that ORR transfer certain unaccompanied children to RTCs. Proposed
Sec. 410.1601(d), discussed later in this preamble, further addresses
when a care provider facility may make such a request.
Section 410.1106 Unaccompanied Children Who Need Particular Services
and Treatment
Proposed Sec. 410.1106 would codify the requirements for ORR when
placing unaccompanied children assessed to have a need for particular
services, equipment, and treatment by staff. This section satisfies and
updates paragraph 7 of the FSA, which requires ORR to assess
unaccompanied children to determine if they have ``special needs,''
and, if so, to place such unaccompanied children, whenever possible, in
licensed programs in which ORR places unaccompanied children without
``special needs,'' but which provide services and treatment for such
``special needs.'' As indicated by the definition for ``special needs
unaccompanied child'' from the FSA and included above at proposed Sec.
410.1001, an unaccompanied child is considered to have ``special
needs'' if ORR determines that the unaccompanied child has a mental
and/or physical condition that requires particular services and
treatment by staff. ORR may determine that an unaccompanied child needs
particular services and treatment by staff for a variety of reasons
including, but not limited to, those delineated within the definition
of ``special needs unaccompanied child'' and specified in paragraph 7
of the FSA. For this reason, ORR is proposing this section without
limiting its scope to ``special needs unaccompanied child.'' ORR notes
that an unaccompanied child may need particular services and treatment
due to a disability, as defined at proposed Sec. 410.1001, but not all
unaccompanied children with disabilities necessarily require particular
services and treatment by staff. Likewise, an unaccompanied child does
not need to have been identified as having a disability to be
determined to require particular services and treatment to meet their
individualized needs.
To avoid confusion, ORR refers in this section to unaccompanied
children with individualized needs rather than using the outdated
``special needs'' terminology found in the FSA at paragraph 7. As noted
above regarding proposed Sec. 410.1103, the term ``special needs'' has
created confusion and may imply that in determining placement, ORR
considers only a limited range of needs that fall within a special
category. Instead, in assessing the appropriate placement of an
unaccompanied child, ORR considers any need it becomes aware of that is
specific to each unaccompanied child being assessed, regardless of the
nature of that need. The examples provided in this section of
individualized needs that may require particular services, equipment,
and treatment by staff are illustrative, and not exhaustive.
Furthermore, as also discussed above at proposed Sec. Sec. 410.1001
and 410.1103, ORR is concerned about using the term ``special needs''
given its association as a placeholder or euphemism for disability
whereas this section does not apply only to unaccompanied children with
disabilities who require particular services and treatment.
ORR also notes that this section incorporates the preference for
inclusive placements that serve unaccompanied children with a diversity
of needs, including the need for particular services or treatments,
whenever possible, as provided in paragraph 7 of the FSA, and
particular equipment. This section is distinct from, but in alignment
with, HHS' implementing regulation for section 504 of the
Rehabilitation Act of 1973 at 45 CFR 85.21(d) that prohibits
discrimination on the basis of disability by requiring that the agency
administer programs and activities in the most integrated setting
appropriate to the needs of individuals with disabilities. The most
integrated setting appropriate to the needs of an individual with a
disability is a setting that enables individuals with disabilities to
interact with individuals without disabilities to the fullest extent
possible.\75\
---------------------------------------------------------------------------

\75\ 53 FR 25591, 25600 (July 8, 1988).
---------------------------------------------------------------------------

Section 410.1107 Considerations When Determining Whether an
Unaccompanied Child Is a Runaway Risk for Purposes of Placement
Decisions
Proposed Sec. 410.1107 would codify factors that ORR considers in
determining whether an unaccompanied child is a runaway risk for
purposes of placement decisions. As described in Sec. 410.1001, the
FSA and ORR policy currently use the term ``escape risk,'' and ORR
proposes in this proposed rule to update the terminology to ``runaway
risk'' and also proposes to update the definition provided in the FSA.
ORR notes that the TVPRA provides that HHS ``may'' consider ``risk of
flight,'' among other factors, when making placement
determinations.\76\ As proposed, ORR would interpret ``risk of
flight,'' which is used in immigration law regarding an individual's
risk of not appearing for their immigration proceedings, as including
runaway risk. In its discretion, ORR considers these runaway risk
factors when evaluating whether to transfer an unaccompanied child to
another care provider facility, in accordance with proposed Sec.
410.1601. For example, an unaccompanied child may be transferred from a
non-secure level of care to a heightened supervision facility where
there is higher staff ratio and a secure perimeter (stepped up) if ORR
determines the unaccompanied child is a runaway risk in accordance with
proposed Sec. 410.1107.
---------------------------------------------------------------------------

\76\ 8 U.S.C. 1232(c)(2)(A). Note that 8 U.S.C. 1232(c)(2)(A)
does not list risk of flight as a ground for placing an
unaccompanied child in a secure facility. Therefore, even though
paragraph 21.D of the FSA states that being an escape risk (or
runaway risk as proposed in this rule) is a ground upon which ORR
may place an unaccompanied child in a secure facility, ORR does not
propose in this rule that runaway risk is a basis for placement in a
secure facility.
---------------------------------------------------------------------------

Proposed Sec. 410.1107(a) through (c) would codify the risk
factors to consider when evaluating whether an unaccompanied child is a
runaway risk for purposes of placement. These factors are consistent
with paragraph 22 of the FSA, which are also included in the 2019 Final
Rule at Sec. 410.204. Specifically, ORR proposes it would consider the
following factors: (a) whether the unaccompanied child is currently
under a final order of removal (i.e., the unaccompanied child has a
legal duty to report for deportation); (b) whether the unaccompanied
child's immigration history includes: (1) a prior

[[Page 68926]]

breach of bond, (2) a failure to appear before DHS or the immigration
court, (3) evidence that the unaccompanied child is indebted to
organized smugglers for their transport, or (4) a previous removal from
the U.S. pursuant to a final order of removal; and (c) whether the
unaccompanied child has previously absconded or attempted to abscond
from state or Federal custody. ORR notes that under paragraph 22(B) of
the FSA, a voluntary departure from the U.S. by the unaccompanied child
is also a risk factor. Based on ORR's experience in placing an
unaccompanied child, ORR proposes not to codify whether the child's
immigration history includes a voluntary departure because this factor
has not been relevant in determining whether the child is a runaway
risk.
ORR notes that paragraph 22 of the FSA provides a non-exhaustive
list of factors to consider when evaluating runaway
risk.77 78 Consistent with this language, as well as with
ORR's authority generally to consider runaway risk in making placement
determinations, ORR proposes additional factors at Sec. 410.1107(d)
and (e) for ORR to consider when determining whether an unaccompanied
child is a runaway risk for purposes of placement decisions. Proposed
Sec. 410.1107(d) would require ORR to consider whether the
unaccompanied child has displayed behaviors indicative of flight or has
expressed intent to run away. Under proposed Sec. 410.1107(e), ORR
would consider evidence that the unaccompanied child is indebted to,
experiencing a strong trauma bond to, or is threatened by a trafficker
in persons or drugs, in determining whether the unaccompanied child is
a runaway risk. ORR developed this proposal through its practical
experience of making runaway risk placement decisions and believes it
is appropriate to add as an additional factor to consider. ORR seeks
public comment on these proposed factors and welcomes feedback on other
factors ORR should or should not consider when determining if an
unaccompanied child is a runaway risk for purposes of placement
decisions.
---------------------------------------------------------------------------

\77\ See FSA at paragraph 22 (``Factors to consider when
determining whether a minor is an escape-risk or not include, but
are not limited to . . .'').
\78\ Existing Sec. 410.204 also does not limit ORR to
considering just the factors listed in the regulation and states
``ORR considers, among other factors . . .''
---------------------------------------------------------------------------

Section 410.1108 Placement and Services for Children of Unaccompanied
Children
At proposed Sec. 410.1108, ORR proposes the requirements for the
placement of children of unaccompanied children and services they would
receive while in ORR care. ORR believes that when unaccompanied
children are parents of children, it is in the best interests of the
children to be placed in the same facility as their unaccompanied
children parents. Accordingly, ORR proposes at Sec. 410.1108(a) to
codify its existing policy that it will place unaccompanied children
and their children together at the same care provider facilities,
except in unusual or emergency situations. ORR considered limiting this
proposal to the biological children of unaccompanied children; however,
at the time of intake and placement, it may not be known whether the
children are the biological children of the unaccompanied children.
Accordingly, ORR proposes to not limit this proposal to the biological
children of unaccompanied children and instead proposes broader
language to allow for flexibility in placing unaccompanied children and
their children to account for other situations (for example, the
unaccompanied child may not be the biological parent of a child but is
the child's caretaker).
Consistent with existing policy, and with its responsibility to
consider the best interests of children in making placement decisions,
ORR proposes that unusual or emergency situations would include, but
not be limited to: hospitalization or need for a specialized care or
treatment setting that cannot provide appropriate care for the child of
the unaccompanied child; a request by the unaccompanied child for
alternate placement of the child of the unaccompanied child; and when
the unaccompanied child is the subject of substantiated allegations of
abuse or neglect against the child of the unaccompanied child (or
temporarily in urgent cases where there is sufficient evidence of child
abuse or neglect warranting temporary separation for the child's
protection). ORR proposes to codify these requirements into regulation
at Sec. 410.1108(a)(1) through (3).
ORR is aware that children of unaccompanied children may not be
unaccompanied children within the definition provided in the HSA at 6
U.S.C. 279(g)(2). For example, a child born in the United States will
likely be a U.S. citizen at birth under section 1401(a) of the
Immigration and Nationality Act, 8 U.S.C. 1401(a), and the U.S.
Constitution, as amended, XIV section 2. Additionally, a noncitizen
child who is in the custody of a parent who is an unaccompanied child
who is available to provide care and physical custody, is not an
unaccompanied child. ORR understands that it has custody of the
unaccompanied child, consistent with its statutory authorities, and
that the unaccompanied child has custody of their child. Under the
proposed rule, ORR would not seek to place the parent and child in
different facilities or shelters except in the limited circumstances
noted above. ORR understands this to be consistent with its
responsibility to consider the interests of unaccompanied children.\79\
If the child who is in the custody of their unaccompanied child parent
has another parent who is a citizen present in the U.S., ORR would
consider whether it is in the best interests of the child to place the
child with the unaccompanied child parent or the parent who is a U.S.
citizen. ORR requests comments regarding this interpretation of its
authorities under the TVPRA and the HSA, because neither statute
expressly contemplates scenarios where an unaccompanied child is a
parent.
---------------------------------------------------------------------------

\79\ See, e.g., 6 U.S.C. 279(b)(1)(B) (making ORR responsible
for ``ensuring that the interests of the child are considered in
decisions and actions relating to the care and custody of an
unaccompanied alien child'').
---------------------------------------------------------------------------

Proposed Sec. 410.1108(b) describes requirements for providing
services to children of unaccompanied children while in ORR care. Under
proposed Sec. 410.1108(b)(1), children of unaccompanied children would
receive the same care and services as ORR provides to the unaccompanied
children, as appropriate, regardless of the children's immigration or
citizenship status. Additionally, U.S. citizen children of
unaccompanied children would be eligible for mainstream public benefits
and services to the same extent as other U.S. citizens (for example,
Medicaid). Application(s) for public benefits and services shall be
submitted on behalf of the U.S. citizen children of unaccompanied
children by the care provider facilities. This may include, but is not
limited to, helping file for birth certificates or other legal
documentation as necessary. Further, under proposed Sec.
410.1108(b)(2), utilization of those public benefits and services
should be exhausted to the greatest extent practicable for U.S. citizen
children of unaccompanied children before ORR-funded services are
utilized for these children.
Section 410.1109 Required Notice of Legal Rights
In proposed Sec. 410.1109(a), ORR would be required to promptly
provide each unaccompanied child in its custody with the information
described in Sec. 410.1109(a)(1) through (3) in a

[[Page 68927]]

language and manner the unaccompanied child understands. First, ORR
would require, under proposed Sec. 410.1109(a)(1), that unaccompanied
children in ORR custody be promptly provided with a state-by-state list
of free legal service providers compiled and annually updated by ORR
and that is provided to unaccompanied children as part of a Legal
Resource Guide for unaccompanied children. This proposed requirement is
consistent with TVPRA at 8 U.S.C. 1232(c)(5) (requiring that HHS
``ensure, to the greatest extent practicable and consistent with
section 292 of the Immigration and Nationality Act (8 U.S.C. 1362),
that all unaccompanied alien children who are or have been in the
custody of the Secretary or the Secretary of Homeland Security, and who
are not described in subsection (a)(2)(A), have counsel to represent
them in legal proceedings or matters and protect them from
mistreatment, exploitation, and trafficking,'' and that to the greatest
extent practicable HHS ``make every effort to utilize the services of
pro bono counsel who agree to provide representation to such children
without charge.''). In addition, the proposed requirement is consistent
with the HSA at 6 U.S.C. 279(b)(1)(I) (requiring ORR to compile,
update, and publish ``at least annually a state-by-state list of
professionals or other entities qualified to provide guardian and
attorney representation services for unaccompanied alien children'').
ORR notes that the list of free legal service providers may also be
compiled and updated by an ORR contractor or grantee.
Second, under proposed Sec. 410.1109(a)(2), ORR would also be
required to provide the following explanation of the right of potential
review: ``ORR usually houses persons under the age of 18 in the least
restrictive setting that is in an unaccompanied child's best interest,
and generally not in restrictive placements (which means secure
facilities, heightened supervision facilities, or residential treatment
centers). If you believe that you have not been properly placed or that
you have been treated improperly, you may call a lawyer to seek
assistance. If you cannot afford a lawyer, you may call one from the
list of free legal services given to you with this form.'' This
requirement updates language described in the requirement to deliver a
similar notice under Exhibit 6 of the FSA,\80\ to reflect current
placement requirements detailed in this proposed rule. The FSA
language, for example, refers to the former INS, instead of ORR, and to
``detention facilities'' rather than restrictive settings or
placements.
---------------------------------------------------------------------------

\80\ Exhibit 6 of the FSA provides the following notice
language: ``The INS usually houses persons under the age of 18 in an
open setting, such as a foster or group home, and not in detention
facilities. If you believe that you have not been properly placed or
that you have been treated improperly, you may ask a federal judge
to review your case. You may call a lawyer to help you do this. If
you cannot afford a lawyer, you may call one from the list of free
legal services given to you with this form.''
---------------------------------------------------------------------------

ORR also proposes at Sec. 410.1109(a)(3) that a presentation
regarding their legal rights would be provided to each unaccompanied
child as provided under proposed Sec. 410.1309(a)(2). We refer readers
to proposed Sec. 410.1309(a) for additional information regarding this
presentation. ORR would take appropriate steps to ensure that the
information it presents to unaccompanied children is communicated
effectively to individuals with disabilities, including through the
provision of auxiliary aids and services as required by section 504 of
the Rehabilitation Act of 1973 and HHS' implementing regulations at 45
CFR 85.51. ORR would also take reasonable steps to ensure that
individuals with limited English proficiency have a meaningful
opportunity to access information and participate in ORR programs,
including through the provision of interpreters or translated
documents. We request comments on steps ORR should take to ensure that
it provides effective communication access to unaccompanied children
who are individuals with disabilities. We also request comment on steps
ORR should take to ensure meaningful access to unaccompanied children
who are limited English proficient regarding information about and
participation in ORR programs.
Finally, under proposed Sec. 410.1109(b), consistent with ORR's
existing policy, ORR shall not engage in retaliatory actions against
legal service providers or any other practitioner because of advocacy
or appearance in an action adverse to ORR. ORR proposes this text,
notwithstanding the general presumption that government agencies and
officials act with integrity and regularity,\81\ to further express
ORR's intent to promote and protect unaccompanied children's ability to
access legal counsel. For discussion regarding the availability of
administrative review of ORR placement decisions, ORR refers readers to
proposed subpart J of this proposed rule.
---------------------------------------------------------------------------

\81\ See, e.g., Nat'l Archives & Records Admin. v. Favish, 541
U.S. 157, 174 (2004).
---------------------------------------------------------------------------

Subpart C--Releasing an Unaccompanied Child From ORR Custody

Section 410.1200 Purpose of This Subpart
This proposed subpart regards ORR's policies and procedures
regarding release, without unnecessary delay, of an unaccompanied child
from ORR custody to a vetted and approved sponsor. Release is defined
in subpart A as the ORR-approved transfer of an unaccompanied child
from ORR care and custody to a vetted and approved sponsor in the
United States. Accordingly, release does not include discharge for
other reasons, including but not limited to those such as the child
turning 18, attaining legal immigration status, or being removed to
their home country.
As discussed in this proposed subpart, once an unaccompanied child
is released by ORR to a sponsor, that unaccompanied child is no longer
in ORR's custody. The TVPRA distinguishes minors in HHS custody from
those released to ``proposed custodians'' determined by ORR to be
``capable of providing for the child's physical and mental well-
being.'' \82\ In addition, under the FSA, once an unaccompanied child
is released to a sponsor, the sponsor assumes custody.\83\ This subpart
includes the proposed process for determining that sponsors are able to
care for the child's physical and mental well-being.
---------------------------------------------------------------------------

\82\ 8 U.S.C. 1232(c)(3)(A).
\83\ See, e.g., FSA at paragraph 15 (requiring sponsors to sign
an Affidavit of Support and an agreement to, among other things,
provide for the unaccompanied child's physical, mental, and
financial well-being); see also paragraph 19 (noting that in any
case where an unaccompanied child is not released to a sponsor, the
unaccompanied child ``shall remain in INS legal custody.'').
---------------------------------------------------------------------------

Subpart C also proposes notice and appeal processes and procedures
that certain potential sponsors will be afforded. This NPRM proposes
that parents or legal guardians of an unaccompanied child who are
denied sponsorship of that unaccompanied child be afforded the ability
to appeal such denials. Because issues relating to procedures for non-
parent relatives are currently in litigation in the Lucas R. case, they
are not part of this rulemaking.
Section 410.1201 Sponsors to Whom ORR Releases an Unaccompanied Child
Proposed Sec. 410.1201 describes sponsors to whom ORR may release
an unaccompanied child and criteria that

[[Page 68928]]

ORR employs when assessing a potential sponsor. As discussed, the HSA
makes ORR responsible for making and implementing placement
determinations for unaccompanied children.\84\ In addition to these
statutory requirements, the FSA establishes a general policy favoring
release of unaccompanied children to sponsors, and further describes a
preferred order of release, which ORR follows as a matter of
policy.\85\
---------------------------------------------------------------------------

\84\ See 6 U.S.C. 279(b)(1). See also 8 U.S.C. 1232(c)(2)(A).
\85\ See FSA at paragraph 14.
---------------------------------------------------------------------------

Consistent with its statutory authority and the FSA, proposed Sec.
410.1201(a) lists potential sponsors in order of release preference.
ORR notes that this order of preference reflects its strong belief
that, generally, placement with a vetted and approved family member or
other vetted and approved sponsor, as opposed to in an ORR care
provider facility, whenever feasible, is in the best interests of
unaccompanied children. Proposed Sec. 410.1201(a) would therefore
codify the following order of preference for release of unaccompanied
children: (1) to a parent; (2) to a legal guardian; (3) to an adult
relative; (4) to an adult individual or entity, designated by the
parent or legal guardian as capable and willing to care for the
unaccompanied child's well-being through a declaration signed by the
parent or legal guardian under penalty of perjury before an immigration
or consular officer, or through such other document(s) that
establish(es) to the satisfaction of ORR, in its discretion, the
affiant's maternity, paternity, or guardianship; (5) to a standard
program willing to accept legal custody of the unaccompanied child; or
(6) to an adult individual or entity seeking custody, in the discretion
of ORR, when it appears that there is no other likely alternative to
long term custody and release to family members does not appear to be a
reasonable possibility. Possible scenarios in which ORR envisions (6)
may be applicable include, for example, foster parents or other adults
who have built or are building a relationship with an unaccompanied
child while in ORR care, such as a teacher or coach, and in which it is
possible to ensure that a healthy and viable relationship exists
between the unaccompanied child and proposed sponsor. Proposed Sec.
410.1202, discussed below, describes ORR's proposed sponsor suitability
assessment process, which includes an assessment of the potential
sponsor's previous and existing relationship with the unaccompanied
child.
Under proposed Sec. 410.1201(b), consistent with existing policy,
ORR would not disqualify potential sponsors based solely on their
immigration status. In addition, ORR proposes that it shall not collect
information on immigration status of potential sponsors for law
enforcement or immigration enforcement related purposes. ORR will not
share any immigration status information relating to potential sponsors
with any law enforcement or immigration related entity at any time. To
the extent ORR does collect information on the immigration status of a
potential sponsor, it would be only for the purposes of evaluating the
potential sponsor's ability to provide care for the child (e.g.,
whether there is a plan in place to care for the child if the potential
sponsor is undocumented and detained).
Proposed Sec. 410.1201(c) provides that, in making determinations
regarding the release of unaccompanied children to potential sponsors,
ORR shall not release unaccompanied children on their own recognizance.
Section 410.1202 Sponsor Suitability
Before releasing an unaccompanied child to a sponsor, ORR has a
responsibility to ensure that the sponsor has been determined to be
able to care for the child's physical and mental wellbeing and has not
engaged in activity that would indicate a potential risk to the
child.\86\ Further, under the FSA, ORR may require a positive result in
a suitability assessment of an individual or program prior to releasing
an unaccompanied child to that entity, which may include an
investigation of the living conditions in which the unaccompanied child
would be placed and the standard of care the child would receive,
verification of the identity and employment of the individuals offering
support, interviews of members of the household, and a home visit. The
FSA also provides that any such assessment should also take into
consideration the wishes and concerns of the minor. ORR believes that
this assessment of suitability may also include review of past criminal
history, if any, and fingerprinting, as discussed subsequently in this
section.
---------------------------------------------------------------------------

\86\ See 8 U.S.C. 1232(c)(3)(A). See also FSA paragraph 17.
---------------------------------------------------------------------------

Consistent with statutory authorities and the FSA, and with
existing policy, proposed Sec. 410.1202(a) would require potential
sponsors to complete an application package to be considered as a
sponsor for an unaccompanied child. Application packages, in the
potential sponsor's native or preferred language, would be able to be
obtained from either the care provider facility or from ORR directly to
ensure sponsors have access to the application.
Also consistent with existing policy, proposed Sec. 410.1202(b)
establishes that suitability assessments will be conducted for all
sponsors prior to release of a child to a potential sponsor and
describes the minimum requirements for a suitability assessment.
Consistent with ORR's responsibilities under 8 U.S.C. 1232(c)(3)(A),
and with its current policies, suitability assessments would, at
minimum, consist of review of the proposed sponsor's application
package described in Sec. 410.1202(a), including verification of the
proposed sponsor's identity and the proposed sponsor's relationship to
the child. ORR may consult with the issuing agency (e.g., consulate or
embassy) of the sponsor's identity documentation to verify the validity
of the sponsor identity document presented and may also conduct a
background check on the proposed sponsor.
Proposed Sec. 410.1202(c) through (i) describe additional
requirements or discretionary provisions related to completion of a
suitability assessment. These proposed requirements are in addition to
those described at 8 U.S.C. 1232(c)(3)(A) (describing ``minimum''
requirements for suitability assessments), and ORR proposes them
consistent with its authority to implement policies with respect to the
care and placement of unaccompanied children as described at 6 U.S.C.
279(b)(1)(E). Proposed Sec. 410.1202(c) would provide ORR the
discretion to evaluate the overall living conditions into which the
unaccompanied child would be placed upon release to the potential
sponsor. Proposed paragraph (c) therefore provides that ORR may
interview members of the potential sponsor's household, conduct a home
visit or home study pursuant to proposed Sec. 410.1204, and conduct
background and criminal records checks, which may include biometric
checks such as fingerprint-based criminal record checks on a potential
sponsor and on adult household members, consistent with the TVPRA
requirement to make an independent finding that the proposed sponsor
has not engaged in any activity that would indicate a potential risk to
the child. Proposed Sec. 410.1202(c) also permits ORR to verify the
employment, income, or other information provided by the individuals
offering support. The TVPRA at 8 U.S.C. 1232(c)(3) does not require a
verification of the sponsor's employment. However, ORR is

[[Page 68929]]

proposing to include this as a permissible consideration as part of the
suitability assessment to ensure sponsors can show they have resources
to provide for the child's physical and mental well-being. Although ORR
believes this information may be relevant, it will not automatically
deny an otherwise qualified sponsor solely on the basis of low income
or employment status (either formal or informal). Finally, proposed
Sec. 410.1202(c) establishes that any suitability assessment also take
into consideration the wishes and concerns of the unaccompanied child,
consistent with FSA paragraph 17.
As part of a suitability assessment and determining whether a
proposed sponsor can care for not just an unaccompanied child's
physical well-being but also an unaccompanied child's mental well-
being, ORR proposes to include additional assessment components to
evaluate the environment into which the unaccompanied child may be
placed. Under proposed Sec. 410.1202(d), ORR would assess the nature
and extent of the sponsor's previous and current relationship with the
unaccompanied child and, if applicable, the child's family. ORR
proposes that it would be able to deny release of an unaccompanied
child to unrelated sponsors who have no pre-existing relationship with
the child or the child's family prior to the child's entry into ORR
custody. ORR intends that this proposed language be read consistently
with proposed Sec. 410.1201(a)(4), such that ORR may release an
unaccompanied child to an individual with no pre-existing relationship
with the child if the individual is designated by the child's parent or
legal guardian, but ORR would not be required to do so. Additionally,
under proposed Sec. 410.1202(e), ORR would consider the sponsor's
motivation for sponsorship; the opportunity for the potential sponsor
and unaccompanied child to have the opportunity to build a healthy
relationship while the child is in ORR care; the unaccompanied child's
preferences and perspective regarding release to the sponsor; and the
unaccompanied child's parent's or legal guardian's preferences and
perspective on release to the sponsor, as applicable.
Proposed Sec. 410.1202(f) specifies an unaccompanied child's risks
or specific, individual concerns that should be evaluated in
conjunction with ORR's evaluation of the child's current functioning
and strengths. ORR proposes that these shall include risks or concerns
such as: (1) whether the unaccompanied child is a victim of sex or
labor trafficking or other crime, or is considered to be at risk for
such trafficking due, for example, to observed or expressed current
needs, e.g., expressed need to work or earn money because of
indebtedness or financial hardship; (2) the child's history of
involvement with the criminal justice system or juvenile justice system
(including evaluation of the nature of the involvement, for example,
whether the child was adjudicated and represented by counsel, and the
type of offense), or gang involvement; (3) the child's history of
behavioral issues; (4) the child's history of violence; (5) any
individualized needs, including those related to disabilities or other
medical or behavioral/mental health issues; (6) the child's history of
substance use; and/or (7) the child is either a parent or is pregnant.
In proposed Sec. 410.1202(g), ORR establishes a non-exhaustive
list of factors that it would consider when evaluating a potential
sponsor's ability to ensure the physical or mental well-being of a
child. ORR proposes it would consider the potential sponsor's strengths
and resources in conjunction with any risks or concerns including: (1)
the potential sponsor's criminal background; (2) the potential
sponsor's current illegal drug use or history of abuse or neglect; (3)
the physical environment of the home; and/or (4) other child welfare
concerns. ORR notes that the term ``other child welfare concerns'' is
intentionally broad to allow for discretion and notes that the term may
include the wellbeing of any other unaccompanied children currently or
previously under the potential sponsor's care. Pursuant to section 504
of the Rehabilitation Act and HHS' implementing regulations at 45 CFR
part 85, ORR notes that it shall not discriminate against a qualified
individual with a disability when evaluating their ability to serve as
a sponsor. In addition, ORR notes that it does not consider these
listed risks or concerns as necessarily disqualifying to potential
sponsorship; however, in keeping with its responsibility to ensure the
best interest of the child, ORR must assess the extent to which any of
these risks or concerns could be detrimental to or seriously impede a
potential sponsor's ability to care for the unaccompanied child and the
possibility of safe release given thorough consideration of the
sponsor's specific situation and adaptation of a release plan to ensure
the unaccompanied child's well-being pursuant to proposed Sec.
410.1202(i).
Under proposed Sec. 410.1202(h), ORR would assess the potential
sponsor's understanding of the unaccompanied child's needs, plan to
provide the child with adequate care, supervision, and housing,
understanding and awareness of responsibilities related to compliance
with the UC's immigration court proceedings, school attendance, and
U.S. child labor laws and awareness of and ability to access community
resources.
Finally, under proposed Sec. 410.1202(i), ORR would develop a
release plan that could enable a safe release to the potential sponsor
through the provision of post-release services, if needed.
Section 410.1203 Release Approval Process
Section 410.1203 proposes ORR's process for approving an
unaccompanied child's release. Proposed Sec. 410.1203(a) reflects the
FSA requirement that ORR makes and records timely and continuous
efforts towards safe and timely release of unaccompanied children.
These efforts include intakes and admissions assessments and the
provision of ongoing case management services to identify potential
sponsors.
Under proposed Sec. 410.1203(b), if a potential sponsor is
identified, ORR would provide an explanation to both the unaccompanied
child and the potential sponsor of the requirements and procedures for
release.
Proposed Sec. 410.1203(c) details the information that a potential
sponsor must provide to ORR in the required sponsor application package
for release of the unaccompanied child. Proposed information
requirements include supporting information and documentation
regarding: the sponsor's identity; the sponsor's relationship to the
child; background information on the potential sponsor and the
potential sponsor's household members; the sponsor's ability to provide
care for the child; and the sponsor's commitment to fulfill the
sponsor's obligations in the Sponsor Care Agreement. The Sponsor Care
Agreement, which shall be made available in a potential sponsor's
native or preferred language pursuant to proposed Sec. 410.1306(f),
requires a potential sponsor to commit to: (1) provide for the
unaccompanied child's physical and mental well-being; (2) ensure the
unaccompanied child's compliance with DHS and immigration courts'
requirements; (3) adhere to existing Federal and applicable state child
labor and truancy laws; (4) notify DHS, EOIR at the Department of
Justice, and other relevant parties of changes of address; (5) provide
notice of initiation of any dependency proceedings or any risk to the
unaccompanied child as

[[Page 68930]]

described in the Sponsor Care Agreement; and (6) in the case of
sponsors other than parents or legal guardians, notify ORR of a child
moving to another location with another individual or change of
address. This provision also proposes that in the event of an emergency
(for example, a serious illness or destruction of the sponsor's home),
a sponsor may transfer temporary physical custody of the unaccompanied
child, but the sponsor must notify ORR as soon as possible and no later
than 72 hours after the transfer. ORR notes that this departs from the
2019 Final Rule and the FSA to the extent that ORR is not proposing to
require the sponsor to seek ORR's permission to transfer custody of the
unaccompanied child. This departure reflects that ORR does not retain
legal custody of an unaccompanied child after the child is released to
a sponsor; however, ORR retains an interest in knowing this information
for the provision of post-release services, tracking concerns related
to potential trafficking, and for potential future sponsor assessments
should the child's sponsor step forward to sponsor a different
child.\87\
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\87\ See, e.g., 6 U.S.C. 279(b)(2).
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Under proposed Sec. 410.1203(d), ORR would conduct a sponsor
suitability assessment consistent with the requirements of proposed
Sec. 410.1202.
Under proposed Sec. 410.1203(e), consistent with existing
policies, ORR would not release an unaccompanied child to any person or
agency it has reason to believe may harm or neglect the unaccompanied
child, or that it has reason to believe will fail to present the
unaccompanied child before DHS or the immigration courts when requested
to do so. For example, ORR would deny release to a potential sponsor if
the potential sponsor is not willing or able to provide for the
unaccompanied child's physical or mental well-being; the physical
environment of the home presents risks to the unaccompanied child's
safety and well-being; or the release of the unaccompanied child to
that potential sponsor would present a risk to him or herself or
others.
Furthermore, in proposed Sec. 410.1203(f), ORR shall educate the
potential sponsor about the needs of the unaccompanied child as part of
the release process and would also work with the sponsor to develop an
appropriate plan to care for the unaccompanied child if the child is
released to the sponsor. Such plans would cover a broad range of topics
including providing the unaccompanied child with adequate care,
supervision, access to community resources, housing, and education.\88\
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\88\ Regarding education, ORR understands that under the laws of
every state, children up to a certain age must attend school and
have a right to attend public school. Public schools may not refuse
to enroll children, including unaccompanied children, because of
their (or their parents or sponsors') immigration status or race,
color, or national origin. See, e.g., Plyler v. Doe, 457 U.S. 202
(1982) (finding that under the Equal Protection Clause of the
Fourteenth Amendment of the U.S. Constitution, a State may not deny
access to a basic public education to any child residing in the
State, whether present in the United States legally or otherwise).
Additionally, Title VI of the Civil Rights Act of 1964, 42 U.S.C.
2000d et seq., and the Equal Educational Opportunity Act of 1974, 20
U.S.C. 1701 et seq., prohibit public schools from discriminating on
the basis of race, color, or national origin. ORR also understands
that school districts may not insist on documentation requirements
that effectively prevent enrollment of an unaccompanied child. See
42 U.S.C. 2000d; see also U.S. Dep't of Justice, Civil Rights
Division & U.S. Dep't of Education, Office for Civil Rights,
Information on the Rights of All Children to Enroll in School:
Questions and Answers for States, School Districts and Parents,
Answers 3, 5, 7, and 8 (rev. May 8, 2014), <a href="https://www2.ed.gov/about/offices/list/ocr/docs/qa-201405.pdf">https://www2.ed.gov/about/offices/list/ocr/docs/qa-201405.pdf</a>.
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Section 410.1204 Home Studies
The TVPRA requires a home study be performed for the release of an
unaccompanied child in certain circumstances.\89\ In this section of
the proposed rule, therefore, ORR proposes both required and
discretionary home studies depending upon specific circumstances,
including for those circumstances in which the safety and well-being of
the child is in question.
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\89\ See 8 U.S.C. 1232(c)(3)(B).
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In proposed Sec. 410.1204(a), ORR establishes that, as part of the
sponsor suitability assessment, it may require a home study which
includes an investigation of the living conditions in which the
unaccompanied child would be placed, the standard of care the child
would receive, and interviews with the potential sponsor and others in
the sponsor's households. If ORR requires a home study, such home study
shall take place prior to the child's physical release.
In Sec. 410.1204(b), ORR proposes three circumstances in which a
home study shall be required. The first is under the conditions
identified in the TVPRA at 8 U.S.C. 1232(c)(3)(B): ``a home study shall
be conducted for a child who is a victim of a severe form of
trafficking in persons, a special needs child with a disability (as
defined in section 12102 of title 42), a child who has been a victim of
physical or sexual abuse under circumstances that indicate that the
child's health or welfare has been significantly harmed or threatened,
or a child whose proposed sponsor clearly presents a risk of abuse,
maltreatment, exploitation, or trafficking to the child based on all
available objective evidence.''
Consistent with existing policy, ORR also proposes other
circumstances in which it would require a home study. The second
circumstance in which a home study is proposed to be required is before
releasing any child to a non-relative sponsor who is seeking to sponsor
multiple children, or who has previously sponsored or sought to sponsor
a child and is seeking to sponsor additional children. The third
circumstance in which a home study is proposed to be required is before
releasing any child who is 12 years old or younger to a non-relative
sponsor. ORR believes that these latter two categories are consistent
with the statutory requirement that HHS determine that a proposed
sponsor ``is capable of providing for the child's physical and mental
well-being,'' \90\ to ``establish policies and programs to ensure that
unaccompanied alien children in the United States are protected from
traffickers and other persons seeking to victimize or otherwise engage
such children in criminal, harmful, or exploitative activity.'' \91\
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\90\ 8 U.S.C. 1232(c)(3)(A).
\91\ 8 U.S.C. 1232(c)(1).
---------------------------------------------------------------------------

Under proposed Sec. 410.1204(c), ORR would have the discretion to
initiate home studies if it determines that a home study is likely to
provide additional information which could assist in determining that
the potential sponsor is able to care for the health, safety, and well-
being of the unaccompanied child.
Under proposed Sec. 410.1204(d), the care provider would inform a
potential sponsor whenever it plans to conduct a home study, explain
the scope and purpose of the study to the potential sponsor, and answer
questions the potential sponsor has about the process. In addition,
under this proposed paragraph, the home study would provide its report
to the potential sponsor if the release request is denied, as well as
any subsequent addendums if created.
Finally, proposed Sec. 410.1204(e) establishes that an
unaccompanied child for whom a home study is conducted shall receive
post-release services as described at Sec. 410.1210. This requirement
would be consistent with 8 U.S.C. 1232(c)(3)(B), which states that
``The Secretary of Health and Human Services shall conduct follow-up
services, during the pendency of removal proceedings, on children for
whom a home study was conducted and is authorized to conduct follow-up

[[Page 68931]]

services in cases involving children with mental health or other needs
who could benefit from ongoing assistance from a social welfare
agency.''
Section 410.1205 Release Decisions; Denial of Release to a Sponsor
Proposed Sec. 410.1205 would provide guidance for situations in
which ORR denies the release of an unaccompanied child to a potential
sponsor. Under proposed Sec. 410.1205(a), a sponsorship would be
denied if, as part of the sponsor assessment process described at
proposed Sec. 410.1202 or the release process described at proposed
Sec. 410.1203, ORR determines that the proposed sponsor is not capable
of providing for the physical and mental well-being of the
unaccompanied child or that the placement would result in danger to the
unaccompanied child or the community.
Under proposed Sec. 410.1205(b), if ORR denies release of an
unaccompanied child to a potential sponsor who is a parent or legal
guardian, ORR must notify the parent or legal guardian of the denial in
writing. Such Notification of Denial letter would include: (1) an
explanation of the reason(s) for the denial; (2) evidence and
information supporting ORR's denial decision, including the evidentiary
basis for the denial; (3) instructions for requesting an appeal of the
denial; (4) notice that the potential sponsor may submit additional
evidence, in writing before a hearing occurs, or orally during a
hearing; (5) notice that the potential sponsor may present witnesses
and cross-examine ORR's witnesses, if such witnesses are willing to
voluntarily testify; and (6) notice that the potential sponsor may be
represented by counsel in proceedings related to the release denial at
no cost to the Federal Government. Relatedly, in Sec. 410.1205(c), ORR
proposes that if a potential sponsor who is the unaccompanied child's
parent or legal guardian is denied, ORR shall inform the unaccompanied
child, the child advocate, and the unaccompanied child's attorney of
record or EOIR accredited representative (or if the unaccompanied child
has no attorney of record or EOIR accredited representative, the local
legal service provider) of that denial.
ORR proposes in Sec. 410.1205(d) that if the sole reason for
denial of release is a concern that the unaccompanied child is a danger
to themself or the community, ORR must send the unaccompanied child a
copy of the Notification of Denial letter, in a language that the child
understands, described at Sec. 410.1205(b). If the potential sponsor
who has been denied is the unaccompanied child's parent or legal
guardian and is not already seeking appeal of the decision, the
unaccompanied child may appeal the denial.
Proposed Sec. 410.1205(e) recognizes that unaccompanied children
may have the assistance of counsel, at no cost to the Federal
Government, with respect to release or the denial of release to a
proposed sponsor.
ORR notes that as part of the Lucas R. litigation, it is currently
subject to a preliminary injunction that includes certain requirements
regarding notification and appeal rights for individuals who have
applied to sponsor unaccompanied children, including potential sponsors
who are not an unaccompanied child's parent or legal guardian. ORR is
complying with the requirements of applicable court orders and has
issued sub-regulatory policy guidance to do so. Once the Lucas R.
litigation is resolved, ORR will evaluate whether further rulemaking is
warranted.
Section 410.1206 Appeals of Release Denials
Proposed Sec. 410.1206 would establish procedures for parents and
legal guardians of unaccompanied children to appeal a release denial.
ORR is responsible for making and implementing placement determinations
for unaccompanied children and must do so in a manner that protects the
best interest of the unaccompanied children, including ensuring they
are protected from traffickers and other persons seeking to victimize
or otherwise engage such children in criminal, harmful, or exploitative
activity.\92\ ORR also recognizes the strong interest of parents and
legal guardians in custody of their children. Consistent with its
statutory responsibilities and existing policy, ORR proposes to create
an administrative appeal process for parents and legal guardians who
are denied sponsorship of an unaccompanied child. Subject to the
availability of resources, as determined by ORR, ORR may consider
providing language services to parents and legal guardians during the
appeals process, if the parent or guardian is unable to obtain such
services on their own.
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\92\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c).
---------------------------------------------------------------------------

Section 410.1206(a) proposes that parents and legal guardians of
unaccompanied children who are denied sponsorship by ORR may seek an
appeal of ORR's decision by submitting a written request to the
Assistant Secretary of ACF or the Assistant Secretary's neutral and
detached designee.
Proposed Sec. 410.1206(b) would provide that parents and legal
guardians of unaccompanied children who are denied sponsorship by ORR
may seek an appeal either with or without a hearing and pursuant to
processes described by ORR in agency guidance. ORR proposes that the
Assistant Secretary or their neutral and detached designee will
acknowledge the request for appeal within a reasonable time.
Additionally, proposed Sec. 410.1206(c) establishes a procedure
for the unaccompanied child to also appeal a release denial if the sole
reason for denial is a concern that the unaccompanied child poses a
danger to self or others. In such a case, ORR proposes that the
unaccompanied child may seek an appeal of the denial as described in
Sec. 410.1206(a). If the unaccompanied child expresses a desire to
appeal, the unaccompanied child may consult with their attorney of
record or a legal service provider for assistance with the appeal. The
unaccompanied child may seek such appeal at any time after denial of
release while still in ORR custody.
Section 410.1207 Ninety (90)-Day Review of Pending Release Applications
In the interest of the timely and efficient placement of
unaccompanied children with sponsors, proposed Sec. 410.1207 describes
a process to review release applications that have been pending for 90
days. Consistent with existing policy, proposed Sec. 410.1207(a) would
require ORR Federal staff, who supervise case management services
performed by ORR grantees and contractors, to review all pending
sponsor applications or Family Reunification Packets (FRP) for
unaccompanied children who have been in ORR custody for 90 days after
submission of the sponsor application or FRP in order to identify and
resolve the reasons that a release application remains pending in a
timely manner, as well as to determine possible steps to accelerate the
children's safe release.
Proposed Sec. 410.1207(b) would establish that, upon completion of
the review, UC Program case managers or other designated agency or care
provider staff must update the potential sponsor and unaccompanied
child on the status of the case and explain the reasons that the
release process is incomplete. ORR proposes that UC Program case
managers or other designated agency or care provider staff would work
with the potential sponsor, relevant stakeholders, and ORR to address
the portions of the

[[Page 68932]]

sponsorship application or FRP that remain unresolved.
Further, to ensure that timeliness of placement remains a priority,
for cases that are not resolved after the initial 90-Day Review, ORR
proposes that ORR Federal staff supervising the case management process
would conduct additional reviews at least every 90 days until the
pending sponsor application or FRP is resolved as described in Sec.
410.1207(c).
Section 410.1208 ORR's Discretion To Release an Unaccompanied Child to
the Unaccompanied Refugee Minors Program
Proposed Sec. 410.1208 describes specific eligibility criteria for
release of an unaccompanied child to the Unaccompanied Refugee Minors
(URM) Program. The TVPRA permits ORR to place unaccompanied children in
a URM Program, pursuant to section 412(d) of the Immigration and
Nationality Act, if a suitable family member is not available to
provide care.\93\ Proposed Sec. 410.1208(a) states that an
unaccompanied child may be eligible for services through the ORR
Unaccompanied Refugee Minors (URM) Program, including unaccompanied
children in the following categories: (1) Cuban and Haitian entrant as
defined in section 501 of the Refugee Education Assistance Act of 1980,
8 U.S.C. 1522 note and as provided for at 45 CFR 400.43; (2) an
individual determined to be a victim of a severe form of trafficking as
defined in 22 U.S.C. 7105(b)(1)(C); (3) an individual DHS has
classified as a Special Immigrant Juvenile (SIJ) under section
101(a)(27)(J) of the Immigration and Nationality Act (INA), 8 U.S.C.
1101(a)(27)(J), and who was either in the custody of HHS at the time a
dependency order was granted for such child or who was receiving
services pursuant to section 501(a) of the Refugee Education Assistance
Act of 1980, 8 U.S.C. 1522 note, at the time such dependency order was
granted; (4) an individual with U nonimmigrant status under 8 U.S.C.
1101(a)(15)(U), as authorized by TVPRA, pursuant to section 1263 of the
Violence Against Women Reauthorization Act of 2013, which amends
section 235(d)(4) of the TVPRA to add individuals with U nonimmigrant
status who were in ORR custody as unaccompanied children eligible for
the URM Program; or (5) other populations of children as authorized by
Congress.
---------------------------------------------------------------------------

\93\ 8 U.S.C. 1232(c)(2)(A).
---------------------------------------------------------------------------

With respect to unaccompanied children described in proposed
paragraph (a) of this section, under proposed Sec. 410.1208(b), ORR
would evaluate each case to determine whether it is in an unaccompanied
child's best interests to be referred to the URM Program.
At proposed Sec. 410.1208(c), ORR notes that when it discharges an
unaccompanied child pursuant to this section to receive services
through the URM Program, relevant requirements of the ORR Refugee
Resettlement Program regulations would apply, including the requirement
that the receiving entity establish legal responsibility of the
unaccompanied child, including legal custody or guardianship, under
state law.\94\ Under proposed Sec. 410.1208(c), until such legal
custody or guardianship is established, the ORR Director would retain
legal custody of the child.
---------------------------------------------------------------------------

\94\ See 45 CFR 400.115.
---------------------------------------------------------------------------

Section 410.1209 Requesting Specific Consent From ORR Regarding Custody
Proceedings
Proposed Sec. 410.1209 addresses the specific consent process and
is informed by the TVPRA. Specific consent is a process through which
an unaccompanied child in ORR custody obtains consent from HHS to have
a state juvenile court make decisions concerning the unaccompanied
child's placement or custody. As relevant to this proposed section, ORR
notes that the TVPRA modified section 101(a)(27)(J) of the Immigration
and Nationality Act, concerning SIJ classification.\95\ To obtain SIJ
classification under the TVPRA modifications, a child must be declared
dependent or legally committed to or placed under the custody of an
individual or entity by a state juvenile court. However, an
unaccompanied child in ORR custody who seeks to invoke the jurisdiction
of a state juvenile court to determine or alter their custody status or
placement must first receive ``specific consent'' from HHS to such
jurisdiction. For example, if an unaccompanied child wishes to have a
state juvenile court of competent jurisdiction, not HHS, decide to move
them out of HHS custody and into a state-funded foster care home, the
unaccompanied child must first receive ``specific consent'' from HHS to
go before the state juvenile court. If the unaccompanied child wishes
to go to state juvenile court to be declared dependent in order to
petition for SIJ classification (i.e., receive an ``SIJ-predicate
order''), the unaccompanied child does not need HHS' consent. Although
the TVPRA transferred authority to grant specific consent from DHS to
ORR, DHS retains sole authority over the ultimate determination on SIJ
classification.\96\
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\95\ See 8 U.S.C. 1101(a)(27)(J) (providing that ``no juvenile
court has jurisdiction to determine the custody status or placement
of an alien in the custody of the Secretary of Health and Human
Services unless the Secretary of Health and Human Services
specifically consents to such jurisdiction . . .''). See also 8
U.S.C. 1232(d)(2) (``All applications for special immigrant status
under section 101(a)(27)(J) of the Immigration

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