[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 [www.gpo.gov]
[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:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. 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 www.regulations.gov, 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 [email protected].

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 https://www.regulations.gov 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 https://www.regulations.gov, it will be considered received when it is 
received at the Docket Management Facility.
    Instructions: To submit your comments online, go to https://www.regulations.gov and insert ``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 https://www.regulations.gov, 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 https://www.regulations.gov.
    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 https://www.regulations.gov 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.
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    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\
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    \31\ Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal. 2019).
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    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, https://www.reginfo.gov/public/do/eoDetails?rrid=312162.
---------------------------------------------------------------------------

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, https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide.
    \48\ Unaccompanied Children's Program Field Guidance, https://www.acf.hhs.gov/orr/policy-guidance/uc-program-field-guidance.
---------------------------------------------------------------------------

    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: https://gov.texas.gov/uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf (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: https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf.
    \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\
---------------------------------------------------------------------------

    \53\ Office to Monitor and Combat Trafficking in Persons. (2020, 
June). Trauma Bonding in Human Trafficking. U.S. Department of 
State. https://www.state.gov/wp-content/uploads/2020/10/TIP_Factsheet-Trauma-Bonding-in-Human-Trafficking-508.pdf.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \54\ See 6 U.S.C. 279(b)(1)(B); 8 U.S.C. 1232(c)(2)(A).
---------------------------------------------------------------------------

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 . . .'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.

---------------------------------------------------------------------------

[[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\
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    \75\ 53 FR 25591, 25600 (July 8, 1988).
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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.
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    \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.
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    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.
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    \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 . . .''
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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.
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    \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.
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    \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.
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    \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\
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    \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.
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    \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), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201405.pdf.
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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).
---------------------------------------------------------------------------

    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.
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    \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.
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    \94\ See 45 CFR 400.115.
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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 and Nationality Act 
(8 U.S.C. 1101(a)(27)(J)) shall be adjudicated by the Secretary of 
Homeland Security not later than 180 days after the date on which 
the application is filed.'').
    \96\ Although the TVPRA refers to special immigrant ``status,'' 
see, e.g., 8 U.S.C. 1232(d), in this proposed rule ORR uses the term 
special immigrant ``classification,'' consistent with current United 
States Citizenship and Immigration Services (USCIS) policy. See 
generally U.S. Citizenship and Immigration Services Policy Manual, 
Vol. 6, Part J, Ch. 1, available at: https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-1.
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    Proposed Sec.  410.1209(a) states that an unaccompanied child in 
ORR custody is required to request specific consent from ORR if the 
unaccompanied child seeks to invoke the jurisdiction of a state 
juvenile court to determine or alter the child's custody status or 
release from ORR custody.
    Under proposed Sec.  410.1209(b), if an unaccompanied child seeks 
to invoke the jurisdiction of a state juvenile court for a dependency 
order so that they can petition for SIJ classification or to otherwise 
permit a state juvenile court to establish jurisdiction regarding 
placement, but does not seek the state juvenile court's jurisdiction to 
determine or alter the child's custody status or release, the 
unaccompanied child would not need to request specific consent from 
ORR.
    Proposed Sec.  410.1209(c) through (g) explain the process to make 
a specific consent request to ORR. Under proposed Sec.  410.1209(c), 
prior to a state juvenile court determining or altering the 
unaccompanied child's custody status or release from ORR, attorneys or 
others acting on behalf of an unaccompanied child would be required to 
complete a request for specific consent. ORR proposes in Sec.  
410.1209(d) that it would acknowledge receipt of the request within two 
business days.
    ORR proposes in Sec.  410.1209(e) that it will consider whether ORR 
custody is required to: (1) ensure a child's safety; or (2) ensure the 
safety of the community. As ORR does not consider runaway risk for 
purposes of release, it does not intend to do so here for purposes of 
adjudicating specific consent requests. ORR notes that such 
requirements would be consistent with 8 U.S.C. 1232(c)(2)(A) (stating 
that when making placement determinations, HHS

[[Page 68933]]

``may consider danger to self, danger to the community, and risk of 
flight.'').
    Under proposed Sec.  410.1209(f), ORR shall make determinations on 
specific consent requests within 60 business days of receipt. ORR 
proposes that it shall attempt to expedite urgent requests when 
possible.
    In Sec.  410.1209(g), ORR proposes that it shall inform the 
unaccompanied child, the unaccompanied child's attorney, or other 
authorized representative of the unaccompanied child of the decision on 
the specific consent request in writing, along with the evidence used 
to make the decision. Finally, proposed Sec.  410.1209(h) and (i) 
detail procedures related to a request for reconsideration in the event 
ORR denies specific consent. Under proposed Sec.  410.1209(h), the 
unaccompanied child, the child's attorney of record, or EOIR accredited 
representative of the child would be able to request reconsideration of 
ORR's denial with the Assistant Secretary for ACF within 30 business 
days of receipt of the ORR notification of denial of the request. The 
unaccompanied child, the child's attorney, or the child's authorized 
representative may submit additional (including new) evidence to be 
considered with the reconsideration request.
    Under proposed Sec.  410.1209(i), the Assistant Secretary for ACF 
or designee would consider the request for reconsideration and any 
additional evidence, and send a final administrative decision to the 
unaccompanied child, the child's attorney, or the child's other 
authorized representative, within 15 business days of receipt of the 
request.
Section 410.1210 Post-Release Services
    Proposed Sec.  410.1210 sets forth the requirements for post-
release services (PRS). The TVPRA authorizes, and in some cases 
requires, HHS to provide PRS during the pendency of removal proceedings 
for certain unaccompanied children.\97\ ORR provides PRS by funding 
providers to facilitate access to relevant services. Generally, ORR 
believes that providing necessary services after an unaccompanied 
child's release from ORR care is essential to promote the child's 
safety and well-being.
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    \97\ See 8 U.S.C. 1232(c)(3)(B) (``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 services in cases 
involving children with mental health or other needs who could 
benefit from ongoing assistance from a social welfare agency.'').
---------------------------------------------------------------------------

    Under proposed Sec.  410.1210(a)(1), consistent with existing 
policy, care provider facilities would work with sponsors and 
unaccompanied children to prepare them for the unaccompanied children's 
safe and timely release, to assess the sponsors' ability to access 
community resources, and to provide guidance regarding safety planning 
and accessing services.
    Proposed Sec.  410.1210(a)(2) and (3) describe circumstances when 
ORR would be required to provide PRS to unaccompanied children. 
Consistent with 8 U.S.C. 1232(c)(3)(B), under proposed Sec.  
410.1210(a)(2), ORR would conduct follow-up services, or PRS, during 
the pendency of removal proceedings for unaccompanied children for whom 
a home study was conducted. ORR proposes to apply this requirement to 
any case where a home study is conducted, including home studies that 
are explicitly required by the TVPRA and those that ORR performs under 
other circumstances as described at proposed Sec.  410.1204. Under 
proposed Sec.  410.1210(a)(3), ORR proposes it would have the 
discretion, to the extent ORR determines that appropriations are 
available, to provide PRS to unaccompanied children with mental health 
or other needs who would benefit from the ongoing assistance of a 
community-based service provider, even if their case did not involve a 
home study pursuant to proposed Sec.  410.1204. ORR notes that proposed 
Sec.  410.1210(c) further lists certain situations where ORR may, 
within its discretion, refer unaccompanied children for PRS. These 
proposals expand upon the situations whereby ORR may provide PRS. ORR's 
current practice, described in the ORR Guide at section 6.2, requires 
ORR to provide PRS for an unaccompanied child whose sponsor required a 
home study \98\ or for whom ORR determines the release is safe and 
appropriate but the unaccompanied child and sponsor would benefit from 
ongoing assistance from a community-based service provider. ORR also 
proposes that PRS furnished to these unaccompanied children may include 
home visits by the PRS provider. ORR seeks public comment on proposed 
Sec.  410.1210(a)(2) and (3), particularly with respect to the possible 
expansion of PRS to additional unaccompanied children.
---------------------------------------------------------------------------

    \98\ ORR Guide section 2.4.2 requires a home study before 
releasing an unaccompanied child to a non-relative sponsor who is 
seeking to sponsor: (1) multiple unaccompanied children; (2) 
additional unaccompanied children and the non-relative sponsor has 
previously sponsored or sought to sponsor an unaccompanied child; or 
(3) unaccompanied children who are 12 years and under.
---------------------------------------------------------------------------

    ORR is aware of concerns that, in some cases, release of UC to 
sponsors may be unduly delayed by a lack of available PRS providers and 
services near the sponsor. Accordingly, ORR proposes in Sec.  
410.1210(a)(4) that ORR would not delay the release of an unaccompanied 
child if PRS are not immediately available (e.g., due to a referral 
delay or waitlist for PRS). ORR notes that Sec.  410.1210(g) specifies 
the timeframes in which PRS providers are required to start PRS for 
unaccompanied children once they are released from ORR care.
    Proposed Sec.  410.1210(b) lists the types of services that would 
be available as part of PRS, as described in section 6.2.2 of the ORR 
Guide. PRS providers would be required to ensure PRS are furnished in a 
manner that is sensitive to the individual needs of the unaccompanied 
child and in a way the child effectively understands regardless of 
spoken language, reading comprehension, or disability to ensure 
meaningful access for all eligible children, including those with 
limited English proficiency. The comprehensiveness of PRS shall depend 
on the extent appropriations are available. Specifically, ORR proposes 
to codify the availability of PRS to support unaccompanied children and 
sponsors in accessing services in the following areas: placement and 
stability; immigration proceedings; guardianship; legal services; 
education; medical services; individual mental health services; family 
stabilization and counseling; substance use; gang prevention; education 
about employment laws and workers' rights; and other specialized 
services based on need and at the request of unaccompanied children. In 
addition, ORR believes that PRS should specifically include service 
areas such as: assisting in school enrollment, including connecting 
unaccompanied children and sponsors to educational programs for 
students with disabilities where appropriate; ensuring access to family 
reunification and medical support services, including support and 
counseling for the family and mental health counseling; supporting 
sponsors in obtaining necessary medical records and necessary personal 
documentation; and ensuring that sponsors of unaccompanied children 
with medical needs receive support in accessing appropriate medical 
care. ORR notes that these services areas are currently covered in 
section 6.2.2 of the ORR Guide, which ORR is proposing to codify in 
Sec.  410.1210(b). In conducting PRS, ORR and any entities through

[[Page 68934]]

which ORR provides PRS shall make reasonable modifications in their 
policies, practices, and procedures if needed to enable released 
unaccompanied children with disabilities to live in the most integrated 
setting appropriate to their needs, such as with a sponsor. ORR is not 
required, however, to take any action that it can demonstrate would 
result in a fundamental alteration in the nature of a program or 
activity. Additionally, ORR is aware of the importance of health 
literacy for unaccompanied children to increase awareness of health 
issues and to ensure continuity of care after their release, and so 
proposes at Sec.  410.1210(b)(7) that PRS providers would be required 
to provide unaccompanied children and sponsors with information and 
services relevant to health-related considerations for the 
unaccompanied child. ORR seeks public comment on this paragraph, 
specifically on how to protect the comprehensiveness of PRS against 
significant reductions in funding allocated to PRS while still 
balancing the need to maintain funding for capacity during emergencies 
and influxes. ORR also seeks public comment on what other services 
should be within the scope of PRS.
    Under proposed Sec.  410.1210(c), ORR proposes to require that 
unaccompanied children with certain needs receive additional 
consideration of those case-specific needs, and may be referred for PRS 
to address those needs. Consistent with 8 U.S.C. 1232(c)(3)(B), ORR 
proposes that unaccompanied children who would receive additional 
consideration include those that are especially vulnerable 
unaccompanied children and would include, but are not limited to: 
unaccompanied children in need of particular services or treatment; 
unaccompanied children with disabilities; unaccompanied children with 
LGBTQI+ status; unaccompanied children who are adjudicated delinquent 
or have been involved in, or are at high risk of involvement with, the 
juvenile justice system; unaccompanied children who entered ORR care 
after being separated from a parent or legal guardian by DHS; 
unaccompanied children who are victims of human trafficking or other 
crimes; unaccompanied children who are victims of worker exploitation; 
unaccompanied children who are at risk for labor trafficking; 
unaccompanied children enrolled in school who are chronically absent or 
retained at the end of their school year; and certain parolees. ORR 
typically considers certain parolees who are also unaccompanied 
children to include Unaccompanied Afghan Minors, Unaccompanied 
Ukrainian children, and other children who are in the UC program (such 
as those eligible for humanitarian parole). ORR notes that under this 
proposed section it may refer unaccompanied children for PRS, based on 
these concerns, even after they have been released. Such referrals may 
be made pursuant to ORR becoming aware of the situations listed above--
e.g., through post-release notifications of concern or calls to its 
national call center. In that event, ORR would require the relevant PRS 
provider to follow up with the child and assess whether PRS would be 
appropriate.
    Under proposed Sec.  410.1210(d), the PRS provider assigned to a 
particular unaccompanied child's case would assess the released 
unaccompanied child and sponsor for services needed and document the 
assessment. The assessment would be developmentally appropriate for the 
unaccompanied child, meaning the PRS provider would be required to 
tailor it to the released unaccompanied child's level of cognitive, 
physical, and emotional ability. Further, the assessment is proposed to 
be trauma-informed, as defined in proposed Sec.  410.1001, and 
consistent with the 6 Guidelines To A Trauma-Informed Approach 
developed by the CDC in collaboration with the SAMHSA.\99\ During the 
assessment, PRS providers should also identify any traumatic events and 
symptoms by using validated screening measures developed for use when 
screening and assessing trauma in children.
---------------------------------------------------------------------------

    \99\ CDC; SAMHSA. (2020, Sept. 17). 6 Guidelines To A Trauma-
Informed Approach. https://www.cdc.gov/orr/infographics/6_principles_trauma_info.htm. The six guidelines include: safety; 
trustworthiness and transparency; peer support; collaboration and 
mutuality; empowerment and choice; and cultural, historical, and 
gender issues.
---------------------------------------------------------------------------

    ORR notes that under existing policy, it provides Safety and Well 
Being Follow Up Calls (SWB calls) for all unaccompanied children who 
are released to sponsors. The purpose of SWB calls is to determine 
whether the child is still residing with the sponsor, is enrolled in or 
attending school, is aware of upcoming court dates, and is safe. ORR 
understands that these calls are authorized under 8 U.S.C. 
1232(c)(3)(B) as a form of follow-up services. Although ORR plans to 
continue conducting SWB calls under this proposed rule, nevertheless 
ORR does not propose to codify them, to preserve its flexibility in 
making continuous improvements to the reach and nature of the SWB calls 
themselves, as well as in integrating SWB calls into the suite of 
available PRS. ORR seeks public comment on whether it should consider 
codifying SWB calls in this proposed rule or in future rulemaking and 
whether ORR should integrate SWB call into PRS, including what factors 
ORR should consider in integrating SWB calls into PRS.
    In the final version of this rule, ORR is considering codifying a 
requirement that the PRS provider's assessment must include a 
recommendation regarding the ``level'' of PRS to be provided in direct 
response to the unaccompanied child's and the sponsor's needs, based on 
regular and repeated assessments. As described in proposed Sec.  
410.1210(b), PRS include services in a range of service areas. But ORR 
notes that unaccompanied children and sponsors receiving PRS do not 
necessarily require follow-up services in every service area; rather, 
unaccompanied children and sponsors who are referred for PRS have 
individual needs reflecting their own circumstances. Similarly, ORR 
believes that the appropriate level of involvement by the PRS provider 
in coordinating the delivery of those services should accord with the 
unaccompanied child's and/or sponsor's individual needs. Consistent 
with this approach, ORR currently provides two ``levels'' of PRS--Level 
One and Level Two. Level One services currently include assessments of 
the needs of unaccompanied children and their sponsors in accessing 
community services, including enrolling in school. Further, 
unaccompanied children and their sponsors receive Level One services if 
they do not require intensive case management as provided with Level 
Two PRS. Unaccompanied children and their sponsors receive Level Two 
services if they received Level One Services, and the PRS providers 
assessed them to need more intensive case management, or the 
unaccompanied children require a higher level of services as assessed 
during the unaccompanied children's release from ORR care (e.g., during 
the sponsor suitability assessment). Level Two services provide a 
higher level of engagement between the PRS provider and the 
unaccompanied child and sponsor and include regularly-scheduled home 
visits (at least once a month), ongoing needs assessments of the 
unaccompanied child, comprehensive case management, and access to 
therapeutic support services. ORR is considering updating the levels of 
PRS available to unaccompanied children and sponsors, from a framework 
that contains two levels of

[[Page 68935]]

PRS to a framework that contains three levels, and further, ORR is 
considering codifying this PRS level framework. To that end, ORR seeks 
input from the public on one potential way to update its policies to 
incorporate additional levels, as described below.
    ORR is considering requiring the PRS provider's assessment to 
include the level of PRS recommended to be provided be in direct 
response to the unaccompanied child's and the sponsor's needs, based on 
regular and repeated assessments. Under a revised framework for PRS 
levels, ORR is considering an option in which Level One PRS would 
include safety and well-being virtual check-ins; \100\ Level Two PRS 
would cover case management services; and Level Three PRS would include 
intensive home engagements. Additionally, ORR is considering requiring 
that a released unaccompanied child may receive one or more levels of 
PRS depending on the needs and circumstances of the unaccompanied child 
and sponsor. ORR is considering codifying a requirement that PRS 
providers would be required to furnish specific levels of PRS to 
unaccompanied children required to receive PRS under the TVPRA to 
ensure the safety and well-being of these unaccompanied children post-
release and their successful transition into the community. ORR is also 
considering time limits on the availability of PRS at each level that 
the PRS provider would furnish to the unaccompanied child and sponsor, 
which at a minimum would be furnished for six (6) months after release. 
For example, an unaccompanied child and sponsor referred to Level Three 
PRS would receive this level of service for at least six months after 
release, and ORR would subsequently assess every 30 days thereafter 
whether services are still needed. Further, ORR is considering 
requiring PRS providers to furnish levels of PRS to unaccompanied 
children required to receive PRS under the TVPRA and their sponsors for 
timeframes that may continue beyond the timeframes to be established 
for the levels. ORR notes that the timeframes for providing PRS would 
not extend past the circumstances in which PRS would be terminated as 
specified in proposed Sec.  410.1210(h).
---------------------------------------------------------------------------

    \100\ ORR notes that care provider facilities currently conduct 
safety and well-being follow-up calls 30 days after the 
unaccompanied child's release date.
---------------------------------------------------------------------------

    Under proposed Sec.  410.1210(e)(1), the PRS provider would, in 
consultation with the unaccompanied child and sponsor, decide the 
appropriate methods, timeframes, and schedule for ongoing contact with 
the released unaccompanied child and sponsor based on the level of need 
and support needed. PRS providers would be required in proposed Sec.  
410.1210(e)(2) to make, at a minimum, monthly contact with their 
assigned released unaccompanied children and their sponsors, either in 
person or virtually for six months after release. ORR is considering 
limiting the minimum monthly contact to unaccompanied children and 
sponsors receiving Level Two and/or Level Three PRS. ORR seeks public 
comment on this proposal including consideration for applicable factors 
that should be included in determining how often PRS providers would be 
required to contact their assigned unaccompanied children and sponsors 
after release. Under proposed Sec.  410.1210(e)(3), PRS providers would 
be required to document all ongoing check-ins and in-home visits as 
well as the progress and outcomes of those home visits.
    Under proposed Sec.  410.1210(f)(1), PRS providers would work with 
released unaccompanied children and their sponsors to ensure they can 
access community resources. ORR has opted not to enumerate ways that 
PRS providers could comply with this proposed requirement, because the 
nature of such assistance would vary by case. But as examples, ORR 
anticipates that PRS providers could assist unaccompanied children and 
sponsors with issues such as making appointments; communicating 
effectively with their service provider; requesting interpretation 
services, if needed; understanding a service's costs, if applicable; 
enrollment in school; for younger children, enrollment in child care 
where needed; for three-and four-year old children, enrollment in 
preschool where accessible; and other issues relevant to accessing 
relevant services. ORR also anticipates that PRS providers would assist 
the released unaccompanied children and sponsors in accessing the 
following community-based resources: legal services; education and 
English classes; youth- and community-based programming; medical care 
and behavioral healthcare; services related to the unaccompanied 
children's cultural and other traditions; and supporting the 
unaccompanied children's independence and integration.
    Under proposed Sec.  410.1210(f)(2), PRS providers would be 
required to document any community resource referrals and their 
outcomes.
    ORR proposes to codify at Sec.  410.1210(g) timeframes for when PRS 
providers would be required to start PRS. ORR notes that although the 
TVPRA mandates PRS in certain cases, it does not address the timing of 
providing PRS. ORR proposes to codify in Sec.  410.1210(g)(1) its 
existing policy from section 6.2.3 of the ORR Guide that specifies a 
timeframe for the delivery of PRS to released unaccompanied children 
who are required to receive PRS pursuant to the TVPRA at 8 U.S.C. 
1232(c)(3)(B). As proposed, PRS providers would be required, to the 
greatest extent practicable, to start services within two (2) days of 
the unaccompanied children's release from ORR care. PRS shall start no 
later than 30 days after release if PRS providers are unable to start 
services within two (2) days of release. Further, at Sec.  
410.1210(g)(2), ORR proposes to codify its policy from section 6.2.3 of 
the ORR Guide that for released unaccompanied children who are referred 
to PRS but who are not mandated to receive PRS following a home study, 
PRS providers would be required, to the greatest extent practicable, to 
start services within two (2) days of accepting a referral.
    Proposed Sec.  410.1210(h) describes the circumstances required for 
termination of PRS, which are based on ORR's existing policy at section 
6.2.3 of the ORR Guide. At Sec.  410.1210(h)(1), ORR would require that 
PRS for an unaccompanied child required to receive PRS pursuant to the 
TVPRA at 8 U.S.C. 1232(c)(3)(B) would continue until the unaccompanied 
child turns 18 or the unaccompanied child is granted voluntary 
departure, immigration status, or the child receives an order of 
removal. In the event the unaccompanied child is granted voluntary 
departure or receives an order of removal, PRS would be discontinued 
until the child is repatriated, and PRS would end once the 
unaccompanied child's case is closed. Under proposed Sec.  
410.1210(h)(2), ORR would require that PRS for an unaccompanied child 
receiving PRS, but who is not required to receive PRS following a home 
study, would continue for not less than six months or until the 
unaccompanied child turns 18, whichever occurs first; or until the PRS 
provider assesses the unaccompanied child and determines PRS are no 
longer needed, but in that case for not less than six months.
    Finally, proposed (i) describes records and reporting requirements 
for PRS providers. Keeping accurate and confidential records is 
important to ensure the security of any information the PRS provider 
documents about the unaccompanied child and sponsor. Accordingly, under 
proposed Sec.  410.1210(i)(1)(i), ORR would require

[[Page 68936]]

PRS providers to maintain comprehensive, accurate, and current case 
files that are kept confidential and secure, and that are accessible to 
ORR upon request. PRS providers would be required to keep all case file 
information together in the PRS provider's physical and electronic 
files. Section 410.1210(i)(1)(ii) would also require PRS providers to 
upload all documentation related to services provided to unaccompanied 
children and sponsors to ORR's case management system, as available, 
within seven (7) days of completion of the services.
    To prevent unauthorized access to electronic and paper records, 
proposed Sec.  410.1210(i)(2)(i) would require PRS providers establish 
and maintain written policies and procedures for organizing and 
maintaining the content of active and closed case files. Under proposed 
Sec.  410.1210(i)(2)(ii), prior to providing PRS, PRS providers would 
be required to have established administrative and physical controls to 
prevent unauthorized access to the records that include keeping 
sensitive health information in a locked space when not in use. ORR 
believes that any information collected from the unaccompanied child or 
sponsor should not be shared for any other purposes except for 
coordinating services for them. ORR therefore proposes to codify a 
requirement at Sec.  410.1210(i)(2)(iii) that PRS providers may not 
release records to any third party without the prior approval of ORR. 
If a PRS provider is no longer providing PRS for ORR, ORR proposes 
further that the PRS provider would be required to provide all active 
and closed case file records in their original format to ORR according 
to ORR's instructions.
    Proposed Sec.  410.1210(i)(3) sets forth requirements to protect 
the privacy of all unaccompanied children receiving PRS. Under proposed 
Sec.  410.1210(i)(3)(i), PRS providers would be required to have a 
written policy and procedure that protects the sensitive information of 
released unaccompanied children from access by unauthorized users, such 
as encrypting electronic communication (including, but not limited to, 
email and text messaging) containing sensitive healthcare or 
identifying information of released unaccompanied children. PRS 
providers would be required under proposed Sec.  410.1210(i)(3)(ii) to 
explain to released unaccompanied children and their sponsors how, 
when, and under what circumstances sensitive information may be shared 
during the course of their PRS. PRS providers would also be required to 
have appropriate controls on information sharing within the PRS 
provider network. ORR believes these controls are necessary to ensure 
that sensitive information is not exploited by unauthorized users to 
the detriment of the released unaccompanied children.
    ORR proposes that if a PRS provider is concerned about the 
unaccompanied child's safety and well-being, it must notify ORR and 
other appropriate agencies of such concerns. Proposed Sec.  
410.1210(i)(4)(i) covers the procedures and requirements regarding such 
notifications of concern (NOC). A PRS provider concerned about an 
unaccompanied child's safety and well-being would be required to 
document and report a NOC to ORR and, as applicable, to other 
investigative agencies (e.g., law enforcement or child protective 
services). Consistent with section 6.1 of the ORR Guide, ORR 
anticipates that situations when PRS providers would submit a NOC would 
include: an emergency; a current case of human trafficking; abuse, 
abandonment, neglect, and maltreatment; possible exploitative 
employment situation; kidnapping, disappearances, or a runaway; alleged 
criminal activity; child protection services involvement; potential 
fraud, such as document fraud or fees charged for services that are to 
be provided free of charge; unaccompanied child behavioral incident 
that raises safety concern; media attention; sponsor declined services; 
contact or involvement with organized crime; PRS provider unable to 
contact the unaccompanied child within 30 days of release; and when PRS 
provider is providing services to an unaccompanied child, loses contact 
with that child, and there are safety concerns.
    Additionally, under proposed Sec.  410.1210(i)(4)(ii), a PRS 
provider would be required to submit a NOC to ORR within 24 hours of 
first knowledge or suspicion of events raising concerns about the 
unaccompanied child's safety and well-being, and to document the NOC.
    Proposed Sec.  410.1210(i)(5) would codify requirements for PRS 
providers regarding case closures. ORR proposes that a case file be 
formally closed when the PRS are terminated by ORR, and that ORR would 
supply instructions, including relevant forms, that the PRS provider 
would be required to follow when closing out a case. For example, 
similar to current practice, ORR anticipates that it may require PRS 
providers to complete a case closure form and upload it to ORR's online 
case management system within 72 hours of a case's closure.

Subpart D--Minimum Standards and Required Services

Section 410.1300 Purpose of This Subpart
    In order to ensure that all unaccompanied children receive the same 
minimum services and at least a specified level of quality of those 
services, ORR is proposing a set of minimum standards and required 
services. ORR proposes to establish these standards and requirements 
consistent with its authorities at 6 U.S.C. 279(b)(1) (making ORR 
responsible for, among other things, ensuring that the interest of 
unaccompanied children are considered in decisions and actions relating 
to their care and custody, implementing policies with respect to the 
care and placement of unaccompanied children, and overseeing the 
infrastructure and personnel of facilities in which unaccompanied 
children reside), and 8 U.S.C. 1232(c) (requiring HHS to establish 
policies and programs to ensure that unaccompanied children are 
protected from certain risks, and requiring placement of unaccompanied 
children in the least restrictive setting that is in their best 
interest). As described at proposed Sec.  410.1300, the purpose of this 
subpart would be to establish the standards and services that care 
provider facilities must meet and provide in keeping with the 
principles of treating unaccompanied children in ORR care with dignity, 
respect and special concern for their particular vulnerability. ORR 
welcomes public comment on this proposal.
Section 410.1301 Applicability of This Subpart
    ORR believes that care provider facilities serving unaccompanied 
children should be required to meet standards and requirements tailored 
to their particular placement setting so that children receive at least 
the same standard of care within a given placement setting. In proposed 
Sec.  410.1301, ORR proposes to apply these care provider facility 
standards to all standard programs and to non-standard programs where 
specified.
Section 410.1302 Minimum Standards Applicable to Standard Programs
    In proposed Sec.  410.1302, ORR proposes minimum standards of care 
and services applied to standard programs; these standards closely 
reflect the minimum standards of care listed in Exhibit 1 of the FSA, 
which ORR believes are consistent with the concern for unaccompanied 
children's interests expressed in the HSA and TVPRA.

[[Page 68937]]

    Under proposed Sec.  410.1302(a), ORR would require standard 
programs be licensed by an appropriate state or Federal agency, or meet 
other requirements specified by ORR if licensure is unavailable in a 
state to programs providing services to unaccompanied children, to 
provide residential, group, or foster care services for dependent 
children. ORR is including this requirement to ensure unaccompanied 
children are cared for in facilities that are safe and sanitary, and 
that the facilities have needed oversight. Additionally, because there 
are other state and local laws and other ORR requirements that are 
critical to ensuring the safe and sanitary conditions at care provider 
facilities, ORR would further require, in proposed Sec.  410.1302(b), 
that standard programs comply with all applicable state child welfare 
laws and regulations and all state and local building, fire, health and 
safety codes, or other requirements specified by ORR if licensure is 
unavailable in their state to standard programs providing services to 
unaccompanied children. In many instances, ORR requirements exceed 
requirements of state law, and a provider can comply with both without 
acting inconsistent with either. If there is a potential conflict 
between ORR's regulations and state law, ORR will review the 
circumstances to determine how to ensure that it is able to meet its 
statutory responsibilities. It is important to note, however, that if a 
State law or license, registration, certification, or other requirement 
conflicts with an ORR employee's duties within the scope of their ORR 
employment, the ORR employee is required to abide by their Federal 
duties.
    In order to ensure that each unaccompanied child receives the same 
minimum services that are necessary to support their safety and 
wellbeing for daily living while in ORR care, under proposed Sec.  
410.1302(c), ORR would establish that the services that standard 
programs must provide or arrange for each unaccompanied child in care. 
Under proposed Sec.  410.1302(c)(1), ORR would establish minimum 
requirements related to the provision of proper physical care and 
maintenance, including suitable living accommodations, food, drinking 
water, appropriate clothing, personal grooming and hygiene items, 
access to toilets and sinks, adequate temperature control and 
ventilation, and adequate supervision to protect unaccompanied children 
from others. ORR is additionally proposing to require that food be of 
adequate variety, quality, and in sufficient quantity to supply the 
nutrients needed for proper growth and development according to the 
USDA Dietary Guidelines for Americans,\101\ and appropriate for the 
child and activity level, and that drinking water is always available 
to each unaccompanied child.
---------------------------------------------------------------------------

    \101\ Dietary Guidelines for Americans. Available at https://www.dietaryguidelines.gov/current-dietary-guidelines.
---------------------------------------------------------------------------

    ORR believes that the unique needs and background of each 
unaccompanied child should be assessed by standard programs to ensure 
that these needs are being addressed and supported by the standard 
program. Therefore, under proposed Sec.  410.1302(c)(2), and consistent 
with ORR's existing policy and practice, ORR would require that each 
unaccompanied child receive an individualized needs assessment that 
includes: various initial intake forms; essential data relating to 
identification and history of the unaccompanied child and their family; 
identification of any special needs the unaccompanied child may have, 
including any specific problems that appear to require immediate 
intervention; an education assessment and plan; whether an indigenous 
language speaker; an assessment of family relationships and interaction 
with adults, peers and authority figures; a statement of religious 
preference and practice; assessment of personal goals, strengths, and 
weaknesses; and identifying information regarding immediate family 
members, other relatives, or friends who may be residing in the United 
States and may be able to assist in the safe and timely release of the 
unaccompanied child to a sponsor. ORR notes that the use of ``special 
needs'' in this paragraph is being included to match Appendix 1 of the 
FSA; it is ORR's preference, for the reasons articulated in the 
preamble to Sec. Sec.  410.1103 and 410.1106, to update the language to 
``individualized needs,'' and solicits comments on such substitution.
    Access to education services for unaccompanied children in care 
from qualified professionals is critical to avoid lost instructional 
time while in care and ensure unaccompanied children are receiving 
appropriate social, emotional and academic supports and services. Under 
proposed Sec.  410.1302(c)(3), ORR would require standard programs to 
provide educational services appropriate to the unaccompanied child's 
level of development, communication skills, and disability, if 
applicable. ORR believes that this requirement helps ensure that 
educational services are tailored to meet the educational and 
developmental needs of unaccompanied children, including children with 
disabilities who may require program modifications (such as specialized 
instruction), reasonable modifications, or auxiliary aids and services. 
ORR is also proposing that educational services are required to take 
place in a structured classroom setting, Monday through Friday, which 
concentrate primarily on the development of basic academic competencies 
and secondarily on English Language Training (ELT). The educational 
services must include instruction and educational and other reading 
materials in such languages as needed. Basic academic areas must 
include science, social studies, math, reading, writing and physical 
education. The services must provide unaccompanied children with 
appropriate reading materials in languages other than English and 
spoken by the unaccompanied children in care for use during their 
leisure time. ORR notes that under 45 CFR 85.51, care provider 
facilities shall also ensure effective communication with unaccompanied 
children with disabilities. This means the communication is as 
effective as communication with children without disabilities in terms 
of affording an equal opportunity to participate in the UC Program and 
includes furnishing appropriate auxiliary aids and services such as 
qualified sign language interpreters, Braille materials, audio 
recordings, note-takers, and written materials, as appropriate for the 
unaccompanied child. ORR also notes that it is specifying additional 
staffing requirements inclusive of the provision of educational and 
other services proposed under Sec.  410.1305.
    ORR strongly believes that time for recreation is essential to 
supporting the health and wellbeing of unaccompanied children. Under 
proposed Sec.  410.1302(c)(4), ORR would require standard programs to 
have a recreation and leisure time plan that includes daily outdoor 
activity, weather permitting, and at least one hour per day of large 
muscle activity and one hour per day of structured leisure time 
activities, which does not include time spent watching television. 
Activities must be increased to at least three hours on days when 
school is not in session.
    The psychological and emotional wellbeing of unaccompanied children 
are an important component of their overall health and wellbeing, and 
therefore, consistent with existing policy and practice, ORR is 
proposing that these needs must be met by standard programs. Under 
proposed Sec.  410.1302(c)(5), ORR would require

[[Page 68938]]

standard programs to provide counseling and mental health supports to 
unaccompanied children that includes at least one individual counseling 
session per week conducted by certified counseling staff with the 
specific objectives of reviewing the unaccompanied child's progress, 
establishing new short and long-term objectives, and addressing both 
the developmental and crisis-related needs of each unaccompanied child. 
Group counseling sessions are another way that the psychological and 
emotional wellbeing of unaccompanied children can be supported while in 
ORR care. Therefore, ORR is proposing to require under Sec.  
410.1302(c)(6) that group counseling sessions are provided at least 
twice a week. These sessions can be informal and can take place with 
all unaccompanied children present, providing a time when new 
unaccompanied children are given the opportunity to get acquainted with 
the staff, other children, and the rules of the program. Group 
counseling sessions can provide an open forum where each unaccompanied 
child has an opportunity to speak and discuss what is on their minds 
and to resolve problems. Group counseling sessions can be informal and 
designed so that unaccompanied children do not feel pressured to 
discuss their private issues in front of other children. Daily program 
management may be discussed at group counseling sessions, allowing 
unaccompanied children to be part of the decision-making process 
regarding recreational and other program activities, for example. In 
addition, ORR notes that additional mental health and substance use 
disorder treatment services are provided to unaccompanied children 
based on their medical needs, including specialized care, as 
appropriate, and in person and virtual options, depending on what best 
fits the child's needs.
    Under proposed Sec.  410.1302(c)(7), ORR would require that 
unaccompanied children receive acculturation and adaptation services 
that include information regarding the development of social and inter-
personal skills that contribute to those abilities necessary to live 
independently and responsibly. ORR believes these services are 
important to supporting the social development and meeting the cultural 
needs of unaccompanied children in standard programs.
    Establishing an admissions process that includes assessments that 
unaccompanied children should receive upon admission to a standard 
program helps ensure the immediate needs of unaccompanied children are 
met in a consistent way, that other needs are identified and can be 
supported while in ORR care, and that all unaccompanied children are 
provided a standardized orientation and information about their care in 
ORR custody. ORR is therefore proposing to require in proposed Sec.  
410.1302(c)(8)(i) that upon admission standard programs must address 
unaccompanied children's immediate needs for food, hydration, and 
personal hygiene needs including the provision of clean clothing and 
bedding. Under proposed Sec.  410.1302(c)(8)(ii), standard programs 
must conduct an initial intakes assessment covering biographic, family, 
migration, health history, substance use, and mental health history of 
the unaccompanied child. If the unaccompanied child's responses to 
questions during any examination or assessment indicate the possibility 
that the unaccompanied child may have been a victim of human 
trafficking or labor exploitation, the care provider facility must 
notify the ACF Office of Trafficking in Persons within twenty-four (24) 
hours. Care providers must also provide unaccompanied children with a 
comprehensive orientation in formats accessible to all children 
regarding program intent, services, rules (provided in writing and 
orally), expectations, the availability of legal assistance, 
information about U.S. immigration and employment/labor laws, and 
services from the Office of the Ombuds that are proposed in Sec.  
410.2002 in simple, non-technical terms and in a language and manner 
that the child understands, if possible, under proposed Sec.  
410.1302(c)(8)(iii). In conjunction with services supporting visitation 
and contact with family members required under proposed Sec.  
410.1302(c)(10), newly admitted unaccompanied children would receive 
assistance with contacting family members, following ORR guidance and 
the standard program's internal safety procedures under proposed Sec.  
410.1302(c)(8)(iv). ORR notes that medical needs upon admission are 
required to be assessed comprehensively under Sec.  410.1307. Finally, 
ORR notes that standard programs are required under existing Sec.  
411.33 to provide orientation information related to sexual abuse and 
sexual harassment and must follow 45 CFR part 411, subpart E, regarding 
assessment of an unaccompanied child's risk of sexual victimization and 
abusiveness.
    ORR believes the cultural, religious, and spiritual needs of 
unaccompanied children should be provided for while in ORR care. 
Therefore, under proposed Sec.  410.1302(c)(9) ORR would require that 
standard programs, whenever possible, provide access to religious 
services of an unaccompanied child's choice, celebrating culture-
specific events and holidays, being culturally aware in daily 
activities as well as food menus, choice of clothing, and hygiene 
routines, and covering various cultures in educational services. ORR 
notes that it operates the UC Program in compliance with the 
requirements of the Religious Freedom Restoration Act and other 
applicable Federal conscience protections, as well as all other 
applicable Federal civil rights laws and applicable HHS 
regulations.\102\
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    \102\ See 45 CFR part 87.
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    Under proposed Sec.  410.1302(c)(10), ORR would require standard 
programs to provide unaccompanied children with visitation and contact 
with family members (regardless of their immigration status) which is 
structured to encourage such visitation, such as offering visitation 
and contact at regular, scheduled intervals throughout the week. 
Standard programs should provide unaccompanied children with at least 
15 minutes of phone or video contact three times a week with parents 
and legal guardians, other family members, and caregivers located in 
the United States and abroad, in a private space that ensures 
confidentiality and at no cost to the unaccompanied child, parent, 
legal guardian, family member, or caregiver. ORR emphasizes that this 
is the minimum amount of phone or video time that standard programs 
must provide to unaccompanied children and that standard programs may 
provide additional time over and above this requirement, like daily 
phone or videos calls. Standard programs would also be required to 
respect the unaccompanied children's privacy during visitation while 
reasonably preventing unauthorized release of the unaccompanied 
children. ORR notes that standard programs should also encourage in-
person visitation between unaccompanied children and parents, legal 
guardians, family members, or caregivers (unless there is a documented 
reason to believe there is a safety concern) and have policies in place 
to ensure the safety and privacy of unaccompanied children and staff, 
such as an alternative public place for visits.
    To facilitate the safe and timely release of unaccompanied children 
to sponsors or their family, under proposed Sec.  410.1302(c)(11) ORR 
would require standard programs to assist with family unification 
services designed to identify and verify relatives in the

[[Page 68939]]

United States as well as in foreign countries and assistance in 
obtaining legal guardianship when necessary for release of the 
unaccompanied children.
    Under proposed Sec.  410.1302(c)(12), ORR would require standard 
programs to provide unaccompanied children with information on legal 
services, including the availability of free legal assistance, and that 
they may be represented by counsel at no expense to the government; the 
right to a removal hearing before an immigration judge; the ability to 
apply for asylum with United States Citizenship and Immigration 
Services (USCIS) in the first instance; and the ability to request 
voluntary departure in lieu of removal. These services are foundational 
to ensuring that unaccompanied children are aware of their legal rights 
and have access to legal resources.
    Finally, under proposed Sec.  410.1302(c)(13), ORR would require 
standard programs to provide information about U.S. child labor laws 
and education around permissible work opportunities in a manner that is 
sensitive to the age, culture and native language of each unaccompanied 
child.
    Cultural competency among ORR standard programs is considered an 
important component of a successful program by ORR and under the FSA. 
Under proposed Sec.  410.1302(d), standard programs are required to 
deliver the services included in Sec.  410.1302(c) in a manner that is 
sensitive to the age, culture, native language, and the complex needs 
of each unaccompanied child.
    Under proposed Sec.  410.1302(e), standard programs would be 
required to develop a comprehensive and realistic individual service 
plan for each unaccompanied child in accordance with the child's needs 
as determined by the individualized needs assessment. Individual plans 
would be implemented and closely coordinated through an operative case 
management system. To ensure that service plans are addressing 
meaningful and appropriate goals in partnership with unaccompanied 
children, service plans should identify individualized, person-centered 
goals with measurable outcomes and note steps or tasks to achieve the 
goals, be developed with input from the children, and be reviewed and 
updated at regular intervals. Under current practice, this is every 30 
days the child is in custody following the child's case review. 
Unaccompanied children aged 14 and older should be given a copy of the 
plan, and unaccompanied children under age 14 should be given a copy of 
the plan when appropriate for that particular child's development. 
Individual plans shall be in that child's native language or other mode 
of auxiliary aid or services and/or by the use of clear, easily 
understood language, using concise and concrete sentences and/or visual 
aids and check for understanding where appropriate.
Section 410.1303 Reporting, Monitoring, Quality Control, and 
Recordkeeping Standards
    ORR conducts ongoing and multi-layered monitoring of all components 
of care provider facilities' activities. These efforts ensure 
consistent oversight, accountability standards and put in place 
checkpoints at regular intervals, consistent with ORR's 
authorities.\103\ Proposed Sec.  410.1303 describes how ORR would 
ensure that care provider facilities are providing services as required 
by these regulations. Under proposed Sec.  410.1303(a), ORR would 
monitor all care provider facilities for compliance with the terms of 
the regulations in parts 410 and 411. ORR is proposing the types of 
monitoring activities that it would perform: desk monitoring, routine 
site visits, site visits in response to ORR or other reports, and 
monitoring visits. Desk monitoring would include ongoing oversight from 
ORR headquarters. Examples of desk monitoring include monthly check-ins 
by ORR Federal staff with the care provider facility, regular record 
and report reviews, financial/budget statements analysis, ongoing 
reviews of staff background checks and vetting of employees, 
subcontractors, and grantees, and communications review. Routine site 
visits would be day-long visits to facilities to review compliance for 
policies, procedures, and practices and guidelines. Typically, routine 
site visits occur on a once or twice monthly basis, both unannounced 
and announced. Site visits in response to ORR or other requests would 
be visits for a specific purpose or investigation (e.g., regarding a 
corrective action plan). Routine monitoring visits would be conducted 
as part of comprehensive reviews of all care provider facilities. 
Typically, these may be week-long visits and are usually conducted by 
ORR not less than every two (2) years.
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    \103\ See, e.g., 6 U.S.C. 279(b)(1) (describing ORR 
responsibilities including implementing policies with the respect to 
the care of unaccompanied children, ensuring the interests of 
unaccompanied children are considered, and overseeing the 
infrastructure and personnel of facilities where unaccompanied 
children reside).
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    When care provider facilities are out of compliance with ORR 
policies and procedures, ORR issues a corrective action. A list of 
corrective actions may be communicated by ORR to care provider 
facilities, for example, as part of a report provided to the care 
provider facility after a monitoring visit. Under proposed Sec.  
410.1303(b), ORR would issue corrective actions to care provider 
facilities when it finds that a care provider facility is out of 
compliance with its regulations and sub-regulatory policies, including 
guidance and terms of its contracts and cooperative agreements. If ORR 
finds a care provider facility to be out of compliance, under this 
paragraph it would communicate the concerns in writing to the care 
provider facility's facility director or appropriate person through a 
written monitoring or site visit report, with a list of corrective 
actions and child welfare best practice recommendations, as 
appropriate. ORR would request a response to the corrective action 
findings from the care provider facility and specify a time frame for 
resolution and the disciplinary consequences for not responding within 
the required timeframes. Examples of disciplinary consequences would 
include stopping placements at the care provider facility until all 
corrective actions have been addressed or possible non-renewal of the 
grant for the program, as appropriate.\104\
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    \104\ ORR also notes that to the extent that a care provider has 
acted contrary to the terms and conditions of its funding, they may 
be subject to consequences described at 45 CFR part 75, subpart D.
---------------------------------------------------------------------------

    Proposed Sec.  410.1303(c) describes additional monitoring 
activities that ORR would conduct at secure facilities. In addition to 
other monitoring activities, consistent with existing policy and 
practice, ORR would review individual unaccompanied children's case 
files to ensure unaccompanied children placed in secure facilities are 
assessed at least every 30 days for the possibility of a transfer to a 
less restrictive setting.
    Proposed Sec.  410.1303(d) describes monitoring of long-term home 
care and transitional home care facilities. ORR proposes that long-term 
and transitional foster care homes be subject to the same types of 
monitoring as other ORR care, but tailored to the foster care 
arrangement. For example, under proposed Sec.  410.1303(d), during on 
site monitoring visits, ORR would be able to schedule a visit with the 
staff of a particular home care facility to conduct a first-hand 
assessment of the home environment and the care provider's oversight of 
the home. In addition to ORR monitoring, ORR proposes that ORR long-
term home care and transitional home care facilities that provide 
services through a sub-contract or sub-grant be responsible for

[[Page 68940]]

conducting annual monitoring or site visits of the sub-recipient, as 
well as weekly desk monitoring. Finally, ORR proposes to require that 
care providers provide the findings of such reviews to the designated 
ORR point of contact.
    In proposed Sec.  410.1303(e), ORR proposes that the care provider 
facilities develop quality assurance assessment procedures that 
accurately measure and evaluate service delivery in compliance with the 
requirements of this part, as well as those delineated in 45 CFR part 
411.
    Under proposed Sec.  410.1303(f), ORR would establish care provider 
facility reporting requirements. The purpose of such reporting is to 
help ensure that incidents involving unaccompanied children are 
documented and responded to in a way that protects the best interests 
of children in ORR care, including their safety and well-being. 
Requirements on reporting can increase safety for children in ORR's 
care, and promote transparency, accuracy, and improvement in the care 
provided. ORR would require care provider facilities to report any 
emergency incident, significant incident, or program-level event to 
ORR, and in accordance with any applicable Federal, State, and local 
reporting laws. Accurately documenting incidents and program-level 
events is essential to ensuring the health and wellbeing of all 
unaccompanied children in care.
    ORR proposes under Sec.  410.1303(f)(1) to require that care 
provider facilities document incidents and events with sufficient 
detail to ensure that any relevant entity can facilitate any required 
follow-up; document incidents in a way that is trauma-informed and 
grounded in child welfare best practices; and update the report with 
any findings or documentation that are made after the fact. 
Additionally, proposed Sec.  410.1303(f)(2) states that care provider 
facilities must never: fabricate, exaggerate, or minimize incidents; 
use disparaging or judgmental language about unaccompanied children in 
incident reports; use incident reporting or the threat of incident 
reporting as a way to manage the behavior of unaccompanied children or 
for any other illegitimate reason. By ``illegitimate reason,'' ORR 
means a reason that is unrelated to the purposes of incident reporting, 
which as stated above are to help ensure that incidents involving 
unaccompanied children are documented and responded to in a way that 
protects the best interest of children in ORR care, including their 
safety and well-being. Further, illegitimate reasons include those that 
would be inconsistent with ORR's statutory responsibilities (e.g., to 
ensure that the interest of the child are considered in decisions and 
actions relating to the care and custody of an unaccompanied child, to 
place unaccompanied children in the least restrictive setting that is 
in the best interest of the child); or inconsistent with these proposed 
regulations and sub-regulatory policies, including ORR guidance and the 
terms of its contracts or cooperative agreements.
    ORR is proposing limitations on how certain reports may be used by 
ORR or care provider facilities. ORR believes that these limitations 
will protect the best interests of unaccompanied children and put their 
safety first as well as help ensure that reports do not become a 
potential hindrance to placement in the least restrictive setting. 
Under proposed Sec.  410.1303(f)(3), ORR would prohibit care provider 
facilities from using reports of significant incidents as a method of 
punishment or threat towards any child in ORR care for any reason. 
Under proposed Sec.  410.1303(f)(4), ORR is proposing that the 
existence of a report of a significant incident may not be used by ORR 
as a basis for an unaccompanied child's step up to a restrictive 
placement or as the sole basis for a refusal to step a child down to a 
less restrictive placement. Care provider facilities would likewise be 
prohibited from using the existence of a report of a significant 
incident as a basis for refusing an unaccompanied child's placement in 
their facilities. Reports of significant incidents could be used as 
examples or citations of concerning behavior; however, the existence of 
a report itself would not be sufficient for a step up, a refusal to 
step down, or a care provider facility to refuse a placement.
    ORR notes that 45 CFR part 411, subpart G, requires reporting to 
ORR of any allegation, suspicion, or knowledge of sexual abuse, sexual 
harassment, inappropriate sexual behavior, and Staff Code of Conduct 
\105\ violations occurring in ORR care, along with any retaliatory 
actions resulting from reporting such incidents; ORR also notes that 
part 411 requires compliance with required staff background checks at 
subpart B.
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    \105\ ORR Unaccompanied Children Policy Guide 4.3.5. Available 
at https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide-section-4#4.3.5.
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    ORR also notes that in proposed Sec.  410.1307(c) ORR proposes to 
require that ORR monitor compliance with the requirements to issue 
required notices and documentation for medical services requiring 
heightened ORR involvement, as well as the other listed requirements. 
ORR proposes to initiate a Graduated Corrective Action Plan, with 
reporting requirements increasing along with oversight measures if 
programs remain non-compliant. Please see proposed Sec.  410.1307(c) 
for more discussion.
    Safeguarding and maintaining the confidentiality of unaccompanied 
children's case file records is critical to carrying out ORR's 
responsibilities under the HSA and the TVPRA. The HSA places 
responsibility on ORR for implementing policies with respect to the 
care and placement of unaccompanied children, ensuring that the 
interests of the child are considered in decisions and actions relating 
to their care and custody, overseeing the infrastructure and personnel 
of facilities in which unaccompanied children reside, and maintaining 
data on unaccompanied children.\106\ Additionally, the TVPRA places 
responsibility for the care and custody of unaccompanied children on 
HHS and requires 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.'' \107\ These program statutes recognize that ORR is 
responsible for maintaining unaccompanied children's records and data 
and that unaccompanied children are vulnerable persons, and therefore, 
the privacy and confidentiality of their records is paramount. 
Unaccompanied children may have histories of abuse, may be seeking 
safety from threats of violence, or may have been trafficked or 
smuggled into the U.S. Accordingly, HHS' longstanding policy is to 
protect from disclosure information about unaccompanied children that 
could compromise the children's and sponsors' location, identity, 
safety, and privacy.
---------------------------------------------------------------------------

    \106\ See 6 U.S.C. 279(b).
    \107\ See 8 U.S.C. 1232(c)(1); see also id. at 1232(b).
---------------------------------------------------------------------------

    Consistent with its statutory responsibilities, ORR proposes in 
Sec.  410.1303(g) that all care provider facilities must develop, 
maintain, and safeguard the individual case file records of 
unaccompanied children. The provisions in Sec.  410.1303(g) would apply 
to all care provider facilities responsible for the care and custody of 
unaccompanied children, whether the program is a standard program or 
not. ORR notes that under its current policies the records of 
unaccompanied children generated in the course of post-

[[Page 68941]]

release services (PRS) are not always considered to be included in the 
individual case files of unaccompanied children. However, under this 
proposed rule, ORR would consider all unaccompanied children's records, 
including those produced for PRS, to be included in the individual case 
file records of unaccompanied children, whether generated while the 
child is in ORR custody or after release to their sponsor.\108\ PRS 
records are created by, or on behalf of, ORR and assist ORR in 
coordinating supportive services for the child and their sponsor in the 
community where the child resides, as authorized under 8 U.S.C. 
1232(c)(3)(B), which provides HHS authority to ``conduct follow-up 
services in cases involving children with mental health or other needs 
who could benefit from ongoing assistance from a social welfare 
agency.'' ORR facilitates the provision of PRS services through its 
network of PRS providers under cooperative agreements with ORR.
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    \108\ See 8 FR 46682 (July 18, 2016) (stating that ``[t]he case 
file contains information that is pertinent to the care and 
placement of unaccompanied children, including . . . post-release 
service records[.]'').
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    Under proposed Sec.  410.1303(g)(1), ORR would require care 
provider facilities and PRS providers to maintain the confidentiality 
of case file records and protect them from unauthorized use or 
disclosure. ORR also proposes in Sec.  410.1303(g)(2) that the records 
in unaccompanied children's case files are the property of ORR, whether 
in the possession of ORR a care provider facility, or PRS provider, 
including those entities that receive funding from ORR through 
cooperative agreements, and care provider facilities and PRS providers 
may not release unaccompanied children's case file records or 
information contained in the case files for purposes other than program 
administration without prior approval from ORR. This provision allows 
ORR to ensure that disclosure of unaccompanied children's records is 
compatible with program goals, to ensure the safety and privacy of 
unaccompanied children, to not discourage unaccompanied children from 
disclosing information relevant to their care and placement, and to 
prevent potential sponsors from being deterred from sponsoring 
unaccompanied children. Further, under Sec.  410.1303(g)(3), ORR would 
require care provider facilities and PRS providers to provide the case 
files of unaccompanied children to ORR immediately upon ORR's request.
    Under Sec.  410.1303(g)(4), ORR proposes that employees, former 
employees, or contractors of a care provider facility or PRS provider 
must not disclose unaccompanied children's case file records or provide 
information about unaccompanied children, their sponsors, family or 
household members to anyone except for purposes of program 
administration, without first providing advance notice to ORR of the 
request, allowing ORR to ensure that disclosure of unaccompanied 
children's information is compatible with program goals and ensures the 
safety and privacy of unaccompanied children. Safeguarding 
unaccompanied children's information is consistent with ORR's 
responsibilities under its program statutes, including 8 U.S.C. 
1232(c)(1), which requires the Secretary to establish ``policies and 
programs reflecting best practices in witness security programs,'' and 
House Report 116-450 recommendations to restrict sharing certain 
information with other Federal agencies. A request for UC case file 
information must be made directly to ORR, allowing ORR to consider 
whether disclosure meets these requirements, is in the best interest of 
the unaccompanied child, safeguards the unaccompanied child's and their 
sponsor's, family and household member's personally identifiable and 
protected health information, and is compatible with statutory program 
goals and all applicable Federal laws and regulations.
    Finally, for purposes of facilitating efficient program 
administration, ORR policy is to pre-approve certain limited 
disclosures by ORR grantees and contractors such as (1) registration 
for school and for other routine educational purposes; (2) routine 
medical, dental, or mental health treatment; (3) emergency medical 
care; (4) to obtain services for unaccompanied children in accordance 
with ORR policies; and (5) pursuant to all available whistleblower 
protection laws. This pre-approved disclosure policy allows ORR to 
protect the privacy and safety of each unaccompanied child while also 
ensuring that certain routine and emergency services and treatment are 
provided expeditiously without waiting for approval from ORR.
    Proposed Sec.  410.1303(h) would require standard programs to 
maintain adequate records and make regular reports as required by ORR 
that permit ORR to monitor and enforce the regulations in parts 410 and 
411 and other requirements and standards as ORR may determine are in 
the best interests of each unaccompanied child. ORR welcomes public 
comment on these proposals.
Section 410.1304 Behavior Management and Prohibition on Seclusion and 
Restraint
    Proposed Sec.  410.1304 describes the requirements for behavior 
management and the prohibition on seclusion and restraint. ORR proposes 
these requirements consistent with its statutory responsibilities to 
implement policies with respect to the care and placement of 
unaccompanied children, to place unaccompanied children in the least 
restrictive setting available that is in their best interest, and to 
ensure the interest of unaccompanied children are considered in 
decisions and actions related to their care and custody. ORR 
understands that its responsibilities apply to each unaccompanied child 
in its care, including unaccompanied children who are subject to 
behavioral interventions, as well as to other unaccompanied children 
placed at the same care provider facility as an unaccompanied child who 
are subject to behavioral interventions.
    Effective behavior management is critical to supporting the health, 
safety, and wellbeing of unaccompanied children in ORR care and can 
help prevent emergencies and safety situations. Consistent with ORR's 
statutory responsibilities, proposed Sec.  410.1304(a) would 
incorporate FSA paragraph 11 requirements and child welfare best 
practices by requiring care provider facilities to have behavior 
management strategies that include techniques for care provider 
facilities to follow. Under proposed Sec.  410.1304(a), care provider 
facilities must develop behavior management strategies that include 
evidence-based, trauma-informed, and linguistically responsive program 
rules and behavior management policies that take into consideration the 
range of ages and maturity of unaccompanied children in the program and 
that are culturally sensitive to the needs of each unaccompanied child. 
Examples of evidence-based standards and approaches may include setting 
clear and healthy expectations and limits for their behaviors and the 
behaviors of others, creating a healthy structured environment with 
routines and schedules, utilizing positive reinforcement strategies and 
avoiding negative reinforcement strategies, and fostering a supportive 
environment that encourages cooperation, problem-solving, healthy de-
escalation strategies, and positive behavioral management skills. 
Further, ORR proposes that the behavior management strategies must not 
use any practices that involve negative reinforcement or involve

[[Page 68942]]

consequences or measures that are not constructive or not logically 
related to the behavior being regulated. This would include, as 
proposed under Sec.  410.1304(a)(1), prohibiting the use or threatened 
use of corporal punishment, significant incident reports as punishment, 
and unfavorable consequences related to family/sponsor unification or 
legal matters (e.g., immigration, asylum). It would also include 
prohibiting the use of use forced chores or activities that serves no 
purpose except to demean or humiliate an unaccompanied child, forced 
physical movement, such as push-ups and running, or uncomfortable 
physical positions as a form of punishment or humiliation; search an 
unaccompanied child's personal belongings solely for the purpose of 
behavior management, and medical interventions that are not prescribed 
by a medical provider acting within the usual course of professional 
practice for a medical diagnosis or that increase risk of harm to the 
unaccompanied child or others. Under proposed Sec.  410.1304(a)(2), ORR 
would require that any sanctions employed not adversely affect either 
an unaccompanied child's health or physical, emotional, or 
psychological well-being; or deny an unaccompanied child meals, 
hydration, sufficient sleep, routine personal grooming activities, 
exercise (including daily outdoor activity), medical care, 
correspondence or communication privileges, or legal assistance. ORR 
notes that under proposed Sec.  410.1305 it would require training for 
care provider facility staff on the behavior management strategies, 
including the use of de-escalation strategies. Under proposed Sec.  
410.1304(a)(3), ORR is prohibiting the use prone physical restraints, 
chemical restraints, or peer restraints for any reason in any care 
provider facility setting.
    Under proposed Sec.  410.1304(b), involvement of law enforcement 
would be a last resort and a call by a care provider facility to law 
enforcement may trigger an evaluation of staff involved regarding their 
qualifications and training in trauma-informed, de-escalation 
techniques. ORR notes that calls to law enforcement are not considered 
a behavior management strategy, and care provider facilities are 
expected to apply other means to de-escalate concerning behavior. But 
in some cases, such as emergencies or where the safety of unaccompanied 
children or staff are at issue, care provider facilities may need to 
call 9-1-1. ORR also notes that proposed Sec.  410.1302(f) describes 
requirements for care provider facilities regarding the sharing of 
information about unaccompanied children. Additionally, because ORR 
would like to ensure law enforcement is called in response to an 
unaccompanied child's behavior only as a last resort in emergencies or 
where the safety of unaccompanied children or staff are at issue, ORR 
is requesting comment on the process ORR should require care provider 
facilities to follow before engaging law enforcement, such as the de-
escalation strategies that must first be attempted and the specific 
sets of behaviors exhibited by unaccompanied children that warrant 
intervention from law enforcement.
    Proposed Sec.  410.1304(c) would prohibit standard programs and 
RTCs from the use of seclusion as a behavioral intervention. ORR notes 
that this prohibition on the use of seclusion specifically relates to 
its potential use as a behavioral intervention, and not to a medical 
need for isolation or quarantine, as discussed in Sec.  
410.1307(a)(10). Standard programs and RTCs would also be prohibited 
from using restraints, except as described at proposed Sec.  
410.1304(d) and (f). In emergency safety situations only, ORR is 
proposing that standard programs and RTCs are permitted to use personal 
restraint under Sec.  410.1304(d). ORR believes that emergency safety 
situations should be prevented wherever possible and that personal 
restraint should only be used after de-escalation strategies and less 
restrictive approaches have been attempted and failed. As such, ORR 
emphasizes its proposed requirements under Sec.  410.1304(a) that 
behavior management strategies used by care provider facilities be 
evidence-based, trauma-informed, and linguistically responsive. ORR 
further emphasizes its requirements under proposed Sec.  410.1305 that 
staff must be trained in these behavior management strategies, 
including de-escalation techniques,
    In secure facilities, not including RTCs, there may be situations 
where an unaccompanied child becomes a danger to themselves, other 
unaccompanied children, care provider facility staff, or property. As a 
result, secure facilities may need to employ more restrictive forms of 
behavior management than shelters or other types of care provider 
facilities in emergency safety situations or during transport to or at 
immigration court or asylum interviews when there are certain imminent 
safety concerns. ORR notes that under proposed Sec.  410.1303(f) and 
ORR's current policy, all care provider facilities, regardless of 
setting, are required to report any emergency incident, significant 
incident, or program-level event to ORR, and in accordance with any 
applicable Federal, State, and local reporting laws.
    Therefore, ORR is proposing under Sec.  410.1304(e)(1) to allow 
secure facilities except for RTCs to use personal restraints, 
mechanical restraints, and/or seclusion in emergency safety situations. 
ORR notes that under proposed Sec.  410.1304(a)(3) that the use of 
prone physical restraints, chemical restraints, or peer restraints is 
prohibited for any reason for all care provider facilities, including 
secure facilities. Proposed Sec.  410.1304(e)(2) would allow secure 
facilities to restrain an unaccompanied child for their own immediate 
safety or that of others during transport to an immigration court or an 
asylum interview. ORR is proposing under proposed Sec.  410.1304(e)(3) 
that secure facilities may restrain an unaccompanied child while at an 
immigration court or asylum interview if the child exhibits imminent 
runaway behavior, makes violent threats, demonstrates violent behavior, 
or if the secure facility has made an individualized determination that 
the child poses a serious risk of violence or running away if the child 
is unrestrained in court or the interview. ORR notes that while secure 
facilities may have safety or runaway risk concerns for which they deem 
restraints necessary for certain unaccompanied children, immigration 
judges retain discretion to provide input as to whether the 
unaccompanied child remains in restraints while in their courtroom. ORR 
is proposing to require under Sec.  410.1304(e)(4) that secure 
facilities must provide all mandated services under this subpart to an 
unaccompanied child to the greatest extent practicable under the 
circumstances while ensuring the safety of the unaccompanied child, 
other unaccompanied children at the secure facility, and others. 
Finally, under proposed Sec.  410.1304(f) ORR would allow care provider 
facilities to use soft restraints (e.g., zip ties and leg or ankle 
weights) only during transport to and from secure facilities, and only 
when the care provider believes a child poses a serious risk of 
physical harm to self or others or a serious risk of running away from 
ORR custody.
Section 410.1305 Staff, Training, and Case Manager Standards
    Having standards for staff, training, and case managers is in the 
best interest of unaccompanied children and is supportive to their 
health and development while in ORR care. Proposed Sec.  410.1305 would 
establish certain requirements consistent with

[[Page 68943]]

ORR's authority to oversee the infrastructure and personnel of 
facilities in which unaccompanied children reside.\109\ Under proposed 
Sec.  410.1305(a), ORR would require that standard programs, 
restrictive placements, and post-release service providers, must 
provide training to all staff, contractors, and volunteers; and that 
training ensures that staff, contractors, and volunteers understand 
their obligations under ORR regulations and policies and are responsive 
to the challenges faced by staff and unaccompanied children at the 
facility. ORR anticipates that examples of training topics under this 
proposed paragraph would include the rights of unaccompanied children, 
including to educational services, creating bias free environments, 
supporting children with disabilities, supporting the mental health 
needs of unaccompanied children, trauma, child development, prevention 
of sexual abuse, the identification of victims of human trafficking, 
and racial and cultural sensitivity. Standard programs and restrictive 
placements would also be required to ensure that staff are 
appropriately trained on its behavior management strategies, including 
de-escalation techniques, as established pursuant to proposed Sec.  
410.1304. All trainings would be required to be tailored to the unique 
needs, attributes, and gender of the unaccompanied children in care at 
the individual care provider facility. For example, staff who work with 
early childhood unaccompanied children should be provided training in 
early childhood care best practices. Additionally, case managers should 
be trained on child welfare best practices before providing services to 
children.\110\ Care provider facilities must document the completion of 
all trainings in personnel files. In addition to training, ORR would 
require all staff to complete background check requirements and vetting 
for their respective roles prior to service provision and care provider 
facilities would need to provide documentation to ORR of compliance.
---------------------------------------------------------------------------

    \109\ See 6 U.S.C. 279(b)(1)(G).
    \110\ Operational Challenges Within ORR and the ORR Emergency 
Intake Site at Fort Bliss Hindered Case Management for Children. 
Available at: https://oig.hhs.gov/oei/reports/OEI-07-21-00251.pdf.
---------------------------------------------------------------------------

    Under proposed Sec.  410.1305(b) standard programs and restrictive 
placements would be required to meet the staff to child ratios 
established by their respective states or other licensing entities, or 
ratios established by ORR if state licensure is not available. Under 
current practice, ORR generally requires staffing ratios of a minimum 
of 1 staff to 8 unaccompanied children during the day and 1 staff to 16 
unaccompanied children at night while children are sleeping. If, 
however, state requirements require a stricter staff to child ratio, 
then under proposed Sec.  410.1305(b), ORR likewise would require the 
care provider to abide by that smaller ratio.
    Standard programs and restrictive placements are required to 
provide case management services in their facilities. Effective case 
management systems and policy are important to ensuring care provider 
facilities are effective in attaining positive outcomes for 
unaccompanied children. Areas for attention include specifying case 
manager to unaccompanied child ratios that take the occupancy level of 
the facility into account, ensuring that case management staff are 
site-based and provide their services in person, and ensuring that case 
management staffing levels are appropriate to meet ORR's standards for 
the length of care of unaccompanied children. ORR is proposing to 
require under Sec.  410.1305(c) that standard programs and restrictive 
placements have case managers based at the facility's site. To meet the 
unique needs of a given facility, ORR could then determine the 
appropriate ratio of case managers per unaccompanied child through its 
cooperative agreements and contracts with care provider facilities, as 
appropriate. This will allow ORR to include changes in the staffing 
ratio relative to the occupancy of unaccompanied children at the 
facility and consider the policies related to unaccompanied children's 
length of stay.
Section 410.1306 Language Access Services
    Proposed Sec.  410.1306 describes requirements to provide language 
accessibility for unaccompanied children. ORR believes that it is 
important to establish specific, minimum language access requirements, 
which are critical to ensuring that unaccompanied children understand 
their rights, the release process, and the services they may receive 
while in ORR care.
    Under proposed Sec.  410.1306(a), standard programs and restrictive 
placements would be required, to the greatest extent practicable, to 
consistently offer all unaccompanied children the option of 
interpretation and translation services in their native or preferred 
language, depending on their preference, and in a way they understand 
to the greatest extent practicable. ORR notes that under 45 CFR 85.51, 
standard programs and restrictive placements shall also ensure 
effective communication with unaccompanied children with disabilities. 
This includes furnishing appropriate auxiliary aids and services such 
as qualified sign language interpreters, Braille materials, audio 
recordings, note-takers, and written materials, as appropriate for the 
unaccompanied child. Under ORR's existing policies, standard programs 
and restrictive placements are required to make every effort possible 
to provide interpretation and translation services; however, ORR 
believes it is important to propose the additional requirement that 
standard programs and restrictive placements consistently offer each 
unaccompanied child the option of effective interpretation and 
translation services to ensure meaningful and timely access to these 
services. If standard programs and restrictive placements are unable to 
obtain a qualified interpreter or translator in the unaccompanied 
children's native or preferred language, depending on their preference, 
after taking reasonable efforts, standard programs and restrictive 
placements would then be required to consult with qualified ORR staff 
(under current policy, the Federal Field Specialist and Project 
Officer) for guidance on how to provide meaningful access to their 
programs and activities to children with limited English proficiency. 
Standard programs and restrictive placements would be permitted to use 
professional telephonic interpreter services after they take reasonable 
efforts to obtain in-person, qualified interpreters (as defined). ORR 
believes that these proposals strike a good balance between the 
importance of interpretation and translation services and the reality 
of the vast array of language access needs of unaccompanied children. 
Standard programs and restrictive placements would also be required to 
translate all documents and materials shared with unaccompanied 
children in their native or preferred language, depending on their 
preference, and in a timely manner.
    To ensure efficient and reliable access to necessary interpretation 
and translation services during placement, under Sec.  410.1306(b) ORR 
would be required to make placement decisions informed by language 
access considerations. To the extent it is appropriate and practicable, 
giving due consideration to unaccompanied child's individualized needs, 
ORR would place unaccompanied children with similar language needs 
within the same standard program or restrictive

[[Page 68944]]

placement. ORR believes that this would further ensure the efficient 
use of resources while also considering the need for timely and 
appropriate placement.
    Proposed Sec.  410.1306(c) would codify language access 
requirements during intake, orientation, and while informing 
unaccompanied children of their rights to confidentiality and limits of 
confidentiality of information while in ORR care. Under current ORR 
practice, among other things, standard programs and heightened 
supervision facilities complete an initial intakes assessment of an 
unaccompanied child; provide a standardized orientation that is 
appropriate for the age, culture, language, and accessibility needs of 
the unaccompanied child; and complete a UC Assessment that covers 
biographic, family, legal/migration, medical, substance use, and mental 
health history and is subject to ongoing updates. Under current 
practice, standard programs and restrictive placements provide 
unaccompanied children with a Disclosure Notice, which is an ORR 
document explaining the limits to the confidentiality of information 
unaccompanied children share while in ORR care and custody, as well as 
the types of information that standard programs and restrictive 
placements and ORR must share if disclosed by the unaccompanied 
children for the safety of the unaccompanied children or for the safety 
of others.
    Under proposed Sec.  410.1306(c)(1), standard programs and 
restrictive placements would be required both to provide a written 
notice of the limits of confidentiality they share while in ORR care 
and custody, and to orally explain the contents of the written notice 
to the unaccompanied children, in their native preferred language, 
depending on their preference, and in a way they can effectively 
understand. Standard programs and restrictive placements would be 
required to do both prior to the completion of the UC Assessment, and 
prior to unaccompanied children starting counseling services as 
proposed at Sec.  410.1302(c)(5) and (6).
    Under proposed Sec.  410.1306(c)(2), standard programs and 
restrictive placements would be required to ensure assessments and 
initial medical exams are conducted in the unaccompanied children's 
native or preferred language, depending on their preference, and in a 
way they effectively understand. Proposed Sec.  410.1306(c)(3) would 
require that standard programs and heightened supervision facilities 
provide a standardized and comprehensive orientation to all 
unaccompanied children within 48 hours of admission in the 
unaccompanied children's native or preferred language and in a way they 
effectively understand regardless of spoken language, reading 
comprehension level, or disability. Further, under proposed Sec.  
410.1306(c)(4), for all step-ups to and step-downs from restrictive 
placements, standard programs and restrictive placements would be 
required to specifically explain to the unaccompanied children why they 
were placed in a restrictive placement or, if stepped down, why their 
placement was changed, while doing so in the unaccompanied children's 
native or preferred language, and in a way they effectively understand.
    Under proposed Sec.  410.1306(c)(5), if the unaccompanied children 
are not literate, or if documents provided during intakes and/or 
orientation are not in a language that they can read and effectively 
understand, standard programs and restrictive placements would be 
required to have a qualified interpreter orally translate or sign 
language translate and explain all the documents in the unaccompanied 
children's native or preferred language, depending on their preference, 
and confirm with the unaccompanied children that they fully comprehend 
all materials. Additionally, at proposed Sec.  410.1306(c)(6) and (7), 
standard programs and restrictive placements would be required to 
provide unaccompanied children information regarding grievance and 
ORR's sexual abuse and harassment policies and procedures in the 
unaccompanied children's native or preferred language, based on their 
preference, and in a way they effectively understand. Under Sec.  
410.1306(c)(8), standard programs and restrictive placements would be 
required to notify the unaccompanied children that standard programs 
and restrictive placements will accommodate the unaccompanied 
children's language needs while they remain in ORR care.
    Under proposed Sec.  410.1306(c)(9), with respect to all 
requirements described in proposed Sec.  410.1306(c), standard programs 
and restrictive placements would be required to document in each 
unaccompanied children's case file that they acknowledged that they 
effectively understand what was provided to them.
    Proposed Sec.  410.1306(d) describes requirements regarding 
language access and education. In order to provide meaningful education 
services to unaccompanied children, ORR believes that it is important 
to ensure that educational services are presented to unaccompanied 
children in a language that is accessible to them. Proposed Sec.  
410.1306(d)(1) would require standard programs and heightened 
supervision facilities to provide educational instruction and relevant 
materials in a format and language accessible to all unaccompanied 
children, regardless of their native or preferred language, including 
by providing in-person interpretation, professional telephonic 
interpretation, and written translations, all by qualified interpreters 
or translators. Proposed Sec.  410.1306(d)(2) would require standard 
programs and heightened supervision facilities to provide recreational 
reading materials in formats and languages accessible to all 
unaccompanied children, which would facilitate their out-of-class 
enrichment and engagement. Proposed Sec.  410.1306(d)(3) would require 
standard programs and heightened supervision facilities to translate 
all ORR-required documents provided to unaccompanied children for use 
in educational lessons, in formats and languages accessible to all 
unaccompanied children.
    ORR believes that it is important to ensure that the unaccompanied 
children's religious and cultural expressions, practices, and 
identities are accommodated to the extent practicable. Accordingly, 
under proposed Sec.  410.1306(e), when an unaccompanied child makes a 
reasonable request for religious and/or cultural information or other 
religious/cultural items, such as books or clothing, the standard 
program or heightened supervision facility would be required to provide 
the applicable items, in the unaccompanied child's native or preferred 
language, depending on the unaccompanied child's preference. At the 
same time, with respect to the obligations of care provider facilities, 
ORR notes that it operates the Unaccompanied Children program in 
compliance with the requirements of the Religious Freedom Restoration 
Act and other applicable Federal conscience protections, as well as all 
other applicable Federal civil rights laws and applicable HHS 
regulations.\111\
---------------------------------------------------------------------------

    \111\ See 45 CFR 87.3(a).
---------------------------------------------------------------------------

    ORR proposes in Sec.  410.1306(f) that standard programs and 
restrictive placements would be required to utilize any necessary 
professional interpretation or translation services needed to ensure 
meaningful access by an unaccompanied child's parent(s), guardian(s), 
and/or potential sponsor(s). Standard programs and restrictive 
placements would also be required to translate all documents and 
materials shared with the parent(s), guardian(s), and/or potential 
sponsors in their native

[[Page 68945]]

or preferred language, depending on their preference. ORR notes that 
under 45 CFR 85.51, standard programs and restrictive placements shall 
also ensure effective communication with parent(s), guardian(s), and/or 
potential sponsor(s) with disabilities.
    ORR acknowledges the importance of making appropriate 
interpretation and translation services available to all unaccompanied 
children while receiving healthcare services so that they understand 
the services that are being offered and/or provided. Under proposed 
Sec.  410.1306(g), while unaccompanied children are receiving 
healthcare services, standard programs and restrictive placements would 
be required to ensure that unaccompanied children are able to 
communicate with physicians, clinicians, and other healthcare staff in 
their native or preferred language, depending on their preference, and 
in a way they effectively understand, prioritizing services from an in-
person, qualified interpreter before using professional telephonic 
interpretation services.
    Section 410.1306(h) proposes language access requirements for 
standard programs and restrictive placements while unaccompanied 
children receive legal services. To facilitate unaccompanied children 
receiving effective legal services, ORR believes that it is essential 
that unaccompanied children understand the legal services offered to 
them and the process for participation in removal proceedings post-
release, and accordingly, unaccompanied children should be provided 
with meaningful access to language services as relates to legal 
services. ORR is proposing to require that standard programs and 
restrictive placements make qualified interpretation and translation 
services available upon request to unaccompanied children, child 
advocates, and legal service providers while unaccompanied children are 
being provided with legal services. Additionally, ORR proposes in Sec.  
410.1306(i) that interpreters and translators would be required to keep 
information about the unaccompanied children's cases and/or services 
confidential from non-ORR grantees, contractors, and Federal staff.
Section 410.1307 Healthcare Services
    The provision of healthcare to unaccompanied children is 
foundational to their health and wellbeing and to supporting their 
childhood development. Therefore, proposed Sec.  410.1307(a) would 
codify that ORR shall ensure the provision of appropriate routine 
medical and dental care; access to medical services requiring 
heightened ORR involvement, consistent with Sec.  410.1307(c); family 
planning services; and emergency health services in standard programs 
and restrictive placements. This proposed paragraph would codify 
corresponding requirements from Exhibit 1 of the FSA. Further, under 
proposed Sec.  410.1307(b), care providers must establish a network of 
licensed healthcare providers, including specialists, emergency care 
services, mental health practitioners, and dental providers that will 
accept ORR's fee-for-service billing system under proposed Sec.  
410.1307(b)(1). To assess the unique healthcare needs of each 
unaccompanied child, consistent with existing policy and practice, ORR 
is including a requirement that unaccompanied children receive a 
complete medical examination (including screening for infectious 
disease) within two business days of admission unless an unaccompanied 
child was recently examined at another facility and if an unaccompanied 
child is still in ORR custody 60 to 90 days after admission, an initial 
dental exam, or sooner if directed by state licensing requirements 
under proposed Sec.  410.1307(b)(2).
    In order to prevent the spread of diseases in care provider 
facilities and avoid preventable illness among unaccompanied children, 
ORR is also proposing to require appropriate immunizations as 
recommended by the Advisory Committee on Immunization Practices' Child 
and Adolescent Immunization Schedule and approved by HHS' Centers for 
Disease Control and Prevention under proposed Sec.  410.1307(b)(3). To 
aid in the early detection of potential health conditions and ensure 
unaccompanied children's health conditions are appropriately managed, 
under proposed Sec.  410.1307(b)(4) ORR would require an annual 
physical examination, including hearing and vision screening, and 
follow-up care for acute and chronic conditions. ORR notes that it 
facilitates an array of health services, such as medications, 
surgeries, or other follow-up care, that have been ordered or 
prescribed by a healthcare provider. ORR would require the 
administration of prescribed medication and special diets under 
proposed Sec.  410.1307(b)(5) and appropriate mental health 
interventions when necessary under proposed Sec.  410.1307(b)(6). ORR 
notes that it is proposing to require routine individual and group 
counseling session at proposed Sec.  410.1302(c)(5) and (6).
    There are a number of policies and procedures related to medical 
care and medications that ORR is proposing to require in order to 
promote health and safety at their facilities. Under proposed Sec.  
410.1307(b)(7), care provider facilities must have policies and 
procedures for identifying, reporting, and controlling communicable 
diseases that are consistent with applicable State, local, and Federal 
laws and regulations. Under proposed Sec.  410.1307(b)(8), care 
provider facilities must have policies and procedures that enable 
unaccompanied children, including those with language and literacy 
barriers, to convey written and oral requests for emergency and non-
emergency healthcare services. Finally, under proposed Sec.  
410.1307(b)(9), ORR would require care provider facilities have 
policies and procedures based on state or local laws and regulations to 
ensure the safe, discreet, and confidential provision of prescription 
and nonprescription medications to unaccompanied children, secure 
storage of medications, and controlled administration and disposal of 
all drugs. A licensed healthcare provider must write or orally order 
all nonprescription medications and oral orders must be documented in 
the unaccompanied child's file.
    At times, the use of medical isolation or quarantine for 
unaccompanied children may be required to prevent the spread of an 
infectious disease due to a potential exposure. Proposed Sec.  
410.1307(b)(10) would allow unaccompanied children to be placed in 
medical isolation and excluded from contact with general population 
when medically necessary to prevent the spread of an infectious disease 
due to a potential exposure, protect other unaccompanied children and 
care provider facility staff for a medical purpose or as required under 
state, local, or other licensing rules, as long as the medically 
required isolation is limited to only the extent necessary to ensure 
the health and welfare of the unaccompanied child, other unaccompanied 
children at a care provider facility and care provider facility staff, 
or the public at large. To ensure that unaccompanied children have 
access to necessary services during medical isolation, ORR is proposing 
that care provider facilities must provide all mandated services under 
this subpart to the greatest extent practicable under the circumstances 
of the medical isolation. A medically isolated unaccompanied child 
still must be supervised under state, local, or other licensing ratios, 
and, if multiple unaccompanied children are in medical isolation, they 
should be placed in units or housing together (as practicable, given 
the nature

[[Page 68946]]

or type of medical issue giving rise to the requirement for isolation 
in the first instance).
    In Sec.  410.1307(c), ORR proposes requirements ensuring access to 
medical care for unaccompanied children. At Sec.  410.1307(c)(1), 
consistent with the requirements of proposed Sec.  410.1103, ORR 
proposes that to the greatest extent possible, an unaccompanied child 
whom ORR determines requires medical care or who reasonably requests 
such medical care will be placed in a care provider facility that has 
available and appropriate bed space, is able to care for such an 
unaccompanied child, and is in a location where the relevant medical 
services are accessible. This proposal aligns with proposed subpart B, 
Determining the Placement of an Unaccompanied Child at a Care Provider 
Facility, which would require that ORR place unaccompanied children in 
the least restrictive setting that is in the best interest of the child 
and appropriate to the child's age and individualized needs, and that 
ORR considers ``any specialized services or treatment required'' when 
determining placement of all unaccompanied children.
    Additionally, ORR proposes that if an initial placement in a care 
provider facility that meets the requirements in Sec.  410.1307(c)(1) 
is not immediately available or if a medical need or reasonable 
request, as described in Sec.  410.1307(c)(1), arises after the Initial 
Medical Exam, ORR shall transfer the unaccompanied child to a care 
provider facility that is able to accommodate the medical needs of the 
unaccompanied child. If the medical need is identified, or the 
reasonable request is received, after the Initial Medical Exam, the 
care provider facility shall immediately notify ORR. This proposal 
aligns with subpart G, Transfers, which would require transfer of an 
unaccompanied child within the ORR care provider facility network when 
it is determined that an alternate placement for the unaccompanied 
child that would best meet the child's individual needs. Care provider 
facilities would be required to follow the process proposed in subpart 
G such as submitting a transfer recommendation to ORR for approval 
within three (3) business days of identifying the need for a transfer.
    As described in Sec.  410.1307(c)(2), ORR proposes to codify 
requirements ensuring that unaccompanied children are provided 
transportation to access medical services, including across state lines 
if necessary, and associated ancillary services. This would ensure 
unaccompanied children can access appointments with medical specialists 
(e.g., neonatologists, oncologists, pediatric cardiologists, pediatric 
surgeons, or others), family planning services, prenatal services and 
pregnancy care, or care that may be geographically limited including 
but not limited to an unaccompanied child's need or request for medical 
services requiring heightened ORR involvement. This proposal is 
consistent with current policy, as noted in subpart E, Transportation 
of an Unaccompanied Child, that ORR, or its care provider facilities, 
provide transportation for purposes of service provision including 
medical services. If there is a potential conflict between ORR's 
regulations and state law, ORR will review the circumstances to 
determine how to ensure that it is able to meet its statutory 
responsibilities. It is important to note, however, that if a State law 
or license, registration, certification, or other requirement conflicts 
with an ORR employee's duties within the scope of their ORR employment, 
the ORR employee is required to abide by their Federal duties.
    These proposals maintain existing policy that ORR must not prevent 
unaccompanied children in ORR care from accessing healthcare services, 
which may include medical services requiring heightened ORR involvement 
or family planning services, and must make reasonable efforts to 
facilitate access to those services if requested by the unaccompanied 
child.\112\ This includes providing transport across state lines and 
associated ancillary services if necessary to access appropriate 
medical services, including access to medical specialists and medical 
services requiring heightened ORR involvement. Under these proposals, 
ORR will continue to facilitate access to medical services requiring 
heightened ORR involvement, including access to abortions, in light of 
ORR's statutory responsibility to ensure that the interests of the 
unaccompanied child are considered in decisions and actions relating to 
their care and custody, and to implement policies with respect to their 
care and placement.\113\ ORR would continue to permit such access in a 
manner consistent with limitations on the use of Federal funds for 
abortions which are regularly included in HHS' annual appropriations, 
commonly referred to as the ``Hyde Amendment.'' \114\ Consistent with 
current policy, ORR will facilitate such access regardless of whether 
the Federal Government may pay for the abortion under the Hyde 
Amendment. ORR further notes that it operates the UC Program in 
compliance with the requirements of the Religious Freedom Restoration 
Act and other applicable Federal conscience protections, as well as all 
other applicable Federal civil rights laws and applicable HHS 
regulations.\115\
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    \112\ See, e.g., Administration for Children and Families. FIELD 
GUIDANCE--Issued Oct. 1, 2021, revised Nov. 10, 2022, RE: Field 
Guidance #21--Compliance with Garza Requirements and Procedures for 
Unaccompanied Children Needing Reproductive Healthcare, available at 
https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-21.pdf. See also 45 CFR 411.92(d). See also 45 CFR 
411.92(d) (requiring timely and comprehensive information about 
lawful pregnancy-related medical services and timely access to such 
services for unaccompanied children who experience sexual abuse 
while in ORR care). ORR notes that it was a party to a settlement 
agreement reached in Federal litigation concerning unaccompanied 
children's access to abortion (Garza settlement). See Joint 
Stipulation of Dismissal Without Prejudice, J.D. v. Azar, No. 1:17-
cv-02122 (D.D.C. Sep. 29, 2020), ECF No. 168. ORR implemented 
various policies to effectuate the terms of the Garza settlement.
    \113\ See 6 U.S.C. 279(b)(1)(B), (E).
    \114\ See, e.g., Consolidated Appropriations Act, 2023, Public 
Law 117-328, Div. H, tit. V, sections 506-507; see also Department 
of Justice, Office of Legal Counsel, Application of the Hyde 
Amendment to the Provision of Transportation for Women Seeking 
Abortions (Sept. 27, 2022), https://www.justice.gov/d9/2022-11/2022-09-27-hyde_amendment_application_to_hhs_transportation.pdf.
    \115\ See 45 CFR part 87.
---------------------------------------------------------------------------

    Lastly, ORR proposes a requirement in Sec.  410.1307(d) that care 
provider facilities shall notify ORR within 24 hours of an 
unaccompanied child's need or request for a medical service requiring 
heightened ORR involvement or the discovery of a pregnancy. This 
proposal is consistent with ORR's current policy requirements for 
notifying ORR of significant incidents and medical services requiring 
heightened ORR involvement.
Section 410.1308 Child Advocates
    ORR proposes, at Sec.  410.1308, to codify standards and 
requirements relating to the appointment of independent child advocates 
for child trafficking victims and other vulnerable unaccompanied 
children (see particularly statement at proposed Sec.  410.1308(a). The 
TVPRA, at 8 U.S.C. 1232(c)(6), authorizes HHS to appoint child 
advocates for child trafficking victims and other vulnerable 
unaccompanied children. In 2016, the Government Accountability Office 
(GAO) carried out an assessment of the ORR child advocate program \116\ 
and recommended improving ORR monitoring of contractor referrals to the 
program, as well as improving information sharing with child

[[Page 68947]]

advocates regarding the unaccompanied children assigned to them. ORR 
notes that the need for child advocates in helping to protect the 
interests of unaccompanied children has continued to grow over time, 
especially given the increasing numbers of unaccompanied children who 
are referred to ORR custody. Proposed Sec.  410.1308 is intended to 
codify specific child advocates' roles and responsibilities which are 
currently described primarily in ORR policy documents.
---------------------------------------------------------------------------

    \116\ See GAO, April 19, 2016, ``Unaccompanied Children: HHS 
Should Improve Monitoring and Information Sharing Policies to 
Enhance Child Advocate Program Effectiveness,'' GAO-16-367.
---------------------------------------------------------------------------

    At Sec.  410.1308(b), ORR proposes to define the role of child 
advocates as third parties who identify and make independent 
recommendations regarding the best interest of unaccompanied children. 
The recommendations of child advocates are based on information 
obtained from the unaccompanied children and other sources (including 
the unaccompanied child's parents, family, potential sponsors/sponsors, 
government agencies, legal service providers, protection and advocacy 
system representatives in appropriate cases, representatives of the 
unaccompanied child's care provider, health professionals, and others). 
Child advocates formally submit their recommendations to ORR and/or the 
immigration court as written best interest determinations (BIDs). ORR 
considers BIDs when making decisions regarding the care, placement, and 
release of unaccompanied children, but it is not bound to follow BID 
recommendations.
    With respect to the role of child advocates, ORR considered several 
ways to strengthen or expand the role, including granting child 
advocates rights of access to ORR records and information on 
unaccompanied children (in order to advocate for unaccompanied children 
more effectively); allowing advocates to be present at all ORR hearings 
and interviews with their client (excepting meetings between an 
unaccompanied child and their attorney or EOIR accredited 
representative); and expanding the child advocates program to operate 
at more locations, or expanding eligibility for the program to allow 
unaccompanied children who age past their 18th birthday to continue 
receiving advocates' services. ORR considered the suggestions it 
received, and notes that, as required by the TVPRA, it already provides 
child advocates with access to materials necessary to effectively 
advocate for the best interest of unaccompanied children. In 
particular, per current ORR policies, and as reflected in this section, 
child advocates have access both to their clients and to their clients' 
records. Child advocates may access their clients' entire original case 
files at care provider facilities, or request copies from care 
providers. Further, they may participate in case staffings, which are 
meetings organized by an unaccompanied child's care provider with other 
relevant stakeholders to help discuss and plan for the unaccompanied 
child's care. In drafting this NPRM, ORR believes that the proposed 
language at Sec.  410.1308(b) (together with other paragraphs proposed 
in Sec.  410.1308) represent an appropriate balance in codifying the 
role of child advocates. ORR invites comment on these issues, and on 
the proposals of Sec.  410.1308(b).
    At paragraph Sec.  410.1308(c), ORR proposes to specify the 
responsibilities of child advocates, which include: (1) visiting with 
their unaccompanied children clients, (2) explaining the consequences 
and potential outcomes of decisions that may affect the unaccompanied 
child, (3) advocating for the unaccompanied child client's best 
interest with respect to care, placement, services, release, and, where 
appropriate, within proceedings to which the child is a party, (4) 
providing best interest determinations, where appropriate and within a 
reasonable time to ORR, an immigration court, and/or other interested 
parties involved in a proceeding or matter in which the child is a 
party or has an interest, and (5) regularly communicating case updates 
with the care provider, ORR, and/or other interested parties in the 
planning and performance of advocacy efforts, including updates related 
to services provided to unaccompanied children after their release from 
ORR care.
    Consistent with the TVPRA at 8 U.S.C. 1232(c)(6)(A), under proposed 
Sec.  410.1308(d), ORR may appoint child advocates for unaccompanied 
children who are victims of trafficking or are especially vulnerable. 
Under proposed Sec.  410.1308(d)(1), an interested party may refer an 
unaccompanied child to ORR for a child advocate after notifying ORR 
that a particular unaccompanied child in or previously in ORR's care is 
a victim of trafficking or is especially vulnerable. As used in this 
section, ``interested parties'' means individuals or organizations 
involved in the care, service, or proceeding involving an unaccompanied 
child, including but not limited to, ORR Federal or contracted staff; 
an immigration court judge; DHS staff; a legal service provider, 
attorney of record, or EOIR accredited representative; an ORR care 
provider; a healthcare professional; or a child advocate organization. 
Under proposed Sec.  410.1308(d)(2), ORR would make an appointment 
decision within five (5) business days of referral for a child 
advocate, except under exceptional circumstances including, but not 
limited to, natural disasters (such as hurricane, fire, or flood) or 
operational capacity issues due to influx which may delay a decision 
regarding an appointment. ORR typically would consider the available 
resources, including the availability of child advocates in a 
particular region, when appointing a child advocate for unaccompanied 
children in ORR care. ORR would appoint child advocates only for 
unaccompanied children who are currently in or were previously in ORR 
care. And under proposed Sec.  410.1308(d)(3), child advocate 
appointments would terminate upon the closure of the unaccompanied 
child's case by the child advocate, when the unaccompanied child turns 
18, or when the unaccompanied child obtains lawful immigrant status. 
Regarding the appointment of child advocates, ORR considered allowing 
that any stakeholder should be able to make a confidential referral of 
an unaccompanied child for child advocate services, and also that any 
termination of such services should be determined in collaboration with 
the unaccompanied child and the unaccompanied child's parent or legal 
guardian (if applicable). In terms of referrals, proposed Sec.  
410.1308(d) would allow for referrals for child advocate services from 
a broad range of possible individuals. In terms of terminating child 
advocate services, ORR considered making terminations contingent on a 
collaborative process between the child advocate, the unaccompanied 
child, and the unaccompanied child's sponsor, but ORR believes that the 
current proposal at Sec.  410.1308(d)(3) would impose reasonable limits 
for the termination of child advocate services, and that termination 
itself otherwise falls within the role and responsibilities of child 
advocates when advocating for an unaccompanied child's best interests.
    Under Sec.  410.1308(e), ORR proposes standards concerning child 
advocates' access to information about unaccompanied children for whom 
they are appointed. After a child advocate is appointed for an 
unaccompanied child, the child advocate would be provided access to 
materials to effectively advocate for the best interest of the 
unaccompanied child.\117\ Consistent with existing policy, child 
advocates would be provided access to their

[[Page 68948]]

clients during normal business hours at an ORR care provider facility 
in a private area, would be provided access to all their client's case 
file information, and may request copies of the case file directly from 
the unaccompanied child's care provider without going through ORR's 
standard case file request process, subject to confidentiality 
requirements described below. A child advocate would receive timely 
notice concerning any transfer of an unaccompanied child assigned to 
them.
---------------------------------------------------------------------------

    \117\ See 8 U.S.C. 1232(c)(6)(A) (``. . . A child advocate shall 
be provided access to materials necessary to effectively advocate 
for the best interest of the child . . .'').
---------------------------------------------------------------------------

    Under Sec.  410.1308(f), ORR proposes standards for a child 
advocate's responsibility with respect to confidentiality of 
information. Notwithstanding the access to their clients' case file 
information granted to child advocates under proposed paragraph (e), 
child advocates would be required to keep the information in the case 
file, and information about the unaccompanied child's case, 
confidential. Child advocates would be prohibited from sharing case 
file information with anyone except with ORR grantees, contractors, and 
Federal staff. Child advocates would not be permitted to disclose case 
file information to other parties, including parties with an interest 
in a child's case. Other parties are able to request an unaccompanied 
child's case file information according to existing procedures. ORR 
proposes these protections consistent with its interest in protecting 
the privacy of unaccompanied children in its care, and for effective 
control and management of its records. Proposed Sec.  410.1308(f) also 
establishes that, with regard to an unaccompanied child in ORR care, 
ORR would allow the child advocate of that unaccompanied child to 
conduct private communications with the child, in a private area that 
allows for confidentiality for in-person and virtual or telephone 
meetings. In drafting proposed Sec.  410.1308(f), ORR considered 
suggestions that a child advocate should be protected from compelled 
disclosure of any information concerning an unaccompanied child shared 
with them in the course of their advocacy work and that unaccompanied 
children and child advocates must have access to private space to 
ensure confidentiality of in-person meetings and virtual meetings. ORR 
notes that proposed Sec.  410.1308(f) is to be read consistently with 
the TVPRA requirement that child advocates ``shall not be compelled to 
testify or provide evidence in any proceeding concerning any 
information or opinion received from the child in the course of serving 
as a child advocate.'' \118\ Also, ORR is seeking comment on specific 
ways to ensure confidentiality of unaccompanied child-child advocate 
meetings, and invites public comment on that issue, in particular on 
appropriate ways to ensure privacy, as well as on the proposed text of 
Sec.  410.1308(f) generally.
---------------------------------------------------------------------------

    \118\ 8 U.S.C. 1232(c)(6)(A).
---------------------------------------------------------------------------

    Under proposed Sec.  410.1308(g), ORR proposes that it would not 
retaliate against a child advocate for actions taken within the scope 
of their responsibilities. For example, ORR would not retaliate against 
a child advocate because of any disagreement with a best interest 
determination or because of a child advocate's advocacy on behalf of an 
unaccompanied child. ORR notes that proposed Sec.  410.1308(g) is 
intended to be read consistently with its statutory obligation to 
provide access to materials necessary to effectively advocate for the 
best interest of the child, and consistently with a presumption that 
the child advocate acts in good faith with respect to their advocacy on 
behalf of the child.\119\ At the same time, ORR has the responsibility 
and authority to effectively manage its unaccompanied children's 
program which includes, for example, ensuring that the interests of the 
child are considered in decisions and actions relating to care and 
custody, implementing policies with respect to the care and placement 
of unaccompanied children, and overseeing the infrastructure and 
personnel of facilities in which unaccompanied children reside.\120\
---------------------------------------------------------------------------

    \119\ See 8 U.S.C. 1232(c)(6)(A).
    \120\ See 6 U.S.C. 279(b)(1)(B), (E), and (G).
---------------------------------------------------------------------------

Section 410.1309 Legal Services
    ORR proposes, at Sec.  410.1309, standards and requirements 
relating to the provision of legal services to unaccompanied children 
following entry into ORR care. The proposals under Sec.  410.1309 also 
include standards relating to ORR funding for Legal Service Providers 
for unaccompanied children.
    ORR believes that Legal Service Providers who represent 
unaccompanied children undertake an important function by representing 
such children while in ORR care and in some instances after release. 
The proposals under Sec.  410.1309 build on current ORR policies, which 
articulate standards for legal services for unaccompanied children. ORR 
strives for 100% legal representation of unaccompanied children and 
will continue to work towards that goal to the extent possible. ORR 
invites public comment as to whether and how there are further ways to 
broaden representation for unaccompanied children.
    ORR notes that under the TVPRA, at 8 U.S.C. 1232(c)(5), the 
Secretary of HHS must ``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 children who are or have been in 
its the custody or in the custody of DHS, with exceptions for children 
who are habitual residents of certain countries, have counsel ``to 
represent them in legal proceedings or matters and protect them from 
mistreatment, exploitation, and trafficking.'' The Secretary of Health 
and Human Services ``shall make every effort to utilize the services of 
pro bono counsel who agree to provide representation to such children 
without charge.'' The INA, 8 U.S.C. 1362, provides, ``In any removal 
proceedings before an immigration judge and in any appeal proceedings 
before the Attorney General from any such removal proceedings, the 
person concerned shall have the privilege of being represented (at no 
expense to the Government) by such counsel, authorized to practice in 
such proceedings, as he shall choose.''
    Thus, under the TVPRA, HHS has an obligation, ``to the greatest 
extent practicable,'' to ensure that unaccompanied children have 
counsel in (1) immigration proceedings and (2) to protect them from 
mistreatment, exploitation, and trafficking. Because 8 U.S.C. 
1232(c)(5) states these responsibilities are ``consistent with'' 8 
U.S.C. 1362, ORR reads these provisions together as establishing that, 
while the statute establishes HHS' obligations in relation to legal 
services, there is not a right to government-funded counsel under 8 
U.S.C. 1232(c)(5). Rather, ORR understands that it has a duty to ensure 
to the greatest extent practicable that unaccompanied children have 
counsel at no expense to the government, for both purposes described by 
the TVPRA. Further, the second sentence of 8 U.S.C. 1232(c)(5) states 
that the Secretary of HHS shall, to the greatest extent practicable, 
make every effort to utilize the services of pro bono counsel. ORR 
understands this requirement as establishing the preferred means by 
which counsel is provided to unaccompanied children, but also that the 
Secretary has authority to utilize other types of services--namely 
services that are not pro bono--in areas where pro bono services are 
not available. In summary, insofar as it is not practicable for the 
Secretary of HHS to utilize the services of pro bono counsel for all 
unaccompanied children specified at 8

[[Page 68949]]

U.S.C. 1232(c)(5), the Secretary has discretion under that section (but 
not the obligation) also to fund client representation for counsel for 
the unaccompanied children both (1) in immigration proceedings, and (2) 
to protect them from mistreatment, exploitation, and trafficking--as 
such concerns may arise outside the context of immigration proceedings 
(e.g., other discrete services outside the context of immigration 
proceedings as described in the paragraphs below).
    ORR proposes, at Sec.  410.1309(a)(1), that ORR would 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 
children who are or have been in ORR care, and who are not subject to 
special rules for children from contiguous countries, have access to 
legal advice and representation in immigration legal proceedings or 
matters, consistent with current policy and as further described in 
this section. ORR understands ``to the greatest extent practicable'' to 
reflect that the provision of legal services must be subject to 
available resources, as determined by ORR, and otherwise practicable.
    ORR proposes, at Sec.  410.1309(a)(2), that an unaccompanied child 
in ORR care receive (1) a presentation concerning the rights and 
responsibilities of unaccompanied children in the immigration system, 
including information about protections under child labor laws and 
educational rights, presented in the language of the unaccompanied 
child and in an in age-appropriate manner; (2) information regarding 
availability of free legal assistance, and that they may be represented 
by counsel, at no expense to the government; \121\ (3) notification of 
the ability to petition for SIJ classification, to request that a state 
juvenile court determine dependency or placement, and notification of 
the ability to apply for asylum or other forms of relief from removal; 
(4) information regarding the unaccompanied child's right to a removal 
hearing before an immigration judge, the ability to apply for asylum 
with USCIS in the first instance, and the ability to request voluntary 
departure in lieu of removal; and (5) a confidential legal consultation 
with a qualified attorney (or paralegal working under the direction of 
an attorney, or EOIR accredited representative) to determine possible 
forms of legal relief in relation to the unaccompanied child's 
immigration case. ORR also proposes in Sec.  410.1309(a)(2) that an 
unaccompanied child in ORR care be able to communicate privately with 
their attorney of record, EOIR accredited representative, or legal 
service provider, in a private enclosed area that allows for 
confidentiality for in-person and virtual or telephone meetings. ORR 
notes that these proposed services go beyond that which is required 
under the FSA. For example, although both the FSA and proposed Sec.  
410.1309(a)(2) require that unaccompanied children receive information 
regarding their legal rights and availability of free legal assistance, 
proposed Sec.  410.1309(a)(2) would provide additional specificity to 
the type of information that would be provided. Additionally, ORR notes 
that proposed Sec.  410.1309(a)(2) goes beyond the scope of what is 
required under the FSA by providing that unaccompanied children receive 
not just information regarding the availability of legal counsel, but 
also requiring that unaccompanied children receive a confidential legal 
consultation with a qualified attorney (or paralegal working under the 
direction of an attorney, or a DOJ accredited representative) to help 
them understand their individual immigration case. Finally, although 
the FSA requires that unaccompanied children have ``a reasonable right 
to privacy,'' which includes the right to talk privately on the phone 
and meet privately with guests (as permitted by the facility's house 
rules and regulations), FSA Exhibit 1 at paragraph A.12, proposed Sec.  
410.1309(a)(2) would go beyond the FSA's requirement to make explicit 
that communications and meetings with the unaccompanied child's 
attorney of record, EOIR accredited representative, and legal service 
provider must be held in enclosed designated spaces, without reference 
to any limitation on such rights by the facility's house rules and 
regulations.
---------------------------------------------------------------------------

    \121\ This language is intended, consistent with ORR's statutory 
authorities, to implement paragraph A.14 of Exhibit 1 of the FSA, 
which states: ``Legal services information regarding the 
availability of free legal assistance, the right to be represented 
by counsel at no expense to the government, the right to deportation 
or exclusion hearing before an immigration judge, the right to apply 
for political asylum or to request voluntary departure in lieu of 
deportation.'' With respect to information regarding the 
availability of free legal assistance, ORR understands the proposed 
language at Sec.  410.1309(a)(2)(ii) to be consistent with paragraph 
A.14, but updated to avoid potential confusion. As discussed above, 
8 U.S.C. 1232(c)(5) does not describe an unaccompanied child's 
ability to access legal counsel as a ``right;'' and ORR cannot, by 
regulation, confer such a right. Rather, by reference to the 
Immigration and Nationality Act, the TVPRA describes unaccompanied 
children's access to counsel as a ``privilege,'' and also makes HHS 
responsible for ensuring such privilege ``to the greatest extent 
practicable.'' ORR notes that this clarification does not represent 
a change in ORR's existing policies or practices, and as described 
elsewhere in this section, ORR proposes to expand the availability 
of legal services to unaccompanied children beyond current practice.
---------------------------------------------------------------------------

    With respect to the confidential legal consultation, ORR notes the 
importance of allowing unaccompanied children and their legal service 
providers, attorneys of record, or EOIR accredited representatives 
access to private space, to ensure that any communications or meetings 
about legal matters can be held confidentially. In addition, in 
developing the proposal to require a presentation on the rights of 
unaccompanied children in the immigration system, ORR is considering 
including a requirement for additional presentations for unaccompanied 
children who remain in ORR care beyond six months.
    ORR proposes, at Sec.  410.1309(a)(3), that ORR would require this 
information, regarding unaccompanied children's legal rights and access 
to services while in ORR care, be posted in an age-appropriate format 
and translated into each child's preferred language consistent with 
proposed Sec.  410.1306, in any ORR contracted or grant-funded facility 
where unaccompanied children are in ORR care.
    ORR proposes, at Sec.  410.1309(a)(4), that to the extent that 
appropriations are available, and insofar as it is not practicable to 
secure pro bono counsel for unaccompanied children as specified at 8 
U.S.C. 1232(c)(5), ORR would fund legal service providers to provide 
direct immigration legal representation to certain unaccompanied 
children subject to ORR's discretion to the extent it determines 
appropriations are available. Examples of direct immigration legal 
representation include, but are not limited to: (1) for unrepresented 
unaccompanied children who become enrolled in ORR URM Programs, 
provided they have not yet obtained lawful status or reached 18 years 
of age at the time of retention of an attorney; (2) for unaccompanied 
children in ORR care who must appear before EOIR, including children 
seeking voluntary departure, or who must appear before U.S. Citizenship 
and Immigration Services (USCIS); (3) for unaccompanied children 
released to a sponsor residing in the defined service area of the same 
legal service provider who provided the child legal services in ORR 
care, to promote continuity of legal services; and (4) for other 
unaccompanied children, in ORR's discretion.
    Under proposed Sec.  410.1309(b), ORR would fund legal services for 
the protection of an unaccompanied child's

[[Page 68950]]

interests in certain matters not involving direct immigration 
representation, consistent with its obligations under the HSA, 6 U.S.C. 
279(b)(1)(B), and the TVPRA, 8 U.S.C. 1232(c)(5). In addition to the 
direct immigration representation outlined in Sec.  410.1309(a)(4), to 
the extent ORR determines that appropriations are available and use of 
pro bono counsel is impracticable, ORR proposes that ORR may (but is 
not required to) make funding for additional access to counsel 
available for unaccompanied children in the following enumerated 
situations for proceedings outside of the immigration system when 
appropriations allow and subject to ORR's discretion in no particular 
order of prioritization: (1) ORR appellate procedures, including the 
Placement Review Panel (PRP) related to placement in restrictive 
facilities under Sec.  410.1902, risk determination hearings under 
Sec.  410.1903, and the denial of a release to the child's parent or 
legal guardian under Sec.  410.1206; (2) for unaccompanied children 
upon their placement in ORR long-term home care or in an RTC outside a 
licensed ORR facility and for whom other legal assistance does not 
satisfy the legal needs of the individual child; (3) for unaccompanied 
children with no identified sponsor who are unable to be placed in ORR 
long-term home care or ORR transitional home care; (4) for purposes of 
judicial bypass or similar legal processes as necessary to enable an 
unaccompanied child to access certain lawful medical procedures that 
require the consent of the parent or legal guardian under state law and 
the unaccompanied child is unable or unwilling to obtain such consent; 
(5) for the purpose of representing an unaccompanied child in state 
juvenile court proceedings, when the unaccompanied child already 
possesses SIJ classification; and (6) for the purpose of helping an 
unaccompanied child to obtain an employment authorization document. ORR 
invites comment on these proposals under Sec.  410.1309(b), and also 
with regard to how a mechanism might be incorporated into the rule to 
help prevent, or reduce the likelihood of, the zeroing-out of funding 
for legal representation, while also ensuring sufficient funding for 
capacity to address influxes.
    At Sec.  410.1309(c), ORR proposes to establish relevant 
requirements and expectations for the provision of the legal services 
described at Sec.  410.1309(a) and (b). ORR proposes at Sec.  
410.1309(c)(1) that in the course of funding legal counsel for any 
unaccompanied children under proposed Sec.  410.1309(a)(4) or (b)(2), 
in-person meetings would be preferred, although unaccompanied children 
and their representatives would be able to meet by telephone or 
teleconference as an alternative option when needed and when such 
meetings can be facilitated in such a way as to preserve the 
unaccompanied child's privacy. Either the unaccompanied child's 
attorney of record or EOIR accredited representative or an ORR staff 
member or care provider would always accompany the unaccompanied child 
to any in-person hearing or proceeding, in connection with any legal 
representation of an unaccompanied child pursuant to Sec.  410.1309.
    When developing proposed Sec.  410.1309(c)(1), ORR considered the 
alternatives of enacting a requirement that an unaccompanied child's 
attorney of record or BIA accredited representative always be required 
to attend court hearings and proceedings in-person with the 
unaccompanied child, or that the attorney of record or EOIR accredited 
representative always engage in in-person meetings with the 
unaccompanied child while representing them, absent a good cause reason 
not to do so. ORR concluded that the current proposal at Sec.  
410.1309(c)(1) reflects a balance between ensuring that unaccompanied 
children have effective access to legal representation and services, 
while establishing a preference for in-person meetings, and ensuring 
that unaccompanied children will not have to walk into physical 
proceedings alone.
    Under proposed Sec.  410.1309(c)(2), ORR would require the sharing 
of certain information with an unaccompanied child's representative, 
including certain notices. Under paragraph (c)(2), upon receipt by ORR 
of (1) proof of representation and (2) authorization for release of 
records signed by the unaccompanied child or other authorized 
representative, ORR would, upon request, share the unaccompanied 
child's complete case file apart from any legally required redactions 
to assist with legal representation of that child. Section 
410.1309(c)(2) reflects current ORR policy guidance describing the 
process by which an individual will be recognized by ORR as the 
attorney of record or EOIR accredited representative for an 
unaccompanied child. Under current practice, ORR recognizes an 
individual as an unaccompanied child's attorney of record or EOIR 
accredited representative through the submission of an ORR form, the 
ORR Notice of Attorney Representation. ORR notes that this form is not 
identified specifically in the proposed regulatory text, so as to 
preserve operational flexibility for ORR to accept different forms of 
proof as appropriate, as needed. ORR also considered the importance of 
timely notice by ORR to the unaccompanied child's representative in 
order to allow for effective legal representation, in connection with 
law enforcement events, age redetermination processes, and allegations 
of sexual abuse or harassment.
    ORR seeks public comment on these issues, including the scope of 
reportable events or interactions with law enforcement and scope of 
notice depending on the unaccompanied child's involvement in the 
reportable event (i.e., as an alleged victim, alleged perpetrator, or 
as a witness). With allegations or accusations of sexual abuse or 
harassment, ORR solicits public comment on privacy concerns and other 
considerations. ORR also solicits comment on the appropriate timeframes 
for various types of notification.
    As discussed in section IV.B of this NPRM, the Secretary's 
authority under 8 U.S.C. 1232 has been delegated to the ORR Director. 
As discussed above, ORR understands that in addition to expanding 
access to pro bono services and funding legal services in immigration-
related proceedings or matters, it may also promote pro bono services 
and fund legal services for broader purposes that relate to protecting 
unaccompanied children from mistreatment, exploitation, and 
trafficking. Consistent with the TVPRA, ORR makes every effort to use 
pro bono legal services to the greatest extent practicable to secure 
counsel for unaccompanied children in these contexts. Specifically, 
ORR-funded legal service providers may help coordinate a referral to 
pro bono services, and ORR provides each unaccompanied child with lists 
of pro bono legal service providers by state and pro bono services 
available through a national organization upon admission into a care 
provider facility.\122\ That said, in some cases it is impracticable 
for ORR to secure pro bono legal services for unaccompanied children. 
For example, it may be impracticable to secure pro bono services if the 
demand for such services exceeds the supply of pro bono services, as 
may occur at certain locations or during times of influx. To

[[Page 68951]]

the extent pro bono legal services are unavailable or impracticable to 
secure because it has limited resources, ORR must be selective in the 
kinds of legal services it funds. As a result, ORR proposes through 
this rule to establish its discretion to fund legal services for 
specific purposes, based on its judgment and priorities.
---------------------------------------------------------------------------

    \122\ See 6 U.S.C. 279(b)(1)(I). See also Office of Refugee 
Resettlement Division of Unaccompanied Children Operations, Legal 
Resource Guide--Legal Service Provider List for [UC] in ORR Care, 
https://www.acf.hhs.gov/sites/default/files/documents/orr/english_legal_service_providers_guide_with_form_508.pdf.
---------------------------------------------------------------------------

    In terms of funding legal services, at proposed Sec.  410.1309(d), 
ORR also proposes to, in its discretion and subject to available 
resources, make available funds (if appropriated) to relevant agencies 
or organizations to provide legal services for unaccompanied children 
who have been released from ORR care and custody. ORR would establish 
authority to make available grants--including formula grants 
distributed geographically in proportion to the population of released 
unaccompanied children--or contracts for immigration legal 
representation, assistance, and related services to unaccompanied 
children.
    To prevent retaliation against legal service providers, at Sec.  
410.1309(e), ORR proposes that it shall presume that legal service 
providers are acting in good faith with respect to their advocacy on 
behalf of unaccompanied children, and ORR shall not retaliate against a 
legal service provider for actions taken within the scope of the legal 
service providers' responsibilities. For example, ORR shall not engage 
in retaliatory actions against legal service providers or any other 
representative for reporting harm or misconduct on behalf of an 
unaccompanied child. As noted at proposed Sec.  410.1309(e), ORR will 
not retaliate against legal service providers; however, ORR has the 
responsibility and authority to effectively manage its unaccompanied 
children's program which includes, for example, ensuring that the 
interests of the child are considered in decisions and actions relating 
to care and custody, implementing policies with respect to the care and 
placement of unaccompanied children, and overseeing the infrastructure 
and personnel of facilities in which unaccompanied children reside.
Section 410.1310 Psychotropic Medications
    ORR is proposing requirements related to the administration of 
psychotropic medications to unaccompanied children while in ORR care. 
ORR notes that the third of the five plaintiff classes certified by the 
United States District Court for the Central District of California in 
the Lucas R. v. Becerra case, as discussed in section IV.A.4. of this 
proposed rule, is the ``drug administration class.'' The class is 
comprised of unaccompanied children in ORR custody ``who are or will be 
prescribed or administered one or more psychotropic medications without 
procedural safeguards[.]'' \123\ ORR will be bound by any potential 
future court decisions or settlements in the case.\124\ The Court's 
Preliminary Injunction ordered on August 30, 2022, did not address this 
claim and, as of April 2023, ORR remains in active litigation regarding 
this claim.
---------------------------------------------------------------------------

    \123\ Amended Order re Defendants' Mot. to Dismiss and 
Plaintiffs' Mot. for Class Cert., Lucas R., et al. v. Xavier 
Becerra, et al., No. 18-CV-5741 (C.D. Cal. Dec. 27, 2018).
    \124\ Lucas R., et al. v. Xavier Becerra, et al., 18-CV-5741 
(DMG) (C.D. Cal. filed Jun. 29, 2018).
---------------------------------------------------------------------------

    ORR believes that psychotropic medications should only be 
administered appropriately and in the best interest of the child and 
with meaningful oversight. Therefore, ORR is proposing in Sec.  
410.1310(a) that, except in the case of a psychiatric emergency, ORR 
must ensure that, whenever possible, authorized individuals provide 
informed consent prior to the administration of psychotropic 
medications to unaccompanied children. In Sec.  410.1310(b), ORR 
proposes that it would ensure meaningful oversight of the 
administration of psychotropic medication(s) to unaccompanied children. 
Examples of such oversight are the review of cases flagged by care 
providers, and secondary retrospective reviews of the administration of 
psychotropic medication(s) in certain circumstances, such as based on 
the child's age, the number of psychotropic medications that have been 
prescribed, or the dosages of such psychotropic medications.
Section 410.1311 Unaccompanied Children With Disabilities
    ORR believes that protection against discrimination and equal 
access to the UC Program is inherent to ensuring that unaccompanied 
children with disabilities receive appropriate care while in ORR 
custody. ORR notes that the Lucas R. case, discussed in the Background 
of this proposed rule, is relevant to this topic area and that ORR will 
be bound by any potential future court decisions or settlements in the 
case. The fifth of the five plaintiff classes certified by the United 
States District Court for the Central District of California in Lucas 
R. is the ``disability class'' that includes unaccompanied children 
``who have or will have a behavioral, mental health, intellectual, and/
or developmental disability as defined in 29 U.S.C. 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')].'' \125\ 
The Court's Preliminary Injunction ordered on August 30, 2022, did not 
settle this claim and, as of April 2023, ORR remains in active 
litigation regarding this claim. ORR is proposing requirements to 
ensure the UC Program's compliance with the HHS section 504 
implementing regulations at 45 CFR part 85. ORR is therefore proposing 
at Sec.  410.1311(a) to provide notice of the protections against 
discrimination assured to unaccompanied children with disabilities by 
section 504 at 45 CFR part 85 while in the custody of ORR and the 
available procedures for seeking reasonable modifications or making a 
complaint about alleged discrimination against children with 
disabilities in ORR's custody.
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    \125\ Amended Order re Defendants' Mot. to Dismiss and 
Plaintiffs' Mot. for Class Cert., Lucas R., et al. v. Xavier 
Becerra, et al., No. 18-CV-5741 (C.D. Cal. Dec. 27, 2018).
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    ORR understands its obligations under section 504 to administer 
programs and activities in the most integrated setting appropriate to 
the needs of qualified unaccompanied children with disabilities.\126\ 
ORR is proposing at Sec.  410.1311(b) ORR shall administer the UC 
Program in the most integrated setting appropriate to the needs of 
children with disabilities, in accordance with 45 CFR 85.21(d), unless 
ORR can demonstrate that this would fundamentally alter the nature of 
its UC Program. As noted, the most integrated setting is a setting that 
enables individuals with disabilities to interact with non-disabled 
individuals to the fullest extent possible.\127\
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    \126\ 45 CFR 85.21(d).
    \127\ 53 FR 25595, 25600 (July 8, 1988).
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    ORR is proposing at Sec.  410.1311(c) that it would provide 
reasonable modifications to the UC Program for each unaccompanied child 
with one or more disabilities as needed to ensure equal access to the 
UC Program. ORR would not, however, be required to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of a program or activity. Under proposed Sec.  410.1311(d), ORR 
would require that services, supports, and program modifications being 
provided to an unaccompanied child with one or more disabilities be 
documented in the child's case file, where applicable.
    Under proposed Sec.  410.1311(e), in addition to the requirements 
for release of unaccompanied children established elsewhere in this 
regulation and through

[[Page 68952]]

any subregulatory guidance ORR may issue, ORR is proposing requirements 
regarding the release of an unaccompanied child with one or more 
disabilities to a sponsor. Section 410.1311(e)(1) would require that 
ORR's assessment under Sec.  410.1202 of a potential sponsor's 
capability to provide for the physical and mental well-being of the 
unaccompanied child must include explicit consideration of the impact 
of the child's disability or disabilities. Under Sec.  410.1311(e)(2), 
in conducting PRS, ORR and any entities through which ORR provides PRS 
shall make reasonable modifications in their policies, practices, and 
procedures if needed to enable released unaccompanied children with 
disabilities to live in the most integrated setting appropriate to 
their needs, such as with a sponsor. ORR is not required, however, to 
take any action that it can demonstrate would result in a fundamental 
alteration in the nature of a program or activity. Additionally, ORR 
would affirmatively support and assist otherwise viable potential 
sponsors in accessing and coordinating appropriate post-release, 
community-based services and supports available in the community to 
support the sponsor's ability to care for the unaccompanied child with 
one or more disabilities, as provided for under proposed Sec.  
410.1210. Under Sec.  410.1311(e)(3), ORR would not delay the release 
of an unaccompanied child with one or more disabilities solely because 
post-release services are not in place prior to the child's release.

Subpart E--Transportation of an Unaccompanied Child

Section 410.1400 Purpose of This Subpart
    This proposed subpart concerns the safe transportation of each 
unaccompanied child while in ORR's care. ORR notes that ORR generally 
does not provide transport for initial placements upon referral from 
another Federal agency, but rather, it is the responsibility of other 
Federal agencies to transfer the unaccompanied child to ORR custody 
within 72 hours of determining the individual is an unaccompanied 
child.\128\ ORR, or its care provider facilities, does provide 
transportation while the unaccompanied child is under its care 
including in the following circumstances: (1) for purposes of service 
provision, such as for medical services, immigration court hearings, or 
community services; (2) when transferring between facilities or to an 
out of network placement; (3) group transfers due to an emergency or 
influx; and (4) for release of an unaccompanied child to a sponsor who 
is not able to pick up the unaccompanied child, as approved by ORR. 
Proposed subpart E provides certain requirements for such 
transportation while unaccompanied children are under ORR care.
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    \128\ See 8 U.S.C. 1232(b)(3).
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Section 410.1401 Transportation of an Unaccompanied Child in ORR's Care
    ORR proposes transportation requirements for care provider 
facilities to help ensure that unaccompanied children are safely 
transported during their time in ORR care. Proposed Sec.  410.1401(a) 
would require care provider facilities to transport an unaccompanied 
child in a manner that is appropriate to the child's age and physical 
and mental needs, including proper use of car seats for young children, 
and consistent with proposed Sec.  410.1304. For example, individuals 
transporting unaccompanied children would be able to use de-escalation 
or other positive behavior management techniques to ensure safety, as 
explained in the discussion of proposed Sec.  410.1304(a). As discussed 
in proposed Sec.  410.1304(f), care provider facilities may only use 
soft restraints (e.g., zip ties and leg or ankle weights) during 
transport to and from secure facilities, and only when the care 
provider facility believes the child poses a serious risk of physical 
harm to self or others or a serious risk of running away from ORR 
custody. As discussed in proposed Sec.  410.1304(e)(2), secure 
facilities, except for RTCs, may restrain a child for their own 
immediate safety or that of others during transport to an immigration 
court or an asylum interview. ORR believes the proposed requirements at 
Sec.  410.1401(a) are important to ensuring the safety of unaccompanied 
children as well as those around them while being transported in ORR 
care.
    Under proposed Sec.  410.1401(b), ORR would codify a requirement in 
the FSA that it assist without undue delay in making transportation 
arrangements where it has approved the release of an unaccompanied 
child to a sponsor, pursuant to proposed Sec. Sec.  410.1202 and 
410.1203. ORR also proposes that it would have the authority to require 
the care provider facility to transport an unaccompanied child. In 
these circumstances, ORR may, in its discretion, reimburse the care 
provider facility or pay directly for the child and/or sponsor's 
transportation, as appropriate, to facilitate timely release.
    To further ensure safe transportation of unaccompanied children, 
proposed Sec.  410.1401(c) proposes to codify existing ORR policy that 
care provider facilities shall comply with all relevant State and local 
licensing requirements and state and Federal regulations regarding 
transportation of children, such as meeting or exceeding the minimum 
staff/child ratio required by the care provider facility's licensing 
agency, maintaining and inspecting all vehicles used for 
transportation, etc. If there is a potential conflict between ORR's 
regulations and state law, ORR will review the circumstances to 
determine how to ensure that it is able to meet its statutory 
responsibilities. It is important to note, however, that if a State law 
or license, registration, certification, or other requirement conflicts 
with an ORR employee's duties within the scope of their ORR employment, 
the ORR employee is required to abide by their Federal duties, which 
ORR proposes at Sec.  410.1401(d). Under proposed Sec.  410.1401(e), 
ORR proposes to require the care provider facility to conduct all 
necessary background checks for drivers transporting unaccompanied 
children, in compliance with proposed Sec.  410.1305(a). Finally, 
proposed Sec.  410.1401(f) proposes to codify existing ORR policy that 
if a care provider facility is transporting an unaccompanied child, 
then at least one transport staff of the same gender as the 
unaccompanied child being transported must be present in the vehicle to 
the greatest extent possible under the circumstances.

Subpart F--Data and Reporting Requirements

    Proposed 45 CFR part 410, subpart F, provides guidelines for care 
provider facilities to report information such that ORR may compile and 
maintain statistical information and other data on unaccompanied 
children.
Section 410.1500 Purpose of This Subpart
    The HSA requires the collection of certain data about the children 
in ORR's care and custody.\129\ Specifically, ORR is required to 
maintain statistical and other information on unaccompanied children 
for whom ORR is responsible, including information available from other 
government agencies and including information related to a child's 
biographical information, the date the child entered Federal custody 
due to immigration status, documentation of placement, transfer, 
removal, and release from ORR facilities, documentation of and 
rationale for any detention, and

[[Page 68953]]

information about the disposition of any actions in which the child is 
the subject.
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    \129\ 6 U.S.C. 279(b)(1)(J).
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Section 410.1501 Data on Unaccompanied Children
    This proposed section implements the HSA by requiring care provider 
facilities to maintain and periodically report to ORR data described in 
proposed Sec.  410.1501(a) through (e): biographical information, such 
as an unaccompanied child's name, gender, date of birth, country of 
birth, whether of indigenous origin and country of habitual residence; 
the date on which the unaccompanied child came into Federal custody by 
reason of immigration status; information relating to the unaccompanied 
child's placement, removal, or release from each care provider facility 
in which the child has resided, including the date and to whom and 
where placed, transferred, removed, or released in any case in which 
the unaccompanied child is placed in detention or released, an 
explanation relating to the detention or release; and the disposition 
of any actions in which the child is the subject. In addition, for 
purposes of ensuring that ORR can continue to appropriately support and 
care for children in its care throughout their time in ORR care 
provider facilities, as well as to allow additional program review, ORR 
proposes in Sec.  410.1501(f) and (g) that care provider facilities 
also document and periodically report to ORR information gathered from 
assessments, evaluations, or reports of the child and data necessary to 
evaluate and improve the care and services for unaccompanied children. 
ORR notes that some of the information described in this section, such 
as requirements described at paragraphs (f) and (g), or reporting 
regarding whether an unaccompanied child is of indigenous origin, is 
not specifically enumerated at 6 U.S.C. 279(b)(1)(J). Nevertheless, ORR 
proposes including such information in the rule text because it 
understands maintaining such information to be consistent with other 
duties under the HSA to coordinate and implement the care and placement 
of unaccompanied children.

Subpart G--Transfers

    In this NPRM, ORR proposes to codify requirements and policies 
regarding the transfer of an unaccompanied child in ORR care. The 
following provisions identify general requirements for the transfer of 
an unaccompanied child, as well as certain circumstances in which 
transfers are necessary, such as in emergencies.
Section 410.1600 Purpose of This Subpart
    ORR proposes at Sec.  410.1600 to codify the purpose of this 
subpart as providing the guidelines for the transfer of an 
unaccompanied child.
Section 410.1601 Transfer of an Unaccompanied Child Within the ORR Care 
Provider Facility Network
    ORR proposes, at Sec.  410.1601(a), to codify general requirements 
for transfers of an unaccompanied child within the ORR care provider 
network. ORR proposes that care provider facilities would be required 
to continuously assess an unaccompanied child in their care to ensure 
the unaccompanied child placements are appropriate. This proposed 
requirement is consistent with the TVPRA, which provides that an 
unaccompanied child shall be placed in the least restrictive setting 
that is in their best interests, subject to considerations of danger to 
self or the community and runaway risk.\130\ Additionally, care 
provider facilities would be required to follow ORR policy guidance, 
including guidance regarding placement considerations, when making 
transfer recommendations. ORR also proposes requirements for care 
provider facilities to ensure the health and safety of an unaccompanied 
child. The proposed requirements align with proposed Sec.  410.1307(b), 
where ORR proposes procedures related to placements upon the ORR 
transfer of an unaccompanied child to a facility that is able to 
accommodate the medical needs or requests of the unaccompanied child.
---------------------------------------------------------------------------

    \130\ 8 U.S.C. 1232(c)(3)(A).
---------------------------------------------------------------------------

    At proposed Sec.  410.1601(a)(1), care provider facilities would be 
required to make transfer recommendations to ORR if they identify an 
alternate placement for a child that best meets a child's needs. Under 
proposed Sec.  410.1601(a)(2), when ORR transfers an unaccompanied 
child, the unaccompanied child's current care provider facility would 
be required to ensure that the unaccompanied child is medically cleared 
for transfer within three business days, provided the unaccompanied 
child's health allows and unless otherwise waived by ORR. For an 
unaccompanied child with acute or chronic medical conditions, or 
seeking medical services requiring heightened ORR involvement, the 
appropriate care provider facility staff and ORR would be required to 
meet to review the transfer recommendation. Should the unaccompanied 
child not be medically cleared for transfer within three business days, 
the care provider facility would be required to notify ORR. ORR would 
provide the final determination of a child's fitness for travel if the 
child is not medically cleared for transfer by a care provider 
facility. Should ORR determine the unaccompanied child is not fit for 
travel, ORR would be required to notify the unaccompanied child's 
current care provider facility of the denial and specify a timeframe 
for the care provider facility to re-evaluate the transfer of the 
unaccompanied child. ORR welcomes public comment on these proposals.
    At proposed Sec.  410.1601(a)(3), ORR describes notifications that 
would be required when ORR transfers an unaccompanied child to another 
care provider facility, including required timeframes for such 
notifications. Specifically, ORR proposes that within 48 hours prior to 
the unaccompanied child's physical transfer, the referring care 
provider facility would be required to notify all appropriate 
interested parties of the transfer, including the child, the child's 
attorney of record, legal service provider, or Child Advocate, as 
applicable. ORR notes, in addition, that interested parties may include 
EOIR. Proposed Sec.  410.1601(a)(3) further provides that advanced 
notice shall not be required in unusual and compelling circumstances. 
In such a case, notice to interested parties must be provided within 24 
hours following the transfer of an unaccompanied child in such 
circumstances. ORR is aware of concerns around notifications regarding 
the transfer of an unaccompanied child and believes that these proposed 
requirements provide an effective timeline and notice while still 
allowing for flexibility if there are unusual and compelling 
circumstances. ORR believes proposed Sec.  410.1601(a)(3) is consistent 
with, and even goes beyond, the requirements set out in the FSA at 
paragraph 27, which requires only ``advance notice'' to counsel when an 
unaccompanied child is transferred but does not specify how much 
advance notice is required.
    Proposed Sec.  410.1601(a)(4) and (5) would codify requirements 
from paragraph 27 of the FSA that children be transferred with their 
possessions and legal papers, and any possessions that exceed the 
normally permitted amount by carriers be shipped in a timely manner to 
where the child is placed. ORR would also require that children be 
transferred with a 30-day supply of medications if applicable. 
Consistent with existing practice, ORR would require that the accepting 
care provider is instructed in the proper administration of the 
unaccompanied child's medications.

[[Page 68954]]

    Proposed Sec.  410.1601(b) would codify current ORR practices 
regarding the review of restrictive placements. When unaccompanied 
children are placed in a restrictive setting (secure, heightened 
supervision, or Residential Treatment Center), the receiving care 
provider facility and ORR would be required to review their placement 
at least every 30 days to determine if another level of care is 
appropriate. Should the care provider facility and ORR determine that 
continued placement in a restrictive setting is necessary, the care 
provider facility would be required to document, and as requested, 
provide the rationale for continued placement to the child's attorney 
of record, legal service provider, and their Child Advocate.
    Proposed Sec.  410.1601(c) describes requirements related to group 
transfers. Group transfers are described as circumstances where a care 
provider facility transfers more than one child at a time, due to 
emergencies or program closures, for example. Under proposed Sec.  
410.1601(c), when group transfers are necessary, care provider 
facilities would be required to follow ORR policy guidance and 
additionally be required to follow the substantive requirements 
provided in Sec.  410.1601(a). ORR believes that clarifying these 
requirements for care provider facilities engaging in group transfers 
would help to ensure the safety and health of unaccompanied children in 
emergency and other situations that require the transfer of multiple 
unaccompanied children. ORR seeks public comment on these proposals.
    Proposed Sec.  410.1601(d) describes requirements related to the 
transfer of an unaccompanied child in a care provider facility's care 
to an RTC. Under this proposed provision, care provider facilities 
would be permitted to request the transfer of an unaccompanied child in 
their care pursuant to the requirements of proposed Sec.  410.1105(c).
    ORR proposes, at Sec.  410.1601(e), requirements concerning the 
temporary transfer of an unaccompanied child during emergency 
situations. In Sec.  410.1601(e), ORR makes clear that, consistent with 
the HSA and TVPRA, an unaccompanied child remains in the legal custody 
of ORR and may only be transferred or released by ORR. As allowed under 
the FSA, ORR proposes, in emergency situations, to allow care provider 
facilities to temporarily change the physical placement of an 
unaccompanied child prior to securing permission from ORR. But in these 
situations, ORR would require the care provider to notify ORR of the 
change of placement as soon as possible, but in all cases within eight 
hours of transfer.
    As a general matter and given the standard that placements must be 
in the best interests of the child, it is ORR's preference to minimize 
the transfer of an unaccompanied child and limit transfers to 
situations in which a transfer is necessary in order to promote 
stability and encourage establishment of relationships, particularly 
among vulnerable children in ORR care. ORR broadly invites public 
comment on all of the proposals under subpart G, and solicits input 
regarding the specifics, language, and scope of additional provisions 
related to minimizing the transfers of an unaccompanied child and the 
placement of an unaccompanied child with disabilities.

Subpart H--Age Determinations

    In subpart H of this proposed rule, ORR provides guidelines for 
determining the age of an individual in ORR care. The TVPRA instructs 
HHS to devise age determination procedures for individuals without 
lawful immigration status in consultation with DHS.\131\ Consistent 
with the TVPRA, HHS and DHS jointly developed policies and procedures 
to assist in the process of determining the correct age of individuals 
in Federal custody. Establishing the age of the individual is critical 
because, for purposes of the UC Program, HHS only has authority to 
provide care to unaccompanied children, who are defined in relevant 
part as individuals who have not attained 18 years of age. ORR also 
notes that the FSA allows for age determinations in the event there is 
a question as to veracity of the individual's alleged age.
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    \131\ See 8 U.S.C. 1232(b)(4).
---------------------------------------------------------------------------

Section 410.1700 Purpose of This Subpart
    ORR acknowledges the challenges in determining the age of 
individuals who are in Federal care and custody. These challenges 
include but are not limited to: lack of available documentation; 
contradictory or fraudulent identity documentation and/or statements; 
ambiguous physical appearance of the individual; and diminished 
capacity of the individual. Proposed Sec.  410.1700 sets forth the 
purpose of this subpart as providing the provisions for determining the 
age of an individual in ORR custody. ORR notes that under this proposed 
section, and as a matter of current practice, it would only conduct age 
determination procedures if there is a reasonable suspicion that an 
individual is not a minor. ORR believes that the proposed requirements 
and standards described within this subpart properly balance the 
concerns of children who are truly unaccompanied children with the 
importance of ensuring individuals are appropriately identified as a 
minor. ORR notes that proposed Sec.  410.1309 regards required 
notification to legal counsel regarding age determinations.
Section 410.1701 Applicability
    Proposed Sec.  410.1701 states that this subpart would apply to 
individuals in the custody of ORR. This would be consistent with 8 
U.S.C. 1232(b)(4), which specifies that DHS' and HHS' age determination 
procedures ``shall'' be used by each department ``for children in their 
respective custody.'' Proposed Sec.  410.1701 also reiterates that 
under the statutory definition of an unaccompanied child,\132\ an 
individual must be under 18 years of age.
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    \132\ See 6 U.S.C. 279(g)(2).
---------------------------------------------------------------------------

Section 410.1702 Conducting Age Determinations
    Proposed Sec.  410.1702 would codify general requirements for 
conducting age determinations. The TVPRA requires that age 
determination procedures, at a minimum, consider multiple forms of 
evidence, including non-exclusive use of radiographs. Given these 
minimum requirements, proposed Sec.  410.1702 would allow for the use 
of medical or dental examinations, including X-rays, conducted by a 
medical professional, and other appropriate procedures. The terms 
``medical'' and ``dental examinations'' are taken from the FSA at 
paragraph 13, and ORR interprets them to include ``radiographs'' as 
discussed in the TVPRA. Under proposed Sec.  410.1702, ORR would 
require that procedures for determining the age of an individual 
consider the totality of the circumstances and evidence rather than 
rely on any single piece of evidence to the exclusion of all others.
Section 410.1703 Information Used as Evidence To Conduct Age 
Determinations
    Proposed Sec.  410.1703 describes information that ORR would be 
able to use as evidence to conduct age determination. Under proposed 
Sec.  410.1703(a), ORR would establish that it considers multiple forms 
of evidence, and that it makes age determinations based upon a totality 
of evidence. Under proposed Sec.  410.1703(b), ORR may consider 
information or documentation to make an age determination, including 
but not limited to: (1) birth certificate, including a certified copy, 
photocopy, or facsimile copy if there is no

[[Page 68955]]

acceptable original birth certificate and proposes that ORR may consult 
with the consulate or embassy of the individual's country of birth to 
verify the validity of the birth certificate presented; (2) authentic 
government-issued documents issued to the bearer; (3) other 
documentation, such as baptismal certificates, school records, and 
medical records, which indicate an individual's date of birth; (4) 
sworn affidavits from parents or other relatives as to the individual's 
age or birth date; (5) statements provided by the individual regarding 
the individual's age or birth date; (6) statements from parents or 
legal guardians; (7) statements from other persons apprehended with the 
individual; and (8) medical age assessments, which should not be used 
as a sole determining factor but only in concert with other factors.
    Regarding the proposed use of medical age assessments, at proposed 
Sec.  410.1703(b)(8), ORR would codify a 75 percent probability 
threshold, that, when used in conjunction with other evidence, reflects 
a reasonable standard that would prevent inappropriate placements in 
housing intended for unaccompanied children. The examining doctor would 
be required to submit a written report indicating the probability 
percentage that the individual is a minor or an adult. If an 
individual's estimated probability of being 18 or older is 75 percent 
or greater according to a medical age assessment, then ORR would accept 
the assessment as one piece of evidence in favor of a finding that the 
individual is not an unaccompanied child. But consistent with the 
TVPRA, ORR would not be permitted to rely on such a finding alone; only 
if such a finding has been considered together with other forms of 
evidence, and the totality of the evidence supports such a finding 
would ORR determines that the individual is 18 or older. The 75 percent 
probability threshold applies to all medical methods and approaches 
identified by the medical community as appropriate methods for 
assessing age. Ambiguous, debatable, or borderline forensic examination 
results are resolved in favor of finding the individual is a minor. ORR 
believes that requirements at proposed Sec.  410.1703 would enable ORR 
to utilize multiple forms of evidence.
Section 410.1704 Treatment of an Individual Who Appears To Be an Adult
    Proposed Sec.  410.1704 would codify the substantive requirement 
from paragraph 13 of the FSA regarding treatment of an individual who 
appears to be an adult. Specifically, if the procedures in this subpart 
would result in a reasonable person concluding, based on the totality 
of the evidence, that an individual is an adult, despite the 
individual's claim to be under the age of 18, ORR would treat such 
person as an adult for all purposes. As provided in current ORR 
policy,\133\ an individual in ORR care or their attorney of record may, 
at any time, present new information or evidence that they are 18 or 
older for re-evaluation of an age determination. If the new information 
or evidence indicates that an individual who is presumed to be an 
unaccompanied child is an adult, then ORR will coordinate with DHS to 
take appropriate actions, which may include transferring the individual 
out of ORR custody back to DHS custody.
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    \133\ ORR Policy Guide 1.6.2, ``Instructions for Age 
Determinations''. Available at: https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide-section-1.
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Subpart I--Emergency and Influx Operations

    In subpart I of this proposed rule, ORR proposes to codify 
guidelines applicable to emergency or influx facilities that ORR opens 
or operates during a time of and in response to emergency or influx. 
This subpart applies the requirement at paragraph 12.C of the FSA to 
have a written plan that describes the reasonable efforts the former 
INS, now ORR, will take to place all unaccompanied children as 
expeditiously as possible.
    As a matter of policy, ORR has a strong preference to house 
unaccompanied children in standard programs; however, ORR recognizes 
that in times of emergency or influx additional facilities may be 
needed, on short notice, to house unaccompanied children. As used in 
this subpart, emergency means an act or event (including, but not 
limited to, a natural disaster, facility fire, civil disturbance, or 
medical or public health concerns at one or more facilities) that 
prevents timely transport or placement of unaccompanied children, or 
impacts other conditions provided by this part. Influx means a 
situation in which the net bed capacity of ORR's existing capacity in 
standard programs that is occupied or held for placement by 
unaccompanied children meets or exceeds 85 percent for a period of 
seven consecutive days. In this proposed rule, ORR defines ``Emergency 
or Influx Facilities'' as a single term to encompass a care provider 
facility opened in response to either an emergency or influx and to 
propose that such a facility would meet the minimum requirements 
described in this subpart. These facilities may be contracted for and 
stood up in advance of an emergency or an influx in preparation of such 
an event, but no children would be placed in such a facility until an 
emergency or influx exists.
    Importantly, this definition of ``influx'' departs from that used 
in the FSA which defined ``influx'' as a situation in which 130 or more 
unaccompanied children were awaiting placement. In this proposed rule, 
ORR takes a new approach to defining ``influx'' based on its 
experiences in the years after the settlement agreement and in light of 
the increased numbers of unaccompanied children over time. In this 
rule, ORR proposes to define an ``influx'' without reference to a set 
number of unaccompanied children, but rather to circumstances 
reflecting a significant increase in the number of unaccompanied 
children that exceeds the standard capabilities of the Federal 
Government to process and transport them timely and/or to shelter them 
with existing resources. ORR believes that using the 85 percent 
threshold provides a reasonable measure to determine when bed capacity 
in the standard programs is strained to the point that accepting 
referrals from DHS within 72 hours becomes very challenging. ORR notes 
that this 85 percent threshold would align with ORR's current practices 
and is based on ORR's experience with influx trends and organizational 
capacity. During these times of emergency or influx, ORR may house 
unaccompanied children at emergency or influx facilities. ORR notes 
that, consistent with current policy, placements of unaccompanied 
children at emergency or influx facilities during a period of influx 
cease when operational capacity in standard programs drops below 85 
percent for a period of at least seven consecutive days.
Section 410.1800 Contingency Planning and Procedures During an 
Emergency or Influx
    ORR recognizes that during times of emergency or when there is an 
influx of unaccompanied children, it is important to have policies and 
procedures in place to ensure that all unaccompanied children have 
their needs met and receive appropriate care and protection. ORR opens 
additional facilities in times of influx or emergency when its standard 
provider network does not have sufficient bed space available to 
provide shelter and services for children. Because these facilities are 
intended to be a temporary response to an influx or emergency, when 
speed

[[Page 68956]]

may be critical, they may not be licensed or may be exempted from 
licensing requirements by state or local licensing agencies, or both. 
Although ORR's preference is to place unaccompanied children in 
licensed facilities whenever possible, these emergency or influx 
facilities may be used to house unaccompanied children temporarily when 
time is of the essence. Regardless of licensure status, these 
facilities must meet ORR standards and must comply to the greatest 
extent possible with state child welfare laws and regulations. If there 
is a potential conflict between ORR's regulations and state law, ORR 
will review the circumstances to determine how to ensure that it is 
able to meet its statutory responsibilities. It is important to note, 
however, that if a State law or license, registration, certification, 
or other requirement conflicts with an ORR employee's duties within the 
scope of their ORR employment, the ORR employee is required to abide by 
their Federal duties. ORR proposes at Sec.  410.1800 to codify 
guidelines for contingency planning and procedures to use during an 
emergency or influx.
    Under proposed Sec.  410.1800(a), ORR would regularly reevaluate 
the number of placements needed for unaccompanied children to determine 
whether the number of shelters, heightened supervision facilities, and 
ORR transitional home care beds should be adjusted to accommodate an 
increased or decreased number of unaccompanied children eligible for 
placement in care in ORR custody provider facilities.
    At Sec.  410.1800(b), consistent with paragraph 12A of the FSA, ORR 
proposes that in the event of an emergency or influx that prevents the 
prompt placement of unaccompanied children in standard programs, ORR 
shall make all reasonable efforts to place each unaccompanied child in 
a standard program as expeditiously as possible. As described in 
proposed Sec.  410.1800(a) and consistent with ORR's preference to 
place unaccompanied children in standard care provider facilities, 
ORR's commitment to regularly reevaluating the number of placements 
needed will help this effort to place unaccompanied children in 
licensed programs quickly.
    At Sec.  410.1800(c), ORR proposes that activities during an influx 
or emergency include the following: (1) ORR implements its contingency 
plan on emergencies and influxes, which may include opening facilities 
in times of emergency or influx; (2) ORR continually develops standard 
programs that are available to accept emergency or influx placements; 
and (3) ORR maintains a list of unaccompanied children affected by the 
emergency or influx including each unaccompanied child's: (i) name; 
(ii) date and country of birth; (iii) date of placement in ORR's 
custody; and (iv) place and date of current placement.
Section 410.1801 Minimum Standards for Emergency or Influx Facilities
    At Sec.  410.1801(a), ORR notes that in addition to the standards 
it has for standard programs and restrictive placements, this section 
provides a set of minimum standards that must be followed for emergency 
or influx facilities. ORR notes, as described Sec.  410.1000(c), that 
it does not operate facilities other than standard programs, 
restrictive placements, or emergency or influx facilities, absent a 
specific waiver as described below at Sec.  410.1801(d) or such 
additional waivers as are permitted by law.
    At Sec.  410.1801(b), ORR proposes a list of minimum services that 
must be provided to all unaccompanied children in the care of emergency 
or influx facilities, and available at the time of the facility 
opening. These services, which are consistent with Exhibit 1 of the 
FSA, would apply the same minimum service requirements that apply under 
the FSA to standard care facilities to emergency or influx facilities. 
Under Sec.  410.1801(b)(1), these proposed minimum services would 
require that emergency or influx facilities provide unaccompanied 
children with proper physical care and maintenance, including suitable 
living accommodations, food, appropriate clothing, and personal 
grooming items. ORR proposes at Sec.  410.1801(b)(2) that emergency and 
influx facilities provide unaccompanied children with appropriate 
routine medical and dental care; family planning services, including 
pregnancy tests; medical services requiring heightened ORR involvement; 
emergency healthcare services; a complete medical examination 
(including screenings for infectious diseases) generally within 48 
hours of admission; appropriate immunizations as recommended by the 
Advisory Committee on Immunization Practices' Child and Adolescent 
Immunization Schedule and approved by HHS' Centers for Disease Control 
and prevention; administration of prescribed medication and special 
diets; and appropriate mental health interventions when necessary.
    ORR believes that the unique needs and background of each 
unaccompanied child should be assessed by emergency or influx 
facilities to ensure that these needs are being addressed and supported 
by the emergency or influx facility. Therefore, under proposed Sec.  
410.1801(b)(3), and consistent with ORR's existing policy and practice, 
ORR would require that each unaccompanied child receive an 
individualized needs assessment that includes: the various initial 
intake forms, collection of essential data relating to the 
identification and history of the child and the child's family, 
identification of the unaccompanied child's special needs including any 
specific problems which appear to require immediate intervention, an 
educational assessment and plan, and an assessment of family 
relationships and interaction with adults, peers and authority figures; 
a statement of religious preference and practice; an assessment of the 
unaccompanied child's personal goals, strengths and weaknesses; 
identifying information regarding immediate family members, other 
relatives, godparents or friends who may be residing in the United 
States and may be able to assist in connecting the child with family 
members.
    Access to education services for unaccompanied children in care 
from qualified professionals is critical to avoid learning loss while 
in care and ensure unaccompanied children are developing academically. 
Under proposed Sec.  410.1801(b)(4), ORR would require that emergency 
or influx facilities provide educational services appropriate to the 
unaccompanied child's level of development and communication skills in 
a structured classroom setting Monday through Friday, which 
concentrates primarily on the development of basic academic 
competencies, and secondarily on English Language Training. ORR 
proposes that, as part of these minimum services for unaccompanied 
children in emergency or influx facilities, the educational program 
shall include instruction and educational and other reading materials 
in such languages as needed. Basic academic areas should include 
Science, Social Studies, Math, Reading, Writing and Physical Education. 
The program must provide unaccompanied children with appropriate 
reading materials in languages other than English for use during 
leisure time.
    ORR strongly believes that time for recreation is essential to 
supporting the health and wellbeing of unaccompanied children. Under 
proposed Sec.  410.1801(b)(5), ORR would require that emergency or 
influx facilities provide unaccompanied children with activities 
according to a recreation and leisure time plan that include daily 
outdoor activity--weather permitting--

[[Page 68957]]

with at least one hour per day of large muscle activity and one hour 
per day of structured leisure time activities (that should not include 
time spent watching television). Activities should be increased to a 
total of three hours on days when school is not in session.
    The psychological and emotional wellbeing of unaccompanied children 
are an important component of their overall health and wellbeing, and 
therefore ORR is proposing that these needs must be met by emergency or 
influx facilities. Under proposed Sec.  410.1801(b)(6), emergency or 
influx facilities would be required to provide at least one individual 
counseling session per week conducted by trained social work staff with 
the specific objective of reviewing the child's progress, establishing 
new short-term objectives, and addressing both the developmental and 
crisis-related needs of each child. Group counseling sessions are 
another way that the psychological and emotional wellbeing of 
unaccompanied children can be supported while in ORR care. Therefore, 
under Sec.  410.1801(b)(7), ORR proposes that unaccompanied children 
would also receive group counseling sessions at least twice a week. 
Sessions are usually informal and take place with all unaccompanied 
children present. ORR believes that these group sessions would give new 
children the opportunity to get acquainted with staff, other children, 
and the rules of the program, as well as provide them with an open 
forum where everyone gets a chance to speak. Daily program management 
is discussed, and decisions are made about recreational and other 
activities. ORR notes that these group sessions would provide a 
meaningful opportunity to allow staff and unaccompanied children to 
discuss whatever is on their minds and to resolve problems.
    At proposed Sec.  410.1801(b)(8), emergency or influx facilities 
would be required to provide unaccompanied children with acculturation 
and adaptation services, which include information regarding the 
development of social and interpersonal skills which contribute to 
those abilities necessary to live independently and responsibly. ORR 
believes these services are important to supporting the social 
development and meeting the cultural needs of unaccompanied children in 
emergency or influx facilities. ORR proposes to require, under Sec.  
410.1801(b)(9), that emergency or influx facilities provide a 
comprehensive orientation regarding program intent, services, rules 
(written and verbal), expectations, and the availability of legal 
assistance. In an effort to support each child's spiritual and 
religious practices, ORR proposes at Sec.  410.1801(b)(10), that 
emergency or influx facilities would be required to provide 
unaccompanied children access to religious services of the child's 
choice whenever possible. At the same time, with respect to the 
obligations of care provider facilities, ORR notes that it operates the 
Unaccompanied Children program in compliance with the requirements of 
the Religious Freedom Restoration Act and other applicable Federal 
conscience protections, as well as all other applicable Federal civil 
rights laws and applicable HHS regulations.\134\
---------------------------------------------------------------------------

    \134\ See 45 CFR 87.3(a).
---------------------------------------------------------------------------

    ORR proposes at Sec.  410.1801(b)(11) that emergency or influx 
facilities would make visitation and contact with family members 
(regardless of their immigration status) available to unaccompanied 
children in such a way that is structured to encourage such visitation. 
ORR notes that the staff must respect the child's privacy while 
reasonably preventing the unauthorized release of the unaccompanied 
child. Under proposed Sec.  410.1801(b)(12), unaccompanied children at 
emergency or influx facilities would have a reasonable right to 
privacy, which includes the right to wear the child's own clothes when 
available, retain a private space in the residential facility, group or 
foster home for the storage of personal belongings, talk privately on 
the phone and visit privately with guests, as permitted by the house 
rules and regulations, receive and send uncensored mail unless there is 
a reasonable belief that the mail contains contraband. ORR proposes at 
Sec.  410.1801(b)(13) that unaccompanied children at emergency or 
influx facilities would be provided services designed to identify 
relatives in the United States as well as in foreign countries and 
assistance in obtaining legal guardianship when necessary for the 
release of the unaccompanied child. Under proposed Sec.  
410.1801(b)(14), emergency or influx facilities would be required to 
provide unaccompanied children with legal services information, 
including the availability of free legal assistance, and that they may 
be represented by counsel at no expense to the government the right to 
a removal hearing before an immigration judge; the ability to apply for 
asylum with USCIS in the first instance; and the ability to request 
voluntary departure in lieu of deportation.
    ORR proposes at Sec.  410.1801(b)(15) that emergency or influx 
facilities, whether state-licensed or not, must comply, to the greatest 
extent possible, with State child welfare laws and regulations (such as 
mandatory reporting of abuse), as well as State and local building, 
fire, health and safety codes, that ORR determines are applicable to 
non-State licensed facilities. If there is a potential conflict between 
ORR's regulations and state law, ORR will review the circumstances to 
determine how to ensure that it is able to meet its statutory 
responsibilities. It is important to note, however, that if a State law 
or license, registration, certification, or other requirement conflicts 
with an ORR employee's duties within the scope of their ORR employment, 
the ORR employee is required to abide by their Federal duties. Under 
proposed Sec.  410.1801(b)(16), emergency or influx facilities must 
deliver services in a manner that is sensitive to the age, culture, 
native language, and needs of each unaccompanied child. To support this 
proposed minimum service, emergency or influx facilities would be 
required to develop an individual service plan for the care of each 
child. Finally, proposed Sec.  410.1801(b)(17) would require that the 
emergency or influx facility maintains records of case files and make 
regular reports to ORR. Emergency or influx facilities must have 
accountability systems in place, which preserve the confidentiality of 
client information and protect the records from unauthorized use or 
disclosure.
    At Sec.  410.1801(c), ORR proposes that emergency or influx 
facilities must do the following when providing services to 
unaccompanied children: (1) Maintain safe and sanitary conditions that 
are consistent with ORR's concern for the particular vulnerability of 
minors; (2) Provide access to toilets, showers and sinks, as well as 
personal hygiene items such as soap, toothpaste and toothbrushes, 
floss, towels, feminine care items, and other similar items; (3) 
Provide drinking water and food; (4) Provide medical assistance if the 
unaccompanied child is in need of emergency services; (5) Maintain 
adequate temperature control and ventilation; (6) Provide adequate 
supervision to protect unaccompanied children; (7) separate from other 
unaccompanied children those unaccompanied children who are 
subsequently found to have past criminal or juvenile detention 
histories or have perpetrated sexual abuse that present a danger to 
themselves or others; (8) Provide contact with family members who were 
arrested with the unaccompanied child; and (9) Provide access to legal 
services as proposed at

[[Page 68958]]

Sec.  410.1309 in this proposed rule. ORR notes that these requirements 
are based in part on standards described in the FSA at paragraph 12A. 
Although ORR understands these requirements apply specifically to the 
conditions in DHS facilities following initial arrest or encounter by 
immigration officers at DHS, nevertheless, because they set out 
additional safeguards for unaccompanied children, ORR proposes to adopt 
them for purposes of emergency or influx facilities under this rule. In 
addition to these proposed minimum standards, ORR proposes in subpart D 
at Sec.  410.1306, certain language access requirements for care 
provider facilities which directly relate to these minimum requirements 
described. Specifically, ORR proposes that care provider facilities be 
required to consistently offer unaccompanied children the option of 
interpretation services in their native or preferred language to the 
greatest extent practicable. This includes, but is not limited to, 
providing language access during intake and orientation, while 
receiving healthcare services, while receiving information related to 
the sexual assault and abuse program, and while being provided with 
legal services. Additionally, consistent with paragraph 12A of the FSA, 
ORR would transfer an unaccompanied child to another care provider 
facility if necessary to provide adequate language services. These 
language access requirements are intended to protect unaccompanied 
children's interests and ensure that they understand their legal rights 
and options available to them, the nature of ORR custody and the 
general ORR principles regarding their care, and that they have access 
to adequate and effective legal representation if necessary. Many of 
these services are provided by case managers, who must have a presence 
onsite at the emergency or influx facility.
    At Sec.  410.1801(d), ORR proposes certain scenarios in which ORR 
may grant waivers for an emergency or influx facility operator, either 
a contractor or grantee, from the standards proposed under Sec.  
410.1801(b). Specifically, waivers may be granted for one or all of the 
services identified under Sec.  410.1801(b) if the facility is 
activated for a period of six consecutive months or less and ORR 
determines that such standards are operationally infeasible. For 
example, an emergency or influx facility operator may be unable to 
provide services at the site within the timeframe required by ORR. ORR 
determines whether certain standards are operationally infeasible on a 
case-by-case basis, taking into consideration the circumstances 
presented by a specific emergency or influx facility. ORR also would 
require that such waivers be made publicly available.
Section 410.1802 Placement Standards for Emergency or Influx Facilities
    ORR proposes at Sec.  410.1802 to codify the criteria and 
requirements that apply to placement of unaccompanied children at 
emergency or influx facilities. ORR notes that these proposed 
requirements are consistent with existing ORR practices currently 
provided under section 7.2.1 of the ORR Policy Guide.\135\
---------------------------------------------------------------------------

    \135\ ORR Policy Guide 7.2.1, ``Criteria for Placement''. 
Available at: https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide-section-7.
---------------------------------------------------------------------------

    Under proposed Sec.  410.1802(a), ORR would require that, to the 
extent feasible, unaccompanied children who are placed in an emergency 
or influx facility meet all of the following criteria: the child (1) is 
expected to be released to a sponsor within 30 days; (2) is age 13 or 
older; (3) speaks English or Spanish as their preferred language; (4) 
does not have a known disability or other mental health or medical 
issue or dental issue requiring additional evaluation, treatment, or 
monitoring by a healthcare provider; (5) is not a pregnant or parenting 
teen; (6) would not have a diminution of legal services as a result of 
the transfer to an unlicensed facility; and (7) is not a danger to 
themselves or to others (including not having been charged with or 
convicted of a criminal offense). Additionally, if ORR becomes aware 
that a child does not meet any of the criteria specified under Sec.  
410.1802(a) at any time after placement into an emergency or influx 
facility, ORR will transfer the unaccompanied child to the least 
restrictive setting appropriate for that child's need as expeditiously 
as possible. ORR believes that these proposed criteria will help to 
ensure that the unaccompanied child is placed in a setting that is 
appropriate to accommodate the child's specific needs.
    ORR proposes at Sec.  410.1802(b) that it shall also consider the 
following factors for the placement of an unaccompanied child in an 
emergency or influx facility: (1) the unaccompanied child should not be 
part of a sibling group with a sibling(s) age 12 years or younger; (2) 
the unaccompanied child should not be subject to a pending age 
determination; (3) the unaccompanied child should not be involved in an 
active State licensing, child protective services, or law enforcement 
investigation, or an investigation resulting from a sexual abuse 
allegation; (4) the unaccompanied child should not have a pending home 
study; (5) the unaccompanied child should not be turning 18 years old 
within 30 days of the transfer to an emergency or influx facility; (6) 
the unaccompanied child should not be scheduled to be discharged in 
three days or less; (7) the unaccompanied child should not have a 
current set docket date in immigration court or State/family court 
(juvenile included), not have a pending adjustment of legal status, and 
not have an attorney of record or EOIR accredited representative; (8) 
the unaccompanied child should be medically cleared and vaccinated as 
required by the emergency or influx care facility (for instance, if the 
influx care facility is on a U.S. Department of Defense site); and (9) 
the unaccompanied child should have no known mental health, dental, or 
medical issues, including contagious diseases requiring additional 
evaluation, treatment, or monitoring by a healthcare provider. ORR 
believes that these proposed provisions will help support the safe and 
appropriate placement of unaccompanied children in ORR care.

Subpart J--Availability of Review of Certain ORR Decisions

Section 410.1900 Purpose of This subpart
    Ensuring that placement decisions involving restrictive 
placements,\136\ such as decisions to place unaccompanied children in a 
restrictive placement, to step-up a child to a more restrictive level 
of care, to step-down a child from one restrictive placement to another 
(e.g., from secure to a heightened supervision facility), or to 
continue to keep a child in a restrictive placement, are subject to 
review is fundamental to ensuring unaccompanied children are placed in 
the least restrictive setting that is in their best interest while also 
considering the safety of others and runaway risk. ORR believes that 
establishing the availability of administrative review helps ensure, 
for the minority of unaccompanied children that are placed in 
restrictive placements, that such placement is appropriate and based on 
clear and convincing evidence, as discussed in subpart B. ORR notes 
that its proposals in this subpart are consistent with the preliminary 
injunction issued on August 30, 2022 in Lucas R. v. Becerra, as 
discussed in section IV.A.4. of this proposed rule.

[[Page 68959]]

Under proposed Sec.  410.1900, ORR would establish that the purpose of 
this subpart is to describe the availability of review of certain ORR 
decisions regarding the care and placement of unaccompanied children.
---------------------------------------------------------------------------

    \136\ In Sec.  410.1001, restrictive placement is defined to 
include a secure facility, heightened supervision facility, or RTC.
---------------------------------------------------------------------------

Section 410.1901 Restrictive Placement Case Reviews
    ORR is required under the TVPRA to place unaccompanied children in 
the least restrictive setting that is in their best interests, and in 
making placements may consider danger to self, danger to the community, 
and runaway risk.\137\ ORR believes that this requirement entails 
consideration of the safety of individual unaccompanied children whom 
it places, as well as the other unaccompanied children who have already 
been placed at the same care provider facility. ORR continually and 
routinely assesses whether an unaccompanied child's placement in a 
restrictive placement meets the criteria for such placements as 
discussed in proposed Sec.  410.1105 Criteria for Placing an 
Unaccompanied Child in Restrictive Placement. Under proposed Sec.  
410.1901(a), and consistent with the preliminary injunction in the 
Lucas R. case discussed above, in all cases involving restrictive 
placements, ORR would determine, based on clear and convincing 
evidence, that sufficient grounds exist for stepping up or continuing 
to hold an unaccompanied child in a restrictive placement. ORR is 
further proposing a requirement that the evidence supporting a 
restrictive placement decision be recorded in the unaccompanied child's 
case file.
---------------------------------------------------------------------------

    \137\ 8 U.S.C. 1232(c)(2)(A).
---------------------------------------------------------------------------

    ORR believes that it is imperative that unaccompanied children 
placed in restrictive placements understand the reasons for their 
placement and their rights, including their right to contest such a 
placement and their right to counsel. Therefore, under proposed Sec.  
410.1901(b), ORR would require that a written Notice of Placement (NOP) 
be provided to unaccompanied children no later than 48 hours after 
step-up to a restrictive placement, as well as at least every 30 days 
an unaccompanied child remains in a restrictive placement. ORR notes 
that whenever possible, ORR seeks to provide NOPs in advance of a step-
up to a restrictive placement. ORR further proposes requiring that the 
NOP clearly and thoroughly set forth the reason(s) for placement and a 
summary of supporting evidence under proposed Sec.  410.1901(b)(1); 
inform the unaccompanied child of their right to contest the 
restrictive placement before the Placement Review Panel (PRP) upon 
receipt of the NOP, the procedures by which the unaccompanied child may 
do so, and all other available administrative review processes under 
Sec.  410.1901(b)(2); and include an explanation of the unaccompanied 
child's right to be represented by counsel in challenging such 
restrictive placements under Sec.  410.1901(b)(3). Finally, to ensure 
that the unaccompanied child understands the information provided under 
this paragraph, ORR is proposing that a case manager would be required 
to explain the NOP to the unaccompanied child, in the child's native or 
preferred language, depending on the child's preference, and in a way 
the child understands, under Sec.  410.1901(b)(4). ORR notes that 
communications with unaccompanied children would be required to meet 
ORR's proposed language access standards under Sec.  410.1306.
    As part of ensuring that unaccompanied children are informed 
regarding their restrictive placement, it is critical that any legal 
counsel or other representative or advocate, and parent or guardian for 
an unaccompanied child also receive such notification. Therefore, under 
Sec.  410.1901(c), ORR is proposing to require that the care provider 
facility provide a copy of the NOP to the unaccompanied child's legal 
counsel of record, legal service provider, child advocate, and to a 
parent or legal guardian of record, no later than 48 hours after step-
up, as well as every 30 days the unaccompanied child remains in a 
restrictive placement. ORR notes that this proposed requirement may be 
subject to specific child welfare-related exceptions.
    ORR believes that placements of unaccompanied children in 
restrictive placements should be routinely assessed to ensure they meet 
the criteria at proposed Sec.  410.1105. If unaccompanied children do 
not meet the criteria, they should accordingly be stepped up or stepped 
down to a placement that is the least restrictive setting that is in 
their best interests, prioritizing their safety and the safety of 
others. Under proposed Sec.  410.1901(d), ORR would establish regular 
administrative reviews for restrictive placements. ORR is proposing 
regular intervals for administrative reviews depending on the type of 
restrictive placement: 30-day, at minimum, for all restrictive 
placements under proposed Sec.  410.1901(d)(1); more intensive 45-day 
reviews by ORR supervisory staff for unaccompanied children in secure 
facilities, under proposed Sec.  410.1901(d)(2).\138\ For unaccompanied 
children in RTCs, the 30-day review at proposed Sec.  410.1901(d)(1) 
would be required to involve a psychiatrist or psychologist to 
determine whether the unaccompanied child should remain in restrictive 
residential care, under proposed Sec.  410.1901(d)(3). ORR welcomes 
public comment on these proposals.
---------------------------------------------------------------------------

    \138\ If, hypothetically, an unaccompanied child was in secure 
care for 90 days, they would receive both their third 30-day review 
and their second, more intensive 45-day review concurrently.
---------------------------------------------------------------------------

Section 410.1902 Placement Review Panel.
    ORR believes that unaccompanied children who are placed in a 
restrictive placement should have the ability to request 
reconsideration of their placement at any time after receiving an NOP. 
Consistent with existing policy, under proposed paragraph (a), ORR 
would convene a Placement Review Panel (PRP) when an unaccompanied 
child requests reconsideration of their placement in a restrictive 
placement, for the purposes of reviewing the unaccompanied child's 
reconsideration request. Under current practice, the PRP is a three-
member panel consisting of ORR's senior-level career staff with 
requisite experience in child welfare, including restorative justice, 
adverse childhood experiences, special populations, and/or mental 
health. Under proposed Sec.  410.1902(a), upon request for 
reconsideration of their placement in a restrictive placement, ORR 
would afford the unaccompanied child a hearing before the PRP, at which 
the unaccompanied child may, with the assistance of counsel if 
preferred, present evidence on their own behalf. An unaccompanied child 
may present witnesses and cross-examine ORR's witnesses, if such 
witnesses are willing to voluntarily testify. ORR notes that an 
unaccompanied child and/or their legal counsel of record are provided 
with the child's case file information, in accordance with ORR's case 
file policies. An unaccompanied child that does not wish to request a 
hearing may also have their placement reconsidered by submitting a 
request for a reconsideration along with any supporting documents as 
evidence.
    Under proposed Sec.  410.1902(b), the PRP would afford any 
unaccompanied children in a restrictive placement the opportunity to 
request a PRP review as soon as the unaccompanied child receives a NOP 
and anytime thereafter.
    Under proposed Sec.  410.1902(c), ORR would require itself to 
convene the PRP within a reasonable timeframe, to allow

[[Page 68960]]

the unaccompanied child to have a hearing without undue delay. ORR 
would require, under proposed Sec.  410.1902(d), that the PRP would 
issue a decision within 30 calendar days of the PRP request whenever 
possible. ORR believes these requirements would help ensure 
reconsideration requests are decisioned in a timely manner.
    Finally, ORR believes ORR staff members should be recused from 
participation in a PRP under certain circumstances to help ensure an 
impartial reconsideration of an unaccompanied child's placement. Under 
proposed Sec.  410.1902(e), ORR would require that an ORR staff member 
who was involved with the decision to step up an unaccompanied child to 
a restrictive placement may not serve as a Placement Review Panel 
member with respect to that unaccompanied child's placement.
    ORR welcomes public comment on these proposals.
Section 410.1903 Risk Determination Hearings
    The decision in Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017), 
held that notwithstanding the passage of the HSA and the TVPRA, 
unaccompanied children in ORR custody continue to have the ability to 
seek a bond hearing before an immigration judge in every case, unless 
waived by the unaccompanied child.\139\ The proposed regulations under 
this section are intended to afford the same type of hearing for 
unaccompanied children, while recognizing that the HSA, enacted after 
the FSA went into effect, transferred the responsibility of care and 
custody of unaccompanied children from the former INS to ORR.\140\
---------------------------------------------------------------------------

    \139\ See FSA at paragraph 24A.
    \140\ See 6 U.S.C. 279(a).
---------------------------------------------------------------------------

    Under proposed Sec.  410.1903, ORR would establish a hearing 
process that provides the same substantive protections as immigration 
court bond hearings under the FSA, but through an independent and 
neutral HHS hearing officer. Further, these hearings would take place 
at HHS rather than the Department of Justice (DOJ). This arrangement 
would parallel the arrangement under the FSA because when the FSA was 
enacted, the former INS, which then was responsible for the custody of 
unaccompanied minors, and the immigration courts were located in the 
same department, DOJ. Similarly, ORR proposes the availability of risk 
determination hearings before hearing officers who are within the same 
department, HHS, but independent of ORR. ORR believes that utilizing an 
independent hearing officer within HHS would help prevent undue delay 
for a hearing while the unaccompanied child is in ORR care because 
generally HHS hearing schedules have greater availability in the short 
term, particularly as compared to immigration courts. ORR notes that it 
codified a similar provision in the 2019 Final Rule which the Ninth 
Circuit held was consistent with the FSA, except where it did not 
automatically place unaccompanied children in restrictive placements in 
bond hearings.\141\ ORR now proposes to implement a process 
substantially the same as the one in the 2019 Final Rule, but updated 
to conform with the Ninth Circuit's ruling.
---------------------------------------------------------------------------

    \141\ See Flores v. Rosen, 984 F. 3d 720 (9th Cir. 2020).
---------------------------------------------------------------------------

    Unlike typical ``bond redetermination hearings'' in the immigration 
court context, which refer to an immigration judge's review of a 
custody decision, including any bond set, by DHS,\142\ ORR does not 
require payment of money in relation to any aspect of its care and 
placement. Instead, the function of risk determination hearings in the 
ORR context is to determine whether an unaccompanied child would be a 
danger to the community or a runaway risk if released.\143\ With 
respect to these functions, ORR notes, first, that consistent with its 
discretion as described at 8 U.S.C. 1232(c)(2)(A), it does not consider 
runaway risk when making release decisions regarding unaccompanied 
children in its care. As a result, unlike when the FSA was implemented 
in 1997, runaway risk is no longer a relevant issue in risk 
determination hearings for unaccompanied children.\144\ Therefore, the 
relevant issue for risk determination hearings for unaccompanied 
children is whether they would present a danger if released from ORR 
custody. With respect to this function, ORR notes that for the great 
majority of unaccompanied children in ORR custody, it has determined 
they are not a danger and therefore has placed them in non-restrictive 
placements such as shelters and group homes. These unaccompanied 
children remain in ORR care only because a suitable sponsor has not yet 
been found.
---------------------------------------------------------------------------

    \142\ See 8 CFR 1003.19, 1236.1.
    \143\ See Flores v. Lynch, 392 F. Supp. 3d 1144, 1150 (C.D. Cal. 
2017) (``Assuming an immigration judge reduces a child's bond, or 
decides he or she presents no flight risk or danger such that he 
needs to remain in HHS/ORR custody, HHS can still exercise its 
coordination and placement duties under the TVPRA.'').
    \144\ In contrast, under paragraph 14 of the FSA the former INS 
would detain a minor if detention was required ``to secure his or 
her timely appearance before the INS or immigration court.'' As a 
result, as they pertained to the former INS, bond hearings afforded 
an opportunity for the unaccompanied children to have a hearing 
before an independent officer to determine whether the unaccompanied 
children in fact posed a risk of flight if released from custody.
---------------------------------------------------------------------------

    Under proposed Sec.  410.1903(a), ORR would codify that all 
unaccompanied children in restrictive placements would be afforded a 
risk determination hearing before an independent HHS hearing officer to 
determine, through a written decision, whether the unaccompanied child 
would present a risk of danger to the community if released, unless the 
unaccompanied child indicates in writing that they refuse such a 
hearing. For all other unaccompanied children in ORR custody, ORR 
proposes that they may request such a hearing.
    ORR is proposing to establish a process for providing notifications 
and receiving requests related to risk determination hearings. Under 
proposed Sec.  410.1903(a)(1), ORR would require that requests under 
this section be made in writing by the unaccompanied child, their 
attorney of record, or their parent or legal guardian by submitting a 
form provided by ORR to the care provider facility or by making a 
separate written request that contains the information requested in 
ORR's form. Under proposed Sec.  410.1903(a)(2), unaccompanied children 
in restrictive placements based on a finding of dangerousness would 
automatically be provided a risk determination hearing, unless they 
refuse in writing. They would also receive a notice of the procedures 
under this section and would be able to use a form provided to them to 
decline a hearing under this section. ORR proposes that unaccompanied 
children in restrictive placements may decline the hearing at any time, 
including after consultation with counsel. ORR would require that such 
choice be communicated to ORR in writing.
    ORR is proposing to establish procedures related to risk 
determination hearings so that the roles of each party are clear. Under 
proposed Sec.  410.1903(b), ORR would bear an initial burden of 
production, providing relevant arguments and documents to support its 
determination that an unaccompanied child would pose a danger if 
discharged from ORR care and custody. Then, ORR is proposing that the 
unaccompanied child would have a burden of persuasion to show that they 
would not be a danger to the community if released, under a 
preponderance of the evidence standard. ORR notes that it has 
established a subregulatory process to ensure access to case files and 
documents for unaccompanied children

[[Page 68961]]

and their legal counsel in a timely manner for these purposes. Under 
proposed paragraph (c), the unaccompanied child would have the ability 
to be represented by a person of the unaccompanied child's choosing, 
would be permitted to present oral and written evidence to the hearing 
officer, and would be permitted to appear by video or teleconference. 
Finally, ORR is proposing that ORR may also choose to present evidence 
at the hearing, whether in writing, or by appearing in person or by 
video or teleconference.
    ORR is also proposing regulations related to hearing officers' 
decisions in risk determination hearings. First, under proposed 
paragraph (d), a decision that an unaccompanied child would not be a 
danger to the community if released would be binding upon ORR unless 
appealed. ORR believes that unaccompanied children must also have the 
availability to appeal decisions finding that they are a danger to the 
community if released. However, HHS does not have a two-tier 
administrative appellate system that closely mirrors that of the EOIR 
within the DOJ, where immigration court decisions may be appealed to 
the Board of Immigration Appeals. To provide similar protections 
without such a two-tier system, ORR is proposing to allow appeals to 
the Assistant Secretary of ACF or their designee. Therefore, under 
Sec.  410.1903(e), ORR is proposing that decisions under this section 
may be appealed to the Assistant Secretary of ACF, or the Assistant 
Secretary's designee. ORR is proposing that appeal requests be in 
writing and be received by the Assistant Secretary or their designee 
within 30 days of the hearing officer's decision under Sec.  
410.1903(e)(1). Under Sec.  410.1903(e)(2), ORR is proposing that the 
Assistant Secretary, or their designee, will reverse a hearing officer 
decision only if there is a clear error of fact, or if the decision 
includes an error of law. Further, under Sec.  410.1903(e)(3), ORR is 
proposing that if the hearing officer finds that the unaccompanied 
child would not pose a danger to the community if released, and such 
decision would result in ORR releasing the unaccompanied child from its 
custody (e.g., because ORR had otherwise completed its assessment for 
the release of the unaccompanied child to a sponsor, and the only 
factor preventing release was its determination that the unaccompanied 
child posed a danger to the community), an appeal to the Assistant 
Secretary would not effect a stay of the hearing officer's decision, 
unless the Assistant Secretary or their designee issues a decision in 
writing within five business days of such hearing officer decision that 
release of the unaccompanied child would likely result in a danger to 
the community. ORR is proposing to require that such a stay decision 
must include a description of behaviors of the unaccompanied child 
while in ORR custody and/or documented criminal or juvenile behavior 
records from the unaccompanied child demonstrating that the 
unaccompanied child would present a danger to community, if released.
    Alternatively, ORR is considering an appeal structure under which a 
politically accountable official (e.g., the Assistant Secretary of ACF, 
or their designee) would have discretion to conduct de novo review of 
hearing officer determinations. As under the current proposed approach, 
the official conducting de novo review would be able to reverse hearing 
officer determinations. But unlike the current proposed approach, the 
official would not be constrained to reversing hearing officer 
determinations based only on clear error of fact, or error of law. 
Instead, the official would step into the position of the hearing 
officer and re-decide the issues. We request comments as to whether ORR 
should adopt this alternative scheme.
    ORR reiterates that in the context of risk determination hearings, 
although a finding of non-dangerousness may result in an unaccompanied 
child's release, neither the hearing officer nor the Assistant 
Secretary, on appeal, may order the release or change of placement of 
an unaccompanied child. Placement and release decision-making authority 
is vested in the Director of ORR under the HSA and TVPRA.\145\ The 
fundamental question at issue in an ORR risk determination hearing is 
whether an unaccompanied child would pose a danger to the community if 
released.\146\
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    \145\ See 8 U.S.C. 1232(c)(3); see also Flores v. Sessions, 862 
F.3d 863, 868 (9th Cir. 2017) (``As was the case under the Flores 
Settlement prior to the passage of the HSA and TVPRA, the 
determinations made at hearings held under Paragraph 24A will not 
compel a child's release. Regardless of the outcome of a bond 
hearing, a minor may not be released unless the agency charged with 
his or her care identifies a safe and appropriate placement.'').
    \146\ To the extent the hearing officer or Assistant Secretary, 
or designee, makes other findings with respect to the unaccompanied 
children, ORR will consider those in making placement and release 
decisions. For example, if a hearing officer finds that the child is 
not a flight risk, ORR will consider that finding when assessing the 
child's placement and conditions of placement--though the decision 
does not affect release because ORR does not make a determination of 
flight risk for purposes of deciding whether a child will be 
released.
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    ORR is proposing under Sec.  410.1903(f) that decisions under this 
section would be final and binding on the Department, meaning that when 
deciding whether to release an unaccompanied child (in accordance with 
the ordinary procedures on release for unaccompanied children as 
discussed in subpart C of this proposed rule), the ORR Director would 
not be able to disregard a determination that an unaccompanied child is 
not a danger. Further, in the case of an unaccompanied child who was 
determined to pose a danger to the community if released, the child 
would be permitted to seek another hearing under this section only if 
they can demonstrate a material change in circumstances. Similarly, 
because ORR may not have located a suitable sponsor at the time a 
hearing officer issues a decision, it may find that circumstances have 
changed by the time a sponsor is found such that the original hearing 
officer decision should no longer apply. Therefore, ORR is proposing 
that it may request the hearing officer to make a new determination 
under this section if at least one month has passed since the original 
decision, and/or ORR can show that a material change in circumstances 
means the unaccompanied child should no longer be released due to 
presenting a danger to the community. Based on experience under current 
policies, ORR believes one month is a reasonable length of time for a 
material change in circumstances to have occurred and best balances 
operational constraints with the safety concerns of all children under 
ORR care. It also ensures that children who have newly exhibited 
dangerous behaviors are accurately adjudicated. ORR notes that it 
previously proposed and finalized this same length of time (one month) 
in the 2019 Final Rule. ORR notes that because it always seeks to 
release an unaccompanied child to a sponsor whenever appropriate, ORR 
can make determinations to release a child previously determined to be 
a danger to the community without a new risk determination hearing 
because the purpose of a risk determination hearing is to ensure a 
child who is not a danger to the community is not kept in ORR custody.
    ORR is proposing under Sec.  410.1903(g) that this section cannot 
be used to determine whether an unaccompanied child has a suitable 
sponsor, and neither the hearing officer nor the Assistant Secretary, 
or the Assistant Secretary's designee, would be authorized to order the 
unaccompanied child released. This means that an unaccompanied child 
that has been determined by a hearing officer to not present a danger 
would only be released in accordance with the

[[Page 68962]]

ordinary procedures on release for unaccompanied children as discussed 
in subpart C of this proposed rule.
    Finally, ORR is proposing under Sec.  410.1903(h) that this section 
may not be invoked to determine an unaccompanied child's placement 
while in ORR custody or to determine level of custody for the 
unaccompanied child. Under this proposed section, the purpose of a risk 
determination hearing is only to determine whether an unaccompanied 
child presents a danger to the community if released, not to determine 
placement or level of custody. ORR would determine placement and level 
of custody as part of its ordinary procedures for the placement of 
unaccompanied children as discussed in subpart B of this proposed rule. 
That said, ORR would be able to take into consideration the hearing 
officer's decision on an unaccompanied child's level of danger (and 
runaway risk) for those purposes.

Subpart K--UC Office of the Ombuds

    ORR proposes establishing an independent ombuds office that would 
promote important protections for all children in ORR care. An ombuds 
office to address unaccompanied children's issues does not currently 
exist, and ORR believes that the creation of an ombuds office would 
advance its duty to ``ensur[e] that the interests of the child are 
considered in decisions and actions relating to the care and custody of 
an unaccompanied alien child.'' \147\ An ombuds for the UC Program 
would be an independent, impartial, and confidential public official 
with authority and responsibility to receive, investigate and 
informally address complaints about government actions, make findings 
and recommendations and publicize them when appropriate, and publish 
reports on its activities. Although an ombud's office would not have 
authority to compel ORR to take certain actions, ORR believes an Office 
of the Ombuds would provide a mechanism by which unaccompanied 
children, sponsors, and other stakeholders, including ORR agency staff 
and care provider facility staff, could confidentially raise concerns 
with an independent, impartial entity that could conduct investigations 
and make recommendations to ORR regarding program operations and 
decision-making, and refer concerns to other Federal agencies (e.g., 
HHS Office of the Inspector General, Department of Justice, etc.) or 
entities. ORR believes that an Office of the Ombuds is a sound solution 
to serve a similar function as the oversight currently provided by the 
Flores monitor. While this proposed section would not create an 
oversight mechanism with authorities that equate with court oversight 
under a consent decree, ORR notes that it is important to maintain an 
independent mechanism to identify and report concerns regarding the 
care of unaccompanied children; it further believes that this 
independent mechanism should have the ability to investigate such 
claims, to work collaboratively with ORR to potentially resolve such 
issues, and publish reports on its activities. ORR therefore proposes 
to add new subpart K to part 410 to establish the UC Office of the 
Ombuds.
---------------------------------------------------------------------------

    \147\ 6 U.S.C. 279(b)(1)(B).
---------------------------------------------------------------------------

Key Principles of an Office of the Ombuds
    ORR reviewed literature published by several national 
organizations--including the Administrative Conference of the United 
States (ACUS), American Bar Association (ABA), International Ombudsman 
Association (IOA), the United States Ombudsman Association (USOA), and 
the Coalition of Federal Ombudsman (COFO)--pertaining to standards of 
practice and establishment of ombuds offices.\148\ The literature 
identifies independence, confidentiality, and impartiality as core 
standards of any Federal ombuds office. The literature also identifies 
common definitional characteristics among Federal ombuds offices, such 
as informality (i.e., ombuds offices do not make decisions binding on 
the agency or provide formal rights-based processes for redress) and a 
commitment to credible practices and procedures. In addition, most 
ombuds offices adhere to the concepts of providing credible review of 
the issues that come to the office, a commitment to fairness, and 
assistance in the resolution of issues without making binding agency 
decisions.\149\ These attributes align with ORR's goals for the 
creation of an office that can provide an independent and impartial 
body that can receive reports and grievances regarding the care, 
placement, services, and release of unaccompanied children. ORR 
therefore proposes the creation of an Office of the Ombuds that 
incorporates lessons and recommendations identified in the 2016 ACUS 
report, follows the model of other established Federal ombuds offices, 
and takes into consideration feedback from interested parties.
---------------------------------------------------------------------------

    \148\ For example, see Standards Committee of the United States 
Ombudsman Association, Governmental Ombudsmen Standards (2003) at 1, 
https://www.usombudsman.org/wp-content/uploads/USOA-STANDARDS1.pdf 
(promoting a model that defines a governmental ombudsman as an 
independent, impartial public official with authority and 
responsibility to receive, investigate or informally address 
complaints about Government actions, and, when appropriate, make 
findings and recommendations, and publish reports). See also Houk et 
al., A Reappraisal-The Nature and Value of Ombudsmen in Federal 
Agencies, Administrative Conference of the United States (2016) at 
258-67, https://www.acus.gov/report/ombudsman-federal-agencies-final-report-2016 (``2016 ACUS Report'') (reviewing association 
standards and practices of different Federal ombudsman offices, and 
concluding that independent, confidentiality, and impartiality are 
essential to the ombudsman profession.).
    \149\ 2016 ACUS Report at 28.
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Section 410.2000 Establishment of the UC Office of the Ombuds
    ORR proposes, at Sec.  410.2000, to establish a UC Office of the 
Ombuds. As the literature identified independence of the office as one 
of the key standards of an ombuds, ORR proposes in Sec.  410.2000(a) 
that the ombuds will report directly to the ACF Assistant Secretary and 
will be managed as a distinct entity separate from the UC Program. ORR 
requests input on options relating to placement and reporting structure 
of this office within ORR or in another part of ACF.
    At Sec.  410.2000(b), ORR proposes that the UC Office of the Ombuds 
would be an independent, impartial office with authority to 
confidentially and informally receive and investigate complaints and 
concerns related to unaccompanied children's experiences in ORR care. 
This paragraph captures two additional key standards of an ombuds 
identified by literature: impartiality and confidentiality. ORR notes 
the UC Office of the Ombuds would not serve as a legal advocate for any 
person or issue binding decisions; rather, it would work as a neutral 
third party that can investigate concerns and attempt to resolve issues 
which are brought to the office. ORR intends for the UC Office of the 
Ombuds to be an additional resource for the UC Program and ORR, 
unaccompanied children, their sponsors and advocates, and other 
interested parties. The UC Office of the Ombuds will not supplant other 
roles and responsibilities of other entities such as the HHS/Office of 
Inspector General, ORR's own monitoring activities of its grants and 
contracts, or services included in this proposed rule, such as child 
advocate services (discussed in Sec.  410.1308 of this proposed rule) 
or Legal Services (discussed in Sec.  410.1309 of this proposed rule). 
Rather, the UC Office of the Ombuds would be responsible for acting as 
a neutral third party to receive, investigate, or address complaints 
about Government actions.

[[Page 68963]]

Section 410.2001 UC Office of the Ombuds Policies and Procedures; 
Contact Information.
    At proposed Sec.  410.2001(a) and (b), the UC Office of the Ombuds 
shall develop and make publicly available the office's standards, 
practices, and policies and procedures giving consideration to the 
recommendations by nationally recognized ombuds organizations. ORR 
requests comments identifying potential standards, practices, and 
policies and procedures for ombuds consideration. For example, ORR 
requests comments regarding whether the UC Office the Ombuds should 
adopt standards, practices, and policies and procedures that are 
consistent with the ABA, IOA, USOA, COFO, or another nationally 
recognized ombuds organization that ORR should consider.
    ORR further proposes in Sec.  410.2001(c) that the UC Office of the 
Ombuds ensure that information about the office, including how to 
contact the office, is publicly available and that the office provide 
notice to unaccompanied children, sponsors, and others of its scope and 
responsibilities, in both English and other languages spoken and 
understood by unaccompanied children in ORR care. Notice shall be 
provided in an accessible manner, including through the provision of 
auxiliary aids and services and in clear, easily understood language, 
using concise and concrete sentences and/or visual aids. ORR's review 
of other ombuds office outreach activities found multiple approaches to 
raising awareness about an ombuds office, such as flyers, information 
posted at care provider facilities, a website and onsite visits to 
facilities or constituents.\150\ ORR proposes providing the UC Office 
of the Ombuds with the discretion to determine the best approaches to 
providing outreach and awareness of the ability to act as a neutral 
third party, including visiting ORR facilities and publishing 
aggregated information annually about the number and types of concerns 
the UC Office of the Ombuds receives.
---------------------------------------------------------------------------

    \150\ See, e.g., 9 NYCRR 177.7 (NYS Office of Children and 
Family Services; Regulations for the Office of the Ombudsman; Visits 
to Facilities and Programs) and 6 U.S.C. 205 (Ombudsman for 
Immigration Detention).
---------------------------------------------------------------------------

Section 410.2002 UC Office of the Ombuds Scope and Responsibilities
    The 2016 ACUS Report described different kinds of ombuds offices 
which perform different functions based on their mandates. They may 
identify new issues and patterns of concerns that are not well known or 
are being ignored; support procedural changes; contribute to 
significant cost savings by dealing with identified issues, often at 
the earliest or pre-complaint stages, thereby reducing litigation and 
settling serious disputes; prevent problems through training and 
briefings; and serve as an important liaison between colleagues, units, 
or agencies.\151\ ORR intends to establish an ombuds office as an 
independent, impartial office with authority to receive and investigate 
issues and concerns related to unaccompanied children's experience in 
ORR care.
---------------------------------------------------------------------------

    \151\ 2016 ACUS Report at 2.
---------------------------------------------------------------------------

    In Sec.  410.2002(a), ORR proposes that the scope of the activities 
of the UC Office of the Ombuds may include: reviewing ORR compliance 
with Federal law and meeting with interested parties to hear input on 
ORR's implantation of and adherence to Federal law; visiting ORR 
facilities where unaccompanied children are or will be housed; 
investigating issues or concerns related to unaccompanied children's 
access to services while in ORR care; reviewing the implementation and 
execution of ORR policy and procedures; reviewing individual 
circumstances that raise concerns such as issues with access to 
services, communications with advocates or sponsors, transfers, or 
discharge from ORR care; and providing general education and 
information about ORR and the legal and regulatory landscape relevant 
to unaccompanied children. ORR proposes that the UC Office of the 
Ombuds may request information and documents from ORR and ORR care 
provider facilities and shall be provided with the information and 
documents to the fullest extent possible. ORR further proposes that the 
UC Office of the Ombuds may recommend new or revised UC Program 
policies and procedures, or other process improvements. ORR includes 
these anticipated areas of activity at proposed Sec.  410.2002(a).
    ORR anticipates that the UC Office of the Ombuds may have the 
opportunity to not only field individual concerns from unaccompanied 
children, their representatives, and program and facility staff, but 
may also identify patterns of concerns and may be well positioned to 
offer recommendations to improve ORR program processes and procedures. 
ORR proposes that, as an independent office reporting to the ACF 
Assistant Secretary, the UC Office of the Ombuds may determine its 
caseload and agenda and expects that such caseload may vary due to a 
variety of circumstances.
    In Sec.  410.2002(b), ORR proposes that, because the UC Office of 
the Ombuds is not an enforcement entity, it should have the discretion 
to refer matters to other offices or entities, such as state or local 
law enforcement or the Office of Inspector General (OIG), as 
appropriate.
    Finally, to assist the UC Office of the Ombuds in accomplishing its 
responsibilities, ORR proposes in Sec.  410.2002(c) that the Ombuds 
must be able to meet with unaccompanied children in ORR care upon 
receiving a complaint or based on relevant findings during the course 
of investigating issues or concerns; have access to ORR facilities, 
premises, and case file information; and have access to care provider 
and Federal staff responsible for the children's care.
Section 410.2003 Organization of the UC Office of the Ombuds
    The 2016 ACUS Report recommends that agencies should support the 
credibility of offices of the ombuds by selecting an ombuds with 
sufficient professional stature and requisite knowledge, skills, and 
abilities to effectively execute the duties of the office.\152\ This 
should include, at a minimum, knowledge of informal dispute resolution 
practices as well as, depending on the office mandate, familiarity with 
process design, training, data analysis, and facilitation and group 
work with diverse populations.\153\ To align with the recommendations, 
ORR proposes in Sec.  410.2003(a) that the UC Ombuds should be hired as 
a career civil servant. ORR believes that requiring the UC Ombuds 
position be hired as a career civil servant, rather than a political 
appointee, will support the important goal of impartiality. In Sec.  
410.2003(b), ORR proposes that the UC Ombuds have the requisite 
knowledge and experience to effectively fulfill the work and role, 
including membership in good standing in a nationally recognized 
organization, state bar association, or association of ombudsmen. 
Expertise should include but is not limited to informal dispute 
resolution practices, services and matters related to unaccompanied 
children and in child welfare, familiarity and experience with 
oversight and regulatory matters, and knowledge of ORR policy and 
regulations. In addition, ORR proposes in Sec.  410.2003(c) that the 
Ombuds may engage additional staff as it deems necessary and 
practicable to support the functions and responsibilities of the 
Office; and, at Sec.  410.2003(d), ORR proposes that the UC Ombuds 
shall establish procedures for training, certification, and continuing 
education

[[Page 68964]]

for staff and other representatives of the Office.
---------------------------------------------------------------------------

    \152\ 2016 ACUS Report at 56.
    \153\ 2016 ACUS Report at 66.
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Section 410.2004 Confidentiality
    At proposed Sec.  410.2004(a), ORR proposes basic requirements that 
the Ombuds ensure that records and proceedings should be kept in a 
confidential manner, except to address an imminent risk of serious harm 
or in response to judicial action. Additionally, the Ombuds is 
prohibited from using or sharing information for any immigration 
enforcement related purpose. This proposal is in line with the 2016 
ACUS Report identification of confidentiality of ombuds communications 
and proceedings as being of paramount importance to encourage reporting 
of concerns, thereby affording the ombuds the opportunity to assist the 
constituent and the agency in resolving the concern.\154\ ORR also 
proposes at Sec.  410.2004(b) that the UC Office of the Ombuds may 
accept reports from anonymous reporters.
---------------------------------------------------------------------------

    \154\ 2016 ACUS Report at 41.
---------------------------------------------------------------------------

    To align to these goals and to help in the development of the UC 
Office of the Ombuds, ORR requests public comment on best practices for 
preserving the confidentiality of parties that may submit a complaint, 
as well as building trust in the confidentiality of the office so that 
individuals feel comfortable and safe, without the fear of retaliation, 
to report concerns.
Request for Information
    ORR believes the UC Office of the Ombuds should be intentionally 
designed and requests any other comments and input on how the Ombuds 
should handle concerns relating to ORR practices. ORR therefore 
includes a request for information for additional public input on the 
proposed UC Office of the Ombuds. ORR seeks public comment on whether 
the Office should provide services relating to oversight in other 
areas, including more generalized concerns about ORR conduct and 
services. ORR also seeks comment on potential intersections between the 
Ombuds and other avenues for mitigation or redress of grievances (e.g., 
the ORR Placement Review Panel). Additionally, ORR seeks comment on 
additional independent and impartial mechanisms to address grievances 
or complaints related to children's experiences in ORR care.
    Finally, ORR welcomes comments on other organizational and 
structural matters relevant to the proposed UC Office of the Ombuds.

VI. Collection of Information Requirements

    Under the Paperwork Reduction Act of 1995 (PRA), HHS is required to 
provide 60-day notice in the Federal Register and solicit public 
comment before a collection of information requirement is submitted to 
the Office of Management and Budget (OMB) for review and approval. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a control 
number assigned by OMB. This proposed rule does not require information 
collections for which HHS plans to seek OMB approval.
    Under proposed Sec.  410.1902, as discussed in section V. of this 
proposed rule, ORR proposes to establish processes for unaccompanied 
children to appeal the denial of release and for certain prospective 
sponsors to appeal sponsorship denials. While this appeals process may 
require unaccompanied children or prospective sponsors to submit 
information to ORR, information collections imposed subsequent to an 
administrative action are not subject to the PRA under 5 CFR 
1320.4(a)(2). Therefore, ORR is not estimating any information 
collection burden associated with this process.
    ORR has reviewed the requirements being codified in subparts A and 
B and determined that the regulatory burden associated with reporting 
and recordkeeping requirements is accounted for under OMB control 
number 0970-0554 (Placement and Transfer of Unaccompanied Children into 
ORR Care Provider Facilities) and OMB control number 0970-0547 
(Administration and Oversight of the Unaccompanied Children Program). 
ORR is not proposing any new requirements which result in a change in 
burden.
    ORR has reviewed the requirements being codified in subpart C and 
determined that the regulatory burden associated with reporting and 
recordkeeping requirements is accounted for under OMB control number 
0970-0278 (Family Reunification Packet for Sponsors of Unaccompanied 
Children), OMB control number 0970-0552 (Release of Unaccompanied 
Children from ORR Custody) and OMB control number 0970-0553 (Services 
Provided to Unaccompanied Children). ORR is not proposing any new 
requirements which result in a change in burden.
    ORR has reviewed the requirements being codified in subpart D and 
determined that the regulatory burden associated with reporting and 
recordkeeping requirements is accounted for under OMB control number 
0970-0547 (Administration and Oversight of the Unaccompanied Children 
Program), OMB control number 0970-0564 (Monitoring and Compliance for 
Office of Refugee Resettlement (ORR) Care Provider Facilities), and OMB 
control number 0970-0565 (Legal Services for Unaccompanied Children). 
ORR is not proposing any new requirements which result in a change in 
burden.
    ORR has reviewed the requirements being codified in subparts E 
through I and determined that the regulatory burden associated with 
reporting and recordkeeping requirements is accounted for under OMB 
control number 0970-0554 (Placement and Transfer of Unaccompanied 
Children into ORR Care Provider Facilities). ORR is not proposing any 
new requirements which result in a change in burden.
    ORR has reviewed the requirements being codified in subpart J and 
determined that the regulatory burden associated with reporting and 
recordkeeping requirements is accounted for under OMB control number 
0970-0565 (Legal Services for Unaccompanied Children). ORR is not 
proposing any new requirements which result in a change in burden.

VII. Regulatory Impact Analysis

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Section 
3(f) of Executive Order 12866, as amended by Executive Order 14094, 
defines a ``significant regulatory action'' as an action that is likely 
to result in a rule: (1) having an annual effect on the economy of $200 
million or more (adjusted every 3 years for changes in gross domestic 
product), or adversely affecting in a material way the economy, a 
sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, territorial, or 
tribal governments or communities; (2) creating a serious inconsistency 
or otherwise interfering with an action taken or planned by another 
agency; (3) materially altering the budgetary impact of entitlement 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or (4) raising legal or policy issues for which 
centralized review would meaningfully further the President's 
priorities or the principles

[[Page 68965]]

set forth in the Executive order. Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. While there is 
uncertainty about the magnitude of effects associated with these 
regulations, it cannot be ruled out that they exceed the threshold for 
significance set forth in section 3(f)(1) of Executive Order 12866. 
Therefore, the regulation is section 3(f)(1) significant and has been 
reviewed by OMB.

A. Economic Analysis

1. Baseline of Current Costs
    In order to properly evaluate the benefits and costs of 
regulations, agencies must evaluate the costs and benefits against a 
baseline. OMB Circular A-4 defines the ``no action'' baseline as ``the 
best assessment of the way the world would look absent the proposed 
action.'' ORR considers its current operations and procedures for 
implementing the terms of the FSA, the HSA, and the TVPRA to be an 
informative baseline for this analysis, from which it estimates the 
costs and benefits that would result from implementing the proposals in 
this proposed rule if finalized. The section below discusses some 
examples of the current cost for ORR's operations and procedures under 
this baseline. The costs described below are already being incurred as 
part of ORR's implementation of the terms of FSA, the HSA, and the 
TVPRA; however, the future in the absence of the rule is unclear, 
including because the end of temporary legal structures could change 
the UC Program's operations. Relative to some future trajectories--that 
is, other analytic baselines--there could be additional new costs (and 
new effects more generally) associated with the policies being 
promulgated in this proposed rule.
    Referrals of unaccompanied children to the UC Program vary 
considerably from one year to the next, even from month to month, and 
are largely unpredictable. Funding for the UC Program's services are 
dependent on annual appropriations, which rely in part on fluctuating 
migration numbers. For example, in fiscal year (FY) 2019, the UC 
Program served 69,488 unaccompanied children and received $1.3 billion 
in appropriations.\155\ In contrast, in FY 2022, ORR served 128,904 
unaccompanied children and received $5.5 billion in 
appropriations.\156\ Appropriations account for uncertainty inherent in 
migration numbers by providing additional resources in any month when 
the UC Program receives referrals over a certain threshold. For 
example, in FY 2023, a contingency fund provided $27 million for each 
increment of 500 referrals (or pro rata share) above a threshold of 
13,000 unaccompanied children referrals in a month.\157\
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    \155\ Annual Report to Congress, Office of Refugee Resettlement 
(FY 2019), https://www.acf.hhs.gov/sites/default/files/documents/orr/orr-arc-fy2019.pdf.
    \156\ ACF, Justification of Estimates for Appropriations 
Committees, page 70, (FY 2024) https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2024-congressional-justification.pdf.
    \157\ Id. at 77.
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    The UC Program funds private non-profit and for-profit agencies to 
provide shelter, counseling, medical care, legal services, and other 
support services to children in custody. In addition, some funding is 
provided for limited post-release services to certain unaccompanied 
children. Care provider facilities receive grants or contracts to 
provide shelter, including therapeutic care, foster care, shelter with 
increased staff supervision, and secure detention care. The majority of 
program costs (approximately 82 percent) are for care in ORR shelters. 
Other services for unaccompanied children, such as medical care, 
background checks, and family unification services, make up 
approximately 16 percent of the budget. Administrative expenses to 
carry out the program total approximately 2 percent of the budget.
2. Estimated Costs
    This proposed rule would codify current ORR and HHS requirements 
for compliance with the HSA, the TVPRA, the FSA, court orders, and 
other requirements described under existing ORR policies and 
cooperative agreements. Because the majority of requirements being 
codified in this proposed rule are already enforced by ORR, ORR does 
not expect this proposed rule to impose any additional costs aside from 
those costs incurred by the Federal Government to establish the risk 
determination hearing process described in proposed Sec.  410.1903 and 
the UC Office of the Ombuds described in proposed subpart K. Existing 
staff are currently responsible for conducting both Internal Compliance 
Reviews and Placement Review Panels as described in Sec. Sec.  410.1901 
and 410.1902, respectively, therefore no additional cost will be 
incurred.
    In Sec.  410.1309, ORR is proposing to the greatest extent 
practicable 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 other matters, 
consistent with current policy. ORR is also proposing that to the 
extent that appropriations are available, and insofar as it is not 
practicable to secure pro bono counsel for unaccompanied children as 
specified at 8 U.S.C. 1232(c)(5), ORR would have discretion to fund 
legal service providers to provide direct immigration legal 
representation.
    In Sec.  410.1903, ORR proposes to establish a hearing process that 
provides the same substantive protections as immigration court bond 
hearings under the FSA, but through an independent and neutral HHS 
adjudicator. This proposal would shift responsibility for these 
hearings from DOJ to HHS. ORR estimates that some resources will be 
required to implement this shift. ORR believes that this burden will 
fall on DOJ and HHS staff, and estimates that it will require 
approximately 2,000-4,000 hours to implement. This estimate reflects 
six to 12 staff working full-time for two months to create the new 
system. After this shift in responsibility has been implemented, ORR 
estimates that the rule will lead to no change in net resources 
required for risk determination hearings, and therefore estimate no 
incremental costs or savings. ORR seeks public comment on these 
estimates.
    In subpart K, ORR discusses its proposal to establish an Office of 
the Ombuds for the UC Program. Although the scope of the proposed 
Office of the Ombuds may be varied, ORR anticipates that it would 
provide a mechanism by which unaccompanied children, sponsors, and 
other relevant parties could raise concerns, be empowered to 
independently investigate claims, issue findings and make 
recommendations to ORR, and refer findings to other Federal agencies or 
Congress as appropriate. ORR proposes that the Ombuds role would be 
filled by a career civil servant who has expertise in dispute 
resolution, familiarity with oversight and regulatory matters, 
experience working with unaccompanied children or in child welfare, and 
knowledge of ORR policy and regulations. In addition to the Ombuds 
position itself, ORR anticipates the need for support staff as well. In 
order to estimate the costs associated with the proposed Office of the 
Ombuds and its potential staffing requirements, ORR conferred with 
budgetary experts and analyzed the needs anticipated to accommodate the 
likely case load. ORR assumes the Ombuds would be a GS-15

[[Page 68966]]

($176,458 per year) while support staff would consist of one GS-14 
($150,016 per year), four GS-13s ($126,949 per year), and four GS-12s 
($106,759 per staff per year). For estimating purposes, ORR assumes 
each position will be a Step 5 and include a factor 36.25% for 
overhead, per OMB.\158\ In total, ORR estimates the cost of 
establishing this office would be $1,718,529 per year [($176,458 + 
150,016 + ($126,949 x 4) + ($106,759 x 4) x 136.25%]. ORR welcomes 
comments on the proposed staffing and structure for the Office of the 
Ombuds.
---------------------------------------------------------------------------

    \158\ https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A76/a76_incl_tech_correction.pdf.
---------------------------------------------------------------------------

    ORR also notes that all care provider facilities discussed in this 
proposed rule are ORR grantees and the costs of maintaining compliance 
with these requirements are allowable costs to grant awards under the 
Basic Considerations for cost provisions at 45 CFR 75.403 through 
75.405, in that the costs are reasonable, necessary, ordinary, treated 
consistently, and are allocable to the award. Additional costs 
associated with the policies discussed in this proposed rule that were 
not budgeted, and cannot be absorbed within existing budgets, would be 
allowable for the grant recipient to submit a request for supplemental 
funds to cover the costs.
    Table 1 shows the changes to ORR's current operational status 
compared to the FSA. It contains a preliminary, high-level overview of 
how the rule would change ORR's current operations, for purposes of the 
economic analysis. The table does not provide a comprehensive 
description of all provisions and their basis and purpose.
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BILLING CODE 4184-45-C
    ORR seeks public comment on any additional costs associated with 
the proposals in this proposed rule which have not been otherwise 
addressed.
3. Benefits
    The primary benefit of the proposed rule would be to ensure that 
applicable regulations reflect ORR's custody and treatment of 
unaccompanied children in accordance with the relevant and substantive 
terms of the FSA, the HSA, and the TVPRA. Additionally, the proposed 
codification of minimum standards for licensed facilities and the 
release process, ensures a measure of consistency across the programs 
network of standard facilities. ORR also anticipates that many of the 
previously discussed costs will be partially offset by a reduction in 
legal costs and staff time associated with the FSA and associated 
motions to enforce that require significant usage of staff time--often 
at extremely short notice--and require ORR to pay attorneys' fees.

B. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small business, not-for-profit organizations that 
are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. Individuals are not considered by the RFA to be a small entity.
    The purpose of this action is to promulgate regulations that 
implement the relevant and substantive terms of the FSA and provisions 
of the HSA and TVPRA where they necessarily intersect with the FSA's 
provisions. Publication of final regulations would result in 
termination of the FSA, as provided for in FSA paragraph 40. The FSA 
provides standards for the detention, treatment, and transfer of minors 
and unaccompanied children. Section 462 of the HSA and section 235 of 
the TVPRA prescribe substantive requirements and procedural safeguards 
to be implemented by ORR with respect to unaccompanied children. 
Additionally, court decisions have dictated how the FSA is to be 
implemented.\159\
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    \159\ See, e.g., Flores v. Sessions, 862 F.3d 863 (9th Cir. 
2017); Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016); Flores v. 
Sessions, No. 2:85-cv-04544 (C.D. Cal. June 27, 2017).
---------------------------------------------------------------------------

    Section 462 of the HSA also transferred to the ORR Director 
``functions under the immigration laws of the United States with 
respect to the care of unaccompanied children that were vested by 
statute in, or performed by, the Commissioner of Immigration and 
Naturalization.'' \160\ The ORR Director may, for purposes of 
performing a function transferred by this section, ``exercise all 
authorities under any other provision of law that were available with 
respect to the performance of that function to the official responsible 
for the performance of the function'' immediately before the transfer 
of the program.\161\
---------------------------------------------------------------------------

    \160\ 6 U.S.C. 279(a).
    \161\ 6 U.S.C. 279(f)(1).
---------------------------------------------------------------------------

    Consistent with provisions in the HSA, the TVPRA places the 
responsibility for the care and custody of unaccompanied children with 
the Secretary of Health and Human Services.\162\ Prior to the enactment 
of the HSA, the Commissioner of Immigration and Naturalization, through 
a delegation from the Attorney General, had authority ``to establish 
such regulations . . . as he deems necessary for carrying out his 
authority under the provisions of this Act.'' \163\ In accordance with 
the relevant savings and transfer provisions of the HSA,\164\ the ORR 
Director now possesses the authority to promulgate regulations 
concerning ORR's administration of its responsibilities under the HSA 
and TVPRA.
---------------------------------------------------------------------------

    \162\ 8 U.S.C. 1232(b)(1) (referencing 6 U.S.C. 279).
    \163\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 8 CFR 2.1 
(2002).
    \164\ See 6 U.S.C. 279(e) and (f). See also 6 U.S.C. 552, 557; 8 
U.S.C. 1232(b)(1).
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    This proposed rule would directly regulate ORR. As of June 2018, 
ORR is funding non-profit and private organizations to provide shelter, 
counseling, medical care, legal services, and other support services to 
unaccompanied children in custody. Because the requirements being 
codified in this proposed rule are already enforced by ORR, ORR does 
not expect this proposed rule to impose any additional costs to any of 
their grantees or contractors related to the provision of these 
services. It is possible that some grantees or contractors may 
experience costs to remedy any unmet requirements, however ORR is 
unable to make any specific assumptions due to the unique nature of 
each grantee and contractor. Additional costs associated with remedial 
actions necessary to meet requirements promulgated in this proposed 
rule that were not budgeted, and cannot be absorbed within existing 
budgets, would be allowable for the grant recipient to submit a request 
for supplemental funds to cover the costs.
    The SBA size standard for NAICS 561210 Facilities Support Services 
is $38.5 million. The SBA size standards for NAICS 561612 Security 
Guards and Patrol Services is $20.3 million. Currently, ORR funds 52 
grantees to provide services to unaccompanied children. ORR finds that 
all 52 current grantees are non-profits that do not

[[Page 68976]]

appear to be dominant in their field. Consequently, ORR believes all 52 
grantees are likely to be small entities for the purposes of the RFA. 
The proposed changes to ORR regulations would not directly financially 
impact any small entities. ORR reiterates that additional costs 
associated with remedial actions necessary to meet requirements 
promulgated in this proposed rule that were not budgeted, and cannot be 
absorbed within existing budgets, would be allowable for the small 
entity grantee to submit a request for supplemental funds to cover the 
costs.
    ORR requests information and data from the public that would assist 
in better understanding the direct effects of this proposed rule on 
small entities. Members of the public should submit a comment, as 
described in this proposed rule under Public Participation, if they 
think that their business, organization, or governmental jurisdiction 
qualifies as a small entity and that this proposed rule would have a 
significant economic impact on it. It would be helpful if commenters 
provide as much information as possible as to why this proposed rule 
would create an impact on small businesses.
    ORR is unaware of any relevant Federal rule that may duplicate, 
overlap, or conflict with the proposed rule and is not aware of any 
alternatives to the proposed rule which accomplish the stated 
objectives that would minimize economic impact of the proposed rule on 
small entities. ORR requests comment and also seeks alternatives from 
the public that will accomplish the same objectives and minimize the 
proposed rule's economic impact on small entities.
    Based on this analysis, the Secretary proposes to certify that the 
proposed rule, if finalized, will not have a significant economic 
impact on a substantial number of small entities.

C. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 requires 
that agencies assess anticipated costs and benefits before issuing any 
rule whose mandates require spending in any 1 year of $100 million in 
1995 dollars, updated annually for inflation. The current threshold 
after adjustment for inflation is $177 million, using the most current 
(2022) Implicit Price Deflator for the Gross Domestic Product. This 
proposed rule would not mandate any requirements that meet or exceed 
the threshold for state, local, or tribal governments, or the private 
sector.
    Though this rule would not result in such an expenditure, we do 
discuss the effects of this rule elsewhere in this preamble. 
Additionally, UMRA excludes from its definitions of ``Federal 
intergovernmental mandate,'' and ``Federal private sector mandate'' 
those regulations imposing an enforceable duty on other levels of 
government or the private sector which are a ``condition of Federal 
assistance'' 2 U.S.C. 658(5)(A)(i)(I), (7)(A)(i). The FSA provides ORR 
with no direct authority to mandate binding standards on facilities of 
state and local governments or on operations of private sector 
entities. Instead, these requirements would impact such governments or 
entities only to the extent that they make voluntary decisions to 
contract with ORR. Compliance with any standards that are not already 
otherwise in place resulting from this rule would be a condition of 
ongoing Federal assistance through such arrangements. Therefore, this 
rulemaking contains neither a Federal intergovernmental mandate nor a 
private sector mandate.

D. Paperwork Reduction Act

    All Departments are required to submit to OMB for review and 
approval, any reporting or recordkeeping requirements inherent in a 
rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
Stat. 163 (1995) (codified at 44 U.S.C. 3501 et seq.). This proposed 
rule does not create or change a collection of information, therefore, 
is not subject to the Paperwork Reduction Act requirements.
    However, as required by the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), ORR submitted a copy of this section to the Office of 
Management and Budget (OMB) for its review. This proposed rule complies 
with settlement agreements, court orders, and statutory requirements, 
most of whose terms have been in place for over 20 years. This proposed 
rule would not require additional information collection requirements 
beyond those requirements. The reporting requirements associated with 
those practices have been approved under the requirements of the 
Paperwork Reduction Act and in accordance with 5 CFR part 1320. ORR 
received approval from OMB for use of its forms under OMB control 
number 0970-0278, with an expiration date of August 31, 2025. 
Separately, ORR received approval from OMB for its placement and 
service forms under OMB control number 0970-0498, with an expiration 
date of August 31, 2023. A form associated with the specific consent 
process is currently pending approval with OMB (OMB Control Number 
0970-0385).

E. Executive Order 13132: Federalism

    This proposed rule would 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. This proposed rule would implement ORR 
statutory responsibilities and the FSA by codifying ORR practices that 
comply with the terms of the FSA and relevant law for the care and 
custody of unaccompanied children. In proposing to codify these 
practices, ORR was mindful of its obligations to meet the requirements 
of Federal statutes and the FSA while also minimizing conflicts between 
State law and Federal interests. At the same time, ORR is also mindful 
that its fundamental obligations are to ensure that it implements its 
statutory responsibilities and the agreement that the Federal 
Government entered into through the FSA.
    Typically, ORR enters into cooperative agreements or contracts with 
non-profit and private organizations to provide shelter and care for 
unaccompanied children in a facility licensed by the appropriate state 
or local licensing authority if the state licensing agency provides for 
licensing of facilities that provide services to unaccompanied 
children. Where ORR enters into a cooperative agreement or contract 
with a facility, ORR requires that the organization administering the 
facility abide by all applicable State or local licensing regulations 
and laws. ORR designed agency policies and proposed regulations, as 
well as the terms of ORR cooperative agreements and contracts with the 
agency's grantees/contractors, to complement applicable State and 
licensing rules, not to supplant or replace the requirements.
    Therefore, in accordance with section 6 of Executive Order 13132, 
it is determined that this proposed rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
summary impact statement.
    Notwithstanding the determination that the formal consultation 
process described in Executive Order 13132 is not required for this 
rule, ORR welcomes any comments from representatives of State and local 
juvenile or family residential facilities--among other individuals and 
groups--during the course of this rulemaking.

F. Executive Order 12988: Civil Justice Reform

    This proposed rule meets the applicable standards set forth in

[[Page 68977]]

sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice 
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

VIII. Assessment of Federal Regulation and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a proposed 
policy or regulation may affect family well-being. If the agency's 
determination is affirmative, then the agency must prepare an impact 
assessment addressing criteria specified in the law. This regulation 
will not have an impact on family well-being as defined in this 
legislation, which asks agencies to assess policies with respect to 
whether the policy: strengthens or erodes family stability and the 
authority and rights of parents in the education, nurture, and 
supervision of their children; helps the family perform its functions; 
and increases or decreases disposable income.

IX. Alternatives Considered

    ORR considered several alternatives to the proposed regulations set 
forth in this proposed rule. First, ORR considered not promulgating 
this proposed rule in which it proposes to codify requirements that 
would protect unaccompanied children in ORR care. However, ORR decided 
not to pursue this alternative as it would likely require the 
Government to operate through non-regulatory means in an uncertain 
environment subject to currently unknown future court interpretations 
of the FSA that may be difficult or operationally impracticable to 
implement and that could otherwise hamper operations. Furthermore, ORR 
believes that this proposed rule is warranted at this time in order to 
codify a uniform set of standards and procedures open to public 
inspection and feedback that will help to ensure the safety and 
wellbeing 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 UC Program.
    Once ORR decided to pursue proposing a framework of regulatory 
requirements through a proposed rule, it considered the scope of a 
proposed rule and whether to propose additional regulations addressing 
further areas of authority under the TVPRA, such as those related to 
asylum proceedings for unaccompanied children. ORR rejected this 
alternative in order to solely focus this proposed rule on proposing 
requirements that relate specifically to the care and placement of 
unaccompanied children in ORR custody, pursuant to 6 U.S.C. 279 and 8 
U.S.C. 1232, and that would implement the terms of the FSA. ORR notes 
that its decision to propose more targeted regulations in this proposed 
rule does not preclude ORR or other agencies from subsequently issuing 
regulations to address broader issues, including issues ORR has 
declined to address at this time that are the subject of pending 
litigation, as noted in this preamble.
    After considering these alternatives, ORR determined to draft the 
proposed standards to reflect and be consistent with current ORR 
practices and requirements, proposing enhanced standards, procedures, 
and oversight mechanisms to help ensure the safety and wellbeing of 
unaccompanied children in ORR care where appropriate, consistent with 
ORR's statutory authorities and the FSA. In this way, it would be 
possible to propose standards and requirements that are uniform across 
care provider facilities and in a way that accords with the way the UC 
Program functions. Legacy INS's successors are obligated under the FSA 
to initiate action to publish the relevant and substantive terms of the 
FSA as regulations. In the 2001 Stipulation, the parties agreed to a 
termination of the FSA ``45 days following the defendants' publication 
of final regulations implementing this Agreement.'' In 2020, the U.S. 
Court of Appeals for the Ninth Circuit ruled that if the Government 
wishes to terminate those portions of the FSA covered by valid portions 
of HHS regulations, it may do so by proposing regulations. In this 
proposed rule, ORR is therefore proposing to codify terms of the FSA 
that prescribe ORR responsibilities for unaccompanied children in order 
to ensure that unaccompanied children continue to be treated in 
accordance with the FSA, the HSA, and the TVPRA.
    Robin Dunn Marcos, Director, Office of Refugee Resettlement 
approved this document on September 18, 2023.
    Jeff Hild, Acting Assistant Secretary of the Administration for 
Children and Families, approved this document on September 20, 2023.

List of Subjects in 45 CFR Part 410

    Administrative practice and procedure, Aliens, Child welfare, 
Immigration, Reporting and recordkeeping requirements, Unaccompanied 
children.

0
For the reasons set forth in the preamble, we propose to revise 45 CFR 
part 410 to read as follows:

PART 410--CARE AND PLACEMENT OF UNACCOMPANIED CHILDREN

Subpart A--Care and Placement of Unaccompanied Children
Sec.
410.1000 Scope of this part.
410.1001 Definitions.
410.1002 ORR care and placement of unaccompanied children.
410.1003 General principles that apply to the care and placement of 
unaccompanied children.
410.1004 ORR custody of unaccompanied children.
Subpart B--Determining the Placement of an Unaccompanied Child at a 
Care Provider Facility
410.1100 Purpose of this subpart.
410.1101 Process for the placement of an unaccompanied child after 
referral from another Federal agency.
410.1102 Care provider facility types.
410.1103 Considerations generally applicable to the placement of an 
unaccompanied child.
410.1104 Placement of an unaccompanied child in a standard program 
that is not restrictive.
410.1105 Criteria for placing an unaccompanied child in a 
restrictive placement.
410.1106 Unaccompanied children who need particular services and 
treatment.
410.1107 Considerations when determining whether an unaccompanied 
child is a runaway risk for purposes of placement decisions.
410.1108 Placement and services for children of unaccompanied 
children.
410.1109 Required notice of legal rights.
Subpart C--Releasing an Unaccompanied Child From ORR Custody
410.1200 Purpose of this subpart.
410.1201 Sponsors to whom ORR releases an unaccompanied child.
410.1202 Sponsor suitability.
410.1203 Release approval process.
410.1204 Home studies.
410.1205 Release decisions; denial of release to a sponsor.
410.1206 Appeals of release denials.
410.1207 Ninety (90)-day review of pending release applications.
410.1208 ORR's discretion to release an unaccompanied child to the 
Unaccompanied Refugee Minors Program.
410.1209 Requesting specific consent from ORR regarding custody 
proceedings.
410.1210 Post-release services.
Subpart D--Minimum Standards and Required Services
410.1300 Purpose of this subpart.
410.1301 Applicability of this subpart.
410.1302 Minimum standards applicable to standard programs.
410.1303 Reporting, monitoring, quality control, and recordkeeping 
standards.
410.1304 Behavior management and prohibition on seclusion and 
restraint.
410.1305 Staff, training, and case manager requirements.

[[Page 68978]]

410.1306 Language access services.
410.1307 Healthcare services.
410.1308 Child advocates.
410.1309 Legal services.
410.1310 Psychotropic medications.
410.1311 Unaccompanied children with disabilities.
Subpart E--Transportation of an Unaccompanied Child
410.1400 Purpose of this subpart.
410.1401 Transportation of an unaccompanied child in ORR's care.
Subpart F--Data and Reporting Requirements
410.1500 Purpose of this subpart.
410.1501 Data on unaccompanied children.
Subpart G--Transfers
410.1600 Purpose of this subpart.
410.1601 Transfer of an unaccompanied child within the ORR care 
provider facility network.
Subpart H--Age Determinations
410.1700 Purpose of this subpart.
410.1701 Applicability.
410.1702 Conducting age determinations.
410.1703 Information used as evidence to conduct age determinations.
410.1704 Treatment of an individual who appears to be an adult.
Subpart I--Emergency and Influx Operations
410.1800 Contingency planning and procedures during an emergency or 
influx.
410.1801 Minimum standards for emergency or influx facilities.
410.1802 Placement standards for emergency or influx facilities.
Subpart J--Availability of Review of Certain ORR Decisions
410.1900 Purpose of this subpart.
410.1901 Restrictive placement case reviews.
410.1902 Placement Review Panel.
410.1903 Risk determination hearings.
Subpart K--Unaccompanied Children Office of the Ombuds (UC Office of 
the Ombuds)
410.2000 Establishment of the UC Office of the Ombuds.
410.2001 UC Office of the Ombuds policies and procedures; contact 
information.
410.2002 UC Office of the Ombuds scope and responsibilities.
410.2003 Organization of the UC Office of the Ombuds.
410.2004 Confidentiality.

    Authority: 6 U.S.C. 279, 8 U.S.C. 1103(a)(3), 8 U.S.C. 1232.

Subpart A--Care and Placement of Unaccompanied Children


Sec.  410.1000  Scope of this part.

    (a) This part governs those aspects of the placement, care, and 
services provided to unaccompanied children in Federal custody by 
reason of their immigration status and referred to the Unaccompanied 
Children Program (UC Program) as authorized by section 462 of the 
Homeland Security Act of 2002, Public Law 107-296, 6 U.S.C. 279, and 
section 235 of the William Wilberforce Trafficking Victims Protection 
Reauthorization Act of 2008 (TVPRA), Public Law 110-457, 8 U.S.C. 1232. 
This part includes provisions implementing the settlement agreement 
reached in Jenny Lisette Flores v. Janet Reno, Attorney General of the 
United States, Case No. CV 85-4544-RJK (C.D. Cal. 1996).
    (b) The provisions of this part are separate and severable from one 
another. If any provision is stayed or determined to be invalid, the 
remaining provisions shall continue in effect.
    (c) 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 Sec.  410.1801(d) or such additional waivers 
as are permitted by law.


Sec.  410.1001  Definitions.

    For the purposes of this part, the following definitions apply.
    ACF means the Administration for Children and Families, Department 
of Health and Human Services.
    Attorney of record means an attorney who represents an 
unaccompanied child in legal proceedings or matters and protects them 
from mistreatment, exploitation, and trafficking, consistent with 8 
U.S.C. 1232(c)(5), subject to the consent of the unaccompanied child. 
In order to be recognized as an unaccompanied child's attorney of 
record by the Office of Refugee Resettlement (ORR), for matters within 
ORR's authority, the individual must provide proof of representation of 
the child to ORR. ORR notes that that attorneys of record may engage 
with ORR in the course of this representation in order to obtain 
custody-related document and to engage in other communications 
necessary to facilitate the representation.
    Best interest is a standard ORR applies in determining the types of 
decisions and actions it makes in relation to the care of an 
unaccompanied child. When evaluating what is in a child's best 
interests, ORR considers, as appropriate, the following inexhaustive 
list of factors: 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.
    Care provider facility means any physical site that houses 
unaccompanied children in ORR custody, operated by an ORR-funded 
program that provides residential services for children, including but 
not limited to a program of shelters, group homes, individual family 
homes, residential treatment centers, secure or heightened supervision 
facilities, and emergency or influx facilities. Out of network (OON) 
facilities are not included within this definition.
    Case file means the physical and electronic records for each 
unaccompanied child that are pertinent to the care and placement of the 
child. Case file materials include biographical information on each 
unaccompanied child; birth and marriage certificates; various ORR forms 
and supporting documents (and attachments, e.g., photographs); incident 
reports; medical and dental records; mental health evaluations; case 
notes and records, including educational records clinical notes and 
records; immigration forms and notifications; legal papers; home 
studies and/or post-release service records on a sponsor of an 
unaccompanied child; family reunification information including the 
sponsor's individual and financial data; case disposition; 
correspondence; and Social Security number (SSN); juvenile/criminal 
history records; and other relevant records. The records of 
unaccompanied children are the property of ORR, whether in the 
possession of ORR or a grantee or contractor, and grantees and 
contractors may not release these records without prior approval from 
ORR.
    Case manager means the individual that coordinates, in whole or in 
part, assessments of unaccompanied children, individual service plans, 
and efforts to release unaccompanied children from ORR custody. Case 
managers also ensure services for

[[Page 68979]]

unaccompanied children are documented within the case files for each 
unaccompanied child.
    Chemical restraints include, but are not limited to, drugs 
administered to children to chemically restrain them, and external 
chemicals such as pepper spray or other forms of inflammatory and/or 
aerosol agents.
    Child advocates means third parties, appointed by ORR consistent 
with its authority under TVPRA at 8 U.S.C. 1232(c)(6), who make 
independent recommendations regarding the best interests of an 
unaccompanied child.
    Clear and convincing evidence means a standard of evidence 
requiring that a factfinder be convinced that a contention is highly 
probable--i.e., substantially more likely to be true than untrue.
    Corrective action means steps taken to correct any care provider 
facility noncompliance identified by ORR.
    DHS means the U.S. Department of Homeland Security.
    Director means the Director of the Office of Refugee Resettlement 
(ORR), Administration for Children and Families, Department of Health 
and Human Services.
    Disability means, with respect to an individual, the definition 
provided by section 3 of the Americans with Disabilities Act of 1990, 
42 U.S.C. 12102, which is adopted by reference in section 504 of the 
Rehabilitation Act of 1973, 29 U.S.C. 794(a), and its implementing 
regulations, 45 CFR 84.3 (programs receiving Department of Health and 
Human Services (HHS) financial assistance) and 85.3 (programs conducted 
by HHS), as well as in the TVPRA at 8 U.S.C. 1232(c)(3)(B).
    Discharge means an unaccompanied child that exits ORR custody, or 
the act of an unaccompanied child exiting ORR custody.
    Emergency means an act or event (including, but not limited to, a 
natural disaster, facility fire, civil disturbance, or medical or 
public health concerns at one or more facilities) that prevents timely 
transport or placement of unaccompanied children, or impacts other 
conditions provided by this part.
    Emergency incidents means urgent situations in which there is an 
immediate and severe threat to a child's safety and well-being that 
requires immediate action, and also includes unauthorized absences of 
unaccompanied children from a care provider facility. Emergency 
incidents include, but are not limited to:
    (1) Abuse or neglect in ORR care where there is an immediate and 
severe threat to the child's safety and well-being, such as physical 
assault resulting in serious injury, sexual abuse, or suicide attempt;
    (2) Death of an unaccompanied child in ORR custody, including out-
of-network facilities;
    (3) Medical emergencies;
    (4) Mental health emergencies requiring hospitalization; and
    (5) Unauthorized absences of unaccompanied children in ORR custody.
    Emergency or influx facility means a type of care provider facility 
that opens temporarily to provide shelter and services for 
unaccompanied children during an influx or emergency. These facilities 
are not otherwise categorized as a standard or secure facility in this 
part. Because of the emergency nature of emergency or influx 
facilities, they may not be licensed or may be exempted from licensing 
requirements by State and/or local licensing agencies. Emergency or 
influx facilities may also be operated on federally-owned or leased 
properties, in which case, the facility may not be subject to State or 
local licensing standards.
    Emergency safety situation means a situation in which a child 
presents a risk of imminent physical harm to themselves, or others, as 
demonstrated by overt acts or expressed threats.
    Executive Office for Immigration Review accredited representative, 
or EOIR accredited representative, means a representative of a 
qualified nonprofit religious, charitable, social service, or other 
similar organization established in the United States and recognized by 
the Department of Justice in accordance with 8 CFR part 1292. An EOIR 
accredited representative who is representing a child in ORR custody 
may file a notice of such representation in order to receive updates on 
the unaccompanied child.
    Family planning services include, but are not limited to, Food and 
Drug Administration (FDA)-approved contraceptive products (including 
emergency contraception), pregnancy testing and counseling, sexually 
transmitted infection (STI) services, and referrals to appropriate 
specialists. ORR notes that the term ``family planning services'' does 
not include abortions. Instead, abortion is included in the definition 
of medical services requiring heightened ORR involvement, and is 
further discussed in Sec.  410.1307.
    Family Reunification Packet means an application and supporting 
documentation which must be completed by a potential sponsor who wishes 
to have an unaccompanied child released from ORR to their care. ORR 
uses the application and supporting documentation, as well as other 
procedures, to determine the sponsor's ability to provide for the 
unaccompanied child's physical and mental well-being.
    Heightened supervision facility means a facility that is operated 
by a program, agency or organization licensed by an appropriate State 
agency and that meets the standards for standard programs set forth in 
Sec.  410.1302, and that is designed for an unaccompanied child who 
requires close supervision but does not need placement in a secure 
facility, including a residential treatment center (RTC). It provides 
24-hour supervision, custody, care, and treatment. It maintains 
stricter security measures than a shelter, such as intensive staff 
supervision, in order to provide supports, manage problem behavior, and 
prevent children from running away. A heightened supervision facility 
may have a secure perimeter but shall not be equipped internally with 
major restraining construction or procedures typically associated with 
juvenile detention centers or correctional facilities.
    HHS means the U.S. Department of Health and Human Services.
    Home study means an in-depth investigation of the potential 
sponsor's ability to ensure the child's safety and well-being, 
initiated by ORR as part of the sponsor suitability assessment. A home 
study includes an investigation of the living conditions in which the 
unaccompanied child would be placed if released to a particular 
potential sponsor, the standard of care that the unaccompanied child 
would receive, and interviews with the proposed sponsor and other 
household members. A home study is conducted for any case where it is 
required by the TVPRA, this part, and for other cases at ORR's 
discretion, including for those in which the safety and well-being of 
the unaccompanied child is in question.
    Influx means, for purposes of this part, a situation in which the 
net bed capacity of ORR's standard programs that is occupied or held 
for placement by unaccompanied children meets or exceeds 85 percent for 
a period of seven consecutive days.
    Legal guardian means an individual who has been lawfully vested 
with the power, and charged with the duty of caring for, including 
managing the property, rights, and affairs of, a child or incapacitated 
adult by a court of competent jurisdiction, whether foreign or 
domestic.
    Legal service provider means an organization or individual attorney 
who provides legal services to unaccompanied children, either on a pro 
bono basis or through ORR funding

[[Page 68980]]

for unaccompanied children's legal services. Legal service providers 
provide Know Your Rights presentations and screenings for legal relief 
to unaccompanied children, and/or direct legal representation to 
unaccompanied children.
    LGBTQI+ means lesbian, gay, bisexual, transgender, queer or 
questioning, and intersex.
    Mechanical restraint means any device attached or adjacent to the 
child's body that the child cannot easily remove that restricts freedom 
of movement or normal access to the child's body.
    Medical services requiring heightened ORR involvement means:
    (1) Significant surgical or medical procedures;
    (2) Abortions; and
    (3) Medical services necessary to address threats to the life of or 
serious jeopardy to the health of an unaccompanied child.
    Notification of Concern (NOC) means an instrument used by home 
study and post-release services providers, ORR care providers, and the 
ORR National Call Center staff to document and notify ORR of certain 
concerns that arise after a child is released from ORR care and 
custody.
    Notice of Placement (NOP) means a written notice provided to 
unaccompanied children placed in restrictive placements, explaining the 
reasons for placement in the restrictive placement and kept as part of 
the child's case file. The care provider facility where the 
unaccompanied child is placed must provide the NOP to the child within 
48 hours after an unaccompanied child's arrival at a restrictive 
placement, as well as at minimum every 30 days the child remains in a 
restrictive placement.
    ORR means the Office of Refugee Resettlement, Administration for 
Children and Families, U.S. Department of Health and Human Services.
    ORR long-term home care means an ORR-funded family or group home 
placement in a community-based setting. An unaccompanied child may be 
placed in long-term home care if ORR is unable to identify an 
appropriate sponsor with whom to place the unaccompanied child during 
the pendency of their legal proceedings. ``Long-term home care'' has 
the same meaning as ``long-term foster care,'' as that term is used in 
the definition of traditional foster care provided at 45 CFR 411.5.
    ORR transitional home care means an ORR-funded short-term placement 
in a family or group home. ``Transitional home care'' has the same 
meaning as ``transitional foster care,'' as that term is used in the 
definition of traditional foster care provided at 45 CFR 411.5.
    Out of network placement (OON) means a facility that provides 
physical care and services for individual unaccompanied children as 
requested by ORR on a case-by-case basis, that operates under a single 
case agreement for care of a specific child between ORR and the OON 
provider. OON may include hospitals, restrictive settings, or other 
settings outside of the ORR network of care.
    Peer restraints mean asking or permitting other children to 
physically restrain another child.
    Personal restraint means the application of physical force without 
the use of any device, for the purpose of restraining the free movement 
of a child's body. This does not include briefly holding a child 
without undue force in order to calm or comfort them.
    Placement means delivering the unaccompanied child to the physical 
custody and care of either a care provider facility or an alternative 
to such a facility. An unaccompanied child who is placed pursuant to 
this part is in the legal custody of ORR and may only be transferred or 
released by ORR. An unaccompanied child remains in the custody of a 
referring agency until the child is physically transferred to a care 
provider facility or an alternative to such a facility.
    Placement Review Panel means a three-member panel consisting of 
ORR's senior-level career staff with requisite experience in child 
welfare that is convened for the purposes of reviewing requests for 
reconsideration of restrictive placements. An ORR staff member who was 
involved with the decision to step up an unaccompanied child to a 
restrictive placement may not serve as a Placement Review Panel member 
with respect to that unaccompanied child's placement.
    Post-release services (PRS) mean follow-up services as that term is 
used in the William Wilberforce Trafficking Victims Protection 
Reauthorization Act at 8 U.S.C. 1232(c)(3)(B). PRS are ORR-approved 
services which may, and when required by statute must, be provided to 
an unaccompanied child and the child's sponsor, subject to available 
resources as determined by ORR, after the child's release from ORR 
custody. Assistance may include linking families to educational and 
community resources, home visits, case management, in-home counseling, 
and other social welfare services, as needed. When follow-up services 
are required by statute, the nature and extent of those services would 
be subject to available resources.
    Program-level events mean situations that affect the entire care 
provider facility and/or unaccompanied children and its staff within 
and require immediate action and include, but are not limited to:
    (1) Death of a staff member, other adult, or a child who is not an 
unaccompanied child but is in the care provider facility's care under 
non-ORR funding;
    (2) Major disturbances such as a shooting, attack, riot, protest, 
or similar occurrence;
    (3) Natural disasters such as an earthquake, flood, tornado, 
wildfire, hurricane, or similar occurrence;
    (4) Any event that affects normal operations for the care provider 
facility such as, for instance, a long-term power outage, gas leaks, 
inoperable fire alarm system, infectious disease outbreak, or similar 
occurrence.
    Prone physical restraint means a restraint restricting a child's 
breathing, restricting a child's joints or hyperextending a child's 
joints, or requiring a child to take an uncomfortable position.
    PRS provider means an organization funded by ORR to connect the 
sponsor and unaccompanied child to community resources for the child 
and for other child welfare services, as needed, following the release 
of the unaccompanied child from ORR custody.
    Psychotropic medication(s) means medication(s) that are prescribed 
for the treatment of symptoms of psychosis or another mental, 
emotional, or behavioral disorder and that are used to exercise an 
effect on the central nervous system to influence and modify behavior, 
cognition, or affective state. The term includes the following 
categories:
    (1) Psychomotor stimulants;
    (2) Antidepressants;
    (3) Antipsychotics or neuroleptics;
    (4) Agents for control of mania or depression;
    (5) Antianxiety agents; and
    (6) Sedatives, hypnotics, or other sleep-promoting medications.
    Qualified interpreter means:
    (1) For an individual with a disability, an interpreter who, via a 
video remote interpreting service (VRI) or an on-site appearance, is 
able to interpret effectively, accurately, and impartially, both 
receptively and expressively, using any necessary specialized 
vocabulary. Qualified interpreters include, for example, sign language 
interpreters, oral transliterators, and cued-language transliterators.

[[Page 68981]]

    (2) For a limited English proficient individual, an interpreter who 
via a remote interpreting service or an on-site appearance:
    (i) Has demonstrated proficiency in speaking and understanding both 
spoken English and at least one other spoken language;
    (ii) Is able to interpret effectively, accurately, and impartially 
to and from such language(s) and English, using any necessary 
specialized vocabulary or terms without changes, omissions, or 
additions and while preserving the tone, sentiment, and emotional level 
of the original oral statement; and
    (iii) Adheres to generally accepted interpreter ethics principles, 
including client confidentiality.
    Qualified translator means a translator who:
    (1) Has demonstrated proficiency in writing and understanding both 
written English and at least one other written non-English language;
    (2) Is able to translate effectively, accurately, and impartially 
to and from such language(s) and English, using any necessary 
specialized vocabulary or terms without changes, omissions, or 
additions and while preserving the tone, sentiment, and emotional level 
of the original written statement; and
    (3) Adheres to generally accepted translator ethics principles, 
including client confidentiality.
    Release means discharge of an unaccompanied child to an ORR-vetted 
and approved sponsor. After release, ORR does not have legal custody of 
the unaccompanied child, and the sponsor becomes responsible for 
providing for the unaccompanied child's physical and mental well-being.
    Residential treatment center (RTC) means a sub-acute, time limited, 
interdisciplinary, psycho-educational, and therapeutic 24-hour-a-day 
structured program with community linkages, provided through non-
coercive, coordinated, individualized care, specialized services, and 
interventions. RTCs provide highly customized care and services to 
individuals following either a community-based placement or more 
intensive intervention, with the aim of moving individuals toward a 
stable, less intensive level of care or independence. RTCs are a type 
of secure facility and are not a standard program under this part.
    Restrictive placement means a secure facility, including RTCs, or a 
heightened supervision facility.
    Runaway risk means it is highly probable or reasonably certain that 
an unaccompanied child will attempt to abscond from ORR care. 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.
    Seclusion means the involuntary confinement of a child alone in a 
room or area from which the child is physically prevented from leaving.
    Secure facility means a State or county juvenile detention facility 
or a secure ORR detention facility, or a facility with an ORR contract 
or cooperative agreement having separate accommodations for minors, in 
a physically secure structure with staff able to control violent 
behavior. ORR uses a secure facility as the most restrictive placement 
option for an unaccompanied child who poses a danger to self or others 
or has been charged with having committed a criminal offense. A secure 
facility does not need to meet the requirements of Sec.  410.1302 and 
is not defined as a standard program or shelter under this part.
    Shelter means a kind of standard program in which all of the 
programmatic components are administered on-site, consistent with the 
standards set forth in Sec.  410.1302.
    Significant incidents mean non-emergency situations that may 
immediately affect the safety and well-being of a child. Significant 
incidents include, but are not limited to:
    (1) Abuse or neglect in ORR care;
    (2) Sexual harassment or inappropriate sexual behavior;
    (3) Staff Code of Conduct violations;
    (4) Contact or threats to an unaccompanied child while in ORR care 
from trafficking or smuggling syndicates, organized crime, or other 
criminal actors;
    (5) Incidents involving law enforcement on site;
    (6) Potential fraud schemes perpetrated by outside actors on 
unaccompanied children's sponsors;
    (7) Pregnancy;
    (8) Separation from a parent or legal guardian upon apprehension by 
a Federal agency;
    (9) Mental health concerns; and
    (10) Use of safety measures, such as restraints.
    Special needs unaccompanied child means an unaccompanied child 
whose mental and/or physical condition requires special services and 
treatment by staff. An unaccompanied child may have special needs due 
to alcohol or substance use, serious emotional disturbance, mental 
illness, intellectual or developmental disability, or a physical 
condition or chronic illness that requires special services or 
treatment. An unaccompanied child who has suffered serious neglect or 
abuse may be considered a special needs minor if the child requires 
special services or treatment as a result of neglect or abuse.
    Sponsor means an individual (or entity) to whom ORR releases an 
unaccompanied child out of ORR custody, in accordance with ORR's 
sponsor suitability assessment process and release procedures.
    Staff Code of Conduct means the set of personnel requirements 
established by ORR in order to promote a safe environment for 
unaccompanied children in its care, including protecting unaccompanied 
children from sexual abuse and sexual harassment.
    Standard program means any program, agency, or organization that is 
licensed by an appropriate State agency, or that meets other 
requirements specified by ORR if licensure is unavailable in the State 
to programs providing services to unaccompanied children, to provide 
residential, group, or transitional or long-term home care services for 
dependent children, including a program operating family or group 
homes, or facilities for special needs unaccompanied children. A 
standard program must meet the standards set forth in Sec.  410.1302. 
All homes and facilities operated by a standard program, including 
facilities for special needs unaccompanied children, shall be non-
secure. However, a facility for special needs unaccompanied children 
may maintain that level of security permitted under State law, or under 
the requirements specified by ORR if licensure is unavailable in the 
State, which is necessary for the protection of an unaccompanied child 
or others in appropriate circumstances.
    Tender age means twelve years of age or younger.
    Transfer means the movement of an unaccompanied child from one ORR 
care provider facility to another ORR care provider facility, such that 
the receiving care provider facility takes over physical custody of the 
child. ORR sometimes uses the terms ``step up'' and ``step down'' to 
describe transfers of unaccompanied children to or from restrictive 
placements. For example, if ORR transfers an unaccompanied child from a 
shelter facility to a heightened supervision facility, that transfer 
would be a ``step up,'' and a transfer from a heightened supervision 
facility to a shelter facility would be a ``step down.'' But a transfer 
from a shelter to a community-based care facility, or vice versa, would 
be neither a step up nor a step down, because both placement types are 
not considered restrictive.

[[Page 68982]]

    Trauma bond means when a trafficker uses rewards and punishments 
within cycles of abuse to foster a powerful emotional connection with 
the victim.
    Trauma-informed means a system, standard, process, or practice that 
realizes the widespread impact of trauma and understands potential 
paths for recovery; recognizes the signs and symptoms of trauma in 
unaccompanied children, families, staff, and others involved with the 
system; and responds by fully integrating knowledge about trauma into 
policies, procedures, and practices, and seeks to actively resist re-
traumatization.
    Unaccompanied child/children means a child who:
    (1) Has no lawful immigration status in the United States;
    (2) Has not attained 18 years of age; and
    (3) 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.
    Unaccompanied Refugee Minors (URM) Program means the child welfare 
services program available pursuant to 8 U.S.C. 1522(d).


Sec.  410.1002  ORR care and placement of unaccompanied children.

    ORR coordinates and implements the care and placement of 
unaccompanied children who are in ORR custody by reason of their 
immigration status.


Sec.  410.1003  General principles that apply to the care and placement 
of unaccompanied children.

    (a) Within all placements, unaccompanied children shall be treated 
with dignity, respect, and special concern for their particular 
vulnerability.
    (b) 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.
    (c) ORR plans and provides care and services based on the 
individual needs of and focusing on the strengths of the unaccompanied 
child.
    (d) ORR encourages 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.
    (e) ORR strives to provide quality care tailored to the 
individualized needs of each unaccompanied child in its 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.
    (f) In making placement determinations, ORR places each 
unaccompanied child in the least restrictive setting that is in the 
best interests of the child, giving consideration to the child's danger 
to self, danger to others, and runaway risk.
    (g) When requesting information or consent from unaccompanied 
children ORR consults with parents, legal guardians, child advocates, 
and attorneys of record or EOIR accredited representatives as needed.


Sec.  410.1004  ORR custody of unaccompanied children.

    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; provided, however, 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.

Subpart B--Determining the Placement of an Unaccompanied Child at a 
Care Provider Facility


Sec.  410.1100  Purpose of this subpart.

    This subpart sets forth the process by which ORR receives referrals 
of unaccompanied children from other Federal agencies and the factors 
ORR considers when placing an unaccompanied child in a particular care 
provider facility. 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 
unaccompanied child is released in accordance with subpart C of this 
part.


Sec.  410.1101  Process for placement of an unaccompanied child after 
referral from another Federal agency.

    (a) ORR accepts referrals of unaccompanied children, from any 
department or agency of the Federal Government at any time of day, 
every day of the year.
    (b) 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 identifies an appropriate placement for 
the unaccompanied child and notifies the referring Federal agency 
within 24 hours of receiving the referring agency's notification 
whenever possible, and no later than within 48 hours of receiving 
notification, barring exceptional circumstances.
    (c) ORR works with the referring Federal Government 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).
    (d) For purposes of paragraphs (b) and (c) of this section, ORR may 
be unable to timely identify a placement for and accept transfer of 
custody of an unaccompanied child due to exceptional circumstances, 
including:
    (1) Any court decree or court-approved settlement that requires 
otherwise;
    (2) An influx, as defined at 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;
    (6) The apprehension of an unaccompanied child whom the referring 
Federal 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; or
    (7) 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 timeframes in paragraph (b) or (c) of 
this section.
    (e) ORR takes legal custody of an unaccompanied child begins when 
it assumes physical custody from the referring agency.


Sec.  410.1102  Care provider facility types.

    ORR may place unaccompanied children in care provider facilities as 
defined at Sec.  410.1001, including but not limited to shelters, group 
homes, individual family homes, heightened supervision facilities, or 
secure facilities, including RTCs. ORR may place unaccompanied children 
in out-of-network (OON) placements under certain, limited 
circumstances. In times

[[Page 68983]]

of influx or emergency, as further discussed in subpart I of this part, 
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.


Sec.  410.1103  Considerations generally applicable to the placement of 
an unaccompanied child.

    (a) ORR shall place each unaccompanied child in the least 
restrictive setting that is in the best interest of the 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 in protecting the unaccompanied child's well-
being and that of others.
    (b) ORR considers the following factors that may be relevant to the 
unaccompanied child's placement, including:
    (1) Danger to self;
    (2) Danger to the community/others;
    (3) Runaway risk;
    (4) Trafficking in persons or other safety concerns;
    (5) Age;
    (6) Gender;
    (7) LGBTQI+ status;
    (8) Disability;
    (9) Any specialized services or treatment required or requested by 
the unaccompanied child;
    (10) Criminal background;
    (11) Location of potential sponsor and safe and timely release 
options;
    (12) Behavior;
    (13) Siblings in ORR custody;
    (14) Language access;
    (15) Whether the unaccompanied child is pregnant or parenting;
    (16) Location of the unaccompanied child's apprehension; and
    (17) Length of stay in ORR custody.
    (c) ORR may utilize information provided by the referring Federal 
agency, child assessment tools, interviews, and pertinent documentation 
to determine the placement of all unaccompanied children. ORR may 
obtain any records from local, State, and Federal agencies regarding an 
unaccompanied child to inform placement decisions.
    (d) ORR shall review, at least every 30 days, the placement of an 
unaccompanied child in a restrictive placement to determine whether a 
new level of care is appropriate.
    (e) ORR shall make reasonable efforts to provide placements in 
those geographical areas where DHS encounters the majority of 
unaccompanied children.
    (f) A care provider facility must accept the placement of 
unaccompanied children as determined by ORR, and may deny placement 
only for the following reasons:
    (1) Lack of available bed space;
    (2) Placement of the unaccompanied child would conflict with the 
care provider facility's State or local licensing rules;
    (3) 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.
    (g) Care provider facilities must submit a written request to ORR 
for authorization to deny placement of unaccompanied children, 
providing the individualized reasons for the denial. Any such request 
must be approved by ORR before the care provider facility may deny a 
placement. ORR may follow up with a care provider facility about a 
placement denial to find a solution to the reason for the denial.


Sec.  410.1104  Placement of an unaccompanied child in a standard 
program that is not restrictive.

    ORR places all unaccompanied children in standard programs that are 
not restrictive placements, except in the following circumstances:
    (a) An unaccompanied child meets the criteria for placement in a 
restrictive placement set forth in 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 
subpart I of this part.


Sec.  410.1105  Criteria for placing an unaccompanied child in a 
restrictive placement.

    (a) Criteria for placing an unaccompanied child in a secure 
facility that is not a residential treatment center. (1) ORR may place 
an unaccompanied child in a secure facility (that is not an RTC) either 
at initial placement or through a transfer to another care provider 
facility from the initial placement.
    (2) ORR will not place an unaccompanied child in a secure facility 
(that is not an RTC) if less restrictive alternatives in the best 
interests of the unaccompanied child are available and appropriate 
under the circumstances. ORR 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.
    (3) ORR may place an unaccompanied child in a secure facility (that 
is not an RTC) only if the unaccompanied child:
    (i) 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 where ORR deems that those circumstances 
demonstrate that the unaccompanied child poses a danger to self or 
others, not including:
    (A) 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
    (B) A petty offense, which is not considered grounds for stricter 
means of detention in any case;
    (ii) While in DHS or ORR's custody, or while in the presence of an 
immigration officer or 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); 
or
    (iii) 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.
    (b) Criteria for placing an unaccompanied child in a heightened 
supervision facility. (1) ORR may place an unaccompanied child in a 
heightened supervision facility either at initial placement or through 
a transfer to another facility from the initial placement.
    (2) In determining whether to place an unaccompanied child in a 
heightened supervision facility, ORR considers if the unaccompanied 
child:
    (i) 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;
    (ii) Is a runaway risk;
    (iii) Has displayed a pattern of severity of behavior, either prior 
to

[[Page 68984]]

entering ORR custody or while in ORR care, that requires an increase in 
supervision by trained staff;
    (iv) Has a non-violent criminal or delinquent history not 
warranting placement in a secure facility, such as isolated or petty 
offenses as described in paragraph (b)(2)(iii) of this section; or
    (v) Is assessed as ready for step-down from a secure facility, 
including an RTC.
    (c) Criteria for placing an unaccompanied child in an RTC. (1) An 
unaccompanied child with serious mental health or behavioral health 
issues may be placed into 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. In assessing danger to self or others, ORR uses the 
criteria for placement in a secure facility at paragraph (a) of this 
section.
    (2) ORR may place an unaccompanied child at an 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.
    (3) The criteria for placement in or transfer to an RTC also apply 
to transfers to or placements in OON RTCs. Care provider facilities may 
request ORR to transfer an unaccompanied child to an RTC in accordance 
with Sec.  410.1601(d).


Sec.  410.1106  Unaccompanied children who need particular services and 
treatment.

    ORR shall assess each unaccompanied child in its care to determine 
whether the unaccompanied child requires particular services and 
treatment by staff to address their individual needs while in the care 
of the UC Program. An unaccompanied child's assessed needs may require 
particular services, equipment, and treatment by staff for various 
reasons, including, but not limited to disability, alcohol or substance 
use, a history of serious neglect or abuse, tender age, pregnancy, or 
parenting. If ORR determines that an unaccompanied child's 
individualized needs require particular services and treatment by staff 
or particular equipment, ORR shall place the unaccompanied child, 
whenever possible, in a licensed program in which unaccompanied 
children with disabilities can interact with people without 
disabilities to the fullest extent possible, and shall make reasonable 
modifications to its programs, including the provision of services, 
equipment and treatment, so that children with disabilities can have 
equal access to the program in the most integrated setting appropriate.


Sec.  410.1107  Considerations when determining whether an 
unaccompanied child is a runaway risk for purposes of placement 
decisions.

    When determining whether an unaccompanied child is a runaway risk 
for purposes of placement decisions, ORR considers, among other 
factors, whether:
    (a) The unaccompanied child is currently under a final order of 
removal.
    (b) The unaccompanied child's immigration history includes:
    (1) A prior breach of a bond;
    (2) A failure to appear before DHS or the immigration court;
    (3) Evidence that the unaccompanied child is indebted to organized 
smugglers for the child's transport; or
    (4) A previous removal from the United States pursuant to a final 
order of removal.
    (c) The unaccompanied child has previously absconded or attempted 
to abscond from State or Federal custody.
    (d) The unaccompanied child has displayed behaviors indicative of 
flight or has expressed intent to run away.
    (e) Evidence that the unaccompanied child is indebted to, 
experiencing a strong trauma bond to, or is threatened by a trafficker 
in persons or drugs.


Sec.  410.1108  Placement and services for children of unaccompanied 
children.

    (a) Placement. If unaccompanied children and their children are 
referred together to ORR, ORR shall place the unaccompanied children 
and their children in the same facility, except in unusual or emergency 
situations. Unusual or emergency situations include, but are not 
limited to:
    (1) The unaccompanied child requires alternate placement due to 
hospitalization or need for a specialized care or treatment setting 
that cannot provide appropriate care for the child of the unaccompanied 
child;
    (2) The unaccompanied child requests alternate placement for the 
child of the unaccompanied child; or
    (3) The unaccompanied child is the subject of 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).
    (b) Services. (1) ORR provides the same care and services to the 
children of unaccompanied children as it provides to unaccompanied 
children, as appropriate, regardless of the children's immigration or 
citizenship status.
    (2) U.S. citizen children of unaccompanied children are eligible 
for public benefits and services to the same extent as other U.S. 
citizens. Application(s) for public benefits and services shall be 
submitted on behalf of the U.S. citizen children of unaccompanied 
children by care provider facilities. Utilization of those benefits and 
services shall be exhausted to the greatest extent practicable before 
ORR-funded services are utilized.


Sec.  410.1109  Required notice of legal rights.

    (a) ORR shall promptly provide each unaccompanied child in its 
custody, in a language and manner the unaccompanied child understands, 
with:
    (1) 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;
    (2) 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.''; and
    (3) A presentation regarding their legal rights, as provided under 
Sec.  410.1309(a)(2).
    (b) ORR shall not engage in retaliatory actions against legal 
service providers or any other representative because of advocacy or 
appearance in an action adverse to ORR.

Subpart C--Releasing an Unaccompanied Child From ORR Custody


Sec.  410.1200  Purpose of this subpart.

    This subpart covers the policies and procedures used to release, 
without

[[Page 68985]]

unnecessary delay, an unaccompanied child from ORR custody to a vetted 
and approved sponsor.


Sec.  410.1201  Sponsors to whom ORR releases an unaccompanied child.

    (a) Subject to an assessment of sponsor suitability, when ORR 
determines that the detention of the unaccompanied child is not 
required either to secure the child's timely appearance before DHS or 
the immigration court, or to ensure the minor's safety or that of 
others, ORR shall release a minor from its custody without unnecessary 
delay, in the following order of preference, to:
    (1) A parent;
    (2) A legal guardian;
    (3) An adult relative;
    (4) 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 in:
    (i) A declaration signed under penalty of perjury before an 
immigration or consular officer; or
    (ii) Such other document that establishes to the satisfaction of 
ORR, in its discretion, the affiant's parental relationship or 
guardianship;
    (5) A standard program willing to accept legal custody; or
    (6) 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 family reunification does not 
appear to be a reasonable possibility.
    (b) ORR shall not disqualify potential sponsors based solely on 
their immigration status and 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 enforcement related entity at any time.
    (c) In making determinations regarding the release of unaccompanied 
children to potential sponsors, ORR shall not release unaccompanied 
children on their own recognizance.


Sec.  410.1202  Sponsor suitability.

    (a) Potential sponsors shall complete an application package to be 
considered as a sponsor for an unaccompanied child. The application 
package may be obtained from either the care provider facility or ORR 
directly.
    (b) Prior to releasing an unaccompanied child, ORR shall conduct a 
suitability assessment to determine whether the potential sponsor is 
capable of providing for the unaccompanied child's physical and mental 
well-being. At minimum, such assessment shall consist of review of the 
potential sponsor's application package, including verification of the 
potential sponsor's identity, physical environment of the sponsor's 
home, and relationship to the unaccompanied child, if any, and an 
independent finding that the individual has not engaged in any activity 
that would indicate a potential risk to the unaccompanied 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.
    (c) As part of its suitability assessment, ORR may also require 
such components as an investigation of the living conditions in which 
the unaccompanied child would be placed and the standard of care the 
unaccompanied child would receive, verification of the employment, 
income, or other information provided by the potential sponsor as 
evidence of the ability to support the child, interviews with members 
of the household, a home visit or home study as discussed at Sec.  
410.1204, background and criminal records checks, which may include a 
fingerprint based background check, on the potential sponsor and on 
adult residents of the potential sponsor's household. Any such 
assessment also takes into consideration the wishes and concerns of the 
unaccompanied child.
    (d) ORR shall assess the nature and extent of the potential 
sponsor's previous and current relationship with the unaccompanied 
child, and the unaccompanied child's family, if applicable. ORR may 
deny release to unrelated individuals who have applied to be a sponsor 
but who have no pre-existing relationship with the child or the child's 
family prior to the child's entry into ORR custody.
    (e) ORR shall consider the potential sponsor's motivation for 
sponsorship; the unaccompanied child's preferences and perspective 
regarding release to the potential sponsor; and the unaccompanied 
child's parent's or legal guardian's preferences and perspective on 
release to the potential sponsor, as applicable.
    (f) ORR shall evaluate the unaccompanied child's current 
functioning and strengths in conjunction with any risks or concerns 
such as:
    (1) 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;
    (2) History of criminal or juvenile justice system involvement 
(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) History of behavioral issues;
    (4) History of violence;
    (5) Any individualized needs, including those related to 
disabilities or other medical or behavioral/mental health issues;
    (6) History of substance use; or
    (7) Parenting or pregnant unaccompanied child.
    (g) For individual sponsors, ORR shall consider the potential 
sponsor's strengths and resources in conjunction with any risks or 
concerns that could affect their ability to function as a sponsor 
including:
    (1) Criminal background;
    (2) Substance use or history of abuse or neglect;
    (3) The physical environment of the home; and/or
    (4) Other child welfare concerns.
    (h) ORR shall assess the potential sponsor's:
    (1) Understanding of the unaccompanied child's needs;
    (2) Plan to provide adequate care, supervision, and housing to meet 
the unaccompanied child's needs;
    (3) Understanding and awareness of responsibilities related to 
compliance with the unaccompanied child's immigration court 
proceedings, school attendance, and U.S. child labor laws; and
    (4) Awareness of and ability to access community resources.
    (i) ORR shall develop a release plan that will enable a safe 
release to a potential sponsor through the provision of post-release 
services if needed.


Sec.  410.1203  Release approval process.

    (a) ORR or the care provider providing care for the unaccompanied 
child shall make and record the prompt and continuous efforts on its 
part towards family unification and the release of the unaccompanied 
child pursuant to the provisions of this section. These efforts include 
intakes and admissions assessments and the provision of ongoing case 
management services to identify potential sponsors.
    (b) If a potential sponsor is identified, ORR shall explain to both 
the unaccompanied child and the potential sponsor the requirements and 
procedures for release.
    (c) Pursuant to the requirements of Sec.  410.1202, the potential 
sponsor shall

[[Page 68986]]

complete an application for release of the unaccompanied child, which 
includes 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 
unaccompanied child; and the sponsor's commitment to fulfill the 
sponsor's obligations in the Sponsor Care Agreement, which requires the 
sponsor 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, the Executive Office for Immigration Review (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 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. Also, in the event of an emergency 
(e.g., serious illness or destruction of the home), a sponsor may 
transfer temporary physical custody of the unaccompanied child to 
another person who will comply with the Sponsor Care Agreement, but the 
sponsor must notify ORR as soon as possible and no later than 72 hours 
after the transfer.
    (d) ORR shall conduct a sponsor suitability assessment consistent 
with the requirements of Sec.  410.1202.
    (e) ORR shall not be required to release an unaccompanied child to 
any person or agency it has reason to believe may harm or neglect the 
unaccompanied child or fail to present the unaccompanied child before 
DHS or the immigration courts when requested to do so.
    (f) During the release approval process, ORR shall educate the 
sponsor about the needs of the unaccompanied child and develop an 
appropriate plan to care for the unaccompanied child.


Sec.  410.1204  Home studies.

    (a) As part of assessing the suitability of a potential sponsor, 
ORR may require a home study. A home study includes an investigation of 
the living conditions in which the unaccompanied child would be placed 
and takes place prior to the child's physical release, the standard of 
care the child would receive, and interviews with the potential sponsor 
and others in the sponsor's household.
    (b) ORR requires home studies under the following circumstances:
    (1) Under the conditions identified in TVPRA at 8 U.S.C. 
1232(c)(3)(B), which requires home studies for the following:
    (i) A child who is a victim of a severe form of trafficking in 
persons;
    (ii) A special needs child with a disability (as defined in 42 
U.S.C. 12102);
    (iii) 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
    (iv) A child whose proposed sponsor clearly presents a risk of 
abuse, maltreatment, exploitation, or trafficking to the child based on 
all available objective evidence.
    (2) 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.
    (3) Before releasing any child who is 12 years old or younger to a 
non-relative sponsor.
    (c) ORR may, in its discretion, 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.
    (d) The care provider must inform the potential sponsor whenever a 
home study is conducted, explaining the scope and purpose of the study 
and answering the potential sponsor's questions about the process. In 
addition, the home study report, as well as any subsequent addendums if 
created, will be provided to the potential sponsor if the release 
request is denied.
    (e) An unaccompanied child for whom a home study is conducted shall 
receive post-release services as described at Sec.  410.1210.


Sec.  410.1205  Release decisions; denial of release to a sponsor.

    (a) A potential sponsorship will be denied, if as part of the 
sponsor assessment process described at Sec.  410.1202 or the release 
process described at Sec.  410.1203, ORR determines that the potential 
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.
    (b) ORR shall adjudicate a potential sponsor who is an 
unaccompanied child's parent or legal guardian within 10 calendar days 
of receipt of a completed sponsor application or Family Reunification 
Package (FRP). If ORR denies release of an unaccompanied child to a 
potential sponsor who is a parent or legal guardian, it must notify the 
potential sponsor of the denial in writing via a Notification of Denial 
letter, which includes:
    (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.
    (c) ORR shall inform the unaccompanied child, the unaccompanied 
child's child advocate, and the unaccompanied child's counsel (or if 
the unaccompanied child has no attorney of record or EOIR accredited 
representative, the local legal service provider) of a denial of 
sponsorship involving an unaccompanied child's parent or legal 
guardian.
    (d) If the sole reason for denial of release is a concern that the 
unaccompanied child is a danger to self or others, and the potential 
sponsor is the unaccompanied child's parent or legal guardian, ORR must 
send the unaccompanied child a copy of the Notification of Denial 
described at paragraph (b) of this section. If the parent or legal 
guardian is not already seeking an appeal, the child may seek an appeal 
of the denial.
    (e) ORR shall permit unaccompanied children to 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.


Sec.  410.1206  Appeals of release denials.

    (a) Denied parent or legal guardian sponsors to whom ORR must send 
Notification of Denial letters pursuant to Sec.  410.1205 may seek an 
appeal of ORR's decision by submitting a written request

[[Page 68987]]

to the Assistant Secretary of ACF, or the Assistant Secretary's neutral 
and detached designee.
    (b) The requestor may seek an appeal with a hearing or without a 
hearing. The Assistant Secretary, or their neutral and detached 
designee, will acknowledge the request for appeal within a reasonable 
time.
    (c) If the sole reason for denial of release is concern that the 
unaccompanied child is a danger to self or others, the unaccompanied 
child also may seek an appeal of the denial as described in paragraphs 
(a) and (b) of this section. If the unaccompanied child expresses a 
desire to seek an 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 the unaccompanied child is in ORR 
custody.


Sec.  410.1207  Ninety (90)-day review of pending release applications.

    (a) ORR Federal staff who supervise case management services 
performed by ORR grantees and contractors shall review all pending 
sponsor applications or Family Reunification Packets (FRP) for 
unaccompanied children who are in ORR custody for 90 days after the 
complete sponsor application or FRP has been submitted to identify and 
resolve in a timely manner the reasons that a release application 
remains pending and to determine possible steps to accelerate the 
unaccompanied child's safe release.
    (b) Upon completion of the initial 90-day review, unaccompanied 
child case managers or other designated agency or care provider staff 
shall update the potential sponsor and unaccompanied child on the 
status of the case, explaining the reasons that the release process is 
incomplete. Case managers or other designated agency or care provider 
staff shall work with the potential sponsor, relevant stakeholders, and 
ORR to address the portions of the sponsorship application or FRP that 
remain unresolved.
    (c) For cases that are not resolved after the initial 90-day 
review, ORR Federal staff supervising the case management process shall 
conduct additional reviews at least every 90 days until the pending 
sponsor application or FRP is resolved. ORR may in its discretion and 
subject to resource availability conduct additional reviews on a more 
frequent basis than every 90 days.


Sec.  410.1208  ORR's discretion to release an unaccompanied child to 
the Unaccompanied Refugee Minors Program.

    (a) An unaccompanied child may be eligible for services through the 
ORR Unaccompanied Refugee Minors (URM) Program. Eligible categories of 
unaccompanied children include:
    (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) U nonimmigrant status recipients under 8 U.S.C. 1101(a)(15)(U); 
or
    (5) Other populations of children as authorized by Congress.
    (b) With respect to unaccompanied children described in paragraph 
(a) of this section, ORR will evaluate each unaccompanied child case to 
determine whether it is in the child's best interests to be referred to 
the URM Program.
    (c) When ORR discharges an unaccompanied child pursuant to this 
section to receive services through the URM Program, legal 
responsibility of the child, including legal custody or guardianship, 
must be established under State law as required by 45 CFR 400.115. 
Until such legal custody or guardianship is established, the ORR 
Director retains legal custody of the child.


Sec.  410.1209  Requesting specific consent from ORR regarding custody 
proceedings.

    (a) An unaccompanied child in ORR custody is required to request 
specific consent from ORR if the child seeks to invoke the jurisdiction 
of a juvenile court to alter the child's custody status or release from 
ORR custody.
    (b) If an unaccompanied child seeks to invoke the jurisdiction of a 
juvenile court for a dependency order to petition for SIJ 
classification or to otherwise permit a juvenile court to establish 
jurisdiction regarding a child's placement and does not seek the 
juvenile court's jurisdiction to determine or alter the child's custody 
status or release, the unaccompanied child does not need to request 
specific consent from ORR.
    (c) Prior to a juvenile court determining or altering the 
unaccompanied child's custody status or release from ORR, attorneys or 
others acting on behalf of an unaccompanied child must complete a 
request for specific consent.
    (d) ORR shall acknowledge receipt of the request within two 
business days.
    (e) Consistent with its duty to promptly place unaccompanied 
children in the least restrictive setting that is in the best interest 
of the child, ORR shall consider whether ORR custody is required to:
    (1) Ensure a child's safety; or
    (2) Ensure the safety of the community.
    (f) ORR shall make determinations on specific consent requests 
within 60 business days of receipt of a request. When possible, ORR 
shall expedite urgent requests.
    (g) ORR shall inform the unaccompanied child, or the unaccompanied 
child's attorney or other authorized representative of the decision on 
the specific consent request in writing, along with the evidence 
utilized to make the decision.
    (h) The unaccompanied child, the unaccompanied child's attorney of 
record, or other authorized representative may request reconsideration 
of ORR's denial with the Assistant Secretary for ACF within 30 business 
days of receipt of the ORR notification of denial of the request. The 
unaccompanied child, the unaccompanied child's attorney, or authorized 
representative may submit additional (including new) evidence to be 
considered with the reconsideration request.
    (i) The Assistant Secretary for ACF or designee considers the 
request for reconsideration and any additional evidence, and sends a 
final administrative decision to the unaccompanied child, or the 
unaccompanied child's attorney or other authorized representative, 
within 15 business days of receipt of the request.


Sec.  410.1210  Post-release services.

    (a) General. (1) Before releasing unaccompanied children, care 
provider facilities shall work with sponsors and unaccompanied children 
to prepare for safe and timely release of the unaccompanied children, 
to assess whether the unaccompanied children may need assistance in 
accessing community resources, and to provide guidance regarding safety 
planning and accessing services.

[[Page 68988]]

    (2) ORR shall conduct PRS, during the pendency of removal 
proceedings, for unaccompanied children for whom a home study was 
conducted pursuant to Sec.  410.1204. An unaccompanied child who 
receives a home study and PRS may also receive home visits by a PRS 
provider.
    (3) To the extent that ORR determines appropriations are available, 
and in its discretion, ORR may conduct PRS in additional cases 
involving unaccompanied children with mental health or other needs who 
could benefit from ongoing assistance from a community-based service 
provider. ORR shall determine the level and extent of PRS, if any, 
based on the needs of the unaccompanied children and the sponsors and 
the extent appropriations are available.
    (4) ORR shall not delay the release of an unaccompanied child if 
PRS are not immediately available.
    (b) Service areas. PRS include services in the areas listed in 
paragraphs (b)(1) through (12) of this section, which shall be provided 
in a manner that is sensitive to the individual needs of the 
unaccompanied child and in a way they effectively understand regardless 
of spoken language, reading comprehension, or disability to ensure 
meaningful access for all eligible children, including those with 
limited English proficiency. The comprehensiveness of PRS shall depend 
on the extent appropriations are available.
    (1) Placement stability and safety. PRS providers shall work with 
sponsors to address challenges in parenting and caring for 
unaccompanied children. This may include guidance about maintaining a 
safe home; supervision of unaccompanied children; protecting 
unaccompanied children from threats by smugglers, traffickers, and 
gangs; and information about child abuse, neglect, separation, grief 
and loss, and how these issues affect children.
    (2) Immigration proceedings. The PRS provider shall help facilitate 
the sponsor's plan to ensure the unaccompanied child's attendance at 
all immigration court proceedings and compliance with DHS requirements.
    (3) Guardianship. If the sponsor is not a parent or legal guardian 
of the unaccompanied child, then the PRS provider shall provide the 
sponsor information about the benefits of obtaining legal guardianship 
of the unaccompanied child. If the sponsor is interested in becoming 
the unaccompanied child's legal guardian, then the PRS provider may 
assist the sponsor in identifying the legal resources to do so.
    (4) Legal services. PRS providers shall assist sponsors in 
accessing relevant legal service resources including resources for 
immigration matters and unresolved juvenile justice issues.
    (5) Education. PRS providers shall assist sponsors with school 
enrollment and addressing issues relating to the unaccompanied 
children's progress in school, including attendance. PRS providers may 
also assist with alternative education plans for unaccompanied children 
who exceed the State's minimum age requirement for mandatory school 
attendance. PRS providers may also assist sponsors with obtaining 
evaluations for unaccompanied children reasonably suspected of having a 
disability to determine eligibility for a free appropriate public 
education (which can include special education and related services) or 
reasonable modifications and auxiliary aids and services.
    (6) Employment. PRS providers shall educate sponsors on U.S. child 
labor laws and requirements.
    (7) Medical services. PRS providers shall assist the sponsor in 
obtaining medical insurance for the unaccompanied child if available 
and in locating medical providers that meet the individual needs of the 
unaccompanied child and the sponsor. If the unaccompanied child 
requires specialized medical assistance, the PRS provider shall assist 
the sponsor in making and keeping medical appointments and monitoring 
the unaccompanied child's medical requirements. PRS providers shall 
provide the unaccompanied child and sponsor with information and 
referrals to services relevant to health-related considerations for the 
unaccompanied child.
    (8) Individual mental health services. PRS providers shall provide 
the sponsor with relevant mental health resources and referrals for the 
unaccompanied child. The resources and referrals shall take into 
account the individual needs of the unaccompanied child and sponsor. If 
an unaccompanied child requires specialized mental health assistance, 
PRS providers shall assist the sponsor in making and keeping mental 
health appointments and monitoring the unaccompanied child's mental 
health requirements.
    (9) Family stabilization/counseling. PRS providers shall provide 
the sponsor with relevant resources and referrals for family counseling 
and/or individual counseling that meet individual needs of the 
unaccompanied child and the sponsor.
    (10) Substance use. PRS providers shall assist the sponsor in 
locating resources to help address any substance use-related needs of 
the unaccompanied child.
    (11) Gang prevention. PRS providers shall provide the sponsor 
information about gang prevention programs in the sponsor's community.
    (12) Other services. PRS providers may assist the sponsor and 
unaccompanied child with accessing local resources in other specialized 
service areas based on the needs and at the request of the 
unaccompanied child.
    (c) PRS for unaccompanied children requiring additional 
consideration. Additional unaccompanied children may be referred to PRS 
based on their individual needs, including, but not limited to:
    (1) Unaccompanied children in need of particular services or 
treatment;
    (2) Unaccompanied children with disabilities;
    (3) LGBTQI+ status unaccompanied children;
    (4) Unaccompanied children who are adjudicated delinquent or who 
have been involved in, or are at high risk of involvement with the 
juvenile justice system;
    (5) Unaccompanied children who entered ORR care after being 
separated by DHS from a parent or legal guardian;
    (6) Unaccompanied children who are victims of human trafficking or 
other crimes;
    (7) Unaccompanied children who are victims of, or at risk of, 
worker exploitation;
    (8) Unaccompanied children who are at risk for labor trafficking;
    (9) Unaccompanied children who are certain parolees; and
    (10) Unaccompanied children enrolled in school who are chronically 
absent or retained at the end of their school year.
    (d) Assessments. The PRS provider shall assess the released 
unaccompanied child and sponsor for PRS needs and shall document the 
assessment. The assessment shall be developmentally appropriate, 
trauma-informed, and focused on the needs of the unaccompanied child 
and sponsor.
    (e) Ongoing check-ins and in-home visits. (1) In consultation with 
the released unaccompanied child and sponsor, the PRS provider shall 
make a determination regarding the appropriate methods, timeframes, and 
schedule for ongoing contact with the released unaccompanied child and 
sponsor based on the level of need and support needed.
    (2) PRS providers shall make monthly contact, at a minimum, with 
their

[[Page 68989]]

assigned released unaccompanied children and their sponsors, either in 
person or virtually for six (6) months after release.
    (3) PRS providers shall document all ongoing check-ins and in-home 
visits, as well as document progress and outcomes of their home visits.
    (f) Referrals to community resources. (1) PRS providers shall work 
with released unaccompanied children and their sponsors to access 
community resources.
    (2) PRS providers shall document any community resource referrals 
and their outcomes.
    (g) Timeframes for PRS. (1) For a released unaccompanied child who 
is required under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to receive PRS, 
the PRS provider shall to the greatest extent practicable start 
services within two (2) days of the unaccompanied child's released from 
ORR care. If a PRS provider is unable to start PRS within two (2) days 
of the unaccompanied child's release, PRS shall start no later than 30 
days after release.
    (2) For a released unaccompanied child who is referred by ORR to 
receive PRS but is not required to receive PRS following a home study, 
the PRS provider shall to the greatest extent practicable start 
services within two (2) days of accepting a referral.
    (h) Termination of PRS. (1) For a released unaccompanied child who 
is required to receive PRS under the TVPRA at 8 U.S.C. 1232(c)(3)(B), 
PRS for the unaccompanied child shall continue until the unaccompanied 
child turns 18 or the unaccompanied child is granted voluntary 
departure, immigration status, or the child receives an order of 
removal, whichever occurs first.
    (2) For a released unaccompanied child who is not required to 
receive PRS under the TVPRA at 8 U.S.C. 1232(c)(3)(B), but who receives 
PRS as authorized under the TVPRA, PRS for the unaccompanied child 
shall presumptively continue for not less than six months or until the 
unaccompanied child turns 18, whichever occurs first; or until the PRS 
provider assesses the unaccompanied child and determines PRS are no 
longer needed, but in that case for not less than six months.
    (i) Records and reporting requirements for PRS providers--(1) 
General. (i) PRS providers shall maintain comprehensive, accurate, and 
current case files on unaccompanied children that are kept confidential 
and secure at all times and shall be accessible to ORR upon request. 
PRS providers shall keep all case file information together in the PRS 
provider's physical and electronic files.
    (ii) PRS providers shall upload all PRS documentation on services 
provided to unaccompanied children and sponsors to ORR's case 
management system within seven (7) days of completion of the services.
    (2) Records management and retention. (i) PRS providers shall have 
written policies and procedures for organizing and maintaining the 
content of active and closed case files, which incorporate ORR policies 
and procedures. The PRS provider's policies and procedures shall also 
address preventing the physical damage or destruction of records.
    (ii) Before providing PRS, PRS providers shall have established 
administrative and physical controls to prevent unauthorized access to 
both electronic and physical records.
    (iii) PRS providers may not release records to any third party 
without prior approval from ORR.
    (iv) If a PRS provider is no longer providing PRS for ORR, the PRS 
provider shall provide all active and closed case file records to ORR 
according to instructions issued by ORR.
    (3) Privacy. (i) PRS providers shall have written policy and 
procedure in place that protects the sensitive information of released 
unaccompanied children from access by unauthorized users.
    (ii) PRS providers shall explain to released unaccompanied children 
and their sponsors how, when, and under what circumstances sensitive 
information may be shared while the unaccompanied children receive PRS.
    (iii) PRS providers shall have appropriate controls on information-
sharing within the PRS provider network, including, but not limited to, 
subcontractors.
    (4) Notification of Concern. (i) If the PRS provider is concerned 
about the about the unaccompanied child's safety and well-being, the 
PRS provider shall document a Notification of Concern (NOC) and report 
the concern(s) to ORR, and as applicable, the appropriate investigative 
agencies (including law enforcement and child protective services).
    (ii) PRS providers shall document and submit NOCs to ORR within 24 
hours of first suspicion or knowledge of the event(s).
    (5) Case closures. (i) PRS providers shall formally close a case 
when ORR terminates PRS in accordance with paragraph (h) of this 
section.
    (ii) ORR shall provide appropriate instructions, including any 
relevant forms, that PRS providers must follow when closing a case.

Subpart D--Minimum Standards and Required Services


Sec.  410.1300  Purpose of this subpart.

    This subpart covers standards and required services that care 
provider facilities must meet and provide in keeping with the 
principles of treating unaccompanied children in custody with dignity, 
respect, and special concern for their particular vulnerability.


Sec.  410.1301  Applicability of this subpart.

    This subpart applies to all standard programs and to non-standard 
programs where specified.


Sec.  410.1302  Minimum standards applicable to standard programs.

    Standard programs shall:
    (a) Be licensed by an appropriate State or Federal agency, or meet 
other requirements specified by ORR if licensure is unavailable to 
programs providing services to unaccompanied children in their State, 
to provide residential, group, or foster care services for dependent 
children.
    (b) Comply with all applicable State child welfare laws and 
regulations and all State and local building, fire, health, and safety 
codes, or other requirements specified by ORR if licensure is 
unavailable in their State to care provider facilities providing 
services to unaccompanied children. If there is a potential conflict 
between ORR's regulations and State law, ORR will review the 
circumstances to determine how to ensure that it is able to meet its 
statutory responsibilities. It is important to note, however, that if a 
State law or license, registration, certification, or other requirement 
conflicts with an ORR employee's duties within the scope of their ORR 
employment, the ORR employee is required to abide by their Federal 
duties.
    (c) Provide or arrange for the following services for each 
unaccompanied child in care:
    (1) Proper physical care and maintenance, including suitable living 
accommodations, food that is of adequate variety, quality, and in 
sufficient quantity to supply the nutrients needed for proper growth 
and development, which can be accomplished by following the U.S. 
Department of Agriculture (USDA) Dietary Guidelines for Americans, and 
appropriate for the child and activity level, drinking water that is 
always available to each unaccompanied child, appropriate clothing, 
personal grooming and hygiene items, access to toilets and

[[Page 68990]]

sinks, adequate temperature control and ventilation, and adequate 
supervision to protect unaccompanied children from others;
    (2) An individualized needs assessment that shall include:
    (i) Various initial intake forms;
    (ii) Essential data relating to the identification and history of 
the unaccompanied child and family;
    (iii) Identification of the unaccompanied child's special needs 
including any specific problems that appear to require immediate 
intervention;
    (iv) An educational assessment and plan;
    (v) whether an indigenous language speaker;
    (vi) An assessment of family relationships and interaction with 
adults, peers and authority figures;
    (vii) A statement of religious preference and practice;
    (viii) An assessment of the unaccompanied child's personal goals, 
strengths and weaknesses; and
    (iv) Identifying information regarding immediate family members, 
other relatives, godparents, or friends who may be residing in the 
United States and may be able to assist in family reunification;
    (3) Educational services appropriate to the unaccompanied child's 
level of development, communication skills, and disability, if 
applicable, in a structured classroom setting, Monday through Friday, 
which concentrate primarily on the development of basic academic 
competencies and secondarily on English Language Training (ELT), 
including:
    (i) Instruction and educational and other reading materials in such 
languages as needed;
    (ii) Instruction in basic academic areas that include science, 
social studies, math, reading, writing, and physical education; and
    (iii) The provision to an unaccompanied child of appropriate 
reading materials in languages other than English for use during the 
unaccompanied child's leisure time;
    (4) Activities according to a recreation and leisure time plan that 
include daily outdoor activity, weather permitting, at least one hour 
per day of large muscle activity and one hour per day of structured 
leisure time activities, which do not include time spent watching 
television. Activities must be increased to at least three hours on 
days when school is not in session;
    (5) At least one individual counseling session per week conducted 
by certified counseling staff with the specific objectives of reviewing 
the unaccompanied child's progress, establishing new short and long-
term objectives, and addressing both the developmental and crisis-
related needs of each unaccompanied child;
    (6) Group counseling sessions at least twice a week;
    (7) Acculturation and adaptation services that include information 
regarding the development of social and inter-personal skills that 
contribute to those abilities necessary to live independently and 
responsibly;
    (8) An admissions process, including:
    (i) Meeting unaccompanied children's immediate needs to food, 
hydration, and personal hygiene including the provision of clean 
clothing and bedding;
    (ii) An initial intakes assessment covering biographic, family, 
migration, health history, substance use, and mental health history of 
the unaccompanied child. If the unaccompanied child's responses to 
questions during any examination or assessment indicate the possibility 
that the unaccompanied child may have been a victim of human 
trafficking or labor exploitation, the care provider facility must 
notify the ACF Office of Trafficking in Persons within twenty-four (24) 
hours;
    (iii) A comprehensive orientation regarding program purpose, 
services, rules (provided in writing and orally), expectations, their 
rights in ORR care, and the availability of legal assistance, 
information about U.S. immigration and employment/labor laws, and 
services from the Unaccompanied Children Office of the Ombuds (UC 
Office of the Ombuds) in simple, non-technical terms and in a language 
and manner that the child understands, if practicable; and
    (iv) Assistance with contacting family members, following the ORR 
Guide and the care provider facility's internal safety procedures;
    (9) Whenever possible, access to religious services of the 
unaccompanied child 's choice, celebrating culture-specific events and 
holidays, being culturally aware in daily activities as well as food 
menus, choice of clothing, and hygiene routines, and covering various 
cultures in children's educational services;
    (10) Visitation and contact with family members (regardless of 
their immigration status) which is structured to encourage such 
visitation. Standard programs should provide unaccompanied children 
with at least 15 minutes of phone or video contact three times a week 
with parents and legal guardians, family members, and caregivers 
located in the United States and abroad, in a private space that 
ensures confidentiality and at no cost to the unaccompanied child, 
parent, legal guardian, family member, or caregiver. The staff shall 
respect the unaccompanied child's privacy while reasonably preventing 
the unauthorized release of the unaccompanied child;
    (11) Assistance with family unification services designed to 
identify and verify relatives in the United States as well as in 
foreign countries and assistance in obtaining legal guardianship when 
necessary for release of the unaccompanied child;
    (12) Legal services information regarding the availability of free 
legal assistance, and that they may be represented by counsel at no 
expense to the government, the right to a removal hearing before an 
immigration judge; the ability to apply for asylum with U.S. 
Citizenship and Immigration Services (USCIS) in the first instance, and 
the ability to request voluntary departure in lieu of removal; and
    (13) Information about U.S. child labor laws and education around 
permissible work opportunities in a manner that is sensitive to the 
age, culture, and native language of each unaccompanied child.
    (d) Deliver services in a manner that is sensitive to the age, 
culture, native language, and the complex needs of each unaccompanied 
child.
    (e) Develop a comprehensive and realistic individual service plan 
for the care of each unaccompanied child in accordance with the 
unaccompanied child's needs as determined by the individualized needs 
assessment. Individual plans must be implemented and closely 
coordinated through an operative case management system. Service plans 
should identify individualized, person-centered goals with measurable 
outcomes and with steps or tasks to achieve the goals, be developed 
with input from the unaccompanied child, and be reviewed and updated at 
regular intervals. Unaccompanied children ages 14 and older should be 
given a copy of the plan, and unaccompanied children under age 14 
should be given a copy of the plan when appropriate for that particular 
child's development. Individual plans shall be in that child's native 
language or other mode of auxiliary aid or services and/or use clear, 
easily understood language, using concise and concrete sentences and/or 
visual aids and checking for understanding where appropriate.


Sec.  410.1303  ORR Reporting, monitoring, quality control, and 
recordkeeping standards.

    (a) Monitoring activities. ORR monitors all care provider 
facilities for

[[Page 68991]]

compliance with the terms of the regulations in this part and 45 CFR 
part 411. ORR monitoring activities include:
    (1) Desk monitoring that is ongoing oversight from ORR 
headquarters;
    (2) Routine site visits that are day-long visits to facilities to 
review compliance for policies, procedures, and practices and 
guidelines;
    (3) Site visits in response to ORR or other reports that are for a 
specific purpose or investigation; and
    (4) Monitoring visits that are part of comprehensive reviews of all 
care provider facilities.
    (b) Corrective actions. If ORR finds a care provider facility to be 
out of compliance with the regulations in this part and 45 CFR part 411 
or sub-regulatory policies such as its guidance and the terms of its 
contracts or cooperative agreements, ORR will communicate the concerns 
in writing to the care provider facility director or appropriate person 
through a written monitoring or site visit report, with a list of 
corrective actions and child welfare best practice recommendations, as 
appropriate. ORR will request a response to the corrective action 
findings from the care provider facility and specify a time frame for 
resolution and the disciplinary consequences for not responding within 
the required timeframes.
    (c) Monitoring of secure facilities. At secure facilities, in 
addition to other monitoring activities, ORR reviews individual 
unaccompanied child case files to make sure children placed in secure 
facilities are assessed at least every 30 days for the possibility of a 
transfer to a less restrictive setting.
    (d) Monitoring of long-term home care and transitional home care 
facilities. ORR long-term home care and transitional home care 
facilities are subject to the same types of monitoring as other care 
provider facilities, but the activities are tailored to the foster care 
arrangement. ORR long-term home care and transitional home care 
facilities that provide services through a sub-contract or sub-grant 
are responsible for conducting annual monitoring or site visits of the 
sub-recipient, as well as weekly desk monitoring. Upon request, care 
provider facilities must provide findings of such reviews to the 
designated ORR point of contact.
    (e) Care provider facility quality assurance. ORR requires care 
provider facilities to develop quality assurance assessment procedures 
that accurately measure and evaluate service delivery in compliance 
with the requirements of the regulations in this part, as well as those 
delineated in 45 CFR part 411.
    (f) Reporting. Care provider facilities shall report to ORR any 
emergency incident, significant incident, or program-level event and in 
accordance with any applicable Federal, State, and local reporting 
laws. Such reports are subject to the following rules:
    (1) Care provider facilities must document incidents with 
sufficient detail to ensure that any relevant entity can facilitate any 
required follow-up; document incidents in a way that is trauma-informed 
and grounded in child welfare best practices; and update the report 
with any findings or documentation that are made after the fact.
    (2) Care provider facilities must never: fabricate, exaggerate, or 
minimize incidents; use disparaging or judgmental language about 
unaccompanied children in incident reports; use incident reporting or 
the threat of incident reporting as a way to manage the behavior of 
unaccompanied children or for any other illegitimate reason.
    (3) Care provider facilities are prohibited from using reports of 
significant incidents as a method of punishment or threat towards any 
child in ORR care for any reason.
    (4) The existence of a report of a significant incident may not be 
used by ORR as a basis for an unaccompanied child's step up to a 
restrictive placement or as the sole basis for a refusal to step a 
child down to a less restrictive placement. Care provider facilities 
are likewise prohibited from using the existence of a report of a 
significant incident as a basis for refusing an unaccompanied child's 
placement in their facilities. Reports of significant incidents may be 
used as examples or citations of concerning behavior; however, the 
existence of a report itself is not sufficient for a step up, a refusal 
to step down, or a care provider facility to refuse a placement.
    (g) Develop, maintain, and safeguard each individual unaccompanied 
child's case file. This paragraph (g) applies to all care provider 
facilities responsible for the care and custody of unaccompanied 
children, whether the program is a standard program or not.
    (1) Care provider facilities and PRS providers must preserve the 
confidentiality of unaccompanied child case file records and 
information, and protect the records and information from unauthorized 
use or disclosure;
    (2) The records included in unaccompanied child case files are the 
property of ORR, whether in the possession of ORR or a care provider 
facility or PRS provider, and care provider facilities and PRS 
providers may not release those records without prior approval from ORR 
except for limited program administration purposes;
    (3) Care provider facilities and PRS providers must provide 
unaccompanied child case file records to ORR immediately upon ORR's 
request; and
    (4) Employees, former employees, or contractors of a care provider 
facility or PRS provider must not disclose case file records or 
information about unaccompanied children, their sponsors, family, or 
household members to anyone for any purpose, except for purposes of 
program administration, without first providing advanced notice to ORR 
to allow ORR to ensure that disclosure of unaccompanied children's 
information is compatible with program goals and to ensure the safety 
and privacy of unaccompanied children.
    (h) Records. Maintain adequate records in the unaccompanied child 
case file and make regular reports as required by ORR that permit ORR 
to monitor and enforce the regulations in this part and other 
requirements and standards as ORR may determine are in the interests of 
the unaccompanied child.


Sec.  410.1304  Behavior management and prohibition on seclusion and 
restraint.

    (a) Care provider facilities must develop behavior management 
strategies that include evidence-based, trauma-informed, and 
linguistically responsive program rules and behavior management 
policies that take into consideration the range of ages and maturity in 
the program and that are culturally sensitive to the needs of each 
unaccompanied child. The behavior management strategies must not use 
any practices that involve negative reinforcement or involve 
consequences or measures that are not constructive and are not 
logically related to the behavior being regulated. Care provider 
facilities must not:
    (1) Use or threaten use of corporal punishment, significant 
incident reports as punishment, unfavorable consequences related to 
family/sponsor unification or legal matters (e.g., immigration, 
asylum); use forced chores or work that serves no purpose except to 
demean or humiliate the child, forced physical movement, such as push-
ups and running, or uncomfortable physical positions as a form of 
punishment or humiliation; search an unaccompanied child's personal 
belongings solely for the purpose of behavior management; apply medical 
interventions that are not prescribed by a medical provider acting 
within the usual course of professional practice for a medical 
diagnosis or that

[[Page 68992]]

increase risk of harm to the unaccompanied child or others; and
    (2) Use any sanctions employed in relation to an individual 
unaccompanied child that:
    (i) Adversely affect an unaccompanied child's health, or physical, 
emotional, or psychological well-being; or
    (ii) Deny unaccompanied children meals, hydration, sufficient 
sleep, routine personal grooming activities, exercise (including daily 
outdoor activity), medical care, correspondence or communication 
privileges, or legal assistance.
    (3) Use prone physical restraints, chemical restraints, or peer 
restraints for any reason in any care provider facility setting.
    (b) Involving law enforcement should be a last resort. A call by a 
facility to law enforcement may trigger an evaluation of staff involved 
regarding their qualifications and training in trauma-informed, de-
escalation techniques.
    (c) Standard programs and RTCs are prohibited from using seclusion 
as a behavioral intervention. Standard programs and RTCs are also 
prohibited from using restraints, except as described at paragraphs (d) 
and (f) of this section.
    (d) Standard programs and RTCs may use personal restraint only in 
emergency safety situations.
    (e) Secure facilities, except for RTCs:
    (1) May use personal restraints, mechanical restraints and/or 
seclusion in emergency safety situations.
    (2) May restrain an unaccompanied child for their own immediate 
safety or that of others during transport to an immigration court or an 
asylum interview.
    (3) May restrain an unaccompanied child while at an immigration 
court or asylum interview if the child exhibits imminent runaway 
behavior, makes violent threats, demonstrates violent behavior, or if 
the secure facility has made an individualized determination that the 
child poses a serious risk of violence or running away if the child is 
unrestrained in court or the interview.
    (4) Must provide all mandated services under this subpart to the 
unaccompanied child to the greatest extent practicable under the 
circumstances while ensuring the safety of the unaccompanied child, 
other unaccompanied children at the secure facility, and others.
    (f) Care provider facilities may only use soft restraints (e.g., 
zip ties and leg or ankle weights) during transport to and from secure 
facilities, and only when the care provider believes a child poses a 
serious risk of physical harm to self or others or a serious risk of 
running away from ORR custody.


Sec.  410.1305  Staff, training, and case manager requirements.

    (a) Standard programs, restrictive placements, and post-release 
service providers shall provide training to all staff, contractors, and 
volunteers, to ensure that they understand their obligations under ORR 
regulations in this part and policies and are responsive to the 
challenges faced by staff and unaccompanied children at the facility. 
All trainings should be tailored to the unique needs, attributes, and 
gender of the unaccompanied children in care at the individual care 
provider facility. Standard programs and restrictive placements must 
document the completion of all trainings in personnel files. All staff, 
contractors, and volunteers must have completed all required background 
checks and vetting for their respective roles prior to service 
provision and care provider facilities must provide documentation to 
ORR of compliance;
    (b) Standard programs and restrictive placements shall meet the 
staff to child ratios established by their respective States or other 
licensing entities, or ratios established by ORR if State licensure is 
not available; and
    (c) Standard programs and restrictive placements must have case 
managers based on site at the facility.


Sec.  410.1306  Language access services.

    (a) General. (1) To the greatest extent practicable, standard 
programs and restrictive placements shall consistently offer 
unaccompanied children the option of interpretation and translation 
services in their native or preferred language, depending on the 
unaccompanied children's preference, and in a way they effectively 
understand. If after taking reasonable efforts, standard programs and 
restrictive placements are unable to obtain a qualified interpreter or 
translator for the unaccompanied children's native or preferred 
language, depending on the children's preference, standard programs and 
restrictive placements shall consult with qualified ORR staff for 
guidance on how to ensure meaningful access to their programs and 
activities for the children, including those with limited English 
proficiency.
    (2) Standard programs and restrictive placements shall prioritize 
the ability to provide in-person, qualified interpreters for 
unaccompanied children who need them, particularly for rare or 
indigenous languages. After the standard programs and restrictive 
placements take reasonable efforts to obtain in-person, qualified 
interpreters, then they may use professional telephonic interpreter 
services.
    (3) Standard programs and restrictive placements shall translate 
all documents and materials shared with the unaccompanied children, 
including those posted in the facilities, in the unaccompanied 
children's native or preferred language, depending on the children's 
preference, and in a timely manner.
    (b) Placement considerations. ORR shall make placement decisions 
for the unaccompanied children that are informed in part by language 
access considerations and other factors as listed in Sec.  410.1103(b). 
To the extent appropriate and practicable, giving due consideration to 
an unaccompanied child's individualized needs, ORR shall place 
unaccompanied children with similar language needs within the same 
standard program or restrictive placement.
    (c) Intake, orientation, and confidentiality.(1) Prior to 
completing the UC Assessment and starting counseling services, standard 
programs and restrictive placements shall provide a written notice of 
the limits of confidentiality they share while in ORR care and custody, 
and orally explain the contents of the written notice to the 
unaccompanied children, in their native or preferred language, 
depending on the children's preference, and in a way they can 
effectively understand.
    (2) Standard programs and restrictive placements shall conduct 
assessments and initial medical exams with unaccompanied children in 
their native or preferred language, depending on the children's 
preference, and in a way they effectively understand.
    (3) Standard programs and heightened supervision facilities shall 
provide a standardized and comprehensive orientation to all 
unaccompanied children in their native or preferred language, depending 
on the children's preference, and in a way they effectively understand 
regardless of spoken language, reading comprehension level, or 
disability.
    (4) For all step-ups to and step-downs from restrictive placements, 
standard programs and restrictive placements shall explain to the 
unaccompanied children why they were placed in a restrictive setting 
and/or if their placement was changed and do so in the unaccompanied 
children's native or preferred language, depending on the children's 
preference, and in a way they effectively understand. All documents 
shall be translated into the unaccompanied children's and/or

[[Page 68993]]

sponsor's native or preferred language, depending on the children's 
preference.
    (5) If unaccompanied children are not literate, or if the documents 
provided during intakes and/or orientation are not translated into a 
language that they can read and effectively understand, the standard 
program or restrictive placement shall have a qualified interpreter 
orally translate or sign language translate and explain all the 
documents in the unaccompanied children's native or preferred language, 
depending on the children's preference, and confirm with the 
unaccompanied children that they fully comprehend all material.
    (6) Standard programs and restrictive placements shall provide 
information regarding grievance policies and procedures in the 
unaccompanied children's native or preferred language, depending on the 
children's preference, and in a way they effectively understand.
    (7) Standard programs and restrictive placements shall educate 
unaccompanied children on ORR's sexual abuse and sexual harassment 
policies in the unaccompanied children's native or preferred language, 
depending on the children's preference, and in a way they effectively 
understand.
    (8) Standard programs and restrictive placements shall notify the 
unaccompanied children that the standard programs and restrictive 
placements shall accommodate the unaccompanied children's language 
needs while they remain in ORR care.
    (9) For paragraphs (c)(1) through (8) of this section, standard 
programs and restrictive placements shall document that the 
unaccompanied children acknowledge that they effectively understand 
what was provided to them in the child's case files.
    (d) Education. (1) Standard programs and heightened supervision 
facilities shall provide educational instruction and relevant materials 
in a format and language accessible to all unaccompanied children, 
regardless of the child's native or preferred language, including, but 
not limited to, providing services from an in-person, qualified 
interpreter, written translations of materials, and professional 
telephonic interpretation when in-person interpretation options have 
been exhausted.
    (2) Standard programs and heightened supervision facilities shall 
provide unaccompanied children with appropriate recreational reading 
materials in languages in formats and languages accessible to all 
unaccompanied children for use during their leisure time.
    (3) Standard programs and heightened supervision facilities shall 
translate all ORR-required documents provided to unaccompanied children 
that are part of educational lessons in formats and languages 
accessible to all unaccompanied children. If written translations are 
not available, standard programs and heightened supervision facilities 
shall orally translate or sign language translate all documents, 
prioritizing services from an in-person, qualified interpreter and 
translation before using professional telephonic interpretation and 
translation services.
    (e) Religious and cultural accommodations. If an unaccompanied 
child requests religious and/or cultural information or items, the 
standard program or heightened supervision facility shall provide the 
requested items in the unaccompanied child's native or preferred 
language, depending on the child's preference, and as long as the 
request is reasonable.
    (f) Parent and sponsor communications. Standard programs and 
restrictive placements shall utilize any necessary professional 
interpretation or translation services needed to ensure meaningful 
access by an unaccompanied child's parent(s), guardian(s), and/or 
potential sponsor(s). Standard programs and restrictive placements 
shall translate all documents and materials shared with the parent(s), 
guardian, and/or potential sponsors in their native or preferred 
language, depending on their preference.
    (g) Healthcare services. While providing or arranging healthcare 
services for unaccompanied children, standard programs and restrictive 
placements shall ensure that unaccompanied children are able to 
communicate with physicians, clinicians, and healthcare staff in their 
native or preferred language, depending on the unaccompanied children's 
preference, and in a way the unaccompanied children effectively 
understand, prioritizing services from an in-person, qualified 
interpreter before using professional telephonic interpretation 
services.
    (h) Legal services. Standard programs and restrictive placements 
shall make qualified interpretation and/or translation services 
available to unaccompanied children, child advocates, and legal service 
providers upon request while unaccompanied children are being provided 
with those services. Such services shall be available to unaccompanied 
children in enclosed, confidential areas.
    (i) Interpreter's and translator's responsibility with respect to 
confidentiality of information. Interpreters and translators shall keep 
all information about the unaccompanied children's cases and/or 
services, confidential from non-ORR grantees, contractors, and Federal 
staff. Interpreters and translators shall not disclose case file 
information to other interested parties in the unaccompanied child's 
cases.


Sec.  410.1307  Healthcare services.

    (a) ORR shall ensure that all unaccompanied children in ORR custody 
will be provided with routine medical and dental care; access to 
medical services requiring heightened ORR involvement, consistent with 
paragraph (c) of this section; family planning services; and emergency 
healthcare services.
    (b) Standard programs and restrictive placements shall be 
responsible for:
    (1) Establishment of a network of licensed healthcare providers 
established by the care provider facility, including specialists, 
emergency care services, mental health practitioners, and dental 
providers that will accept ORR's fee-for-service billing system;
    (2) A complete medical examination (including screening for 
infectious disease) within 2 business days of admission, excluding 
weekends and holidays, unless the unaccompanied child was recently 
examined at another facility and if unaccompanied children are still in 
ORR custody 60 to 90 days after admission, an initial dental exam, or 
sooner if directed by State licensing requirements;
    (3) Appropriate immunizations as recommended by the Advisory 
Committee on Immunization Practices' Child and Adolescent Immunization 
Schedule and approved by HHS' Centers for Disease Control and 
Prevention;
    (4) An annual physical examination, including hearing and vision 
screening, and follow-up care for acute and chronic conditions;
    (5) Administration of prescribed medication and special diets;
    (6) Appropriate mental health interventions when necessary;
    (7) Having policies and procedures for identifying, reporting, and 
controlling communicable diseases that are consistent with applicable 
State, local, and Federal laws and regulations.
    (8) Having policies and procedures that enable unaccompanied 
children, including those with language and literacy barriers, to 
convey written and oral requests for emergency and non-emergency 
healthcare services;

[[Page 68994]]

    (9) Having policies and procedures based on State or local laws and 
regulations to ensure the safe, discreet, and confidential provision of 
prescription and nonprescription medications to unaccompanied children, 
secure storage of medications, and controlled administration and 
disposal of all drugs. A licensed healthcare provider must write or 
orally order all nonprescription medications, and oral orders must be 
documented in the unaccompanied child's file; and
    (10) Medical isolation may be used according to the following 
requirements:
    (i) An unaccompanied child may be placed in medical isolation and 
excluded from contact with the general population in order to prevent 
the spread of an infectious disease due to a potential exposure, 
protect other unaccompanied children, and care provider facility staff 
for a medical purpose or as required under State, local, or other 
licensing rules, as long as the medically required isolation is limited 
only to the extent necessary to ensure the health and welfare of the 
unaccompanied child, other unaccompanied children at a care provider 
facility and care provider facility staff, or the public at large.
    (ii) Standard programs and restrictive placements must provide all 
mandated services under this subpart to the greatest extent practicable 
under the circumstances to unaccompanied children in medical isolation. 
Medically isolated unaccompanied children still must be supervised 
under State, local, or other licensing ratios, and, if multiple 
unaccompanied children are in medical isolation, they should be placed 
in units or housing together (as practicable, given the nature or type 
of medical issue giving rise to the requirement for isolation in the 
first instance).
    (c) Access to medical care--(1) Initial placement and transfer 
considerations--(i) Initial placement. Consistent with Sec.  410.1103, 
when placing an unaccompanied child, ORR considers the child's 
individualized needs and any specialized services or treatment required 
or reasonably requested. Such services or treatment include but are not 
limited to access to medical specialists, family planning services, and 
medical services requiring heightened ORR involvement. When such care 
is determined to be medically necessary during the referral, intake 
process, Initial Medical Exam, or at any point while the unaccompanied 
child is in ORR custody, or the unaccompanied child reasonably requests 
such medical care while in ORR custody, ORR shall, to the greatest 
extent possible, identify available and appropriate bed space and place 
the unaccompanied child at a care provider facility that is able to 
provide or arrange such care, is in an appropriate location to support 
the unaccompanied child's healthcare needs, and affords access to an 
appropriate medical provider who is able to perform any reasonably 
requested or medically necessary services.
    (ii) Transfers. If an appropriate initial placement is not 
immediately available or if the unaccompanied child's need or request 
for medical care is identified after the Initial Medical Exam, care 
providers shall immediately notify ORR and ORR shall, to the greatest 
extent possible, transfer the unaccompanied child needing medical care 
to an ORR program that meets the qualifications in paragraph (c)(1)(i) 
of this section.
    (2) Transportation. ORR shall ensure unaccompanied children have 
access to medical care, including transportation across State lines and 
associated ancillary services if necessary to access appropriate 
medical services, including access to medical specialists, family 
planning services, and medical services requiring heightened ORR 
involvement. The requirement in this paragraph (c)(2) applies 
regardless of whether Federal appropriations law prevents ORR from 
paying for the medical care itself. If there is a potential conflict 
between ORR's regulations in this part and State law, ORR will review 
the circumstances to determine how to ensure that it is able to meet 
its statutory responsibilities. It is important to note, however, that 
if a State law or license, registration, certification, or other 
requirement conflicts with an ORR employee's duties within the scope of 
their ORR employment, the ORR employee is required to abide by their 
Federal duties.
    (d) Notifications. Care provider facilities shall notify ORR within 
24 hours of an unaccompanied child's need or request for medical 
services requiring heightened ORR involvement or the discovery of a 
pregnancy.


Sec.  410.1308  Child advocates.

    (a) Child advocates. This section sets forth the provisions 
relating to the appointment and responsibilities of independent child 
advocates for child trafficking victims and other especially vulnerable 
unaccompanied children.
    (b) Role of the child advocate. Child advocates are third parties 
who make independent recommendations regarding the best interests of an 
unaccompanied child. Their recommendations are based on information 
obtained from the unaccompanied child and other sources (including, but 
not limited to, the unaccompanied child's parents, the family, 
potential sponsors/sponsors, government agencies, legal service 
providers, protection and advocacy system representatives in 
appropriate cases, representatives of the unaccompanied child's care 
provider, health professionals, and others). Child advocates formally 
submit their recommendations to ORR and/or the immigration court, where 
appropriate, in the form of best interest determinations (BIDs).
    (c) Responsibilities of the child advocate. The child advocate's 
responsibilities include, but are not limited to:
    (1) Visiting with their unaccompanied child clients;
    (2) Explaining the consequences and potential outcomes of decisions 
that may affect their unaccompanied child;
    (3) Advocating for their unaccompanied child client's best interest 
with respect to care, placement, services, release, and within 
proceedings to which the child is a party;
    (4) Providing best interest determinations, where appropriate and 
within a reasonable time to ORR, an immigration court, and/or other 
stakeholders involved in a proceeding or matter in which the 
unaccompanied child is a party or has an interest; and,
    (5) Regularly communicating case updates with the care provider 
facility, ORR, and/or other stakeholders in the planning and 
performance of advocacy efforts, including updates related to services 
provided to an unaccompanied child after their release from ORR care.
    (d) Appointment of child advocates. ORR may appoint child advocates 
for unaccompanied children who are victims of trafficking or especially 
vulnerable.
    (1) An interested party may refer an unaccompanied child to ORR for 
a child advocate after notifying ORR that a particular unaccompanied 
child who is currently in or was previously in, ORR's care and custody, 
is a victim of trafficking or is especially vulnerable. As used in this 
paragraph (d)(1), interested parties means individuals or organizations 
involved in the care, service, or proceeding involving an unaccompanied 
child, including but not limited to, ORR Federal or contracted staff; 
an immigration judge; DHS Staff; a legal service provider, attorney of 
record, or EOIR accredited representative; an ORR care provider; 
healthcare professional; or a child advocate organization.
    (2) ORR shall make an appointment decision within five (5) business 
days of

[[Page 68995]]

a referral for a child advocate, except under exceptional circumstances 
which may delay a decision regarding an appointment. ORR will appoint 
child advocates for unaccompanied children who are currently in or were 
previously in ORR care and custody. ORR does not appoint child 
advocates for unaccompanied children who are not in or were not 
previously in ORR care and custody.
    (3) Child advocate appointments terminate upon the closure of the 
unaccompanied child's case by the child advocate; when the 
unaccompanied child turns 18; or when the unaccompanied child obtains 
lawful immigration status.
    (e) Child advocate's access to information. After a child advocate 
is appointed for an unaccompanied child, the child advocate shall be 
provided access to materials to effectively advocate for the best 
interest of the unaccompanied child. Child advocates shall be provided 
access to their clients during normal business hours at an ORR care 
provider facility and shall be provided access to all their client's 
case file information and may request copies of the case file directly 
from the unaccompanied child's care provider without going through 
ORR's standard case file request process.
    (f) Child advocate's responsibility with respect to confidentiality 
of information. Child advocates must keep the information in the case 
file, and information about the unaccompanied child's case, 
confidential. Child advocates shall not disclose case file information 
except to ORR grantees, contractors, and Federal staff. Child advocates 
shall not disclose case file information to other parties, including 
parties with an interest in a child's case. With regard to an 
unaccompanied child in ORR care, ORR shall allow the child advocate of 
that unaccompanied child to conduct private communications with the 
unaccompanied child, in a private area that allows for confidentiality 
for in-person and virtual or telephone meetings.
    (g) Non-retaliation against child advocates. ORR shall presume that 
child advocates are acting in good faith with respect to their advocacy 
on behalf of unaccompanied children, and shall not retaliate against a 
child advocate for actions taken within the scope of their 
responsibilities. For example, ORR shall not retaliate against child 
advocates because of any disagreement with a best interest 
determination in regard to an unaccompanied child, or because of a 
child advocate's advocacy on behalf of an unaccompanied child.


Sec.  410.1309  Legal services.

    (a) Unaccompanied children's access to immigration legal services--
(1) Purpose. This paragraph (a) describes ORR's responsibilities in 
relation to legal services for unaccompanied children, consistent with 
8 U.S.C. 1232(c)(5).
    (2) Orientation. An unaccompanied child in ORR's legal custody 
shall receive:
    (i) An in-person, telephonic, or video presentation concerning the 
rights and responsibilities of undocumented children in the immigration 
system, presented in the language of the unaccompanied child and in an 
age-appropriate manner.
    (A) Such presentation shall be provided by an independent legal 
service provider that has appropriate qualifications and experience, as 
determined by ORR, to provide such presentation and shall include 
information notifying the unaccompanied child of their legal rights and 
responsibilities, including protections under child labor laws, and of 
services to which they are entitled, including educational services. 
The presentation must be delivered in the language of the unaccompanied 
child and in an age-appropriate manner.
    (B) Such presentation must occur within 10 business days of child's 
admission to ORR, within 10 business days of a child's transfer to a 
new ORR facility (except ORR long-term home care or ORR transitional 
home care), and every 6 months for unrepresented children who remain in 
ORR custody, as practicable. If the unaccompanied child is released 
before 10 business days, a legal service provider shall follow up as 
soon as practicable to complete the presentation, in person or 
remotely.
    (ii) Information regarding the availability of free legal 
assistance and that they may be represented by counsel at no expense to 
the government.
    (iii) Notification regarding the child's ability to petition for 
SIJ classification, to request that a juvenile court determine 
dependency or placement in accordance with Sec.  410.1209, and 
notification of the ability to apply for asylum or other forms of 
relief from removal.
    (iv) Information regarding the unaccompanied child's right to a 
removal hearing before an immigration judge, the ability to apply for 
asylum with USCIS in the first instance, and the ability to request 
voluntary departure in lieu of removal.
    (v) A confidential legal consultation with a qualified attorney (or 
paralegal working under the direction of an attorney, or EOIR 
accredited representative) to determine possible forms of relief from 
removal in relation to the unaccompanied child's immigration case, as 
well as other case disposition options such as, but not limited to, 
voluntary departure. Such consultation shall occur within 10 business 
days of a child's transfer to a new ORR facility (except ORR long-term 
home care or ORR transitional home care) or upon request from ORR. ORR 
shall request an additional legal consultation on behalf of a child, if 
the child has been identified as:
    (A) A potential victim of a severe form of trafficking;
    (B) Having been abused, abandoned, or neglected; or
    (C) Having been the victim of a crime or domestic violence; or
    (D) Persecuted or in fear of persecution due to race, religion, 
nationality, membership in a particular social group, or for a 
political opinion.
    (vi) An unaccompanied child in ORR care shall be able to conduct 
private communications with their attorney of record, EOIR accredited 
representative, or legal service provider in a private enclosed area 
that allows for confidentiality for in-person, virtual, or telephone 
meetings.
    (3) Accessibility of information. In addition to the requirements 
in paragraphs (a)(1) and (2) of this section for orienting and 
informing unaccompanied children of their legal rights and access to 
services while in ORR care, ORR shall also require this information be 
posted for unaccompanied children in an age-appropriate format and 
translated into each child's preferred language, in any ORR contracted 
or grant-funded facility where unaccompanied children are in ORR care.
    (4) Direct immigration legal representation services for 
unaccompanied children currently or previously under ORR care. To the 
extent ORR determines that appropriations are available, and insofar as 
it is not practicable for ORR to secure pro bono counsel, ORR shall 
fund legal service providers to provide direct immigration legal 
representation for certain unaccompanied children, subject to ORR's 
discretion and available appropriations. Examples of direct immigration 
legal representation include, but are not limited to:
    (i) For unrepresented unaccompanied children who become enrolled in 
ORR Unaccompanied Refugee Minor (URM) programs, provided they have not 
yet obtained immigration relief or reached 18 years of age at the time 
of retention of an attorney;

[[Page 68996]]

    (ii) For unaccompanied children in ORR care who are in proceedings 
before the Executive Office for Immigration Review (EOIR), including 
unaccompanied children seeking voluntary departure, and for whom other 
available assistance does not satisfy the legal needs of the individual 
child;
    (iii) For unaccompanied children released to a sponsor residing in 
the defined service area of the same legal service provider who 
provided the child legal services in ORR care, to promote continuity of 
legal services; and
    (iv) For other unaccompanied children, to the extent ORR determines 
that appropriations are available.
    (b) Legal services for the protection of unaccompanied children's 
interests in certain matters not involving direct immigration 
representation--(1) Purpose. This paragraph (b) provides for the use of 
additional funding for legal services, to the extent that ORR 
determines it to be available, to help ensure that the interests of 
unaccompanied children are considered in certain matters relating to 
their care and custody, to the greatest extent practicable.
    (2) Funding. To the extent ORR determines that appropriations are 
available, and insofar as it is not practicable for ORR to secure pro 
bono counsel, ORR may fund access to counsel for unaccompanied 
children, including for purposes of legal representation, in the 
following enumerated non-immigration related matters, subject to ORR's 
discretion and in no particular order of priority:
    (i) ORR appellate procedures, including Placement Review Panel 
(PRP), under Sec.  410.1902, and risk determination hearings, under 
Sec.  410.1903;
    (ii) For unaccompanied children upon their placement in ORR long-
term home care or in a residential treatment center outside a licensed 
ORR facility, and for whom other legal assistance does not satisfy the 
legal needs of the individual child;
    (iii) For unaccompanied children with no identified sponsor who are 
unable to be placed in ORR long-term home care or ORR transitional home 
care;
    (iv) For purposes of judicial bypass or similar legal processes as 
necessary to enable an unaccompanied child to access certain lawful 
medical procedures that require the consent of the parent or legal 
guardian under State law, and when the unaccompanied child is unable or 
unwilling to obtain such consent;
    (v) For the purpose of representing an unaccompanied child in state 
juvenile court proceedings, when the unaccompanied child already 
possesses SIJ classification; and
    (vi) For the purpose of helping an unaccompanied child to obtain an 
employment authorization document.
    (c) Standards for legal services for unaccompanied children. (1) 
In-person meetings are preferred during the course of providing legal 
counsel to any unaccompanied child under paragraph (a) or (b) of this 
section, though telephonic or teleconference meetings between the 
unaccompanied child's attorney or EOIR accredited representative and 
the unaccompanied child may substitute as appropriate. Either the 
unaccompanied child's attorney, EOIR accredited representative, or a 
care provider staff member or care provider shall always accompany the 
unaccompanied child to any in-person courtroom hearing or proceeding, 
in connection with any legal representation of an unaccompanied child 
pursuant to this section.
    (2) Information and notice shared with an unaccompanied child's 
attorney or EOIR accredited representative. Upon receipt by ORR of 
proof of representation and authorization for release of records signed 
by the unaccompanied child or other authorized representative, ORR 
shall share, upon request, the unaccompanied child's complete case file 
apart from any legally required redactions to assist in the legal 
representation of the unaccompanied child.
    (d) Grants or contracts for unaccompanied children's immigration 
legal services. (1) This paragraph (d) prescribes requirements 
concerning grants or contracts to legal service providers to ensure 
that all unaccompanied children who are or have been in ORR care have 
access to counsel to represent them in immigration legal proceedings or 
matters and to protect them from mistreatment, exploitation and 
trafficking, to the greatest extent practicable, in accordance with the 
TVPRA [at 8 U.S.C. 1232(c)(5)] and 292 of the Immigration and 
Nationality Act [at 8 U.S.C. 1362].
    (2) ORR may make grants, in its discretion and subject to available 
resources--including formula grants distributed geographically in 
proportion to the population of released unaccompanied children--or 
contracts under this section to qualified agencies or organizations, as 
determined by ORR and in accordance with the eligibility requirements 
outlined in the authorizing statute, for the purpose of providing 
immigration legal representation, assistance and related services to 
unaccompanied children who are in ORR care, or who have been released 
from ORR care and living in a State or region.
    (3) Subject to the availability of funds, grants or contracts shall 
be calculated based on the historic proportion of the unaccompanied 
child population in the State within a lookback period determined by 
the Director, provided annually by the State.
    (e) Non-retaliation against legal service providers. ORR shall 
presume that legal service providers are acting in good faith with 
respect to their advocacy on behalf of unaccompanied children and ORR 
shall not retaliate against a legal service provider for actions taken 
within the scope of the legal service providers' responsibilities. For 
example, ORR shall not engage in retaliatory actions against legal 
service providers or any other representative for reporting harm or 
misconduct on behalf of an unaccompanied child.


Sec.  410.1310  Psychotropic medications.

    (a) Except in the case of a psychiatric emergency, ORR shall ensure 
that, whenever possible, authorized individuals provide informed 
consent prior to the administration of psychotropic medications to 
unaccompanied children.
    (b) ORR must ensure meaningful oversight of the administration of 
psychotropic medication(s) to unaccompanied children.


Sec.  410.1311  Unaccompanied children with disabilities.

    (a) ORR must provide notice to the unaccompanied children in its 
custody of the protections against discrimination under section 504 of 
the Rehabilitation Act at 45 CFR part 85 assured to children with 
disabilities in its custody. ORR must also provide notice of the 
available procedures for seeking reasonable modifications or making a 
complaint about alleged discrimination against children with 
disabilities in ORR's custody.
    (b) ORR shall administer the UC Program in the most integrated 
setting appropriate to the needs of unaccompanied children with 
disabilities in accordance with 45 CFR 85.21(d), unless ORR can 
demonstrate that this would fundamentally alter the nature of its UC 
Program.
    (c) ORR shall provide reasonable modifications needed for an 
unaccompanied child with one or more disabilities to have equal access 
to the UC Program. ORR is not required, however, to take any action 
that it can demonstrate would result in a

[[Page 68997]]

fundamental alteration in the nature of a program or activity.
    (d) Where applicable, ORR shall document in the child's ORR case 
file any services, supports, or program modifications being provided to 
an unaccompanied child with one or more disabilities.
    (e) In addition to the requirements for release of unaccompanied 
children established elsewhere in this part and through any 
subregulatory guidance ORR may issue, ORR shall adhere to the following 
requirements when releasing unaccompanied children with disabilities to 
a sponsor:
    (1) ORR's assessment under Sec.  410.1202 of a potential sponsor's 
capability to provide for the physical and mental well-being of the 
child must necessarily include explicit consideration of the impact of 
the child's disability or disabilities.
    (2) In conducting PRS, ORR and any entities through which ORR 
provides PRS shall make reasonable modifications in their policies, 
practices, and procedures if needed to enable released unaccompanied 
children with disabilities to live in the most integrated setting 
appropriate to their needs, such as with a sponsor. ORR is not 
required, however, to take any action that it can demonstrate would 
result in a fundamental alteration in the nature of a program or 
activity. ORR will affirmatively support and assist otherwise viable 
potential sponsors in accessing and coordinating appropriate post-
release community-based services and supports available in the 
community to support the sponsor's ability to care for a child with one 
or more disabilities, as provided for under Sec.  410.1210.
    (3) ORR shall not delay the release of a child with one or more 
disabilities solely because post-release services are not in place 
before the child's release.

Subpart E--Transportation of an Unaccompanied Child


Sec.  410.1400  Purpose of this subpart.

    This subpart concerns the safe transportation of each unaccompanied 
child while in ORR's care.


Sec.  410.1401  Transportation of an unaccompanied child in ORR's care.

    (a) ORR care provider facilities shall transport an unaccompanied 
child in a manner that is appropriate to the child's age and physical 
and mental needs, including proper use of car seats for young children, 
and consistent with Sec.  410.1304.
    (b) When ORR plans to release an unaccompanied child from its care 
to a sponsor under the provisions at subpart C of this part, ORR 
assists without undue delay in making transportation arrangements. In 
its discretion, ORR may request the care provider facility to transport 
an unaccompanied child. In these circumstances, ORR may, in its 
discretion, reimburse the care provider facility or directly pay for 
the child and/or sponsor's transportation, as appropriate, to 
facilitate timely release.
    (c) The care provider facility shall comply with all relevant State 
and local licensing requirements and state and Federal regulations 
regarding transportation of children, such as meeting or exceeding the 
minimum staff/child ratio required by the care provider facility's 
licensing agency, maintaining and inspecting all vehicles used for 
transportation, etc.
    (d) If there is a potential conflict between ORR's regulations in 
this part and State law, ORR will review the circumstances to determine 
how to ensure that it is able to meet its statutory responsibilities. 
It is important to note, however, that if a State law or license, 
registration, certification, or other requirement conflicts with an ORR 
employee's duties within the scope of their ORR employment, the ORR 
employee is required to abide by their Federal duties.
    (e) The care provider facility shall conduct all necessary 
background checks for drivers transporting unaccompanied children, in 
compliance with Sec.  410.1305(a).
    (f) If a care provider facility is transporting an unaccompanied 
child, it shall assign at least one transport staff of the same gender 
as the child being transported to the greatest extent possible under 
the circumstances.

Subpart F--Data and Reporting Requirements


Sec.  410.1500  Purpose of this subpart.

    ORR maintains statistical and other data on the unaccompanied 
children for whom it is responsible. ORR shall be responsible for 
coordinating with other Departments to obtain some of the statistical 
data and shall obtain additional data from care provider facilities. 
This subpart describes information that care provider facilities shall 
report to ORR such that ORR may compile and maintain statistical 
information and other data on unaccompanied children.


Sec.  410.1501  Data on unaccompanied children.

    Care provider facilities are required to report information 
necessary for ORR to maintain data in accordance with this section. 
Data include:
    (a) Biographical information, such as an unaccompanied child's 
name, gender, date of birth, country of birth, whether of indigenous 
origin, and country of habitual residence;
    (b) The date on which the unaccompanied child came into Federal 
custody by reason of the child's immigration status;
    (c) Information relating to the unaccompanied child's placement, 
removal, or release from each care provider facility in which the 
unaccompanied child has resided, including date and to whom and where 
placed, transferred, removed, or released;
    (d) In any case in which the unaccompanied child is placed in 
detention or released, an explanation relating to the detention or 
release;
    (e) The disposition of any actions in which the unaccompanied child 
is the subject;
    (f) Information gathered from assessments, evaluations, or reports 
of the child; and,
    (g) Data necessary to evaluate and improve the care and services 
for unaccompanied children.

Subpart G--Transfers


Sec.  410.1600  Purpose of this subpart. This subpart provides 
guidelines for the transfer of an unaccompanied child.


Sec.  410.1601  Transfer of an unaccompanied child within the ORR care 
provider facility network.

    (a) General requirements for transfers. The care provider facility 
shall continuously assess unaccompanied children in their care to 
review whether the children's placements are appropriate. An 
unaccompanied child shall be placed in the least restrictive setting 
that is in the best interests of the child, subject to considerations 
regarding danger to self or the community and runaway risk. Care 
providers shall follow ORR guidance, including guidance regarding 
placement considerations, when making transfer recommendations.
    (1) If the care provider facility identifies an alternate placement 
for the unaccompanied child that would best meet the child's needs, the 
care provider facility shall make a transfer recommendation to ORR for 
approval within three (3) business days of identifying the need for a 
transfer.
    (2) The care provider facility shall ensure the unaccompanied child 
is medically cleared for transfer within three (3) business days of ORR 
identifying the need for a transfer, unless otherwise waived by ORR. 
For an unaccompanied child with acute or

[[Page 68998]]

chronic medical conditions, or seeking medical services requiring 
heightened ORR involvement, the appropriate care provider facility 
staff and ORR shall meet to review the transfer recommendation. If a 
child is not medically cleared for transfer within three (3) business 
days, the care provider facility shall notify ORR, and ORR shall review 
and determine if the child is fit for travel. If ORR determines the 
child is not fit for travel, ORR shall notify the care provider 
facility of the denial and specify a timeframe for the care provider 
facility to re-evaluate the child for transfer.
    (3) Within 48 hours prior to the unaccompanied child's physical 
transfer, the referring care provider facility shall notify all 
appropriate interested parties of the transfer, including the child's 
attorney of record or EOIR accredited representative, legal service 
provider, or child advocate, as applicable. However, such advance 
notice is not required in unusual and compelling circumstances, such as 
the following in which cases notices shall be provided within 24 hours 
following transfer:
    (i) Where the safety of the unaccompanied child or others has been 
threatened;
    (ii) Where the unaccompanied child has been determined to be a 
runaway risk consistent with Sec.  410.1108; or
    (iii) Where the interested party has waived such notice.
    (4) The unaccompanied child shall be transferred with the child's 
possessions and legal papers, including, but not limited to:
    (i) Personal belongings;
    (ii) The transfer request and tracking form;
    (iii) 30-day medication supply, if applicable;
    (iv) All health records; and
    (v) Original documents (including birth certificates).
    (5) If the unaccompanied child's possessions exceed the amount 
permitted normally by the carrier in use, the care provider shall ship 
the possessions to a subsequent placement of the unaccompanied child in 
a timely manner.
    (b) Restrictive care provider facility placements and transfers. 
When an unaccompanied child is placed in a restrictive setting (secure, 
heightened supervision, or residential treatment center), the care 
provider facility in which the child is placed and ORR shall review the 
placement at least every 30 days to determine whether a new level of 
care is appropriate for the child. If the care provider facility and 
ORR determine in the review that continued placement in a restrictive 
setting is appropriate, the care provider facility shall document the 
basis for its determination and, upon request, provide documentation of 
the review and rationale for continued placement to the child's 
attorney of record, legal service provider, and/or child advocate.
    (c) Group transfers. At times, circumstances may require a care 
provider facility to transfer more than one (1) unaccompanied child at 
a time (e.g., emergencies, natural disasters, program closures, and bed 
capacity constraints). For group transfers, the care provider facility 
shall follow ORR guidance and the requirements in paragraph (a) of this 
section.
    (d) Residential treatment center placements. A care provider 
facility may request ORR to transfer an unaccompanied child in its care 
to a residential treatment center (RTC), pursuant to the requirements 
described at Sec.  410.1105(c). The care provider facility shall review 
the placement of a child into an RTC every 30 days in accordance with 
paragraph (b) of this section.
    (e) Emergency placement changes. An unaccompanied child who is 
placed pursuant to subpart B of this part remains in the legal custody 
of ORR and may only be transferred or released by ORR. However, in the 
event of an emergency, a care provider facility may temporarily change 
the physical placement of an unaccompanied child prior to securing 
permission from ORR but shall notify ORR of the change of physical 
placement, as soon as possible, but in all cases within eight hours of 
transfer.

Subpart H--Age Determinations


Sec.  410.1700  Purpose of this subpart.

    This subpart sets forth the provisions for determining the age of 
an individual in ORR custody.


Sec.  410.1701  Applicability.

    This subpart applies to individuals in the custody of ORR. To meet 
the definition of an unaccompanied child and remain in ORR custody, an 
individual must be under 18 years of age.


Sec.  410.1702  Conducting age determinations.

    Procedures for determining the age of an individual must take into 
account the totality of the circumstances and evidence, including the 
non-exclusive use of radiographs, to determine the age of the 
individual. ORR may require an individual in ORR's custody to submit to 
a medical or dental examination, including X-rays, conducted by a 
medical professional or to submit to other appropriate procedures to 
verify their age. If ORR subsequently determines that such an 
individual is an unaccompanied child, the individual will be treated in 
accordance with ORR's UC Program regulations in this part for all 
purposes.


Sec.  410.1703  Information used as evidence to conduct age 
determinations.

    (a) ORR considers multiple forms of evidence in making age 
determinations, and determinations are made based upon a totality of 
evidence.
    (b) ORR may consider information or documentation to make an age 
determination, including but not limited to:
    (1) If there is no original birth certificate, certified copy, or 
photocopy or facsimile copy of a birth certificate acceptable to ORR, 
ORR may consult with the consulate or embassy of the individual's 
country of birth to verify the validity of the birth certificate 
presented.
    (2) Authentic government-issued documents issued to the bearer.
    (3) Other documentation, such as baptismal certificates, school 
records, and medical records, which indicate an individual's date of 
birth.
    (4) Sworn affidavits from parents or other relatives as to the 
individual's age or birth date.
    (5) Statements provided by the individual regarding the 
individual's age or birth date.
    (6) Statements from parents or legal guardians.
    (7) Statements from other persons apprehended with the individual.
    (8) Medical age assessments, which should not be used as a sole 
determining factor but only in concert with other factors. If an 
individual's estimated probability of being 18 years or older is 75 
percent or greater according to a medical age assessment, and the 
totality of the evidence indicates that the individual is 18 years old 
or older, ORR must determine that the individual is 18 years old or 
older. The 75 percent probability threshold applies to all medical 
methods and approaches identified by the medical community as 
appropriate methods for assessing age. Ambiguous, debatable, or 
borderline forensic examination results are resolved in favor of 
finding the individual is a minor.


Sec.  410.1704  Treatment of an individual who appears to be an adult.

    If the procedures in this subpart would result in a reasonable 
person concluding that an individual is an adult, despite the 
individual's claim to

[[Page 68999]]

be under the age of 18, ORR shall treat such person as an adult for all 
purposes.

Subpart I--Emergency and Influx Operations


Sec.  410.1800  Contingency planning and procedures during an emergency 
or influx.

    (a) ORR regularly reevaluates the number of placements needed for 
unaccompanied children to determine whether the number of shelters, 
heightened supervision facilities, and ORR transitional home care beds 
should be adjusted to accommodate an increased or decreased number of 
unaccompanied children eligible for placement in care in ORR care 
provider facilities.
    (b) In the event of an emergency or influx that prevents the prompt 
placement of unaccompanied children in standard programs, ORR shall 
make all reasonable efforts to place each unaccompanied child in a 
standard program as expeditiously as possible.
    (c) ORR activities during an influx or emergency include the 
following:
    (1) ORR implements its contingency plan on emergencies and 
influxes, which may include opening facilities to house unaccompanied 
children and prioritization of placement at such facilities of certain 
unaccompanied children;
    (2) ORR continually develops standard programs that are available 
to accept emergency or influx placements; and
    (3) ORR maintains a list of unaccompanied children affected by the 
emergency or influx including each unaccompanied child's:
    (i) Name;
    (ii) Date and country of birth;
    (iii) Date of placement in ORR's custody; and
    (iv) Place and date of current placement.


Sec.  410.1801  Minimum standards for emergency or influx facilities.

    (a) In addition to the ``standard program'' and ``restrictive 
placements'' defined in this part, ORR provides standards in this 
section for all emergency or influx facilities.
    (b) Emergency or influx facilities must provide the following 
minimum services for all unaccompanied children in their care:
    (1) Proper physical care and maintenance, including suitable living 
accommodations, food, appropriate clothing, and personal grooming 
items.
    (2) Appropriate routine medical and dental care; family planning 
services, including pregnancy tests; medical services requiring 
heightened ORR involvement; and emergency healthcare services; a 
complete medical examination (including screenings for infectious 
diseases) within 48 hours of admission, excluding weekends and 
holidays, unless the unaccompanied child was recently examined at 
another ORR care provider facility; appropriate immunizations as 
recommended by the Advisory Committee on Immunization Practices' Child 
and Adolescent Immunization Schedule and approved by HHS' Centers for 
Disease Control and Prevention; administration of prescribed medication 
and special diets; and appropriate mental health interventions when 
necessary.
    (3) An individualized needs assessment, which includes the various 
initial intake forms, collection of essential data relating to the 
identification and history of the child and the child's family, 
identification of the unaccompanied child's special needs including any 
specific problems which appear to require immediate intervention, an 
educational assessment and plan, and an assessment of family 
relationships and interaction with adults, peers and authority figures; 
a statement of religious preference and practice; an assessment of the 
unaccompanied child's personal goals, strengths and weaknesses; 
identifying information regarding immediate family members, other 
relatives, godparents or friends who may be residing in the United 
States and may be able to assist in connecting the child with family 
members.
    (4) Educational services appropriate to the unaccompanied child's 
level of development and communication skills in a structured classroom 
setting Monday through Friday, which concentrates primarily on the 
development of basic academic competencies, and secondarily on English 
Language acquisition. The educational program shall include instruction 
and educational and other reading materials in such languages as 
needed. Basic academic areas should include science, social studies, 
math, reading, writing, and physical education. The program must 
provide unaccompanied children with appropriate reading materials in 
languages other than English for use during leisure time.
    (5) Activities according to a recreation and leisure time plan that 
include daily outdoor activity--weather permitting--with at least one 
hour per day of large muscle activity and one hour per day of 
structured leisure time activities (that should not include time spent 
watching television). Activities should be increased to a total of 
three hours on days when school is not in session.
    (6) At least one individual counseling session per week conducted 
by trained social work staff with the specific objective of reviewing 
the child's progress, establishing new short-term objectives, and 
addressing both the developmental and crisis-related needs of each 
child.
    (7) Group counseling sessions at least twice a week. Sessions are 
usually informal and take place with all unaccompanied children 
present. The sessions give new children the opportunity to get 
acquainted with staff, other children, and the rules of the program. It 
is an open forum where everyone gets a chance to speak. Daily program 
management is discussed and decisions are made about recreational and 
other activities. The sessions allow staff and unaccompanied children 
to discuss whatever is on their minds and to resolve problems.
    (8) Acculturation and adaptation services, which include 
information regarding the development of social and interpersonal 
skills which contribute to those abilities necessary to live 
independently and responsibly.
    (9) A comprehensive orientation regarding program intent, services, 
rules (written and verbal), expectations, and the availability of legal 
assistance.
    (10) Whenever possible, access to religious services of the child's 
choice.
    (11) Visitation and contact with family members (regardless of 
their immigration status), which is structured to encourage such 
visitation. The staff must respect the child's privacy while reasonably 
preventing the unauthorized release of the unaccompanied child.
    (12) A reasonable right to privacy, which includes the right to 
wear the child's own clothes when available, retain a private space in 
the residential facility, group or foster home for the storage of 
personal belongings, talk privately on the phone and visit privately 
with guests, as permitted by the house rules and regulations, receive 
and send uncensored mail unless there is a reasonable belief that the 
mail contains contraband.
    (13) Services designed to identify relatives in the United States 
as well as in foreign countries and assistance in obtaining legal 
guardianship when necessary for the release of the unaccompanied child.
    (14) Legal services information, including the availability of free 
legal assistance, and that they may be represented by counsel at no 
expense to the government, the right to a removal hearing before an 
immigration judge, the ability to apply for asylum with USCIS

[[Page 69000]]

in the first instance, and the ability to request voluntary departure 
in lieu of deportation.
    (15) Emergency or influx facilities, whether state-licensed or not, 
must comply, to the greatest extent possible, with State child welfare 
laws and regulations (such as mandatory reporting of abuse), as well as 
State and local building, fire, health and safety codes, that ORR 
determines are applicable to non-State licensed facilities. If there is 
a potential conflict between ORR's regulations and State law, ORR will 
review the circumstances to determine how to ensure that it is able to 
meet its statutory responsibilities. It is important to note, however, 
that if a State law or license, registration, certification, or other 
requirement conflicts with an ORR employee's duties within the scope of 
their ORR employment, the ORR employee is required to abide by their 
Federal duties.
    (16) Emergency or influx facilities must deliver services in a 
manner that is sensitive to the age, culture, native language, and 
needs of each unaccompanied child. Emergency or influx facilities must 
develop an individual service plan for the care of each child.
    (17) The emergency or influx facility maintains records of case 
files and make regular reports to ORR. Emergency or influx facilities 
must have accountability systems in place, which preserve the 
confidentiality of client information and protect the records from 
unauthorized use or disclosure.
    (c) Emergency or influx facilities must do the following when 
providing services to unaccompanied children:
    (1) Maintain safe and sanitary conditions that are consistent with 
ORR's concern for the particular vulnerability of minors;
    (2) Provide access to toilets, showers and sinks, as well as 
personal hygiene items such as soap, toothpaste and toothbrushes, 
floss, towels, feminine care items, and other similar items;
    (3) Provide drinking water and food;
    (4) Provide medical assistance if the unaccompanied child is in 
need of emergency services;
    (5) Maintain adequate temperature control and ventilation;
    (6) Provide adequate supervision to protect unaccompanied children;
    (7) Separate from other unaccompanied children those unaccompanied 
children who are subsequently found to have past criminal or juvenile 
detention histories or have perpetrated sexual abuse that present a 
danger to themselves or others;
    (8) Provide contact with family members who were arrested with the 
unaccompanied child; and
    (9) Provide access to legal services described in Sec.  410.701(a).
    (d) ORR may grant waivers for an emergency or influx facility from 
standards under paragraph (b) of this section, if the facility is 
activated for a period of six consecutive months or less and such 
standards are operationally infeasible and done in accordance with law. 
Such waiver must be made publicly available.


Sec.  410.1802  Placement standards for emergency or influx facilities.

    (a) Unaccompanied children who are placed in an emergency or influx 
facility must meet all of the following criteria to the extent 
feasible. If ORR becomes aware that a child does not meet any of the 
following criteria at any time after placement into an emergency or 
influx facility, ORR will transfer the unaccompanied child to the least 
restrictive setting appropriate for that child's need as expeditiously 
as possible.
    (1) Is expected to be released to a sponsor within 30 days;
    (2) Is age 13 or older;
    (3) Speaks English or Spanish as their preferred language;
    (4) Does not have a known disability or other mental health or 
medical issue or dental issue requiring additional evaluation, 
treatment, or monitoring by a healthcare provider;
    (5) Is not a pregnant or parenting teen;
    (6) Would not have a diminution of legal services as a result of 
the transfer to an unlicensed facility; and
    (7) Is not a danger to self or others (including not having been 
charged with or convicted of a criminal offense).
    (b) ORR shall also consider the following factors for the placement 
of an unaccompanied child in an emergency or influx facility:
    (1) The unaccompanied child should not be part of a sibling group 
with a sibling(s) age 12 years or younger;
    (2) The unaccompanied child should not be subject to a pending age 
determination;
    (3) The unaccompanied child should not be involved in an active 
State licensing, child protective services, or law enforcement 
investigation, or an investigation resulting from a sexual abuse 
allegation;
    (4) The unaccompanied child should not have a pending home study;
    (5) The unaccompanied child should not be turning 18 years old 
within 30 days of the transfer to an emergency or influx facility;
    (6) The unaccompanied child should not be scheduled to be 
discharged in three days or less;
    (7) The unaccompanied child should not have a current set docket 
date in immigration court or State/family court (juvenile included), 
not have a pending adjustment of legal status, and not have an attorney 
of record or EOIR accredited representative;
    (8) The unaccompanied child should be medically cleared and 
vaccinated as required by the emergency or influx care facility (for 
instance, if the influx care facility is on a U.S. Department of 
Defense site); and
    (9) The unaccompanied child should have no known mental health, 
dental, or medical issues, including contagious diseases requiring 
additional evaluation, treatment, or monitoring by a healthcare 
provider.

Subpart J--Availability of Review of Certain ORR Decisions


Sec.  410.1900  Purpose of this subpart.

    This subpart describes the availability of review of certain ORR 
decisions regarding the care and placement of unaccompanied children.


Sec.  410.1901  Restrictive placement case reviews.

    (a) In all cases involving placement in a restrictive setting, ORR 
shall determine, based on clear and convincing evidence, that 
sufficient grounds exist for stepping up or continuing to hold an 
unaccompanied child in a restrictive placement. The evidence supporting 
a restrictive placement decision shall be recorded in the unaccompanied 
child's case file.
    (b) ORR shall provide an unaccompanied child with a Notice of 
Placement (NOP) no later than 48 hours after step-up to a restrictive 
placement, as well as every 30 days the unaccompanied child remains in 
a restrictive placement.
    (1) The NOP shall clearly and thoroughly set forth the reason(s) 
for placement and a summary of supporting evidence.
    (2) The NOP shall inform the unaccompanied child of their right to 
contest the restrictive placement before a Placement Review Panel (PRP) 
upon receipt of the NOP and the procedures by which the unaccompanied 
child may do so. The NOP shall further inform the unaccompanied child 
of all other available administrative review processes.
    (3) The NOP shall include an explanation of the unaccompanied 
child's right to be represented by counsel in challenging such 
restrictive placement.

[[Page 69001]]

    (4) A case manager shall explain the NOP to the unaccompanied 
child, in a language the unaccompanied child understands.
    (c) The care provider facility shall provide a copy of the NOP to 
the unaccompanied child's legal counsel of record, legal service 
provider, child advocate, and to a parent or legal guardian of record, 
no later than 48 hours after step-up as well as every 30 days the 
unaccompanied child remains in a restrictive placement.
    (d) ORR shall further ensure the following automatic administrative 
reviews:
    (1) At minimum, a 30-day administrative review for all restrictive 
placements;
    (2) A more intensive 45-day review by ORR supervisory staff for 
unaccompanied children in secure facilities; and
    (3) For unaccompanied children in RTCs, the 30-day review at 
paragraph (d)(1) of this section must involve a psychiatrist or 
psychologist to determine whether the unaccompanied child should remain 
in restrictive residential care.


Sec.  410.1902  Placement Review Panel.

    (a) An unaccompanied child placed in a restrictive placement may 
request reconsideration of such placement. Upon such request, ORR shall 
afford the unaccompanied child a hearing before the Placement Review 
Panel (PRP) at which the unaccompanied child may, with the assistance 
of counsel if preferred, present evidence on their own behalf. An 
unaccompanied child may present witnesses and cross-examine ORR's 
witnesses, if such witnesses are willing to voluntarily testify. An 
unaccompanied child that does not wish to request a hearing may also 
have their placement reconsidered by submitting a request for a 
reconsideration along with any supporting documents as evidence.
    (b) The PRP shall afford any unaccompanied child in a restrictive 
placement the opportunity to request a PRP review as soon as the 
unaccompanied child receives a Notice of Placement (NOP).
    (c) ORR shall convene the PRP in a reasonable timeframe without 
undue delay in all requisite cases.
    (d) The PRP shall issue a decision within 30 calendar days of the 
PRP request whenever possible.
    (e) An ORR staff member who was involved with the decision to step 
up an unaccompanied child to a restrictive placement may not serve as a 
Placement Review Panel member with respect to that unaccompanied 
child's placement.


Sec.  410.1903  Risk determination hearings.

    (a) All unaccompanied children in restrictive placements shall be 
afforded a hearing before an independent HHS hearing officer to 
determine, through a written decision, whether the unaccompanied child 
would present a risk of danger to the community, unless the 
unaccompanied child indicates in writing that they refuse such a 
hearing. All other unaccompanied children in ORR custody may request 
such a hearing.
    (1) Requests under this section must be made in writing by the 
unaccompanied child, their attorney of record, or their parent or legal 
guardian by submitting a form provided by ORR to the care provider 
facility or by making a separate written request that contains the 
information requested in ORR's form.
    (2) Unaccompanied children placed in restrictive placements based 
on a finding of dangerousness shall be provided a risk determination 
hearing automatically, whether or not they request one, unless they 
refuse the hearing in writing. Unaccompanied children placed in 
restrictive placements shall receive a notice of the procedures under 
this section and may use a form provided to them to decline a hearing 
under this section. Unaccompanied children in restrictive placements 
may decline the hearing at any time, including after consultation with 
counsel.
    (b) In hearings conducted under this section, ORR bears the initial 
burden of production to support its determination that an unaccompanied 
child would pose a danger if discharged from ORR's care and custody. 
The burden of persuasion is then on the unaccompanied child to show 
that they will not be a danger to the community if released, using a 
preponderance of the evidence standard.
    (c) In hearings under this section, the unaccompanied child may be 
represented by a person of their choosing. The unaccompanied child may 
present oral and written evidence to the hearing officer and may appear 
by video or teleconference. ORR may also present evidence at the 
hearing, whether in writing, or by appearing in person or by video or 
teleconference.
    (d) A hearing officer's decision that an unaccompanied child would 
not be a danger to the community if released is binding upon ORR, 
unless the provisions of paragraph (e) of this section apply.
    (e) A hearing officer's decision under this section may be appealed 
by either the unaccompanied child or ORR to the Assistant Secretary of 
ACF, or the Assistant Secretary's designee.
    (1) Any such appeal request shall be in writing and must be 
received by ACF within 30 days of the hearing officer decision.
    (2) The Assistant Secretary, or the Assistant Secretary's designee, 
shall review the record of the underlying hearing, and will reverse a 
hearing officer decision only if there is a clear error of fact, or if 
the decision includes an error of law.
    (3) If the hearing officer's decision found that the unaccompanied 
child would not pose a danger to the community if released from ORR 
custody, and such decision would result in ORR releasing the 
unaccompanied child from its custody (e.g., because the only factor 
preventing release was ORR's determination that the unaccompanied child 
posed a danger to the community), an appeal to the Assistant Secretary 
shall not effect a stay of the hearing officer's decision, unless the 
Assistant Secretary issues a decision in writing within five business 
days of such hearing officer decision that release of the unaccompanied 
child would result in a danger to the community. Such a stay decision 
must include a description of behaviors of the unaccompanied child 
while in ORR custody and/or documented criminal or juvenile behavior 
records from the unaccompanied child demonstrating that the 
unaccompanied child would present a danger to community if released.
    (f) Decisions under this section are final and binding on the 
Department, and an unaccompanied child who was determined to pose a 
danger to the community if released may only seek another hearing under 
this section if the unaccompanied child can demonstrate a material 
change in circumstances. Similarly, ORR may request the hearing officer 
to make a new determination under this section if at least one month 
has passed since the original decision, and/or ORR can show that a 
material change in circumstances means the unaccompanied child should 
no longer be released due to presenting a danger to the community.
    (g) This section cannot be used to determine whether an 
unaccompanied child has a suitable sponsor, and neither the hearing 
officer nor the Assistant Secretary may order the unaccompanied child 
released.
    (h) This section may not be invoked to determine the unaccompanied 
child's placement while in ORR custody. Nor may this section be invoked 
to determine level of custody for the unaccompanied child.

[[Page 69002]]

Subpart K--Unaccompanied Children Office of the Ombuds (UC Office 
of the Ombuds)


Sec.  410.2000  Establishment of the UC Office of the Ombuds.

    (a) The Unaccompanied Children Office of the Ombuds (hereafter, the 
``UC Office of the Ombuds'') is located within the Office of the ACF 
Assistant Secretary, and reports to the ACF Assistant Secretary.
    (b) The UC Office of the Ombuds shall be an independent, impartial 
office with authority to receive reports, including confidential and 
informal reports, of concerns regarding the care of unaccompanied 
children; to investigate such reports; to work collaboratively with ORR 
to potentially resolve such reports; and issue reports concerning its 
efforts.


Sec.  410.2001  UC Office of the Ombuds policies and procedures; 
contact information.

    (a) The UC Office of the Ombuds shall develop appropriate 
standards, practices, and policies and procedures, giving consideration 
to the recommendations by nationally recognized Ombudsperson 
organizations.
    (b) The UC Office of the Ombuds shall make its standards, 
practices, certain reports and findings, and policies and procedures 
publicly available.
    (c) The UC Office of the Ombuds shall make information about the 
office and how to contact it publicly available, in both English and 
other languages spoken and understood by unaccompanied children in ORR 
care. The Ombuds may identify preferred methods for raising awareness 
of the office and its activities, which may include, but not be limited 
to, visiting ORR facilities or publishing aggregated information about 
the type and number of concerns the office receives, as well as giving 
recommendations.


Sec.  410.2002  UC Office of the Ombuds scope and responsibilities.

    (a) The UC Office of the Ombuds may engage in activities consistent 
with Sec.  410.2100, including but not limited to:
    (1) Receiving reports from unaccompanied children, potential 
sponsors, other stakeholders in a child's case, and the public 
regarding ORR's adherence to its own regulations and standards.
    (2) Investigating implementation of or adherence to Federal law and 
ORR regulations, in response to reports it receives, and meeting with 
interested parties to receive input on ORR's compliance with Federal 
law and ORR policy;
    (3) Requesting and receiving information or documents, such as the 
Ombuds deems relevant, from ORR and ORR care provider facilities, to 
determine implementation of and adherence to Federal law and ORR 
policy;
    (4) Preparing formal reports and recommendations on findings to 
publish or present, including an annual report describing activities 
conducted in the prior year;
    (5) Conducting investigations, interviews, and site visits at care 
provider facilities as necessary to aid in the preparation of reports 
and recommendations;
    (6) Visiting ORR care providers in which unaccompanied children are 
or will be housed;
    (7) Reviewing individual circumstances, including but not limited 
to concerns about unaccompanied children's access to services, ability 
to communicate with service providers, parents/legal guardians of 
children in ORR custody, sponsors, and matters related to transfers 
within or discharge from ORR care;
    (8) Making efforts to resolve complaints or concerns raised by 
interested parties as it relates to ORR's implementation or adherence 
to Federal law or ORR policy;
    (9) Hiring and retaining others, including but not limited to 
independent experts, specialists, assistants, interpreters, and 
translators to assist the Ombuds in the performance of their duties;
    (10) Making non-binding recommendations to ORR regarding its 
policies and procedures, specific to protecting unaccompanied children 
in the care of ORR;
    (11) Providing general educational information about pertinent 
laws, regulations and policies, ORR child advocates, and legal services 
as appropriate; and
    (12) Advising and updating the Director of ORR, Assistant 
Secretary, and the Secretary, as appropriate, on the status of ORR's 
implementation and adherence with Federal law or ORR policy.
    (b) The UC Office of the Ombuds may in its discretion refer matters 
to other Federal agencies or offices with jurisdiction over a 
particular matter, for further investigation where appropriate, 
including to Federal or State law enforcement.
    (c) To accomplish its work, the UC Office of the Ombuds may, as 
needed, have timely and direct access to:
    (1) Unaccompanied children in ORR care;
    (2) ORR care provider facilities;
    (3) Case file information;
    (4) Care provider and Federal staff responsible for children's 
care; and
    (5) Statistical and other data that ORR maintains.


Sec.  410.2003  Organization of the UC Office of the Ombuds.

    (a) The UC Ombuds shall be hired as a career civil servant.
    (b) The UC Ombuds should have the requisite knowledge and 
experience to effectively fulfill the work and the role, including 
membership in good standing of a nationally recognized organization, 
association of ombudsmen, or State bar association throughout the 
course of employment as the Ombuds, and to also include but not be 
limited to having demonstrated knowledge and experience in:
    (1) Informal dispute resolution practices;
    (2) Services and matters related to unaccompanied children and 
child welfare;
    (3) Oversight and regulatory matters; and
    (4) ORR policy and regulations.
    (c) The Ombuds may engage additional staff as it deems necessary 
and practicable to support the functions and responsibilities of the 
Office.
    (d) The Ombuds shall establish procedures for training, 
certification, and continuing education for staff and other 
representatives of the Office.


Sec.  410.2004  Confidentiality.

    (a) The Ombuds shall manage the files, records, and other 
information of the program, regardless of format, and such files must 
be maintained in a manner that preserves the confidentiality of the 
records except in instances of imminent harm or judicial action and is 
prohibited from using or sharing information for any immigration 
enforcement related purpose.
    (b) The UC Office of the Ombuds may accept reports of concerns from 
anonymous reporters.

    Dated: September 22, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2023-21168 Filed 9-29-23; 4:15 pm]
BILLING CODE 4184-45-P