[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]



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.


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 

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

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 

John J. Pogash, Headquarters Juvenile Coordinator, Immigration and 
Naturalization Service, 425 I Street, NW. Room 3008, Washington, DC 
20536, telephone (202) 514-1970.



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 
    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 

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:


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

    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 
    (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 
    (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 
    (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 
    (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 
    (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 
    (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]