[Federal Register Volume 63, Number 142 (Friday, July 24, 1998)]
[Proposed Rules]
[Pages 39759-39763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19712]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 236
[INS No. 1906-98]
RIN 1115-AFO5
Processing, Detention, and Release of Juveniles
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
(Service) regulations by establishing the procedures for processing
juveniles in Service custody. The new rule sets guidelines for the
release of juveniles from custody and the detention of unreleased
juveniles in state-licensed programs and detention facilities. The rule
also governs the transportation and transfer of juveniles in Service
custody.
DATES: Written comments must be submitted on or before September 22,
1998.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1906-98 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT:
John J. Pogash, Headquarters Juvenile Coordinator, Immigration and
Naturalization Service, 425 I Street, NW. Room 3008, Washington, DC
20536, telephone (202) 514-1970.
SUPPLEMENTARY INFORMATION:
Background
What is the basis for the proposed rule?
The Service has settled Flores v. Reno, the class-action lawsuit
filed as a challenge to the Service's policies on the detention,
processing, and release of juveniles. Although certain aspects of the
lawsuit were won previously by either the plaintiffs or the Service,
the parties resolved the remaining aspects in a comprehensive
settlement that addressed juvenile processing, transport, release, and
detention. The substantive terms of the settlement form the basis for
the proposed rule.
[[Page 39760]]
Has there been any previous opportunity to comment on the terms of the
proposed rule?
The parties to the Flores v. Reno lawsuit provided the plaintiff
class, composed of all juveniles in Service custody, a 30-day
opportunity to object to the terms of the settlement agreement. In the
absence of any objection, the federal court approved the terms of the
settlement agreement, which now forms the basis for the proposed rule.
Explanation of Changes
What changes are being made to the regulations?
The proposed rule establishes the framework for the processing,
release, and detention of juveniles in Service custody. The proposed
rule revises Sec. 236.3. The section is redesignated: ``Sec. 236.3
Processing, detention, and release of juveniles.''
The rule maintains the substance of former sections Sec. 242.24(f),
(g), and (h) regarding notice to parents of juveniles' applications for
relief, voluntary departure, and the notice and request for
disposition. The language of former Sec. 242.24(g) and (h) has been
amended and redesignated as, respectively, paragraphs (c)(3) and (c)(2)
of this section. The rule amends those provisions to conform more
accurately to the terms of the federal court's ruling in Perez-Funez v.
District Director, 619 F. Supp. 656 (C.D. Cal. 1985). The court's
decision in that case required the Service, prior to offering voluntary
departure from the United States in lieu of deportation, to provide a
simplified rights advisal to each juvenile who was unaccompanied by a
natural or lawful parent when taken into custody. (The court also
required the Service to provide other safeguards, such as the
opportunity to place telephone calls to family members, friends, or
legal representatives prior to being offered voluntary departure. The
Service previously implemented those safeguards at former
Sec. 242.24(g) and now maintains them in paragraph (c)(3) of this
section.) The required rights advisal is incorporated into the Form I-
770, Notice of Rights and Request for Disposition. This form explains
the minor's rights to make telephone calls, to be represented by an
attorney, and to have a removal hearing. Although the Form I-770
accurately states that the proper recipients of the form are those
juveniles who are unaccompanied by a natural or lawful parent, the
former regulation at Sec. 242.24(g) and (h) was overly broad in stating
that the Service should apply the voluntary departure procedures to any
juvenile alien apprehended by the Service. Therefore, the proposed rule
amends the regulatory language to comport with the court's ruling in
Perez-Funez and the instructions on the Form I-770.
Similarly, the rule proposes to amend the former language of
Sec. 242.24(h) to make it clear that the Service must serve the Notice
of Rights (Form I-770) only upon those juveniles who are not ``arriving
aliens'' as defined at Sec. 1.1(q). That section defines an ``arriving
alien'' as ``an applicant for admission coming or attempting to come
into the United States at a port-of-entry, or an alien seeking transit
through the United States at a port-of-entry, or an alien interdicted
in international or United States waters and brought into the United
States by any means, whether or not to a designated port-of-entry, and
regardless of the means of transport. . . .'' The amended language in
paragraph (c)(2) of this section accurately reflects that section 240B
of the Immigration and Nationality Act (the Act) explicitly states that
voluntary departure is not available to ``an alien who is arriving in
the United States.'' The proposed rule's amended language will avoid
any confusion caused by the Service of the Form I-770 on an arriving
alien juvenile.
Adding new regulatory language on the detention and release of
juveniles in custody, the proposed rule provides that the Service shall
place detained juveniles in the least restrictive setting appropriate
to the juvenile's age and circumstances, so long as the placement is
consistent with the need to protect the well-being of the juvenile or
others and to ensure the juvenile's presence before the Service or the
immigration court. The Service will separate unaccompanied juveniles
from unrelated adults in detention. If the Service does not release the
juvenile immediately, the Service will hold the juvenile temporarily in
a Service facility having separate accommodations for juveniles, or in
a juvenile detention facility having separate accommodations for non-
delinquent juveniles, pending placement in a state-licensed residential
program.
The rule provides that if detention of the juvenile is not
necessary to protect the juvenile or others, or to ensure that he or
she will appear in immigration court, the Service shall release him or
her to a custodian meeting certain qualifications. The custodian will
be required to sign an agreement to perform several duties, including
providing for the juvenile's needs and ensuring the juvenile's presence
in immigration court. The Service may require a suitability assessment
and a home visit prior to releasing a juvenile to a custodian.
If a juvenile is to remain in Service custody pending the
completion of his or her immigration court proceedings, the Service
shall place the juvenile in a State-licensed residential program. The
rule requires the Service to place juveniles in such programs within
given time periods, depending on the circumstances of the case.
The Service may place certain juveniles in more secure detention.
If a juvenile has committed a crime or a juvenile delinquent offense,
has committed or threatened to commit violent acts, has engaged in
disruptive behavior, is an escape risk, or is in danger, the Service
may place him or her in a juvenile detention facility or a Service
facility having separate accommodations for juveniles.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. The rule addresses only government operations. It
places no new obligations on small entities or other private
individuals or businesses.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any 1 year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is not considered by the Department of Justice,
Immigration and
[[Page 39761]]
Naturalization Service, to a ``significant regulatory action'' under
Executive Order 12866, section 3(f), Regulatory Planning and Review,
and has not been reviewed by the Office of Management and Budget.
Executive Order 12612
The regulation adopted herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988 Civil Justice Reform
This interim rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of E.O. 12988.
List of Subjects in 8 CFR Part 236
Administrative practice and procedure, Aliens, Immigration.
Accordingly, part 236 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 236--APPREHENSION AND DETENTION OF INADMISSIBLE AND DEPORTABLE
ALIENS; REMOVAL OF ALIENS ORDERED REMOVED
1. The authority citation for part 236 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1362; 8
CFR part 2.
2. Section 236.3 is revised to read as follows:
Sec. 236.3 Processing, detention, and release of juveniles.
(a) Definitions. As used in this part, the term: Chargeable means
that the Service has reasonable grounds to believe that the individual
has committed a specified offense.
Escape-risk means that there is a serious risk that the juvenile
will attempt to escape from custody. Factors to consider when
determining whether a juvenile is an escape-risk include, but are not
limited to, whether:
(i) The juvenile is currently under a final order of removal,
deportation or exclusion;
(ii) The juvenile's immigration history includes: a prior breach of
a bond; a failure to appear before the Service or the immigration
court; evidence that the juvenile is indebted to organized smugglers
for his or her transport; or a voluntary departure or a previous
removal from the United States pursuant to a final order of removal,
deportation, or exclusion;
(iii) The juvenile has previously absconded or attempted to abscond
from Service custody.
Juvenile means a person under the age of 18 years. However,
individuals who have been emancipated by a state court or convicted and
incarcerated for a criminal offense as an adult are not considered
juveniles. Such individuals must be treated as adults for all purposes,
including confinement and release on bond. Similarly, if a reasonable
person would conclude that an individual is an adult despite his or her
claims to be a juvenile, the Service shall treat such person as an
adult for all purposes, including confinement and release on bond or
recognizance. The Service may require such an individual to submit to a
medical or dental examination conducted by a medical professional or to
submit to other appropriate procedures to verify his or her age. If the
Service subsequently determines that such an individual is a juvenile,
he or she will be treated as a juvenile for all purposes.
Licensed program means any program, agency, or organization
licensed by an appropriate state agency and contracted by the Service
to provide residential, group, or foster care services for dependent
juveniles. The term may include a program operating group homes, foster
homes, or facilities for juveniles with special needs, i.e., mental
and/or physical conditions requiring special services and treatment by
staff. When possible, the Service shall place juveniles having special
needs in licensed programs with juveniles without special needs. All
homes and facilities operated by licensed programs shall be non-secure
as required under state law. All licensed programs must also meet the
standards for program content imposed by the Service.
Medium security facility means a state-licensed facility that is
designed for juveniles who require close supervision but not secure
detention. Such a facility provides 24-hour awake supervision and
maintains stricter security measures, such as intense staff
supervision, than a licensed program. It may have a secure perimeter
but shall not be equipped internally with major restraining
construction or procedures typically associated with correctional
facilities. A medium security facility must also meet the standards for
program content imposed on licensed programs by the Service.
Secure facility means a state or county juvenile detention facility
or a Service or Service-contract facility that has separate
accommodations for juveniles.
(b) General policy. The Service will place each detained juvenile
in the least restrictive setting appropriate to the juvenile's age and
special needs, provided that such setting is consistent with the need
to ensure the juvenile's timely appearance before the Service or the
immigration court and to protect the juvenile's well-being and that of
others. Service officers are not required to release a juvenile to any
person or agency who they have reason to believe may harm or neglect
the juvenile or fail to present him or her before the Service or the
immigration court when requested to do so.
(c) Processing. (1) Current list of counsel. Every juvenile placed
in removal proceedings under section 240 of the Act shall be provided a
current list of pro bono counsel prepared pursuant to section 239(b)(2)
of the Act.
(2) Notice of rights and request for disposition. When the Service
apprehends a juvenile alien who is not an arriving alien and who is
unaccompanied by a natural or lawful parent, the Service shall promptly
give him or her a Form I-770, Notice of Rights and Request for
Disposition. If the juvenile is less than 14 years of age or is unable
to understand the Form I-770, it shall be read and explained to the
juvenile in a language he or she understands. In the event a juvenile
who has requested a hearing pursuant to the notice subsequently decides
to accept voluntary departure, a new Form I-770 shall be given to, and
signed by, the juvenile.
(3) Voluntary departure. Each juvenile who is apprehended in the
immediate vicinity of the border while unaccompanied by a natural or
lawful parent, and who resides permanently in Mexico or Canada, shall
be informed, prior to presentation of the voluntary departure form,
that he or she may make a telephone call to a parent, close relative,
friend, or an organization found on the current list of pro bono
counsel. Each other juvenile who is unaccompanied by a natural or
lawful parent shall be provided access to a telephone and must, in
fact, communicate with either a parent, adult relative, friend, or an
organization found on the current list of pro bono counsel prior to
presentation of the voluntary departure form. If such juvenile, of his
or her own volition, asks to contact a consular officer and does, in
fact, make such contact, the requirements of this section are
satisfied.
(4) Notice of right to bond redetermination and judicial review of
placement. A juvenile charged under
[[Page 39762]]
section 237 of the Act and placed in removal proceedings shall be
afforded a bond redetermination hearing before an immigration judge in
every case, unless the juvenile indicates on the Form I-286, Notice of
Custody Determination, that he or she refuses such a hearing. A
juvenile who is not released shall be provided a written explanation of
the right to judicial review of his or her placement.
(5) Notice to parent of application for relief. If a juvenile seeks
release from detention, voluntary departure, parole, or any form of
relief from removal where it appears that the grant of such relief may
effectively terminate some interests inherent in the parent-child
relationship and/or the juvenile's rights and interests are adverse
with those of the parent, and the parent is presently residing in the
United States, the parent shall be given notice of the juvenile's
application for relief and shall be afforded an opportunity to present
his or her views and assert his or her interest to the district
director or immigration judge before a determination is made as to the
merits of the request for relief.
(d) Custody. (1) Placement immediately following arrest. Following
a juvenile's arrest, the Service will provide adequate supervision to
protect the juvenile from others and will permit contact with family
members who were arrested with the juvenile. The Service will separate
unaccompanied juveniles from unrelated adults. Where such segregation
is not immediately possible, an unaccompanied juvenile will not be
detained with an unrelated adult for more than 24 hours.
(2) Temporary placement. If the juvenile is not immediately
released from custody under paragraph (e) of this section, and no
licensed program is available to care for him or her, the juvenile may
be placed temporarily in a secure facility, provided that it separates
non-delinquent juveniles in Service custody from delinquent offenders.
(3) Placement in licensed programs.
(i) Juveniles who remain in Service custody pending the conclusion
of their immigration court proceedings must be placed in a licensed
program within:
(A) Three calendar days if the juvenile was apprehended in a
Service district in which a licensed program is located and has space
available;
(B) Five business days if the juvenile must be transported from
remote areas for processing or speaks an unusual language requiring a
special interpreter for processing; or
(C) Five calendar days in all other cases.
(ii) These time requirements shall not apply, however, if a court
decree or court-approved settlement requires otherwise, or an emergency
or influx of juveniles into the United States prevents compliance, in
which case all juveniles should be placed in licensed programs as
expeditiously as possible. For purposes of this paragraph, the term
emergency means an act or event (such as a natural disaster, facility
fire, civil disturbance, or medical emergency) that prevents timely
placement of juveniles. The phrase influx of juveniles into the United
States means any time at which the Service has more than 130 juveniles
eligible for placement in licensed programs, including those already so
placed and those awaiting placement.
(4) Secure and supervised detention. Notwithstanding paragraph
(d)(3) of this section, a juvenile may be held in or transferred to a
secure facility, whenever the district director or chief patrol agent
determines that the juvenile;
(i) Has been charged with, is chargeable, or has been convicted of
a crime, or is the subject of juvenile delinquency proceedings, is
chargeable with a delinquent act, or has been adjudicated delinquent,
unless the juvenile's offense is:
(A) An isolated offense that was not within a pattern of criminal
activity and did not involve violence against a person or the use or
carrying of a weapon (such as breaking and entering, vandalism DUI,
etc.); or
(B) A petty offense, which is not considered grounds for stricter
means of detention in any case (such as shoplifting, joy riding,
disturbing the peace, etc.);
(ii) Has committed, or has made credible threats to commit, a
violent or malicious act (whether directed at himself or herself or
others) while in Service legal custody or while in the presence of a
Service officer;
(iii) Has engaged in conduct that has proven to be unacceptably
disruptive of the normal functioning of the licensed program in which
he or she has been placed and removal is necessary to ensure the
welfare of the juvenile or others, as determined by the staff of the
licensed program (such as drug or alcohol abuse, stealing, fighting,
intimidation of others, etc.);
(iv) Is an escape-risk; or
(v) Must be held in a secure facility for his or her own safety,
such as when the Service has reason to believe that a smuggler would
abduct or coerce a particular juvenile to secure payment of smuggling
fees.
(5) Alternatives. The Service will not place a juvenile in a secure
facility pursuant to paragraph (d)(4) of this section if less
restrictive alternatives are available and appropriate in the
circumstances, such as transfer to a medium security facility that
provides intensive staff supervision and counseling services or
transfer to another licensed program.
(6) Approval and notice. All determinations to place a juvenile in
a secure facility will be reviewed and approved by the Service regional
Juvenile Coordinator. Service officers must also provide any juvenile
not placed in a licensed program with written notice of the reasons for
housing the juvenile in a secure or medium-security facility.
(7) Service custody. All juveniles not released under paragraph (e)
of this section remain in the legal custody of the Service and may only
be transferred or released under its authority; provided, however, that
in the event of an emergency, a licensed program may transfer temporary
physical custody of a juvenile prior to securing permission from the
Service but shall notify the Service of the transfer as soon as is
practicable, but in all cases within 8 hours.
(e) Release. If the Service determines that detention of a juvenile
is not required to secure timely appearance before the Service or the
immigration court or to ensure the juvenile's safety or that of others,
the Service shall release the juvenile from custody, in the following
order of preference, to:
(1) A parent;
(2) A legal guardian;
(3) An adult relative (brother, sister, aunt, uncle, or
grandparent);
(4) An adult individual or entity designated by the parent or legal
guardian as capable and willing to care for the juvenile's well-being
in:
(i) A declaration signed under penalty of perjury before an
immigration or consular officer, or
(ii) Such other documentation that establishes to the satisfaction
of the Service, in its discretion, that the person who is designating
the custodian is, in fact, the juvenile's parent or guardian;
(5) A program, agency, or organization licensed by an appropriate
state agency to provide residential services to dependent juveniles,
when it is willing to accept legal, as opposed to simply physical,
custody; or
(6) An adult individual or entity seeking custody, in the
discretion of the Service, when it appears that there is no other
likely alternative to long-term detention and family reunification does
not appear to be a reasonable possibility.
[[Page 39763]]
(f) Agreements between the Service and a custodian. (1)
Certification of custodian. Before a juvenile is released from Service
custody, the custodian must execute Form I-134, an Affidavit of
Support, and an agreement to:
(i) Provide for the juvenile's physical, mental, and financial
well-being;
(ii) Ensure the juvenile's presence at all future proceedings
before the Service and the immigration court;
(iii) Notify the Service of any change of address within 5 days
following a move;
(iv) Not transfer custody of the juvenile to another party without
the prior written permission of the district director, unless the
transferring custodian is the juvenile's parent or legal guardian;
(v) Notify the Service at least 5 days prior to the custodian's
departure from the United States, whether the departure is voluntary or
pursuant to a grant of voluntary departure or order of removal; and
(vi) Notify the Service of the initiation of any State court
dependency proceedings involving the juvenile and the State dependency
court of any immigration proceedings pending against the juvenile.
(2) Emergency transfer of custody. In an emergency, a custodian may
transfer temporary physical custody of a juvenile prior to securing
permission from the Service, but must notify the Service of the
transfer as soon as is practicable, and in all cases within 72 hours.
Examples of an ``emergency'' include the serious illness of the
custodian or destruction of the home. In all cases where the custodian
seeks written permission for a transfer, the district director shall
promptly respond to the request.
(3) Termination of custody arrangements. The Service may terminate
the custody arrangements and assume custody of any juvenile whose
custodian fails to comply with the agreement required by paragraph
(f)(1) of this section. However, custody arrangements will not be
terminated for minor violations of the custodian's obligation to notify
the Service of any change of address within 5 days following a move.
(g) Suitability assessment. The Service may require a positive
suitability assessment prior to releasing a juvenile under paragraph
(e) of this section. The Service will always require a suitability
assessment prior to any release under paragraph (e)(6) of this section.
A suitability assessment may include an investigation of the living
conditions in which the juvenile is to be placed and the standard of
care he or she would receive, verification of identify and employment
of the individuals offering support, interviews of members of the
household, and a home visit. The assessment will also take into
consideration the wishes and concerns of the juvenile.
(h) Family reunification. (1) Efforts to reunite. Upon taking a
juvenile into custody, the Service, or the licensed program in which
the juvenile is placed, will promptly attempt to reunite the juvenile
with his or her family to permit the release of the juvenile under
paragraph (e) of this section. Such efforts at family reunification
will continue as long as the juvenile is in Service custody and will be
recorded by the Service or the licensed program in which the juvenile
is placed.
(2) Simultaneous release. If an individual specified in paragraph
(e) of this section cannot be located to accept custody of a juvenile,
and the juvenile has identified a parent, legal guardian, or adult
relative in Service detention, simultaneous release of the juvenile and
the parent, legal guardian, or adult relative shall be evaluated on a
discretionary case-by-case basis.
(3) Refusal of release. If a parent of a juvenile detained by the
Service can be located, and is otherwise suitable to receive custody of
the juvenile, and the juvenile indicates refusal to be released to the
parent, the parent(s) shall be notified of the juvenile's refusal to be
released to the parent(s), and shall be afforded an opportunity to
present their views to the district director, chief patrol agent, or
immigration judge before a custody determination is made.
(i) Transportation and transfer. (1) Separation from adults.
Juveniles unaccompanied by adult relatives or legal guardians should
not be transported in vehicles with detained adults except when being
transported from the place of arrest or apprehension to a Service
office or when separate transportation would be otherwise impractical,
in which case juveniles shall be separated from adults. Service
officers shall take all necessary precautions for the protection of
juveniles during transportation with adults.
(2) Travel arrangements. When a juvenile is to be released from
custody under paragraph (e) of this section, the Service will assist
him or her in making transportation arrangements to the Service office
nearest the location of the person or facility to whom the juvenile is
to be released. In its discretion, the Service may provide
transportation to such juveniles.
(3) Possessions. Whenever a juvenile is transferred from one
placement to another, he or she shall be transferred with all
possessions and legal papers; provided, however, that if the juvenile's
possessions exceed the amount normally permitted by the carrier in use,
the possessions shall be shipped to the juvenile in a timely manner.
(4) Notice. No juvenile who is presented by counsel should be
transferred without advance notice to counsel, except in unusual and
compelling circumstances such as where the safety of the juvenile or
others is threatened, or the juvenile has been determined to be an
escape-risk, or where counsel has waived notice. In these cases notice
must be provided to counsel within 24 hours following transfer.
Dated: June 10, 1998.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 98-19712 Filed 7-23-98; 8:45 am]
BILLING CODE 4410-10-M