[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34384-34617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08329]
[[Page 34383]]
Vol. 89
Tuesday,
No. 84
April 30, 2024
Part III
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; Final Rule
Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules
and Regulations
[[Page 34384]]
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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: Final rule.
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SUMMARY: This final rule adopts and replaces regulations relating to
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).
This final rule establishes a foundation for the Unaccompanied Children
Program (UC Program) that is consistent with ORR's statutory duties,
for the benefit of unaccompanied children and to enhance public
transparency as to the policies governing the operation of the UC
Program. This final rule implements the 1997 Flores Settlement
Agreement (FSA). As modified in 2001, the FSA provides that it will
terminate 45 days after publication of final regulations implementing
the agreement. ORR anticipates that any termination of the settlement
based on this final rule would only be effective for those provisions
that affect ORR and would not terminate provisions of the FSA that
apply to other Federal Government agencies.
DATES: This final rule is effective: July 1, 2024.
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. Table of Abbreviations
II. Executive Summary
A. Purpose of the Regulatory Action
B. Summary of Select Provisions
C. Summary of Costs and Benefits
III. 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
IV. Discussion of Elements of the Proposed Rule, Public Comments,
Responses, and Final Rule Actions
V. Collection of Information Requirements
VI. 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
VII. Assessment of Federal Regulation and Policies on Families
VIII. Alternatives Considered
I. 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
II. Executive Summary
A. Purpose of the Regulatory Action
On October 4, 2023, the Office of Refugee Resettlement (ORR)
published a notice of proposed rulemaking (NPRM or proposed rule), 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.\1\ The NPRM was based on
statutory authorities and requirements provided under the Homeland
Security Act of 2002 (HSA) \2\ and the William Wilberforce Trafficking
Victims Protection Reauthorization Act of 2008 (TVPRA),\3\ and proposed
to implement the terms of the 1997 Flores Settlement Agreement (FSA)
that create responsibilities for HHS and ORR. ORR proposed in the NPRM
that the requirements apply to all care provider facilities, including
both standard programs and non-standard programs, as defined below,
unless otherwise specified (88 FR 68909). ORR noted that the proposed
rule was necessary 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).
The proposed rule provided a 60-day public comment period, which
ended on December 4, 2023. This final rule responds to comments
received and adopts the proposed rule, with some changes as discussed
herein. ORR thanks the public for commenting on the NPRM.
B. Summary of Select Provisions
This final rule codifies 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 IV of this final rule. In subpart A, ORR
is finalizing its proposal to define terms that are relevant to the
criteria and requirements in the NPRM and to codify the general
principles that apply to the care and placement of unaccompanied
children in ORR care. In subpart B, ORR is finalizing its proposals
regarding 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. In subpart C, ORR is finalizing policies and
procedures regarding the release of unaccompanied children from ORR
care to vetted and approved sponsors. In subpart D, ORR is finalizing
the standards and services that it must meet and provide to
unaccompanied children in ORR care provider facilities. In subpart E,
ORR is finalizing requirements for the safe transportation of
unaccompanied children while in ORR's care. In subpart F, ORR is
finalizing reporting requirements for care provider facilities such
that ORR may compile and maintain statistical information and other
data on unaccompanied children. In subpart G, ORR is finalizing
requirements and policies regarding the transfer of unaccompanied
children in ORR care. In subpart H, ORR is finalizing requirements for
determining the age of an individual in ORR care. In subpart I, ORR is
finalizing its proposal to codify requirements for emergency or influx
facilities (EIFs), which are ORR facilities
[[Page 34385]]
that are opened during a time of emergency or influx. In subpart J, ORR
is finalizing requirements regarding the availability of administrative
review of ORR decisions. Finally, in subpart K, ORR is finalizing its
proposal 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 final rule codifies 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 final rule, HHS and ORR expect these
requirements 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, to
supplement costs incurred by grant recipients in order to comply with
the finalized requirements (see below), to establish a risk
determination hearing process, and to establish the Unaccompanied
Children Office of the Ombuds (UC Office of the Ombuds) and other
administrative staffing needs. In subpart D at Sec. 410.1309, ORR is
finalizing its proposal, to the greatest extent practicable, subject to
available resources as determined by ORR, and consistent with section
292 of the Immigration and Nationality Act (INA) (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 subpart J, ORR is finalizing
the establishment of a risk determination hearing process. To
facilitate this process, ORR has developed forms for use by
unaccompanied children, their parents/legal guardians, or their legal
representatives for which we estimate the costs of completion to range
from $10,187 to $56,589 per year. In subpart K, ORR discusses the
establishment of 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 final rule.
ORR also notes that all care provider facilities and service
providers discussed in this final 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 CFR
75.403 through 75.405,\4\ 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 final 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.
III. Background and Purpose
A. The UC Program
The purpose of this rule is to codify policies, standards, and
protections for the UC Program, consistent with the HSA and TVPRA, and
to implement 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
(INS) to the Director of ORR. The HSA defines certain relevant terms
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.'' \5\ 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 together with HHS and other specified
federal agencies to establish policies and programs to ensure
unaccompanied children are protected from human trafficking and other
criminal activities.\6\ 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 for
unaccompanied children in ORR custody. In most cases, unaccompanied
children enter ORR custody via transfer from DHS. When DHS immigration
officials, or officials from other Federal agencies or departments,
transfer an unaccompanied child in their custody 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, 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 comprise a continuum of care for children,
including placements in individual and group homes, shelter, heightened
supervision, secure facilities, and residential treatment centers.
While in ORR custody, 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 vetted and approved 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 an unaccompanied child (e.g., turn 18). Consistent with
the limits of its statutory authority, and 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, in accordance with applicable legal authority.
B. History and Statutory Structure
1. HSA and TVPRA
The HSA abolished the former 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 of the United
States with respect to the care 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
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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
deter a child from seeking legal relief. 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\
In 2008, Congress passed the TVPRA, which further elaborated duties
with respect to the care and custody of unaccompanied children. The
TVPRA provides that, except as otherwise provided with respect to
certain unaccompanied children from contiguous countries,\11\ and
consistent with the HSA, the care and custody of all unaccompanied
children, including responsibility for their detention, where
appropriate, is the responsibility of the Secretary of HHS. 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 noncitizen
individual in the custody of such department or agency is under the age
of 18.\12\ 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 and other specified Federal agencies 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.\13\ The TVPRA describes requirements with
respect to safe and secure placements for unaccompanied children,
safety and suitability assessments of potential 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.\14\
2. The Flores Settlement Agreement Terms and Implementation
On July 11, 1985, four noncitizen children in INS \15\ 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).\16\ 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.'' \17\ The plaintiffs claimed that
the INS's release and bond practices and policies violated, among other
things, the INA, the Administrative Procedure Act (APA), and the Due
Process Clause and Equal Protection Guarantee under the Fifth
Amendment.\18\ After over 10 years of litigation, the U.S. Government
and Flores plaintiffs entered into the ``Flores Settlement Agreement,''
which was approved by the district court as a consent decree on January
28, 1997.\19\
The FSA applies to both unaccompanied children, as defined in the
HSA, and to children accompanied by their parents or legal
guardians,\20\ but ORR notes that this final 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, including requiring that
they be placed in the ``least restrictive setting appropriate to the
minor's age and special needs,'' \21\ 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.\22\ When release is
appropriate, the FSA establishes an order of priority with respect to
potential sponsors. If no sponsor is available, an unaccompanied child
will be placed at a care provider facility licensed by an appropriate
State agency, or, in the discretion of the Government, with another
adult individual or entity seeking custody. Under the original terms of
the FSA, unaccompanied children whom the former INS was unable to
release upon apprehension and detention remained in INS custody,
typically in a licensed program, until they could be appropriately
released; 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
noncitizen child who remains in Government custody for removal
proceedings is entitled to a bond hearing before an immigration judge,
``unless the [child] indicates on the Notice of Custody Determination
form that he or she refuses such a hearing.'' \23\ The FSA contains
many other provisions relating to the care of unaccompanied children,
including the minimum standards required at licensed care provider
facilities described in Exhibit 1.
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 the Agreement in
regulation.\24\ In 1998, the INS published a proposed rule based on the
substantive terms of the FSA, entitled ``Processing, Detention, and
Release of Juveniles.'' \25\ 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
[[Page 34387]]
and added a stipulation that terminates the FSA ``45 days following
defendants' publication of final regulations implementing t[he]
Agreement.'' \26\ In January 2002, the INS reopened the comment period
on the 1998 proposed rule,\27\ but the rulemaking was ultimately
terminated. Thus, as a result of the 2001 Stipulation, the FSA remains
in effect. 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.
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).\28\ The
purpose of the proposed rule was to implement the substantive terms of
the FSA, and thus enable the district court to terminate the 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.\29\ 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.\30\ 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.\31\
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 the following 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.\32\
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.\33\ Regarding the HHS regulations applicable to
the care and custody of unaccompanied children in the 2019 Final Rule,
the Court of Appeals held that the regulations were ``largely
consistent'' with the FSA, with two exceptions.\34\ 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.'' \35\ 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.\36\
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 APA.\37\ 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 a supplemental briefing requesting a narrowed preliminary
injunction, alleging that several portions of the HHS provisions of the
2019 Final Rule violated the APA. Subsequently, the parties entered
into settlement discussions. On 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.\38\ Further, among other things,
HHS agreed that while it engaged in new rulemaking, it would not seek
to lift the injunction of the 2019 Final Rule or seek to terminate the
FSA as to HHS under the 2019 Final Rule, and that it would make best
efforts to submit an NPRM to OMB by April 15, 2023, providing quarterly
updates to the Court should it not meet that deadline.\39\ 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.\40\ The
NPRM initiated that broader rulemaking effort, and reflected the
stipulated agreement in California v. Mayorkas. The NPRM applied, as
relevant, the findings of the Ninth Circuit regarding the 2019 Final
Rule in Flores v. Rosen. 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 on the HHS regulations in the 2019 Final Rule.
Differences between the 2019 Final Rule and this final rule are
discussed in relevant portions of the preamble below.
4. Lucas R. Litigation
Another ongoing lawsuit involving ORR, filed in 2018, also has
ramifications for this rule. Lucas R. v. Becerra,\41\ 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 all children in ORR
custody:
(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
[[Page 34388]]
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'').\42\
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, which ORR is codifying in this final rule. As stated
in the NPRM, as of September 2023, ORR remained in active litigation in
the Lucas R. class action. The proposed rule stated that depending on
developments in the case, ORR may incorporate additional provisions in
the final rule (88 FR 68913).
On January 5, 2024, the Court issued an order preliminarily
approving settlement agreements that the parties negotiated regarding
the legal representation, drug administration, and disability
classes.\43\ A final approval hearing is scheduled for May 2024. As
discussed in this final rule, ORR is finalizing some proposals from the
NPRM as modified to account for developments in the Lucas R.
litigation. As described herein, in this final rule, ORR intends to
codify the requirements of the Lucas R. preliminary injunction. In
addition, in this final rule, ORR is incorporating the terms of the
anticipated legal representation settlement, among other enhancements
to legal services for unaccompanied children. However, ORR is not
incorporating in the final rule all of the various detailed provisions
in the settlements concerning the drug administration and disability
classes, although ORR is incorporating many commenters' recommendations
in these areas. The drug administration and disability settlements
themselves contemplate implementation over time, thereby affording ORR
an opportunity to see how the terms of those settlements work in
practice as they are implemented, and to assess whether changes may be
needed over time due to evolving circumstances. The disability
settlement in particular requires that ORR work with experts to
undertake a year-long comprehensive needs assessment to evaluate the
adequacy of services, supports, and resources currently in place for
children with disabilities in ORR's custody across its network, and to
identify gaps in the current system, which will inform the development
of a disability plan and future policymaking that best address how to
effectively meet the needs of children with disabilities in ORR's care
and custody. Therefore, while ORR is not codifying all the terms of the
anticipated disability and drug administration settlement agreements in
this final rule, ORR is implementing terms in this rule that broadly
reflect its commitment to ensuring that unaccompanied children are
protected from discrimination and have equal access to the UC Program,
as is consistent with section 504, and that psychotropic medications
are administered appropriately in the best interest of the child and
with meaningful oversight.
C. Statutory and Regulatory Authority
As discussed above, under the HSA and TVPRA, the ORR Director \44\
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.'' \45\ Under the
TVPRA, Federal agencies are required to notify HHS within 48 hours of
apprehending or discovering an unaccompanied child or receiving a claim
or having suspicion that a noncitizen in their custody is under 18
years of age.\46\ The TVPRA further requires that, absent exceptional
circumstances, any Federal department or agency must transfer an
unaccompanied child to the care and custody of HHS within 72 hours of
determining that a noncitizen child in its custody is an unaccompanied
child. The TVPRA requires that HHS and other specified Federal agencies
establish policies and programs to ensure that unaccompanied children
are protected from traffickers and other persons seeking to victimize
or exploit children.\47\ 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,\48\ who in turn delegated the authority to the Director
of ORR.\49\ It is under this delegation of authority that ORR now
issues regulations describing how ORR meets its statutory
responsibilities under the HSA and TVPRA and implements the relevant
and substantive terms of the FSA for the care and custody of
unaccompanied children.
In addition to requirements and standards related to the direct
care of unaccompanied children, HHS is establishing 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. As stated in the NPRM, at 88
FR 68913, 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.'' \50\
D. Basis and Purpose of Regulatory Action
The purpose of this rule is to finalize a regulatory framework that
(1) codifies policies and practices related to the care
[[Page 34389]]
and custody of unaccompanied children, consistent with ORR's statutory
authorities; and (2) implements relevant provisions of 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 final
rule implements the protections set forth in the FSA and broadens them
consistent with the current legal and operational environment, which
has significantly changed since the FSA was signed over 25 years ago.
E. Severability
This is a comprehensive rule containing many subparts that address
many distinct aspects of the UC Program. To the extent any subpart or
portion of a subpart is declared invalid by a court, ORR intends for
all other subparts to remain in effect. For example, ORR expects that
if a court were to invalidate Subpart B (or any of Subpart B's discrete
provisions) relating to the placement of a child, all other subparts--
such as Subpart C (release of the child), Subpart D (minimum standards
and services), Subpart E (transportation), etc.--may continue to
operate and should remain operative independently of the invalidated
subpart.
Additionally, each Subpart also contains many distinct provisions,
many of which may also operate independently of one another; thus, the
invalidation of one particular provision within a particular subpart
would not necessarily have implications for other aspects of that
subpart. For example, within Subpart D, the provision of access to
routine medical and dental care, and other forms of healthcare at Sec.
410.1307 would not be impacted by the invalidation of the provision of
structured leisure time activities at Sec. 410.1302(c)(4) or provision
of legal services under Sec. 410.1309. ORR intends that if one or more
provisions within a subpart are invalidated, that all other provisions
of that subpart (and all other subparts of the rule) remain in effect.
IV. Discussion of Elements of the Proposed Rule, Public Comments,
Responses, and Final Rule Actions
Subpart A--Care and Placement of Unaccompanied Children
ORR proposed in the notice of proposed rulemaking (NPRM) to codify
requirements and policies regarding the placement, care, and services
provided to unaccompanied children in ORR custody (88 FR 68914). 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.
ORR received many comments on the proposed rule that were not
directed at any specific proposal and will address those here.
Comment: Many commenters supported the proposed rule, stating that
it improved public transparency as to the policies governing the
program and provided rights and protections for unaccompanied children.
Many commenters supported codifying practices based on the HSA and
TVPRA and implementing and enhancing the terms of the FSA and stated
that a uniform set of standards and procedures would create conformity
and clarity to provide for the well-being of unaccompanied children in
ORR care. Several commenters cited ORR's efforts to clarify,
strengthen, and codify these requirements and ensure the consistent
implementation of child welfare principles and protections for children
in ORR's custody. Another commenter commended ORR on its efforts to
incorporate child-centered, trauma-informed principles into the
regulatory standards for the UC Program and adopting more inclusive
language. Other commenters appreciated that the provisions are tailored
to the individualized needs of unaccompanied children and ensure
protection from individuals who seek to exploit or victimize
unaccompanied children.
Response: ORR thanks the commenters for their support.
Comment: One commenter encouraged ORR to provide clarity and more
specifics in areas where appropriations would impact the ability to
carry out the proposed rule.
Response: ORR thanks the commenter. As discussed in Section VI,
funding for UC Program services is dependent on annual appropriations
from Congress. The regulations specifically mention that post-release
services (PRS) and funding for legal service providers are limited to
the extent appropriations are available. The availability of child
advocates and the enhancement of certain services, such as the
transition to a community-based care model, are also impacted by
appropriations. ACF's Justification of Estimates for Appropriation
Committees provides additional information regarding the impact of its
requested budget.\51\
Comment: One commenter indicated that sections within this document
do not align with the latest policy updates.
Response: ORR thanks the commenter and has included discussion of
policy updates throughout this final rule as applicable.
Comment: Some commenters expressed that the rule would circumvent
accountability, provide less transparency, and harm children.
Response: ORR thanks the commenters for their comments. ORR
believes that codifying these requirements will provide more
accountability and will strengthen the UC Program to better protect
children. The NPRM notice and comment process provided additional
transparency and provided the public an opportunity to comment on ORR's
processes and policies.
Comment: Many commenters expressed opposition to the rule and cited
concerns that the proposed regulations did not do enough to prevent
child trafficking.
Response: ORR appreciates and shares the public's concern for the
welfare of unaccompanied children that come through its care, as well
as the need to mitigate and prevent human trafficking. Among other
similar responsibilities, HHS, together with other specified agencies,
has a duty 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. . . .''
\52\ Accordingly, these agencies, including ORR, have developed
extensive policies and procedures to protect unaccompanied children and
that are memorialized in subregulatory guidance and memoranda of
agreement (MOA).\53\ This rule contains provisions that are consistent
with HHS's statutory responsibilities, many of which codify and
strengthen current policy. For example, this rule codifies ORR's
historic practice of screening all unaccompanied children for potential
trafficking concerns, including during intake, assessments, and sponsor
assessments, and its use of Significant Incident Reports to report such
concerns. The rule also codifies the requirement that ORR refer
concerns of human trafficking to ACF's Office on Trafficking in Persons
(OTIP) within 24 hours in accordance with reporting requirements under
the Trafficking Victims Protection Act of 2008. OTIP reviews the
concerns to assess whether the unaccompanied child is eligible for
benefits and services. Concerns of human trafficking are also reported
to OTIP by post-release service providers, the ORR National Call Center
(NCC),
[[Page 34390]]
legal services providers, law enforcement, child welfare entities,
healthcare providers, other child-serving agencies, and advocates.
Under this rule, if ORR care provider staff, such as a case manager
or clinician, suspect that a child is a victim of trafficking or is at
risk of trafficking at any point during their interaction with an
unaccompanied child, they must make a referral to HHS's ACF OTIP and to
DHS's Homeland Security Investigations Division and DHS's Center for
Countering Human Trafficking for further investigation. OTIP provides
further assistance to ensure that victims can access appropriate care
and services. Such care is then coordinated with ORR to provide direct
referrals for grant-funded comprehensive case management services,
medical services, food assistance, cash assistance, and health
insurance tailored to the child's individual needs. While ORR does not
retain legal custody of unaccompanied children post-release, ORR
considers what, if any, additional action should be taken consistent
with its legal authorities, including but not limited to: reporting the
matter to local law enforcement; child protective services; or state
child welfare licensing authorities; providing PRS to the released
child and their sponsor, if the child is still under 18; requiring
corrective action to be taken against a care provider facility to
remedy any failure to comply with Federal and state laws and
regulations, licensing and accreditation standards; ORR policies and
procedures, and child welfare standards; or providing technical
assistance to the care provider facility, as needed, to ensure that
deficiencies are addressed.
Comment: One commenter stated their belief that the proposed rule
was subject to the National Environmental Policy Act (NEPA) and argued
that ORR must conduct an environmental assessment prior to finalizing
this rule or it will be in violation of NEPA. The commenter pointed to
the location of a facility in a community as having an environmental
impact.
Response: ORR disagrees that an environmental assessment is
necessary under NEPA for two reasons. NEPA applies when there are
``major Federal actions significantly affecting the quality of the
human environment.'' 42 U.S.C. 4332(C). However, in this rule, HHS is
not taking any Federal action that would ``affect'' the quality of the
human environment because it is essentially memorializing aspects of
existing UC Program procedures in a regulation, rather than where they
reside now, in a settlement agreement, statutes, and the ORR UC policy
guide. Because the rule, as a general matter, does not materially
change the UC Program, it does not significantly affect the quality of
the human environment to implicate NEPA. With respect to the ``risk
determination hearings'' described at Sec. 410.1903, ORR notes that
those hearings already occur, but at DOJ instead of at HHS, as set
forth in this rule.
With respect to the creation of the Office of the Ombuds, as
described in subpart K, HHS has determined that the Ombuds Office falls
under a categorical exclusion as delineated in the HHS General
Administration Manual,\54\ which describes certain categories of
actions that do not require environmental review. Specifically, the
Office of the Ombuds falls under Section 30-20-40(B)(2)(g), which
excludes ``liaison functions (e.g., serving on task forces, ad hoc
committees or representing HHS interests in specific functional areas
in relationship with other governmental and non-governmental
entities).'' To carry out its responsibility to confidentially and
informally receive and investigate complaints and concerns related to
unaccompanied children's experiences in ORR care, the Office will
liaise with stakeholders in the UC Program, including both governmental
and non-governmental entities, and as such it is subject to the HHS
categorical exclusion.
In general, HHS has determined that the rule falls under a
categorical exclusion in section 30-20-40(B)(2)(f) of the HHS General
Administration Manual, which provides that environment impact
statements and environmental assessments are not required for ``grants
for social services (e.g., support for Head Start, senior citizen
programs or drug treatment programs) except projects involving
construction, renovation, or changes in land use.'' The UC Program
provides grants for social services. Although the commenter points to
locating a facility as having environmental impact, the rule does not
in any way address issues relating to site selection for ORR facilities
(i.e., the rule does not describe projects involving construction,
renovation, or changes in land use). To the extent the UC Program going
forward may engage in such activities, ORR would engage in proper
environmental review for each such activity. This rule, however, does
not implicate environmental review.
Comment: One commenter stated their belief that the proposed rule
did not include a cost estimate or financial analysis of what the
burden would be to American taxpayers, and stated that before the rule
is finalized, the Office of Management and Budget should review the
rule.
Response: The proposed rule, and this final rule, provide a cost
estimate in the section titled Economic Analysis. The Office of
Management and Budget reviewed the proposed and final rules before
publication.\55\
Final Rule Action: ORR will finalize the majority of the proposals,
with some changes as discussed throughout this rule.
Section 410.1000 Scope of This Part
ORR proposed in the NPRM, at 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 (88 FR 68914). As described in
section III of this final 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 clarified that 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 rule. ORR notes
that its current policies and practices are described in the online ORR
Policy Guide,\56\ Field Guidance,\57\ 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 provisions of this part would, in many cases, codify
existing ORR policies and practices. Further, ORR will continue to
publish subregulatory guidance as needed to clarify the application of
these regulations.
ORR also proposed, at 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 (88 FR 68914). Additionally, ORR
proposed in the NPRM at Sec. 410.1000(c) that ORR does not fund or
operate facilities other than standard programs, restrictive placements
(which include secure facilities, including residential treatment
centers, and heightened supervision facilities), or EIFs, absent a
[[Page 34391]]
specific waiver as described under Sec. 410.1801(d) or such additional
waivers as are permitted by law (88 FR 68914).
Comment: One commenter questioned the consistency of the level of
detail used in the NPRM, stating that some parts of the proposed
regulation were very detailed while other requirements were more
general. The commenter suggested that the rule should include either a
statement of general guiding principles from which specific policy and
operational directives will be drawn or, conversely, should include all
specific operational directives for all requirements, thus replacing
existing or significantly modifying the existing ORR Policy Guide.
Response: ORR thanks the commenter for their comment. As clarified
in the NPRM, part 410 will not govern or describe the entire program
(88 FR 68914). Where the regulations contain less detail, subregulatory
guidance will provide specific guidance on requirements. By keeping
some of the requirements subregulatory, ORR will be able to make more
frequent, iterative updates in keeping with best practices and to allow
continued responsiveness to the needs of unaccompanied children and
care provider facilities. The requirements codified in this rule, on
the other hand, may in the future be amended only through future notice
and comment rulemaking or changes in law.
Comment: One commenter stated that while they appreciated the
Administration's work to codify standards, they believe it is also
important to preserve ORR's ability to nimbly respond to emerging
issues through updates to its policy guide, as ORR did during the
COVID-19 pandemic. The commenter recommended that ORR include language
making it clear that nothing in the final rule precludes ORR from
updating policy and guidance to address emergent situations while
prioritizing the best interests of children.
Response: ORR reiterates the clarification that part 410 will not
govern or describe the entire program and that further guidance will be
provided through subregulatory guidance in order to remain nimble to
changing circumstances as the commenter suggests.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1000 as proposed.
Section 410.1001 Definitions
ORR proposed in the NPRM, at Sec. 410.1001, to codify the
definitions of terms that apply to this part (88 FR 68914 through
68916). 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 rule, ORR
updated certain terms and definitions provided in the FSA (e.g., the
definition of ``influx''). In the NPRM, ORR provided an explanation for
certain definitions, to further explain ORR's rationale when the rule
applies the relevant terms. As discussed in this section, ORR is
revising some of the proposed definitions.
ORR proposed in the NPRM the definition of ``care provider
facility'' 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 EIFs (88 FR 68914). ORR also noted that this
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 considered 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 considered this 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.
ORR proposed in the NPRM a definition of ``disability'' that is
distinct from the NPRM's proposed definition for a ``special needs
unaccompanied child,'' discussed later in this section and which is
derived specifically from the FSA (88 FR 68914). Although some
unaccompanied children may have a disability and 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 even if the child does not require
services or treatments for a mental and/or physical impairment.
ORR proposed in the NPRM a definition of ``emergency'' that differs
from the definition previously finalized at 45 CFR 411.5, which defines
the term as ``a sudden, urgent, usually unexpected occurrence or
occasion requiring immediate action'' (88 FR 68914). ``Emergency,'' for
purposes of the proposed rule, would reflect the term's usage in the
context of the requirements proposed in the NPRM.
With respect to the definition of the proposed term ``EOIR
accredited representative,'' ORR noted in the NPRM that DOJ refers to
these individuals simply as ``accredited representatives,'' see 8 CFR
1292.1(a)(4), but for purposes of the NPRM, ORR adopted the term ``EOIR
accredited representative'' (88 FR 68914).
ORR proposed in the NPRM that the definition of ``heightened
supervision facility'' incorporate language consistent with the
definition of ``medium secure facility'' provided in the FSA at
paragraph 8 (88 FR 68914). This term replaces the term ``staff secure
facility'' as used under existing ORR policies. ORR decided to change
its terminology because it had become clear that the prior term was not
well understood and did not effectively convey information about the
nature of such facilities.
ORR proposed in the NPRM that the 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 (88 FR 68914 through
68915). 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 definition, however, 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 children. To leave this standard as the definition of influx would
mean, in effect, that the program is always in influx status.
Accordingly, ORR provided 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 definition of ``post-release services,'' ORR
noted in the NPRM 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
[[Page 34392]]
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; and monitoring the unaccompanied child's
attendance and progress in school (88 FR 68915). ORR noted 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.
ORR noted, in the NPRM, with respect to the proposed definition of
``runaway risk,'' the FSA and ORR policy currently use the term
``escape risk'' (88 FR 68915). 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 proposed in the NPRM 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 (88 FR 68915). Rather than
basing its determination of runaway risk solely on the factors
described in the FSA, ORR proposed in the NPRM 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 definition of
runaway risk is consistent with how the term is used in the FSA to
describe escape from ORR care, i.e., from a care provider facility. ORR
noted throughout the 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.\58\ ORR
understands that in the immigration law context, ``risk of flight''
refers to an individual's risk of not appearing for their immigration
proceedings.\59\ ORR proposed in the NPRM, 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 noted 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 (88 FR 68915).
With respect to the proposed definition of ``secure facility,'' ORR
noted that the FSA uses but does not provide a definition for this term
(88 FR 68915). Nevertheless, the proposed definition is consistent with
the provisions of the FSA that apply to secure facilities. ORR also
noted that the 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 proposed in the NPRM an
updated definition in the NPRM.
ORR proposed in the NPRM to change the definition of ``special
needs unaccompanied child,'' to the term ``special needs minor'' as
described within the FSA at paragraph 7 and by using the phrase
``intellectual or developmental disability'' instead of ``mental
illness or retardation'' as used in the FSA (88 FR 68915). 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 proposed in the NPRM
a separate definition for disability earlier in this section that
incorporates the meaning of the term across applicable governing
statutory authorities. ORR also considered 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.
ORR proposed in the NPRM a definition of ``standard program'' that
reflects and updates the term ``licensed program'' at paragraph 6 of
the FSA (88 FR 68915 through 68916). The FSA does not discuss
situations where States discontinue licensing, or exempt from
licensing, childcare facilities that contract with the Federal
Government to care for unaccompanied children because such facilities
provide shelter and services to unaccompanied children as has happened
recently in some States.\60\ ORR proposed in the NPRM a 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 considered 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
will not license a facility because the facility is housing
unaccompanied children.\61\ ORR solicited comments on using the
proposed definition of ``standard program'' in lieu of the term
``licensed program.''
ORR proposed in the NPRM a 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 to children with particular mental or physical conditions
(88 FR 68916). Given this, ORR believed 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,'' was unnecessary for this regulation, and potentially
problematic for reasons discussed elsewhere within this section and at
proposed Sec. Sec. 410.1103 and 410.1106. ORR included this language
to ensure consistency with the FSA, but it considered 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 solicited 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.
ORR proposed in the NPRM to define ``trauma bond'' consistent with
how the Department of State's Office to Monitor and Combat Trafficking
in Persons defines the term in its factsheet, Trauma
[[Page 34393]]
Bonding in Human Trafficking (88 FR 68916).\62\
ORR proposed in the NPRM to define ``trauma-informed,'' based upon
its belief 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 (88 FR 68916).\63\ ORR interprets trauma-informed system,
standard, process, or practices consistent with the 6 Guidelines To A
Trauma-Informed Approach adopted by the Centers for Disease Control and
Prevention (CDC) and developed by the Substance Abuse and Mental Health
Services Administration (SAMHSA).
ORR received comments on the following definitions.
Attorney of Record
Comment: One commenter recommended changes to the definition of
``attorney of record.'' The commenter recommended that ORR revise the
definition to specifically define an ``attorney'' as ``an individual
licensed to practice law in any U.S. jurisdiction'' but then make clear
that non-attorneys may represent a child in their immigration
proceedings. The commenter also urged ORR to remove reference to the
requirement that an attorney ``protects [unaccompanied children] from
mistreatment, exploitation, and trafficking, consistent with 8 U.S.C.
1232(c)(5),'' explaining that the statute cited requires that HHS
ensure counsel because that will protect unaccompanied children from
mistreatment, exploitation, and trafficking, but not that counsel is
required to protect the child. The commenter continued, that although
in many instances having counsel will ensure a child's protection, the
duty to protect, as outlined in the proposed definition, may conflict
with an attorney's duty to represent the child's expressed interests as
required by the rules of professional conduct.
Response: ORR thanks the commenter. The definition of attorney of
record states that the attorney represents the unaccompanied child in
legal proceedings, so ORR does not think it is necessary to also
indicate that the attorney is licensed for such representation. ORR
does agree with the commenter that the addition of the referenced
language from the TVPRA improperly implies that the attorney is
required to protect the child and that it should remove that language
from the definition.
Final Rule Action: ORR is revising the proposed definition of
``attorney of record'' to remove the phrase ``and protects them from
mistreatment, exploitation, and trafficking, consistent with 8 U.S.C.
1232(c)(5).''
Best Interest
Comment: Many commenters commented on the definition of ``best
interest.'' Commenters recommended expanding the definition of ``best
interest'' to more explicitly address the following factors: the impact
of family relationships and importance of family integrity, the impact
of Federal custody on an unaccompanied child's well-being, their
safety, and their identity including their race, religion, ethnicity,
sexual orientation, and gender identity.
Response: ORR thanks the commenters. ORR notes that the rule
provides a non-exhaustive list of factors ORR may consider in
evaluating what is in a child's best interest. ORR understands the
listed factors to already encompass additional factors suggested by the
commenters. Further, ORR notes that some of the factors recommended by
commenters are also already provided as considerations for placement
under Sec. 410.1103. Having said that, ORR will further consider
whether to expand on the definition of best interest in future
policymaking.
Final Rule Action: ORR is finalizing the definition of ``best
interest'' as proposed.
Care Provider Facility
Comment: One commenter supported the proposed term ``care provider
facility,'' stating that by making it broader than ``standard
program,'' it will help clarify the meaning of influx or emergency
facilities. Another commenter recommended that the definition of ``care
provider facility'' meet the definition of ``child care institution''
at section 472(c)(2)(A) of the Social Security Act in order to align
all institutions and facilities serving vulnerable children residing
within and across states, including but not limited to unaccompanied
children.
Response: ORR thanks the commenter for their support. Regarding the
definition in the Social Security Act, section 472(c)(2)(A) defines
``child care institution'' as ``a private child-care institution, or a
public childcare institution which accommodates no more than 25
children, which is licensed by the State in which it is situated or has
been approved by the agency of the State responsible for licensing or
approval of institutions of this type as meeting the standards
established for the licensing.'' Although ORR appreciates the comment,
section 472 of the Social Security Act is specific to State payments to
foster care programs and does not govern the ORR UC Program. Although
ORR strives to place children in care settings with small numbers of
children, it is not always possible to do so. Additionally, ORR has
further requirements that care provider facilities must meet in
addition to those relating to State licensing.
Final Rule Action: ORR is finalizing the term care provider
facility as follows: Care provider facility means any physical site,
including an individual family home, that houses one or more
unaccompanied children in ORR custody and is operated by an ORR-funded
program that provides residential services for unaccompanied children.
Out of network (OON) placements are not included within this
definition.
Case File
Comment: One commenter supported the inclusion of home study and
PRS records as part of the case file definition and, by so doing,
including such records as protected information, agreeing that
unaccompanied children's case files and related information should
receive strong safeguards from unauthorized access, misuse, and
inappropriate disclosure. However, the commenter requested clarity
regarding the meaning of ``correspondence'' within the definition,
asking if it was meant to cover a limited set of materials regarding
the child's unification, such as any correspondence with parents and
sponsors done by ORR staff or provider case managers. The commenter
expressed concern that this is not consistent with the other use of
``correspondence'' in the NPRM at Sec. 410.1304(a)(2)(ii), where the
word ``correspondence'' appears to be meant to include personal
correspondence between the unaccompanied child and whomever the child
wishes to correspond with, including a friend, relative, parent,
attorney, or child advocate. Such materials should be the child's
personal property and not the property of ORR.
Response: ORR thanks the commenter. ORR notes that the definition
of case file is ``the physical and electronic records for each
unaccompanied child that are pertinent to the care and placement of the
child.'' Accordingly, personal correspondence that is not pertinent to
the care and placement of the child would not be part of the case file.
However, for the sake of clarity, ORR will revise the proposed
definition to state that the case file includes ``correspondence
regarding the child's case.''
[[Page 34394]]
Comment: One commenter did not support the statement within the
proposed definition of case file that ``[t]he records of unaccompanied
children are the property of ORR.'' The commenter acknowledged the
importance of strong, universal standards governing children's records
in order to consistently protect the confidentiality of their
Personally Identifiable Information (PII) but stated that the ownership
of children's records is a more complicated issue. The commenter
stated, as an example, that when a child brings documents such as a
birth certificate into custody, the Federal Government holds that
document, but does not own it. The commenter stated that the birth
certificate belongs to the child and the child's parent and legal
guardian, and the document and its content can be shared with the
child's or parent's consent.
Response: ORR notes that, consistent with UC Program's System of
Records Notice (SORN), unaccompanied children have access to, and are
entitled to copies of, their own case file records, consistent with the
provisions of the Privacy Act, codified at 5 U.S.C. 552a.\64\ An
unaccompanied child's attorney of record also has the ability to
request the child's full case file at any time. With respect to
original documents such as a child's birth certificate, ORR notes that
it is amending the definition of ``case file'' to note that it includes
``copies of'' birth and marriage certificates.
Final Rule Action: ORR is revising the proposed definition to add
that case file materials include ``but are not limited to'' the
materials listed in the definition. ORR is also adding the phrase
``regarding the child's case'' after ``correspondence.'' ORR is also
adding ``copies of'' before birth and marriage certificates.
Additionally, in order to be consistent with finalized Sec.
410.1303(h)(2), ORR is adding ``except for program administration
purposes'' at the end of the definition. ORR is otherwise finalizing
the definition as proposed.
Close Relative
Final Rule Action: As discussed in Sec. 410.1205, ORR is
finalizing the definition of ``close relative'' as a type of potential
sponsor, as follows: ``Close relative means a brother, sister,
grandparent, aunt, uncle, first cousin, or other immediate biological
relative, or immediate relative through legal marriage or adoption, and
half-sibling.''
Community-Based-Care
Comment: One commenter did not support the proposed definition of
community-based care, believing that it is overly broad. The commenter
recommended retaining ``traditional foster care'' instead.
Response: ORR thanks the commenter for their comment. ORR notes
that it is planning to transition to a community-based care model that
will restructure ORR's existing transitional foster care and long-term
foster care programs to operate within a continuum of care including
basic and therapeutic foster family settings as well as supervised
independent living group home settings, to more effectively place and
support children in non-congregate settings. However, ORR plans to
describe this transition in future policymaking, and therefore is not
finalizing the term ``community-based care'' in this rule. ORR will
consider this commenter's feedback as it continues transitioning to
this model. Additional details and responses to public comments on
community-based care are described in subpart B.
Final Rule Action: ORR is not finalizing codification of the
definition for the term ``community-based care,'' though ORR has sought
to provide further details relating to the broad standards applicable
to the term in subpart B.
Disposition
Comment: One commenter stated that the proposed rule uses the term
``disposition'' as a term of art but does not define what disposition
signifies, includes, or excludes.
Response: The term ``disposition'' appears three times in the
regulation, twice as ``case disposition'' and once as the ``disposition
of any actions in which the unaccompanied child is the subject.'' ORR
believes that the meaning of disposition is clear in context and so the
term does not necessitate a definition.
Final Rule Action: ORR is not finalizing a definition for
``disposition.''
Executive Office for Immigration Review (EOIR) Accredited
Representative
Comment: One commenter recommended that ORR change the term ``EOIR
accredited representative'' to ``DOJ accredited representative,''
stating that the term is commonly referred to as ``DOJ accredited
representative'' and that adopting a different term in these proposed
regulations will cause unnecessary confusion and be inconsistent with
how representatives are referred to elsewhere.
Response: ORR thanks the commenter and agrees to revise the term to
``DOJ Accredited Representative.'' ORR is updating this term throughout
the rest of this final rule, even where summarizing NPRM language which
used the term ``EOIR accredited representative.''
Final Rule Action: ORR is revising the term to ``DOJ Accredited
Representative'' and otherwise finalizing the definition of such term
as proposed.
Emergency
Comment: Some commenters did not support the proposed definition of
``emergency,'' believing that it relaxes standards and changes a
commonly understood term.
Response: The FSA defines emergency, for purposes of paragraph 12
of the FSA, as ``an act or event that prevents the placement of minors
pursuant to paragraph 19 within the timeframe provided.'' In turn,
paragraph 19 of the FSA describes the requirement to place
unaccompanied children in licensed programs until they can be released
to a sponsor--``provided, however, that in the event of an emergency a
licensed program may transfer temporary physical custody of a minor
prior to securing permission from the INS but shall notify the INS of
the transfer as soon as is practicable thereafter, but in all cases
within 8 hours.'' The FSA states at paragraph 12B that emergencies
include ``natural disasters (e.g., earthquakes, hurricanes, etc.),
facility fires, civil disturbances and medical emergencies (e.g., a
chicken pox epidemic among a group of minors).'' In the NPRM, ORR
proposed to define ``emergency'' as ``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 (88 FR 68979). ORR is
therefore codifying the term emergency as used in the FSA.
Final Rule Action: ORR is finalizing the term ``emergency'' as
proposed.
Emergency or Influx Facility (EIF)
Comment: One commenter expressed concern that the proposed rule
defined emergency or influx facility as ``a type of care provider
facility that opens temporarily to provide shelter and services for
unaccompanied children'' but does not define temporary. Another
commenter urged ORR to incorporate additional language that unlicensed
placements, such as emergency and influx sites, should only be utilized
as a last resort.
[[Page 34395]]
Response: As stated in the NPRM, ORR has a strong preference to
house unaccompanied children in standard programs (88 FR 68955).
However, ORR notes that in times of emergency or influx, additional
facilities may be needed on short notice to house unaccompanied
children. Consistent with current policy, ORR intends that under this
rule it will cease placements at EIFs if net bed capacity of ORR's
standard programs that is occupied or held for placement of
unaccompanied children drops below 85 percent for a period of at least
seven consecutive days.
Final Rule Action: For consistency and clarity, ORR is replacing
the proposed second sentence of the definition, which read ``These
facilities are not otherwise categorized as a standard or secure
facility in this part'' with ``An EIF is not defined as a standard
program, shelter, or secure facility under this part.'' ORR is also
replacing the phrase ``they may not be licensed'' with ``they may be
unlicensed'' to remove any possible implication that they are not
allowed to be licensed. ORR is otherwise finalizing the term
``emergency or influx facility (EIF)'' as proposed.
Family Planning Services
Comment: A few commenters suggested that ORR amend the list of
family planning services to include abortion, arguing that abortion
should be included in the definition of family planning services to
avoid stigmatizing abortion.
Response: ORR thanks the commenters for their comments. ORR notes
that its proposed definition of ``family planning services'' is
consistent with other HHS regulations and publications.\65\ As noted in
the NPRM, ORR has included abortion in the definition of medical
services requiring heightened ORR involvement (88 FR 68979). One
commenter suggested revising the definition by updating ``pregnancy
testing and counseling'' in the list of family planning services to
``pregnancy testing and non-directive pregnancy counseling.'' ORR
accepts the recommendation to update ``counseling'' to ``non-directive
options counseling'' in the definition of Family Planning Services in
the regulatory text, as it aligns with ORR's intended meaning and
aligns with corresponding language in Field Guidance #21.
Final Rule Action: ORR is adding the phrase ``non-directive
options'' before ``counseling'' and otherwise, finalizing the term
``Family Planning Services'' as proposed.
Heightened Supervision Facility
Comment: One commenter supported the inclusion in the term's
definition that ``heightened supervision facilities'' ``provide
supports'' to children with higher needs. The commenter encouraged ORR
to eliminate the definition's focus on security and replace text with
reference to additional personalized and intensive service provision.
Response: ORR thanks the commenter for their comment. ORR notes
that the definition merely defines the facility and how it differs from
a shelter facility. Heightened supervision facilities are required to
meet the minimum standards for standard programs. ORR notes that it is
important to describe the level of restriction at these facilities
because certain requirements need to be met for children to be placed
in heightened supervision facilities under subpart B and children have
a right to review placement in these facilities under subpart J.
Final Rule Action: As further discussed at the preamble text for
Sec. 410.1302, ORR is adding the phrase ``or that meets the
requirements of State licensing that would otherwise be applicable if
it is in a State that does not allow state licensing of programs
providing care and services to unaccompanied children,'' after
``licensed by an appropriate State agency.''
Influx
Comment: Many commenters supported the proposed definition of
``influx,'' noting that the updated definition is more realistic in
light of recent immigration trends and would reduce the placement of
unaccompanied children in emergency facilities. One commenter
recommended that the definition be amended to account for the
trajectory of incoming unaccompanied children to reach or exceed 85
percent of bed capacity within 30 days in order to trigger EIFs from
cold to warm status.
Response: ORR thanks the commenters. ORR intends through this final
rule to update the FSA definition of influx to account for current
circumstances at the southern border. However, because migration
patterns are unpredictable, ORR believes it is appropriate to maintain
subregulatory procedures with respect to preparing for the use of EIFs,
based on the definition of influx codified in this rule.
Comment: One commenter supported ORR's proposal to adopt a
definition of ``influx'' that differs from the FSA, agreeing that the
FSA standard set forth in 1997 does not reflect the realities of
unaccompanied children awaiting placement that have been experienced in
the last decade. However, the commenter expressed their view that ORR
has consistently underutilized available licensed beds in its network
and placed unaccompanied children in active influx care facilities when
licensed facilities were available. The commenter stated further their
concern that the proposed definition would have an influx hinge
entirely on ORR's network capacity, as opposed to the actual numbers of
unaccompanied children entering the agency's care. Another commenter
requested clarification regarding the safeguards referenced in the
definition of influx.
Response: ORR thanks the commenters. ORR appreciates the
commenter's concern about basing the definition of influx on the net
bed capacity of standard programs, however basing it on numbers of
unaccompanied children proved insufficient as migration numbers greatly
increased and the static number became outdated. The original intent of
the FSA definition was to identify circumstances in which there is a
sudden need to expand capacity and not sufficient time to use the
ordinary supply-building process. Looking at referrals in relation to
current net bed capacity of ORR's standard programs that is occupied or
held for placement of unaccompanied children is a better way to reflect
that need and sets the definition of influx at a level vastly higher
than what would have been required had ORR maintained the FSA
definition. ORR also notes that standard capacity beds may be
unavailable for a variety of reasons including staffing shortages;
licensing restrictions on age, gender, or ratios; or building issues
(e.g., water leaks) that prevent the safe placement of children. These
causes of unavailability are not controlled by ORR, but are examples of
issues that may restrict ORR's access to standard beds in its network
of care on a given day. ORR will continue to monitor the numbers of
unaccompanied children and the number of available standard placements
to determine if further updates are needed in the future.
Final Rule Action: ORR is replacing the term ``for purposes of this
part'' with ``for purposes of HHS operations'' and otherwise finalizing
the definition of ``influx'' as proposed.
Least Restrictive Placement
Comment: One commenter expressed concern that ``least restrictive
placement'' is not defined, and that it may be inferred that the least
restrictive placement is by default, anything that is
[[Page 34396]]
not a ``restrictive placement,'' which is defined. The commenter
expressed concern that the proposed regulations do not recognize the
commenter's belief that some non-restrictive placements are more
restrictive than other non-restrictive placements.
Response: ORR notes that it intends the term ``least restrictive
placement'' be read consistent with the TVPRA requirement that
unaccompanied children in the custody of HHS be ``promptly placed in
the least restrictive setting that is in the best interest of the
child,'' and that in making such placements HHS ``may consider danger
to self, danger to the community, and risk of flight,'' among other
requirements. 8 U.S.C. 1232(c)(2)(A).
Final Rule Action: ORR is not adopting a definition of ``least
restrictive placement.''
LGBTQI+
Comment: A few commenters recommended expanding the definition of
LGBTQI+, which the NPRM defined as meaning ``lesbian, gay, bisexual,
transgender, queer or questioning, intersex,'' to include an
explanation of the ``+'' symbol. The commenters stated their belief
that expanding the definition would make the definition more complete
and would better encompass the many other identities that make up the
LGBTQI+ community.
Response: ORR thanks the commenters. ORR appreciates that the term
LGBTQI+ is an umbrella term that is broader than the term LGBTQI, and
accordingly has revised the regulatory definition to say that the term
``includes'' lesbian, gay, bisexual, transgender, questioning or
intersex, as defined at 45 CFR 411.5. This change helps to make clear
that the term LGBTQI+ includes additional identities such as non-
binary.
Final Rule Action: ORR is revising the definition to replace
``means'' with ``includes'' and is otherwise finalizing the definition
of LGBTQI+ as proposed.
Mechanical Restraints
Final Rule Action: For the reasons discussed in the preamble
discussion of Sec. 410.1304(e)(1), ORR is clarifying the definition of
mechanical restraints by adding a second sentence to the definition, as
follows: ``For purposes of the Unaccompanied Children Program,
mechanical restraints are prohibited across all care provider types
except in secure facilities, where they are permitted only as
consistent with State licensure requirements.'' ORR is otherwise
finalizing the definition as proposed.
Medical Services Requiring Heightened ORR Involvement
Comment: A few commenters recommended that ORR revise the
definition of medical services requiring heightened ORR involvement to
clarify that the heightened involvement is only to ensure quick
transportation or transfer for abortion, as needed, and not to create
obstacles to impede access to abortion.
Response: ORR acknowledges the importance of not creating obstacles
to needed medical services, including but not limited to abortion, but
does not believe that the definition of medical services requiring
heightened ORR involvement needs to be modified in order to make this
point clear. ORR is revising Sec. 410.1307 to further clarify that ORR
will not prevent unaccompanied children in ORR care from accessing
healthcare services, including medical services requiring heightened
ORR involvement and family planning services, and ORR must make
reasonable efforts to facilitate access to those services if requested
by the unaccompanied child.
Final Rule Action: ORR is finalizing the definition of ``medical
services requiring heightened ORR involvement'' as proposed.
ORR Long-Term Home Care
Comment: One commenter stated they had no objection to the proposed
change from ``long-term foster care'' to ``long-term home care.''
Another commenter suggested that the definition of ``ORR long-term home
care'' be clarified to indicate whether children need to have viable
legal cases in the particular State to be placed in that program versus
the ``legal proceedings'' that all children in ORR care are in.
Response: ORR thanks the commenters. Part of the proposed
definition reads that ``[a]n 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.'' ORR clarifies that the legal proceedings
referenced are immigration legal proceedings and is amending the
definition accordingly.
Final Rule Action: ORR is adding the word ``immigration'' before
``legal proceedings'' and is otherwise finalizing the definition of
``ORR long-term home care'' as proposed.
Out of Network (OON) Placement
Comment: Some commenters expressed concern that OON facilities were
excluded from the definition of care provider facility and that the
definition of OON placements does not require they are State licensed
or follow the requirements of a standard program. Commenters requested
clarification regarding standards applicable to OON placements. One
commenter recommended that the definition of OON placement be revised
to state that during an OON placement, the responsibility for reporting
incidents related to the child, assessments, and ongoing case
management would remain with the care provider facility.
Response: In response to the comments, ORR is adding to the
definition of OON placement that OON placements are ``licensed by an
appropriate State agency.'' ORR will vet the program to ensure that the
program is in good standing with State licensing and is complying with
all applicable State child welfare laws and regulations and all State
and local building, fire, health, and safety codes. ORR further
reiterates that an unaccompanied child may only be placed at an OON
placement when such placement would be in the unaccompanied child's
best interest. As stated in the NPRM, consistent with existing
policies, in these circumstances, even though an unaccompanied child
would be physically located at an OON placement, the unaccompanied
child would remain in ORR legal custody (88 FR 68924). ORR also
clarifies that an OON placement is not defined as a standard program
under this part. However, as provided under ORR policy, the
unaccompanied child's case manager would monitor the unaccompanied
child's progress and ensure the unaccompanied child is receiving
services.
Final Rule Action: ORR is adding the phrase ``that is licensed by
an appropriate State agency'' after ``means a facility'' to the
definition of out of network placement. ORR is also stating that such a
placement is not defined as a standard program under this part. ORR is
otherwise finalizing the definition as proposed.
Placement Review Panel
Comment: One commenter suggested revising the definition of
``placement review panel (PRP)'' to include additional information
regarding timeframes for decision and specificity regarding the term
``ORR Senior Level Career Staff'' by including the job title or
designation.
Response: ORR thanks the commenter for their feedback. Requirements
for the PRP are addressed by ORR under Sec. 410.1902, rather than in
the definition of the PRP. ORR clarifies that ``ORR
[[Page 34397]]
Senior Level Career Staff'' means ORR staff at a senior level or above
that is not politically appointed.
Final Rule Action: ORR is finalizing the definition of ``placement
review panel'' as proposed.
Qualified Interpreter
Comment: One commenter suggested that the definition of a
``qualified interpreter'' for an individual with a disability be
modified to include adherence to generally accepted ethics principles,
including client confidentiality, to make it clear that individuals
with disabilities are entitled to the same confidentiality and ethical
protections as limited English proficient individuals.
Response: ORR thanks the commenter for catching a drafting error.
ORR will restructure the proposed paragraph, moving former subparagraph
(2)(iii) to become new paragraph (3), so that the ethical protections
provision applies to the overall definition of ``qualified
interpreter.''
Comment: One commenter suggested that the definition of ``qualified
interpreter'' requires that interpreters are not only proficient in the
language but also culturally competent.
Response: ORR thanks the commenter but notes that the definition of
qualified interpreter for a limited English proficient individual
includes a requirement that the interpreter be 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.'' This
definition is consistent with another HHS regulation \66\ and captures
a requirement that the interpreter understand the cultural nuances of
the language.
Final Rule Action: ORR is revising the proposed definition to move
former subparagraph (2)(iii) to become new paragraph (3) such that the
requirement to adhere to generally accepted interpreter ethics
principles, including client confidentiality applies to both qualified
interpreters for an individual with a disability and for a limited
English proficient individual. ORR is finalizing the rest of the
definition as proposed.
Runaway Risk
Comment: One commenter supported the proposed definition of
``runaway risk,'' noting that it is consistent with the FSA. The
commenter also supported the proposed rule's clarification that this
determination must consider the totality of the circumstances. Another
commenter also supported replacing the term ``escape risk'' with a term
such as ``child at risk of running away,'' stating that other terms are
used in criminal or enforcement settings and are not appropriate to use
in a child welfare setting.
Response: ORR thanks the commenters for their support for not using
the term ``escape risk'' and instead using a term that relates to
runaway risk, given that escape risk is relevant to a criminal setting.
ORR notes that the definition of runaway risk requires a finding that
it is ``highly probable or reasonably certain'' that a child will
attempt to abscond from ORR care, whereas the FSA defines ``escape
risk'' as meaning there is a ``serious risk'' that a minor will attempt
to escape from custody. Per Sec. 410.1105(b)(2)(ii) of this final
rule, one of the factors ORR may consider for placement of children in
heightened supervision facilities is whether a child is a runaway risk.
Because a determination that a child is a runaway risk can result in
their placement into a restrictive placement, ORR intends through this
updated language to establish a clearer and higher standard than
required by the FSA to determine such risk.
Comment: One commenter did not support the proposal to replace the
term ``escape risk'' with ``runaway risk'' stating their belief that it
was not consistent with the FSA because the FSA requires that a prior
escape from custody lead to a more restrictive placement, while the
proposed rule allows ORR to disregard that factor in determining
whether an unaccompanied child is a runaway risk.
Response: ORR disagrees with the commenter that the proposal is
inconsistent with the FSA. Section 410.1003(f) states that ORR will
consider runaway risk in making placement determinations. The
definition of runaway risk states that a prior attempt to run away
cannot be the sole consideration but does not require ORR to disregard
this factor in determining runaway risk. As finalized at Sec.
410.1107(b), ORR considers whether a child has previously absconded or
attempted to abscond from State or Federal custody when determining, in
view of the totality of the circumstances, whether a child is a runaway
risk for purposes of placement decisions.
Final Rule Action: ORR is finalizing the term ``runaway risk'' as
proposed.
Seclusion
Comment: A few commenters asked for additional clarity in the
definition of ``seclusion'' concerning what seclusion involves and how
it works in practice.
Response: ORR emphasizes, as established at Sec. 410.1304(c), that
seclusion is prohibited at standard programs and RTCs, and as
established at Sec. 410.1304(e)(1), that seclusion is permitted at
non-RTC secure facilities only in emergency safety situations. Further,
ORR notes that, consistent with current policies, seclusion is
permitted only after all other de-escalation strategies and less
restrictive approaches have been attempted and failed; must involve
continued monitoring or supervision by staff throughout the seclusion
period; must never be used as a means of coercion, discipline,
convenience, or retaliation; must be performed in a manner that is
safe, proportionate, and appropriate to the severity of the underlying
emergency risk to the safety of others necessitating the seclusion;
must be appropriate and proportionate to the child's chronological and
developmental age, size, gender, as well as physical, medical, and
psychiatric condition, and personal history; must be utilized in the
most child-friendly, trauma-informed way possible; and must only be
utilized for the short amount of time needed to ameliorate the
underlying emergency risk to the safety of others.
Final Rule Action: ORR is updating the definition of ``seclusion''
by adding ``is instructed not to leave or'' before ``is physically
prevented from leaving'' while otherwise finalizing the definition as
proposed.
Secure Facility
Comment: Some commenters did not support that the definition of
``secure facility'' states that secure facilities do not need to comply
with the requirements for minimum standards of care and services
applicable to all other standard programs under Sec. 410.1302. The
commenters stated their belief that exempting children in secure
facilities from the right to receive the minimum standards of care
afforded to children in all other placement types is unwarranted and
would formalize differential treatment of children as to their basic
needs. Some commenters encouraged ORR to eliminate the use of secure
detention, with one commenter stating their belief that placement in
secure facilities is out of step with ORR's mandate and inappropriate
for any child not placed there under the authority of a juvenile court
judge. That commenter recommended that ORR be explicit in the
definition of and criteria for placement in secure facilities.
Response: ORR is revising its proposed regulation text to remove
the
[[Page 34398]]
statement that a secure facility ``does not need to meet the
requirements of Sec. 410.1302.'' As discussed in the responses to
comments in Sec. Sec. 410.1301 and 410.1302, ORR is finalizing Sec.
410.1302 such that the requirements of that section apply to secure
facilities. ORR notes that this is consistent with current and historic
practice, whereby ORR has required secure facilities to comply with FSA
Exhibit 1 requirements even though the FSA itself does not require
that. And as a practical matter, ORR currently has no secure facilities
in its network of care provider facilities. As a result, ORR does not
anticipate that this revision will implicate any reliance interests.
Additionally, in response to commenters' concerns about the use of
secure detention facilities, ORR is revising the definition to remove
the explicit mention of ``a secure ORR detention facility, or a State
or county juvenile detention facility''.
Final Rule Action: ORR is revising the definition of ``secure
facility'' to remove the phrases ``a secure ORR detention facility, or
a State or county juvenile detention facility'' and ``does not need to
meet the requirements of Sec. 410.1302.'' ORR is otherwise finalizing
the definition as proposed.
Significant Incidents
Comment: One commenter stated that significant changes were made to
reporting of significant incidents in policy updates in 2022 and 2023
and suggested that these changes should be incorporated into the final
rule.
Response: ORR thanks the commenter. In the NPRM, ORR incorrectly
included ``pregnancy'' in the list of significant incidents. Pregnancy
is no longer reported as a significant incident but is instead
documented in the Health Tab of the UC Portal. Accordingly, ORR is
updating the definition of ``significant incidents'' to remove
pregnancy. With regard to other policy updates, ORR reiterates that it
is not codifying all of its policies and choosing for some policies to
remain subregulatory such that they can be more easily updated as
needed.
Final Rule Action: After consideration of public comments, ORR is
removing pregnancy from the definition of significant incidents, but
otherwise finalizing the term as proposed.
Special Needs Unaccompanied Child
Comment: Many commenters supported the proposal to not define or
use the term ``special needs unaccompanied child'' and instead refer to
children's individualized needs. Commenters agreed that the term is
disfavored and is seen as degrading. One commenter stated the term
individualized needs is more specific to the child rather than
confusing that the child might have a disability. Some commenters
further supported the proposal to remove ``facilities for children with
special needs'' from the definition of standard program. Some
commenters stated support for changing the term disability to special
needs unaccompanied child.
Response: ORR is finalizing the use of ``individualized needs'' in
many places in the regulations in lieu of the outdated term ``special
needs.''
Final Rule Action: ORR is removing the term ``special needs
unaccompanied child'' from the regulation.
Standard Program
Comment: One commenter was concerned that the definition of
``standard program'' in the NPRM requires all homes and facilities to
be ``non-secure,'' whereas paragraph 6 of the FSA requires them to be
``non-secure as required by State law.'' The commenter expressed
concerns that ORR could adopt a definition of non-secure that permits
much more restrictive conditions than are currently permissible. The
commenter contended further that, for the same reasons, if ORR chooses
to retain the reference to ``a facility for special needs unaccompanied
children'' in the definition of ``standard program'' it would be
impermissible to replace the FSA's paragraph 6 reference to the ``level
of security permitted under State law'' with undefined ``requirements
specified by ORR if licensure is unavailable in the State.''
Response: ORR thanks the commenter and notes that it is revising
the definition of ``standard program'' to include ``non-secure as
required by State law.'' ORR is also revising the definition of
``standard program'' to not reference ``facilities for special needs
unaccompanied children'' given the term ``special needs'' has become
stigmatized. Instead, the definition of ``standard program'' includes
``facilities for unaccompanied children with specific individualized
needs.''
Final Rule Action: ORR is revising the proposed definition of
``standard program'' by replacing the proposed phrase ``or that meets
other requirements specified by ORR if licensure is unavailable in the
State'' with ``or that meets the requirements of State licensing that
would otherwise be applicable if it is in a State that does not allow
State licensing,'' and by moving this language to the end of the
relevant sentence. ORR is also revising the proposed definition so that
the final rule states that all standard programs shall be ``non-secure
as required under State law.'' ORR is also revising the proposed
definition so that the final rule does not include the language
``facility for special needs unaccompanied children'' and instead
includes the language ``facility for unaccompanied children with
specific individualized needs.'' ORR is also revising the definition
such that a facility for unaccompanied children with specific
individualized needs may maintain that level of security permitted
under state law and deleting the phrase ``or under the requirements
specified by ORR if licensure is unavailable in the State.'' ORR is
otherwise finalizing the term as proposed.
Transfer
Comment: Regarding the proposed definition of ``transfer,'' a few
commenters had differing opinions on the statement in the NPRM that a
transfer from a community-based placement to a shelter is not a step-
up. The proposed rule stated that such transfer does not constitute a
step-up because neither a community-based placement nor a shelter would
be considered a secure placement. One commenter did not support the
statement, stating that it fails to recognize that a large shelter
facility is more restrictive than a foster care setting. However,
another commenter supported the statement, but requested the addition
of clarifying language that if the least restrictive placement for an
unaccompanied child has been determined to be a shelter level of care,
a community-based care facility shall also be considered an appropriate
placement, without the need for a child in a restrictive placement to
be first ``stepped down'' to a shelter level of care.
Response: As stated in the definition of ``transfer'' at Sec.
410.1001, ORR uses the terms ``step-up'' and ``step-down'' to describe
transfers of unaccompanied children to or from restrictive placements.
All standard programs are non-restrictive settings. Because standard
programs are non-restrictive settings, a transfer between those
settings is not by definition a ``step-up'' or ``step-down.''
Final Rule Action: ORR is finalizing the definition of ``transfer''
as proposed.
Trauma-Informed
Comment: Some commenters supported ORR's inclusion of a trauma-
informed approach, citing the importance of taking such an approach
with the unaccompanied children population. A few commenters
[[Page 34399]]
recommended this approach be culturally and linguistically appropriate
to better accommodate unaccompanied children's diverse experiences and
to ensure continued connection to their language, culture, traditions,
and community. However, one commenter warned that a trauma-informed
approach is not accomplished through any single particular technique or
checklist and requires ongoing organizational change and assessment.
Response: ORR thanks the commenters for their support. This rule
establishes a definition of ``trauma-informed'' that ORR believes can
accommodate the commenters' concerns, and ORR will consider their
feedback as it develops additional guidance implementing a trauma-
informed approach in relevant circumstances.
Final Rule Action: ORR is finalizing the term ``trauma-informed''
as proposed.
Unaccompanied Child/Children
Comment: Some commenters requested clarification of aspects of the
definition of ``unaccompanied child,'' such as what constitutes an
``available'' parent or legal guardian, or whether children in
particular circumstances meet the definition of ``unaccompanied
child.''
Response: ORR notes that this final rule applies the statutory
definition of ``unaccompanied alien child'' as provided in the HSA for
purposes relevant to ORR. Other federal agencies also apply the HSA
definition as relevant for their purposes. The statutory definition has
three prongs: the child must have no lawful immigration status in the
United States; the child must be under 18 years old; and the child must
have no parent or legal guardian in the United States, or no parent or
legal guardian in the United States available to provide care and
physical custody. The rule itself tracked the statutory definition and
did not purport to interpret it, and accordingly, discussions of
application of the statutory definition in particular circumstances are
beyond the scope of the rule. ORR notes that it is not an immigration
enforcement authority and would not go out into the community to take
custody of any child. Rather, unaccompanied children enter ORR custody
upon transfer of custody from another Federal department or agency. As
discussed at the portion of the NPRM's preamble addressing Sec.
410.1101, ORR may seek clarification about the information provided by
the referring agency as needed to determine appropriate placement and
how the referred individual meets the statutory definition of
unaccompanied child (88 FR 68917). 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.
Comment: One commenter recommended not using the term
``unaccompanied alien child,'' arguing that the word ``alien'' is
dehumanizing.
Response: ORR agrees with the commenter and did not use the term
``alien'' in the proposed rule unless directly quoting the HSA or
TVPRA. Similarly, in the final rule, ORR has updated the defined term
``unaccompanied alien child,'' as used in the HSA and TVPRA, to
``unaccompanied child.''
Final Rule Action: After consideration of public comments, ORR is
finalizing the definition of ``unaccompanied child/children'' as
proposed.
Section 410.1002 ORR Care and Placement of Unaccompanied Children
ORR proposed in the NPRM, 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 (88 FR 68916). 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 III.B.3 of this final rule, the 2019 Final Rule in its entirety
is currently enjoined and will be superseded by the standards
implemented in this final rule. Changes throughout this subpart to the
standards set by the 2019 Final Rule are explained where relevant.
Comment: One commenter recommended that ORR include additional
language to Sec. 410.1002 to mention particular attention and respect
for human rights for extremely high-risk populations and explicitly
stating that ORR takes into consideration the child's Indigenous
identity, membership, and or citizenship of a Native Nation.
Response: ORR thanks the commenter. Under Sec. 410.1003(a), ORR
requires that within all placements, unaccompanied children shall be
treated with dignity, respect, and special concern for their particular
vulnerability, which would include any considerations which would make
the child high-risk. Additionally, under the definition of ``best
interest,'' ORR is required to consider the unaccompanied child's
cultural background, which would include membership or citizenship of a
Native Nation.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1002 as proposed.
Section 410.1003 General Principles That Apply to the Care and
Placement of Unaccompanied Children
ORR proposed in the NPRM, at Sec. 410.1003, to describe principles
that would apply to the care and placement for unaccompanied children
in its custody (88 FR 68916 through 68917). 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.\67\
ORR proposed in the NPRM at Sec. 410.1003(a), 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,
finalizing this proposal is consistent with the substantive criteria
set forth at paragraph 11 of the FSA, and current ORR policies.
ORR proposed in the NPRM at Sec. 410.1003(b), 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. Finalizing this proposal 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 noted 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
proposed in the NPRM to adopt this standard for its facilities and
custody of unaccompanied children as well. ORR also noted that it
proposed in the NPRM the phrasing ``the particular vulnerability of
unaccompanied children'' as opposed to ``the particular vulnerability
of minors,'' as it believed that the specific vulnerability of the
population of unaccompanied children should be considered when
providing them with safe and sanitary conditions.
ORR proposed in the NPRM, at Sec. 410.1003(c), that it would be
required
[[Page 34400]]
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 proposed in the NPRM, 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.
ORR proposed in the NPRM, 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,\68\ 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 that were 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 proposed in the NPRM 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, finalizing the proposal is consistent
with the substantive criteria set forth at paragraph 11 of the FSA, and
current ORR policies.
ORR proposed in the NPRM, at Sec. 410.1003(g), to require
consultation with parents, legal guardians, child advocates, and
attorneys of record or DOJ Accredited Representatives as needed when
requesting information or consent from all unaccompanied children.
Comment: One commenter generally supported Sec. 410.1003, stating
that the provisions are tailored to the individualized needs of
unaccompanied children and ensure protection from individuals who seek
to exploit or victimize unaccompanied children like human traffickers
and employers.
Response: ORR thanks the commenter for their comment.
Comment: A few commenters noted that the proposed rule alternated
between stating what ORR ``shall'' do and state what ORR does in the
present tense. Those commenters noted in Sec. 410.1003, paragraph (a)
states that ``unaccompanied children shall be treated with dignity,
respect, and special concern'' while paragraph (f) states ``ORR places
each unaccompanied child in the least restrictive setting that is in
the best interests of the child.'' The commenters recommended that the
Final Rule should consistently use ``shall'' rather than the present
tense.
Response: ORR thanks the commenters for their comment. Although ORR
intends for statements in the present tense in the regulation to be
mandatory, for the sake of clarity, ORR will revise Sec. 410.1003(f)
to include the mandatory language ``shall.'' This revision makes the
language consistent with Sec. 410.1103(a). ORR further notes that it
has made this revision throughout the finalized regulation text for
consistency, clarity, and explicit alignment with ORR's statutory
authorities and the FSA.
Comment: One commenter requested more clarity as to what standards
are applicable to what types of programs, stating that in some sections
the document is specific that principles are for standard and
restrictive placements, inferring they are not applicable to emergency
intake sites (EIS) and influx care facilities (ICF) but that in other
sections the document is silent as to types of programs, leaving areas
of ambiguity.
Response: As stated in finalized Sec. 410.1301, the standards in
subpart D apply to standard programs and secure facilities, and to
other care provider facilities and PRS providers where specified. The
standards for EIFs are in subpart I. If a requirement or standard
states that it is for ``all care provider facilities,'' then that
includes standard programs, restrictive placements, and EIFs.
Additionally, the principles articulated in Sec. 410.1003 refer to
``all placements,'' and therefore apply to all ORR placements without
regard to the type of facility.
Comment: One commenter recommended that ORR add language to make
clear that requirements for ORR to treat children with dignity, respect
and special concern for their vulnerability under paragraph (a),
applies to ORR staff, the staff of ORR subcontracted facilities, and
any other stakeholder or interested person who interacts with the child
while the child remains in the custody of ORR, or during the child's
transport to or from an ORR care provider.
Response: ORR appreciates the commenter's comment. ORR notes,
however, that these are general provisions that relate to ORR.
Specifics about the requirements of care provider facilities,
transportation, and other interested parties are in other parts of the
regulation, such as Sec. Sec. 410.1302, 410.1304, 410.1401, 410.1801.
Those specific requirements are to ensure that unaccompanied children
are treated with dignity, respect, and special concern for their
particular vulnerability.
Comment: One commenter expressed concern that the proposed rule did
not provide clear guidance on how to determine the best interests of
the child in various situations, such as when there are conflicting
preferences or claims from different sponsors, when there are concerns
about the safety or suitability of a sponsor, or when there are special
needs or circumstances of the child. The commenter expressed concerns
that this would lead to confusion and inconsistency in decision-making,
and potentially compromise the rights and well-being of the child. The
commenter recommended that the final rule provide clear and
comprehensive guidance on how to determine and apply the best interests
of the child principle in various situations, taking into account the
views and preferences of the child, the characteristics and
circumstances of the sponsor, and the relevant legal and policy
frameworks. The commenter also stated that the rule should provide for
independent review and oversight of best interests determinations by
qualified professionals.
Response: The definition of best interest includes a non-exhaustive
list of factors to consider, as appropriate, when evaluating a child's
best interests. The list is necessarily non-exhaustive because each
child is unique and has
[[Page 34401]]
individual needs, background, and circumstances but the rule is
explicit in emphasizing the importance of making decisions in the
child's best interest.
Regarding the recommendation for independent review and oversight
of determinations of best interest, ORR notes that it may appoint child
advocates for victims of trafficking and other vulnerable children who
are independent, qualified professionals who provide best interests
determinations (BIDs). ORR considers such BIDs when making decisions
regarding the care, placement, and release of unaccompanied children.
Additionally, the rule provides for review of placement decisions, in
subpart J, and an independent Office of the Ombuds, in subpart K.
Comment: Several commenters recommended that ORR include language
affirmatively stating ORR's obligations to protect unaccompanied
children in its care from discriminatory treatment and abuse,
expressing concern over States adopting legislation that dismantles
anti-discrimination protections for LGBTQI+ people.
Response: ORR agrees with the need to protect LGBTQI+ individuals
from discrimination and believes that the language finalized at Sec.
410.1003(a) protects unaccompanied children in its care from
discriminatory treatment and abuse because it establishes the general
principle that unaccompanied children shall be treated with dignity,
respect, and special concern for their particular vulnerability.
Further, as provided in current policy, ORR requires care provider
facilities to operate their programs following certain guiding
principles, including ensuring that LGBTQI+ children are treated with
dignity and respect, receive recognition of their sexual orientation
and/or gender identity, are not discriminated against or harassed based
on actual or perceived sexual orientation or gender identity, and are
cared for in an inclusive and respectful environment.
Comment: Some commenters expressed support for the proposal in
paragraph (d) that unaccompanied children be active participants in
ORR's decision-making process related to their care and placement.
Response: ORR thanks the commenters for their support.
Comment: One commenter recommended that ORR require that Indigenous
cultural and language experts be required in the consultation process
for Indigenous children to provide their free, prior, and informed
consent.
Response: ORR thanks the commenter but notes that the suggestion is
not required by statute or the FSA. ORR notes that it is finalizing
language access requirements in Sec. 410.1306.
Comment: One commenter recommended that ORR collaborate with non-
governmental organizations and advocacy groups that are actively
working in the field of child protection as they often have valuable
insights and resources that can contribute significantly to the cause.
Response: ORR thanks the commenter and notes that it currently
collaborates with and seeks input from advocacy groups and service
providers, and that it intends to continue that practice under this
final rule.
Comment: One commenter recommended that ORR prioritize identifying
and adding facilities throughout the United States in more populous
areas to ensure adequate access for children to legal, medical, and
other services and to ease the burden on community organizations.
Response: ORR appreciates the commenter's recommendation and does
consider whether the area is populous and the availability of services
among many other factors when adding facilities through the United
States. ORR notes, however, that it is limited by the grant and
contract applications it receives and the locations in which qualifying
proposals are located. ORR further notes that this rule does not
address site selection for care provider facilities, and therefore it
does not believe a change to the rule text concerning site selection is
appropriate.
Comment: A few commenters recommended ORR have local law
enforcement, county oversight, and State oversight regarding the nature
of their operations in respective jurisdictions.
Response: ORR notes that local law enforcement and county and State
Governments do have oversight into aspects of the care of unaccompanied
children. For example, local law enforcement agencies investigate and
prosecute State crimes, and State and local Governments license and
investigate care provider facilities with respect to licensing
requirements and allegations of child abuse and neglect. ORR notes that
the role of local law enforcement and child protective services and
licensing entities in the context of the UC Program is also discussed
in the preamble to the Interim Final Rule, Standards to Prevent,
Detect, and Respond to Sexual Abuse and Sexual Harassment Involving
Unaccompanied Children, codified at 45 CFR part 411.\69\ Accordingly,
ORR does not believe a revision to the rule is needed to specifically
describe the role of State and local Governments as suggested.
Final Rule Action: After consideration of public comments, ORR is
revising paragraph (f) to read ``In making placement determinations,
ORR shall place 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.'' All other paragraphs will be finalized as proposed.
Section 410.1004 ORR Custody of Unaccompanied Children
ORR proposed in the NPRM at Sec. 410.1004 to describe the scope of
ORR's custody of unaccompanied children (88 FR 68917). Consistent with
its statutory authorities and the FSA, the 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.\70\ The provision also provides 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.\71\
Comment: One commenter expressed concern that Sec. 410.1004 uses
the term ``legal custody'' without defining it. The commenter noted
that custody can include actual, constructive, or legal custody and
argued that if ORR claims legal custody over unaccompanied children,
not just actual or constructive custody, it should outline all legal
responsibilities owed or held over the child whether pursuant to
Federal or State law.
Response: ORR interprets the term ``legal custody'' consistent with
its statutory authorities and with its usage in the FSA. The TVPRA
makes HHS responsible, consistent with the HSA, for the ``care and
custody'' of unaccompanied children.\72\ The HSA makes ORR responsible
for ``coordinating and implementing the care and placement of
unaccompanied alien children who are in Federal custody by reason of
their immigration status.'' \73\ The FSA uses the term ``legal
custody'' to define the scope of the agreement and of specific
provisions.\74\ ORR notes that in these contexts, it is assumed that
ORR has the ability to provide care and supervision for children. So,
consistent with a prior ruling interpreting the FSA, ORR understands
the term ``legal custody'' to signify ``the right and responsibility to
[[Page 34402]]
care for the well-being of the child and make decisions on the child's
behalf.'' \75\
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1004 as proposed.
Subpart B--Determining the Placement of an Unaccompanied Child at a
Care Provider Facility
In the NPRM, ORR proposed in subpart B to codify the criteria and
requirements that apply to the placement of unaccompanied children at
particular types of care provider facilities (88 FR 68917 through
68927). 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.'' \76\ In addition, ORR
stated in the NPRM that proposed subpart B clarifies and strengthens
placement criteria to better ensure appropriate placement based on each
unaccompanied child's individual background, characteristics, and
needs. ORR stated that it believes that these 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.
Section 410.1100 Purpose of This Subpart
ORR proposed in the NPRM at Sec. 410.1100 that the purpose of
subpart B is 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 (88 FR
68917). In addition, ORR proposed in the NPRM at Sec. 410.1100 to
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 in subpart C.
ORR did not receive any comments on proposed Sec. 410.1100.
Final Rule Action: ORR is finalizing this section as proposed.
Section 410.1101 Process for the Placement of an Unaccompanied Child
After Referral From Another Federal Agency
ORR proposed in the NPRM, at Sec. 410.1101, to codify the 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 (88 FR 68917 through 68919). The TVPRA at 8
U.S.C. 1232(b)(3) requires any department or agency of the Federal
Government that has an unaccompanied child in its custody to transfer
the custody of such unaccompanied child to HHS no later than 72 hours
after determining that the child is an unaccompanied child (unless
there are exceptional circumstances ).\77\ ORR proposed in the NPRM at
Sec. 410.1101(a) to accept referrals of unaccompanied children
transferred to its custody pursuant to the TVPRA (88 FR 68917).
Further, consistent with existing policy and in cooperation with
referring agencies, ORR proposed in the NPRM that it would accept such
referrals at any time of day, every day of the year. In addition, ORR
stated in the preamble to the NPRM that it may seek clarification about
the information provided by the referring agency. ORR notes that it may
seek such clarification as needed to determine appropriate placement
and how the referred individual meets the statutory definition of
unaccompanied child. ORR stated that in such instances, it shall notify
the referring agency and work with the referring agency, including by
requesting additional information, in accordance with statutory
timeframes for transferring unaccompanied children to ORR.
ORR proposed in the NPRM at Sec. 410.1101(b) and (c), 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 an unaccompanied child after
the determination that the child is an unaccompanied child who should
be transferred to ORR (88 FR 68917 through 68918). ORR proposed in the
NPRM at Sec. 410.1101(b) 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 stated in the NPRM that it believes that setting
a maximum timeframe 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 timeframe may be necessary in certain circumstances,
as discussed in the following paragraph. ORR further proposed in Sec.
410.1101(c) that it would be required 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).
As noted above, the TVPRA provides that referring Federal
departments and agencies must transfer custody of unaccompanied
children to HHS within 72 hours of determining the child is an
unaccompanied child unless there are exceptional circumstances. In
order to help facilitate this requirement in coordination with
referring departments and agencies, ORR proposed in the NPRM at Sec.
410.1101(b) and (c) internal timeframes for ORR to identify and notify
referring Federal departments and agencies of placements and to accept
transfer of custody from referring departments and agencies (88 FR
68917 through 68918). ORR also noted that it may, in certain
``exceptional circumstances,'' be unable to timely identify placements
for and help facilitate other departments' and agencies' timely
transfers of unaccompanied children to its custody. For purposes of
Sec. 410.1101(b) and (c), ORR proposed in the NPRM at Sec.
410.1101(d) 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 described these
exceptional circumstances consistent with those described in paragraph
12A of the FSA, even though, as ORR further explains below, it believes
that paragraph 12A primarily concerns responsibilities of the former
INS that now apply to immigration enforcement authorities and not ORR.
Some of these circumstances were also incorporated into the 2019 Final
Rule at Sec. 410.202. The proposed ``exceptional circumstances,'' for
ORR's purposes,
[[Page 34403]]
included 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 convicted of a crime, or is the subject of delinquency
proceedings, a delinquency charge, or has been adjudicated delinquent,
and additional information is essential in order to determine an
appropriate ORR placement. Notably, ORR stated in the preamble to the
proposed rule that the unavailability of documents will not necessarily
prevent the prompt transfer of a child to ORR. In addition, ORR
proposed in the NPRM that ``exceptional circumstances,'' for ORR's
purposes, would include an act or event that could not be reasonably
foreseen that prevents the placement 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 stated that it 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, ORR proposed in the NPRM
that these exceptional circumstances would modify the timeframes
applicable to ORR under proposed Sec. 410.1101(b) and (c).
In the NPRM, ORR noted 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
did not propose to include this as an exceptional circumstance for
purposes of Sec. 410.1101(b) and (c). ORR stated that because ORR is
able to serve unaccompanied children regardless of their primary
language through the use of interpreters, ORR did not view this as an
insurmountable impediment to the prompt placement of unaccompanied
children. In addition, ORR noted that 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 did not propose to include this as an exceptional circumstance for
purposes of Sec. 410.1101(b) and (c) because ORR did 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 referred readers to
its discussion of subpart H.
In the NPRM, ORR stated that it seeks to accept transfer of
unaccompanied children as quickly as possible after a placement has
been identified within this timeframe (88 FR 68918). 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. ORR stated in the NPRM that, 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 department or 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 the child is transferred
into ORR custody; (4) biographical and biometric information, 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,
or 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; \78\ 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 (88 FR 68918 through 68919).
Furthermore, the TVPRA places the responsibility for the transfer
of custody on referring Federal agencies.\79\ ORR custody begins when
it assumes physical custody from the referring agency. ORR proposed in
the NPRM at Sec. 410.1101(e) to codify this practice, which is also
consistent with current policies (88 FR 68919).
Note, ORR typically assumes physical custody when the unaccompanied
child arrives at an ORR care provider facility (usually via transport
by DHS). However, as described in current policies,\80\ under certain
extenuating and exceptional circumstances, ORR may assume physical
custody of an unaccompanied child, and thereby legal custody, to
facilitate release to a vetted sponsor without first placing the child
at an ORR care provider facility. In these cases, federal partner
agencies may notify ORR that a child will likely be determined to be
unaccompanied. ORR may request additional information from the
referring agency, or third-party partners, regarding any potential
sponsors for the child, to begin the sponsor vetting process.\81\
[[Page 34404]]
Comment: A few commenters generally expressed support for the
timeframes at proposed Sec. 410.1101(b) and (c). These commenters
supported the proposed timeframes for ORR to work with the referring
department or agency to accept custody of unaccompanied children
(within the 72 hour requirement applicable to the transferring agency
under the TVPRA) and identify an initial placement (no later than 48
hours) because the proposed timeframes ensure that unaccompanied
children are not held in detention in a restrictive setting at DHS or
other referring agencies and recognize that children are best cared for
by social welfare officers and not by immigration officials.
Response: ORR thanks commenters for their support of the proposed
timeframes at Sec. 410.1101(b) and (c). ORR notes that it is making a
clarifying edit to add the phrase ``in its custody'' to the first
sentence of paragraph (b) to clarify that, consistent with the TVPRA, a
referring Federal department or agency must transfer unaccompanied
children ``in its custody'' to ORR. This sentence now states, ``Upon
notification from any department or agency of the Federal Government
that a child in its custody is an unaccompanied child and therefore
must be transferred to ORR custody . . .''.
Comment: Two commenters made recommendations regarding the
notification and transfer process. One commenter recommended
``vigorous'' collaboration between ORR and other agencies and a clear
description of responsibilities of these agencies to ensure effective
implementation. Another commenter suggested that ORR consider codifying
potential border unifications of children. The commenter noted that
cases have recently been started while children are still in CBP
custody, and that co-location of ORR providers with CBP could allow
many parent and legal guardian sponsors to reunify with unaccompanied
children without transferring the child to an ORR shelter. The
commenter further stated this could also allow non-parent family
members who are traveling with the child (grandparents, aunts, etc.) to
submit the necessary documents to sponsor the child without ever
needing to be separated.
Response: ORR thanks the commenters for their recommendations. With
regard to the recommendation that there be ``vigorous'' collaboration
between ORR and other agencies and a clear description of
responsibilities to ensure effective implementation, ORR notes that ORR
does in fact collaborate closely with referring agencies, including
CBP, during the referral of unaccompanied children to ORR custody. For
example, as specifically set forth at Sec. 410.1101(c), as finalized
in this rule, ORR works with the referring department or agency to
accept transfer of custody of the unaccompanied child, consistent with
the timeframe set forth in the TVPRA.\82\ Furthermore, under existing
policy, and as reflected in the NPRM, to determine the appropriate
placement for an unaccompanied child, ORR requests and assesses
extensive background information on the unaccompanied child from the
referring agency, which ORR takes into consideration in placing a child
in an ORR care provider facility. In addition, as ORR stated in the
preamble to the NPRM, it may seek clarification about the information
provided by the referring agency as needed to determine appropriate
placement and how the referred individual meets the statutory
definition of unaccompanied child (88 FR 68917). 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.
ORR has added language to the regulatory text at Sec. 410.1101 to make
more explicit the nature of this coordination.
Moreover, DHS and ORR are continuing to work together to improve
information sharing and will collaborate on improved procedures for
making age determinations, as required by the TVPRA, and other
standards for determining whether an individual meets the statutory
definition of unaccompanied child. The Departments will update existing
memoranda of agreement, as appropriate. Seeking clarification will not
preclude transfer of individuals determined by the referring agency to
be unaccompanied children in accordance with statutory time frames,
except in exceptional circumstances.
In regard to the suggestion to codify potential border unifications
of unaccompanied children, ORR notes that this final rule codifies
existing interagency practices regarding notification and transfer of
unaccompanied children to ORR custody from other Federal agencies,
consistent with requirements set out in the TVPRA. ORR is also
currently operating an initiative to facilitate unification of
unaccompanied children with their sponsors while minimizing the child's
time in ORR custody. Because the standards codified in this final rule
accord with current practices and are consistent with the statutory
framework established by the HSA and TVPRA, ORR will finalize the
current sections as proposed. But ORR notes that it may in the future
consider alternative approaches, including approaches like the one
raised in the comment.
Comment: Two commenters made recommendations or raised questions to
clarify the language at proposed Sec. 410.1101(d), which addresses
exceptions to the timeframes at proposed Sec. 410.1101(b) and (c). One
commenter stated that proposed Sec. 410.1101(d) is ambiguous, noting
that while ``exceptional circumstances'' may be valid explanations for
slower-than-required placements, an exceptional circumstance should not
give license for ORR to place a child in care more slowly after a
referral. The commenter stated that ORR should move with all due haste
to place children in safe placements even in ``exceptional
circumstances'' and recommended that ORR refine the rule to clarify
that it always attempts to identify an appropriate placement within 48
hours but that such a timeframe may not be possible to achieve during
exceptional circumstances. This commenter also noted that the proposed
rule preamble states that ``the unavailability of documents will not
necessarily prevent the prompt transfer of a child to ORR.'' The
commenter recommended that this assurance be binding on ORR as it is
minimally burdensome and suggested that ORR add language to this effect
to any final rule.
One commenter asked whether Sec. 410.1101(d)(6) means that secure
and staff secure placements do not have to fall within the 48-hour
placement timeline.
Response: ORR notes that Sec. 410.1101(b) already provides that
ORR shall 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 within 48 hours of receiving notification, barring
exceptional circumstances'' (88 FR 68918). As a result, the rule
already contemplates that ORR seeks to identify a placement as quickly
as reasonably possible upon notification from a referring department or
agency that a child is an unaccompanied child, including in situations
where exceptional circumstances may apply. ORR does not view the
proposed exceptional circumstances as a license to act more slowly in
identifying an appropriate placement, but only as reasonable
explanations for why it may not be possible to meet the proposed
[[Page 34405]]
timeframes despite ORR's efforts to do so in those exceptional cases.
In addition, as one commenter noted, the proposed rule preamble
states, with respect to proposed Sec. 410.1101(d)(6), that ``the
unavailability of documents will not necessarily prevent the prompt
transfer of a child to ORR.'' In proposed Sec. 410.1101(d)(6)(ii), ORR
added language at the end of the provision to qualify when the
exceptional circumstance in paragraph (d)(6)(ii) would apply--that is,
when ``additional information is essential in order to determine an
appropriate ORR placement'' (88 FR 68918). To further clarify and
qualify the application of this exception, ORR noted in the NPRM
preamble that ``the unavailability of documents will not necessarily
prevent the prompt transfer of a child to ORR.'' This language was
intended to recognize the fact that in some cases, lack of appropriate
information or documentation may not prevent ORR from timely
identifying a placement or facilitating transfer of custody, and in
those cases, ORR must comply with the proposed timeframes at Sec.
410.1101(b) and (c). Thus, this language was intended to make clear
ORR's limited use of this exception. As ORR believes the intent is
sufficiently clear from the preamble text, ORR does not believe it is
necessary to add language to this effect to the final rule.
Given these clarifications, ORR emphasizes that proposed Sec.
410.1101(d)(6) does not mean that secure and heightened supervision
placements do not have to meet the timeframes established in this
section. First, as discussed above, this exception is not a license to
act more slowly in situations that may fall within this proposed
exception--ORR must still act expeditiously to identify placement
within 48 hours to the extent possible. Second, not all secure or
heightened supervision placements may meet the criteria set forth in
proposed Sec. 410.1101(d)(6)--for example, since as noted above and in
the proposed regulation, in order to qualify for the exception at Sec.
410.1101(d)(6)(ii), additional information must be essential in order
to determine an appropriate ORR placement, and where it is not
essential, as discussed above, the unavailability of documents will not
necessarily prevent the prompt identification of a placement.
Comment: A few commenters expressed concern about the proposed
timeframes at Sec. 410.1101(b) and (c), stating that speed should
never take priority over the safety and well-being of the children. One
commenter also expressed concern with ORR's ability to meet the
proposed timeframes.
Response: ORR does not agree that the proposed timeframes at Sec.
410.1101(b) and (c) will result in expediency taking priority over the
safety and well-being of unaccompanied children. As an initial matter,
ORR notes that the timelines described in this section are consistent
with statutory timelines provided in the TVPRA.\83\ In addition, ORR
believes that the proposed timeframes are reasonable and achievable
while transferring custody and identifying placements in the best
interests of the unaccompanied child. ORR notes that, in fiscal year
2023, ORR placed 99 percent of unaccompanied children in standard
programs within 24 hours of receiving notification of their referrals.
As noted in the NPRM, 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 involves a comprehensive review of information regarding an
unaccompanied child's background and needs before placement. As further
discussed in the NPRM, 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
proposed in the NPRM to codify at Sec. 410.1101(d) certain
``exceptional circumstances'' where it may be unable to timely identify
placements for or facilitate other agencies' timely transfers of
unaccompanied children to its custody in accordance with proposed Sec.
410.1101(b) and (c) (88 FR 68918). ORR believes that codification of
these exceptional circumstances will provide ORR the flexibility
necessary to ensure the safety and well-being of each child are fully
taken into account before a child is placed with a care provider
facility.
Comment: Many commenters expressed concerns regarding specific
exceptional circumstances set forth at proposed Sec. 410.1101(d).
One commenter stated that ORR inappropriately defined influx as an
``exceptional circumstance'' at proposed Sec. 410.1101(d)(2) that
allows ORR to relieve itself of the duty to receive a child from other
Federal agencies within 72 hours. The commenter stated that
promulgating this proposal would allow ORR to absolve itself of the
responsibility to comply with the terms of the FSA when it presents
challenges to the agency, directly risking the safety of unaccompanied
children. The commenter believed that ORR should be held to higher
scrutiny, not less, when its facilities are overwhelmed because it is
at these times that unaccompanied children are at heightened risk for
exploitation, abuse, and mismanagement. The commenter requested that
HHS make data available to the public regarding how frequently
``emergency'' or ``influx'' conditions are present.
A few commenters opposed the proposed exception at Sec.
410.1101(d)(3) because it includes language that is beyond what is
enumerated in the FSA. Specifically, the commenters noted that proposed
Sec. 410.1101(d)(3) states that an emergency would include ``a natural
disaster, such as an earthquake or hurricane, and other events, such as
facility fires or civil disturbances.'' The commenters believed that
the addition of ``and other events'' would create a catch-all for
anything ORR chooses to deem an emergency in the future and that
expanding the term would result in situations that are detrimental to
the health, safety and well-being of unaccompanied children.
Many commenters recommended deleting the exception at Sec.
410.1101(d)(6), stating that the ORR Policy Guide permits no exception
to the prompt transfer of children required by the TVPRA and that this
marks a weakening of ORR's current policy, under which, if exceptional
circumstances prevent the referring Federal agency from providing
complete documentation, the care provider is not permitted to deny or
delay admitting the child. These commenters also noted that this
exception is absent from the FSA list of exceptions, including
paragraph 12A. Commenters said that incomplete documentation about a
child should never permit ORR to leave children in DHS custody beyond
72 hours, given the clear dangers to children's health and safety.
A few commenters expressed concern with the exception provided
under proposed Sec. 410.1101(d)(7), which described an exception for
acts or events ``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.''
The commenter said that this language was overly broad and would allow
ORR to make placement decisions that would be inconsistent with the FSA
and noted that the proposed rule did not identify any specific
circumstances not already covered by the FSA's current exceptions that
required a delay in placement in the past.
Response: As discussed in the NPRM, ORR proposed in the NPRM at
Sec. 410.1101(b) and (c) internal
[[Page 34406]]
timeframes for ORR to identify and notify referring Federal agencies of
placements and to accept transfer of custody from referring agencies,
but noted that in certain ``exceptional circumstances'' additional time
may be needed to identify safe and appropriate placements that comport
with the best interests of the unaccompanied child or to help
facilitate other agencies' transfers of unaccompanied children to ORR
custody (88 FR 68917 through 68918). Thus, for purposes of Sec.
410.1101(b) and (c), ORR proposed in the NPRM at Sec. 410.1101(d)
circumstances which may prevent ORR from timely identifying a placement
for an unaccompanied child or accepting transfer of custody (88 FR
68918). ORR intended that all of the exceptional circumstances at
proposed Sec. 410.1101(d) serve the purpose of protecting the health
and safety of unaccompanied children, as the application of such
exceptions will provide ORR the time, if necessary, in certain
circumstances to ensure appropriate and safe placement.
With respect to the comment that the proposed exception at Sec.
410.1101(d)(2) would allow ORR to absolve itself of the responsibility
to comply with the terms of the FSA when it presents challenges to the
agency, risking the safety of unaccompanied children, ORR notes that
paragraph 12A of the FSA specifically provides an exception to the
timeframe for placement in a licensed program in the event of an influx
of unaccompanied children into the United States, stating that in those
situations, children must be placed into such programs as expeditiously
as possible. Thus, ORR believes that the exception at proposed Sec.
410.1101(d)(2) is consistent with the FSA. Moreover, as noted at
subpart I, the definition of influx in this rule sets a substantially
higher threshold for when circumstances can be considered an influx
than is required under the FSA. ORR emphasizes that in every case, ORR
seeks to identify a placement and accept transfer of custody of an
unaccompanied child as quickly as possible upon notification from a
referring Federal department or agency that a child is an unaccompanied
child, including in situations where exceptional circumstances may
apply. As discussed previously, the proposed exceptional circumstances
were not intended as a license to act more slowly in identifying an
appropriate placement, but rather as circumstances in which it may not
be possible to meet the proposed timeframes despite ORR's best efforts
to do so. Further, because the exception at Sec. 410.1102(d)(2) would
provide ORR with additional time, if necessary, to determine a safe and
appropriate placement for an unaccompanied child, ORR believes that
this exception helps to protect and serve the best interests of such
children rather than risk their safety. ORR notes that it makes data
available to the public regarding the use of EIFs.\84\
Furthermore, ORR disagrees with the comment that the proposed
exception at Sec. 410.1101(d)(3), specifically the addition of the
phrase ``and other events,'' would create a catch-all for anything ORR
chooses to deem an emergency in the future and expand the term in ways
that are detrimental to the health, safety, and well-being of
unaccompanied children. First, ORR believes that the definition of
``emergency'' is consistent with the FSA. ORR notes that the definition
of ``emergency'' in the FSA is in fact broad, defining ``emergency'' as
``any act or event that prevents the placement of minors pursuant to
paragraph 19 within the timeframe provided.'' While the FSA states that
``[s]uch emergencies include natural disasters . . ., facility fires,
civil disturbances, and medical emergencies,'' ORR views these as
examples of what would qualify as an ``emergency'' under the broad
definition that precedes this list. As noted previously, because the
purpose of this exception is to provide ORR with additional time, if
necessary, to determine a safe and appropriate placement for an
unaccompanied child, we believe that this exception would help to
protect and serve the best interests of such children rather than risk
their safety. To address commenters' concern with reference to ``other
events'' and further clarify that the events listed are examples of the
types of emergencies that would qualify as exceptional circumstances,
ORR is finalizing revisions to Sec. 410.1101(d)(3) to list relevant
examples and delete reference to ``and other events.''
ORR also disagrees with the commenters that recommended deleting
the exception at Sec. 410.1101(d)(6) and stated that it is
inconsistent with the FSA and the ORR Policy Guide. ORR notes that the
FSA includes an exception to the placement timeframes at paragraph 12A
for situations where a child meets the criteria for placement in a
secure facility under paragraph 21. The exception at proposed Sec.
410.1101(d)(6) does not delineate all five of the potential situations
set forth at paragraph 21 of the FSA (i.e., the unaccompanied child (A)
``has been charged with, is chargeable, or has been convicted of a
crime, or is the subject of delinquency proceedings, has been
adjudicated delinquent, or is chargeable with a delinquent act''--
subject to certain exceptions; (B) ``has committed, or has made
credible threats to commit, a violent or malicious act (whether
directed at himself or others) while in INS legal custody or while in
the presence of an INS officer;'' (C) ``has engaged, while in a
licensed program, in conduct that has proven to be unacceptably
disruptive of the normal functioning of the licensed program in which
he or she has been placed and removal is necessary to ensure the
welfare of the minor or others, as determined by the staff of the
licensed program (Examples: drug or alcohol abuse, stealing, fighting,
intimidation of others, etc. This list is not exhaustive.);'' (D) is an
escape risk; or (E) ``must be held in a secure facility for his or her
own safety, such as when the INS has reason to believe that a smuggler
would abduct or coerce a particular minor to secure payment of
smuggling fees.'').\85\ But ORR believes the five potential situations
described at paragraph 21 are described by sub-paragraphs (d)(i) and
(d)(ii)--i.e., all the potential circumstances listed in FSA paragraph
21 essentially concern whether a child poses a danger to self or
others, or has been charged with or convicted of a crime or is the
subject of delinquency charges or proceedings. But further, by omitting
some of the situations set forth in paragraph 21 of the FSA that
justify secure placement and by adding the requirement at proposed
Sec. 410.1101(d)(6)(ii) that ``additional information'' must be
``essential in order to determine an appropriate placement,'' ORR is
narrowing the application of this exception in a manner it believes
adequately implements FSA paragraph 21. In addition, ORR stated in the
NPRM preamble that ``the unavailability of documents will not
necessarily prevent the prompt transfer of a child to ORR'' (88 FR
68918). This language was intended to recognize that lack of
appropriate information or documentation may not always be an
appropriate justification for delaying timely identification of
placement or acceptance of transfer of custody. As such, ORR further
limited the exception at proposed Sec. 410.1101(d)(6)(ii) to those
situations where additional documentation is absolutely necessary to
appropriately place an unaccompanied child, acknowledging that timely
transfer and placement would still take place whenever possible even in
the absence of certain information or documentation. Given these
additional restrictions on the use
[[Page 34407]]
of proposed Sec. 410.1101(d)(6) as an exceptional circumstance, we
believe this provision reasonably ensures ORR's timely acceptance of
transfer and identification of placement of unaccompanied children
whenever possible, even in the absence of documentation.
In addition, ORR disagrees with the comment that proposed Sec.
410.1101(d)(6) should be deleted because it is inconsistent with and
weakens current ORR policies under which a care provider may not deny
or delay admitting the unaccompanied child if exceptional circumstances
prevent the referring Federal agency from providing complete
documentation. ORR notes that this provision of the ORR Policy Guide
does not relate to the required timeframes applicable to ORR at Sec.
410.1101(b) and (c) or the exceptions to such timeframes described at
Sec. 410.1101(d)(6). Paragraphs (b) and (c) of Sec. 410.1101 set
forth the timeframes within which ORR must identify and notify the
referring Federal agency of appropriate placement and work with the
referring Federal agency to accept transfer of custody, and Sec.
410.1101(d) provides exceptions applicable to ORR's obligation to meet
these timeframes (88 FR 68917 through 68918). By contrast, the policy
identified by the commenter sets forth obligations applicable to the
care provider facility--specifically, restrictions on the care provider
facility's ability to deny or delay admitting a child after transfer of
custody to ORR has occurred and the care provider facility has been
identified as an appropriate placement. The ``exceptional
circumstances'' referred to in that provision apply to the referring
Federal agency and relate to its ability to provide complete
documentation; this term does not refer to the exceptional
circumstances that apply to ORR's ability to meet timeframes under
Sec. 410.1101(b) and (c).
With respect to Sec. 410.1101(d)(7), after consideration of
comments received on this provision, ORR is removing this exception
from the regulation text in this final rule. To date, ORR has not
identified any specific circumstances not already covered by Sec.
410.1101(d)(1) through (d)(6) that have required a delay in placement,
and thus ORR believes it is not necessary to include this exception at
this time.
Comment: A few commenters recommended that the final rule
reintroduce a State licensing requirement in every provision of the
proposed rule where the FSA, specifically at paragraph 19, requires
State-licensed placement.
Response: ORR refers the commenters to its discussion of State
licensing at the preamble text for Sec. 410.1302. The definition of
``standard program'' in this final rule is broader in scope than the
FSA definition of ``licensed placement'' to account for changed
circumstances since the FSA went into effect, where certain States have
made licensure unavailable to ORR care provider facilities because they
care for unaccompanied children. Having said that, at Sec. 410.1302(a)
of this final rule, if a standard program is in a State that does not
license care provider facilities because they serve unaccompanied
children, the standard program must still meet the State licensing
requirements that would apply if the State allowed for licensure.
Similarly, ORR is revising Sec. 410.1302(b) to expressly provide that
all standard programs, whether or not licensed, must comply with all
State child welfare laws and regulations and all State and local
building, fire, health, and safety codes even if licensure is
unavailable in their State to care provider facilities providing care
and services to unaccompanied children. Similarly, in this final rule,
ORR has revised Sec. 410.1101(b) to state that ORR will identify a
standard program placement for an unaccompanied child, unless one of
the listed exceptions in Sec. 410.1101 applies.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1101 with the following modifications: first, to
revise Sec. 410.1101(b) to (1) add the phrase ``in its custody'' to
the first sentence of paragraph (b) to clarify that, under the TVPRA, a
referring Federal department or agency must transfer unaccompanied
children in its custody to ORR, and (2) state that ORR will identify a
standard program placement for an unaccompanied child, unless one of
the listed exceptions in Sec. 410.1104 applies; second, to make a
clarifying revision to the Sec. 410.1101(d) introductory text to add
the word ``timely'' before ``accept'' so that the word ``timely'' is
read to modify both ``identify a placement'' and ``accept transfer of
custody''; third, to amend Sec. 410.1101(d)(3) to state, ``An
emergency, including a natural disaster such as an earthquake or
hurricane, a facility fire, or a civil disturbance;'' fourth, to remove
the exceptional circumstance at Sec. 410.1101(d)(7); and fifth, to add
an additional sentence to Sec. 410.1101(b) stating, ``ORR may seek
clarification about the information provided by the referring agency as
needed. 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.''
Section 410.1102 Care Provider Facility Types
Under Sec. 410.1102, ORR described the types of care provider
facilities in which unaccompanied children may be placed (88 FR 68919
through 68920). 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.\86\
Specifically, this section proposed that ORR may place an unaccompanied
child in a care provider facility 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 proposed in the NPRM that it may also place
unaccompanied children in OON placements under certain, limited
circumstances. OON placements may include 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). For purposes of this final rule, ORR notes as a general
matter that it may place an unaccompanied child in an OON placement if
it determines that a child has a specific need that cannot be met
within ORR's network of facilities, where no in-network care provider
equipped to meet the child's needs has the capacity to accept a new
placement, or where transfer to a less restrictive facility is
warranted and ORR is unable to place the child in a less restrictive
in-network facility. ORR proposed in the NPRM to make such placements
taking into account the considerations and criteria set forth in
Sec. Sec. 410.1103 through 410.1109 and Sec. 410.1901, as further
discussed below. In addition, in times of influx or emergency, as
further discussed in subpart I (Emergency and Influx Operations), ORR
proposed in the NPRM that it 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
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
[[Page 34408]]
States, ORR must place unaccompanied children into licensed programs as
expeditiously as possible.\87\
Consistent with proposed Sec. 410.1102, ORR stated in the preamble
to the NPRM that it 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 (88 FR 68919). Definitions
of ``ORR long-term home care'' and ``ORR transitional home care'' were
proposed in Sec. 410.1001, which ORR stated 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. ORR stated in the preamble of the NPRM that
where possible, it 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 noted 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. ORR stated that 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, as discussed in the preamble to the proposed rule, ORR was
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 (88 FR 68919 through
68920). ORR stated that this is in line with a vision of moving towards
a framework of community-based care as described in the NPRM and in the
following paragraphs. ORR stated that it believes such a framework
would be consistent with the language of the proposed rule and that ORR
would be able to implement it in a manner consistent with the proposed
rule.
ORR stated in the preamble to the NPRM that if it were to finalize
the community-based care model, references to ORR long-term home care
and ORR transitional home care 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 (88 FR 68919). ORR stated that the definition of
``community-based care'' encompasses the term ``traditional foster
care'' that is codified at existing Sec. 411.5.
For a more detailed discussion of ORR's proposed community-based
care model, ORR refers readers to the NPRM preamble (88 FR 68919
through 68920). ORR welcomed public comment on its vision of community-
based care, its inclusion as a care provider facility type 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 NPRM.
Comment: Many commenters supported the proposed development and
implementation of a community-based care model. A number of commenters
stated that they supported including the community-based care model in
the final rule because such a model aligns with Federal and State child
welfare policies, which recognize the importance of allowing
unaccompanied children to experience normal childhood freedoms and
opportunities to the greatest extent possible. Some commenters
specifically expressed support for the implementation of the Reasonable
and Prudent Parent standard, the provision of ``a continuum of care,''
and the integration of unaccompanied children with their local
communities and schools. Some commenters also noted that expanding care
to include small community-based group homes and semi-independent
living for older children will allow ORR to reduce reliance on
congregate care settings, help unaccompanied children develop life
skills, and offer both potential cost-savings and improvements in the
quality-of-care children receive. Many commenters offered
recommendations related to the development and implementation of a
community-based care model. For example, commenters recommended that
ORR develop timelines and a transition plan as well as additional
operational details; ensure placements are smaller, home-like settings
that allow children to have private spaces and input into their own
schedules and participation in community; prioritize developing family-
based and/or community-based placements that can accommodate the needs
of children with disabilities; and ensure that community-based care
programs have the proper amount of resources and support to provide
adequate care for unaccompanied children and to facilitate their
integration into the community.
Response: ORR thanks commenters for the many comments and
recommendations regarding ORR's planned efforts toward the development
of a community-based care model and agrees with the many potential
benefits of such a model cited by commenters. So that ORR may more
fully consider the comments and recommendations it received, ORR is not
finalizing the community-based care model in this final rule but will
consider all comments and recommendations received as it continues to
transition to such a model.
Comment: A few commenters expressed concerns with the use of large
congregate care facilities, recommending that that congregate care
facilities be limited to 25 or fewer beds and that ORR prioritize
placements in the least restrictive settings possible, including family
or small community-based settings. One of these commenters also
recommended limiting placement in congregate facilities unless the
unaccompanied child has specific therapeutic needs where treatment
cannot be provided in a home or community-based environment. This
commenter also recommended that if family-based placement is
unavailable and congregate placement is necessary, ORR should cease
placing unaccompanied children in unlicensed facilities.
Response: ORR believes that where possible, based on an
unaccompanied child's age, individualized needs, and circumstances, as
well as a care provider facility's capacity, it should prioritize
placing unaccompanied children in transitional and long-term home care
settings while they are awaiting release to sponsors, so as to limit
the time spent in large congregate care facilities. Currently, under
existing policy, a child is a candidate for long-term home care if the
child is expected to have a protracted stay in ORR and is under the age
of 17 and 6 months at the time of placement, unless waived by both the
referring and receiving Federal Field Specialist (FFS), who will take
into account the best interests of the child.
As ORR explained in the NPRM, however, 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
[[Page 34409]]
of additional programs that would be required to care for them in home
care settings or small-scale shelters of 25 children or less (88 FR
68919). As ORR noted in the NPRM, given this reality, care provider
facilities that accommodate more than 25 children continue to serve a
vital role in meeting this need. ORR notes that such facilities are
required to be State-licensed, or if they are located in States that
will not license care provider facilities housing unaccompanied
children under this rule, ORR still requires them to follow State
licensing requirements. In addition, all ORR standard programs must
follow the minimum standards and provide the required services
established at subpart D.
In response to the request that ORR cease placing unaccompanied
children in unlicensed facilities, ORR notes that pursuant to Sec.
410.1001, as finalized in this rule, standard programs must be licensed
by an appropriate State agency, or meet the requirements of State
licensing if they are in a State that does not allow State licensing of
programs that provide services to unaccompanied children. As provided
in Sec. 410.1104, ORR will place unaccompanied children in standard
programs that are not restrictive placements, except where a child
meets criteria for restrictive placement, or in the event of an influx
or emergency in which case ORR must make all reasonable efforts to
place children in standard programs as expeditiously as possible. As
provided in Sec. 410.1102, in times of influx or emergency, ORR may
place unaccompanied children in emergency or influx facilities that may
not meet the standards of a standard program. In situations where
unaccompanied children are placed in programs that are not standard
programs, ORR implements other safeguards to protect their safety and
well-being. Specifically, ORR imposes minimum standards for such
emergency and influx facilities at subpart I (as finalized in this
rule) to ensure the safety and well-being of children placed in such
facilities. In the case of secure facilities, which are not standard
programs, under this final rule, secure facilities are required to meet
the minimum standards under Sec. 410.1302.
Comment: Many commenters expressed concern that the NPRM does not
specify the circumstances in which unaccompanied children would be
placed in OON placements and requested additional clarification. These
commenters stated that while proposed Sec. 410.1105(c)(2) provides
criteria for OON RTC placements, the proposed rule does not provide
criteria for other OON placements. One commenter specifically cautioned
against overreliance on OON placements, including OON RTCs or OON
placements that would meet the definition of heightened supervision
facilities as defined in proposed Sec. 410.1001. This commenter noted
that children placed in OON placements tend to face more challenges
than children placed in-network that negatively impact their well-being
and legal case. For instance, according to the commenter, staff at OON
placements usually lack experience serving migrant populations or
unaccompanied children, and children in OON placements frequently face
additional language access barriers, which can delay their access to
critical information and services. Additionally, the commenter stated
that OON placements are diffusely located, often far from any legal
service provider, making children's access to in-person legal meetings
infrequent or entirely infeasible. In addition, some commenters noted
that in the past, some unaccompanied children placed out-of-network
have not received minimum required services, such as educational
services and outdoor recreation, and that care and treatment provided
by OON placements can vary widely. These commenters emphasized that
thorough vetting and independent oversight of OON placements is
critical and appreciated the proposed rule's reference to consulting
with non-governmental stakeholders such as protection and advocacy
(P&A) agencies to assess OON placements. They welcomed further
discussion with ORR about policies and procedures to monitor OON
placements. One commenter expressed the view that it is not feasible
for ORR to sufficiently vet OON RTCs for placement due to the
overwhelming number of unaccompanied children.
Commenters also made several recommendations for the final rule.
First, commenters recommended that, to ensure unaccompanied children
placed in OON placements have the same rights and protections as other
unaccompanied children, the final rule should state that children may
be placed in an OON placement only if it is the least restrictive, most
integrated placement appropriate, that OON placements must be State-
licensed to care for dependent children, and that children in OON
placements must receive all the minimum services for standard programs,
including those specified in proposed Sec. 410.1302. Commenters
further recommended that a child not be transferred to a restrictive
OON placement unless they meet the criteria for transfer to the same
level of restrictive placement within the ORR network. In addition, a
few commenters recommended that the final rule state that any secure
OON placement must satisfy the secure placement criteria in paragraph
21 of the FSA. Finally, one commenter, while understanding that it
would not be feasible for all OON placements to be State-licensed,
recommended that ORR include in the final rule that OON placements meet
the other requirements for licensed facilities outlined in the FSA.
Response: Section 410.1102, as finalized in this rule, provides
that ORR may place unaccompanied children in OON placements under
certain, limited circumstances. Consistent with current policies, such
circumstances include where ORR determines that a child has a specific
need that cannot be met within the ORR network of care provider
facilities, where no in-network care provider facility equipped to meet
the child's needs has the capacity to accept a new placement, or where
transfer to a less restrictive facility is warranted and ORR is unable
to place the child in a less restrictive in-network care provider
facility. With respect to OON RTCs in particular, as proposed, under
Sec. 410.1105(c)(2) ORR will 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. Consistent with Sec. 410.1103, ORR will only
place unaccompanied children in an OON placement if it is the least
restrictive placement (consistent with the FSA) and in the child's best
interest (consistent with the TVPRA), and ORR is revising Sec.
410.1102 to clarify this.
To clarify its intent under this final rule, ORR notes that it
makes every effort to place children within the ORR-funded care
provider facility network. However, there may be instances when ORR
determines there is no in-network care provider facility available to
provide specialized services to meet an unaccompanied child's
identified needs, or no in-network care provider facility equipped to
meet those needs with the capacity to accept a new placement. In those
cases, ORR will consider an OON placement.
[[Page 34410]]
ORR disagrees with one commenter's assertion that it is not
feasible to appropriately vet OON RTCs or any OON placement. Under
current policies, which ORR has incorporated in the final rule at Sec.
410.1001, OON providers must be licensed by State licensing authorities
and vetted prior to placement to ensure the provider is in good
standing and is complying with all applicable State welfare laws and
regulations and all State and local building, fire, health, and safety
codes. Further, as noted in the NPRM, ORR may confer with other Federal
agencies and non-governmental stakeholders, such as the P&A systems,
when vetting OON RTCs (88 FR 68925). In addition, an ORR FFS and the
FFS Supervisor must approve any OON placement as the least restrictive
setting appropriate for the child's needs.
In response to commenters' concerns regarding the additional
challenges faced by children placed in OON programs, and that
unaccompanied children placed in OON facilities receive appropriate
services to meet their needs, ORR notes that the case manager who is
assigned to a child placed in an OON facility \88\ will administer the
case management services and maintain weekly contact with the child and
the child's OON provider to ensure that both the case manager and ORR
FFS are receiving weekly updates on the child's progress. Thus, the
case manager would monitor the unaccompanied child's care and ensure
the unaccompanied child is receiving services. The case manager also
provides updates to the child's attorney of record.
ORR concurs with the commenters that any OON secure placement would
need to satisfy the secure placement criteria in paragraph 21 of the
FSA, which are implemented at Sec. 410.1105. In addition, ORR concurs
that children may not be placed in an OON restrictive facility unless
they meet the criteria for placement or transfer to the same level of
restrictive placement within ORR's network. ORR notes that Sec.
410.1105(c)(2) already states that the criteria for placement in or
transfer to RTCs within the ORR network apply to placement or transfer
to OON RTCs. ORR refers readers to the section of this final rule
addressing Sec. 410.1105 for further information regarding criteria
for placement in restrictive facilities.
As clarified in the preamble section discussing Sec. 410.1000,
part 410 will not govern or describe the entire program. Where the
regulations contain less detail, subregulatory guidance such as the ORR
Policy Guide, Field Guidance, manuals describing compliance with ORR
policies and procedures, and other communications from ORR to care
provider facilities will provide specific guidance on relevant
requirements in a manner consistent with this final rule. ORR is not
proposing to codify all of its existing requirements regarding OON
placements in this final rule due to the complexity and quantity of
those existing requirements, and because of its intention to
iteratively refine and update those requirements in keeping with best
practices and allow continued responsiveness to the needs of
unaccompanied children and care provider facilities.
Comment: A few commenters expressed concern with use of foster care
or group homes. These commenters stated that the foster system in the
United States is significantly fragmented, contributing to a prevalence
of trafficking activities. One commenter noted that addressing this
issue is crucial for enhancing the effectiveness and safety of the
foster care system and should be addressed before placing unaccompanied
children there. Another commenter expressed concern that ORR's proposed
placement provisions would allow unaccompanied children to be placed
into foster care facilities that may not meet the standards of a
standard program.
Response: ORR notes that ORR only uses licensed foster care
programs, which must meet the requirements applicable to a standard
program under this final rule, including those specified under subpart
D. Thus, ORR has in place standards and requirements to protect the
children's safety and well-being.
Comment: A few commenters stated that the final rule must specify
that until an unaccompanied child is placed in a program licensed by
the State to provide services for dependent children, the child ``shall
be separated from delinquent offenders'' (except as provided in
paragraph 21 of the FSA). The commenters noted that paragraph 12A of
the FSA provides that ``minors shall be separated from delinquent
offenders,'' but that this protection does not appear in the NPRM.
Commenters disagreed with ORR's statement in the NPRM (88 FR 68922)
that this provision is not applicable because it relates to the initial
apprehension of unaccompanied children (before ORR involvement) and
stated that paragraph 12A of the FSA is not limited to initial
apprehension. Rather, according to the commenters, paragraph 12A covers
situations where ``there is no one to whom the INS may release the
minor pursuant to paragraph 14, and no appropriate licensed program is
``immediately available for placement pursuant to paragraph 19.''
Commenters noted that the definition of licensed program in paragraph 6
of the FSA specifies that a licensed program must be ``licensed by an
appropriate State agency to provide residential, group, or foster care
services for dependent children'' and that these two paragraphs of the
FSA work together: prior to licensed placement, unaccompanied children
must be separated from minors adjudicated delinquent; after licensed
placement, children must be placed in a facility licensed by the State
to serve dependent (rather than delinquent) children. The commenters
expressed concern that the proposed rule permits children to be placed
in ``standard programs'' that lack State licensure as well as in
unlicensed emergency and influx facilities, yet it offers no assurances
that unaccompanied children in these placements will be treated as
dependent minors. The commenter further noted that the proposed rule
did not specify any required standards for OON facilities or any
placement criteria for OON non-RTCs and stated that this would permit
ORR to place children in OON facilities that are licensed for minors
adjudicated delinquent, in violation of the FSA.
Response: As an initial matter, ORR has revised the final rule at
Sec. 410.1001 to require that OON placements be licensed by an
appropriate State agency. OON placements are vetted prior to ORR
placing a child there to ensure the program is in good standing with
State licensing authorities and is complying with all applicable State
welfare laws and regulations and State and local building, fire,
health, and safety codes. For further discussion of standards and
placement criteria for OON placements, ORR refers readers to a response
addressing OON placements in this preamble section. ORR also revised
the final rule at Sec. 410.1302 to require that standard programs be
State licensed by an appropriate State agency to provide residential,
group, or transitional or long-term home care services for dependent
children or meet the requirements of State licensing that would
otherwise be applicable if it is in a State that does not allow State
licensing of programs providing care and services to unaccompanied
children. An extensive discussion of those revisions is provided in the
preamble related to Sec. 410.1302.
ORR further notes that, as discussed in the NPRM, the plain
language of paragraph 12A of the FSA applies to DHS placements, not ORR
placements. Paragraph 12A states that ``[f]ollowing arrest'' of an
unaccompanied child if there is ``no appropriate licensed
[[Page 34411]]
program . . . immediately available'' the INS may place an
unaccompanied child in an ``INS detention facility, or other INS-
contracted facility, having separate accommodations for minors, or a
State or county juvenile detention facility,'' however unaccompanied
children ``shall be separated from delinquent offenders'' in those
facilities. Paragraph 12A then requires the INS to transfer
unaccompanied children from those initial placements within three or
five days, depending on the circumstances, to a licensed placement
under paragraph 19 of the FSA. Therefore, the language of paragraph 12A
regarding ``separation from delinquent offenders'' is most fairly read
to apply to DHS's initial placements after arrest. This interpretation
of the FSA is consistent with the current statutory framework, where
the referring Federal department or Federal agency (usually DHS) is
required to transfer an unaccompanied child in its custody to ORR
within 72 hours of determining the child is an unaccompanied child,
absent exceptional circumstances. Once a child is transferred to ORR's
custody, ORR will place the child consistent with this part. In any
event, practically speaking, unaccompanied children are not placed with
``delinquent offenders.'' FSA paragraph 12A refers to ``delinquent
offenders'' as juveniles who are detained in a ``State or county
juvenile detention facility,'' presumably following arrest or
conviction of a crime. Because ORR provides care and custody only for
unaccompanied children, the only possible scenario in which an
unaccompanied child could be placed with ``delinquent offenders'' is
possibly in the context of OON secure placements. Accordingly, ORR is
updating Sec. 410.1102 to state that unaccompanied children shall be
separated from delinquent offenders in OON placements (except those
unaccompanied children who meet the requirements for a secure placement
pursuant to Sec. 410.1105).
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1102 as proposed, with the following
modifications. First, ORR is revising Sec. 410.1102 to state that ORR
may place unaccompanied children in OON placements if ORR determines
that a child has a specific need that cannot be met within the ORR
network of care provider facilities, where no in-network care provider
facility equipped to meet the child's needs has the capacity to accept
a new placement, or where transfer to a less restrictive facility is
warranted and ORR is unable to place the child in a less restrictive
in-network care provider facility. Second, ORR is revising Sec.
410.1102 to state that ORR may place unaccompanied children in OON
placements, subject to Sec. 410.1103, to clarify that ORR will only
place unaccompanied children in an OON placement if it is the least
restrictive placement (consistent with the FSA) and in the child's best
interest. Third, ORR is revising Sec. 410.1102 to state that
unaccompanied children shall be separated from delinquent offenders in
OON placements (except those unaccompanied children who meet the
requirements for a secure placement pursuant to Sec. 410.1105).
Finally, at this time, ORR is not finalizing a community-based care
model as described in the NPRM in order to allow additional time to
consider the comments and recommendations received on a possible future
community-based care model.
Section 410.1103 Considerations Generally Applicable to the Placement
of an Unaccompanied Child
ORR proposed in the NPRM at Sec. 410.1103 considerations generally
applicable to the placement of unaccompanied children consistent with
the TVPRA, 8 U.S.C. 1232(c)(2)(A), and the FSA (88 FR 68920 through
68922). The TVPRA mandates that ORR place each unaccompanied child in
the least restrictive setting that is in the best interest of the
unaccompanied child and specifies that HHS may consider 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, ORR proposed in the NPRM at
Sec. 410.1103(a) that it 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.
As discussed in the NPRM, 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 (88 FR 68920). ORR also
noted 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 stated that it 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 noted that the
factors and considerations in Sec. 410.1103(b) and Sec. 410.1105 also
are evaluated in determining the best interest of the child for
purposes of placement.
ORR also proposed to use the term ``individualized needs,'' in
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. ORR explained that the term ``special needs'' may imply
that, in determining placement, ORR considers only a limited range of
needs that fall within a special category (88 FR 68920 through 68921).
Instead, in assessing the appropriate placement of an unaccompanied
child, ORR stated that it 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, ORR noted that 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
[[Page 34412]]
that, in determining placement of an unaccompanied child, ORR only
takes into account a limited range of needs that fall within a special
category, ORR proposed in the NPRM the broader term ``individualized
needs'' for purposes of Sec. 410.1103(a).
ORR further noted that as used in the FSA, including the
considerations required at paragraph 11, ``special needs'' is not
synonymous with disability or disability-related needs. As explained in
the NPRM, the term ``special needs'' has no clear legal definition; 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 was concerned
about perpetuating language that many individuals now find
stigmatizing. For these reasons, as discussed above at Sec. 410.1001,
ORR invited comments concerning the continued use of the terms
``special needs minor'' or ``special needs unaccompanied child'' but
included these terms in the NPRM in order to ensure consistency with
the FSA.
Under Sec. 410.1103(b), consistent with existing policy and with
certain requirements under the TVPRA,\89\ ORR proposed in the NPRM 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 or others, runaway risk, trafficking in persons or
other safety concerns, age, gender, LGBTQI+ status or identity,\90\
disability, any specialized services or treatment required or requested
by the unaccompanied child, criminal background, location of a
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 (88 FR 68921). ORR
stated that it 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.
In addition, with respect to the consideration of whether any
specialized services or treatments are required, ORR explained in the
NPRM that it is aware of the importance of ascertaining an
unaccompanied child's health status upon entering ORR care in order to
ensure the most appropriate placement, which includes the following:
the need for proximity to medical specialists; the child's reproductive
health status, including information relating to pregnancy or post-
partum status, use of birth control, 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 (88 FR 68921). ORR relies on
such information provided from referring Federal agencies to make
appropriate placements. For further discussion of proposed policies
related to access to medical care, ORR referred readers to Sec.
410.1307(b). ORR stated that 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 Sec. 410.1103(c), ORR proposed in the NPRM that it 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 (88 FR 68921). In
addition, ORR proposed in the NPRM that it may obtain any relevant
records from local, State, and Federal agencies regarding an
unaccompanied child to inform placement decisions. ORR explained that
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.\91\ ORR
proposed in the NPRM to add these provisions to the regulations to
clarify the broad range of information it may utilize in making
placement determinations.
The TVPRA requires that the placement of an unaccompanied child in
a secure facility be reviewed at a minimum on a monthly basis to
determine if such placement remains warranted.\92\ In the NPRM, ORR
noted that it exceeds the statutory requirement here because under its
current policies all restrictive placements, including secure
placements, must be reviewed at least every 30 days (88 FR 68921). ORR
proposed in the NPRM at Sec. 410.1103(d) to codify the practice of
reviewing restrictive placements at least every 30 days to determine if
such placements remain warranted.
Additionally, ORR proposed in the NPRM at Sec. 410.1103(e) 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 (88 FR 68921). ORR stated that it
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. ORR
further stated that this requirement reflects the requirement at
paragraph 6 of the FSA. ORR noted that in making any placement
decision, it also would take into account the considerations set forth
in Sec. 410.1103(a) and (b).
Finally, ORR proposed in the NPRM 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 (88 FR 68921 through 68922). ORR explained that 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,
ORR proposed in the NPRM under Sec. 410.1103(f), that 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
proposed in the NPRM that if a care provider facility wishes to deny a
placement, it must make a written request to ORR providing the
individualized reasons for the denial. ORR proposed in the NPRM that
any such request must be approved by ORR before the care provider
facility may deny a placement. In addition, ORR proposed in the NPRM at
Sec. 410.1103(f) that it 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.
[[Page 34413]]
ORR did not propose 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 noted in the NPRM 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 explained that it is not involved in the
apprehension or encounter of unaccompanied children or their immediate
detention following apprehension or encounter and thus ORR proposed in
the NPRM to omit this provision from this regulation. Having said that,
ORR proposed in the NPRM 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 subpart D (Minimum Standards and
Required Services) and subpart I (Emergency and Influx Operations) (88
FR 68922).
The 2019 Final Rule at Sec. 410.201(e) 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 where such child 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
proposed in the NPRM omitting this provision from these regulations (88
FR 68922). This provision was also based on paragraph 12A of the FSA,
which concerns detention of unaccompanied children 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 Sec. 410.1101(b),
ORR proposed in the NPRM to 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 Sec. 410.1104), in the event of an emergency or
influx of unaccompanied children into the United States, ORR proposed
in the NPRM to place unaccompanied children as expeditiously as
possible in accordance with subpart I (Emergency and Influx
Operations).
Comment: Many commenters supported the requirement at proposed
Sec. 410.1103(a) that ORR 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.
A few commenters specifically commended ORR for the proposal to codify
the requirement that care for unaccompanied children be tailored to
their individualized needs, emphasizing that this is a significant step
that helps ensure the welfare and well-being of unaccompanied children,
protects them from potential exploitation, and aligns with recognized
child welfare best practices. These commenters applauded ORR for taking
this crucial step to prioritize the best interests of the child.
Some of these commenters also provided recommendations to further
strengthen or clarify the proposed provisions at Sec. 410.1103(a). One
commenter recommended that ORR strengthen language regarding the use of
least restrictive settings by stating that unaccompanied children
should be placed in the least restrictive setting that is appropriate
for their needs and safety, which could include foster care, family
homes, or other community-based settings, but that institutional
settings should be the last possible option and not considered unless
absolutely necessary. One commenter stated that if family-based
placement is unavailable and congregate placement is necessary, ORR
shelter facilities should require review by legal advocates (lawyers,
judges, others) to ensure that the situation is the least restrictive
and most appropriate available setting for the unaccompanied child.
A few commenters stated that the primary relevant factors to
consider when determining a child's placement should be the best
interests of the child, which they believed should be a mix of the
factors laid out in both Sec. Sec. 410.1001 and 410.1103. While the
commenters agreed that ORR may consider additional factors, based on
each child's individual circumstances to ensure that child's safety and
to meet individualized needs, they believed that the prevailing factors
for this determination, which should be reflected in the regulations,
are the best interest factors. These commenters also recommended that
ORR should separate the safety and immigration enforcement
considerations, the latter of which are secondary to the best interests
of the child and should be considered separately.
Response: ORR agrees that each unaccompanied child should be placed
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, and that consideration of each child's
individualized needs is a key component to ensuring their safety and
welfare.
Consistent with 8 U.S.C. 1232(c)(2)(A), when determining placement
of an unaccompanied child, ORR places the unaccompanied child in the
least restrictive setting that it determines is in the best interest of
the child. And, consistent with the FSA at paragraph 11, ORR places an
unaccompanied child in the least restrictive setting appropriate to the
child's age and special needs, provided that such setting is consistent
with its interests to ensure the child's timely appearance before DHS
and the immigration courts and to protect the child's well-being and
that of others. ORR implements these requirements by assessing a broad
range of factors and criteria as set forth at Sec. Sec. 410.1103 and
410.1105.
In response to the commenter that recommended ORR strengthen the
language regarding the use of least restrictive settings by providing
that unaccompanied children should be placed in the least restrictive
setting that is appropriate for their needs and safety, which could
include foster care, family homes, or other community-based settings,
but that institutional settings should be the last possible option and
not considered unless absolutely necessary, ORR notes that the
considerations recommended by the commenter are already part of the
best interest assessment performed by ORR in determining an appropriate
placement under Sec. 410.1103. Under proposed Sec. 410.1103(a) and
(b), ORR would consider a child's individualized needs and safety
through assessment of the various factors presented in those
subsections. In addition, as discussed above and in the NPRM, where
possible, ORR agrees 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 rather than institutional
settings while they are awaiting release to sponsors (88 FR 68919).
Having said that, as ORR has previously noted, efforts to place more
unaccompanied children out of congregate care shelters
[[Page 34414]]
that house more than 25 children together is a long-term aspiration,
given the 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.
In response to the comment asserting that if family-based placement
is unavailable and congregate placement is necessary, ORR shelter
facilities should require review by legal advocates (lawyers, judges,
others) to ensure that the situation is the least restrictive and most
appropriate available setting for the unaccompanied child, while the
commenter did not make a specific recommendation for changes to the
rule text, ORR notes that its current placement process, as codified in
this final rule, is consistent with requirements under the statute and
FSA. As noted previously, the statute \93\ expressly makes ORR
``responsible for making and implementing placement determinations for
all unaccompanied children who are in Federal custody by reason of
their immigration status'' and does not contemplate external review by
legal advocates. Furthermore, ORR believes that the commenter's
suggestion is impracticable, especially if it refers to the initial
transfer of unaccompanied children from other Federal agencies, given
the 72 hour timeframe required by statute.\94\ Finally, ORR notes that
shelter facilities, as well as family-based placements, are not
considered restrictive facilities, and that ORR has codified in this
rule, at Sec. 410.1901, procedures for review of restrictive
placements such as heightened supervision and secure facilities.
Finally, given the language of the statute \95\ and paragraph 11 of
the FSA, ORR does not believe it would be appropriate to separate the
safety and immigration considerations and consider them as secondary
under proposed Sec. 410.1103(a). Thus, ORR is finalizing Sec.
410.1103 to 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, provided that
this setting is consistent with ensuring the child's timely appearance
before DHS and the immigration courts and protecting the unaccompanied
child's well-being and that of others.
Comment: One commenter questioned whether there is any objective
procedure that can be applied in determining ``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'' (quoting from proposed rule preamble at section IV.A, 88 FR
68910). The commenter expressed concern that the evaluation of such
topics with regard to an individual may be subjective and asked if
there is an objective procedure to apply to these situations to ensure
an unbiased placement.
Response: ORR notes that it was unclear what the commenter meant by
an ``objective procedure'' to determine the least restrictive setting
in the best interest of a child. Having said that, ORR notes that
several of the potential factors for consideration described at Sec.
410.1103(b) are based on concrete, objective measures (e.g., age,
siblings in ORR custody, location of the child's apprehension, length
of stay in ORR custody). Nevertheless, to determine an appropriate
placement that is in an unaccompanied child's best interest, ORR
believes it must also consider other factors that reflect a child's
individualized needs and circumstances, but which may not be as
concrete as age or length of stay in ORR custody. Therefore, ORR
believes the proposed framework of requiring consideration of a non-
exhaustive list of factors is a reasonable method of assessing
appropriate placements that are in a child's best interest. Under this
rule, ORR will take into account a broad range of factors, as provided
at Sec. 410.1103 and the definition of ``best interest'' at Sec.
410.1001. In particular, Sec. 410.1103(b) provides a list of 17
factors that ORR considers as relevant to a child's placement,
including, among others, the specific factors noted by the commenter
(danger to self, danger to the community/others, and runaway risk).
Furthermore, the definition of best interest at Sec. 410.1001 sets
forth specific factors that ORR will take into account in determining a
child's best interest. The consideration of factors set forth at Sec.
410.1103 and the definition of ``best interest'' at Sec. 410.1001
necessarily will vary for each child and involve some judgment based on
each child's unique, individualized needs and experiences and on
information obtained by ORR from various sources as provided at Sec.
410.1103(c), including the referring Federal agency, assessments
performed of the child, interviews, pertinent documentation, and
records from local, State, and Federal agencies regarding the child.
Comment: Many commenters opposed the language at proposed Sec.
410.1103(a) requiring that the placement setting be ``consistent with
the interest in ensuring the unaccompanied child's timely appearance
before DHS and the immigration courts.'' These commenters stated that
this language should be removed because it is inconsistent with ORR's
child welfare mandate. These commenters further asserted that ORR does
not operate as an immigration enforcement agency and compliance with
immigration court obligations is not an appropriate consideration for
ORR placement decisions; instead, these commenters believed that
consideration of ``risk of flight'' as it relates to immigration
proceedings (as opposed to flight from a custodial setting), lies
squarely with DHS. These commenters stated that placement decisions
should be guided by a determination that the placement is in the least
restrictive setting in the best interest of the child.
Response: As discussed previously, the HSA \96\ requires ORR to
consult with DHS in making placement decisions to ensure that children
are likely to appear for all hearings and proceedings in which they are
involved. 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, ORR is
finalizing the language at Sec. 410.1103(a) as proposed, requiring
that the placement setting be consistent with the interest in ensuring
the unaccompanied child's timely appearance before DHS and the
immigration courts.
Comment: Many commenters supported the proposed rule's requirement
that gender and LGBTQI+ status or identity be considered when making
placement decisions. A number of commenters, while supporting these
requirements, also provided recommendations to strengthen the
consideration of these factors to ensure LGBTQI+ children receive the
support they need. These commenters noted that when LGBTQI+ children
are discriminated against or mistreated, their mental and physical
health suffers, whereas supportive placement options support their
stability and mitigate safety risks. Commenters recommended that ORR
add language to the final rule that requires care provider facilities
to consult with LGBTQI+ children in making placement decisions, in
order to ensure that ORR has an adequate
[[Page 34415]]
understanding of the child's wishes, needs, and concerns with respect
to placement. One commenter specifically recommended that language be
added to the rule to ensure that the privacy needs of LGBTQI+ children
are accommodated.
Response: ORR agrees that the consideration of an unaccompanied
child's gender and LGBTQI+ status or identity is important in
determining a safe and appropriate placement for such children. To
align with the revision to Sec. 410.1210(c)(3), ORR is updating Sec.
410.1103(b)(7) to ``LGBTQI+ status or identity'' and will refer instead
to ``LGBTQI+ status or identity'' in the preamble of this final rule.
Regarding commenters' recommendations, ORR notes that consistent
with current policy, under this rule, ORR will require care provider
facilities to operate their programs following certain guiding
principles, including ensuring that LGBTQI+ children are treated with
dignity and respect, receive recognition of their sexual orientation
and/or gender identity, are not discriminated against or harassed based
on actual or perceived sexual orientation or gender identity, and are
cared for in an inclusive and respectful environment.\97\ ORR agrees
that it is essential to ensure the safety and well-being of each child.
Under Sec. 410.1103(b)(7), ORR intends, consistent with current
policies, that care provider facilities conduct an individualized
assessment of each LGBTQI+ child's needs, and according to that
assessment address each LGBTQI+ child's housing preferences and health
and safety needs. If a child expresses safety or privacy concerns or
the care provider facility otherwise becomes aware of such concerns,
the care provider facility must take reasonable steps to address those
concerns.
Further, as finalized at Sec. 410.1001, ORR considers an
unaccompanied child's expressed interests when evaluating what is in
the child's best interests, in accordance with the child's age and
maturity. Under Sec. 410.1302(c), all standard programs and secure
facilities are required to provide or arrange an individualized needs
assessment for unaccompanied children, and provide regular individual
and group counseling sessions. These requirements also apply to EIFs,
as described at Sec. 410.1801(b). Further, case managers are
responsible for developing individual service plans for each
unaccompanied child. ORR believes that these provisions will ensure
that LGBTQI+ children are consulted in making placement determinations
when appropriate and that ORR has an adequate understanding of the
child's wishes, needs, and concerns with respect to placement.
ORR will continue to monitor the implementation of its existing
policies to protect LGBTQI+ children with respect to placement
determinations and consider the recommendations as needed in future
policymaking. ORR notes that addressing these concerns through its
policies allows ORR to make more frequent, iterative updates in keeping
with best practices, to communicate its requirements in greater detail,
and to be responsive to the needs of unaccompanied children and care
provider facilities.
Comment: One commenter expressed concern that Sec. 410.1103(b)
allows for unacceptable discretion by listing the factors that ``may be
relevant''; the commenter stated that gender and age are factors that
should always be a consideration in any child's proper placement.
Response: At Sec. 410.1103(b), ORR includes a non-exhaustive list
of factors, some of which, including gender and age, will be relevant
in most or all placements. ORR believes that a factor's relevance may
vary depending on a child's unique needs and circumstances. For
example, ORR acknowledges that consideration of a child's gender
identity is of particular relevance in placement decisions. In
addition, under current ORR policy, children who are under 13 years of
age are given priority for transitional foster care placements; thus,
in assessing foster care placements, age is an essential factor to
consider.\98\ To clarify ORR's intent that certain factors may be
relevant in most or all placements, while other factors may not be
relevant to every unaccompanied child's situation, depending on each
child's individualized needs, ORR is revising Sec. 410.1103(b)
introductory language to replace the phrase ``that may be relevant''
with ``to the extent they are relevant.''
Comment: A number of commenters expressed concern with, or asked
for further clarification regarding, ORR's proposal to consider gender
and/or LGBTQI+ status or identity in determining placement. Two
commenters expressed concern about the impact of these requirements on
faith-based providers that provide such services to unaccompanied
children. One commenter also asked for clarification regarding how the
best interests of the child are evaluated in the context of the
unaccompanied child's expressed interests and the unaccompanied child's
development and identity. Another commenter believed that there is no
legitimate reason for a child's self-identified gender or LGBTQI+
status or identity to be considered in placement, and expressed concern
that the proposed regulation discriminates against religious ORR staff
members, faith-based foster care providers and parents by forcing them
to choose between their deeply held convictions and their desire to
live out their faith by caring for unaccompanied children.
A few commenters expressed concern that the proposed rule did not
explain how a child's LGBTQI+ status or identity should impact a
placement. One of these commenters asked how, and at what age, ORR
would ascertain a child's LGBTQI+ status or identity.
A few commenters also asked ORR to clarify whether ORR's definition
of a suitable placement for an unaccompanied child would match the
definition of a ``safe and appropriate placement'' for LGBTQI+ children
in foster care as recently proposed by the HHS ACF Children's Bureau
(88 FR 66752). These commenters opposed ORR adopting the standard
proposed by the Children's Bureau.
Response: Although ORR is respectful of different views, it
reiterates the importance of taking gender and LGBTQI+ status or
identity into account as set out in this rule. In determining an
appropriate placement, ORR takes into account a broad range of factors,
not just gender and LGBTQI+ status or identity, as set forth at Sec.
410.1103 and the definition of ``best interest'' at Sec. 410.1001.
Thus, when evaluating the child's best interest ORR considers the whole
person including consideration of the unaccompanied child's expressed
interests and the unaccompanied child's development and identity,
depending on the child's age, maturity, and individualized needs, as
well as information from a variety of sources as specified at Sec.
410.1103(c). Because each child has unique needs and experiences, the
consideration of the factors set forth at Sec. 410.1103 and the
definition of ``best interest'' at Sec. 410.1001 necessarily will vary
for each child.
ORR staff members, care provider facilities, and foster parents
that serve and care for unaccompanied children in ORR custody agree to
do so consistent with ORR's policies and requirements, including those
that pertain to LGBTQI+ children. ORR wishes to make clear that it
operates the UC Program in compliance with the requirements of federal
religious freedom laws, including the Religious Freedom Restoration
Act, and applicable Federal conscience protections, as well as all
[[Page 34416]]
other applicable Federal civil rights laws and applicable HHS
regulations. HHS regulations state, for example: ``A faith-based
organization that participates in HHS awarding-agency funded programs
or services will retain its autonomy; right of expression; religious
character; and independence from Federal, State, and local governments,
and may continue to carry out its mission, including the definition,
development, practice, and expression of its religious beliefs.'' \99\
These regulations also make clear that HHS may make accommodations,
including for religious exercise, with respect to one or more program
requirements on a case-by-case basis in accordance with the
Constitution and laws of the United States.\100\ Regarding commenters'
request for clarification on whether ORR is adopting the standard
proposed by the Children's Bureau in the NPRM on safe and appropriate
placement requirements under titles IV-E and IV-B of the Social
Security Act for children in foster care who identify as LGBTQI+,\101\
ORR notes that the Children's Bureau and ORR are distinct offices
within ACF and the programs they administer are governed by distinct
statutory authorities. As such, the rule proposed by the Children's
Bureau would not govern the UC Program. ORR determines whether a
placement is safe and suitable for an unaccompanied child in accordance
with 8 U.S.C. 1232(c) and the provisions set forth in subpart B of this
rule.
Comment: Some commenters opposed the proposed rule's reference to
what they described as the ``non-scientific, undefined'' term
``gender'' rather than ``sex'' of the child. Two commenters expressed
the view that the proposed placement criteria would result in
placements that compromise the privacy and safety of girls in ORR
custody.
Response: ORR notes that the terms ``gender'' and ``sex'' are not
synonymous, and are separately defined in existing ORR regulations at
45 CFR 411.5. As such, ORR declines to list ``sex'' as a factor in lieu
of ``gender.'' Further, under Sec. 410.1103(a), as finalized in this
rule, ORR considers a child's gender identity as one of many factors,
when making placement determinations because ORR believes that such
identity has significant implications for reaching placement decisions
that protect the safety and well-being of unaccompanied children. ORR
notes that Sec. 410.1103(b) is a non-exhaustive list of the factors
ORR considers, and thus ORR could also consider a child's sex, as
relevant, for purpose of placement.
ORR disagrees that the consideration of gender in placement
decisions will diminish privacy or safety. If a child expresses safety
or privacy concerns, or the care provider facility otherwise becomes
aware of such concerns, the care provider facility must take reasonable
steps to address those concerns.
Comment: Many commenters stated that criminal background or history
(proposed Sec. 410.1103(b)(10)) should be removed as a factor because
it is overbroad and permits the consideration of unsupported
allegations and criminal charges that have not resulted in convictions.
These commenters stated that, at most, ORR should only consider
confirmed or verified criminal convictions for children charged as
adults and only when it is necessary to appropriately care for the
child or others. These commenters stated that ORR should not consider
juvenile delinquency adjudications because criminal laws do not treat
children the same as adults, and juvenile delinquency adjudications are
not considered criminal convictions. These commenters also expressed
the view that consideration of criminal history risks straying from
ORR's role under the TVPRA and expressed concern that an incorrect
assessment of a child's previous contact with the criminal or juvenile
justice system can lead to a child's wrongful placement or transfer to
a restrictive setting or prolonged stay in such placements. In
addition, many commenters stated ORR should ensure that juvenile
records remain confidential and are not used against children,
particularly to place children in restrictive, punitive settings.
A few commenters believed that children escaping a nation in which
forced gang recruitment is common should not be penalized for suspected
gang affiliation and one commenter noted that ORR should assume all
children who migrate here are traumatized, and thus should be placed in
warm and supportive environments rather than secure placements.
Response: ORR appreciates commenters' concerns regarding the
consideration of a child's criminal background and history in
determining appropriate placement; however, ORR continues to believe
that consideration of this factor is necessary and appropriate in
determining placement that is in the best interest of both the
unaccompanied child and other children at the care provider facility
under consideration. ORR believes that is appropriate to consider all
information that may pertain to a child's potential connections to
criminal activity, including criminal charges, convictions, juvenile
delinquency adjudications, and suspected gang involvement or
affiliation, to get a complete picture of the child's experiences and
individualized needs and any potential risk to the child or to others
in a care provider facility in which a child may be placed. Also, it is
important to note that no child is automatically placed in a
restrictive facility; instead, the child's placement will depend on the
nature of any criminal background and the consideration of other
factors at Sec. 410.1103(b), including whether there exists a danger
to self or others, and whether the child meets the specific criteria at
Sec. 410.1105 for a restrictive placement. Thus, consistent with its
role under the TVPRA, ORR assesses many factors and applies various
criteria before making a placement. ORR recognizes that children
escaping a nation in which gang-related violence is common may be
traumatized and takes this into consideration as part of its best
interests assessment (see, in particular, the definition of ``best
interest'' in Sec. 410.1101) along with the broad array of other
information to determine appropriate placement.
Furthermore, in assessing criminal background, ORR closely
considers information obtained from a variety of sources, as provided
at Sec. 410.1103(c), including the referring Federal agency,
assessments performed of the child, interviews, pertinent
documentation, and records from local, State, and Federal agencies
regarding the child. Thus, ORR acquires and evaluates criminal
background information in collaboration with other professionals and
agencies with expertise in these matters, and disagrees with comments
that this factor is overbroad, permits the consideration of unsupported
allegations, or causes ORR to stray from ORR's role under the TVPRA. In
fact, ORR's role under the TVPRA (8 U.S.C. 1232(c)(2)(A)) is to
determine appropriate placement in the least restrictive setting that
is in the best interest of the unaccompanied child, giving due
consideration to danger to self, danger to the community, and risk of
flight. In considering a child's criminal background as described
above, ORR is fulfilling its statutory role.
Comment: Many commenters opposed the inclusion of behavior as a
factor at proposed Sec. 410.1103(b)(12), asserting that this factor is
vague and overbroad. These commenters stated that ORR and its care
provider facilities often rely heavily on ``Significant Incident
Reports'' (SIRs) as evidence of ``bad
[[Page 34417]]
behavior'' in determining a child's level of placement, and expressed
concern that the information in SIRs may not provide a full picture of
the child or adequately note the significant trauma that may have
contributed to a child's behavior, prompting a child to be
inappropriately stepped up to an even more restrictive environment or
delay a child's transfer to a long-term foster care placement.
In addition, many commenters stated that behavior should be deleted
as a factor because it is duplicative of Sec. 410.1103(b)(9), which
requires an assessment of ``[a]ny specialized services or treatment
required or requested by the unaccompanied child'' as a factor for
consideration in placement. These commenters further noted that
behavioral issues exhibited by children are often manifestations of
stress, detention fatigue, and trauma, and typically indicate a child's
need for additional support and services. Commenters further stated
that, if ORR includes ``behavior'' as a factor for consideration in
placement, the language at least should be amended to ``the child's
need for behavioral supports and services.''
Response: ORR continues to believe that consideration of behavior
is appropriate in determining placement that is in the best interest of
the unaccompanied child and other children at the care provider
facility under consideration. While the term ``behavior'' could entail
a broad range of considerations, ORR believes this is necessary for ORR
and its care provider facilities to obtain a complete picture of the
child's individualized needs. In response to commenters' concerns,
while ORR and its care provider facilities use SIRs as evidence of a
child's behavior in determining a child's level of placement, under
existing policy and under Sec. 410.1103, ORR and its care provider
facilities also take into account other factors to obtain a complete
picture of the child and the broader context of the child's behavior
before making this determination, including the child's mental and
physical health and other individualized needs as set forth in the
definition of ``best interest'' at Sec. 410.1001.
ORR disagrees that listing ``behavior'' as a factor is duplicative
and already captured under Sec. 410.1103(b)(9) (specialized services
or treatment required or requested). While ORR agrees that behavioral
issues exhibited by children can be manifestations of stress, detention
fatigue, and trauma, and may indicate a child's need for additional
support and services, the causes of behavioral issues and whether they
necessitate additional services or treatment may vary from child to
child depending on each child's individual experiences and needs. Thus,
ORR does not agree that this factor is already captured under Sec.
410.1103(b)(9); instead, ORR believes that for purposes of clarity and
to ensure that behavior is specifically included as part of a
comprehensive consideration of a child's needs, it should be included
as a separate factor at Sec. 410.1103(b)(12).
ORR also does not believe it is necessary to amend the language at
Sec. 410.1103(b)(9) to state ``the child's need for behavioral
supports and services'' as requested by commenters. ORR recognizes that
a child's behavior is often connected to other needs, such as mental
health needs, or that behavioral supports or services may be
appropriate in certain cases but believes that the need for ``supports
and services'' may vary from child to child in light of the child's
stage of development and the circumstances the child is facing. ORR
believes that reflecting the factor as ``behavior'' allows for a more
comprehensive consideration of the behavioral manifestations that could
impact placement. ORR will consider further addressing and clarifying
the application of behavior in future policymaking.
Comment: Many commenters supported the consideration of a child's
status as pregnant or parenting in Sec. 410.1103(b)(15) and supported
ORR's recognition in the preamble that pregnant and parenting youth are
``best served in family settings.'' These commenters recommended that
ORR go further to protect these particularly vulnerable youth by
codifying a new subsection (h) in Sec. 410.1103 that explains pregnant
and parenting unaccompanied children ``shall be given priority to
community-based care placements'' or ``transitional and long-term home
care,'' depending on the terminology for care provider types that ORR
adopts. Commenters noted that this addition to the proposed rule would
be consistent with section 1.2.2 of the UC Program Policy Guide, which
provides, in part, that ``ORR gives priority for transitional foster
care placements to . . . teens who are pregnant or are parenting.'' One
commenter applauded ORR's recognition that unaccompanied children who
are pregnant and/or parenting need particular kinds of placements and
services, noting that data show that many teenage parents in foster
care have experienced maltreatment, endured multiple placements, and
been separated from parents and other important people, resulting in
significant trauma. The commenter encouraged ORR to make specific
recommendations to address the needs of pregnant and/or parenting youth
who may come into the agency's care to ensure their safety, health, and
well-being.
Response: As noted by commenters, under current ORR policy,
teenagers who are pregnant or are parenting are a priority group for
transitional foster care. ORR does not propose to adopt in the
regulation text each of its existing policies regarding transitional
foster care, including this provision, because of the sheer number of
those requirements and because keeping those requirements in
subregulatory guidance will allow ORR to make more appropriate, timely,
and iterative updates in keeping with best practices and be continually
responsive to the needs of unaccompanied children and care provider
facilities. As clarified in Sec. 410.1000, part 410 will not govern or
describe the entire program. Where the regulations contain less detail,
subregulatory guidance such as the ORR Policy Guide, Field Guidance,
manuals describing compliance with ORR policies and procedures, and
other communications from ORR to care provider facilities will provide
specific guidance on requirements.
Comment: One commenter asked ORR to clarify (1) whether it believes
that it is in the best interest of the child to place a pregnant child
in States that have more permissive abortion laws or less permissive
abortion laws; (2) to what extent do State laws on abortion factor into
the ``best interests of the child,'' if at all; and (3) whether the
availability of medical services for abortion takes precedence over
placing an unaccompanied child with family or relatives who are located
in a State where such services are not available.
Response: The factors outlined at Sec. 410.1103 pertain to ORR's
process for placing an unaccompanied child in a particular care
provider facility. ORR makes decisions whether to release the
unaccompanied child to family or relatives in accordance with subpart C
of this part.
Consistent with the ``best interest'' definition and placement
considerations at Sec. Sec. 410.1001 and 410.1103, respectively, if a
child expresses the need for medical services of any kind, access to
medical services is one factor ORR considers in determining a placement
that is in the best interest of the unaccompanied child and appropriate
to the child's age and individualized needs. ORR further notes
[[Page 34418]]
that while access to medical services is an important factor in
determining placement, it is not the sole factor assessed under Sec.
410.1103(b). For example, ORR also considers release to family or
relatives who are determined to be suitable sponsors under Sec. Sec.
410.1201 through 410.1204. For every child in its custody ORR evaluates
the best interest of the child taking into account each child's
individual needs and circumstances. For further discussion of an
unaccompanied child's access to medical care, ORR refers readers to the
discussion of Sec. 410.1307 of this final rule.
Comment: One commenter stated that the language and list of factors
identified in Sec. 410.1103(b) are not sufficiently comprehensive and
conflate best interest considerations with immigration enforcement and
safety considerations. The commenter provided suggested language that
incorporates best interest factors included in the NPRM (88 FR 68920),
factors under proposed Sec. 410.1103, and factors used in best
interest determinations in family and child welfare courts.
Specifically, the commenter recommended revising the structure and
content of Sec. 410.1103(b) to first include the best interest factors
set forth in the NPRM preamble (88 FR 68920), followed by certain
factors in Sec. 410.1103(b), and finally, certain new factors such as
impact on the child of current ORR placement; size of proposed
placement, whether a child placed in a particular jurisdiction is
likely to obtain legal relief, and caretaker's ability to provide for
the child's physical and mental well-being. A few other commenters also
encouraged ORR to consider the impact of the placement on the child's
legal case or potential legal relief when making placement decisions.
Finally, to distinguish best interest and least restrictive setting
considerations from those regarding community safety or flight risk,
the commenter recommended incorporating danger to community and flight
risk in Sec. 410.1103(b) to be considered separately in making
placement decisions. The commenter stated that danger to community and
flight risk would encompass assessment of behavior, criminal history,
and trafficking risk making the listing of these three factors
separately unnecessary.
Response: ORR appreciates the commenter's recommendations. As to
the commenter's suggestion to incorporate the best interest standards
set forth in the NPRM preamble (88 FR 68920) into Sec. 410.1103(b),
ORR believes that such standards are already adequately incorporated
into Sec. 410.1103 through the reference to ``best interest'' in Sec.
410.1103(a) and thus it is not necessary to individually include such
factors in Sec. 410.1103(b). In regard to two of the new factors
recommended by the commenter, impact of any previous placement and the
size of the proposed placement, ORR notes that it does in fact consider
these in determining the least restrictive placement that is in the
best interest of the child and that is appropriate to the child's age
and individualized needs, whether upon initial placement or transfer.
In regard to the suggestion that ORR consider whether a child placed in
a particular jurisdiction is likely to obtain legal relief, ORR notes
that for most unaccompanied children in ORR custody, immigration
proceedings begin after the child has been released to a sponsor.
Immigration proceedings may commence for children who are in ORR
custody for longer periods, in particular for those children placed in
ORR long-term home care. ORR notes that under existing policy, in
making a long-term home care referral and placement decision that is in
the child's best interest, ORR considers the legal service provider's
(LSP) recommendation of preferred locations for placement. ORR intends
to continue this policy under this final rule. With respect to the
commenter's suggestion to consider the caretaker's ability to provide
for the child's physical and mental well-being (as required by the
TVPRA, 8 U.S.C. 1232(c)(3)(A)), ORR notes that this factor applies when
assessing release of a child, rather than placement in an ORR care
provider facility, and is in fact taken into consideration under Sec.
410.1202, as finalized in this rule.
Finally, ORR does not agree that danger to community and flight
risk adequately encompass the separate considerations of behavior,
criminal history, and trafficking risk. ORR further believes that
including each of these five factors separately in Sec. 410.1103(b)
provides greater clarity as to the types of considerations that may be
relevant in determining placement for an unaccompanied child. ORR
believes that it is not necessary to distinguish best interest and
least restrictive setting considerations from those regarding community
safety or flight risk for purposes of Sec. 410.1103(b) because all of
these factors are potentially relevant to determining the least
restrictive setting in the best interest of the child.
Comment: A few commenters encouraged ORR to consider access to
counsel when making placement decisions.
Response: ORR notes that it provides unaccompanied children with
access to legal services and information pursuant to Sec. 410.1309, as
finalized in this rule. Additionally, access to counsel is not limited
by placement, and so it is not a factor considered in placement
decisions. ORR refers readers to the discussion of Sec. 410.1309 later
in this final rule for further information.
Comment: One commenter noted that the proposed rule fails to take
into account the impact of transfers on unaccompanied children when
determining placement. This commenter recommended that for significant
subpopulations of unaccompanied children (including tender-age
children, children with identified autism-spectrum disorders, and
children with impaired functioning in emotional domains related to the
formation of stable attachments), ORR should have a strong preference
for the use of a single placement and explicitly weigh the disruption
of a transfer as part of any evaluation for transfer placement
suitability. The commenter noted that transfers are inherently
destabilizing for unaccompanied children and should be minimized.
Response: As part of its evaluation of whether a transfer is in the
best interests of the child, ORR assesses various factors provided at
Sec. 410.1103 and in the definition of best interest at Sec.
410.1001, as relevant, including the potential impacts of a transfer on
a child given the child's age, maturity, mental and physical needs, and
any other individualized needs, including needs related to the child's
disability. Because it already intends such factors to be considered
when making placement determinations, at this time, ORR does not
believe it necessary to make the changes to the rule text as suggested
by the commenter.
Comment: One commenter noted that the current rule gives ORR
authority to consider the factors at Sec. 410.1103(b) and questioned
why ORR is proposing a new rule to authorize such consideration. This
commenter asked ORR to explain why these factors are not already being
considered.
Response: ORR thanks the commenter for its question. As discussed
in the NPRM and this final rule regarding the scope of this rule
regarding Sec. 410.1000, ORR's current policies, including policies
concerning considerations generally applicable to the placement of an
unaccompanied child, are described in various policy documents, field
guidance, manuals, and communications from ORR to care provider
facilities (88 FR 68914). But ORR does not have a regulation that
[[Page 34419]]
comprehensively codifies such standards. Further, as discussed in
section III.B.3 of the proposed rule and this final rule, the 2019
Final Rule is currently subject to an injunction. ORR is issuing this
final rule to more broadly codify and address issues related to custody
of unaccompanied children by HHS, consistent with ORR's statutory
authorities and to implement relevant provisions of the FSA. This final
rule codifies, at Sec. 410.1103, the factors that ORR currently
applies in determining appropriate placement.
Comment: Some commenters generally opposed application of factors
at Sec. 410.1103(b), expressing concern that the factors would be
insufficient to enable ORR or its contractors to identify patterns of
trafficking. One commenter believed the proposed rule does not give ORR
employees evaluating children's placement sufficient guidance on what
factors should be considered and how to protect children from
traffickers or persons seeking to victimize unaccompanied children.
Response: ORR takes seriously its responsibility when making
placement determinations to consider the best interests of
unaccompanied children and specifically to protect them from
trafficking risk.\102\ Section 410.1103(b) helps to protect the safety
and well-being of unaccompanied children under ORR care by explicitly
listing factors that ORR considers in determining an appropriate
placement in the best interest of an unaccompanied child, including
trafficking and safety concerns, criminal background, danger to self,
danger to community/others, and runaway risk. While relevant to
placement decisions, the factors in Sec. 410.1103(b) also allow ORR to
potentially identify patterns in the information provided which can
assist in efforts to protect the unaccompanied child's safety. This
final rule details trafficking protection and prevention efforts
related to sponsor vetting and post-release services, policies
regarding trafficking concern referrals to other agencies, and access
to child advocates and legal services providers. ORR will also consider
providing additional guidance regarding application of these factors
and how to protect children from traffickers or persons seeking to
victimize them in future policymaking.
Comment: Many commenters recommended that ORR shorten frequency of
restrictive placement reviews to ``at least every 14 days'' to ensure
compliance with its legal obligation under the TVPRA to place children
in the least restrictive setting in their best interest. These
commenters noted that the TVPRA requires that ORR review the placement
of children in secure facilities (the most restrictive level of
placements) on a monthly basis ``at a minimum'' and that by extending
the TVPRA's 30-day minimum standard from secure settings to all
restrictive settings, the proposed language sets an unacceptably low
expectation for ORR's mandate. The commenters believed that proposed
Sec. 410.1103(d) overlooks the opportunity to expect more prompt
reviews as a norm and ignores statutory support and evidence that
children require faster reviews while in restrictive settings.
Response: ORR appreciates the commenters' recommendations, but ORR
continues to believe that requiring review of all restrictive
placements at least every 30 days is a reasonable standard and
consistent with the TVPRA.\103\ The TVPRA requires that the placement
of an unaccompanied child in a secure facility be reviewed, at a
minimum, on a monthly basis, and sets no review frequency for
heightened supervision facilities. Thus, as noted in the NPRM, ORR
exceeds the statutory requirement by requiring at Sec. 410.1103(d),
consistent with its existing policy, that all restrictive placements be
reviewed at least every 30 days to determine whether a new level of
care is appropriate (88 FR 68998). Having said that, ORR does note that
Sec. 410.1103(d) states that restrictive placements must be reviewed
``at least'' every 30 days, allowing ORR and its care provider
facilities the flexibility to assess placements more frequently as
determined appropriate in any given case. Thus, we believe that the
frequency of reviews required under Sec. 410.1103(d) will reasonably
allow ORR to determine whether a restrictive placement continues to be
warranted in accord with its statutory responsibilities, but also in a
way that gives it the ability to respond flexibly in cases warranting
more frequent review.
Comment: A few commenters stated that they believe that proposed
Sec. 410.1103(e) not only violates the State licensing requirement of
the FSA but could lead to unlicensed placements being favored over
State-licensed placements. Commenters noted that paragraph 6 of the FSA
provides that the Government ``shall make reasonable efforts to provide
licensed placements in those geographic areas where the majority of
minors are apprehended, such as southern California, southeast Texas,
southern Florida and the northeast corridor.'' However, the commenters
noted that proposed Sec. 410.1103(e), by contrast, states that ``ORR
shall make reasonable efforts to provide placements in those
geographical areas where DHS encounters the majority of unaccompanied
children.'' The commenters believed that by omitting the term
``licensed'' from this provision, the proposed rule violates the FSA
State licensing requirement and could have the effect of prioritizing
unlicensed placements in Texas over licensed placements in other
geographic areas, undermining the purpose of paragraph 6 and the FSA as
a whole.
Response: ORR notes that this final rule has revised Sec.
410.1103(e) to state that ORR shall make reasonable efforts to provide
``licensed'' placements in those geographical areas where DHS
encounters the majority of unaccompanied children. In addition, ORR
refers the commenters to the discussion of State licensing in the
preamble related to Sec. 410.1302 of this final rule further below.
Comment: One commenter suggested that by focusing placement in
limited geographic areas (near the Southwest Border) under proposed
Sec. 410.1103(e), ORR does not appear to consider whether
unaccompanied children might require greater care. The commenter
questioned why ORR would want to confine unaccompanied children to a
small number of facilities in one area of the country and suggested
that this forces ORR to construct new facilities to support them. One
commenter emphasized that placement of children in geographic areas
near prospective sponsors is also important, especially for children
whose prospective sponsors are parents or legal guardians. The
commenter described certain benefits when a child receives a placement
near the prospective sponsor, including improved sponsor response to
the sponsor application, decreased stress for the unaccompanied child,
and improved efficiencies in legal representation.
Another commenter expressed concern that proposed Sec. 410.1103(e)
prioritizes speed when placing children instead of safety.
Response: Consistent with paragraph 6 of the FSA, Sec. 410.1103(e)
provides that ORR shall make reasonable efforts to provide licensed
placements in those geographical areas where DHS encounters the
majority of unaccompanied children. As discussed in the NPRM, ORR
believes that 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
(88 FR 68921). ORR notes, however, that this provision does not require
that ORR place unaccompanied children in these
[[Page 34420]]
geographic areas in every case, but instead requires that ORR make
reasonable efforts to do so. ORR acknowledges that in some cases,
placement in the specified areas may not be appropriate or possible,
for example, when there is not sufficient capacity at certain types of
care provider facilities to adequately meet the needs of a child. In
addition, Sec. 410.1103(e) does not displace the requirement at Sec.
410.1103(a) that ORR must place each child in the least restrictive
setting that is in the best interest of the child and appropriate to
the child's age and individualized needs, or the requirement at Sec.
410.1103(b) that ORR must consider numerous factors that may be
relevant to such placements. Thus, after considering the relevant
factors at Sec. 410.1103, including the best interest considerations
at Sec. 410.1001, ORR could determine in some cases that it is in the
best interest of the child to be placed in areas outside the geographic
areas where DHS encounters the majority of unaccompanied children,
including, in appropriate cases, geographic areas near prospective
sponsors.
Finally, in response to the comment that Sec. 410.1103(e)
prioritizes speed over safety when placing children, ORR notes that
this provision is written consistently with the FSA at paragraph 6, but
also in accord with ORR's statutory responsibility to consider the best
interests of unaccompanied children. While expeditious placement is
important, because for example it minimizes the amount of time children
spend in Border Patrol facilities that are not designed to care for
children, ORR considers multiple factors, not time alone, in
determining a placement that is in the best interest of an
unaccompanied child to ensure that safety and well-being of the child
and others.
Comment: Many commenters supported ORR's proposed restrictions at
Sec. 410.1103(f) on the circumstances in which care provider
facilities may deny placements of unaccompanied children, stating that
the issue of care provider facilities improperly denying placements to
children has been a longstanding problem, especially for unaccompanied
children with disabilities. In addition, these commenters supported
proposed Sec. 410.1103(g), stating that these provisions will provide
greater transparency and accountability to ensure that care provider
facilities do not deny placements to children on improper bases.
Response: ORR agrees with the commenters that Sec. 410.1103(f) and
(g) will help ensure that unaccompanied children, including those with
disabilities, are not denied placement in appropriate care provider
facilities.
Comment: Many commenters provided recommendations to strengthen
Sec. 410.1103(f) and (g). These commenters recommended that Sec.
410.1103(f) specify that if a care provider facility denies placement
to a child with a disability under any of the subparagraphs of Sec.
410.1103(f), ORR will promptly find the child another placement in the
most integrated setting appropriate. In addition, with respect to Sec.
410.1103(g), commenters further recommended that ORR set a strict
timeframe of 72 hours within which care provider facilities must
respond to a placement request, stating that ORR should not permit care
provider facilities to avoid their obligations by delaying or failing
to respond to placement requests. These commenters further recommended
that ORR set a strict timeframe within which ORR staff must respond to
any written request by a care provider facility for authorization to
deny placement, and that if ORR denies the care provider facility's
request, the care provider facility should be required to arrange
promptly for the child's transfer to its facility.
Commenters also stated that the regulations should provide for
monitoring and oversight of provider compliance with respect to
placement requests, given the findings of the May 2023 report issued by
the HHS Office of Inspector General (OIG) \104\ that ``ORR staff and
care provider facility staff did not document information critical to
the transfer of unaccompanied children'' and ``did not have a process
in place to track denied transfers,'' and the longstanding issue of
improper placement denials by providers. Specifically, these commenters
stated that ORR should track care provider facilities' written requests
for authorization to deny placements and ORR's responses to those
requests and order corrective actions, such as re-training, for care
provider facilities that have had their requests denied on multiple
occasions. Furthermore, the commenters stated that for accountability
and oversight, ORR should publish aggregate data regarding care
provider facility compliance and provide data regarding corrective
actions to the Ombudsperson for review.
Response: ORR notes that whenever a care provider facility denies
placement of a child, with or without a disability, it makes every
effort to promptly identify another placement in the least restrictive,
most integrated setting that is in the child's best interest and
appropriate to the child's needs. ORR has procedures in place to ensure
that transfers happen within a reasonable timeframe which may vary
depending on the facts of a particular case to ensure that placements
are made in the child's best interest. Given this, ORR does not believe
it is necessary or appropriate to codify a strict timeframe as
requested by commenters.
With respect to the recommendation that, if ORR denies the care
provider facility's request to deny placement, the care provider
facility should be required to arrange promptly for the child's
transfer to its facility, ORR notes that, in these cases, ORR expects
the care provider facility to arrange promptly for the child's
transfer. As provided at Sec. 410.1103(g), ORR may also follow up with
a care provider facility about a placement denial to find a solution to
the reason for the denial. Given this, ORR expects that the reason for
the requested denial may be resolved in many cases through such follow-
up such that a child may be promptly transferred to such facility
without issue. However, if the care provider facility nevertheless
continues to deny placement of the child, ORR will impose corrective
actions as appropriate. ORR also notes that it has established a
Transfer Review Panel to help conduct oversight of care provider
facility transfer decisions to track when denials occur and help
resolve challenges to placement that might arise.
Finally, with respect to commenters' recommendations that the
regulations provide for monitoring and oversight of care provider
facility compliance with respect to placement requests and that ORR
publish aggregate data regarding care provider facility compliance and
provide data regarding corrective actions to the Ombudsperson for
review, ORR will take them under consideration and may address them in
future policymaking.
Comment: One commenter opposed proposed Sec. 410.1103(f), stating
that it eliminates the discretion Florida's childcare providers have
when it comes to accepting placement of unaccompanied children. The
commenter stated that care provider facilities must maintain autonomy
to determine which children they are willing to accept for placement
and may have reasons for denying a placement beyond those provided in
Sec. 410.1103(f). The commenter provided examples of other
circumstances in which, in the commenter's view, a Florida care
provider facility should have the independent discretion to deny
placement, including where the care
[[Page 34421]]
provider facility determines that placement of the child would pose a
risk to another child for whom the facility is already providing care
(such as when a child has an emotional or behavioral disturbance that
cannot be managed); where a care provider facility determines that
placement would pose a risk to the child, such as placement of a young
child in a group home that is currently caring for teenagers; or where
the care provider facility determines that it does not have the
resources to appropriately care for the child.
One commenter sought clarification about whether the intent of
proposed Sec. 410.1103(f) and (g) was to remove the care provider
facility's autonomy to decide for itself whether it meets one of the
criteria at proposed Sec. 410.1103(f), noting that the two subsections
seem to conflict with one another. In addition, the commenter stated
that follow-up with the care provider facility after submitting a
written placement denial request will likely take more time than the 48
hours allowed (as provided under Sec. 410.1101(b)), and asked whether,
in this case, the child would then be placed at the care provider
facility regardless of whether ORR's decision process has been
completed.
Response: As noted in the NPRM, the requirements at Sec.
410.1103(f) and (g) are consistent with ORR's authority under the HSA
\105\ to make and implement placement determinations, and to oversee
its care provider facilities. ORR further notes its care provider
facilities agree, as a condition of their funding, to abide by ORR
policies, which include policies regarding the placement of
unaccompanied children. ORR believes that the provisions at Sec.
410.1103(f) and (g) are reasonable and necessary to enable prompt
placement of unaccompanied children, including children with
disabilities, in the least restrictive, most integrated setting
appropriate to their needs as mandated by the TVPRA and as is
consistent with section 504, and to ensure that children do not remain
unnecessarily in restrictive placements even after ORR and care
provider facility staff have determined that they should be stepped
down to a less restrictive placement. As provided at Sec. 410.1103(g),
care provider facilities must submit a written request to ORR for
authorization to deny placement, which must be approved by ORR before
the care provider facility may deny placement. Certain examples
provided by the commenter of other circumstances in which a care
provider facility should have the independent discretion to deny
placement involve factors (danger to self and the community/others)
considered by ORR under Sec. 410.1103 prior to making a placement
determination in the best interests of the child, and thus in most
cases, at the time a placement determination is made, these should not
be issues. However, as provided at Sec. 410.1103(g), in any case, ORR
may follow up with a care provider facility about a placement denial to
find a solution to the reason for the denial.
Finally, ORR will make every effort to promptly approve or deny a
care provider facility's written placement denial request, or work with
the facility to resolve the issue raised in the request. If ORR
believes it cannot make a determination on the request within the 48-
hour timeframe set forth at Sec. 410.1101(b), ORR will evaluate the
circumstances and the best interests of the child in each individual
case to determine how to proceed.
Final Rule Action: At Sec. 410.1103(b) introductory language, ORR
is replacing the phrase ``that may be relevant'' with ``to the extent
they are relevant.'' In addition, at Sec. 410.1103(b)(7), ORR is
replacing ``LGBTQI+ status'' with ``LGBTQI status or identity.'' Also,
at Sec. 410.1103(e), ORR is revising ``placement'' to state ``licensed
placement.'' Finally, at Sec. 410.1103(f)(4), ORR is revising the
phrase ``altering its program'' to ``altering the nature of its
program'' consistent with references to this standard in other sections
of this final rule. Otherwise, ORR is finalizing Sec. 410.1103 as
proposed in the NPRM.
Section 410.1104 Placement of an Unaccompanied Child in a Standard
Program That Is Not Restrictive
ORR proposed in the NPRM at Sec. 410.1104 to codify substantive
criteria for placement of an unaccompanied child in a standard program
that is not a restrictive placement (88 FR 68922). 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.'' \106\ ORR also noted 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, ORR proposed in the NPRM
at Sec. 410.1104, to 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 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
(Emergency and Influx Operations). These exceptions are 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.
ORR did 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 stated in the NPRM that it did not believe it was necessary to
include this exception, as any court decree or settlement that would
require ORR to implement placement criteria that differ from those at
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 stated that it also did not believe it was necessary to
include this exception in 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 (ORR referred readers to subpart H
for discussion of age determinations).
Comment: One commenter stated that ORR should view congregate
shelters as semi-restrictive in nature and stated that there is a
continuum of restrictiveness among the placements categorized as non-
restrictive. Specifically, this commenter recommended that ORR
distinguish in Sec. 410.1104 between non-restrictive placements based
on the size and duration of stay of the children housed in those
placements. The commenter noted that congregate shelters, particularly
when they have a capacity over 25 children, impose significant
restrictions on children (asserting, for example, that doors are
[[Page 34422]]
locked, children are required to be in certain locations at certain
times and do not attend local schools, meal times have strict
schedules, and recreation is limited), and thus should be classified as
semi-restrictive and used sparingly. The commenter further stated that
a presumption should be incorporated, consistent with child welfare
standards, that no later than 2 weeks after ORR assumes custody, the
child should be placed in a community-based or family placement. The
commenter added that ORR should have the burden of justifying placement
of children in large congregate shelters for longer than two weeks, and
that family and small community-based placements are the least
restrictive alternative to release and should be the norm for placing
children. Another commenter similarly stated that while shelters
operate at a lesser degree of restriction than heightened supervision
facilities and secure facilities, larger shelters have an institutional
nature where children are under constant supervision by staff and are
not permitted to depart and return at will. This commenter also urged
ORR to pay particular attention to situations where children remain in
such shelter settings for prolonged periods because the restrictions in
place and the separation of children from the local community can begin
to manifest as more detention-like the longer a child remains there.
Response: As described at Sec. 410.1102, ORR utilizes various
types of non-restrictive placements, including shelters, group homes,
and individual family homes. Such care provider facilities may vary in
terms of the number of children they house (e.g., based on their
physical capacity and licensure requirements) but these are not
restrictive placements. ORR recognizes that, as noted by commenters,
larger shelters may generally be more institutional in nature than
smaller, home-like settings. Consistent with these comments, ORR
believes that where possible, based on an unaccompanied child's age,
individualized needs, and circumstances, as well as a care provider
facility's capacity, it should prioritize placing unaccompanied
children in transitional and long-term home care settings while they
are awaiting release to sponsors, so as to limit the time spent in
large congregate care facilities. However, as discussed previously in
this final rule preamble addressing comments under Sec. 410.1102,
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.
Comment: One commenter recommended that the proposed language at
Sec. 410.1104 (``ORR places all unaccompanied children in standard
programs'') should state instead that ORR ``shall place'' all
unaccompanied children in standard programs. In addition, the commenter
stated that the TVPRA (8 U.S.C. 1232(c)(2)(A)) requires that children
``promptly'' be placed in such settings. Thus, the commenter further
recommended that, consistent with the TVPRA, ORR revise the language to
clarify that ORR is required to ``promptly'' place unaccompanied
children in the least restrictive setting pursuant to an individualized
determination of the child's best interest.
Response: ORR intended for the language at Sec. 410.1104 to
reflect a mandatory obligation, and thus as the commenter recommended,
ORR is revising the introductory language at Sec. 410.1104 to state
that ORR ``shall place'' all accompanied children in standard programs.
With respect to the recommendation that ORR add the word ``promptly,''
ORR believes that the timeframe for identifying placement under Sec.
410.1101(b) satisfies the prompt placement requirement set forth in the
TVPRA, and thus is not adding this word to Sec. 410.1104. The purpose
of Sec. 410.1104 is to establish ORR's obligation to place
unaccompanied children in standard programs as opposed to restrictive
placements or emergency or influx facilities, except in the
circumstances delineated in paragraphs (a) and (b)--rather than to
establish a timeline for such placement. Finally, ORR notes that the
``least restrictive setting'' and ``best interest'' requirements are
addressed in Sec. 410.1103(a), and thus ORR does not believe it is
necessary to add that language to Sec. 410.1104 as recommended by the
commenter.
Comment: A few commenters stated that proposed Sec. 410.1104 is
not consistent with the FSA because it does not include a requirement
that all determinations to place a minor in a secure facility will be
reviewed and approved by the regional juvenile coordinator, as required
at paragraph 23 of the FSA. The commenters asserted that the Placement
Review Panel cannot substitute for this safeguard.
Response: ORR notes that criteria for placing unaccompanied
children in restrictive placements, including secure placements, are
set forth at Sec. 410.1105. Nevertheless, ORR agrees that paragraph 23
of FSA states that all determinations to place a minor in a secure
facility will be reviewed and approved by the regional juvenile
coordinator. This was a reference to a specific position that existed
at the INS in 1997. To comply with this requirement, ORR Federal field
staff, which is an equivalent position to the regional juvenile
coordinator, will perform the function described in the FSA with
respect to reviewing and approving such placement determinations.
Accordingly, as provided in the next section of this preamble, ORR is
revising Sec. 410.1105(a)(1) to provide that all determinations to
place an unaccompanied child in a secure facility (that is not an RTC)
will be reviewed and approved by ORR Federal field staff.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1104 as proposed with one modification. ORR is
revising Sec. 410.1104 to state that ORR ``shall place'' all
unaccompanied children in standard programs in order to clarify the
mandatory nature of its obligation under this section.
Section 410.1105 Criteria for Placing an Unaccompanied Child in a
Restrictive Placement
ORR proposed in the NPRM at Sec. 410.1105 to address the criteria
for placing unaccompanied children in restrictive placements (88 FR
68922 through 68925). ORR proposed in the NPRM at Sec. 410.1001 to
define restrictive placements to include secure facilities, heightened
supervision facilities, and RTCs. The criteria for placement in each of
these facilities are further discussed below.
ORR proposed in the NPRM at Sec. 410.1105(a) to address placement
at secure facilities that are not RTCs. ORR proposed in the NPRM at
Sec. 410.1105(a)(1) 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.
ORR proposed in the NPRM at Sec. 410.1105(a)(2), that it would not
place an unaccompanied child in a secure facility (that is not also an
RTC) if less restrictive alternative placements are available. ORR
noted that such placements must also be appropriate under the
circumstances and in the best interests of the unaccompanied child. In
[[Page 34423]]
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, ORR explained that it 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 services that would
allow the unaccompanied child with a disability to be placed in that
less restrictive facility. However, ORR stated that it 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. ORR
noted that the proposed regulation text is consistent with 8 U.S.C.
1232(c)(2)(A). Also, ORR noted that this 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 ORR noted that, for purposes of
the proposed rule, is superseded by ``standard program'' as defined at
proposed Sec. 410.1001. Consistent with the FSA, ORR further proposed
in the NPRM at 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 stated that it
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 proposed in the NPRM to place unaccompanied children in secure
facilities (that are not RTCs) in limited, enumerated circumstances set
forth at Sec. 410.1105(a)(3). Specifically, ORR proposed in the NPRM
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 proposed in the NPRM 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
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. ORR noted in the NPRM that
these provisions were also included in the 2019 Final Rule at Sec.
410.203(a)(1), except that as 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 stated that
it 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.\107\ Further,
because it is not a law enforcement agency, unlike the former INS, ORR
stated that it is not in a position to make determinations such as
whether an unaccompanied child is ``chargeable'' with an offense. Even
without this language, ORR stated that it believes finalizing this
provision as proposed 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 did 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.
Second, ORR proposed in the NPRM at 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, finalizing
this provision as proposed in the NPRM would include acts committed in
the presence of an ``ORR official or ORR contracted staff.'' ORR stated
that it believes 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 stated it does not believe this change constitutes a
substantive deviation from the requirements of the FSA.
Third, ORR proposed in the NPRM 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 from
the facility 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, ORR noted that the proposed provision in the NPRM requires
that the conduct at issue be engaged in while in a ``restrictive
placement,'' rather than a ``licensed program.'' ORR stated that it
believes 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 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
proposed in the NPRM 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
stated in the NPRM that it believes this update is consistent with its
authorities under the HSA and TVPRA \108\ and does not believe it
constitutes a substantive deviation from the requirements of the
[[Page 34424]]
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 (88 FR 68923).\109\
ORR proposed in the NPRM at Sec. 410.1105(b) to outline the
policies and criteria that it would apply in placing unaccompanied
children in heightened supervision facilities. ORR noted in the NPRM
that the term ``heightened supervision facility'' as defined at 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 at 45 CFR part 411 and in its subregulatory
guidance. ORR stated that it believes the term ``heightened supervision
facility'' 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, ORR stated that
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 proposed in the NPRM at Sec. 410.1105(b)(1)
that it may place unaccompanied children in this type of facility
either as an initial placement (upon referral from another agency or
department of the Federal Government) or through a transfer from the
initial placement. Furthermore, ORR proposed in the NPRM, at Sec.
410.1105(b)(2), to codify factors it would consider in determining
whether to place an unaccompanied child in a heightened supervision
facility. Specifically, ORR stated it 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 stated that it
believes 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.
ORR proposed in the NPRM at Sec. 410.1105(c) the criteria it would
consider for placing an unaccompanied child in an RTC, as defined at
proposed Sec. 410.1001. ORR stated in the NPRM that it would place an
unaccompanied child in 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 proposed in the
NPRM 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 proposed in the NPRM at Sec. 410.1105(c)(1)
that an unaccompanied child who has 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. ORR stated that 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).\110\ ORR also noted 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 stated that it believes it is
authorized to consider these factors under the TVPRA.\111\ ORR also
noted that it 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.\112\ ORR further stated that
for an unaccompanied child with one or more disabilities, consistent
with section 504, 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
noted that it 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 proposed in the NPRM at Sec. 410.1105(c)(1) that it would use the
criteria for placement in a secure facility described at Sec.
410.1105(a) to assess whether the unaccompanied child is a danger to
self or others. ORR stated that it believes 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).
Consistent with existing policies, under Sec. 410.1105(c)(2), ORR
proposed in the NPRM that it 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, ORR noted that in these
circumstances, even though an unaccompanied child would be physically
located at the OON RTC, the unaccompanied child would remain in ORR's
legal custody. ORR stated that it would monitor the unaccompanied
child's progress and ensure the unaccompanied child is receiving
required services. ORR explained that OON RTCs are vetted prior to
placement to ensure that the program is in good standing and is
complying with all
[[Page 34425]]
applicable State welfare laws and regulations and all State and local
building, fire, health, and safety codes. ORR further explained that it
also may confer with other Federal agencies and non-governmental
stakeholders, such as 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 noted
that it 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).
ORR proposed in the NPRM at Sec. 410.1105(c)(3) that 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). ORR proposed
in the NPRM at Sec. 410.1105(c)(3) to permit care provider facilities
to request that ORR transfer certain unaccompanied children to RTCs.
ORR noted that proposed Sec. 410.1601(d) further addresses when a care
provider facility may make such a request.
Comment: Several commenters expressed support for ORR's proposal to
reduce the use of restrictive placements and establish clearer
guidelines for when such placements are deemed appropriate, in
accordance with the terms of the FSA. These commenters noted that
restrictive placements can have a lasting impact on the well-being of
unaccompanied children and should be considered a measure of last
resort. Commenters stated that by undertaking measures to minimize
their use and providing explicit guidelines for their application, as
well as processes for contesting these placement decisions, ORR is
taking a commendable step in safeguarding the rights and safety of
these vulnerable children.
One commenter specifically agreed with the proposal to exclude
language from Sec. 410.1105(a)(3)(i) that would allow ORR to make
determinations regarding secure facility placement based on whether an
unaccompanied child is ``chargeable.''
Response: ORR notes that for the reasons set forth in the NPRM (88
FR 68923), ORR is finalizing proposed Sec. 410.1105(a)(3)(i), which
excludes language that would allow ORR to make determinations regarding
secure facility placement based on whether an unaccompanied child is
``chargeable.''
Comment: One commenter urged ORR to prioritize locating restrictive
programs in geographic locations where there exists a continuum of care
that includes all levels of placement, including community-based care,
stating that this would allow for children in restrictive care who are
ready to transition to less restrictive settings (including community-
based care) to be easily and quickly stepped-down. The commenter
further noted that this would also enable co-located programs in the
same region to share resources, build expertise in the needs of
unaccompanied children, and gain greater familiarity with local
programs in ways that can better support children's timely transfer to
less restrictive care settings.
Response: ORR believes this suggestion is worthy of greater
consideration and may consider it in future policymaking. ORR also
notes that Sec. 410.1103(f) and (g), as finalized in this rule, will
help to ensure that children in restrictive placements who are assessed
by ORR and the care provider facility as ready to step down to a less
restrictive placement (including community-based care) are promptly
transitioned to appropriate facilities consistent with their best
interests. In each case, ORR takes into account the factors set forth
at Sec. 410.1103 to the extent relevant, as well as the factors set
forth at Sec. 410.1105 as appropriate, in determining and planning
such transitions to ensure a safe and appropriate placement. In this
manner, ORR facilitates prompt placement of unaccompanied children,
including children with disabilities, in the least restrictive, most
integrated setting appropriate to their needs as mandated by the TVPRA
and as is consistent with section 504.
Comment: Many commenters expressed the view that proposed Sec.
410.1105 uses undefined and vaguely worded provisions, including the
terms ``unacceptably disruptive,'' ``severity of behavior,''
``malicious,'' and other critical terms, and various assessments for
agency decision points. One commenter specifically noted their concern
that the reliance on subjective assessments and the absence of clear
benchmarks allows for differing interpretations among staff, which
could lead to inconsistencies in decision-making or manipulation of the
rules which may put children at risk.
While many commenters appreciated that the NPRM at Sec.
410.1105(a)(3)(iii) limited the ``unacceptably disruptive'' criteria
for secure placement to behavior that occurs in a restrictive
placement, such that for example unacceptably disruptive behavior in a
shelter would not lead to immediate step-up to a secure facility, they
expressed that the ``unacceptably disruptive'' criteria for placement
in either a secure or heightened supervision facility was
inappropriately vague and created a high risk that children would be
punished through step-up to more restrictive facilities for behaviors
that are a manifestation of their disabilities.
Several commenters stated that if a child with a disability is
considered for step-up to a more restrictive facility based on their
behavior, the rule should require a ``manifestation determination''
(which could be similar to the determination under the Individuals with
Disabilities Education Act (IDEA)) to determine whether the child's
behavior is linked to their disability and/or is the result of a
failure to provide the child with reasonable modifications and
services. These commenters stated that if a child's behavior is a
manifestation of their disability, ORR must conduct a functional
behavioral assessment and develop (or review) a behavior intervention
plan for the child instead of changing their placement.
Some commenters noted that children in secure facilities often have
unmet behavioral health needs or unaddressed mental health
disabilities. Commenters also expressed that a child whose behavior is
deemed disruptive should be assessed by trained professionals and given
services and supports necessary to meet their individualized needs
instead of being stepped up to a more restrictive setting. One
commenter noted that ``disruptive'' behavior is often a child's way of
communicating that they feel disrespected, unheard, or that their needs
are not being met. Furthermore, the commenter noted that Black children
and children from other marginalized groups are more likely to be
considered ``disruptive'' due to systemic racism. The commenter noted
that this bias can be compounded if there is a lack of cultural
humility and competency on the part of ORR subcontracted staff.
One commenter expressed the view that criteria such as risk of
flight, danger to self or others, or criminal history were broad and
vague, stating that this would violate the children's right to liberty
and placement in the least restrictive setting and expose them to
harmful and traumatic conditions.
Many commenters expressed the view that Sec. 410.1105(b)(2)(v) is
ambiguous and greater guidance is needed. The commenters recommended
the
[[Page 34426]]
development of specific behavioral criteria to indicate the need for a
heightened supervision setting or a return to a standard shelter
setting, which could include failure of an established behavior
management plan, behavioral reports of threats of safety to self or
others, or conversely the absence of such reports and completion of an
established behavior plan.
Response: ORR believes that the ``unacceptably disruptive''
criterion, as it relates to both secure facilities (that are not RTCs)
(at Sec. 410.1105(a)(3)(iii)) and heightened supervision facilities
(at Sec. 410.1105(b)(2)(i)), is consistent with the TVPRA, under which
the Secretary may consider danger to self and community in making
placements, and reasonably reflects pertinent behavioral concerns that
may warrant placement in such restrictive settings. Further, as noted
in the NPRM, this ``unacceptably disruptive'' criterion for placement
in secure facilities (that are not RTCs) is consistent with paragraph
21 of the FSA. ORR notes that Sec. 410.1105(a)(3)(iii) provides
specific requirements and guardrails with respect to the circumstances
in which placement in a secure facility (that is not an RTC) may be
warranted where a child's behavior, while in a restrictive placement
(but not a shelter), has proven to be unacceptably disruptive of the
normal functioning of a care provider facility. In order for an
unaccompanied child's disruptive behavior to warrant placement in a
secure facility (that is not an RTC), removal of the child from the
less restrictive facility must be necessary to ensure the welfare of
others, as determined by the staff of the care provider facility (e.g.,
stealing, fighting, intimidation of others, or sexually predatory
behavior), and ORR must determine that the child poses a danger to
others. Similarly, Sec. 410.1105(b)(2)(i), addressing heightened
supervision facilities, provides additional guidance with respect to
the application of this criterion, providing that a child must be
unacceptably disruptive to the normal functioning of a shelter such
that transfer to the heightened supervision facility is necessary to
ensure the welfare of the child or others. Applying this criterion
requires care provider facility staff and ORR to make determinations
based on individual circumstances and in the best interests of both the
child whose placement is at issue and the best interests of other
children in the relevant facility. As a result, ORR believes it
promotes necessary flexibility in application of this criterion to not
include a definition of the term ``unacceptably disruptive.''
ORR notes that it has protections in place to ensure that children
with identified or suspected disabilities are assessed by trained
professionals and given services and supports necessary to meet their
individualized needs. As provided by Sec. 410.1106, ORR must assess
each unaccompanied child in its care, including any child with a
disability, to determine whether the unaccompanied child requires
particular services and treatment by staff, or particular equipment to
address their individualized needs. If so, ORR must place the
unaccompanied child, whenever possible, in a standard program in which
the unaccompanied child with individualized needs can interact with
children without those individualized needs to the fullest extent
possible, but which provides services and treatment, or equipment for
such individualized needs. Additionally, pursuant to the new Sec.
410.1105(d), and consistent with section 504 and Sec. 410.1311(c),
ORR's determination under Sec. 410.1105 whether to place an
unaccompanied child with one or more disabilities in a restrictive
placement (or to transfer an unaccompanied child to such a placement)
shall include consideration of whether there are any reasonable
modifications to the policies, practices, or procedures of an available
less restrictive placement (which could be the child's current
placement) or any provision of auxiliary aids and services that would
allow the unaccompanied child to be placed in that less restrictive
facility. However, ORR is not required to take any action that it can
demonstrate would fundamentally alter the nature of a program or
activity.
In response to commenters' specific recommendation for a
``manifestation determination'' to determine whether the child's
behavior is linked to their disability and/or is the result of a
failure to provide the child with reasonable modifications and
services, ORR notes that, while the IDEA does not govern the placement
of children with disabilities in ORR custody, as is consistent with the
new Sec. 410.1105(d), ORR will assess whether a child's behavior is
related to the child's disability or failure to receive the necessary
reasonable modifications and services. ORR may consider commenters'
recommendations concerning functional behavioral assessments and
behavior intervention plans in future policymaking, which may be
informed by the anticipated year-long comprehensive disability needs
assessment that ORR will undertake working with experts, and the
development of a disability plan. In addition, ORR refers readers to
Sec. 410.1304 for discussion of its requirements regarding behavioral
management strategies and interventions.
In response to comments regarding the need to be sensitive to
factors such as racial or cultural bias that could potentially
influence whether a child is determined to be ``unacceptably
disruptive,'' both the NPRM and this final rule include provisions to
specifically require that within all placements, unaccompanied children
are treated with dignity, respect, and special concern for their
particular vulnerability; to ensure services are provided based on
their individualized needs and best interests; and to ensure that care
provider facilities deliver services in a manner that is sensitive to
the age, culture, native language, and complex needs of unaccompanied
children.\113\
With respect to the terms risk of flight, danger to self or others,
or criminal history, which one commenter stated are vague or broad,
consideration of these terms is consistent with the TVPRA, which
provides that ORR may, in determining the least restrictive placement
in a child's best interest, consider danger to self, danger to the
community, and risk of flight in making placements and states that a
child may 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 a criminal offense.\114\
With respect to the recommendation to provide greater guidance
regarding Sec. 410.1105(b)(2)(v) through the development of specific
behavioral criteria to indicate the need for a heightened supervision
setting or a return to a standard shelter setting, ORR will consider
the commenters' recommendations and may provide further instruction in
future policymaking.
Comment: Several commenters recommended that the clear and
convincing standard of proof should be added to Sec. Sec. 410.1105(a)
and 410.1105(b), consistent with the standard in Sec. Sec. 410.1901(a)
and 410.1105(c)(1), to clarify that clear and convincing evidence is
required not just in RTC placement determinations, but in all other
restrictive placement determinations as well.
Response: As reflected in Sec. 410.1901(a), in all cases involving
placement in a restrictive setting, including placement in secure
facilities (including RTCs) and heightened supervision facilities, ORR
must determine, based on clear and
[[Page 34427]]
convincing evidence, that sufficient grounds exist for stepping up or
continuing to hold an unaccompanied child in a restrictive placement.
ORR agrees that for clarity and consistency, the clear and convincing
evidence standard of proof should be added to Sec. 410.1105(a) and
(b). Thus, ORR is finalizing revisions to Sec. 410.1105(a)(1) and
(b)(1) to state that the placement determinations under paragraphs (a)
and (b) must be made based on clear and convincing evidence documented
in the unaccompanied child's case file.
Comment: Several commenters urged ORR to remove the use of secure
facilities from its provider network and eliminate reference to such
facilities in the final rule, because in their view children housed in
secure facilities face disparate treatment and lasting harm. The
commenters also stated that ORR is under no statutory or judicial
obligation to create a regulatory scheme that places children in secure
facilities (e.g., under the TVPRA or the FSA). One commenter further
stated that ORR provided no justification for failing to apply the
standards delineated in Sec. 410.1302 to secure facilities.
One commenter asserted that the continuing use of secure facilities
under the proposed rule will place children at high risk of ongoing
constitutional rights violations, expressing concern that unaccompanied
children placed in such facilities lack appropriate mental health
evaluations and services, and could be subjected to mechanical
restraints or seclusion, as well as discriminatory verbal abuse.
A few commenters expressed concern that unaccompanied children are
placed in secure facilities at the discretion of Federal officials,
rather than by a judge's order in a proceeding where the child is
represented, which one commenter noted is required for children placed
in these kinds of restrictive facilities in other contexts.
Response: In response to commenters' requests that ORR discontinue
the use of secure facilities, ORR notes that although neither the TVPRA
nor the FSA require the placement of children in secure facilities,
both 8 U.S.C. 1232(c)(2)(A) and paragraph 21 of the FSA nevertheless
contemplate the placement of children in secure facilities in certain
limited circumstances. ORR continues to believe that in certain rare
situations it may be necessary to place children in such facilities to
ensure the safety and well-being of the child or others. Thus, Sec.
410.1105(a), as finalized in this rule, includes criteria, consistent
with the TVPRA and the FSA, for placing an unaccompanied child in a
secure facility (that is not an RTC). ORR notes that, consistent with
the TVPRA, in all cases where an unaccompanied child is placed in a
secure facility (including an RTC), such a setting must be the least
restrictive setting that is in the best interests of the child and
appropriate to the child's age and individualized needs, which is
assessed taking into account numerous factors to the extent they are
relevant to such a placement, including danger to self, danger to
community/others, and criminal background.
ORR stresses that secure facilities will be required to meet the
standards set forth at subpart D, including the minimum standards under
Sec. 410.1302. The standards at subpart D include many of the
protections that commenters have requested, including significant ones
addressing minimum standards applicable at standard and secure
facilities, monitoring and quality control, behavior management, staff
trainings, language access, child advocates, legal services, health
care services, and children with disabilities.\115\ For example, ORR
notes that the final regulations prohibit the use or threatened use of
corporal punishment (Sec. 410.1304(a)(1)), prohibit the use of prone
physical restraints, chemical restraints, or peer restraints for any
reason in any care provider facility setting (Sec. 410.1304(a)(3)),
and allow secure facilities, that are not RTCs, to use personal
restraints, mechanical restraints, and/or seclusion in emergency safety
situations, and as consistent with State licensure requirements (Sec.
410.1304(e)(1)). ORR believes that restraints and seclusion should only
be used after de-escalation strategies and less restrictive approaches
have been attempted and failed. As discussed in the NPRM (88 FR 68942),
in secure facilities, not including RTCs, there may be situations where
an unaccompanied child becomes a danger to other unaccompanied
children, care provider facility staff, or property. As a result, such
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.
With respect to protecting children from verbal abuse, ORR notes
that within all placements, unaccompanied children must be treated with
dignity, respect, and special concern for their particular
vulnerability (Sec. Sec. 410.1003(a), 410.1300) and that the
definition of ``significant incidents'' includes abuse or neglect
(Sec. 410.1001). Additionally, if ORR determines that any such staff
behavior is occurring, it has authority to take actions including
stopping placement and actions pursuant to 45 CFR part 75 (e.g., 45 CFR
75.371).
In response to the concern that unaccompanied children are placed
in secure facilities by Federal officials rather than by a judge's
order, ORR notes that the TVPRA provides for placement by the Secretary
and does not require a judge's order. Specifically, the TVPRA requires
the Secretary to place unaccompanied children in its custody in the
least restrictive setting that is in the best interest of the child,
and states that such placements may be in restrictive settings if
certain conditions are met (that is, a child may 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).\116\ Nevertheless, to guard against the inappropriate
placement of a child in a secure facility, this final rule also
provides for review of decisions to place unaccompanied children in
restrictive placements.\117\
Comment: One commenter recommended removing Sec. 410.1105 in its
entirety, stating that ORR will violate section 504 and the Supreme
Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999) by placing
children, especially children with disabilities, in segregated, secure
facilities (including RTCs). The commenter asserted that section 504's
implementing regulations require that a public entity administer
services, programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with disabilities
with the ``most integrated setting'' being one that ``enables
individuals with disabilities to interact with nondisabled persons to
the fullest extent possible.''
Furthermore, the commenter stated that placing unaccompanied
children who are a danger to themselves in secure facilities means that
children with mental health disabilities can be placed in more
restrictive settings simply because of their disability, which the
commenter asserted violates both the letter and the spirit of section
504. The commenter also noted that although proposed Sec.
410.1105(c)(1) requires a dangerousness determination for children with
``serious'' mental or behavioral issues by licensed clinicians in the
RTC context, there is no similar requirement for other secure
facilities, or other restrictive placements. The commenter further
expressed that there is no definition for what a ``serious'' mental or
behavioral issue is versus a ``non-serious'' one, and there is no
[[Page 34428]]
information about who will make that determination prior to referring
the child for evaluation to a licensed professional. Thus, the
commenter stated that ORR's new rule would not protect children with
disabilities from inappropriately remaining in overly restrictive
settings, and that Sec. 410.1105(a)(1) will put children with
disabilities and those with the most need for community care in the
most restrictive settings.
Finally, the commenter expressed the view that ORR does not conduct
a sufficient individualized, fact-dependent inquiry in each case, or
provide any information about how children may obtain such
accommodations, nor what kind of accommodations can be provided that
are rooted in community care.
Response: ORR does not agree that the final rule will violate
section 504 or the Supreme Court's decision in Olmstead v. L.C., 527
U.S. 581 (1999) by providing for placement of unaccompanied children,
including children with mental health or other disabilities, in secure
facilities (including RTCs), in the limited circumstances provided in
Sec. 410.1105. As noted above, ORR is adding new Sec. 410.1105(d) to
state that for an unaccompanied child with one or more disabilities,
consistent with section 504 and Sec. 410.1311(c), as revised in this
rule, ORR's determination under Sec. 410.1105 whether to place the
unaccompanied child in a restrictive placement (or to transfer an
unaccompanied child with one or more disabilities to such a placement)
shall include consideration whether there are any reasonable
modifications to the policies, practices, or procedures of an available
less restrictive placement (which could be the child's current
placement) or any provision of auxiliary aids and services that would
allow the unaccompanied child to be placed in that less restrictive
facility. However, ORR is not required to take any action that it can
demonstrate would fundamentally alter the nature of a program or
activity. Furthermore, pursuant to Sec. 410.1311(a), ORR shall provide
notice to the unaccompanied child of the protections against
discrimination under section 504 and HHS implementing regulations at 45
CFR part 85 assured to children with disabilities and notice of
available procedures for seeking reasonable modifications or making a
complaint about alleged discrimination. Thus, the final rule includes
provisions to prevent children with disabilities, including those with
mental health needs, from being placed in the most restrictive
placements simply by virtue of needing specialized care, and to
facilitate placement in the least restrictive, most integrated setting
consistent with their best interests and appropriate to their age and
individualized needs. ORR will consider providing additional guidance
regarding the placement of children with disabilities, including
information regarding what kind of accommodations can be provided that
are rooted in community care, as requested by commenters, in future
policymaking which may be informed by the findings of the anticipated
year-long comprehensive disability needs assessment and the development
of the disability plan as discussed at Section III.B.4.
Moreover, the final rule includes certain guardrails such as the
clear and convincing evidence standard at Sec. 410.1901, that serve to
protect children from being inappropriately placed in restrictive
facilities (both as an initial matter, and upon review at least every
30 days). For a child with a serious mental or behavioral issue in
particular, Sec. 410.1105(c)(1) specifies that the child may be placed
in an RTC only if the child is evaluated and determined to be a danger
to self or others by a licensed clinical psychologist or psychiatrist,
which includes a determination by clear and convincing evidence that
RTC placement is appropriate. Thus, a trained mental health
professional will make the determination regarding whether RTC
placement is appropriate. In regard to the clear and convincing
evidence standard applicable to placement in RTCs under Sec.
410.1105(c)(1), ORR clarifies that its intent is that there must be a
determination of clear and convincing evidence before placing any child
in an RTC. To clarify this requirement, ORR is finalizing revisions to
Sec. 410.1105(c)(1) to provide that the child must be 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, including documentation by a
licensed psychologist or psychiatrist that placement in an RTC is
appropriate.
Comment: One commenter opposed the use of both secure facilities
and heightened supervision facilities, stating that the use of secure
facilities, and heightened supervision facilities where there is not an
individualized assessment indicating how the child's best interests are
best served there, are impermissible restrictions on liberty and
dangerous and detrimental to the well-being of unaccompanied children.
The commenter recommended that, in accordance with international
standards (e.g., the United Nations Convention on the Rights of the
Child; United Nations High Commissioner for Refugees (UNHCR), Refugee
Children: Guidelines on Protection and Care; UNHCR Position Regarding
the Detention of Refugee and Migrant Children in the Migration
Context), ORR should end the use of all secure facilities and limit the
use of heightened supervision facilities to programs that provide
specialized therapeutic care to children for whom it is determined to
be in their best interests. The commenter encouraged ORR to develop
additional alternatives to detention, such as specialized post-release
services and specialized transitional homes designed to support
children to return to community living. The commenter also recommended
that, rather than placing unaccompanied children with behavioral
problems in restrictive settings, ORR should adopt a psychosocial/
social work approach based on best interests assessments to help them
improve behavior.
In addition, the commenter recommended strengthening the assessment
of the child's best interest in cases involving prolonged detention/
family separation, using an individualized assessment rather than
generalized criteria or factors, and reviewing the practices utilized
for assessing and weighing community risk. The commenter also
recommended that while use of secure and heightened supervision
continues to exist, ORR should take all necessary steps to place
children in the least restrictive setting for the shortest period of
time and prioritize appointment of child advocates and legal
representation for all children in secure and heightened supervision
facilities.
Response: ORR appreciates the commenter's concerns, but for the
same reasons explained in previous responses to comments related to
secure facilities, ORR does not believe the use of secure or heightened
supervision facilities in the limited circumstances set forth at Sec.
410.1105 will constitute an impermissible restriction on liberty or
will be dangerous and detrimental to the well-being of unaccompanied
children. As discussed further in subpart D of this final rule, both
secure facilities and heightened supervision facilities will be
required to meet the standards set forth at subpart D, including the
minimum standards under Sec. 410.1302. ORR continues to believe that
in certain situations it may be necessary to place children in such
facilities to ensure the safety and well-being of the child or
[[Page 34429]]
others. ORR notes that, consistent with the TVPRA and Sec. 410.1103,
in all cases, such settings must be the least restrictive setting that
is in the best interests of the child and appropriate to the child's
age and individualized needs, which are assessed on an individual basis
for each child considering numerous factors to the extent they are
relevant to such a placement, including danger to self, danger to
community/others, and criminal background.
Comment: A few commenters recommended that ORR remove the clause,
``provided that the unaccompanied child does not pose a danger to self
or others'' from Sec. 410.1105(a)(2). The commenters asserted that
because ``danger to self or others'' is already a requirement for
secure placement (at Sec. Sec. 410.1105(a)(3), (c)), this additional
clause (``provided that the unaccompanied child does not pose a danger
to self or others'') renders Sec. 410.1105(a)(2) meaningless. The
commenters further stated that this additional language is unnecessary
because paragraph 23 of the FSA and Sec. 410.1105(a)(2) of the NPRM
already limit alternative placements to those that are ``available and
appropriate under the circumstances,'' noting that ORR is not required
to make an unsafe placement because such a placement would not be
``appropriate.'' The commenters also cautioned that a child who poses a
danger to self or others at one point in time can sometimes be safely
and appropriately placed in a less restrictive setting with reasonable
modifications that mitigate danger. These commenters also recommended
that ORR remove this clause from Sec. 410.1105(a)(2) because it
suggests ORR considers a staff-secure facility an alternative to a
secure facility. However, the commenters noted that a child who is not
a danger to self or others does not qualify to be placed in an RTC or
secure facility, therefore staff secure is not an alternative to
placement in a secure facility. The commenters stated that the final
rule should mirror the language of paragraph 23 of the FSA and
eliminate this clause, ``provided that the unaccompanied child does not
pose a danger to self or others.'' Some commenters also recommended
that ORR update language throughout Sec. 410.1105 by removing ``danger
to self'' as a criterion for placement in a secure facility (that is
not an RTC), noting that ORR policy and practice has typically been to
place children who pose a danger to self in an RTC or staff secure
setting rather than a secure facility that is not an RTC.
Response: ORR appreciates the commenter's recommendations and
agrees that a child who poses a danger to self or others at one point
in time can be stepped down to a less restrictive facility at a later
time. ORR also acknowledges that a child's danger to self should not be
the sole basis for placement in a secure facility (that is not an RTC).
Therefore, in this final rule, ORR is amending Sec. 410.1105(a)(2) to
state that it shall place an unaccompanied child in a heightened
supervision facility or other non-secure facility as an alternative to
a secure facility (that is not an RTC), provided that the unaccompanied
child does not ``currently'' pose a danger to others and does not need
placement in an RTC pursuant to Sec. 410.1105(c). ORR agrees to make a
clarifying edit in the regulatory text by striking reference to
``danger to self'' in Sec. 410.1105(a)(2) and Sec. 410.1105(a)(3)(i),
(ii), and (iii), as well as adding an affirmative statement in Sec.
410.1105(a)(1) that a finding that a child poses a danger to self shall
not be the sole basis for a child's placement in a secure facility
(that is not an RTC). In addition, because ORR is striking ``danger to
self'' in Sec. 410.1105(a)(3)(iii), ORR is deleting ``substance or
alcohol use'' from the examples of ``unacceptably disruptive'' conduct
addressed in that paragraph. Finally, because the criteria for
assessing dangerousness under Sec. 410.1105(a) and (c) now differ, ORR
is revising Sec. 410.1105(c)(1) to remove the last sentence (``In
assessing danger to self or others, ORR shall use the criteria for
placement in a secure facility at paragraph (a) of this section). To
help ensure that a child in a restrictive placement is promptly stepped
down to a less restrictive placement if appropriate and in the child's
best interest, ORR notes that at Sec. 410.1901(d), ORR is required to
ensure the following automatic administrative reviews: (1) at minimum,
a 30-day administrative review for all restrictive placements; and (2)
a more intensive 90-day review by ORR supervisory staff for
unaccompanied children in secure facilities.
Comment: Many commenters provided other recommendations with
respect to language in proposed Sec. 410.1105(a)(2). While many
commenters supported ORR's proposal that, consistent with section 504,
ORR would 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 services that would
allow an unaccompanied child with a disability to be placed in that
less restrictive facility, some commenters stated that the proposed
rule should mandate an analysis of reasonable modifications and
auxiliary aids and services to permit a child to be placed in a less
restrictive facility. These commenters stated that to adequately
protect children's rights, the consideration of reasonable
modifications and auxiliary aids and services to facilitate less
restrictive placement must be explicitly incorporated into the
regulation text and apply both to an initial transfer decision and to a
child's 30-day restrictive placement case review under proposed
Sec. Sec. 410.1105, 410.1601, and 410.1901.
A few commenters stated that, consistent with DOJ's position on
section 504's integration mandate, the final rule should also specify
that the consideration of less restrictive alternatives will include
consideration of community-based placement options such as individual
foster homes, noting that children who struggle in congregate care
placements often do much better in a community placement.
Finally, one commenter noted that in proposed Sec. 410.1105(a)(2),
secure placements must be appropriate under the circumstances and in
the best interests of the child, but stated that this is contradictory,
as secure placements will almost never be in the best interest of the
child, especially when they have a disability and that no accommodation
in secure detention could adequately meet the needs of children with
disabilities. The commenter stated that these children require
professional care by licensed providers in the community.
Response: ORR agrees that the consideration of reasonable
modifications and auxiliary aids and services to facilitate less
restrictive placement should be explicitly incorporated into the
regulation text and apply both to an initial transfer decision and to a
child's 30-day restrictive placement case review under proposed
Sec. Sec. 410.1105, 410.1601, and 410.1901. Accordingly, as noted, ORR
is adding new Sec. 410.1105(d) to state that for an unaccompanied
child with one or more disabilities, consistent with section 504, ORR's
determination under Sec. 410.1105 whether to place the unaccompanied
child in a restrictive placement shall include consideration 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 services that would allow the unaccompanied child
to be placed in that less restrictive facility. Section 410.1105(d)
further states that ORR's
[[Page 34430]]
consideration of reasonable modifications and auxiliary aids and
services to facilitate less restrictive placement shall also apply to
transfer decisions under Sec. 410.1601 and will be incorporated into
restrictive placement case reviews under Sec. 410.1901. In addition,
Sec. 410.1105(d) clarifies that ORR is not required to take any action
that it can demonstrate would fundamentally alter the nature of a
program or activity.
In response to the recommendation that the final rule also specify
that the consideration of less restrictive alternatives will include
consideration of community-based placement options, ORR agrees that the
consideration of less restrictive alternatives under Sec.
410.1105(a)(2) would include consideration of non-restrictive
community-based alternatives, such as individual foster homes, as
available and appropriate under the circumstances. However, ORR does
not believe it is necessary to include this provision in the regulation
text at Sec. 410.1105(a)(2). ORR believes that under Sec. 410.1102,
it is sufficiently clear that community-based placements such as
individual family homes and groups homes, are among the types of less
restrictive placement alternatives available for unaccompanied children
based on an assessment of a child's best interest, age, and
individualized needs, as well as the best interests of others. ORR also
agrees that there are many advantages to community-based care, and as
discussed previously in the preamble to this final rule, ORR is
currently studying and developing a community-based care model for
future implementation.
ORR emphasizes its preference to not place unaccompanied children
in secure placements except in limited circumstances where the safety
and well-being of the child or other unaccompanied children in care
requires it, and refers the commenter to its response to the comments
above concerning secure and heightened supervision placements, and the
placement of children with disabilities in such settings. ORR is
committed to placing children in the least restrictive setting in their
best interests and ensuring that such placements are able to meet the
individualized needs of children with disabilities.
Comment: Several commenters recommended that ORR eliminate the use
of secure facilities, but in the alternative recommended that ORR make
certain revisions to the criteria at Sec. 410.1105(a)(3) to implement
substantial additional safeguards.
First, commenters recommended that ORR revise Sec.
410.1105(a)(3)(i) to delete ``or is the subject of delinquency
proceedings, delinquency charge, or has been adjudicated delinquent,''
stating that the TVPRA and Supreme Court precedent provide
justification for not considering delinquency records (whether in the
form of charges or adjudications) in placing children in restrictive
settings. Commenters noted that Congress omitted any reference to
juvenile delinquency adjudications in the TVPRA, instead requiring that
ORR refrain from placing children in secure settings absent
dangerousness or a criminal charge which indicated that Congress did
not view delinquency charges or adjudications as pertinent to
restrictive placements. Further, the commenters cited Roper v. Simmons,
543 U.S. 551, 569-70 (2005), to assert that the Supreme Court has
recognized that children lack maturity and responsibility and as a
result engage in impulsive actions and are more susceptible to negative
influences. Commenters concluded that, as such, children's criminal or
delinquent history should have little, if any, bearing on placement
decisions, and that ORR must not draw conclusions about a child's
character based on violations of the law, even in in the context of
criminal convictions.
Second, commenters recommended that ORR amend the end of Sec.
410.1105(a)(3)(i) to state ``and where ORR determines by clear and
convincing evidence that those circumstances demonstrate that the
unaccompanied child poses a danger to self or others,'' stating that
this would better align with the proposed rule's goal to codify the use
of placement review panels under proposed Sec. 410.1901(a). Commenters
further stated that ORR must make a measured, supported assessment to
ensure that no child is harmed by an improper transfer.
Third, commenters stated that ORR should delete Sec.
410.1105(a)(3)(ii), because its consideration is already captured under
the dangerousness assessment under Sec. 410.1105(a)(3)(i) and the
evaluation of maliciousness goes beyond ORR's expertise and is best
suited for law enforcement agencies.
Fourth, commenters recommended that ORR delete Sec.
410.1105(a)(3)(iii), which they stated is similarly redundant of the
dangerousness assessment ORR performs in each case and in the view of
these commenters, has led to improper placement of children in
restrictive settings.
Response: ORR declines to make commenters' recommended revisions to
Sec. 410.1105(a)(3).
First, inclusion of the phrase at Sec. 410.1105(a)(3)(i), ``or is
the subject of delinquency proceedings, delinquency charge, or has been
adjudicated delinquent,'' is consistent with the TVPRA and the FSA at
paragraph 21. The TVPRA provides that 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 . . .''.\118\ ORR believes this language encompasses
consideration of whether the unaccompanied child is the subject of
delinquency proceedings, a delinquency charge, or has been adjudicated
delinquent. In addition, delinquency proceedings, charges, or
adjudications may be relevant to determining whether a child ``poses a
danger to self or others.'' \119\ Furthermore, ORR notes that the
language identified by the commenters is consistent with paragraph 21
of the FSA.\120\ ORR continues to believe that it is imperative to
consider a child's criminal background, including delinquency
proceedings, delinquency charges, or delinquency adjudications, in
order to determine the least restrictive placement in the best
interests of the child, as appropriate to the child's age and
individualized needs and to protect the safety and well-being of other
children in ORR's care and custody.
Second, in response to the recommendation that ORR amend Sec.
410.1105(a)(3)(i), ORR is adding an explicit reference to the clear and
convincing evidence standard to Sec. 410.1105(a)(1) and thus it is not
necessary to revise Sec. 410.1105(a)(3)(i) as requested by the
commenters.
Third, ORR does not agree that Sec. 410.1105(a)(3)(ii) should be
deleted. The language at Sec. 410.1105(a)(3)(ii) is intended to
capture circumstances that are not covered under paragraph (a)(3)(i)--
that is, where a child has not been charged with or convicted of a
crime, and is not the subject of delinquency proceedings, does not have
a delinquency charge, and has not been adjudicated delinquent, but has
engaged in behavior that would justify placement in a secure facility
(that is not an RTC) based on danger to others. With respect to the
concern regarding the term ``malicious,'' due to the individualized
nature of placement determinations, including placements in restrictive
settings, ORR believes it is necessary to allow for flexibility in its
interpretation and application of this term for purposes of Sec.
410.1105(a), to allow for a complete assessment of each case and to
accommodate the different circumstances in which such behavior
[[Page 34431]]
may occur. ORR also notes that while Sec. 410.1105(a)(3) describes the
circumstances under which an unaccompanied child may be placed in a
secure facility (that is not an RTC), any placement determination must
be consistent with the TVPRA requirement that it be in the least
restrictive setting that is in the best interest of the child. As a
result, ORR reviews multiple relevant factors when placing a child in a
secure facility (that is not an RTC), not only the factors described at
Sec. 410.1105(a)(3).
Fourth, in response to the commenters' recommendation to delete
Sec. 410.1105(a)(3)(iii), ORR believes that paragraph (a)(3)(iii) is
necessary to encompass additional situations that may not be covered
under paragraphs (a)(3)(i) and (a)(3)(ii), that may warrant a
determination that placement in a secure facility (that is not an RTC)
is necessary because of danger to others, such as stealing, fighting,
intimidation of others, or sexually predatory behavior. In response to
the commenters concern that the language at Sec. 410.1105(a)(3)(iii)
has led to improper placement of children in restrictive settings, ORR
refers readers to responses to similar comments in this section
addressing the use of the term ``unacceptably disruptive.''
Comment: Several commenters asserted that a dangerousness
determination for placement of a child with a disability in a secure
facility should be consistent with section 504. Commenters stated that
the proposed rule should therefore specify that a child with a
disability will not be deemed to pose a danger to self or others unless
they pose a ``direct threat'' which cannot be eliminated by a
modification of policies, practices or procedures, or by the provision
of auxiliary aids or services.
A number of commenters recommended that if ORR determines that a
child with a disability's placement in a less restrictive setting
amounts to a direct threat, even with reasonable modifications, the
child should be placed in a Qualified Residential Treatment Program
(QRTP),\121\ rather than a secure juvenile detention facility which the
commenters stated is harmful to children and especially inappropriate
for children with disabilities. These commenters further stated that
updated assessments must be conducted regularly, including when a
child's placement is in a segregated setting, to determine if a more
integrated setting, such as a family placement, is appropriate.
Response: ORR agrees with commenters that the determination
relating to danger for placing a child with a disability in a secure
facility including an RTC should be consistent with section 504. ORR
notes that the TVPRA, 8 U.S.C. 1232(c)(2)(A) permits consideration of
whether the child is a danger to self or others in any placement
determination, and specifically states that a child may 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 a criminal offense.
Thus, ORR believes it is appropriate to consider whether the child is a
danger to self or others in order to identify a placement that best
protects the safety and well-being of the child and others. However, as
noted in a previous response in this section, ORR acknowledges that a
child's danger to self should not be the sole basis for placement in a
secure facility (that is not an RTC) and is making edits in the
regulatory text by striking reference to ``danger to self'' in Sec.
410.1105(a)(2) and Sec. 410.1105(a)(3)(i), (ii), and (iii) as well as
adding an affirmative statement to that effect in Sec. 410.1105(a). In
addition, as discussed previously, before placing any child in a secure
facility, including an RTC, ORR determines if less restrictive
alternatives in the best interest of the child are available and
appropriate, and in doing so, ORR will 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 services that would allow an unaccompanied child with a
disability to be placed in that less restrictive facility, consistent
with section 504. ORR refers the reader to prior responses to comments
concerning the placement of children with disabilities in restrictive
facilities.
ORR will consider the commenters' recommendations regarding
incorporation of the ``direct threat'' standard and placement in QRTPs
and may address them further in future policymaking. Further, ORR notes
that placements in restrictive settings are regularly reviewed to
determine if a less restrictive placement is appropriate. As provided
in Sec. 410.1901, and finalized in this rule, ORR will conduct a
review of all restrictive placements, including RTCs, at least every 30
days, and reviews of RTC placements must involve a psychiatrist or
psychologist to determine whether the child should remain in
restrictive residential care. ORR must also ensure a more intensive 90-
day review by ORR supervisory staff for children in secure facilities.
Comment: Many commenters recommended revisions to Sec.
410.1105(c). First, commenters recommended that the term ``serious
mental health and behavioral issues'' should be replaced by ``serious
mental health and behavioral needs'' to focus on the child's needs and
reduce stigma. Second, commenters recommended that ORR add the
following language to Sec. 410.1105(c): ``ORR shall not consent to a
child's placement in an RTC when the child has a disability and, with
services or reasonable modifications, the child can be served in a more
integrated setting.''
Response: ORR does not believe it is necessary or appropriate to
change the term ``serious mental health and behavioral issues'' to
``serious mental health and behavioral needs.'' ORR believes that the
term ``serious mental health and behavioral issues'' encompasses an
assessment of whether there are ``serious mental health and behavioral
needs'' and does not detract from a consideration of the child's needs.
However, as noted above, ORR is adding new Sec. 410.1105(d) to state
that for an unaccompanied child with one or more disabilities,
consistent with section 504 and Sec. 410.1311(c), ORR's determination
under Sec. 410.1105 whether to place the unaccompanied child in a
restrictive placement such as an RTC shall include consideration
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 services that would allow the
unaccompanied child to be placed in that less restrictive facility.
Finally, per Sec. 410.1105(c), an unaccompanied child with serious
mental health or behavioral health issues may only be placed into an
RTC 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, including documentation by a licensed
psychologist or psychiatrist that an RTC is appropriate.
Comment: One commenter recommended that ORR provide interpretation
for Indigenous children to ensure Indigenous children are not being
placed in restrictive placements due to misunderstandings arising from
difficulties in communication between the child and ORR staff,
discrimination, or intimidation.
Response: ORR provides access to interpretation services as
provided in Sec. 410.1306. In particular, standard programs and
restrictive placements
[[Page 34432]]
must 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 make reasonable efforts to obtain in-person,
qualified interpreters, then they may use professional telephonic
interpreter services.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1105 with the following modifications. First, ORR
is revising Sec. 410.1105(a) to provide that all determinations to
place an unaccompanied child in a secure facility (that is not an RTC)
will be reviewed and approved by ORR Federal field staff. Second, ORR
is revising Sec. 410.1105(a)(1) and (b)(1) to state that the placement
determinations under paragraphs (a) and (b) must be made based on clear
and convincing evidence documented in the unaccompanied child's case
file. Third, ORR is removing references to ``danger to self'' in Sec.
410.1105(a)(2) and Sec. 410.1105(a)(3)(i), (ii), and (iii) and is
adding an affirmative statement to Sec. 410.1105(a)(1) that a finding
that a child poses a danger to self shall not be the sole basis for a
child's placement in a secure facility that is not an RTC. Fourth,
because ORR is striking ``danger to self'' in Sec.
410.1105(a)(3)(iii), ORR is deleting ``substance or alcohol use'' from
the examples of ``unacceptably disruptive'' conduct addressed in that
paragraph. Fifth, ORR is amending Sec. 410.1105(a)(2) to state that it
``shall'' place an unaccompanied child in a heightened supervision
facility or other non-secure facility as an alternative to a secure
facility (that is not an RTC), provided that the unaccompanied child
does not ``currently'' pose a danger to others and does not need
placement in an RTC pursuant to the standard set forth at Sec.
410.1105(c). Sixth, at the end of the first sentence of Sec.
410.1105(c)(1), ORR is revising the phrase ``that RTC is appropriate''
to state ``that placement in an RTC is appropriate'' to clarify that
the determination made in that paragraph relates to placement. Seventh,
to clarify that there must be a determination of clear and convincing
evidence for each child placed in an RTC, ORR is finalizing revisions
to Sec. 410.1105(c)(1) to provide that the child must be 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, including documentation by a
licensed psychologist or psychiatrist that placement in an RTC is
appropriate. Eighth, ORR is revising Sec. 410.1105(c)(1) to remove the
last sentence (``In assessing danger to self or others, ORR shall use
the criteria for placement in a secure facility at paragraph (a) of
this section.''). Finally, ORR is adding new Sec. 410.1105(d) to state
that for an unaccompanied child with one or more disabilities,
consistent with section 504, ORR's determination under Sec. 410.1105
whether to place the unaccompanied child in a restrictive placement
shall include consideration 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
services that would allow the unaccompanied child to be placed in that
less restrictive facility. Section 410.1105(d) further states that
ORR's consideration of reasonable modifications and auxiliary aids and
services to facilitate less restrictive placement shall also apply to
transfer decisions under Sec. 410.1601 and will be incorporated into
restrictive placement case reviews under Sec. 410.1901. Section
410.1105(d) further clarifies that ORR is not required to take any
action that it can demonstrate would fundamentally alter the nature of
a program or activity. ORR is otherwise finalizing Sec. 410.1105 as
proposed.
Section 410.1106 Unaccompanied Children Who Need Particular Services
and Treatment
ORR proposed in the NPRM at Sec. 410.1106 to codify the
requirements for ORR when placing unaccompanied children assessed to
have a need for particular services, equipment, and treatment by staff
(88 FR 68925). This section implements 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 in NPRM at 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
proposed this section in the NPRM without limiting its scope to
``special needs unaccompanied child.'' ORR noted that an unaccompanied
child may need particular services and treatment due to a disability,
as defined at 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 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 proposed in the NPRM to consider 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 at Sec. Sec. 410.1001 and 410.1103, ORR
was 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 noted 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's implementing regulation for section 504 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
[[Page 34433]]
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.\122\
Comment: One commenter recommended that the individualized
assessment be evidence-based, trauma-informed, developmentally
appropriate, culturally competent, and conducted in the child's
preferred language. Additionally, the commenter recommended ORR adopt a
strength-based needs assessment for children whose behavior indicates a
need for services and/or supports and the possible strengths to assist
with treatment to address the child's behavioral issues and needs. The
commenter also recommended that a qualified individual with expertise
or experience with the unaccompanied child's particular disability (as
applicable) and who is known and trusted by the child conduct the
assessment in a comfortable community-based setting to effectively
identify a child's needs for particular services, equipment, and
treatment. Lastly, the commenter recommended that needs assessments and
integrated placement determinations be completed in a timely manner for
children with and without disabilities.
Response: As clarified in Sec. 410.1000, ORR does not intend 45
CFR part 410 to govern or describe the entire UC Program, including the
specific procedures for how ORR is to assess an unaccompanied child to
identify the child's individualized needs during placement. Where the
regulations contain less detail, ORR plans to issue subregulatory
guidance and other communications from ORR to care provider facilities
to provide specific guidance on requirements. To the extent the
commenter's recommendations do not reflect existing ORR policies, ORR
may consider them for future policymaking.
Comment: One commenter expressed concern that Sec. 410.1106 is
unclear whether it incorporates evaluations for disability, as required
by the anticipated Lucas R. settlement, into the assessment that
determines whether the child needs particular services and treatment.
Additionally, several commenters recommended a more formal evaluation
for disability, stating this is required to ensure ORR protects the
child's rights under section 504. These commenters recommended that the
final rule require a prompt evaluation of an unaccompanied child
suspected of having a disability by a qualified professional in
circumstances where the child: (1) requests an evaluation for
disability, (2) is psychiatrically hospitalized or evaluated for
psychiatric hospitalization, or (3) is being considered for transfer to
a restrictive setting based on danger to self or others. According to
the commenters, such an evaluation for disability should consider the
child's need for reasonable modifications and auxiliary aids and
services. Further, a few commenters recommended including in the final
rule a requirement that the child's attorney or child advocate can
request an evaluation of the child for disability by a provider of
their choice at no cost to the child. Finally, these commenters
recommended that individualized assessments for unaccompanied children
with disabilities or suspected disabilities be based on current medical
knowledge and the best available objective evidence, which include
evaluations of the services and supports that would enable children to
live with their family.
Response: Consistent with its discussion of the Lucas R. litigation
at section III.B.4, ORR is not incorporating the requirements related
to more formal evaluations for disability in the proposed disability
class settlement, or other recommended requirements for such
evaluations in this final rule. However, ORR will continue to evaluate
possible policy updates as the anticipated settlement is implemented,
and the year-long needs assessment process is completed, and the
disability plan developed.
Comment: Several commenters recommended ORR clarify that
assessments or evaluations for disability do not delay a child's
release.
Response: ORR clarifies in this final rule that an assessment of
the unaccompanied child for particular services and treatment by staff
or equipment to address their individualized needs should not delay the
child's release. This is consistent with Sec. 410.1311(e)(3), which
prohibits ORR from delaying release of a child with one or more
disabilities solely because post-release services are not in place
before or following the child's release.
Comment: A few commenters recommended ORR clarify Sec. 410.1106
with respect to whether unaccompanied children with individualized
needs are placed in integrated placements which provide services and
treatment for such individualized needs. One commenter recommended ORR
clarify whether the last sentence of the regulation text should refer
to unaccompanied children with individualized needs instead of
unaccompanied children with disabilities. Another commenter recommended
ORR clarify what ``reasonable modifications to the program'' means.
Response: Consistent with FSA paragraph 7, ORR is clarifying in the
final rule that 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 standard program in which the unaccompanied
child with individualized needs can interact with children without
those individualized needs to the fullest extent possible, but which
provides services and treatment or equipment for such individualized
needs. ORR has removed the reference to ``reasonable modifications''
for clarity and notes that this language has been incorporated into
Sec. 410.1311(c).
Comment: One commenter requested ORR clarify how care provider
facilities would communicate transfers of unaccompanied children who
need particular services and treatment and whether or not ORR would
mandate that care provider facilities accept these children if the
facilities have capacity. The commenter recommended ORR require care
provider facilities to accept transfers or emergency transfers and not
unnecessarily delay placement on the basis that they are unable to meet
the children's needs. Further, the commenter requested ORR clarify how
a care provider facility protects other children in the facility when
there is no placement available for a child with emergency behavioral
health needs and how the facility can ensure proper care of that child
in the interim. Specifically, the commenter requested that ORR clarify
what circumstances may warrant psychiatric hospitalization and what
support ORR would provide to the care provider facility to make
transfer decisions.
Response: ORR appreciates the commenter's request for
clarification. ORR's transfer process for unaccompanied children,
including children who need particular services and treatment is
described at Sec. 410.1601, which discusses ORR's finalized
requirements regarding the transfer process, including communication
about the timeframe, alternate placement recommendations at Sec.
410.1601(a)(1), medical clearance at Sec. 410.1601(a)(2), and advanced
notification at Sec. 410.1601(a)(3). Additionally, ORR notes that it
does not intend this final rule to govern or describe the entire UC
Program, and where a regulation contains less detail, additional detail
to implement the
[[Page 34434]]
requirement may be issued in subregulatory guidance. To the extent the
commenter's recommendations are not already captured in this final
rule, ORR may consider them for future policymaking.
Final Rule Action: After consideration of public comments, ORR is
making the following modifications to Sec. 410.1106. ORR is revising
the first sentence of Sec. 410.1106 by adding ``and custody'' to
clarify that unaccompanied child requires particular services and
treatment by staff to address their individual needs while in the care
``and custody'' of the UC Program. ORR is revising the last sentence of
Sec. 410.1106 to state ``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 standard program in which the
unaccompanied child with individualized needs can interact with
children without those individualized needs to the fullest extent
possible, but which provides services and treatment or equipment for
such individualized needs.'' Otherwise, it is finalizing Sec. 410.1106
as proposed in the NPRM.
Section 410.1107 Considerations When Determining Whether an
Unaccompanied Child is a Runaway Risk for Purposes of Placement
Decisions
ORR proposed in the NPRM at Sec. 410.1107 to codify factors that
it considers in determining whether an unaccompanied child is a runaway
risk for purposes of placement decisions (88 FR 68925 through 68926).
As described in Sec. 410.1001, the FSA and ORR policy currently use
the term ``escape risk,'' and ORR proposed in the NPRM to update the
terminology to ``runaway risk'' and also proposed to update the
definition provided in the FSA. ORR noted that the TVPRA provides that
HHS ``may'' consider ``risk of flight,'' among other factors, when
making placement determinations.\123\ (ORR notes 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 21D of the FSA states that being an escape risk (or runaway
risk as finalized in this rule) is a ground upon which ORR may place an
unaccompanied child in a secure facility, ORR did not propose in the
NPRM that runaway risk is a basis for placement in a secure facility.).
ORR proposed in the NPRM to 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 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 Sec. 410.1107.
ORR proposed in the NPRM at Sec. 410.1107(a) through (c) to 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 proposed in the
NPRM to 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 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 noted that under
paragraph 22B of the FSA, a voluntary departure from the U.S. by the
unaccompanied child is also listed as a risk factor. Based on ORR's
experience in placing unaccompanied children, ORR did not propose 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 noted that paragraph 22 of the FSA provides a non-exhaustive
list of factors to consider when evaluating runaway
risk.124 125 Consistent with this language, as well as with
ORR's authority generally to consider runaway risk in making placement
determinations, ORR proposed in the NPRM 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. ORR proposed in the NPRM at Sec. 410.1107(d) to require ORR
to consider whether the unaccompanied child has displayed behaviors
indicative of flight or has expressed intent to run away. ORR proposed
in the NPRM at Sec. 410.1107(e), to 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 sought public comment on these
proposed factors and welcomed 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.
Comment: ORR received comments in support of ORR's proposal to not
codify voluntary departure as a runaway risk factor, which is an
immigration history factor from paragraph 22 of the FSA. One commenter
stated the factors listed in the FSA are aids to assess the likelihood
a child will abscond from ORR custody and are not determinative. The
commenter stated there is no reason to include a factor in the final
rule if it is not useful in predicting whether the child will attempt
to abscond from ORR custody.
Response: ORR agrees that voluntary departure from the United
States by the unaccompanied child is not a relevant factor in
determining whether the child is a runaway risk and has not included an
immigration history that includes a voluntary departure as a factor in
Sec. 410.1107.
Comment: A few commenters recommended that ORR not finalize the
immigration history factors in Sec. 410.1107(b) that ORR proposed in
the NPRM to use when determining whether an unaccompanied child is a
runaway risk for placement. These commenters expressed concern that an
unaccompanied child's immigration history is outside of the child's
control and is not predictive or useful in determining whether the
child is a runaway risk. One commenter stated that the immigration
factors ORR proposed in the NPRM at Sec. 410.1107(b) are unnecessary
as they reflect the immigration enforcement role of the former INS and
are not appropriate to ORR's distinct role as a custodian of
unaccompanied children. Another commenter recommended that ORR not
assess flight risk based on an unaccompanied child's negative prior
immigration history because, as ORR acknowledged in the preamble in the
NPRM, it is not a law enforcement
[[Page 34435]]
agency. Additionally, this commenter stated that in their experience
serving unaccompanied children, they have not seen any correlation
between a prior receipt of a final order of removal or a failure to
appear and the risk that children will run away from care provider
facilities. Instead, the commenter stated children are more likely to
stay in the care provider facilities and work with their legal services
provider, attorney, or representative to resolve the prior receipt of a
final order of removal. A separate commenter expressed concern that ORR
conflates two different risks of flight in Sec. 410.1107, stating a
``runaway risk'' from a shelter program is different from risk of
flight in immigration proceedings; the commenter stated risk of flight
exceeds ORR's purview, authority, and expertise. Specifically, the
commenter stated that ORR conflates actions taken by others on the
child's behalf (e.g., prior breach of bond or failure to appear) with
actions taken by the child (e.g., child has previously absconded or
attempted to abscond from State or Federal custody).
Response: ORR thanks the commenters for their recommendations to
not finalize the immigration history factors at Sec. 410.1107(b). ORR
agrees that these factors are typically outside an unaccompanied
child's control and do not predict whether a child will run away from a
care provider facility based on ORR's experience in placing
unaccompanied children. Similar to ORR's reasoning for not finalizing
voluntary departure as a factor, it is ORR's experience that the
unaccompanied child's immigration history has not been relevant in
determining whether the child is a runaway risk. Accordingly, ORR is
not finalizing the immigration history factors at Sec. 410.1107(b).
Comment: ORR received comments related to how ORR weighs the
factors listed at proposed Sec. 410.1107(c) and (d) when determining
an unaccompanied child's runaway risk. One commenter agreed that ORR
should consider an unaccompanied child's prior escape when making a
placement decision. Another commenter recommended ORR make a
determination of runaway risk based on the totality of the
circumstances and not base its determination on the child's attempt to
run away, stating the proposed runaway risk factors are overbroad and
do not reflect whether the unaccompanied child is a runaway risk. A
different commenter expressed concern that the proposal at Sec.
410.1107(d) is overbroad and asserted that a statement from the child
that the child is going to leave does not require a step-up to a more
restrictive placement but better services and a better care
environment.
Response: ORR has provided a definition of ``runaway risk'' at
Sec. 410.1001 of this rule, pursuant to which ORR's determination that
an unaccompanied child is a runaway risk must be made in view of a
totality of the circumstances and should not be based solely on a past
attempt to run away or a statement from the child that the child is
going to leave or runaway. ORR applies this ``totality of the
circumstances'' standard when making determinations under Sec.
410.1107. ORR will monitor implementation of this regulation and, if
needed, will take the commenter's recommendations into consideration
for future policymaking. ORR further notes that an unaccompanied child
is only placed in a heightened supervision facility after consideration
of the criteria at Sec. 410.1105(b)(2) and based on clear and
convincing evidence supporting the placement change.
Comment: One commenter recommended removing all references to
indebtedness in proposed Sec. 410.1107(b)(3) and (e) because
indebtedness does not relate to flight risk and the commenter stated
this is an unacceptable rationale for placing a child in a restrictive
placement. The same commenter recommended that ORR not incorporate the
term ``trauma bond'' in proposed Sec. 410.1107(e) because there is
``no medical standard for diagnosis . . . nor any agreed upon
definition.''
Response: ORR is not finalizing the factors at Sec. 410.1107(b),
which includes indebtedness to smugglers at Sec. 410.1107(b)(3).
Additionally, ORR agrees with the commenter that indebtedness to a
trafficker in persons or drugs is not relevant in determining whether
the unaccompanied child is a runaway risk. Similar to ORR's reasoning
for not finalizing voluntary departure and immigration history as
factors, whether the unaccompanied child is indebted to a trafficker in
persons or drugs has not been relevant in ORR's experience in
determining whether the child is a runaway risk. Accordingly, ORR is
revising Sec. 410.1107(e) as proposed in the NPRM to remove ``indebted
to.''
Additionally, ORR does not agree with the commenter's
recommendation to not incorporate the term ``trauma bond'' Sec.
410.1107(e) as proposed in the NPRM and believes that it is appropriate
to use the term ``trauma bond'' in Sec. 410.1107(e), which is
consistent with how the Department of State's Office to Monitor and
Combat Trafficking in Persons defined the term in its factsheet, Trauma
Bonding in Human Trafficking.\126\ ORR believes there is a generally
accepted definition of ``trauma bond'' and defined the term at Sec.
410.1001 so that readers can understand how ORR uses the term in 45 CFR
part 410.
Comment: A number of commenters opposed ORR codifying runaway risk
factors for placement determinations at Sec. 410.1107, stating ORR
does not have the capacity to make this assessment because, as ORR
stated in the preamble for Sec. 410.1105(a)(3), that ``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.' ''
Response: As an initial matter, ORR notes that it is unclear
whether commenters were challenging ORR's authority to assess whether
an unaccompanied child is a runaway risk or ORR's ability to do so when
exercising such authority. Under the HSA and TVPRA, ORR is responsible
for the care and placement of unaccompanied children. The TVPRA, at 8
U.S.C. 1232(c)(2), provides that ORR may consider the child's risk of
flight in determining the least restrictive setting to place the child
that is in the child's best interest. Therefore, ORR clarifies that it
has the legal authority to determine whether an unaccompanied child is
a runaway risk. ORR's statement in the NPRM preamble for Sec.
410.1105(a)(3) relates to its proposal to not codify that an
unaccompanied child may be placed in a secure facility if the
unaccompanied child is ``chargeable with a delinquent act.'' As stated
in the preamble to the NPRM, ORR is not a law enforcement agency and is
therefore unable to make a probable cause determination whether a child
is ``chargeable'' (88 FR 68923). However, the language at Sec.
410.1105(a)(3) does not have bearing on ORR's authority or ability to
assess an unaccompanied child's runaway risk; when ORR assesses runaway
risk it is not deciding whether an unaccompanied child is ``chargeable
with a delinquent act.''
Final Rule Action: After consideration of public comments, ORR is
making the following modifications. ORR is not finalizing Sec.
410.1107(b) as proposed in the NPRM. ORR is updating the numbering for
proposed Sec. 410.1107(c) through (e) and finalizing as Sec.
410.1107(b) through (d). ORR is revising proposed Sec. 410.1107(e),
which is now Sec. 410.1107(d), to state ``Evidence that the
unaccompanied child is experiencing a strong trauma bond to or is
threatened by a trafficker in persons
[[Page 34436]]
or drugs.'' ORR is otherwise finalizing Sec. 410.1107 as proposed in
the NPRM.
Section 410.1108 Placement and Services for Children of Unaccompanied
Children
ORR proposed in the NPRM at Sec. 410.1108, the requirements for
the placement of children of unaccompanied children and services they
would receive while in ORR care (88 FR 68926). 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
parents, who are also unaccompanied children. Accordingly, ORR proposed
in the NPRM 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 the 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 did not limit
the proposal to the biological children of unaccompanied children and
instead proposed 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 proposed in the NPRM 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 proposed in the NPRM 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 INA, 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, may not be 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. ORR does 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.\127\ 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
requested 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.
ORR proposed in the NPRM at Sec. 410.1108(b) to describe
requirements for providing services to children of unaccompanied
parenting children while in ORR care. ORR proposed in the NPRM at Sec.
410.1108(b)(1), that 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, ORR proposed in the NPRM at Sec.
410.1108(b)(2), that 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.
Comment: A number of commenters expressed concerns about the
possibility under Sec. 410.1108(a) of the NPRM that ORR might separate
parenting unaccompanied children from their own children under unusual
or emergency circumstances. Some commenters recommended that ORR not
provide for such separations under any circumstances, with some
recommending relying on State child welfare agencies for any
determination of the need to separate parenting unaccompanied children
from their own children. Others recommended that ORR revise Sec.
410.1108(a) to specify that ORR may only separate an unaccompanied
parenting child from their child in unusual or in emergency situations
where keeping the parenting child and child together poses an immediate
danger to the children's safety. Some commenters recommended that a
separation should occur only if there has been an adjudication using
clear and convincing evidence that the unaccompanied child poses an
immediate danger to their child that cannot be mitigated. Commenters
also recommended that if such separations were to occur, ORR should
address due process concerns, specify who will make the decision, and
build in a requirement for prior authorization from ORR before care
provider staff are able to separate unaccompanied sibling children or
an unaccompanied parenting child from their child. One commenter
recommended that in the event of a separation, ORR should provide
guidance on the circumstances when ORR would separate unaccompanied
parenting children from their children, the basis for separating them,
how long that separation could last, and whether the parenting
unaccompanied child can challenge the separation. Commenters also
discussed the importance of legal counsel for a parent facing
separation and their recommendation to discuss the rights of parents
during a period of separation, and recommended ORR require immediate
notification to the unaccompanied parenting child's attorney or child
advocate, if appointed, of the separation. Some commenters noted the
importance of services to facilitate unifications.
Additionally, commenters recommended that ORR incorporate
provisions describing the ability of parenting unaccompanied children
to continue making parental decisions on behalf of their child, as
appropriate, including making informed decisions about health, diet,
religion, and other matters. Commenters also recommended ORR require
documentation of the recommendation to separate parenting unaccompanied
children from their
[[Page 34437]]
children, as well as include provisions describing the swift
unification of parenting unaccompanied children with their children
where appropriate. Finally, some commenters recommended that
separations on the basis of medical need be permitted only upon the
recommendation of health care professionals, and the placement of
parenting unaccompanied children, or their child, be as close as
possible to where the underlying medical care is taking place.
Response: ORR's guiding policy is to maintain family unity of the
parenting unaccompanied child and their child. ORR wants to clearly
state that it would not separate a parenting unaccompanied child from
their own child absent compelling circumstances where the life or
safety of a child is at risk or the parent or child needs
hospitalization or specialized care. Having said this, the commenters
raised concerns that have led ORR to conclude that further policy
development is needed to address the extreme circumstances noted in the
NPRM, and therefore, ORR is not adopting Sec. 410.1108(a) as proposed
in the NPRM. Instead, ORR is codifying its general policy at Sec.
410.1108(a) that ORR shall accept referrals for placement of parenting
unaccompanied children who arrive with children of their own to the
same extent that it receives referrals of other unaccompanied children
and shall prioritize placing and keeping the parent and child together
in the interest of family unity.
Comment: One commenter expressed concern about the requirement that
the public benefits and services for U.S. citizen children of
unaccompanied parenting children must be utilized and exhausted to the
greatest extent practicable before utilizing ORR-funded services.
Specifically, the commenter expressed concern that delays in public
benefit applications, or lack of eligibility for services, could impede
these children from timely accessing medical and psychiatric services
while in ORR care and custody. To address this concern, the commenter
recommended ORR clarify in the final rule that public benefits and
services shall be exhausted to the greatest extent practicable before
utilizing ORR-funded services unless doing so causes a delay or
material change in the quality of necessary medical or psychiatric
treatment of the child.
Response: ORR does not expect that delays in public benefit
applications and ineligibility for services would impede the ability of
a child of an unaccompanied parenting child to access medical and
mental health services. ORR will monitor implementation of this
regulation for any unintended consequences and as needed, will consider
the commenter's recommendation for future policymaking.
Final Rule Action: For the reasons stated, ORR is revising Sec.
410.1108(a) to state ``ORR shall accept referrals for placement of
parenting unaccompanied children who arrive with children of their own
to the same extent that it receives referrals of other unaccompanied
children and shall prioritize placing and keeping the parent and child
together in the interest of family unity.'' ORR is not finalizing Sec.
410.1108(a)(1) through (3) as proposed in the NPRM. Otherwise, it is
finalizing Sec. 410.1108 as proposed in the NPRM.
Section 410.1109 Required Notice of Legal Rights
ORR proposed in the NPRM at Sec. 410.1109(a), that it 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
language and manner the unaccompanied child understands (88 FR 68926
through 68927). First, ORR proposed in the NPRM at Sec.
410.1109(a)(1), to require 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 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 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 noted that the list of free legal
service providers may also be compiled and updated by an ORR contractor
or grantee.
ORR proposed in the NPRM at Sec. 410.1109(a)(2), that it 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.'' ORR
noted in the NPRM that this requirement updates language described in
the requirement to deliver a similar notice under Exhibit 6 of the
FSA,\128\ to reflect current placement requirements detailed in this
rule. The FSA language, for example, refers to the former INS, instead
of ORR, and to ``detention facilities'' rather than restrictive
settings or placements.
ORR also proposed at Sec. 410.1109(a)(3) that a presentation
regarding their legal rights would be provided to each unaccompanied
child as provided under Sec. 410.1309(a)(2). ORR referred readers to
Sec. 410.1309(a) for additional information regarding this
presentation. ORR stated that it 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 and HHS's implementing regulations at 45 CFR 85.51. ORR
also stated that it would 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. ORR requested comments on steps ORR should take to ensure
that it provides effective communication to unaccompanied children who
are individuals with disabilities. ORR also requested 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, ORR proposed in the NPRM that under Sec. 410.1109(b),
consistent with ORR's existing policy, ORR shall not engage in
retaliatory actions against
[[Page 34438]]
legal service providers or any other practitioner because of advocacy
or appearance in an action adverse to ORR. ORR proposed in the NPRM
this text, notwithstanding the general presumption that government
agencies and officials act with integrity and regularity,\129\ to
further express ORR's intent to promote and protect unaccompanied
children's ability to access legal counsel. As noted below, in this
final rule, ORR is deleting Sec. 410.1109(b) because it is redundant
of Sec. 410.1309(e). For discussion regarding the availability of
administrative review of ORR placement decisions, ORR referred readers
to subpart J.
Comment: One commenter recommended that proposed Sec.
410.1109(a)(1) (which requires that ORR provide each child in its
custody with a State-by-State list of free legal service providers
compiled and annually updated by ORR) be strengthened by adding that
information will also be made accessible by other means, and not solely
via a printed list. The commenter cautioned that printed lists that
require regular updating become quickly outdated and that accessibility
of written information may be hindered for children with limited
literacy. In addition, the commenter noted that many unaccompanied
children communicate and receive information via WhatsApp, Facebook
Messenger, or other apps. Finally, the commenter noted that
supplementary means of making information accessible, such as through
The International Rescue Committee's ORR-funded ImportaMi program, have
been very effective for ensuring children's greater access to critical
information.
Response: ORR appreciates the commenter's recommendations and will
consider making the list required under Sec. 410.1109(a)(1) accessible
by electronic means as well as enhancing access to such information.
The specific requirement at Sec. 410.1109(a)(1) for a list does not
preclude ORR from making this information available through other means
as there are continuing developments in technologies.
Comment: One commenter recommended that Sec. 410.1109 be more
precise so that the unaccompanied child is proactively assigned a
lawyer or authorized immigration advocate at the Government's expense
and a translator to explain and act in the child's best interest.
Response: As described at Sec. 410.1109(a)(1), ORR shall provide
each unaccompanied child in its custody, in a language and manner the
unaccompanied child understands, 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. ORR refers readers to the discussion of
Sec. Sec. 410.1306 and 410.1309 in this final rule for more
information about language access services (including translator
services) and legal services available to unaccompanied children.
Comment: Several commenters stated that proposed Sec.
410.1109(a)(2) provides for a notice of rights that includes some
language similar to FSA Exhibit 6 but omits providing a statement of
the right to ask a Federal judge to review the child's case, and thus
recommended that the final rule include a statement informing the
unaccompanied child of the right to seek review of a placement
determination or noncompliance with FSA Exhibit 1 standards in a United
States District Court with jurisdiction. The commenters noted that the
preamble states the proposed rule does not expressly provide for
judicial review of placement or compliance because a regulation cannot
confer jurisdiction on a Federal court (88 FR 68975). However, the
commenters contended that this limitation is not an obstacle to
informing children of their right to potential judicial review in a
court with jurisdiction and venue.
Response: Section 410.1109(a)(2) provides an explanation of the
right to contact a lawyer to receive advice about challenging a
placement determination or improper treatment. As noted by the
commenters, the language in Sec. 410.1109(a)(2) is slightly different
than the language in FSA Exhibit 6. The final rule language, however,
more accurately accounts for recent changes in the law and current
placement requirements. For instance, as a result of the Lucas R. case,
ORR now has a nationwide and more robust process for administrative
review of restrictive placements which unaccompanied children may avail
themselves of as discussed further in Sec. 410.1902. At the time the
FSA was approved, no such administrative review existed. Unaccompanied
children are also entitled to a risk determination hearing in some
cases, as discussed further in Sec. 410.1903. FSA Exhibit 6 simply
advised that the child ``may ask a federal judge to review [their]
case'' and ``may call a lawyer to help [them] do this.'' The final rule
recognizes the complexities of the current process and advises that the
child ``may call a lawyer to seek assistance and get advice about your
rights to challenge this action.'' During that call, the lawyer would
be able to explain to the child the placement review panel process
detailed in Sec. 410.1902, or the risk determination hearing process
in Sec. 410.1903, for example, or other potential avenues for relief.
ORR believes that the explanation of the right of potential review
provided in Sec. 410.1109(a)(2) is more accurate than the language in
FSA Exhibit 6.
Comment: Many commenters recommended that ORR take additional steps
and that the rule include additional details to ensure adequate
communication assistance and access so that unaccompanied children
understand their legal rights. Specifically, these commenters
recommended that ORR take the following steps to ensure adequate
communication access to unaccompanied children with disabilities: (1)
Identify community members who can facilitate communication with
children with disabilities (such as sign language interpreters,
advocates for persons with disabilities, inclusive education or special
education teachers, or other caregivers of children with disabilities,
or speech therapists); (2) For children with visual disabilities,
describe the surroundings and introduce people present, and ask
permission if offering to guide or touch the child or his or her
assistive devices, such as wheelchairs or white canes; (3) For children
with hearing disabilities, provide sign language interpreters and use
visual aids; (4) If the child has difficulty communicating or
understanding messages (such as children with disabilities), ensure the
use of clear verbal communication and simple language, ask children to
repeat information back and repeat as many times as necessary, in
different ways and check for their understanding; (5) For children for
whom there are concerns regarding capacity to make decisions regarding
their case, ensure that children are quickly referred for a child
advocate.
Response: ORR thanks commenters for their recommendations. As
proposed, under Sec. 410.1109(a)(3), ORR will provide unaccompanied
children a presentation regarding their legal rights as provided under
Sec. 410.1309(a)(2). In providing this presentation, ORR will take
appropriate steps to ensure that the information it presents to
unaccompanied children is communicated effectively to children with
disabilities, including through the provision of auxiliary aids and
services as required by section 504 and HHS's implementing regulations
at 45 CFR 85.51. ORR will also take reasonable steps to ensure that
individuals with limited English proficiency have a
[[Page 34439]]
meaningful opportunity to access information and participate in ORR
programs, including through the provision of interpreters or translated
documents. ORR appreciates the specific steps recommended by commenters
and will consider including these recommendations in future
policymaking. ORR refers readers to proposed Sec. 410.1309(a) for
additional information regarding the legal rights presentation.
Comment: One commenter recommended that Sec. 410.1109(a)(3)
include a clarification that the legal rights presentation is funded
and provided through a contracted provider separate from the care
provider facility and that this must be provided within a certain
number of days.
Response: Section 410.1309(a)(2)(A), as finalized in this rule,
provides that the legal rights presentation shall be provided by an
independent legal service provider that has appropriate qualifications
and experience, as determined by ORR, to provide such a presentation,
and Sec. 410.1309(a)(2)(B) provides the timeframe within which such
presentation must be provided. As such, ORR does not believe it is
necessary to include this information in Sec. 410.1109, as finalized
in this rule. ORR refers readers to proposed Sec. 410.1309(a) for
additional information regarding the legal rights presentation.
Final Rule Action: After consideration of public comments, ORR is
amending the notice described at Sec. 410.1109(a)(2), adding to the
second sentence of the notice that an unaccompanied child may call a
lawyer to seek assistance ``and to get advice about your rights to
challenge this action.'' In addition, ORR is not finalizing Sec.
410.1109(b) because it is redundant of Sec. 410.1309(e). ORR believes
that eliminating this redundancy will enhance clarity as to the
applicable requirements regarding retaliation against legal service
providers and prevent potential confusion.
Subpart C--Releasing an Unaccompanied Child From ORR Custody
Section 410.1200 Purpose of This Subpart
This subpart describes ORR's policies and procedures regarding
release, without unnecessary delay, of an unaccompanied child from ORR
custody to a vetted and approved sponsor. ORR proposed in the NPRM to
define release 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, ORR stated that release does
not include discharge for other reasons, including but not limited to
the child turning 18, attaining legal immigration status, or being
removed to their home country.
As discussed in this subpart of the NPRM, once an unaccompanied
child is released by ORR to a sponsor, that unaccompanied child is no
longer in ORR's custody (88 FR 68927). The TVPRA distinguishes
unaccompanied children 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.'' \130\ In addition, under the
FSA, once an unaccompanied child is released to a sponsor, the sponsor
assumes physical custody.\131\ ORR stated in the NPRM that this subpart
includes the process for determining that sponsors are able to care for
the child's physical and mental well-being.
In the NPRM, subpart C also proposed notice and appeal processes
and procedures that certain potential sponsors will be afforded (88 FR
68927). ORR proposed in the NPRM 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. ORR noted that
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. For the purposes of this final rulemaking, ORR has made
certain updates relevant to release of unaccompanied children,
consistent with its discussion of the Lucas R. case at Section III.B.4
above.
Comment: One commenter stated the proposed rule is silent on
planning for transition-age youth who will age-out from ORR custody.
The commenter recommended that ORR develop plans for every
unaccompanied child in its custody at least 60 days in advance of their
18th birthday, and the plans should identify safe placement, social
support services, employment assistance, and public benefits.
Additionally, the commenter recommended ORR develop plans in
conjunction with the unaccompanied child and their families, track the
plans to ensure effectiveness, and regularly review and evaluate the
plans for any necessary changes.
Response: ORR thanks the commenter for their recommendations. ORR
notes that under current policies, which are consistent with this final
rule, it requires care provider facilities to create written plans
regarding unaccompanied children expected to turn 18 while still in ORR
custody. Consistent with ORR's current policies, each post-18 plan
should, at a minimum, identify an appropriate non-secure placement for
the child and identify any necessary social support services for the
child. Additionally, the plan is to include an assessment and
recommendation of any ongoing supporting social services the youth may
require, an assessment of whether the youth is a danger to the
community or risk of flight, identification of any special needs, and
arrangements for transportation after the youth ages out to either the
non-secure placement option or to DHS where appropriate. Such plans
must be completed at least two weeks before an unaccompanied child
turns 18. ORR will study the commenter's recommendations and may
consider them for future policymaking.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed.
Section 410.1201 Sponsors to Whom ORR Releases an Unaccompanied Child
ORR proposed in the NPRM at Sec. 410.1201 the sponsors to whom ORR
may release an unaccompanied child and criteria that ORR employs when
assessing a potential sponsor (88 FR 68927 through 68928). As
discussed, the HSA makes ORR responsible for making and implementing
placement determinations for unaccompanied children.\132\ 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 has incorporated into
its policies.\133\
Consistent with its statutory authority and the FSA, ORR proposed
in the NPRM at Sec. 410.1201(a) potential sponsors in order of release
preference. ORR noted 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 placement in
an ORR care provider facility, whenever feasible, is in the best
interests of unaccompanied children. ORR proposed in the NPRM, at Sec.
410.1201(a) to 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
[[Page 34440]]
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. ORR stated that 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
potential sponsor. However, under current ORR policy, care provider
staff, contractors, and volunteers may not have contact with any
unaccompanied children outside of the care provider facility beyond
that necessary to carry out job duties while the child is in ORR care.
ORR proposed in the NPRM at Sec. 410.1202, as discussed below, sponsor
suitability assessment process, which includes an assessment of the
potential sponsor's previous and existing relationship with the
unaccompanied child.
ORR proposed in the NPRM under Sec. 410.1201(b), consistent with
existing policy, that it would not disqualify potential sponsors based
solely on their immigration status. In addition, ORR proposed in the
NPRM that it shall not collect information on immigration status of
potential sponsors for law enforcement or immigration enforcement
related purposes. ORR stated that it will not share any immigration
status information relating to potential sponsors with any law
enforcement or immigration related entity at any time. ORR further
stated that 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 detained).
ORR proposed in the NPRM under Sec. 410.1201(c), that, in making
determinations regarding the release of unaccompanied children to
potential sponsors, ORR shall not release unaccompanied children on
their own recognizance.
Comment: Several commenters supported the proposal at Sec.
410.1201(a) to prioritize placement with family members. One commenter
appreciated the preference provided to family members, stating that
placement with family members provides connection to the child's
language, culture, and community. This commenter further recommended
that ORR apply the principles of the Indian Child Welfare Act (ICWA) to
the care and placement of unaccompanied children, ensuring their
continued connection to their language, culture, traditions, and
community. Another commenter recommended placing unaccompanied children
with sponsors who are members of the Indigenous community from which
the child originates and who understand the specific needs of an
Indigenous child to ensure the child's welfare and rights are
protected. One commenter specifically supported the proposed rule's
presumption of unifying unaccompanied children with their parents
because the commenter believed that it comports with international
standards under Article 9 of the Convention on the Rights of the Child.
Response: ORR thanks the commenters for their recommendations, and
believes that the potential sponsors prioritized under Sec.
410.1201(a)(1) through (4) reflect the preference to place an
unaccompanied child with a potential sponsor who will likely be able to
provide a connection to the unaccompanied child's language, culture,
and community by virtue of the fact that they are known to the
unaccompanied child because they are a family member or legal guardian,
or known to the unaccompanied child's parent or legal guardian. In
reference to Indigenous children, ORR notes that ICWA does not govern
the UC program. However, ORR notes that under current policies it
considers the linguistic and cultural background of the unaccompanied
child and sponsor.
Comment: A few commenters expressed strong support for the list of
potential sponsors and order of release preference proposed at Sec.
410.1201(a), stating that that it aligns with central principles of the
FSA.
Response: ORR agrees that the list of potential sponsors and order
of release preference proposed at Sec. 410.1201(a) aligns with central
principles of the FSA.
Comment: One commenter recommended that ORR explicitly state that
unification with family is the primary goal for unaccompanied children
whenever possible.
Response: ORR agrees that it is obligated to ensure that programs
make prompt and continuous efforts toward family unification and
release of children consistent with FSA paragraph 14 and the
TVPRA,\134\ and this remains unchanged in this final rule at Sec.
410.1201(a). ORR also reiterates its strong belief, expressed in the
NPRM, that placement with a vetted and approved family member or other
vetted and approved sponsor, as opposed to continued placement in an
ORR care provider facility, is generally in the best interests of
unaccompanied children whenever feasible.\135\
Comment: One commenter was encouraged to see that ORR has
explicitly included youth participation in decision-making as a
foundational principle that applies to the care and placement of
unaccompanied children in Sec. 410.1003(d) and stated that this
principle should also apply to releases to sponsors.
Response: ORR thanks the commenter for their recommendation and
will take it into consideration in future policymaking in this area.
ORR notes that Sec. 410.1202(c) provides that ORR's sponsor
suitability assessments shall take into consideration the wishes and
concerns of the unaccompanied child.
Comment: Many commenters opposed the release of unaccompanied
children to unrelated or distantly related sponsors. A few commenters
expressed concern that non-relative or distant relative sponsors are
not sufficiently vetted by ORR prior to release, which commenters
believed could lead to increased risk of child trafficking and
exploitation. One commenter recommended that ORR only release
unaccompanied children to parents or legal guardians to ensure that
unaccompanied children are not released to strangers, potential
criminals, traffickers, and abusers. Several commenters expressed
concern that proposed Sec. 410.1201(b) could result in placement with
unknown sponsors, without sufficient follow-up or enforcement to ensure
children are protected from trafficking.
Response: ORR emphasizes its commitment to prevention of child
trafficking and exploitation and believes that codifying these
protective measures, many of which already exist in policy guidance,
will strengthen its ability to do so. Specifically, ORR emphasizes that
decisions to place a child with a sponsor are undertaken in accordance
with its responsibility to ensure the safety and best interest of the
child and only after the sponsor has been thoroughly vetted and
approved by ORR, consistent with statutory requirements set forth in
the TVPRA and further elaborated in this subpart. Consistent with the
FSA, ORR agrees that priority should be given to a parent, legal
guardian, or adult relative of the
[[Page 34441]]
child. However, as is also consistent with the FSA, in some cases
individuals who are closely related to the child are either unable or
unwilling to provide care. In such cases, ORR next prioritizes
placement with another adult designated by the child's parent or legal
guardian as verified by a signed declaration or other documentation
that establishes a parental relationship per Sec. 410.1201(a)(4)(i)
through (ii). This usually necessitates that the individual is known to
the parent or legal guardian and therefore is not a stranger.
Furthermore, at Sec. 410.1202(d), ORR stated that 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. Consistent with the FSA, ORR
notes that a lack of a pre-existing relationship with the child would
not categorically disqualify a potential sponsor, but lack of such
relationship may be a factor in ORR's overall suitability assessment
and when determining whether placing the child with a vetted and
approved family member or other vetted and approved sponsor, as opposed
to remaining in an ORR care provider facility, is in the best interests
of the child. In addition, at Sec. 410.1202(e), ORR provides that ORR
shall consider the 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.
Comment: Many commenters expressed concern with proposed Sec.
410.1201(a)(6), which may permit the release of unaccompanied children
to potential sponsors with whom an unaccompanied child has built a
healthy and viable relationship while in ORR care. The commenters
believed that an unaccompanied child and a potential sponsor cannot
develop a bond over 14-30 days that would be sufficient to be awarded
custody and noted that ORR has not included bonding thresholds into any
stage of the release process.
Response: ORR thanks the commenters for their concern. ORR first
notes that Sec. 410.1201(a)(6) is consistent with the FSA at paragraph
14. Further, ORR notes that it did not require a specific minimum
timeframe to determine if there is a relationship between the child and
prospective sponsor seeking custody because a decision on such a
threshold alone is likely to be arbitrary. ORR notes that there are
additional substantive factors to consider to ensure that a healthy and
viable relationship exists between the unaccompanied child and
potential sponsor. ORR notes that every prospective sponsor is subject
to a sponsor suitability assessment under Sec. 410.1203(d).
Furthermore, at Sec. 410.1202(d), ORR stated that 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. Lack of a pre-existing relationship with
the child does not categorically disqualify a potential sponsor, but
lack of such a relationship may be a factor in ORR's overall
suitability assessment. ORR emphasizes that the criteria for ensuring a
healthy and viable relationship with a non-relative prospective sponsor
only apply when a parent, guardian, or relative is unable or unwilling
to sponsor within 30 days of the child being in ORR care. ORR believes
that it is important to consider placements with non-relatives who are
assessed as suitable sponsors to avoid the child's placement in
institutional care for longer than necessary.
Comment: Several commenters expressed concern with the
interpretation of ``standard program'' as proposed under Sec.
410.1201(a)(5). Several commenters noted that the language in proposed
Sec. 410.1201(a) mirrors that of paragraph 14 of the FSA, except that
paragraph (a)(5) refers to ``a standard program willing to accept legal
custody'' as opposed to ``a licensed program willing to accept legal
custody.'' These commenters expressed concern that the proposed rule's
elimination of the FSA's ``licensed program'' requirement in the
release context would allow an unaccompanied child to be released from
ORR custody for long-term placement in a facility that is not licensed
or monitored by any State. Commenters further stated that it is not
clear what ``a standard program willing to accept legal custody'' means
in the release context because the proposed rule defines ``standard
program'' within the framework of ORR care providers.
Response: ORR thanks the commenters for their input. ORR notes that
it is updating the language at Sec. 410.1201(a)(5) of this final rule
to replace ``standard program,'' as used in the NPRM, with ``licensed
program,'' consistent with the FSA.
Comment: Many commenters expressed support for Sec. 410.1201(b).
Many commenters stated that disclosing a sponsor's immigration status
to immigration authorities or other law enforcement agencies, including
DHS, could have a chilling effect on an eligible individual who wants
to sponsor a child and may lead to a prolonged stay in ORR custody
because qualified sponsors would be discouraged from coming forward to
care for the child. One of these commenters further stated that this
proposal would encourage more suitable individuals, including
relatives, with cultural competency to sponsor a child without fear of
adverse immigration action.
Response: ORR thanks the commenters for their feedback.
Comment: Many commenters, while strongly supporting proposed Sec.
410.1201(b), made recommendations that they believed would strengthen
the provision. First, these commenters urged ORR to clarify that it
will not share any sponsor information with law enforcement or
immigration enforcement entities except as needed to complete
background checks or by judicial order. In addition, the commenters
recommended that ORR make clear that both the unaccompanied child's and
sponsor's personal information and ORR case files (including counseling
and case management notes and records) will be maintained separately
from the child or sponsor's immigration files (``A-files'') and will be
provided to law enforcement or immigration enforcement only at the
request of the individual (child or sponsor) or by judicial order. The
commenters explained that without this protection, children and their
sponsors' engagement with ORR in the unification process could easily
be used to undermine sponsor placements that would otherwise be safe
and stable. The commenters further noted that such protections would be
consistent with ORR's clear mandate as a child welfare entity rather
than as an arm or extension of law or immigration enforcement entities.
One commenter stated that while they support ORR's decision to not ask
about immigration status of a potential sponsor, it was concerned about
ORR's ability to effectively implement this protection. Specifically,
the commenter stated that ORR's ability to verify a sponsor's
employment essentially serves as an immigration status verification,
which it believed poses a risk for undocumented sponsors if their
employers are contacted by ORR. The commenter was concerned that this
provision will prevent potential sponsors from coming forward to take
custody of an unaccompanied child. One commenter recommended that ORR
include a specific and clear exception to share information with law
enforcement
[[Page 34442]]
in the case a sponsor is a trafficker or could otherwise harm the
child.
Response: ORR appreciates the commenters' recommendations. ORR
notes that it proposed in the NPRM that it shall not collect
information on immigration status of potential sponsors for law
enforcement or immigration enforcement related purposes (88 FR 68928).
ORR further stated in this paragraph that it 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 detained). ORR prioritizes the prevention of human
trafficking and the best interests of children but does not believe it
is necessary to establish a specific exception in this section to allow
disclosures to law enforcement if there is evidence of human
trafficking because ORR already has policies in place to refer such
cases to the proper Federal agency. Current ORR policies require the
ORR NCC to report, as appropriate, matters of concern to ORR, local law
enforcement, and/or local child protective services, and refers
potential victims of human trafficking or smuggling to OTIP, and that a
child be referred to a child advocate for support if a historical
disclosure is made related to labor or sex trafficking. ORR further
notes that the purpose of verification of the identity and income of
the individuals offering support is to ensure the care and safety of
the child and not to confirm immigration status. As a matter of
practice, ORR notes that it does not routinely contact employers unless
that information is provided as a source of verification of income on a
sponsor application. ORR also notes that records in the case file are
only related to services provided and case management of the child and
not the child or sponsor's immigration status and are required to be
protected from unauthorized disclosure. ORR does not maintain ``A-
files'' on either unaccompanied children or potential sponsors, as that
is a function performed by other Federal agencies, which are
responsible for immigration enforcement.
Comment: One commenter expressed support for proposed Sec.
410.1201(b), noting that it would prohibit use of sponsors' information
in ways that are contrary to children's best interests and enable ORR
to remain focused on the well-being and safety of unaccompanied
children and its child protection mission, rather than diverting this
critical attention to immigration enforcement purposes that are the
purview of DHS. This commenter further urged ORR to add provisions
codifying restrictions on the sharing of information or notes from
mental health counseling provided to children in ORR custody, noting
that past sharing of ORR information with ICE or EOIR has undermined
children's rights, including the right to due process, as information
collection intended to help identify children's protection needs and to
aid them in healing from trauma were misused against children in
removal proceedings.
Response: ORR thanks the commenter for their support and
appreciates the commenter's recommendations. 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. ORR notes that confidentiality of the child's
records including mental health treatment are protected from disclosure
at 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. As stated at finalized Sec. 410.1303(h)(2),
however, limited disclosures of mental health treatment are authorized
for program administration purposes, such as to expeditiously provide
emergency services and routine treatment, without waiting for approval
from ORR.
Comment: Many commenters opposed proposed Sec. 410.1201(b). Many
commenters believed this information should be used to make sponsor
assessments and should be shared with other agencies to protect
unaccompanied children. One commenter expressed concern that the
proposed provision could result in placing a child with a person
currently under a deportation order, or not communicating to law
enforcement that a potential sponsor had been ordered removed due to
criminal convictions or illegally re-entry. Another commenter opposed
proposed Sec. 410.1201(b), stating that immigration status should be
an important part of vetting sponsors to ensure safety of unaccompanied
children and compliance with immigration proceedings. One commenter
stated that the proposed rule should facilitate, not restrict,
information sharing between Federal Government agencies and State and
local law enforcement and that the proposed restrictions at Sec.
410.1201(b) are overbroad.
Response: ORR thanks the commenters for their concern, and
emphasizes that assessment of suitability of a sponsor includes a
thorough background check to assess whether the sponsor has a criminal
history, or any other factors that call into question the suitability
of the sponsor. ORR also notes that at Sec. 410.1210(i)(4)(i), this
final rule also requires PRS providers concerned about an unaccompanied
child's safety and well-being to document and report a Notification of
Concern (NOC) to ORR and, as applicable, to other investigative
agencies (e.g., law enforcement or child protective services). However,
ORR notes that it is not an immigration enforcement agency, and does
not have statutory authorization to investigate the immigration status
of potential sponsors. The HSA and the TVPRA do not make any mention of
a sponsor's potential immigration status as a prerequisite to receive
an unaccompanied child into their custody and do not imbue ORR with the
authority to inquire into immigration status as a condition for
sponsorship. As a result, to the extent ORR does collect information on
the immigration status of a potential sponsor, it would be only for the
purpose 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 detained). ORR does not share
immigration status information relating to potential sponsors with any
law enforcement or immigration entity at any time. In reference to the
comment concerning misrepresentation of an individual's age, in cases
where ORR reasonably suspects that an individual in its custody is not
a minor and subsequently determines that such individual has reached
the age of 18, ORR follows all required procedures including referral
for a transfer evaluation with DHS/ICE. If the individual is determined
to be an adult based on the age determination, the individual is
transferred to the custody of DHS/ICE.
Comment: One commenter recommended that ORR amend its proposal to
prioritize uniting unaccompanied children with their families in their
home countries. This commenter stated that ORR should work with DHS to
ensure that all unaccompanied children are united safely in their home
countries, stating that repatriating and uniting unaccompanied children
in their home
[[Page 34443]]
countries, rather than in the United States, is the most humane policy
that maintains the integrity of the immigration system, consistent with
Federal immigration law. The commenter further stated that this policy
would eliminate any incentive to send minors alone or with smugglers to
cross the border and mitigate the humanitarian crisis that has strained
the immigration system's limited resources. Furthermore, the commenter
stated that amending this proposal to prioritize the repatriation of
unaccompanied children furthers congressional intent in enacting the
TVPRA as set forth at 8 U.S.C. 1232(a)(5).
Response: ORR acknowledges the commenter's concern, and notes that
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 by DHS, obtain legal status, or
otherwise no longer meet the statutory definition of unaccompanied
child (e.g., turn 18). ORR notes that it is not an immigration
enforcement agency and is not authorized to make decisions regarding
repatriating individuals in their country of origin; such decisions are
in the purview of DHS and DOJ. In cases where appropriate, ORR may
unite children with a parent abroad. ORR believes, consistent with its
statutory responsibilities, that placement with a vetted and approved
family member or other vetted and approved sponsor is generally in the
best interest of the child. Subject to vetting and approval, if a
parent or legal guardian is already in the United States, ORR does not
believe delaying placement with a sponsor for the sake of uniting
children with a parent abroad would necessarily be in the best interest
of the child.
Comment: A few commenters commented on the verification of familial
relationships under proposed Sec. 410.1201. A few commenters
recommended that ORR explain how it will verify familial relationships
without DNA testing. Another commenter recommended that ORR amend
proposed Sec. 410.1201 to make any adult who claims a familial
relationship with an unaccompanied child but fails a DNA test or
provides false identity documentation, barred from sponsoring an
unaccompanied child.
Response: ORR thanks the commenters for their recommendations. ORR
recognizes the utility of DNA testing in the context of law enforcement
activities undertaken by other agencies. ORR notes that the TVPRA
requires ORR's sponsor suitability determination to include, ``at a
minimum,'' verification of the custodian's identity and relationship to
the child, if any, as well as an independent finding that the
individual has not engaged in any activity that would indicate a
potential risk to the child.\136\ However, the use of DNA testing
raises multiple issues and is outside the scope of this rule. ORR does
not agree that it should implement a regulation barring any sponsor who
claims a familial relationship with a child that cannot be proven
through analysis of DNA since ORR accepts other evidence of a familial
or pre-existing relationship, including a child's birth certificate and
sponsor identity documentation. While DNA testing may establish a
biological relationship, not all familial relationships are biological.
While a parent or other adult relatives are given priority when
evaluating release to a sponsor, ORR also releases children to willing
and able adults designated by the child's parent or guardian and vetted
and approved by ORR when there is no parent or other adult relative
willing or able to care for the minor's well-being in order to protect
the best interests of the child. In reference to false identity
documentation, Sec. 410.1202 provides that to ensure the best interest
of the child, ORR may require a positive result in a suitability
assessment of an individual or program prior to releasing an
unaccompanied child to that individual or entity, which includes
discretion to deny sponsorship if identity cannot be verified. Under
current ORR policy, in the case of a potential sponsor who is neither a
parent or legal guardian, nor a close relative, and lacks a bona fide
relationship to the child, if a sponsor, household member, or adult
caregiver provides any false information in the sponsor application
and/or accompanying documents or submits fraudulent documents for the
purposes of obtaining sponsorship of the child, ORR will report the
incident to HHS Office of the Inspector General (OIG).
Final Rule Action: After consideration of public comments, ORR is
finalizing the language of Sec. 410.1201 as proposed in the NPRM.
Section 410.1202 Sponsor Suitability
Before releasing an unaccompanied child to a sponsor, ORR has a
responsibility to ensure that the sponsor is capable of providing for
the child's physical and mental well-being and has not engaged in
activity that would indicate a potential risk to the child.\137\
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 individual or entity, which may include
an investigation of the living conditions in which the unaccompanied
child would be placed, 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. In the NPRM, ORR
stated that it believes this assessment of suitability may also include
review of the potential sponsor's or adult household member's past
criminal history, if any, and fingerprint background checks, as
discussed subsequently in this section (88 FR 68928).
Consistent with statutory authorities, the FSA, and existing
policy, ORR proposed in the NPRM at Sec. 410.1202(a) to require
potential sponsors to complete an application package to be considered
as a sponsor for an unaccompanied child (88 FR 68928). ORR stated that
an application package will be made available in the potential
sponsor's native or preferred language from either the care provider
facility or from ORR directly.
Also consistent with existing policy, ORR proposed in the NPRM at
Sec. 410.1202(b) to establish that suitability assessments will be
conducted for all potential sponsors prior to release of a child to
such a potential sponsor and described the minimum requirements for a
suitability assessment (88 FR 68928). Consistent with ORR's
responsibilities under 8 U.S.C. 1232(c)(3)(A), and with its current
policies, ORR stated that suitability assessments would, at minimum,
consist of review of the potential sponsor's application package
described in Sec. 410.1202(a), including verification of the potential
sponsor's identity and the potential sponsor's relationship to the
child. ORR further stated that it 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 potential sponsor.
ORR proposed in the NPRM at Sec. 410.1202(c) through (i)
additional requirements or discretionary provisions related to
completion of a suitability assessment (88 FR 68928 through 68929).
These proposed requirements were in addition to those described in the
TVPRA at 8 U.S.C. 1232(c)(3)(A) (describing ``minimum'' requirements
for suitability assessments), and ORR proposed such
[[Page 34444]]
requirements in the NPRM consistent with its authority to implement
policies regarding the care and placement of unaccompanied children as
described at 6 U.S.C. 279(b)(1)(E). ORR proposed in the NPRM under
Sec. 410.1202(c) to utilize 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
provided that ORR may interview members of the potential sponsor's
household, conduct a home visit or home study pursuant to 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 potential sponsor has not engaged in any activity that would
indicate a potential risk to the child. ORR proposed in the NPRM at
Sec. 410.1202(c) to permit 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 proposed in the NPRM including 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 upon release. ORR stated in the NPRM
that although it believes this information may be relevant, it would
not automatically deny an otherwise qualified sponsor solely on the
basis of low income or employment status (either formal or informal).
Finally, ORR proposed in the NPRM under Sec. 410.1202(c) to require
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 the determination whether a
potential sponsor is capable of providing for an unaccompanied child's
physical and mental well-being, ORR proposed in the NPRM including
additional assessment components to evaluate the environment into which
the unaccompanied child may be placed. ORR proposed in the NPRM under
Sec. 410.1202(d) to 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 proposed in the NPRM 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 stated that it
intended that this 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, ORR proposed in the
NPRM under Sec. 410.1202(e) to consider the sponsor's motivation for
sponsorship; the opportunity for the potential sponsor and
unaccompanied child 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.
ORR proposed in the NPRM at Sec. 410.1202(f) considering risks and
concerns specific to the individual child that should be evaluated in
conjunction with the child's current functioning and strengths (88 FR
68929). ORR proposed in the NPRM 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 to, for example, 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, such as 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.
ORR proposed in the NPRM at Sec. 410.1202(g) 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 (88 FR
68929). ORR proposed in the NPRM considering 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 noted that the term ``other child welfare
concerns'' is intentionally broad to allow for discretion and notes
that the term may include the well-being of any other unaccompanied
children currently or previously under the potential sponsor's care.
Pursuant to section 504 and HHS's implementing regulations at 45 CFR
part 85, ORR noted that it shall not discriminate against a qualified
individual with a disability when evaluating their capability to serve
as a sponsor. In addition, ORR noted 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
safety and well-being 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 capability to, provide for the
unaccompanied child's physical and emotional well-being. ORR must give
thorough consideration to the sponsor's specific situation and whether
reasonable adaptations could be made to a release plan to ensure the
unaccompanied child's safety and well-being as required by proposed
Sec. 410.1202(i).
ORR proposed in the NPRM at Sec. 410.1202(h) to 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 unaccompanied child's immigration court proceedings, school
attendance, and U.S. child labor laws, as well as awareness of and
ability to access community resources (88 FR 68929).
Finally, ORR proposed in the NPRM at Sec. 410.1202(i) to develop a
release plan that could enable a safe release to the potential sponsor
through the provision of post-release services, if needed (88 FR
68929).
Comment: Several commenters supported the proposed changes to the
sponsor suitability assessment, stating the additional vetting process
ensures specific standards and services are met, considers the
unaccompanied child's wishes and concerns in the sponsor suitability
assessment, and ensures the child's safety. One commenter noted that
these changes recognize the right of the child's effective
participation in this process and comply with international standards.
Response: ORR thanks the commenters for their comments.
[[Page 34445]]
Comment: One commenter supported the increased focus on the
vulnerability of unaccompanied children to child labor exploitation,
specifically the proposal requiring an unaccompanied child's potential
sponsor to demonstrate understanding and awareness of the sponsor's
responsibilities related to compliance with the child's immigration
court proceedings, school attendance, and U.S. child labor laws. The
commenter stated these proposals will ensure unaccompanied children and
their sponsors are informed of their rights with respect to safe and
appropriate work for children.
Response: ORR thanks the commenter for their feedback.
Comment: A few commenters expressed concern that the potential
sponsor suitability assessment criteria are vague, unclear, may not
directly relate to the safety of the unaccompanied child, and may be
overly burdensome and prohibitive to potential sponsors. One of these
commenters recommended ORR evaluate the list of sponsor suitability
assessment criteria and remove all those not directly related to the
safety of the unaccompanied child. Another commenter recommended ORR
provide clear and predictable criteria to assess sponsor suitability
applications to lead to clear and predictable decisions.
Response: ORR believes that all the factors considered are directly
related to ORR's statutory responsibility under the TVPRA to make the
requisite determination whether a potential sponsor is capable of
providing for the unaccompanied child's physical and mental well-
being.\138\ The potential sponsor is subjected to an evaluation of
their criminal background, substance use or history of abuse or
neglect; the physical environment of the home; and/or other child
welfare concerns. ORR added other child welfare concerns to account for
policy changes or individualized needs that this rule may not
anticipate. ORR studied best practices in child welfare in other
contexts and adapted them to ORR's unique context involving the care of
unaccompanied children, specifically with respect to evaluating the
unaccompanied child's current functioning and strengths in conjunction
with any risks or concerns such as sex or labor trafficking, and any
individualized needs, including those related to disabilities or other
medical or behavioral/mental health issues. ORR will continue to study
and monitor the effectiveness of these suitability assessment criteria
as they are implemented and may engage in future policymaking to
continue to improve them, as appropriate.
Comment: Several commenters had recommendations for verifying the
sponsor's suitability, including identification documents, additional
scrutiny of the sponsor's application, and other requirements. A few
commenters recommended verifying the sponsor's identification with the
issuing Government. A few commenters also recommended other State,
local, or Federal agencies verify the sponsors' identity. One commenter
recommended that State and local law enforcement should have a role in
verifying sponsors, stating this would increase accountability. Another
commenter also recommended that DHS conduct sponsor vetting. One
commenter recommended a single entity conduct the verification process
for the validity of sponsor identity documents and verify identity
documents with the issuing Government when there is doubt. Another
commenter recommended routinely validating the sponsor's identity
documentation with the issuing agency, consulate, or embassy,
regardless of whether there is doubt. One commenter recommended
requiring the sponsor to present at least two identity documents. One
commenter recommended a requirement that a potential sponsor who is not
a biological parent or court-ordered legal guardian submit themselves
and the unaccompanied child to a family court for a formal legal
determination.
Response: ORR proposed in the NPRM at Sec. 410.1202(d) that it
would conduct a suitability assessment to verify at a minimum the
sponsor's identity among other elements in the potential sponsor's
application package. ORR notes that even though it does not specify
required types or the quantity of identification documents that must be
submitted, in the NPRM ORR proposed that, as appropriate in individual
cases, it 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 more
extensive background check on the potential sponsor (88 FR 68928).
However, ORR believes that requiring all of these approaches in every
case would be unnecessary and would likely result in unnecessary delays
in placement of the child with a suitable sponsor, particularly when
ORR is often able to verify identity without consulting with other
agencies. ORR notes that as the Federal custodian it--as opposed to
local family courts--is the agency statutorily responsible under the
TVPRA for making suitability determinations of potential sponsors
seeking the release of unaccompanied children to them.\139\
Comment: One commenter recommended that potential sponsors provide
evidence they are respected and responsible citizens, and if they have
previously sponsored children, how many they have sponsored, records of
sponsorship, the location of the children, and the children's current
health and well-being.
Response: ORR notes that the TVPRA only requires that potential
sponsors be determined to be capable of providing for the physical and
mental well-being of the unaccompanied children that they sponsor. ORR
emphasizes that, consistent with the TVPRA, the suitability assessment
required at Sec. 410.1202 will include consideration of the following:
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, which may include the well-
being of other children currently or previously under the potential
sponsor's care. ORR further notes that, as required under Sec.
410.1204 and consistent with existing policy, ORR will conduct a home
study before releasing any child to a potential non-relative sponsor
who is seeking to sponsor multiple children or who has previously
sponsored children.
Comment: Several commenters emphasized the importance of thoroughly
vetting sponsors to ensure the safety and well-being of unaccompanied
children. However, some of these commenters did not support the
potential sponsor suitability assessment process at Sec. 410.1202
because commenters believed the verification process is inadequate to
protect children from sponsors who may abuse, exploit, or victimize
them. Additionally, commenters expressed concern that the sponsors may
submit false or invalid documentation, that ORR may be unable to verify
the relationship between the unaccompanied children and the sponsors,
and that ORR may be unable to detect sponsor fraud. One commenter did
not support the sponsor suitability proposals because they think the
measures provide too much discretion in evaluating suitability, require
a minimal review of the potential sponsor's application, and place too
much trust in the potential sponsor's
[[Page 34446]]
statements in the application without independent verification.
Response: ORR notes that verification of documentation submitted in
the sponsor application may include an investigation of the living
conditions and standards of care in which the unaccompanied child would
be placed, verification of the identity and employment of the
individuals offering support, interviews of members of the household,
and a home visit. ORR also notes that Sec. 410.1202(c), consistent
with the FSA, provides that a sponsor suitability assessment should
take into consideration the wishes and concerns of the minor. ORR notes
that all assessments of suitability include review of past criminal
history, if any, and a background check, which may include
fingerprinting of the sponsor and household members.
Comment: Several commenters expressed concern that the proposed
background checks are insufficient to vet sponsors and recommended
stricter background checks, including an FBI fingerprint check, for all
potential sponsors. One commenter recommended background checks of
abductions or alerts as part of the sponsor's suitability assessment,
while another commenter recommended local law enforcement conduct
investigations of sponsors. In addition to recommending more stringent
background checks, one commenter recommended that if a potential
sponsor refuses to submit to a security and background check, ORR
should bar the potential sponsor from receiving custody of the
unaccompanied child.
Response: ORR thanks the commenters for their recommendations. ORR
emphasizes that it utilizes critical background check requirements for
potential sponsors in all cases. What varies however, is which
combination of background check requirements apply to individual
sponsors or a sponsor household given specific factors, including the
closeness of the relationship between the sponsor and the child. For
example, measures such as public records checks and sex offender
registry checks (through the U.S. Department of Justice National Sex
Offender registry) are conducted for all sponsors. Other measures like
the FBI background check are conducted for some sponsors, which per
current ORR policy includes proposed sponsors who are unrelated, more
distant relatives, or immediate relatives (e.g., aunt, uncle, first
cousin) who were not previously the child's primary caregiver.
Comment: One commenter expressed concern that ORR is releasing
children to sponsors prior to a response from ACF's OTIP.
Response: In placing a child with a sponsor, ORR stated in the NPRM
that at minimum, a sponsor suitability review shall consist of
verification of the potential sponsor's identity, physical environment
of the sponsor's home, 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 (88 FR 68985). Independent findings include information such as
Government reports, background check results from other entities (like
the FBI), third-party reviews of the case by a social worker not
employed by the care provider, and information from state databases
such as sex offender registry lists. ORR notes that it requires that
OTIP be notified if during their initial intake, 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. ORR also notes that
its case managers are trained to identify common human trafficking
indicators through their sponsor assessments, identity verification
processes, and interviews, and ORR works closely with OTIP whenever
there are any potential signs of trafficking in a case. If ORR has no
further concerns about a release to a sponsor upon investigation of
issues that come up during assessment, placement with a sponsor may
move forward; however, a home study may be warranted, pursuant to the
requirements and procedures at Sec. 410.1204 below.
Comment: A number of commenters expressed concern that ORR releases
unaccompanied children to unemployed sponsors, stating this is an
indicator for trafficking. Some commenters expressed concern that ORR
does not require potential sponsors to have a means to support
unaccompanied children. Other commenters, however, recommended ORR
clarify in the final rule that the risks and concerns listed in Sec.
410.1202 do not necessarily disqualify a potential sponsor. Another
commenter recommended ORR clarify that a potential sponsor's financial
situation does not disqualify the potential sponsor unless it is so
severe as to raise concerns about the sponsor's ability to meet the
unaccompanied child's basic needs.
Response: ORR notes that while the TVPRA at 8 U.S.C. 1232(c)(3)
does not require verification of the sponsor's employment, the FSA does
include employment as one possible factor in sponsor suitability. ORR
proposed in the NPRM at Sec. 410.1202 to include this as a permissible
consideration as part of the suitability assessment to ensure sponsors
can show they have adequate resources to provide for the child's
physical and mental well-being (88 FR 68928 through 68929). However,
ORR will not deny an otherwise qualified sponsor solely on the basis of
low income or employment status.
Comment: A few commenters expressed concern about ORR releasing
unaccompanied children to non-relative sponsors due to safety and well-
being concerns about the children. One of these commenters recommended
ORR revise Sec. 410.1202 to bar potential non-relative sponsors who
already have custody of an unaccompanied child from receiving custody
of other non-relative unaccompanied children to decrease the risk that
ORR releases these unaccompanied children to sponsors who may traffic,
abuse, or exploit them. Another commenter recommended additional
assessment of non-relative sponsors who are responsible for several
unaccompanied children and involving other agencies when further
investigation is needed, especially in cases of suspected smuggling or
trafficking.
Response: ORR believes that the policies codified in this section
provide important protections which decrease the risk of release to
sponsors who would traffic, abuse, or exploit children. Specifically,
under Sec. 410.1202(d), ORR will 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, and may deny release to unrelated individuals who have
applied to be a sponsor but who have no preexisting relationship with
the child or the child's family prior to the child's entry into ORR
custody Furthermore, ORR will consider the potential sponsor's
motivation for sponsorship; the unaccompanied child's preferences and
perspective regarding release to the potential sponsor; and the
preferences of the unaccompanied child's parent or legal guardian and
perspective on release to ORR. While ORR does not believe it would be
able to serve the best interests of children in their custody by
broadly excluding non-relative sponsors who already have custody of
another unaccompanied child, under ORR policy such sponsorships are
subject to a mandatory home study. ORR notes that under Sec.
410.1205(a), a sponsorship would be denied if, as part of the sponsor
assessment process described at
[[Page 34447]]
proposed 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.
Comment: One commenter expressed concern that the proposed rule did
not contain any protocols or information sharing requirements when ORR
determines that an adult has fraudulently claimed to be a parent or
relative of an unaccompanied child. Another commenter suggested that
fraudulent representations made by a potential sponsor regarding their
relationship to the unaccompanied child should be a crime and that such
representations should be reported to ICE and applicable State law
enforcement agency.
Response: Under current ORR policy, in the case of a potential
sponsor who is neither a parent or legal guardian, nor a close
relative, and who lacks a bona fide pre-existing relationship with the
unaccompanied child, or if a sponsor, household member, or adult
caregiver provides any false information in the sponsor application
and/or accompanying documents or submits fraudulent documents for the
purposes of obtaining sponsorship of the child, ORR will report the
incident to the HHS Office of the Inspector General (OIG). ORR also
notes that notification of fraud is further addressed in current ORR
policy, which provides that ORR may deny release if it is determined
that fraudulent documents were submitted during the sponsor application
process.
Comment: One commenter recommended that if an unaccompanied child
refuses a DNA test, the child should remain in ORR's custody.
Response: ORR refers readers to the response above in Sec.
410.1201 on using DNA to identify relationships between unaccompanied
children and potential sponsors and reiterates that ORR releases
children to willing and able adults designated by the child's parent or
guardian who may not have a biological relationship with the child, and
thus such relationships are not DNA-confirmable. ORR vets and approves
such non-biological relative sponsors when there is no parent or other
adult relative capable of providing for the child's physical and mental
well-being. Furthermore, ORR believes that it is important that any
disclosure of unaccompanied children's information is compatible with
program goals and protects the safety and privacy of unaccompanied
children.
Comment: Several commenters expressed a belief and concern that
case managers are not allowed to ask potential sponsors how many
children they have sponsored, stating this question is necessary to
ensure there is no child trafficking. A few commenters also expressed
the belief that case managers are prohibited from fully investigating
sponsors and are instead compelled to expedite unifications without
conducting comprehensive safety assessments of the placement. A few
commenters expressed concern that they believe case managers may risk
termination if they call law enforcement to investigate sponsors and
suspicious activities. One commenter recommended that case managers who
report such concerns should not be subject to disciplinary action,
including termination.
Response: ORR notes that current policy not only permits case
managers to evaluate if a potential sponsor has served as a sponsor
before, but actually requires such an evaluation. Section 410.1202 sets
out parameters that specifically require certain issues be evaluated,
considered, or assessed, and ORR policy requires an evaluation of
information relating to prior sponsorship as a vital part of the case
manager's role in the sponsor assessment process. ORR's decision not to
include detailed standards about all of the areas of potential inquiry
by case managers in this regulation is not indicative of an inability
or unwillingness to collect such vital information. ORR also notes that
it provides for ongoing case management services and disagrees that
case managers are compelled to expedite release to a sponsor. ORR
further notes that its sponsor suitability assessment process has no
effect on existing whistleblower protections, which remain in place and
continue to be a key mechanism for ensuring the safety and well-being
of all children in ORR care. Moreover, case managers are required to
report safety concerns to local law enforcement and other appropriate
investigative authorities (e.g., child protection agencies) in the
course of reviewing a potential sponsor's application. In addition,
independent of case manager communications and findings, current ORR
policy requires additional scrutiny of potential sponsors who have
previously sponsored children, such as through mandatory home studies.
Comment: Many commenters expressed concern that ORR does not
propose to vet all members of each potential sponsor's household.
Several commenters recommended that ORR vet and conduct background
checks on all other adults that may be present in any potential
sponsor's household to ensure the safety of unaccompanied children from
unlawful employment and trafficking.
Response: ORR notes that proposed Sec. 410.1202(c) requires
background and criminal records checks, which when safety concerns are
present, may include a fingerprint-based background check on the
potential sponsor and on any adult resident of the potential sponsor's
household. Details regarding background check requirements and
applicability to specific categories of potential sponsors, adult
household members, and adults identified in the sponsor care plan are
discussed further in the ORR Policy Guide. ORR also uses home visits
and home studies in mandatory and discretionary cases to further
evaluate the suitability of a home to receive unaccompanied children.
ORR additionally notes that its case managers are specially trained to
look for indicators of human trafficking in a household while they
complete sponsor vetting. Those requirements are now codified in this
final rule. In addition, ORR is further clarifying at Sec. 410.1202(c)
to state that the sponsor suitability assessment shall include all
needed steps to determine that the potential sponsor is capable of
providing for the unaccompanied child's physical and mental well-being.
Comment: One commenter expressed concern about ORR's ability to
thoroughly assess potential sponsors' suitability within 10 to 20 days
to allow for release of the unaccompanied children within 30 days of
placement at a care provider facility.
Response: ORR has found that 10 to 20 days is generally sufficient
to thoroughly assess sponsor suitability and notes that additional time
may be needed for a home study or other background checks in some
cases. ORR is finalizing revisions to Sec. 410.1205(b) to include that
it will adjudicate the completed sponsor application of a parent or
legal guardian or brother, sister, or grandparent, or other close
relative sponsor within 10 calendar days of receipt of that
application, absent an unexpected delay (such as a case that requires
completion of a home study). ORR will also adjudicate the completed
sponsor application for other close relatives who were not previously
the child's primary caregiver within 14 calendar days of receipt of
that application, absent an unexpected delay (such as a case that
requires completion of a home study).
Comment: A few commenters expressed concern that proposed
[[Page 34448]]
Sec. 410.1202(d) denies release to an unrelated individual with whom
the unaccompanied child does not have a pre-existing relationship. One
of these commenters stated the proposal is inconsistent with the FSA
because it would make the release priorities in paragraph 14D and 14F
of the FSA optional for ORR and the FSA does not permit ORR to decline
consideration of a potential sponsor due to a lack of a pre-existing
relationship with the child. Additionally, the commenter stated this
proposal is not needed to ensure safe placement and could result in
unnecessary delays to release. The commenter also noted that the
proposed rule does not include the opportunity for a potential sponsor
to build a relationship with the unaccompanied child as described in
ORR's current policy. To be consistent with the FSA and ORR policy, the
commenter recommended the final rule state the potential sponsor's lack
of a pre-existing relationship will not automatically disqualify a
potential sponsor from consideration and, if necessary to ensure a safe
release, ORR will provide an opportunity for a potential sponsor to
establish a relationship with an unaccompanied child while the child is
in ORR custody.
Response: Under Sec. 410.1202(d), ORR will 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
proposed in the NPRM 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 (88 FR 68929). The final rule at Sec.
410.1201(a)(4) recognizes, however, that lack of a pre-existing
relationship with the child does not categorically disqualify a
potential sponsor, but the lack of such relationship may be a factor in
ORR's overall suitability determination. ORR notes, to further clarify
its explanation in the preamble to the NPRM, that it intends that this
proposed language be read consistently with proposed Sec.
410.1201(a)(4) and (6), which implement FSA paragraphs 14D and F,
respectively, such that ORR may release an unaccompanied child to an
individual with no pre-existing relationship with the child after a
suitability assessment, but ORR would not be required to do so.
Additionally, Sec. 410.1202(e) requires ORR to consider the sponsor's
motivation for sponsorship; the opportunity for the potential sponsor
and unaccompanied child 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 (88 FR 68929).
Comment: One commenter recommended the sponsor suitability
assessment consider the child's best interests in making any
unification decisions, including the harm to the child's well-being of
continued Federal custody and the benefits of release to a community
placement. The commenter also recommended consideration of the
sponsor's ability to provide for the child's welfare. This commenter
expressed concern that the proposal at Sec. 410.1202(f)(1) to evaluate
the unaccompanied child's risk of labor trafficking, including observed
or expressed need to work or earn money, are overly broad risk
assessment factors that do not adequately consider cultural norms in
the families of unaccompanied children. The commenter recommended ORR
identify and adopt a verified assessment tool to determine whether a
child is at risk for trafficking in order to avoid prolonged Federal
custody for a child while the suitability assessment process ensues.
Response: ORR notes that a child expressing the need to work would
not alone be considered a disqualifying factor but may warrant further
inquiry during the sponsor suitability assessment. ORR is required to
consider the best interest of the child and identify risk for child
trafficking when making placements. A child's desire to make money is
potentially an indicator that they are more vulnerable to exploitation
and are at heightened risk. With respect to assessment tools, ORR notes
that it utilizes several standardized screening tools for sex and labor
trafficking available to federal agencies.
Comment: A few commenters expressed concern that, without more
context and explanation of what it means to evaluate the unaccompanied
child's individualized needs related to any disability as part of ORR's
assessment of a potential sponsor, care provider facilities could
discriminate against children with disabilities by adding obstacles not
faced by children without disabilities. The commenters recommended the
final rule state that consideration of a child's disability or
disabilities must explicitly consider the potential benefit to the
child of release to a community placement with a sponsor and the
potential harm to the child of continued ORR custody. Further, the
commenters recommended the final rule clearly state that a child's
disability is not a reason to delay or deny release to a sponsor unless
the sponsor is determined to be incapable of providing for the child's
physical and mental well-being despite documented efforts by ORR to
educate the sponsor about the child's needs and to assist the sponsor
in accessing and coordinating post-release services and supports.
Lastly, the commenters recommended the final rule require that when the
sponsor needs support or training to meet the child's disability-
related needs, such support and training should be provided as a
reasonable modification for the child and to enable the child to live
in the most integrated setting appropriate to their needs.
Response: ORR notes that it has a statutory duty under the TVPRA to
assess the suitability of a potential sponsor before releasing a child
to that person,\140\ and such an assessment must necessarily include an
assessment of the potential sponsor's ability to meet the child's
disability-related needs (which may also require the provision of PRS).
ORR agrees that under this subpart, 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, and whether PRS are needed to meet the
child's disability-related needs. Correspondingly, ORR must consider
the potential benefits to the child of release to a community-based
setting. Thus, under Sec. 419.1202(f)(5), ORR is finalizing that it
will assess any individualized needs of the unaccompanied child,
including those related to disabilities or other medical or behavioral/
mental health issues, and under Sec. 410.1202(h)(1) will assess the
sponsor's understanding of the child's needs as a part of determining
the sponsor's suitability. ORR notes that Sec. 410.1311(e)(2) as
proposed in the NPRM states that ORR will affirmatively assist sponsors
in accessing PRS to support the disability-related needs of a child
upon release (88 FR 68952). ORR believes that a child's disability is
not a reason to delay or deny release to a sponsor unless there is a
significant risk to the health or safety of the child that cannot be
mitigated through the provision of services and reasonable
modifications, and ORR has documented its efforts to educate the
sponsor about the child's disability-related needs and coordinated PRS.
Additionally, unaccompanied children with disabilities should have an
equal opportunity for prompt release, and for
[[Page 34449]]
that reason ORR proposed under Sec. 410.1311(c)(3) that release will
not be delayed solely because PRS is not in place. ORR also agrees that
consideration must be given to the explicit benefits of community-based
settings and is therefore modifying Sec. 410.1311(e)(1) to state that
ORR must consider the potential benefits to the child of release to a
community-based setting.
Final Rule Action: After consideration of public comments, ORR is
finalizing its proposal as proposed, with amendments to Sec.
410.1202(c), clarifying that ORR's suitability assessment of potential
sponsors ``shall include taking all needed steps to determine that the
potential sponsor is capable of providing for the unaccompanied child's
physical and mental well-being;'' and Sec. 410.1202(d), clarifying
that lack of a pre-existing relationship with the child does not
categorically disqualify a potential sponsor, but the lack of such
relationship will be a factor in ORR's overall suitability assessment.
ORR will use its discretion to review the totality of the evidence.
Section 410.1203 Release Approval Process
ORR proposed in the NPRM under Sec. 410.1203 a process for
approving an unaccompanied child's release (88 FR 68929 through 68930).
ORR proposed in the NPRM at Sec. 410.1203(a) to codify the FSA
requirement that ORR make and record 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.
ORR proposed in the NPRM at Sec. 410.1203(b), that 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.
ORR proposed in the NPRM at Sec. 410.1203(c) the information that
a potential sponsor must provide to ORR in the required sponsor
application package for release of the unaccompanied child. ORR
proposed in the NPRM that 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. ORR noted that the Sponsor Care Agreement, which ORR
proposed in the NPRM shall be made available in a potential sponsor's
native or preferred language pursuant to 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 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. ORR also proposed 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 noted that this departs from the
2019 Final Rule and the FSA to the extent that ORR did not propose to
require the sponsor to seek ORR's permission to transfer custody of the
unaccompanied child. ORR further noted that 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.\141\
ORR proposed in the NPRM at Sec. 410.1203(d), to conduct a sponsor
suitability assessment consistent with the requirements of Sec.
410.1202.
ORR proposed in the NPRM at Sec. 410.1203(e), consistent with
existing policies, to 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 stated that it 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
the child or others.
Furthermore, ORR proposed in the NPRM at Sec. 410.1203(f), that
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. ORR stated
that 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. 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.\142\
ORR also understands that school districts may not insist on
documentation requirements that effectively prevent enrollment of an
unaccompanied child.\143\
For purposes of this final rule, ORR notes that it typically begins
to identify and assess potential sponsors for unaccompanied children as
soon as they are physically transferred to ORR custody. But consistent
with current policies,\144\ in some exceptional circumstances (e.g.,
when ORR takes part in interagency humanitarian missions and other
similar special operations), when notified by another federal agency
with custody of the child that that the child will likely be determined
to be unaccompanied, ORR may begin vetting potential sponsors for a
child before the child is physically transferred to ORR custody. In
these cases, ORR would not wait for the child to be placed in an ORR
care provider facility to begin the release process. Nevertheless, the
release process for these unaccompanied children would continue to be
governed by the TVPRA and HSA.
Comment: A few commenters expressed concerns and made
recommendations regarding the release approval timeframe. A few
commenters expressed concern that the proposed rule does not specify
how long an unaccompanied child can stay in ORR custody before being
released to a sponsor or another appropriate placement. The commenters
stated that this creates uncertainty and
[[Page 34450]]
inconsistency in the release process, which could potentially prolong
the detention of some children who could be safely released sooner, and
that the rule should establish a clear and reasonable timeframe for the
release of unaccompanied children from ORR custody. One commenter
specified that the timeframe should consider children's best interests,
safety, and well-being, and should also provide for exceptions and
extensions to the timeframe in certain circumstances, such as when
there are delays in identifying or verifying a sponsor, when there are
pending legal proceedings, or when there are individualized needs or
circumstances of the child. This commenter suggested adding a new
paragraph to Sec. 410.1203 that would specify requirements regarding
the timeframe for release approval.
Response: Under proposed Sec. 410.1203(a), which ORR is finalizing
in this final rule, ORR or the care provider facility providing care
for the unaccompanied child must make and record the prompt and
continuous efforts on its part toward family unification and release of
the child. ORR notes that transfer of physical custody of the child
must occur as soon as possible once an unaccompanied child is approved
for release. ORR acknowledges that the final rule does not specify how
long an unaccompanied child can stay in ORR custody before being
released to a sponsor or another appropriate placement. However, ORR
makes every effort to quickly and safely release unaccompanied children
to a sponsor determined by ORR to be suitable pursuant to the
procedures in subpart C. Rather than specifying a particular timeframe
for release, ORR believes that flexibility is necessary to consider the
individual circumstances of each case, including delays in identifying
or verifying a sponsor, pending legal proceedings, or individualized
needs or circumstances of the child, including any individualized needs
of a child with a disability, to ensure that children are placed with
suitable sponsors who are capable of providing for their physical and
mental well-being. ORR notes that on average, most releases occur much
earlier than 90 days from ORR gaining custody with an average time of a
27-day length of stay in ORR's custody prior to release in fiscal year
2023.\145\ ORR notes that, in the interest of the timely and efficient
placement of unaccompanied children with sponsors, Sec. 410.1207, as
revised in this final rule, requires ORR supervisory staff who
supervise field staff to conduct automatic review of all pending
sponsor applications. The first automatic review shall occur within 90
days of an unaccompanied child entering ORR custody to identify and
resolve the reasons that a sponsor application remains pending in a
timely manner, as well as to determine possible steps to accelerate the
children's safe release.
Comment: Many commenters recommended that the final rule include a
provision specifically requiring that ORR and care provider facilities
engage in release planning for youth who will age out of ORR custody at
age 18 beginning on their 17th birthday, or if they enter custody after
that time, as soon as they enter custody. The commenters stated that
prompt and timely age-out planning is important because children in ORR
custody who age out face the possibility of being transferred to adult
detention in an ICE facility, and abrupt transitions out of a child
welfare setting without sufficient planning and support can further
traumatize children and leave them vulnerable to homelessness,
exploitation, and trafficking.
Response: ORR agrees that prompt and timely age out planning is
important. ORR's existing requirements in subregulatory guidance
include after care planning to prepare unaccompanied children for post-
ORR custody. Under current ORR policies, care provider facilities
create long term plans to address the individualized needs of each
unaccompanied child following release from ORR, and whenever possible,
this involves releasing an unaccompanied child to the care of a family
member. However, in some situations, release to a family member is not
an option for the child. In those instances, the care provider facility
must explore other planning options for the future. These include
planning for teenagers turning 18 years of age, and ``aging out'' of
ORR custody. ORR, however, has not designated a specific timeframe
within which such planning must start as it believes that flexibility
is necessary based on the individualized needs and circumstances of
each child. ORR will consider commenters' recommendations and may
further address them in future policymaking.
Comment: A few commenters stated that the final rule should further
clarify that a child's disability is not a reason to delay or deny
release to a sponsor unless there is a significant risk to the health
or safety of the child that cannot be mitigated through the provision
of services and reasonable modification. The commenters emphasized that
this assistance must be directly tied to the sponsor evaluation process
to make clear that sponsors should not be denied prior to such support
being offered.
Response: ORR agrees that a child's disability is not a reason to
delay or deny release to a sponsor unless there is a significant risk
to the health or safety of the child that cannot be mitigated through
the provision of services and reasonable modifications. Thus, under
Sec. 419.1202(f)(5), ORR is finalizing that it will evaluate any
individualized needs of the unaccompanied child, including those
related to disabilities or other medical or behavioral/mental health
issues, and under Sec. 410.1202(h)(1) will assess the sponsor's
understanding of the child's needs as a part of determining the
sponsor's suitability. ORR notes that Sec. 410.1311(e)(2) as proposed
in the NPRM states that ORR will affirmatively assist sponsors in
accessing PRS to support the disability-related needs of a child upon
release. ORR agrees that unaccompanied children with disabilities
should have an equal opportunity to be promptly released, and for that
reason proposed under Sec. 410.1311(c)(3) that release will not be
delayed solely because PRS is not in place.
Comment: Many commenters did not support the proposal in the NPRM
at Sec. 410.1203(c) that the sponsor application must include
background information on the potential sponsor's household members
because ORR has stated previously this is not mandatory. In addition,
the commenters did not support the proposal that the sponsor
application must include information regarding the sponsor's identity,
because commenters believe that ORR does not impose requirements for a
standard form of identity or accept expired documents.
Response: ORR is required under the TVPRA to verify the sponsor's
identity and the sponsor application is a means for ORR to collect
standard forms of identification that can be verified by the issuing
agency. With respect to information about an individual's household
members, ORR is required to establish the number and identity of
individuals in the household in order to perform background checks and
to evaluate the environment into which the unaccompanied child may be
placed. With respect standardization of documentation of identity, ORR
notes Government-issued identification is consistent with international
standards and since it may come in various forms from a multitude of
countries, ORR does not believe it is practical to require
standardization of identity documents if
[[Page 34451]]
they serve to identify the individual in their country of origin.
Comment: A few commenters expressed concern that there is
insufficient oversight of sponsors after an unaccompanied child is
released and that the proposed rule does not require ORR to terminate
custody agreements when sponsors fail to adhere to them. Specifically,
commenters stated that ORR should be required to terminate custody
agreements where it is determined that the child's safety or well-being
is at risk (e.g., in cases where the sponsor has abused or trafficked a
child) or the potential sponsor has committed fraud to acquire custody.
Response: ORR notes that although its custody terminates when a
child is released to a sponsor, ORR may assist children after release
by providing post-release services (PRS) as mandated or authorized by
the TVPRA for children who can benefit from ongoing assistance from
social service providers in their community. At Sec. 410.1210(b)(1) as
proposed in the NPRM and finalized, ORR will require that PRS providers
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 unaccompanied children. ORR notes
that custody determinations involving released children fall within the
jurisdiction and applicable law of the state in which the released
child resides.
Comment: Many commenters strongly supported the proposed regulation
at Sec. 410.1203(c)(3) requiring potential sponsors to adhere to
existing Federal and State child labor laws as part of the Sponsor Care
Agreement, stating that this was a much-needed step toward ensuring
that unaccompanied children and their sponsors are informed of their
rights with respect to safe and appropriate work for children.
Response: ORR thanks the commenters for their support.
Comment: A few commenters expressed concern regarding proposed
Sec. 410.1203(c)(5) which requires sponsors to provide notice of
initiation of any dependency proceedings. One commenter believed that
ORR has no authority to mandate ongoing updates by sponsors,
particularly given that ORR has acknowledged in the preamble that once
a child is released from care, they are no longer in ORR custody and
ORR has not placed a time limit after which sponsors would no longer be
required to make such notifications. This commenter recommended that
ORR strike paragraph (c)(5) from Sec. 410.1203, or at a minimum
require notifications only within a specified, reasonable time limit,
such as 30 days, or only require them of children receiving PRS
mandated by the TVPRA. Another commenter stated that the proposed
notification requirement would be burdensome to sponsors because
custody or dependency proceedings are often started to seek the
judicial determinations required for Special Immigrant Juvenile (SIJ)
classification. The commenter further noted that while ORR states that
it has an interest in this information for PRS, to address any
trafficking concerns, or for potential future sponsor assessments
regarding the same sponsor, to accomplish this goal, it should be
sufficient for the sponsor to notify ORR if a case has been opened
regarding the unaccompanied child with the State's child welfare agency
due to allegations of abuse, abandonment, or neglect.
Response: ORR believes that, although it does not retain custody of
a child post-release, it has authority under the TVPRA to ask that
sponsors provide notice on an ongoing basis of the initiation of any
dependency proceedings involving the child in order to provide PRS if
needed, to address any trafficking concerns, or for potential future
sponsor assessments regarding the same sponsor. ORR does not believe
there is enough of a distinction between the burden of notifying ORR if
a case has been opened with the State's child welfare agency and the
initiation of proceedings in family court to require one but not the
other. With respect to requiring notifications only with a specified,
reasonable limit, ORR believes that this would result in an undue delay
in addressing any potential concerns if such a case moves forward
within whatever timeframe ORR were to specify before ORR has knowledge
of it.
Comment: Many commenters expressed concern regarding the
requirements at proposed Sec. 410.1203(c)(6) for a sponsor to notify
ORR post-release that a child is moving to another location with
another individual or of a change of address. Many commenters opposed
proposed Sec. 410.1203(c)(6) because the proposed notification
requirements do not go far enough to protect unaccompanied children.
Some of these commenters expressed concern that, in their view, ORR
assumes no role or responsibility in preventing a child's sponsor from
transferring responsibility for the child's care after placement.
Another commenter expressed concern specifically regarding the proposed
72-hour notification requirement at Sec. 410.1203(c)(6) when a sponsor
transfers physical custody of the unaccompanied child in the event of
an emergency. The commenter stated that by providing the sponsor three
days to notify ORR of the transfer, ORR may lose the child's location
and lose the ability to prevent the re-trafficking of the child and
noted that there may be little recourse against the sponsor. In
contrast, a few commenters expressed concern that the notification
requirements at proposed Sec. 410.1203(c)(6) go too far. One commenter
sought clarification regarding the purpose, scope, and penalty for non-
compliance with the requirement at Sec. 410.1203(c)(6), expressing
concern that the proposed notification requirements amount to
unwarranted Government intrusion where there is no evidence of a safety
concern to justify continued oversight or monitoring. The commenter
further stated that this proposed policy is inconsistent with ORR's
past statements that its obligation to the unaccompanied child ends
with the release of that child to a sponsor. Another commenter opposed
proposed Sec. 410.1203(c)(6), stating that ORR has no authority to
mandate ongoing updates by sponsors, particularly given that ORR has
acknowledged in the preamble that once a child is released from its
care, they are no longer in ORR legal custody and that ORR has not
placed a time limit after which sponsors would no longer be required to
make such notifications. The commenter further stated that the proposed
change of address notifications are duplicative, given that children
and their sponsors have an independent responsibility to notify EOIR
and the DHS of any change of address under proposed Sec.
410.1203(c)(4). Thus, the commenter recommended that ORR strike
paragraph (c)(6) from Sec. 410.1203, or at a minimum require
notifications only within a specified, reasonable time limit, such as
30 days, or only require them of children receiving PRS mandated by the
TVPRA.
Response: ORR disagrees that it has no authority to specify, as a
condition of release, that a sponsor agree to a 72-hour notification
requirement when transferring custody of a child. Furthermore, ORR
believes 72 hours is a reasonable time in which to inform ORR of a
transfer of custody and that it is sufficient for maintaining an
ability to contact the child to initiate or continue to provide PRS.
ORR notes that while
[[Page 34452]]
certain cases mandate PRS, all released children are still eligible to
receive PRS. ORR does not consider this notification part of monitoring
as it does not propose to impose penalties or take specific action
related to the transfer of custody. ORR acknowledges that it cannot
require sponsors to seek permission to transfer custody of a child from
the sponsor to someone else because ORR no longer has custody over
children after they are discharged from its care. However, ORR needs to
maintain and update records of the child's location in order to be able
to provide PRS on a mandatory or discretionary basis while the child
remains eligible for such services during the pendency of their removal
proceedings.
Comment: Many commenters recommended that the proposed rule include
a provision codifying ORR's ability to keep families together by
expediting the release of unaccompanied children to relatives with whom
they are traveling who qualify as close relative sponsors.
Specifically, the commenters stated that instead of separating families
and causing additional trauma, ORR staff could meet with children and
relatives at the border and begin the process of qualifying the adult
family member as a close relative sponsor, including verifying family
relationships and ensuring that adult relatives do not pose a risk of
trafficking or other immediate danger to the child. The commenters
recommended that if the adult relative is approved as a close relative
sponsor, CBP would release the adult and ORR would release the child
into the custody of the family member (with the child designated as
unaccompanied, which the commenter stated provides critical protections
to children during their immigration case).
Response: ORR notes that it is not an immigration enforcement
agency, and its statutory authority is limited to the care and
placement of unaccompanied children transferred by other Federal
departments or agencies to ORR custody. ORR, therefore, cannot evaluate
sponsors or relatives the child has traveled with upon the child's
entry to the United States at the border before the child has been
identified as an unaccompanied child within the definition of this
rule. ORR agrees that if a parent or adult relative is in the United
States and able, willing and qualified to sponsor a child, they are
first in the order of priority for those eligible to be sponsors. ORR
also notes that its policy is not to separate family members that
arrive at the border together; DHS refers children to ORR within the
parameters of the TVPRA but the vetting process for sponsorship is not
immediate. Further, ORR notes that it has a pilot project with DHS
under which it attempts to quickly reunify unaccompanied children with
accompanying relatives, consistent with both agencies' authorities.
However, it is outside the scope of ORR's statutory authority to codify
in this final rule practices that pertain to DHS operations.
Comment: One commenter noted that the proposed rule does not
specify what the best interests of the child are when there are
conflicting claims from different sponsors, which could lead to putting
the child back into a potentially dangerous situation.
Response: ORR notes that when there are multiple potential
sponsors, ORR observes the following order of priority: 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, as is consistent with the FSA paragraph 14. ORR notes that at
Sec. 410.1001 contains a non-exhaustive list of factors that ORR
considers when evaluating what is in a child's best interests. Included
on this list are 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. ORR would
therefore balance these and additional factors stated at Sec. 410.1001
and in this section when considering sponsor suitability, including
when there are multiple potential sponsors. ORR further notes that
pursuant to Sec. 410.1203(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 facilitate the
unaccompanied child's appearance before DHS or the immigration courts
when required to do so.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed.
Section 410.1204 Home Studies
The TVPRA requires a home study be performed for the release of an
unaccompanied child in certain circumstances.\146\ Therefore, ORR
proposed in the NPRM both required and discretionary home studies
depending upon specific circumstances, including when the safety and
well-being of the child is in question (88 FR 68930 through 68931).
ORR proposed in the NPRM at Sec. 410.1204(a), that, as part of its
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, it shall take
place prior to the child's physical release.
ORR proposed in the NPRM at Sec. 410.1204(b), three circumstances
in which a home study shall be required. First, ORR proposed that a
home study be required under the conditions identified in the TVPRA at
8 U.S.C. 1232(c)(3)(B) which include, `` . . . 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.''
Second, ORR proposed that a home study be required 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. Third, ORR proposed that
a home study be required 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 potential sponsor ``is capable of providing for the
child's physical and mental well-being,'' \147\ and 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.'' \148\
ORR proposed in the NPRM at Sec. 410.1204(c), to 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.
[[Page 34453]]
ORR proposed in the NPRM at Sec. 410.1204(d), that 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. ORR also proposed that it would provide the home study
report to the potential sponsor if the request for release is denied,
as well as any subsequent addendums, if created.
Finally, ORR proposed in the NPRM at Sec. 410.1204(e) 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
services in cases involving children with mental health or other needs
who could benefit from ongoing assistance from a social welfare
agency.''
Comment: A number of commenters strongly supported proposed Sec.
410.1204(b), which requires home studies under conditions specified in
the TVPRA at 8 U.S.C. 1232(c)(3)(B) and codifies existing ORR policy to
conduct home studies for children in additional vulnerable situations
as specified at Sec. 410.1204(b)(2) and (3), stating that such
provisions would provide additional safeguards and care for
unaccompanied children. One commenter specifically commended the
requirement at Sec. 410.1204(b)(2) to conduct a home study prior to
releasing a child to a non-relative sponsor who intends to sponsor
multiple children, or has previously sponsored or sought to sponsor a
child and is seeking to sponsor additional children, and for tender age
children, noting that this not only ensures a suitable environment for
multiple children but also promotes sponsor compliance with the child
welfare standards of ORR and State jurisdictions and helps to prevent
trafficking and other exploitative situations.
Response: ORR thanks the commenters for their support.
Comment: A number of commenters expressed concern regarding various
aspects of proposed Sec. 410.1204(b), recommending that home studies
be mandated in additional situations. A number of commenters
recommended that ORR be required to conduct home studies for all
potential sponsor placements, not just those set forth in proposed
Sec. 410.1204(b), with one commenter recommending an automated process
for home studies. A number of commenters recommended that home studies
should be required for all potential placements with sponsors who are
not parents, legal guardians, or close relatives. Several commenters
stated that a home study should be required whenever a child is being
released to a non-parent or non-family member. One commenter stated
that although some discretion regarding waiver of home studies may be
appropriate where the potential sponsor is a close relative of the
child, any stranger or potential sponsor not previously approved for
placement should always be subject to a home study to reduce the risk
of an abusive sponsorship and the re-exploitation of the child. One
commenter stated that a home study should be required before releasing
any child who is 12 years old or younger regardless of the relationship
to the sponsor.
Response: At Sec. 410.1204(b), ORR is finalizing circumstances
that would mandate home studies that are authorized under the TVPRA
(i.e., Sec. 410.1204(b)(1)) or that ORR believes are consistent with
the statutory requirement that HHS determine that a potential sponsor
``is capable of providing for the child's physical and mental well-
being,'' \149\ and 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.'' \150\
Additionally, ORR is finalizing at Sec. 410.1204(c) a provision
providing ORR with 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. ORR believes that this requirement provides ORR
the flexibility to determine whether there are additional circumstances
that warrant a home study to ensure the unaccompanied child's safety
and well-being post-release, which may encompass some of the
circumstances commenters described. Finally, as ORR implements the
regulations, it will take into consideration the commenters'
recommendations and determine whether additional policymaking is
needed. Therefore, ORR declines to finalize additional circumstances
beyond what it proposed in the NPRM.
Comment: A number of commenters noted that Sec. 410.1204(b)(1)(i)
in the NPRM does not clearly define ``severe'' human trafficking and
recommended that this qualifier be removed since, in their view, all
forms of human trafficking are inherently severe. The commenter further
noted that if the intention is to align with the TVPRA, they believed
the existing proposed provisions adequately cover these requirements,
making the specification of ``severe'' redundant.
Response: ORR clarifies in the final rule that it intends for the
meaning of ``severe form of trafficking'' to have the same meaning as
defined at 22 U.S.C. 7102(11) (``severe form of trafficking'' means
``(A) sex trafficking in which a commercial sex act is induced by
force, fraud, or coercion, or in which the person induced to perform
such act has not attained 18 years of age; or (B) the recruitment,
harboring, transportation, provision, or obtaining of a person for
labor or services, through the use of force, fraud, or coercion for the
purpose of subjection to involuntary servitude, peonage, debt bondage,
or slavery.'').
Comment: Some commenters expressed concern that children will be
released to persons who will exploit them since ORR has no mechanism to
determine if a child has been sexually abused other than question-
answer testimony.
Response: ORR disagrees that it has no mechanisms in place to
determine if a child has been a victim of sexual abuse and harassment
and may be exploited by a potential sponsor(s). ORR has long screened
all unaccompanied children for potential sexual abuse and harassment
concerns, including during intake, assessments, sponsor assessments,
and Significant Incident Reports. Under Sec. 410.1204(b)(1)(ii), if
the unaccompanied child has been a victim of sexual abuse under
circumstances that indicate that the child's health or welfare has been
significantly harmed or threatened, ORR requires a home study to assess
the suitability of the sponsor. Additionally, as part of the sponsor
suitability assessment under Sec. 410.1202(c), and further described
in ORR polices, ORR vets potential sponsors by conducting background
checks of all potential sponsors and adult household members to
determine if they have engaged in any activity that would indicate a
potential risk to the child's safety and well-being, and these
background checks include searches of State child abuse and neglect
registries. Further, while ORR does not retain legal custody post-
release, ORR notes that for a child receiving PRS, the PRS provider
[[Page 34454]]
assesses the child's risk factors, including sexual abuse and/or
harassment, and educates the child and sponsor on these risks, and will
submit a NOC to ORR and report to the appropriate State and local
authorities if the PRS provider becomes aware of any sexual abuse.
Based on the above, ORR has mechanisms in place to evaluate whether the
unaccompanied child may have been a victim of sexual abuse and/or
harassment or is at risk of being a victim, and to evaluate whether a
sponsor may pose a risk to the child's safety and well-being.
Comment: A number of commenters recommended that ORR limit the
circumstances in which home studies would be mandated. A number of
commenters recommended that home studies required by the TVPRA due to
trafficking concerns be limited to cases where there has been a formal
designation by OTIP, expressing concern that care provider facilities
and ORR staff have an overly broad perspective of trafficking, which
may lead to home studies that derail sponsorships for reasons not
related to the safety of the child. In addition, these commenters
stated that the rule should not require home studies in circumstances
beyond those identified in the TVPRA, stating that home studies should
be recommended but not mandatory in circumstances where a child may be
released 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; or where the child is 12
years old or younger and being released to a nonrelative sponsor. These
commenters expressed concern that ORR defines ``non-relative'' very
broadly, including for example, godparents or close family friends, to
the detriment of the child's well-being, and recommended that the
proposed rule leave space for ORR to make common sense decisions based
on the individual circumstances of the child in situations where home
studies are not mandatory under the TVPRA. Furthermore, a number of
commenters recommended limiting the use of home studies to the most
serious circumstances, stating that while home studies can be valuable
in certain limited circumstances, they should be used relatively rarely
because they are intrusive and risk causing unnecessary delays in
release and unification which may exacerbate a child's trauma. These
commenters recommended that the proposed regulations include an
explicit requirement that decision-making around home studies take into
consideration the effect that prolonged custody and separation from
family will have on the well-being of the child, noting that it is
often the traumatizing effects of detention and detention fatigue that
cause the mental or behavioral health issues that trigger the home
study.
Response: ORR notes that it has been its policy since 2015 to
require a home study 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, or before releasing any child who is 12
years old or younger to a non-relative sponsor. ORR proposed in the
NPRM to codify these factors at Sec. 410.1204(b)(2) and (3) because it
believes they are consistent with HHS's authority under the TVPRA and
HSA.\151\ Based on ORR's experience under current policy, the
circumstances under Sec. 410.1204(b)(2) and (3) are important
circumstances where there may be potential risk to the unaccompanied
child if released to these types of potential sponsors, and ORR
requires additional information to determine that the sponsor is able
to care for the health, safety, and well-being of the child.
Accordingly, ORR declines in this final rule to limit the situations
mandating a home study to only those required under the TVPRA.
Comment: A number of commenters generally expressed concern with
the limited circumstances in which home studies are mandated under
proposed Sec. 410.1204(b) and ORR's proposed discretionary approach
under proposed Sec. 410.1204(c), suggesting that under the proposed
rule there may be potential gaps in ensuring the welfare of
unaccompanied children. A number of commenters further noted that ORR
is not an investigative agency, recommending that responsibility for
home studies be assigned to an agency equipped for this purpose.
Response: As stated above, at Sec. 410.1204(b), ORR is finalizing
circumstances that would mandate home studies that are authorized under
the TVPRA (i.e., Sec. 410.1204(b)(1)) or that it has determined are
consistent with HHS's authority under the TVPRA and HSA.\152\
Similarly, ORR is exercising this authority under Sec. 410.1204(c) to
specify that 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. ORR believes that this requirement provides ORR
the flexibility to determine whether a home study is warranted if
additional information could be gathered to ensure the unaccompanied
child's safety and well-being post-release. ORR will take into
consideration the commenters' recommendations and determine whether
future policymaking is needed.
Lastly, ORR acknowledges the commenters' recommendation that ORR is
not an investigative agency and another agency should perform the home
studies. However, ORR disagrees with this recommendation since it is
ORR's statutory duty under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to
perform home studies in certain circumstances. ORR also notes that it
engages with qualified home study providers to conduct home
studies.\153\
Comment: A number of commenters expressed concern that proposed
Sec. 410.1204(c) uses language on discretionary home studies that is
overly expansive and recommended that ORR adopt more limiting language.
Specifically, the commenters noted that the language, ``is likely to
provide additional information which could assist in determining''
sponsor suitability, is too broad. The commenters stated that home
studies should only be used in the most serious circumstances due to
their intrusive nature and the risk of causing unnecessary delays to
release and unification.
Response: ORR declines to finalize more limiting language. As
stated above, it is ORR's statutory duty under the TVPRA at 8 U.S.C.
1232(c)(3)(B) to perform home studies in certain circumstances to
protect the health and welfare of unaccompanied children. ORR's policy
is that even in circumstances where a home study is not required, a
home study may be conducted if it is likely to provide additional
information to determine that the sponsor is able to care for the
health, safety and well-being of the child. Based on ORR's experience,
ORR believes that it is necessary for it to have the flexibility to
determine whether a home study is likely to provide additional
information, which could assist in assessing the sponsor's suitability
and sponsor suitability assessments vary by each assessment.
Additionally, ORR declines to limit Sec. 410.1204(c) to the ``most
serious circumstances'' as recommended by commenters. ORR believes this
language is too limiting and may result in some potential sponsors not
receiving a home study when they should have.
Comment: A number of commenters expressed concern with ORR's
proposal
[[Page 34455]]
at Sec. 410.1204(d) to inform the potential sponsor whenever it plans
to conduct a home study and explain the scope and purpose of the study.
Specifically, the commenters expressed concern that this notification
may negatively impact the validity of some home studies by allowing
sponsors time to prepare.
Response: ORR declines to update its long-standing policy under
which it informs the sponsor when it plans to conduct a home study. ORR
believes it is important to inform the sponsor that a home study will
be conducted so that it can be timely scheduled and completed
expeditiously. Additionally, it is important that the sponsor is
informed about the home study's scope and purpose because the sponsor
may not have previously participated in a home study nor understand
what it entails.
Comment: A number of commenters expressed concern about sharing
home study reports with sponsors who were denied because such reports
may contain confidential information related to the child's history,
noting that sharing such information with a denied sponsor without the
child's consent is in violation of ORR's own policies. Commenters
expressed concern that children often are referred for home studies due
to past abuse, neglect, or trauma, and that, depending on their age,
they may not consent to having their information shared with the
potential sponsor in the home study report. These commenters
recommended that the child's wishes always be considered when it comes
to sharing confidential information with sponsors, particularly with
nonparent sponsors; and in the case of a parent or relative, these
commenters recommended ORR provide a summary with general reasoning as
to why the release request was denied to assist parents/family in
understanding what has occurred while also protecting the child's
information. Other commenters stated that sponsors should receive an
explanation as to why they were denied, but that ORR should protect the
child's right to confidentiality, and in cases where it is determined
that the sponsor's intentions may be malicious, the report should not
be shared at all.
Response: ORR is revising Sec. 410.1204(d) to remove that the home
study report, as well as any subsequent addendums if created, will
routinely be provided to the potential sponsor if the release request
is denied, although in some cases it may need to be disclosed in whole
or in part, subject to legally required redactions or child welfare
considerations, as a part of the evidentiary record.
Comment: A number of commenters recommended limiting the scope of
home studies and setting time limits for completing them. These
commenters recommended that ORR adopt policies that tailor the scope of
the home study to the reason that it is required, providing, as an
example, that if a home study is required based on a child's
disability, the home study should be limited in scope to uncover only
information relevant to what services, supports, referrals, or
information that ORR and PRS providers can give to the sponsor to meet
the child's disability-related needs (noting that ORR should not
require FBI fingerprint background checks of other adults in the home
in home studies related to disability). These commenters also
recommended placing time limits on the home study process to mitigate
the tendency of home studies to prolong the unification process and the
child's time in custody, recommending that, at a minimum, ORR should
codify the time limits in the current version of the ORR Policy Guide,
which require the home study report to be completed within 10 days. The
commenters further recommended that the regulations include an explicit
provision stating that a delay in completing a home study will not
delay the release of a child to a sponsor. A number of commenters also
noted that the proposed rule does not include information regarding
ORR's existing time limits related to completing a home study and the
3-day deadline for accepting a case and requested clarification
regarding why this provision was omitted.
Response: ORR disagrees with the commenters' recommendation to
tailor the home study to the reason requiring a home study. In the
commenter's example that an unaccompanied child and potential sponsor
who are mandated to receive a home study because the child has a
disability, the home study may uncover other risks that impact whether
the sponsor is able to care for the health, safety, and well-being of
the child. Additionally, ORR declines to limit the background check
process for adult household members because this requirement provides
important additional information related to the home environment post-
release, to help ensure the child's safety and well-being after
release.
ORR did not finalize a time limit on the home study and is choosing
to leave such requirement as subregulatory guidance which will allow
ORR to make more appropriate, timely, and iterative updates to its
policies. This allows ORR to keep with best practices and be responsive
to the needs of unaccompanied children.
Lastly, the TVPRA requires a home study be performed for the
release of an unaccompanied child in certain circumstances. ORR does
not believe it is appropriate to release these unaccompanied children
before a home study is performed due to the other circumstances
described in Sec. 410.1204(b)(2) and (c) because the home study is an
important safeguard to ensure the potential sponsor is able to take
care of the health, safety, and well-being of the child.
Final Rule Action: After consideration of public comments, ORR is
making the following modifications to regulatory language at Sec. Sec.
410.1204(b) and 410.1204(e). ORR is revising Sec. 410.1204(b) to state
that ORR ``shall require'' home studies in order to clarify the
mandatory nature of its obligation under this section. Additionally,
ORR is revising Sec. 410.1204(b)(1)(ii) to remove ``special needs''
and add at the end of the sentence ``who needs particular services or
treatment.'' ORR notes that this revision is consistent with ORR's
update to Sec. 410.1001 removing the term ``special needs
unaccompanied child.'' ORR is revising Sec. 410.1204(d) to remove the
following language from the proposed regulatory text: ``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.'' Finally, ORR is revising Sec. 410.1204(e) to state ``An
unaccompanied child for whom a home study is conducted shall receive an
offer of post-release services as described at Sec. 410.1210.'' This
update is consistent with ORR's modified language at Sec.
410.1210(a)(3), which clarifies that PRS are voluntary for the
unaccompanied child and sponsor and is revised to state in its
discretion, ORR may offer PRS for all released children. ORR is
otherwise finalizing this section as proposed.
Section 410.1205 Release Decisions; Denial of Release to a Sponsor
ORR proposed in the NPRM under Sec. 410.1205 to address the
situations in which ORR denies the release of an unaccompanied child to
a potential sponsor (88 FR 68931). ORR proposed in the NPRM at Sec.
410.1205(a), that a sponsorship would 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
[[Page 34456]]
unaccompanied child or the community.
ORR proposed in the NPRM at Sec. 410.1205(b), that 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. ORR stated that 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, ORR proposed in the NPRM in Sec. 410.1205(c), 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 DOJ
Accredited Representative (or if the unaccompanied child has no
attorney of record or DOJ Accredited Representative, the local legal
service provider) of that denial.
ORR proposed in the NPRM at Sec. 410.1205(d) that if the sole
reason for denial of release is a concern that the unaccompanied child
is a danger to self 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). ORR also
proposed that 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.
ORR proposed in the NPRM at Sec. 410.1205(e) to recognize 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 potential sponsor.
ORR noted 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 certain potential
sponsors who are not an unaccompanied child's parent or legal guardian.
ORR noted that it is complying with the requirements of applicable
court orders and has issued subregulatory policy guidance to do so. ORR
stated that once the Lucas R. litigation is resolved, ORR would
evaluate whether further rulemaking is warranted.
Comment: As to providing written notice to potential close relative
sponsors, a number of commenters criticized the provisions in proposed
Sec. 410.1205 because they did not fully incorporate the terms of the
Lucas R. preliminary injunction and recommended that the final rule
require full written notice to not only parents or legal guardians but
also close relative sponsors. In particular, commenters expressed
concern that Sec. 410.1205(b) does not afford full written notice of a
sponsorship denial to potential close relative sponsors, which is
inconsistent with the Lucas R. preliminary injunction.
Response: ORR agrees with the commenters that potential close
relative sponsors should be afforded full written notice of a denial
decision. The court in Lucas R. found that these additional procedures
``would reduce the risk that [unaccompanied children] will be
erroneously deprived of their interest in (1) familial association with
parents and close family members and (2) being free from physical
restraint in the form of unnecessarily prolonged detention, when a
sponsor is available.'' \154\ Accordingly, ORR has revised Sec.
410.1205(c) (redesignated) to require the ORR Director or their
designee who is a neutral and detached decision maker to promptly
notify a potential sponsor who is a parent or legal guardian or close
relative of a denial in writing via a Notification of Denial Letter.
ORR notes that consistent with existing policy and the Lucas R.
preliminary injunction, ORR is finalizing at Sec. 410.1001 the
following definition of ``close relative'': ``Close relative means a
brother, sister, grandparent, aunt, uncle, first cousin, or other
immediate biological relative, or immediate relative through legal
marriage or adoption, and half-sibling.''
While ORR also agrees that the denial letter to parents, legal
guardians, and close relatives should contain the information specified
in Sec. 410.1205(c), ORR has also modified Sec. 410.1205(c)(2)
(redesignated) to advise the potential sponsor that they have the
opportunity to examine the evidence upon request but to recognize that
ORR may not provide evidence and information, or part thereof, to the
potential sponsor if ORR determines that providing such evidence and
information would compromise the safety and well-being of the
unaccompanied child or is not permitted by law. ORR has encountered
instances where a child requests not to be released to a close relative
due to prior sexual abuse (e.g., by the close relative's children). As
the court in Lucas R. noted, ``[d]enials of sponsorship applications
can be based on sensitive grounds . . . that could cause distress to
the minor. Release of such information . . . may . . . cause
unnecessary pain to all parties involved.'' \155\ In those instances,
ORR will nevertheless notify the unaccompanied child and the
unaccompanied child's attorney of the denial and will provide them with
the opportunity to request to inspect the evidence, so the child's
``interests are sufficiently protected.'' \156\
Comment: Commenters also noted that proposed Sec. 410.1205(d) did
not provide the notice required by the Lucas R. preliminary injunction
to an unaccompanied child denied release solely on the basis of danger
to self or others, and also fails to provide notice to the
unaccompanied child's attorneys.
Response: ORR acknowledges that the Lucas R. preliminary injunction
also requires that if the sole reason for denial of release is a
concern that the unaccompanied child is a danger to self or others, ORR
must provide the child and their counsel full written notice of the
denial and the right to appeal, regardless of the relationship between
the potential sponsor and child. ORR agrees with the commenters and is
clarifying at Sec. 410.1205(f) (as redesignated in this final rule)
that if a denial is solely due to a concern that the unaccompanied
child is a danger to self or others, ORR will provide the child and
their counsel, if the child is represented by counsel, a copy of the
Notification of Denial Letter, and that the child may seek an appeal of
the denial.
Comment: Some commenters stated that ORR should do more than the
minimum required by the Lucas R. preliminary injunction to extend the
notification and appeal procedures to all unaccompanied children. These
commenters recommended that ORR provide full written notice of
sponsorship denials to all affected potential sponsors and
unaccompanied children because all unaccompanied children, regardless
of the type of potential sponsor, have a constitutional liberty
interest, and a significant liberty interest derived from the TVPRA in
family placement and freedom from
[[Page 34457]]
institutional restraints. Some commenters stated that, for
unaccompanied children seeking release to any sponsor irrespective of
the sponsor's relationship with the child, written justification of
sponsorship denial is particularly important since the unaccompanied
child may have few, if any, other release options. Commenters noted
that providing written justifications of sponsorship denials to all
sponsors aligns with the principle that ORR, unaccompanied children,
and their potential sponsors share a strong interest in preventing
erroneous sponsorship denials. These commenters stated that
unaccompanied children and potential sponsors should receive formal
notice of sponsorship denials and the reasons underlying the decisions,
unless there are particularized child welfare reasons to withhold
specific information, because unaccompanied children often are
uncertain about the status of their sponsorship applications or lack
clear understanding of why it is delayed or denied, which can severely
impact the unaccompanied child's mental health. Commenters noted that
there is minimal burden on ORR to provide written notice of denial to
all affected sponsors and unaccompanied children compared to the
importance of adequate notice and accurate release decisions.
Response: ORR is committed to ensuring that unaccompanied children
are promptly released to sponsors who are capable of providing for
their physical and mental well-being, as required by the TVPRA and
other authorities. ORR has affirmed at Sec. 410.1205 and Sec.
410.1206 its longstanding commitment to providing potential parent and
legal guardian sponsors full written notification of a denial and the
right to appeal a denial decision. ORR has also affirmed its commitment
at Sec. 410.1205 and Sec. 410.1206 to extending those same rights to
close relative sponsors. At this time, ORR is not incorporating into
this rulemaking the same requirements for other potential sponsors,
such as distant relatives and unrelated adult individuals, which the
court in Lucas R. did not require, because ORR continues to assess the
administrative burden and appropriateness of providing full written
notice and appeal rights to potential sponsors who may have an
attenuated relationship with the unaccompanied child they are seeking
to sponsor. Notably, the court in Lucas R. found that unaccompanied
children with potential sponsors who are distant relatives or unrelated
individuals designated by parents, and children without any identified
sponsors, ``require little or no additional procedural protection.''
\157\
Comment: Some commenters stated that Sec. 410.1205(b) does not
meet the requirements in the Lucas R. preliminary injunction because it
only provides a deadline for adjudicating parent and legal guardian
sponsorship applications but fails to provide a deadline for
adjudicating close relative sponsorship applications, which the
commenters stated can result in delays in release that violate due
process. Commenters noted that the preliminary injunction requires that
completed sponsorship applications for parents or legal guardians,
siblings, grandparents, or other close relatives who previously served
as the child's primary caregiver be processed within 10 days and that
sponsorship applications for other immediate relatives who have not
previously served as the child's primary caregiver be processed within
14 days. These commenters recommended ORR adopt in the final rule the
sponsorship application adjudication timeframes set forth in the Lucas
R. preliminary injunction.
Response: ORR agrees with the commenters that providing timeframes
for adjudicating completed sponsorship applications ensures timely
releases of unaccompanied children to parents, legal guardians, and
other close family members. Accordingly, consistent with the Lucas R.
preliminary injunction, ORR is finalizing revisions to Sec.
410.1205(b) to include that it will adjudicate the completed sponsor
application of a potential parent or legal guardian or brother, sister,
or grandparent, or other close relative sponsor who has been the
child's primary caregiver within 10 calendar days of receipt of that
application. ORR will also adjudicate the completed sponsor application
for other close relatives who were not previously the child's primary
caregiver within 14 calendar days of receipt of that application. If
there are unexpected delays such as a case that requires the completion
of a home study, background checks, or other required assessments, ORR
is not required to complete its adjudication in the timeframes
provided. Furthermore, a completed application is one in which a
sponsor has submitted the application along with all required
supporting documentation.
Comment: Commenters also recommended the final rule require that
the ORR Director, or a designee who is a neutral and detached decision
maker, automatically review all denials of sponsorship applications
submitted by parents or legal guardians and close relative potential
sponsors, which they stated is an important safeguard to protect
against erroneous release denials, avoid the need for appeal, and
prevent any consequential delays in the unaccompanied child's release
to a suitable sponsor.
Response: ORR agrees and is adding Sec. 410.1205(d) to require
automatic review of those sponsor application denials by the ORR
Director or a neutral and detached designee.
Comment: Commenters expressed concern that Sec. 410.1205(c) does
not provide unaccompanied children the right to inspect the evidence
underlying ORR's release denial decisions as required by the Lucas R.
preliminary injunction. These commenters recommended ORR update the
final rule with this notice provision.
Response: ORR agrees and has included at Sec. 410.1205(e)
(redesignated) new language that requires ORR to inform an
unaccompanied child, the unaccompanied child's child advocate, and the
child's counsel (or if the unaccompanied child has no attorney of
record or DOJ Accredited Representative, the local legal service
provider) of a denial of release to a potential parent or legal
guardian or close relative sponsor and inform them that they have the
right to inspect the evidence underlying ORR's decision upon request
unless ORR determines that providing the evidence is not permitted by
law.
Comment: Many commenters expressed concern that it is infeasible
and problematic to expect an unaccompanied child to retain counsel at
no cost to the Government.
Response: Under proposed Sec. 410.1205(e), which ORR is finalizing
in this rule as Sec. 410.1205(g), ORR must permit an unaccompanied
child to have the assistance of counsel, at no expense to the Federal
Government, with respect to release or the denial of release to a
potential sponsor. This provision was not intended to set forth an
expectation that the child retain counsel, but rather to require ORR to
permit the child to retain counsel if the child chooses to do so at no
expense to the Federal Government. ORR refers readers to the discussion
of Sec. 410.1309 for additional information regarding legal services.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1205 with the following modifications. ORR is
revising the beginning of Sec. 410.1205(a) to state: ``A potential
sponsorship shall be denied . . .'' ORR is finalizing revisions to
Sec. 410.1205(b) to require ORR to adjudicate the completed sponsor
[[Page 34458]]
application of a parent or legal guardian; brother, sister or
grandparent; or other close relative who has been the child's primary
caregiver within 10 calendar days of receipt of that application,
absent an unexpected delay (such as a case that requires completion of
a home study) and to require ORR to adjudicate the completed sponsor
application of other close relatives who were not the unaccompanied
child's primary caregiver within 14 calendar days of receipt of that
application, absent an unexpected delay (such as a case that requires
completion of a home study). ORR is adding a new Sec. 410.1205(c),
which includes portions of proposed Sec. 410.1205(b), to recognize
that if ORR denies release of an unaccompanied child to a potential
parent or legal guardian or close relative sponsor, the ORR Director or
their designee who is a neutral and detached decision maker shall
promptly notify the potential sponsor of the denial in writing via a
Notification of Denial Letter. ORR is also finalizing revisions to
Sec. 410.1205(c)(2) (redesignated) to recognize that it shall provide
the potential parent or legal guardian or close relative sponsor the
evidence and information supporting ORR's denial decision and shall
advise the potential sponsor that they have the opportunity to examine
the evidence upon request, unless ORR determines that providing the
evidence and information, or part thereof, to the potential sponsor
would compromise the safety and well-being of the unaccompanied child
or is not permitted by law. ORR is also revising Sec. 410.1205(c)(3)
to clarify that sponsors will receive notice that they may request an
appeal of a denial to the Assistant Secretary for Children and
Families, or a designee who is a neutral and detached decision maker,
as well as instructions for doing so, in order to be consistent with
the Lucas R. preliminary injunction. ORR is also revising Sec.
410.1205(c)(5) (redesignated) to clarify that both the potential
sponsor's and ORR's witnesses must be willing to voluntarily testify.
This paragraph now states that the Notification of Denial letter must
include notice that the potential sponsor may present witnesses and
cross-examine ORR's witnesses, if such sponsor and ORR witnesses are
willing to voluntarily testify. Additionally, ORR is adding a new Sec.
410.1205(d) to specify that the ORR Director, or a designee who is a
neutral and detached decision maker, shall review denials of completed
sponsor applications submitted by parent or legal guardian or close
relative potential sponsors. ORR is also clarifying at Sec.
410.1205(e) (as redesignated in the final rule) that it will 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 DOJ Accredited Representative, the local legal
service provider) of a denial of release to the unaccompanied child's
parent or legal guardian or close relative potential sponsor and inform
them that they have the right to inspect the evidence underlying ORR's
decision upon request unless ORR determines that disclosure is not
permitted by law. Finally, ORR is finalizing revisions to Sec.
410.1205(f) (as redesignated in this final rule) to state that if the
sole reason for denial of release is a concern that the unaccompanied
child is a danger to self or others, ORR shall provide the child and
their counsel (if represented by counsel) full written notice of the
denial (regardless of the relationship of the child to the sponsor),
and to state that the child has the right to appeal the denial. ORR is
also redesignating proposed Sec. 410.1205(e) as Sec. 410.1205(g).
Section 410.1206 Appeals of Release Denials
ORR proposed in the NPRM at Sec. 410.1206 to establish procedures
for parents and legal guardians of unaccompanied children to appeal a
release denial (88 FR 68931). As discussed above, 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.\158\ Further, the TVPRA requires HHS, among
other agencies, 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.\159\ ORR
also recognized the strong interest of parents and legal guardians in
custody of their children. Consistent with its statutory
responsibilities and existing policy, ORR proposed in the NPRM 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 stated that it 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.
ORR proposed in the NPRM at Sec. 410.1206(a) 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.
ORR proposed in the NPRM at Sec. 410.1206(b), 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 proposed in the NPRM
that the Assistant Secretary or their neutral and detached designee
will acknowledge the request for appeal within a reasonable time.
Additionally, ORR proposed in the NPRM at Sec. 410.1206(c) to
establish 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 proposed in the NPRM that the unaccompanied child may seek an
appeal of the denial as described in Sec. 410.1206(a), and 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. ORR also proposed that the
unaccompanied child may seek such appeal at any time after denial of
release while still in ORR custody.
Comment: A few commenters expressed concern that limiting the
potential sponsor's right to appeal a sponsorship denial to parents and
legal guardians directly conflicts with the Lucas R. preliminary
injunction which extended notice and appeal procedures to other
immediate relative sponsors, and these commenters recommended the final
rule clarify that immediate relative sponsors have a right to appeal a
sponsorship denial. Additionally, the commenters stated that ORR has
not identified any administrative burden from broadening eligibility to
appeal sponsorship denials to close relative sponsors, and the
commenters stated that extending the appeals process to unaccompanied
children with potential close relative sponsors will not result in
substantial additional burden to ORR.
Response: ORR is revising Sec. 410.1206 to provide that parents
and legal guardians and close relative potential sponsors to whom ORR's
Director or their designee, who is a neutral and detached decision
maker, must send Notification of Denial letters pursuant to Sec.
410.1205 may seek an appeal of ORR's
[[Page 34459]]
denial decision by submitting a written request to the Assistant
Secretary of ACF, or their neutral and attached designee.
Comment: A number of commenters recommended that ORR expand the
ability to appeal a release denial to all other potential sponsors
including distant relatives and unrelated adult individuals, expressing
that essential procedural protections must be available to all
unaccompanied children in the unification process, with the assistance
of their potential sponsors if desired.
Response: ORR is finalizing this rule to provide potential parent
and legal guardian and close relative sponsors the right to appeal a
denial decision, which is incorporated at Sec. 410.1206 and is
consistent with the Lucas R. preliminary injunction. At this time, ORR
is not incorporating additional procedures related to other potential
sponsors because ORR continues to assess the administrative burden and
appropriateness of providing appeals to potential sponsors who may have
an attenuated relationship, or no relationship at all, with the
unaccompanied child they are seeking to sponsor.\160\
Comment: A few commenters stated that Sec. 410.1205(c) omits three
critical procedural protections required under the Lucas R. preliminary
injunction to ensure a meaningful sponsor appeal process that complies
with due process. First, the commenters stated that Sec. 410.1205(c)
does not fully incorporate the Lucas R. preliminary injunction because
it does not contain deadlines for appeal processing and casefile
delivery consistent with ORR's legal obligations under the injunction
and stated that these timing requirements are meant to avoid prolonged
delays in adjudication, which can constitute a deprivation of due
process. The commenters noted that Sec. 410.1206(c) requires only that
the Assistant Secretary, or their neutral and detached designee,
``acknowledge the request for appeal within a reasonable time'' and
does not provide any timeline to complete the appeal process.
Next, these commenters expressed concern that Sec. 410.1205(c)
does not fully incorporate the Lucas R. preliminary injunction because
it does not contain the obligation for ORR to deliver an unaccompanied
child's casefile, apart from legally required redactions, to the
potential sponsor's or the unaccompanied child's counsel within a
reasonable timeframe, and the commenters believed this requirement is
critical ``to effectuate'' an unaccompanied child's right to counsel
and facilitate their due process rights. The commenters noted that
Sec. 410.1309(c)(2) provides for release of a child's casefile to
their counsel, but it does not specify a reasonable timeframe for
delivery. The commenters recommended that at a minimum, a child's
casefile must be provided to counsel a reasonable time before the
hearing.
Lastly, the commenters stated that Sec. 410.1205(c) does not fully
incorporate the Lucas R. preliminary injunction because the proposed
rule does not provide for a written decision or any notice at all to
the potential sponsor and the child of the outcome of the appeal
process.
Response: ORR thanks the commenters for their concerns and
recommendations. ORR notes that the commenters' concerns and
recommendations related to Sec. 410.1205(c) have been addressed by ORR
in Sec. 410.1206, which relates to the appeals process for denials of
releases to parents and legal guardians and close relative potential
sponsors.
To address the commenters' concerns that the proposed rule did not
contain deadlines for appeal processing at Sec. 410.1206(b), ORR is
specifying that the Assistant Secretary, or their neutral and detached
designee, will acknowledge a request for an appeal within five (5)
business days of receipt. Further, to be consistent with the Lucas R.
preliminary injunction, ORR is specifying at Sec. 410.1206(c) that the
unaccompanied child may consult with their attorney of record at no
cost to the Federal Government when the child expresses a desire to
seek an appeal.
Additionally, under new Sec. 410.1206(d), ORR is codifying that it
will deliver the evidentiary record, including any countervailing or
otherwise unfavorable evidence, apart from any legally required
redactions, to a denied parent or legal guardian or close relative
potential sponsor within a reasonable timeframe to be established by
ORR, unless ORR determines that providing the evidentiary record, or
part(s) thereof, to the potential sponsor would compromise the safety
and well-being of the unaccompanied child. Although the Lucas R.
preliminary injunction states that ORR ``shall deliver a minor's
complete case file'' to the parent or legal guardian or close relative
potential sponsor, ORR is instead incorporating a requirement that it
will automatically provide to the potential sponsor the evidentiary
record including any countervailing or otherwise unfavorable evidence,
and not the complete case file. ORR is adopting this approach because
it has become clear to ORR that automatically providing a child's
entire case file--which may include records related to mental health,
medical decisions, sensitive family information, sexual abuse, and
other sensitive information--to a potential sponsor is not only
unnecessary but also presents potential safety and well-being concerns
for the unaccompanied child and does not provide additional procedural
protections for the unaccompanied child or the potential sponsor. For
instance, in many cases a denial is due to a potential sponsor's
criminal history. Automatically providing the child's complete case
file to those potential sponsors is unnecessary and offers them no
additional procedural protections as the only document at issue is the
potential sponsor's criminal history report (which would be provided as
part of the evidentiary record). Additionally, ORR believes that
automatically providing the evidentiary record to denied parent or
legal guardian or close relative potential sponsors is consistent with
the Lucas R. Court's holding that ``[s]o long as a minor and minor's
counsel are notified of the denial and have the opportunity to request
to inspect the evidence, minor's interests are sufficiently
protected.'' For those reasons, ORR will automatically provide the
evidentiary record to parent or legal guardian or close relative
potential sponsors, but not the child's entire case file, which
includes many records that are sensitive and often irrelevant to the
hearing and disclosure would be potentially damaging to the child.
Notably, ORR has committed to ensuring that the potential sponsor has
all information and evidence related to ORR's denial decision including
information that may be considered countervailing information and that
may support the denied potential sponsor's argument on appeal, as
stated at Sec. 410.1206(d).
Consistent with the Lucas R. preliminary injunction, in the case of
a parent or legal guardian potential sponsor, ORR is codifying at Sec.
410.1206(e) that it will provide the parent or legal guardian potential
sponsor with the child's complete case file, but only upon request and
within a reasonable timeframe to be established by ORR. In many cases,
it is unnecessary for a parent or legal guardian potential sponsor to
review the child's entire case file in order to effectively challenge a
release denial. Therefore, ORR is codifying that it will only provide
the unaccompanied child's complete case file, apart from any legally
required redactions, to a parent
[[Page 34460]]
or legal guardian potential sponsor if requested, unless providing the
complete case file, or part(s) thereof, would compromise the safety and
well-being of the unaccompanied child. For the reasons noted above, ORR
will not provide upon request a child's complete case file to a
potential close relative sponsor since case files contain many records
that are sensitive and irrelevant to the hearing and disclosure of the
entirety of the case file would be potentially damaging to the child.
Also, consistent with the Lucas R. preliminary injunction, ORR is
codifying that it will provide the unaccompanied child and their
counsel the unaccompanied child's complete case file, apart from any
legally required redactions, but only upon request. ORR recognizes that
delivery of the evidentiary record and complete case file (if
requested, and as applicable) must occur to provide sufficient time for
review of the materials in advance of the hearing.
Further, at Sec. 410.1206(f), ORR is codifying that the appeal
process, including the notice of the decision on appeal sent to the
potential sponsor, shall be completed within 30 calendar days of the
potential sponsor's request for an appeal, unless an extension of time
is granted by the Assistant Secretary or their designee for good cause.
Under Sec. 410.1206(g), ORR is codifying that the appeal of a release
denial shall be considered, and any hearing shall be conducted, by the
Assistant Secretary, or their neutral and detached designee. Further,
ORR is codifying at Sec. 410.1206(g) that upon making a decision to
reverse or uphold the decision denying release to the potential
sponsor, the Assistant Secretary or their neutral and detached
designee, shall issue a written decision, either ordering release to
the potential sponsor or denying release to the potential sponsor
within the timeframe described in Sec. 410.1206(f). Additionally, at
Sec. 410.1206(g), ORR is codifying that if the Assistant Secretary, or
their neutral and detached designee, denies release to the potential
sponsor, the decision shall set forth detailed, specific, and
individualized reasoning for the decision. ORR is also codifying at
Sec. 410.1206(g) that ORR shall notify the unaccompanied child and the
child's attorney of the denial. At Sec. 410.1206(g), ORR is codifying
that ORR shall inform the potential sponsor and the unaccompanied child
of any right to seek review of an adverse decision in the United States
District Court. ORR is codifying at Sec. 410.1206(i) that if a child
is released to another sponsor during the pendency of an appeal under
this section, the appeal will be deemed moot. At Sec. 410.1206(j)(1),
ORR is codifying that a denied parent or legal guardian or close
relative potential sponsor to whom ORR must send Notification of Denial
letters pursuant to Sec. 410.1205, has the right to be represented by
counsel in proceedings related to the release denial, including at any
hearing, at no cost to the Federal Government, which is consistent with
the Lucas R. preliminary injunction. Lastly, at Sec. 410.1206(j)(2),
ORR is codifying that the unaccompanied child has the right to consult
with counsel during the potential sponsor's appeal process at no cost
to the Federal Government.
Comment: A few commenters recommended that ORR guarantee access to
interpreters in the final rule for unaccompanied children and their
potential sponsors during sponsorship appeals and provide written
decisions translated into the sponsors' and the unaccompanied
children's preferred language(s). These commenters stated that the
additional cost of providing interpretation and translation services
during sponsorship appeals is unlikely to create undue burden on ORR
because it is already providing these services to unaccompanied
children. Commenters further asserted that, in their view, the minimal
burden on ORR to provide interpretation and translation services to
unaccompanied children and sponsors during sponsorship appeals
outweighs the significant due process concerns if they are unable to
meaningfully engage in the appeals process. These commenters stated
that ORR's decision-makers will also be deprived of relevant
information if potential sponsors and children cannot communicate
during the appeals process.
Response: ORR thanks the commenters for their recommendations. ORR
agrees that unaccompanied children and their potential sponsors should
have language access services during the appeal process and that
language access is a critical component of procedural due process.
Accordingly, ORR is adding Sec. 410.1206(h) to require that ORR shall
make qualified interpretation and/or translation services available to
unaccompanied children and denied parent or legal guardian or close
relative potential sponsors upon request for the purpose of appealing
denials of release. Such services shall be available to unaccompanied
children and denied parent or legal guardian or close relative
potential sponsors in enclosed, confidential areas.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1206 with modifications. ORR is revising the
beginning of Sec. 410.1206(a) to state ``Denied parents and legal
guardians and close relative potential sponsors to whom ORR's Director
or their designee, who is a neutral and detached decision maker, must
send Notification of Denial letters . . .'' ORR is revising Sec.
410.1206(b) to remove ``will'' and replace with ``shall'' and to remove
``a reasonable time'' and replace with ``five business days of
receipt.'' ORR is revising the second sentence of Sec. 410.1206(c) to
add ``at no cost to the Federal Government'' after ``attorney of
record.'' ORR is adding Sec. 410.1206(d) to state ``ORR shall deliver
the full evidentiary record including any countervailing or otherwise
unfavorable evidence, apart from any legally required redactions, to
the denied parent or legal guardian or close relative potential sponsor
within a reasonable timeframe to be established by ORR, unless ORR
determines that providing the evidentiary record, or part(s) thereof,
to the potential sponsor would compromise the safety and well-being of
the unaccompanied child.'' ORR is adding at Sec. 410.1206(e) to state
``ORR shall deliver the unaccompanied child's complete case file, apart
from any legally required redactions, to a parent or legal guardian
potential sponsor on request within a reasonable timeframe to be
established by ORR, unless ORR determines that providing the complete
case file, or part(s) thereof, to the parent or legal guardian
potential sponsor would compromise the safety and well-being of the
unaccompanied child. ORR shall deliver the unaccompanied child's
complete case file, apart from any legally required redactions, to the
unaccompanied child and the unaccompanied child's attorney on request
within a reasonable timeframe to be established by ORR.''
ORR is adding Sec. 410.1206(f) to state ``The appeal process,
including notice of decision on appeal sent to the potential sponsor,
shall be completed within 30 calendar days of the potential sponsor's
request for an appeal, unless an extension of time is granted by the
Assistant Secretary or their designee for good cause.'' ORR is adding
Sec. 410.1206(g) to state ``The appeal of a release denial shall be
considered, and any hearing shall be conducted, by the Assistant
Secretary, or their neutral and detached designee. Upon making a
decision to reverse or uphold the decision denying release to the
potential sponsor, the Assistant Secretary or their neutral and
detached designee, shall issue a written decision, either ordering
release or denying release to the
[[Page 34461]]
potential sponsor within the timeframe described in Sec. 410.1206(f).
If the Assistant Secretary, or their neutral and detached designee,
denies release to the potential sponsor, the decision shall set forth
detailed, specific, and individualized reasoning for the decision. ORR
shall also notify the unaccompanied child and the child's attorney of
the denial. ORR shall inform the potential sponsor and the
unaccompanied child of any right to seek review of an adverse decision
in the United States District Court.'' ORR is adding Sec. 410.1206(h)
to state ``ORR shall make qualified interpretation and/or translation
services available to unaccompanied children and denied parent or legal
guardian or close relative potential sponsors upon request for the
purpose of appealing denials of release. Such services shall be
available to unaccompanied children and denied parent or legal guardian
or close relative potential sponsors in enclosed, confidential areas.''
ORR is adding Sec. 410.1206(i) to state ``If a child is released to
another sponsor during the pendency of the appeal process, the appeal
will be deemed moot.'' ORR is adding Sec. 410.1206(j)(1) to state
``Denied parent or legal guardian or close relative potential sponsors
to whom ORR must send Notification of Denial letters pursuant to Sec.
410.1205 have the right to be represented by counsel in proceedings
related to the release denial, including at any hearing, at no cost to
the Federal Government.'' Lastly, ORR is adding Sec. 410.1206(j)(2) to
state ``The unaccompanied child has the right to consult with counsel
during the potential sponsor's appeal process at no cost to the Federal
Government.'' ORR is otherwise finalizing the proposals as proposed.
Section 410.1207 Ninety (90)-day Review of Pending Sponsor Applications
\161\
In the interest of the timely and efficient placement of
unaccompanied children with vetted and approved sponsors, ORR proposed
in the NPRM, at Sec. 410.1207, a process to review sponsor
applications that have been pending for 90 days (88 FR 68931 through
68932). Consistent with existing policy, ORR proposed in the NPRM that
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 for unaccompanied children who
have been in ORR custody for 90 days after submission of the completed
sponsor application or in order to identify and resolve the reasons
that a sponsor application remains pending in a timely manner, as well
as to determine possible steps to accelerate the children's safe
release.
ORR proposed in the NPRM at Sec. 410.1207(b) 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 proposed in the NPRM 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 sponsorship application 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
proposed in the NPRM that ORR Federal staff supervising the case
management process would conduct additional reviews at least every 90
days until the pending sponsor application is resolved as described in
Sec. 410.1207(c).
Comment: A few commenters expressed concern that Sec. 410.1207(a)
does not meet the requirements in the Lucas R. preliminary injunction
because by requiring the FFS with responsibility for the child's case
to conduct a 90-day review, this provision fails to meet the
injunction's requirement to elevate problems to more senior officials
and is wholly inconsistent with the need for supervisory review in the
first place. These commenters recommended that ORR clarify in the final
rule that the 90-day review will be conducted by ORR staff with
supervisory responsibilities over the program's regularly assigned FFS.
Response: ORR agrees with the commenters that ORR supervisory
staff, not the FFS, should conduct the 90-day review because it affords
neutral and detached review by senior staff. ORR also notes that this
is consistent with the Lucas R. preliminary injunction. Accordingly,
ORR is revising Sec. Sec. 410.1207(a) and (c) to require ORR
supervisory staff who supervise field staff to perform the 90-day
review of pending sponsor applications.
For consistency with both the Lucas R. preliminary injunction and
ORR's current policy,\162\ ORR is finalizing additional revisions to
Sec. 410.1207(a) to clarify when the first automatic review occurs
after the potential sponsor submits a sponsor application. ORR is
finalizing at Sec. 410.1207(a) that ORR supervisory staff who
supervise field staff shall conduct an automatic review of all pending
sponsor applications. Although the Lucas R. preliminary injunction
states that the ``first automatic review shall occur 90 days after the
[sponsor application] is submitted . . .,'' ORR is instead
incorporating a requirement that the first automatic review shall occur
within 90 days of an unaccompanied child entering ORR custody to
identify and resolve in a timely manner the reasons that a sponsor
application remains pending and to determine possible steps to
accelerate the unaccompanied child's safe release. ORR notes that this
requirement means that the first automatic review will usually occur
earlier than what the Lucas R. preliminary injunction requires--but in
no case later than what the preliminary injunction requires.
Comment: One commenter recommended updates to the 90-day review of
pending sponsor applications, including reviewing the unaccompanied
child's case to determine whether there are any barriers to release and
actions to be taken to expedite a child's release. The commenter also
recommended ongoing reviews every 90 days until release.
Response: ORR thanks the commenter for the recommendations to
update the 90-day review of pending sponsor applications. ORR agrees
with the recommendation to review an unaccompanied child's case to
determine whether there are any barriers to release and actions to be
taken to expedite a child's release. Accordingly, at Sec. 410.1207(c),
ORR is finalizing a cross-reference to Sec. 410.1207(a) to require
that for cases that are not resolved after the initial 90-day review,
ORR supervisory staff who supervise field staff shall conduct
additional reviews at least every 90 days to resolve in a timely manner
the reasons that a sponsor application remains pending and to determine
possible steps to accelerate the unaccompanied child's safe release
until the pending sponsor application is resolved. ORR also notes that
this requirement is consistent with the Lucas R. preliminary
injunction. Finally, ORR notes that the final rule provides for
additional reviews ``at least'' every 90 days, which ORR believes
addresses the commenter's recommendation, and ORR intends to provide
reviews more frequently than 90 days when appropriate.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1207 with modifications. ORR is making technical
corrections to the heading and regulation text of Sec. 410.1207 by
replacing ``release application(s)'' with the term ``sponsor
[[Page 34462]]
application(s).'' ORR is revising Sec. 410.1207(a) to state ``ORR
supervisory staff who supervise field staff shall conduct an automatic
review of all pending sponsor applications. The first automatic review
shall occur within 90 days of an unaccompanied child entering ORR
custody to identify and resolve in a timely manner the reasons that a
sponsor application remains pending and to determine possible steps to
accelerate the unaccompanied child's safe release.'' ORR is revising
Sec. 410.1207(b) and (c) to remove ``or FRP.'' ORR is revising Sec.
410.1207(c) to remove ``ORR Federal staff supervising the case
management process'' and replace with ``ORR supervisory staff who
supervise field staff.'' ORR is also revising Sec. 410.1207(c) to add
``as provided in Sec. 410.1207(a)'' after ``additional reviews.'' ORR
is otherwise finalizing its proposal as proposed.
Section 410.1208 ORR's Discretion to Place an Unaccompanied Child in
the Unaccompanied Refugee Minors Program
ORR proposed in the NPRM, at Sec. 410.1208, specific eligibility
criteria for release of an unaccompanied child to the Unaccompanied
Refugee Minors (URM) Program (88 FR 68932). The TVPRA permits ORR to
place unaccompanied children in a URM Program, pursuant to section
412(d) of the INA, if a suitable family member is not available to
provide care.\163\ ORR proposed in the NPRM, at Sec. 410.1208(a), that
unaccompanied children may be eligible for services through the ORR 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 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.
ORR proposed in the NPRM that with respect to unaccompanied
children described in proposed paragraph (a) of this section, under
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.
ORR noted in the NPRM that under Sec. 410.1208(c), 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.\164\ ORR proposed in the NPRM at Sec. 410.1208(c), that
until such legal custody or guardianship is established, the ORR
Director would retain legal custody of the child.
Comment: Many commenters requested that ORR retain legal custody of
children released under the URM Program out of concern for and to
ensure protection of unaccompanied children.
Response: ORR appreciates the concern for the well-being of
unaccompanied children; however, ORR does not retain legal custody of
children placed in the URM program in accordance with the URM program's
statutory design. Pursuant to 8 U.S.C. 1522(d)(2)(B)(ii), ``[t]he
Director [of ORR] shall attempt to arrange for the placement under the
laws of the States of such unaccompanied refugee children, who have
been accepted for admission to the United States, before (or as soon as
possible after) their arrival in the United States. During any interim
period while such a child is in the United States or in transit to the
United States but before the child is so placed, the Director shall
assume legal responsibility (including financial responsibility) for
the child, if necessary, and is authorized to make necessary decisions
to provide for the child's immediate care.''
At Sec. 410.1208(c), ORR clarifies that the ORR Director shall
retain legal custody of an unaccompanied child until the required legal
custody or guardianship is established under State law. ORR believes
that it protects and benefits the child to clarify ORR's ongoing
responsibility as the child's custodian during the transition into the
URM Program until the State or its designee establishes legal
responsibility. ORR evaluates each case to determine whether it is in
the child's best interest to be placed in the URM Program. This best
interest determination involves the consideration of a variety of
factors, including, among others, the child's mental and physical well-
being and individualized needs, to ensure they are protected from
traffickers and other persons seeking to victimize or otherwise engage
them in criminal, harmful, or exploitative activity.\165\
For further clarity, ORR is revising Sec. 410.1208 to replace
``release and ``discharge'' with ``place'' to better reflect how those
terms are defined at Sec. 410.1001 and the requirements finalized at
Sec. 410.1208. ORR is also revising ``referred to'' with ``placed in''
at Sec. 410.1208(b) to reflect this clarification.
Comment: One commenter expressed concern that the use of the term
``dependency order'' in proposed Sec. 410.1208(a)(3) will cause
confusion because there are other types of orders in cases involving
SIJ classification, and recommended that ORR update the language to
``dependency and/or custody order'' to align with SIJ classification
regulations and other Government resources such as the United States
Citizenship and Immigration Services' (USCIS) Policy Manual and to
clarify URM eligibility for SIJ-classified noncitizens.
Response: ORR notes that the TVPRA, at 8 U.S.C. 1232(d)(4)(A), uses
the term ``dependency order'' in describing categories of children who
are eligible for placement and services in the URM Program under 8
U.S.C. 1522(d). ORR appreciates the commenter's recommendation but
believes that the term ``dependency order'' is sufficiently clear to
identify the children that may be eligible for services through the URM
Program.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1208 as proposed with the following modifications.
ORR is revising the heading of Sec. 410.1208 by replacing ``release''
with ``place,'' and ``to'' with ``in.'' ORR is revising Sec.
410.1208(b) by replacing ``will'' with ``shall'' and ``referred to''
with ``placed in.'' ORR is revising Sec. 410.1208(c) by replacing
``discharges'' with ``places'' and adding ``shall'' after ``ORR
Director.'' ORR is revising Sec. 410.1208(a)(2) to replace ``22 U.S.C.
7105(b)(1)(C)'' with ``22 U.S.C. 7102(11).'' The definitions used
within 28 U.S.C. Chapter 78, including 22 U.S.C. 7105(b)(1)(C), are set
forth at 22 U.S.C. 7102. As such, ORR determined that 22 U.S.C.
7102(11), which sets forth the definition of ``severe forms of
[[Page 34463]]
trafficking in persons,'' is a more appropriate citation for what
constitutes a victim of a severe form of trafficking as the term is
used at Sec. 410.1208(a)(2).
Section 410.1209 Requesting Specific Consent From ORR Regarding Custody
Proceedings
ORR proposed in the NPRM at Sec. 410.1209 to address the specific
consent process as 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 (88 FR 68932 through 68933).
As relevant to this section, ORR noted that the TVPRA modified section
101(a)(27)(J) of the INA, concerning SIJ classification.\166\ 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, 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'') in accordance with applicable statutory eligibility
requirements, the unaccompanied child does not need HHS's 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. ORR notes that although the TVPRA refers to
special immigrant ``status,'' \167\ in this final rule ORR uses the
term special immigrant ``classification,'' consistent with current
USCIS policy.\168\ For this reason, ORR will use ``SIJ classification''
in its discussion for consistency even where commenters used the
synonymous terms Special Immigrant Juvenile Status or SIJS.
ORR proposed in the NPRM at Sec. 410.1209(a) 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.
ORR proposed in the NPRM that under 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.
ORR proposed in the NPRM at Sec. 410.1209(c) through (g) the
process to make a specific consent request to ORR. ORR proposed in the
NPRM at Sec. 410.1209(c), that 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 proposed in the NPRM at Sec. 410.1209(d) to
acknowledge receipt of the request within two business days.
ORR proposed in the NPRM at 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. ORR noted in the NPRM that, as ORR
does not consider runaway risk for purposes of release, it did not
intend to do so here for purposes of adjudicating specific consent
requests (88 FR 68932). ORR noted that such requirements would be
consistent with 8 U.S.C. 1232(c)(2)(A) (stating that when making
placement determinations, HHS ``may consider danger to self, danger to
the community, and risk of flight.'').
ORR proposed in the NPRM at Sec. 410.1209(f), that ORR shall make
determinations on specific consent requests within 60 business days of
receipt. ORR proposed in the NPRM that it shall attempt to expedite
urgent requests when possible.
ORR proposed in the NPRM at Sec. 410.1209(g), 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, ORR proposed in the NPRM at Sec. 410.1209(h) and (i)
detailed procedures related to a request for reconsideration in the
event ORR denies specific consent. ORR proposed in the NPRM at Sec.
410.1209(h), that the unaccompanied child, the child's attorney of
record, or other authorized representative 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.
ORR proposed in the NPRM at Sec. 410.1209(i), that 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.
Comment: In response to ORR stating in the preamble for Sec.
410.1209 that 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, a number of commenters recommended that
ORR should demonstrate to all 50 States a quantified analysis before
finalizing any changes proposed to this section.
Response: ORR appreciates the commenters' recommendation and thinks
it is important to codify the existing process into the final rule. ORR
will continue to study its policies and propose future changes to this
section if it determines changes are necessary.
Comment: A few commenters recommended revising proposed Sec.
410.1209(b) to prevent unintended immigration consequences for a child
in ORR custody who is petitioning for SIJ classification. Specifically,
the commenters recommended replacing the proposed language at Sec.
410.1209(b) with the following: ``An unaccompanied child in ORR custody
need not request ORR's specific consent before a juvenile court
exercises jurisdiction to enter findings or orders that do not alter
the child's custody status or placement with ORR.''
Response: ORR appreciates the commenters for their recommended
revisions to Sec. 410.1209(b). The language proposed at Sec.
410.1209(b) is consistent with the language ORR uses in its current
policy guidance, such as ORR's Program Instruction ``Specific Consent
Requests,'' \169\ which was issued on December 24, 2009. In this final
rule,
[[Page 34464]]
ORR declines to revise Sec. 410.1209(b) and will consider whether
revisions are needed in future policymaking. Accordingly, ORR is
finalizing Sec. 410.1209(b) as proposed.
Comment: One commenter recommended ORR revise Sec. 410.1209(b) and
(c) to remove the term ``determining'' and only use the term
``altering'' because the term ``altering'' is consistent with Sec.
410.1209(a) and the SIJ classification regulations, and use of
``determining'' may cause confusion and prevent a State court from
making a factual determination that the child is in ORR custody.
Additionally, to clarify that specific consent is only required when
there is a request to alter the child's custody status or release from
ORR, the commenter recommended ORR add a subsection requiring that when
ORR is considering whether specific consent is required, it must make
an assessment taking into account the proposed alternative custody
arrangement, if any, specified in the request for specific consent that
the child would be seeking from the juvenile court.
Response: ORR appreciates the commenters' recommendation, however,
ORR notes that the current language reflects its longstanding policy in
this area.\170\ ORR also notes that the INA, at 8 U.S.C.
1101(a)(27)(J)(iii)(I), uses ``determine,'' providing: ``[N]o 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.'' ORR declines to change the language it has used
for so long without thoroughly reviewing the need to do so, which will
require additional ORR time and resources. Accordingly, ORR is
finalizing Sec. 410.1209(b) and (c) as proposed.
ORR notes that its proposal in the NPRM at Sec. 410.1209(a) to
only use the term ``alter'' was a technical error. As explained in the
preamble to the NPRM, ORR intended Sec. 410.1209(a) to state 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 (88 FR 68932). ORR
is codifying in the final rule at Sec. 410.1209(a) the language ``to
determine or alter'' and not only ``to alter.'' Additionally, ORR
appreciates the commenter's recommendation to add that when ORR
considers whether specific consent is required, ORR should make an
assessment taking into account the proposed alternative custody
arrangement. At Sec. 410.1209(f), ORR is finalizing that it will make
a determination on specific consent. ORR clarifies that when making the
determination, ORR would assess the specific consent, including any
proposed alternative custody arrangement, before it issues its
determination. ORR does not believe it is necessary to codify this as a
new paragraph under Sec. 410.1209. ORR will consider whether to issue
additional subregulatory guidance, as needed, to provide more detail.
Comment: A few commenters recommended ORR narrow the timeframe in
Sec. 410.1209(f) within which ORR must determine whether to provide
specific consent to 30 business days of receipt of a request to do so.
Additionally, the commenters recommended that, for children expected to
age out of ORR care and custody in 14 days or less, ORR must make a
determination within 72 hours of the specific consent request. Lastly,
the commenters recommended ORR add language to Sec. 410.1209(f) to
explicitly state that ORR must make its best efforts to expedite urgent
requests.
Response: ORR thanks the commenters for their recommendations. ORR
believes that 60 days is a reasonable timeframe for it to make
determinations on specific consent requests. The 60-day timeframe
allows time for thorough review, to make any requests for additional
information if needed, and for the unaccompanied child, the child's
attorney, or others acting on the child's behalf, to submit such
additional information. Additionally, ORR notes that 60 days is the
maximum amount of time that ORR would take to review a specific consent
request, and ORR may make a determination in less than 60 days.
Additionally, ORR explains that under Sec. 410.1209(f), an
unaccompanied child expected to age out of ORR care and custody within
14 days or less may ask ORR to expedite their request. ORR believes
this standard is appropriate to ensure it makes an immediate
determination for unaccompanied children expected to age out of ORR
care and custody when ORR has the resources to do so. As ORR implements
the requirements under Sec. 410.1209(f), it will monitor for any
unintended consequences and consider the commenters' recommendations
for future policymaking, as needed.
Comment: One commenter recommended a technical correction to
proposed Sec. 410.1209(i) to update the numbering to Sec.
410.1209(h)(1).
Response: ORR appreciates the commenter's recommendation and
clarifies that it intentionally numbered the section as Sec.
410.1209(i) and not Sec. 410.1209(h)(1) because it intended for it to
be the lower-case letter ``i'' and not the roman numeral ``i.''
Comment: A few commenters recommended ORR add a new paragraph to
Sec. 410.1209 stating: ``A child who has been released by ORR to a
sponsor is no longer in the actual or constructive custody of ORR, and
therefore, ORR's specific consent is not required before a juvenile
court exercises jurisdiction over the child's custody or placement.''
Response: ORR thanks the commenter for their recommendation and
believes it is unnecessary to codify that ORR's specific consent is not
required once the child is released from ORR custody. ORR believes that
Sec. 410.1209(a) is clear that the specific consent request
requirements only apply when the unaccompanied child is in ORR's
custody (e.g., Sec. 410.1209(a) states ``[a]n unaccompanied child in
ORR custody is required to request specific consent from ORR. . .'').
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1209 as proposed with the following changes. ORR
is making a technical correction to add ``determine or'' to Sec.
410.1209(a) to codify the rule as explained in the preamble to the NPRM
at Sec. 410.1209(a) to state: ``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.'' ORR is revising the beginning of Sec. 410.1209(i) to state:
``The Assistant Secretary, or their designee, shall consider . . .''.
Section 410.1210 Post-Release Services.
ORR proposed in the NPRM at Sec. 410.1210 the requirements for
post-release services (PRS) (88 FR 68933 through 68936). The TVPRA
authorizes, and in some cases requires, HHS to provide follow-up
services during the pendency of removal proceedings for certain
unaccompanied children.\171\ ORR provides PRS by funding providers to
facilitate access to relevant services. 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.
As further discussed below, ORR notes that since it published the
NPRM, ORR revised its policies regarding
[[Page 34465]]
PRS.\172\ ORR's updated PRS policies are consistent with the
description of potential updates described in the NPRM and with the
provisions of this final rule. Additionally, ORR's updated PRS policies
are consistent with ORR's discussion of expanded PRS as described in
the preamble to the NPRM (e.g., with respect to updating ``levels'' of
PRS). ORR refers to the policies in several places below to indicate
existing practices that respond to concerns expressed in various
comments. Further, ORR is incorporating various updates to Sec.
410.1210 to align with its updated PRS policies--notably at Sec. Sec.
410.1210(a)(2) and (3); (e); (g)(1) and (2); (h)(1) and (2); and
(i)(5)--and its statutory authority.\173\ In some instances, updates in
this final rule further clarify provisions described in the NPRM or
respond to comments received in response to the NPRM. ORR also notes
that the expansion of PRS described in this final rule are responsive
to concerns raised by multiple commenters about the importance of
improving and strengthening PRS. Finally, ORR notes that updates
expressed in this final rule will not adversely affect any third
party's reliance interests because all PRS providers have followed
ORR's updated policies since January 2024.
ORR proposed in the NPRM at Sec. 410.1210(a)(1), that consistent
with existing policy, care provider facilities would work with sponsors
and unaccompanied children to prepare them for an unaccompanied child's
safe and timely release, to assess the sponsors' ability to access
community resources, and to provide guidance regarding safety planning
and accessing services (88 FR 68933).
ORR proposed in the NPRM at Sec. 410.1210(a)(2) and (3),
circumstances when ORR would be required to provide PRS to
unaccompanied children (88 FR 68933). Consistent with 8 U.S.C.
1232(c)(3)(B), under Sec. 410.1210(a)(2), ORR proposed in the NPRM to
conduct follow-up services, or PRS, during the pendency of removal
proceedings for unaccompanied children for whom a home study was
conducted. ORR proposed in the NPRM 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 Sec. 410.1204. ORR proposed in the
NPRM, at Sec. 410.1210(a)(3), that 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
Sec. 410.1204. ORR noted that Sec. 410.1210(c) further lists certain
situations where ORR may, within its discretion, refer unaccompanied
children for PRS. ORR proposed in the NPRM to expand upon the
situations whereby ORR may provide PRS. ORR stated in the NPRM that
ORR's then current practice, described in the ORR Policy Guide at
section 6.2,\174\ required ORR to provide PRS for an unaccompanied
child whose sponsor required a home study \175\ 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 proposed in the NPRM that
PRS furnished to these unaccompanied children may include home visits
by the PRS provider. ORR sought public comment on proposed Sec.
410.1210(a)(2) and (3), particularly with respect to the possible
expansion of PRS to additional unaccompanied children.
ORR is aware of concerns that, in some cases, release of
unaccompanied children to sponsors may be unduly delayed by a lack of
available PRS providers and services near the sponsor. Accordingly, ORR
proposed in the NPRM 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
noted 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.
ORR proposed in the NPRM at Sec. 410.1210(b), the types of
services that would be available as part of PRS, and stated the
services were as described in ORR policies (88 FR 68933).\176\ ORR
proposed in the NPRM that 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. ORR proposed in the NPRM that the
comprehensiveness of PRS shall depend on the extent appropriations are
available. Specifically, ORR proposed in the NPRM 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 believed 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
unification 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 noted in the NPRM that it proposed to codify at Sec.
410.1210(b) services areas as covered in its policies.\177\ As stated
in the NPRM, 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
fundamentally alter 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 proposed 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.
In the NPRM, ORR sought 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 sought public comment on what other services should be within the
scope of PRS.
ORR proposed in the NPRM at Sec. 410.1210(c) to require that
unaccompanied children with specific
[[Page 34466]]
needs receive additional consideration of those needs and may be
referred for PRS to address those needs (88 FR 68934). Consistent with
8 U.S.C. 1232(c)(3)(B), ORR proposed in the NPRM that unaccompanied
children who would receive additional consideration include those who
are especially vulnerable, such as unaccompanied children in need of
particular services or treatment; unaccompanied children with
disabilities; unaccompanied children with LGBTQI+ status or identity;
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 of 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 children, unaccompanied
Ukrainian children, and other children who are in the UC Program (such
as those eligible for humanitarian parole). ORR noted that 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 (NOC) or calls to the NCC. In that
event, ORR would require the relevant PRS provider to follow up with
the child and assess whether PRS would be appropriate.
ORR proposed in the NPRM, at Sec. 410.1210(d), that 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 (88 FR 68934). 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, ORR proposed that the assessment be trauma-informed,
as defined in Sec. 410.1001, and consistent with the 6 Guidelines To A
Trauma-Informed Approach developed by the CDC in collaboration with the
SAMHSA.\178\ ORR proposed that during the assessment, PRS providers
would also identify any traumatic events and symptoms by using
validated screening measures developed for use when screening and
assessing trauma in children.
In the preamble to the NPRM, ORR noted that under existing policy,
ORR 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 and/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
service. Although ORR proposed in the NPRM to continue conducting SWB
calls, ORR did not propose to codify them, so as to preserve its
flexibility in making continuous improvements to the reach and nature
of the SWB calls, and in integrating them into the suite of available
PRS. ORR sought public comment on whether it should codify SWB calls in
this final rule or in future rulemaking and whether it should integrate
SWB call into PRS, and if so, what factors ORR should consider in
integrating SWB calls into PRS. ORR notes that in this final rule, it
is not codifying SWB calls.
ORR considered codifying a requirement that the PRS provider's
assessment 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. In the NPRM
at Sec. 410.1210(b), ORR proposed that PRS include a range of services
(88 FR 68933). But ORR noted that unaccompanied children and sponsors
receiving PRS do not necessarily require follow-up services in every
service area, but rather 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, in the NPRM, ORR
stated that at the time, it provided two ``levels'' of PRS--Level One
and Level Two.\179\ Level One services included assessments of the
needs of unaccompanied children and their sponsors in accessing
community services, including enrolling in school. Further,
unaccompanied children and their sponsors received Level One services
if they did not require intensive case management as provided with
Level Two PRS. Unaccompanied children and their sponsors received 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 required 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 provided a
higher level of engagement between the PRS provider and the
unaccompanied child and sponsor and included 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. In the NPRM, ORR considered updating the
levels of PRS available to unaccompanied children and sponsors, from a
framework that contains two levels of PRS to a framework that contains
three levels, and stated further, that ORR was considering codifying
this PRS level framework. To that end, ORR sought input from the public
on one potential way to update its policies to incorporate additional
levels, as described below.
ORR considered requiring the PRS provider's assessment to include
the level of PRS recommended to be provided 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
considered an option in which Level One PRS would include safety and
well-being virtual check-ins; \180\ Level Two PRS would cover case
management services; and Level Three PRS would include intensive home
engagements. Additionally, ORR considered 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
considered 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 noted that it was 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 months after release.
[[Page 34467]]
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 considered 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 noted that the timeframes for providing PRS would
not extend past the circumstances in which PRS would be terminated as
specified in Sec. 410.1210(h).
ORR notes, however, that this final rule does not codify these
updates. ORR believes it is more appropriate for this final rule to
establish general standards for the provision of PRS, rather than
specific methods of implementing PRS. As with other topics not codified
in this rule, ORR believes that this approach will enable it to make
more frequent, iterative policy updates, in keeping with best practices
and to allow continued responsiveness to the needs of unaccompanied
children and PRS providers, as informed by the implementation of its
updated policies and this final rule.
ORR proposed in the NPRM at Sec. 410.1210(e)(1), that 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 (88 FR 68935). PRS providers
would be required in 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 considered limiting the minimum monthly contact to
unaccompanied children and sponsors receiving Level Two and/or Level
Three PRS. ORR sought public comment on this proposal including
consideration of 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. ORR
proposed in the NPRM at Sec. 410.1210(e)(3), that 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.
ORR proposed in the NPRM at Sec. 410.1210(f)(1), that PRS
providers would work with released unaccompanied children and their
sponsors to ensure they can access community resources (88 FR 68935).
ORR opted not to enumerate ways that PRS providers could comply with
this requirement, because the nature of such assistance would vary by
case. 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, or where accessible and needed,
preschool or daycare; and other issues relevant to accessing relevant
services. ORR also anticipated that PRS providers would assist 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 unaccompanied children's
independence and integration.
ORR proposed in the NPRM at Sec. 410.1210(f)(2), that PRS
providers would be required to document any community resource
referrals and their outcomes (88 FR 68935).
ORR proposed in the NPRM at Sec. 410.1210(g) to codify timeframes
for when PRS providers would be required to start PRS (88 FR 68935).
ORR noted that although the TVPRA mandates PRS in certain cases, it
does not address the timing of providing PRS. In the NPRM, ORR proposed
in the NPRM at Sec. 410.1210(g)(1) to codify its policies specifying 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).\181\ Upon finalization, 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. Further, as
proposed in the NPRM, PRS shall start no later than 30 days after
release if PRS providers are unable to start services within two (2)
days of release. At Sec. 410.1210(g)(2) of the NPRM, ORR proposed to
codify its policy \182\ 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.
ORR proposed in the NPRM at Sec. 410.1210(h) the circumstances
required for termination of PRS, which ORR stated in the NPRM were
based on ORR's policies (88 FR 68935).\183\ At Sec. 410.1210(h)(1),
ORR proposed in the NPRM to 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 or lawful
immigration status, or the child receives an order of removal. In the
event an 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. ORR proposed in the NPRM at Sec. 410.1210(h)(2), to 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, at Sec. 410.1210(i) of the NPRM, ORR proposed records and
reporting requirements for PRS providers (88 FR 68935 through 68936).
Keeping accurate and confidential records is important to ensure the
security of all information the PRS provider documents about the
unaccompanied child and sponsor. Accordingly, ORR proposed in the NPRM
at Sec. 410.1210(i)(1)(i), to require 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, ORR
proposed in the NPRM at Sec. 410.1210(i)(2)(i) to require PRS
providers establish and maintain written policies and procedures for
organizing and maintaining the content of active and closed case files
(88 FR 68936). Under 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
[[Page 34468]]
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 proposed at Sec. 410.1210(i)(2)(iii)
to codify a requirement 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 proposed in the NPRM 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.
ORR proposed in the NPRM at Sec. 410.1210(i)(3) requirements to
protect the privacy of all unaccompanied children receiving PRS (88 FR
68936). Under 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 communications
(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 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 proposed in the NPRM 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 (88 FR 68936). Section
410.1210(i)(4)(i) covers the procedures and requirements regarding such
NOCs. 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). ORR stated in the NPRM,
consistent with current policies,\184\ that it anticipated that
situations when PRS providers would submit a NOC would include: an
emergency; a current case of human trafficking; abuse, abandonment,
neglect, or maltreatment; a possible exploitative employment situation;
kidnapping, disappearance, or a runaway situation; alleged criminal
activity; involvement of child protective services; potential fraud,
such as document fraud or the charging of unlawful fees; a behavioral
incident involving the unaccompanied child that raises safety concern;
media attention; a sponsor declines services; contact or involvement
with organized crime; the PRS provider is unable to contact the
unaccompanied child within 30 days of release; or when the PRS provider
loses contact with a child who is receiving PRS, and there are safety
concerns. Consistent with ORR's PRS policies,\185\ it clarifies in this
final rule that PRS providers would also submit a NOC if they suspect:
human trafficking; abuse abandonment, or maltreatment; or contact or
involvement with organized crime.
Additionally, under Sec. 410.1210(i)(4)(ii) of the NPRM, ORR
proposed that 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 (88 FR 68936).
ORR proposed in the NPRM at Sec. 410.1210(i)(5) to codify
requirements for PRS providers regarding case closures (88 FR 68936).
ORR proposed 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.
Comment: A few commenters supported ORR codifying requirements for
PRS because these services support the unaccompanied children's
successful transition into their community. Additionally, a few
commenters supported ORR's proposal at Sec. Sec. 410.1210(a)(2) and
410.1204(e) that all children for whom a home study was conducted would
receive PRS. Notably, a commenter stated these unaccompanied children
present a high level of risk and need continued services after release
to maintain their safety and well-being. A few commenters also
supported the proposal at Sec. 410.1210(a)(4) that ORR would not delay
release if PRS were not immediately available for the child.
Response: ORR thanks the commenters for their support.
Comment: A commenter expressed concern that the language at Sec.
410.1210(a)(2) where ORR proposed that an unaccompanied child who
receives a home study and PRS ``may'' also receive home visits by a PRS
provider, seemingly makes home visits optional and recommended making
home visits required.
Response: ORR clarifies that the use of the word ``may'' in this
sentence does not mean that home visits are optional for children
receiving PRS. ORR uses the term ``may'' to accommodate children who
receive virtual visits, such as those that receive Level One PRS under
ORR's revised PRS policies. ORR clarifies that under existing policies,
Level One PRS includes virtual visits and Level Two and Three PRS
includes in-home visits.
Comment: Several commenters urged that PRS should always be
voluntary and not required of the child and sponsor. Further, another
commenter recommended changing the language from ``shall'' to ``may''
or ``as needed'' throughout Sec. 410.1210(b) to allow PRS providers to
assist based on their discretion, resources, and the children's and
sponsors' needs.
Response: ORR agrees, and notes that it lacks statutory authority
to make PRS mandatory. It was not ORR's intent in the NPRM to suggest
that PRS be mandatory. Further, ORR notes that although it is
statutorily required to provide follow-up services to unaccompanied
children in certain circumstances,\186\ it cannot force children or
their sponsors to accept PRS. Accordingly, ORR is not finalizing Sec.
410.1210(a)(2) as proposed and is revising this section to state that
ORR shall offer PRS for unaccompanied children for whom a home study
was conducted pursuant to Sec. 410.1204. Additionally, ORR is revising
Sec. 410.1210(g)(1), (g)(2), (h)(1), and (h)(2) to reflect that PRS
are voluntary by adding ``an offer of PRS,'' and ORR is clarifying at
Sec. 410.1210(h)(1) and (h)(2) that PRS are offered until one of the
termination conditions are met. Further, ORR is removing the proposed
language ``during the pendency of removal hearings'' at Sec.
410.1210(a)(2) to align with the language used in Sec. 410.1204.
Because ORR is updating Sec. 410.1210(a)(2) to reflect that PRS
services are voluntary for sponsors and unaccompanied children, ORR
does not agree with the commenter's recommendations to also update
Sec. 410.1210(b) from ``shall'' to ``may'' and clarifies that Sec.
410.1210(b) lists the minimum service areas that PRS includes but does
not require all unaccompanied children and sponsors to receive these
services. During the PRS provider's assessment of the
[[Page 34469]]
unaccompanied child and sponsor, ORR intends under this final rule that
the PRS provider will determine which specific PRS are appropriate
based on the unaccompanied child's and sponsor's needs.\187\
Comment: A number of commenters supported ORR expanding access to
PRS to all unaccompanied children after release from ORR care and
custody because PRS would benefit all children. Specifically, a few
commenters stated that expanding access to all unaccompanied children
fosters their safe integration into their local communities by
assisting them in obtaining critical services, including education,
legal services, health insurance, mental health services and
counseling. Another commenter stated that PRS are vital to ensure
children and sponsors have access to services after release because
they support safe and stable home placements.
Additionally, a few commenters supported extending PRS home visits
to children with mental health or other needs who could benefit from
ongoing assistance from a community-based provider. A few other
commenters recommended ORR clarify that children with mental health or
other needs who did not receive a home study are eligible for PRS.
Lastly, one commenter expressed concern that ORR proposed in the
NPRM to limit additional consideration for PRS to vulnerable and/or
high-risk unaccompanied children at Sec. 410.1210(c), and the
commenter recommended not limiting PRS to this population of children
and expanding access to all children who need PRS.
Response: ORR thanks the commenters and agrees that PRS can benefit
all unaccompanied children by assisting them with obtaining critical
services to support their safe integration into their local communities
and safe and stable home placements. Further, ORR believes the TVPRA
authorizes it to offer PRS to all released unaccompanied children,
because in its experience all releases from ORR custody ``involve[e]
children with mental health or other needs who could benefit from
ongoing assistance from a social welfare agency.'' \188\ Accordingly,
ORR is not finalizing Sec. 410.1210(a)(3) as proposed in the NPRM, and
is instead revising this section to state that to the extent that ORR
determines appropriations are available, and in its discretion, ORR may
offer PRS for all released children.
Additionally, ORR clarifies that all unaccompanied children, even
if they did not receive a home study, are eligible for PRS, subject to
available appropriations.
Finally, ORR acknowledges the commenter's concern regarding
limiting PRS to unaccompanied children who require additional
consideration under Sec. 410.1210(c). ORR believes that expanding PRS
to all children, to the extent appropriations are available, addresses
the commenter's concern. To the extent appropriations are unavailable,
ORR is clarifying at Sec. 410.1210(a)(3) that it may give additional
consideration, consistent with Sec. 410.1210(c), for PRS cases
involving unaccompanied children with mental health needs or other
needs who could particularly benefit from ongoing assistance from a
community-based service provider, to prioritize cases as needed.
Comment: A few commenters also recommended that ORR create a
publicly accessible plan for achieving universal PRS by 2025 due to
concerns about ORR's funding levels and PRS provider capacity. Another
commenter recommended the public plan include guidelines to ensure
children can make meaningful decisions about receiving PRS where the
sponsor decides not to participate. A separate commenter recommended
the public plan explain how ORR plans to expand PRS providers' capacity
to meet that goal. Further, a few commenters had recommendations on ORR
expanding its network of PRS providers to provide universal PRS and
reduce delays. One commenter recommended ORR leverage its existing
networks with national, State, and community-based providers to expand
access to PRS for all unaccompanied children and their sponsors.
Another commenter recommended PRS providers that are easily accessible,
available in various locations, and able provide culturally appropriate
services.
Response: ORR does not believe a regulatory mandated plan is
necessary to move forward efforts to expand PRS to the extent
appropriations allow. However, it will take these recommendations into
consideration as needed as it develops future policies in this area.
ORR also appreciates the recommendation to leverage existing
networks but notes that detailing specific plans to leverage existing
networks of organizations and providers to broaden access to PRS is
outside the scope of this rule. ORR will take the recommendation into
consideration for future policymaking in this area.
Comment: A commenter recommended that ORR use a standardized
assessment to assess an unaccompanied child's mental and behavioral
health prior to release and use the information gathered in the
assessment to make evidence-informed decisions to determine the level
of need and whether PRS are necessary.
Response: Under current policy, ORR determines the appropriate
level for which to refer all children to PRS depending on the needs and
the circumstances of the case. Although the design of a standardized
assessment is outside the scope of this rule, ORR will take the
recommendation into consideration for future policymaking in this area.
Comment: A few commenters expressed concern about ORR not delaying
release if PRS are not immediately available for an unaccompanied
child. One commenter asserted that ORR's sole focus is speed of
release. Another commenter expressed concern that the unavailability of
PRS combined with a policy to not postpone release due to such
unavailability could mean that thousands of unaccompanied children will
be released to sponsors with no PRS.
Response: ORR does not agree that ORR's sole focus is speed nor
that this will increase the number released children without PRS. ORR
prioritizes the safety and well-being of all unaccompanied children
when releasing them to sponsors, consistent with its statutory
responsibilities, and notes that pursuant to subpart C, ORR is
explicitly codifying measures to protect the safety of children it
releases from custody (e.g., to support children being released to
thoroughly vetted sponsors who can take care of children's safety and
well-being post-release).
Further, in the NPRM, ORR acknowledged that it was aware of
concerns that, in some cases, release of unaccompanied children to
sponsors may be unduly delayed by a lack of available PRS providers and
services near the sponsor and therefore proposed at Sec.
410.1210(a)(4), that it would not delay release if PRS are not
immediately available (88 FR 68933).
Comment: A few commenters had recommendations for how PRS providers
should furnish PRS. One commenter recommended updating the language in
Sec. 410.1210(b) that states ``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'' to read, ``in a developmentally,
culturally, and trauma-informed way that ensures effective
understanding, regardless of
[[Page 34470]]
age, reading comprehension, or disability to ensure meaningful access
for all eligible children, including those with limited English or
Spanish proficiency.'' This commenter recommended the changed language
to recognize that many children may speak an Indigenous language as
their preferred language. Further, a separate commenter recommended
that ORR guarantee language access in PRS so that PRS take place in the
child and the sponsor's preferred language(s).
Another commenter recommended PRS be furnished in a manner
sensitive to the individual needs of the sponsor in addition to the
individual needs of the unaccompanied child. This commenter also
recommended that PRS be furnished in a way that sponsors effectively
understand regardless of spoken language, reading comprehension, or
disability to ensure meaningful access for sponsors. Additionally, this
commenter recommended adding ``or preferred languages other than
English'' after ``with limited English proficiency.''
Response: As previously stated, ORR is articulating here the broad
policies governing PRS and not all of the operational specifics of PRS
implementation. With respect to more detailed requirements for PRS
providers, ORR notes that many of the commenters' recommendations are
reflected in its revised PRS policies. For example, under current ORR
policy, which is consistent with this final rule, PRS providers must
use evidence-based child welfare best practices that are culturally-
and linguistically- appropriate to the unique needs of each child and
are grounded in a trauma-informed approach. Additionally, under ORR
policy, PRS providers must make every effort to conduct PRS in the
preferred language of the released child, which would include languages
other than English as recommended by the commenter. If the PRS provider
is not highly proficient in the child's preferred language, they must
use an interpreter. ORR policy also requires that PRS case managers may
help connect children with communities, groups, and activities that
foster the growth of their personal beliefs and practices and that
celebrate their cultural heritage.\189\
ORR recognizes its obligation under applicable laws, regulations,
and guidance from the Department, and as set forth in Executive Order
13166, Improving Access to Services for Persons with Limited English
Proficiency, to ensure meaningful access to its programs and services
for individuals with limited English proficiency (LEP); this obligation
extends to LEP sponsors when communicating with PRS providers and
participating in PRS. As noted above, ORR did not intend for this
section to describe all of the specific requirements of implementation
of PRS requirements. ORR appreciates and will consider the
recommendations received for further improving access to and
participation by sponsors with respect to PRS in future policymaking in
this area.
Comment: One commenter recommended ORR revise Sec. 410.1210(b)(1)
through (12) to require PRS providers to deliver education,
information, and assistance to unaccompanied children and sponsors and
not just sponsors. This commenter stated that the children may be
responsible for many aspects of their care or need the information
provided to the sponsors. Another commenter recommended ORR revise
Sec. 410.1210(b)(12) to make additional service areas at the request
of the sponsor in addition to the unaccompanied child.
Response: ORR agrees that PRS providers should deliver education,
information, and assistance to unaccompanied children in addition to
the sponsors when appropriate. Accordingly, ORR is revising Sec.
410.1210(b)(1), (b)(3) through (6), and (b)(8) through (11) to state
that the PRS provider will deliver education, information, and
assistance, where appropriate, to the unaccompanied children in
addition to the sponsors.
ORR declines to add ``children'' into the PRS services listed at
Sec. 410.1210(b)(2) and (7) because these service areas focus on the
sponsor to ensure the unaccompanied child's safety and well-being after
release. Specifically, the PRS services at Sec. 410.1210(b)(2) and (7)
address legal related actions the sponsor may have to take regarding
the unaccompanied child's immigration status and actions the sponsor
must take to ensure the child receives medical services. ORR notes that
it is finalizing at Sec. 410.1210(b)(7), as proposed in the NPRM, that
PRS providers shall provide the child and sponsor with information and
referrals to services relevant to health-related considerations for the
unaccompanied child (88 FR 68934). ORR also notes that it provides
additional guidance regarding the delivery of certain education,
information, and assistance to children after release in its revised
PRS policies, which is consistent with this final rule.\190\ ORR will
monitor implementation of the regulations and consider the commenters'
recommendations for future policymaking in this area.
Lastly, regarding the commenter's recommendation to revise Sec.
410.1210(b)(12) to include the sponsor, ORR agrees with this
recommendation and is revising Sec. 410.1210(b)(12) to specify that
the sponsor can also request the services.
Comment: A commenter recommended ORR develop standardized training
for PRS grantees to ensure consistent provision of PRS that is
sensitive to the child's individual needs, in a way the child
understands (regardless of language or ability), and meets the child's
needs.
Response: ORR will evaluate whether standardized training is
needed, but believes it is neither necessary nor appropriate to specify
such training in regulation.
Comment: A few commenters had recommendations for funding PRS. One
commenter supported the PRS service areas and recommended that ORR
allocate funds for specific services. For example, the commenter
recommended that instead of PRS providers referring children for mental
health services, ORR should fund mental health services for children
who are most at-risk and ineligible or unable to access health
insurance programs. Another commenter recommended that ORR not reduce
funding for the PRS services listed at Sec. 410.1210(b) based on the
availability of appropriations.
Response: As discussed in section VI., funding for the UC Program's
services is dependent on annual appropriations from Congress and
accordingly, Sec. 410.1210(b) specifically mentions that PRS are
limited to the extent appropriations are available. ORR will consider
the commenters' recommendations if funding for UC Program services
changes.
Comment: Several commenters recommended that ORR include additional
service areas that PRS should support, or requested that ORR clarify
the PRS service areas described at Sec. 410.1210(b). One commenter
recommended that PRS providers should help sponsors apply for patient
assistance or charity care programs, which the commenter stated is
critical for children released to sponsors in States where the child
does not qualify for medical insurance, such as Medicaid, due to
immigration status. Another commenter recommended including dental
services as a required PRS service area. Another commenter recommended
clarifying Sec. 410.1210(b)(3) to reflect that sponsors may need
additional assistance to effectuate decision-making in addition
[[Page 34471]]
to guardianship, such as parental power of attorney and complying with
education and medical consent laws. Additionally, a commenter expressed
the importance of children receiving education and support so they can
continue attending school and pursuing safe and healthy work
opportunities appropriate for minors. This commenter recommended PRS
include connection to legal service providers to ensure children and
families receive assistance if a child is in an exploitive job, stating
that this would help protect children from exploitive labor. One
commenter recommended adding housing as a PRS area, stating that
housing is often a significant area of stress for sponsors and a reason
that children may need to work. Another commenter recommended PRS
providers provide sponsors and unaccompanied children information about
alternative temporary housing and emergency and crisis response
resources. One commenter expressed concern that the list of PRS did not
include services for children who go missing, cultural traditions, and
supporting integration and independence, and requested that ORR clarify
if these areas are no longer considered PRS. Another commenter
recommended ORR expand the scope of PRS to explicitly include
acculturation and integration services to help unaccompanied children
cope with stressors by connecting them to organizations that offer
culturally and linguistically responsive services. A few commenters
recommended PRS include health care resources for LGBTQI+ youth.
Response: Section 410.1210(b) provides a non-exhaustive list of
service areas that PRS providers may support, and ORR notes that Sec.
410.1210(b)(12) states that PRS providers may assist the sponsor and
unaccompanied child with accessing ``other services'' not specifically
enumerated. ORR believes this language is sufficiently broad to cover
services such as those recommended by commenters. Lastly, ORR notes
that its revised PRS policies further describe some of the services
recommended by commenters.\191\
Comment: A few commenters did not support guardianship as a PRS
service. Specifically, a commenter did not support including
guardianship because, the commenter suggested, it will likely create
confusion in States where the term ``guardianship'' has different
meanings and/or States use different terms to refer to an adult's legal
responsibility to care and make decisions for a child. Further, this
commenter stated that they have seen well-meaning community service
providers advise children and their relatives to seek custody or
guardianship without first consulting with an attorney to understand
the impact that custody or guardianship might have on the child's
eligibility for immigration relief. Additionally, another commenter did
not support including guardianship and stated that ORR should not
interfere with issues that arise with a state's child protective
services agency when a sponsor is not a legal guardian or custodian.
The commenter instead recommended that ORR provide training to child
protective services workers on challenges faced by unaccompanied
children, the family unification process, and the difference between
sponsorship and legal guardianship or custody, and the commenter also
recommended that ORR create a hotline for child protective services
workers to call with questions related to unaccompanied children.
Additionally, the commenter recommended legal service providers educate
child protective services workers on immigration relief for
unaccompanied children and how those workers can support these
children. Another commenter recommended that instead of PRS providers
educating sponsors on guardianship, PRS providers should advise
sponsors to seek legal counsel to understand options and the legal
requirements within the applicable State. This commenter stated that
PRS providers providing sponsors recommendations on legal guardianship
could be construed as providing legal advice and noted the variations
in legal guardianship requirements and uses among States.
Response: ORR disagrees that PRS services should not include
guardianship because this is an important service for unaccompanied
children and sponsors who do not have legal guardianship of the
children in their care. ORR acknowledges that guardianship has
different meanings and requirements among the States, and accordingly
proposed in the NPRM at Sec. 410.1210(b)(3) that a PRS provider may
assist the sponsor in identifying the legal resources to obtain
guardianship, which would include legal service providers that could
assist the sponsor on understanding the options and legal requirements
in the applicable State (88 FR 68988).\192\ ORR appreciates the
commenters' recommendations to educate and train child protective
services workers and have a hotline available for these workers. ORR
notes that it has an existing hotline, the ORR NCC, that PRS providers,
and any interested party caring for an unaccompanied child, may call to
be connected with relevant information. With respect to training child
protective services workers on various aspects of the post-release
needs of unaccompanied children, although these recommendations are
outside the scope of this final rule, ORR will take them into
consideration for future policymaking in this area.
Lastly, ORR does not agree with the comment that a PRS provider
educating the sponsor and child on guardianship could be construed as
legal advice. As proposed at Sec. 410.1210(b)(3), the PRS provider
educates the sponsor and child on the benefits of obtaining legal
guardianship and then refers the sponsor to legal resources if the
sponsor is interested in pursuing legal guardianship. ORR notes that
under Sec. 410.1309(b), unaccompanied children would have access to
legal services, to the extent funding is available, and children and
their sponsors could consult with legal counsel about guardianship.
Comment: A few commenters recommended ORR provide a definition of
``additional consideration'' at Sec. 410.1210(c) as proposed in the
NPRM. These commenters also recommended ORR provide specifics regarding
PRS eligibility for unaccompanied children requiring additional
consideration should ORR have inadequate appropriations to achieve
universal PRS by 2025.
Response: ORR clarifies that ``additional consideration'' means
that ORR may prioritize referring unaccompanied children with certain
needs listed at Sec. 410.1210(c)(1) through (10) for PRS if
appropriations are not available to offer PRS to all children. To
clarify this in the regulation, ORR is finalizing revisions to Sec.
410.1210(c) to state ``Additional considerations for prioritizing
provision of PRS. ORR may prioritize referring unaccompanied children
with the following needs for PRS if appropriations are not available
for it to offer PRS to all children.'' ORR also notes that it is
clarifying at Sec. 410.1210(a)(3) that ORR may give additional
consideration, consistent with Sec. 410.1210(c), for cases involving
unaccompanied children with mental health or other needs who could
particularly benefit from ongoing assistance from a community-based
service provider, to prioritize potential cases as needed.
Additionally, ORR proposed the non-exhaustive list at this section of
the NPRM to describe categories of unaccompanied children who, based on
their particular needs or circumstances, would particularly benefit
from PRS (88 FR 68934). ORR
[[Page 34472]]
notes this list is distinguishable from Sec. 410.1210(b) in this final
rule, which describes a non-exhaustive list of potential PRS service
areas. Lastly, ORR appreciates the commenters' recommendation to
provide specifics regarding PRS eligibility for unaccompanied children
requiring additional consideration should ORR have inadequate
appropriations to achieve universal PRS by 2025. ORR will take this
recommendation into consideration for purposes of future policymaking
in this area.
Comment: A commenter recommended ORR clarify that unaccompanied
children with disabilities included children with developmental delays
and mental/health behavioral health issues.
Response: ORR thanks the commenter for their recommendation and
agrees that unaccompanied children with disabilities include children
with developmental and mental health behavioral health issues. ORR is
not codifying this clarification at Sec. 410.1210(c)(2), but refers
the commenter to the definition of disability, as used in this rule, at
Sec. 410.1001.
Comment: A few commenters supported the inclusion of unaccompanied
children identifying as LGBTQI+ requiring additional consideration for
PRS. One commenter recommended changing ``unaccompanied children with
LGBTQI+ status'' to ``unaccompanied children who identify as LGBTQI+.''
Response: ORR thanks the commenters for their support. ORR has
revised Sec. 410.1210(c)(3) to ``unaccompanied children who identify
as LGBTQI+,'' and is finalizing this revision at Sec. 410.1210(c)(3).
Comment: A few commenters requested that ORR clarify how
considering LGBTQI+ status or identity for PRS would impact faith-based
organizations that provide PRS to unaccompanied children.
Response: ORR is committed to providing services described in this
section to all unaccompanied children, including those who identify as
LGBTQI+. Section 410.1210(c) provides a non-exhaustive list of
unaccompanied children who may be referred by ORR to PRS based on their
individual needs. ORR expects PRS providers, including faith-based
organizations, to provide services listed in Sec. 410.1210(b) to
unaccompanied children, including those who identify as LGBTQI+. ORR
wishes to make clear that it operates the UC Program in compliance with
the requirements of Federal religious freedom laws, including the
Religious Freedom Restoration Act, and applicable Federal conscience
protections, as well as all other applicable Federal civil rights laws
and applicable HHS regulations. HHS regulations state, for example: ``A
faith-based organization that participates in HHS awarding-agency
funded programs or services will retain its autonomy; right of
expression; religious character; and independence from Federal, State,
and local governments, and may continue to carry out its mission,
including the definition, development, practice, and expression of its
religious beliefs.'' \193\ These regulations also make clear that HHS
may make accommodations, including for religious exercise, with respect
to one or more program requirements on a case-by-case basis in
accordance with the Constitution and laws of the United States.\194\
ORR will continue to conduct its work consistent with these
protections.
Comment: A few commenters recommended additional privacy
protections for unaccompanied children who require additional
consideration under Sec. 410.1210(c). A commenter recommended PRS care
providers honor a child's privacy to allow the child to voluntarily
access the services the child needs if they are unable or unwilling to
obtain the sponsor's or guardian's consent to receive PRS.
Response: At Sec. 410.1210(i)(3), ORR is finalizing privacy
protections for unaccompanied children and their sponsors, which
includes requiring the PRS providers to have in place policies and
procedures to protect information from being released and appropriate
controls for information sharing. ORR notes that it did not intend for
45 CFR part 410 to govern or describe the entire UC Program, and that
its updated PRS policies provide additional guidance on privacy
protections for unaccompanied children and sponsors receiving PRS. As
ORR implements these regulations, ORR will monitor and evaluate whether
additional policymaking is necessary with respect to privacy
protections.
Additionally, ORR agrees that in certain circumstances,
unaccompanied children should have access to PRS even if they are
unable or unwilling to obtain the consent of their sponsors; however,
ORR disagrees that this should apply to all sponsor types. Accordingly,
ORR is codifying its policy at new Sec. 410.1210(h)(3) that if an
unaccompanied child's sponsor (not including a parent or legal
guardian) chooses to disengage from PRS and the child wishes to
continue receiving PRS, ORR may continue to make PRS available to the
child through coordination between the PRS provider and a qualified ORR
staff member.\195\
Comment: A few commenters recommended additional categories of
unaccompanied children who should have additional consideration for PRS
at Sec. 410.1210(c). Specifically, a few commenters recommended ORR
add pregnant and parenting unaccompanied children to the list of
unaccompanied children who receive additional consideration for PRS.
Another commenter recommended ORR add unaccompanied children (infants
through 12 years of age) to the list.
Response: At Sec. 410.1210(a)(3), ORR is finalizing that it may
offer PRS to all unaccompanied children and this will include the
categories of unaccompanied children recommended by commenters--
children who are pregnant and parenting and children under 12 years of
age. ORR also notes that Sec. 410.1210 describes a non-exhaustive
list. ORR does not think it is necessary to codify additional
categories in the final rule but will monitor implementation of this
regulation to determine whether future policymaking is appropriate in
this area.
Comment: A few commenters recommended ORR clarify how an
unaccompanied child and sponsor would be referred for PRS when ORR
receives a call to the ORR NCC and the child and sponsor are the
subjects of situations that would have necessitated a NOC if they were
receiving PRS. This commenter noted that if ORR receives a NOC from the
PRS provider, ORR requires the PRS provider to follow-up with the child
and sponsor and assess whether PRS is appropriate.
Response: ORR notes that the comment is outside the scope of this
rule, which does not codify the operation of the ORR NCC. But ORR notes
that its updated PRS policies provide that ORR may, at its discretion,
also refer a released child to PRS at any point during the pendency of
the child's immigration case and while the child is under age 18, if it
becomes aware (e.g., through a NOC, or a call to the ORR NCC) of a
situation warranting such referral. In that event, ORR would require
the relevant PRS provider to follow up with the child and assess
whether PRS would be appropriate.\196\
Comment: A few commenters supported developmentally appropriate
assessments for children as described in the NPRM at Sec. 410.1210(d).
One of these commenters also supported the requirement that PRS
providers use trauma-informed and child-focused assessments to
determine the child's level of care needed, stating that this approach
supports early intervention, is
[[Page 34473]]
consistent with best practices, and ensures the individual needs of the
child and sponsor are met and that they receive appropriately tailored
services.
Response: ORR thanks the commenters for their support.
Comment: One commenter had a recommendation for how ORR can improve
assessments for PRS, as proposed in the NPRM at Sec. 410.1210(d).
Specifically, the commenter recommended the assessment indicate the
child's current level of need or care to ensure PRS are appropriately
tailored to their diverse and evolving needs and aligns with the
child's specific challenges and strengths.
Response: ORR agrees with the commenter's recommendation that the
assessment for PRS must indicate the unaccompanied child's current
level of need or care to ensure PRS are tailored to the child's
individualized needs. ORR is revising Sec. 410.1210(a)(3) to require
ORR to make an initial determination of the level and extent of PRS, if
any, based on the needs of the unaccompanied child and the sponsor to
the extent appropriations are available. Additionally, ORR is
clarifying at Sec. 410.1210(a)(3) that PRS providers may conduct
subsequent assessments of the needs of the unaccompanied child and
sponsor that may result in a modification to the level and extent of
PRS assigned. As a result, ORR does not believe further revisions are
needed at Sec. 410.1210(d).
Comment: A few commenters recommended ORR require the assessment be
culturally appropriate. Specifically, one commenter recommended that a
culturally appropriate assessment would protect the child's right to
preservation of culture and identity. Another commenter recommended the
assessment also be linguistically appropriate. This commenter also
recommended ORR issue guidance regarding the use of professional
interpreters during assessments.
Response: ORR again notes that it does not intend 45 CFR part 410
to govern or describe the entire UC Program. However, with respect to
the commenters' recommendations, ORR notes that its revised PRS
policies, which are consistent with these final regulations, require
the use of evidence-based child welfare best practices that are
culturally and linguistically appropriate to the unique needs of each
child and are grounded in a trauma-informed approach. ORR also thanks
the commenter for their recommendation that ORR issue guidance
regarding the use of professional interpreters during assessments.
Although ORR also declines to codify this recommendation in this final
regulation, it notes that under its updated PRS policies, if the PRS
provider is not highly proficient in the child's preferred language,
they must use a qualified interpreter.\197\
Comment: A few commenters recommended ORR collaborate with PRS
providers to develop a standardized assessment for all PRS providers,
stating that variations within assessments have caused complications
and resulted in PRS providers experiencing issues with data collection
and in how PRS providers assess the need for PRS, which may result in
discrepancies and protection gaps. One commenter recommended ORR
provide guidance on suggestions and/or examples of appropriate
standardized or validated assessments and tools and examples of
culturally adapted or cross-cultural assessments, mentioning as
examples the Refugee Health Screener-15 \198\ and the Trauma History
Profile.\199\
Response: Although the development of specific screening tools is
outside the scope of this rule, ORR will continue to assess the
effectiveness of the regulations and take these recommendations into
consideration for future policymaking in this area.
Comment: A few commenters either did not support or expressed
concern about PRS providers identifying traumatic events and symptoms.
One commenter stated that discussing traumatic events and symptoms with
children risks re-traumatizing them and instead, mental health
professionals or pediatricians with trauma-informed training should
conduct trauma screening. Another commenter stated this is outside the
scope of PRS case managers' work; PRS providers do not have the
requisite experience, education, and training to assess childhood
trauma; and they cannot provide support when screening measures uncover
trauma, except in cases of Level Three PRS, as described in ORR's
updated PRS policies, where support includes clinical services.
Response: ORR declines to remove ``trauma-informed'' from the
assessment because it is important for PRS providers' assessments to
include a trauma-informed approach to accurately assess the
unaccompanied child and the sponsor for their individualized needs so
they can receive appropriate services to address those needs and ensure
the safety and well-being of the child post-release. For example, ORR's
revised policies for PRS services state that the impact of childhood
trauma, in addition to other factors, must be part of the PRS
provider's assessment of the child's medical and behavioral health
needs so that they can refer the child to community health centers and
healthcare providers. If the assessment did not include a trauma-
informed approach, the PRS provider may not refer the child to services
appropriate to the child's individualized needs. ORR also notes that it
did not intend for Sec. 410.1210 to describe all requirements for PRS
providers and the revised PRS policies provide more guidance to PRS
providers on how to work with children who have experienced trauma.
ORR also acknowledges the recommendation that mental health
professionals or appropriately trained pediatricians conduct trauma
screening. Although not included in this final rule, ORR notes that its
updated PRS policies, which are consistent with this final rule,
provide that PRS case managers may connect children, along with their
sponsor family, with specialized services and provide psychoeducation
on trauma and on the short- and long-term effects of adverse childhood
experiences on the children and family.\200\ However, this is done
after screening the child. As ORR implements these regulations, it will
monitor for any unintended consequences and consider the commenter's
recommendations if it determines that future policymaking in this area
is needed.
Finally, ORR acknowledges the commenter's concern that PRS case
workers do not have the requisite experience, education, and training
to assess trauma. Although not codified in this final rule, ORR notes
under its updated PRS policies, a core competency for PRS providers is
having a foundational knowledge of trauma-informed care and initial
training for PRS providers must include childhood trauma and its long-
term effects.\201\ ORR believes that this updated policy will result in
PRS case managers being appropriately trained to perform trauma-
informed assessments.
Comment: A few commenters requested that ORR release additional
guidance related to on-going check-ins and in-home visits, including
the structure of such check-ins and visits. One commenter requested
that ORR provide guidance to PRS providers on what actions the
providers must follow if they are unable to contact the child after the
child's release.
Response: ORR notes that its updated PRS policies provide further
guidance on the structure for ongoing check-ins and in-home visits, as
well as the actions PRS providers must follow if they are unable to
contact the child after release.\202\ For example, ongoing contact with
the unaccompanied child and sponsor should be determined by the
[[Page 34474]]
level of need and support required, in consultation with the child and
sponsor. With respect to home visits provided for in Levels Two and
Three PRS, after the first in-home visit, PRS case managers must make
monthly visits for six (6) months. Monthly visits may occur in-person
or if there are no safety concerns, virtually. Further, at minimum, in-
person contact in the sponsor's home must be established every 90
calendar days for Level Two PRS and weekly for the first 45 to 60
calendar days for Level Three PRS. ORR's updated policies further
provide that the nature of home visits may vary depending on the
extensiveness or level of PRS provided. Finally, with respect to loss
of contact, ORR's updated policies provide that if the PRS case manager
is unable to reach the child or sponsor by phone through reasonable
attempts or if the child or sponsor declines an in-home visit, the PRS
case manager should document all attempts made and the reasons, if
known, for why contact was not made or services were declined (e.g.,
child is safe and secure and no longer requires services, sponsor's
working schedule conflicts with case manager's schedule for an in-home
visit, etc.). If the PRS provider is concerned about the child's safety
(i.e., potential child abuse, maltreatment, or neglect), the PRS
provider must follow the mandated reporting guidelines for the locality
in which they are providing service. Further, PRS providers must submit
a NOC if they are unable to contact the released child within 30 days
of release or referral acceptance.
Comment: One commenter expressed concern that involving a sponsor
in determining the appropriate methods, timeframes, and schedule for
ongoing contact with the released unaccompanied child gives too much
power to the sponsor, and also expressed concern about the lack of an
enforcement mechanism.
Response: ORR appreciates the commenter's concern and believes the
final rule, read together with its updated PRS policies, appropriately
balances the need for sponsor involvement in the delivery of PRS with
the need for protective measures for children. Proposed Sec.
410.1210(e)(1) requires the PRS provider, not the sponsor, to make a
determination regarding the appropriate methods, timeframes, and
schedule for ongoing contact with the released unaccompanied child and
sponsor. Additionally, ORR notes that its revised PRS policies provide
additional guidance for PRS providers regarding the required methods,
timeframes, and schedule for ongoing contact.\203\
Comment: Several commenters had recommendations regarding the
duration of PRS in response to ORR proposing in the NPRM at Sec.
410.1210(e)(2) and (h)(2) that PRS continue for six (6) months after
release. Specifically, one commenter recommended all children receive
PRS for at least three (3) months to ensure their successful transition
into the community with regular face-to-face visits to continuously
reassess the children. This commenter recommended higher risk children,
such as those released to non-relative sponsors, receive at least six
months of PRS and extending services as needed. Another commenter
recommended ORR clarify that PRS can be provided to a released child
for a full six months from the time the child's case is accepted by a
PRS provider because a child's case is not always immediately accepted
by a PRS provider due to capacity issues. One commenter recommended ORR
provide each child with a discharge plan and PRS for at least six
months. Another commenter recommended ORR provide all children with PRS
for one-year post-release because all children would benefit from PRS
and waitlists for PRS can be six months or more. Additionally, one
commenter recommended that ORR be flexible in the duration of PRS based
on the needs of the child and sponsor, stating that some cases may
require longer-term support and six months of PRS may be insufficient.
Another commenter recommended unaccompanied children be eligible to
receive PRS until they become 21 years of age, which the commenter
stated is consistent with the definition of a child under INA Sec.
101(b)(1)(A), or they are granted voluntary departure or issued an
order of removal, whichever occurs first.
Response: ORR agrees with the commenters' recommendations to
consider longer timeframes and be flexible in the duration of PRS based
on the needs of the unaccompanied child and sponsor. Accordingly, ORR
is not finalizing Sec. 410.1210(e)(2) as proposed in the NPRM (88 FR
68989). To allow for flexibility in how long PRS are furnished to
children and their sponsors, ORR is revising Sec. 410.1210(h)(2) to
remove ``PRS for the unaccompanied child shall presumptively continue
for not less than six months'' and clarifying that PRS may be offered
until the unaccompanied child turns 18 or the unaccompanied child is
granted voluntary departure or lawful immigration status, or the child
leaves the United States pursuant to a final order of removal.
Lastly, ORR declines to revise Sec. 410.1210(h) to state that
unaccompanied children are eligible to receive PRS until they turn 21
because this would be inconsistent with the definition of
``unaccompanied child'' that ORR is finalizing at Sec. 410.1001 (``has
not attained 18 years of age''), which is consistent with the
definition under the HSA, 6 U.S.C. 279(g)(2).
Comment: A few commenters supported ORR's proposal to require PRS
providers to make monthly contact with released children for up to six
(6) months, as originally proposed in the NPRM at Sec. 410.1210(e)(2).
Additionally, a commenter further supported the use of technology to
facilitate the check-ins, i.e., virtual check-ins. This commenter
stated the check-ins are crucial to ensure the sponsor is complying
with ORR's requirements and properly caring for the child; prevent and
detect any child labor, abuse, or trafficking; assess whether the child
needs adjustment to the child's support; and ensure new PRS providers
comply with ORR standards and provide timely and relevant support to
the child and sponsor. Another commenter recommended a monthly in-
person check-in with the child, which is confidential and outside the
sponsor's presence, to assess the child's risk of abuse, neglect,
trafficking, and other concerns. Lastly, a commenter recommended ORR
set a standard timeframe and schedule of contact that would include, at
a minimum, two check-ins for the first six months and then monthly for
the next six months.
Response: ORR notes that in response to comment to consider longer
timeframes and be flexible in the duration of PRS based on the needs of
the unaccompanied child and sponsor, ORR is not finalizing Sec.
410.1210(e)(2) as proposed in the NPRM (88 FR 68988 through 68989). To
allow for flexibility in how long PRS are furnished to children and
their sponsors, ORR is revising Sec. 410.1210(h)(2) to remove ``PRS
for the unaccompanied child shall presumptively continue for not less
than six months'' and clarifying that PRS may be offered until the
unaccompanied child turns 18 or the unaccompanied child is granted
voluntary departure or lawful immigration status, or the child leaves
the United States pursuant to a final order of removal. ORR will take
the commenters' recommendations into consideration for future
policymaking in this area.
Comment: A few commenters expressed concern about the requirement
at Sec. 410.1210(e)(3), as proposed in the NPRM, that PRS providers
document ongoing check-ins and home visits as well as the progress
[[Page 34475]]
and outcomes of those visits. These commenters also expressed concern
about PRS providers documenting community resource referrals and their
outcomes as described in the NPRM at Sec. 410.1210(f)(2). These
commenters stated increased data gathering on children post-release is
problematic for privacy reasons without objectives on such data and the
infrastructure to support data gathering. Further, these commenters
requested that ORR clarify why ORR wants this data and how ORR plans to
use it.
Response: ORR proposed in the NPRM, documentation requirements at
Sec. 410.1210(e)(3) and (f)(2) to ensure PRS providers keep accurate
and comprehensive records of the services they provide to unaccompanied
children and their sponsors (88 FR 68935). ORR's updated PRS policies
are consistent with this requirement as well.\204\ Further, at Sec.
410.1210(i)(3) in this final rule, ORR is codifying privacy protections
for unaccompanied children and their sponsors, which includes requiring
PRS providers have in place policies and procedures to protect
information from being released and appropriate controls for
information sharing. ORR notes that its revised PRS policies provide
additional guidance on privacy protections for unaccompanied children
and sponsors receiving PRS, which are consistent with this
section.\205\ ORR believes these privacy protections reasonably address
the commenters' concerns regarding protection of unaccompanied
children's information. Additionally, ORR is finalizing at Sec.
410.1210(i)(1)(i) that PRS providers must upload information into ORR's
online case management system within seven (7) days of completion of
the services. ORR notes that it provides consistent oversight of all
components of a PRS provider's program and clarifies for commenters
that it plans to review information uploaded into ORR's online case
management system to monitor the PRS providers' activities under ORR
policies and Sec. 410.1210 to ensure quality care for children.\206\
Comment: A few commenters supported ORR's proposal that PRS
providers connect the sponsor and unaccompanied child to community
resources for the child, as needed, following the child's release.
Another commenter supported the requirement that PRS providers document
the referral and outcome of community resources, stating documentation
is essential for understanding the scope and uptake of services
accessed by children and sponsors to help identify potential gaps in
services, and better understand whether the services meet the
children's and sponsors' needs.
Response: ORR thanks the commenters for their support.
Comment: A few commenters expressed concern that ORR did not
propose to enumerate the ways PRS providers should work with children
and their sponsors to access community resources. A commenter
recommended ORR specify what PRS providers should assess and when needs
are identified, provide support in those areas of need. This commenter
further recommended ORR require a minimum standard of what PRS
providers should ensure regarding school enrollment, connection to
legal services, and medical, dental, and mental health services.
Another commenter expressed concern that the requirement is inadequate
to address the potential challenges and barriers children and sponsors
face in accessing education, health care, social services, and legal
assistance in their communities, which may impact the integration and
well-being of children and their sponsors, and recommended ORR
facilitate their access and participation in such services. This
commenter further recommended PRS providers provide children and their
sponsors with information on the availability of community resources to
support unaccompanied children and their sponsors.
Response: As ORR stated in the NPRM preamble for proposed Sec.
410.1210(f)(1), ORR has opted not to enumerate ways that PRS providers
could comply with this proposed requirement in the regulation, because
the nature of such assistance varies by case (88 FR 68935). ORR further
notes that PRS can also vary by the community and/or State where
unaccompanied children and their sponsors are located. To provide PRS
providers with additional guidance on how to work with unaccompanied
children and sponsors to access community resources, ORR has issued
updated PRS policies that include many of the recommendations from
commenters.\207\ Nevertheless, ORR will monitor implementation of this
final rule and take these recommendations into consideration with
respect to potential future policymaking in this area.
Comment: A number of commenters requested clarity on why ORR is
unable to collect data on what specific Government resources children
access.
Response: ORR clarifies that at Sec. 410.1210(i)(1)(i), ORR is
finalizing requirements for PRS providers to upload information,
including any referrals to community resources and their outcomes at
Sec. 410.1210(f)(2), into ORR's case management system.
Comment: Several commenters expressed concern that the requirement
at proposed Sec. 410.1210(g)(1), that TVPRA-mandated PRS begin within
30 days, is too long and recommended that ORR require PRS providers to
start services no later than 14 days after release. A few other
commenters expressed concern that PRS providers currently do not have
capacity to access PRS cases in real time and recommended continued
efforts to clear the existing backlog of waitlisted cases so that new
cases could be accepted as close to release as possible. These
commenters also recommended that care provider facilities make
referrals for PRS prior to release, stating that facilities refer most
cases for PRS the day of release. Lastly, a few commenters stated that
the timeframes in which ORR proposes PRS providers start PRS are nearly
fully dependent on appropriations and available providers, and if ORR
cannot guarantee funding, these commenters requested ORR clarify how to
mitigate the impacts on these timeframes.
Response: ORR agrees with the commenters' concerns about the
capacity of PRS providers and is revising Sec. 410.1210(g)(1) to state
PRS shall, to the greatest extent possible, start no later than 30 days
after release if PRS providers are unable, to the greatest extent
practicable, start services within two (2) days of release. ORR
believes that this strikes the appropriate balance of the PRS
providers' capacity concerns while ensuring unaccompanied children who
are legally-mandated under the TVPRA to be offered PRS receive such
services in a timely manner to ensure the child's safety and well-being
after release. ORR will monitor implementation of Sec. 410.1210 and
will take into consideration the commenters' recommendations for
policymaking, as needed, to specify the timeframes for starting PRS.
Additionally, ORR acknowledges the commenter's concerns about
clearing the backlog of PRS referrals and funding PRS. ORR notes that
it is committed to pursuing additional capacity based on resources
allocated by Congress.
Comment: One commenter recommended ORR clarify whether children who
receive an order of removal have their PRS discontinued and recommended
removing this clause if PRS continues after an order of removal.
Response: ORR's historic policy has been that PRS would end upon
the receipt of an order of removal. However,
[[Page 34476]]
after considering the commenter's recommendation, ORR is revising Sec.
410.1210(h)(1) and (h)(2) to state that PRS shall continue until the
child is granted voluntary departure, granted immigration status, or
leaves the United States pursuant to a final order of removal,
whichever occurs first. Providing PRS until a child leaves the United
States pursuant to a final order of removal will promote their safety
and well-being post-release.
Comment: A few commenters supported the records and retention
proposals for PRS providers and offered some additional
recommendations. Specifically, one commenter supported requiring PRS
providers to have established administrative and physical controls to
prevent unauthorized electronic and physical access to records and
recommended ORR update the terminology ``controls,'' as used at Sec.
410.1210(i)(2) in the NPRM, to external, national standards describing
best practices for securely handling and maintaining sensitive and
restricted information. Additionally, a few commenters recommended ORR
provide technical support for the submission and maintenance of files
and to address any questions or complications that may arise. These
commenters also requested ORR consider the additional burden of sharing
hard files for the relevant record retention period.
Response: ORR thanks the commenters for their support and
recommendations for ORR's record and retention proposals at Sec.
410.1210(i). ORR declines to change the terminology used at Sec.
410.1210(i)(2), ``controls,'' because it believes the existing term
reasonably describes standards ORR may establish, including any
relevant external, national standards in current or future
policymaking. With respect to the recommendation that ORR provide
technical support, ORR will take that recommendation into consideration
for future policymaking in this area. Lastly, ORR acknowledges the
request to consider the additional burden of sharing hard files and
will take this into consideration for future policymaking.
Comment: Several commenters did not support the requirement for PRS
providers to upload all PRS documentation on completed services
provided to unaccompanied children and sponsors to ORR's case
management system within seven (7) days of completion of the services,
and recommended alternative timeframes. A few commenters noted that
current ORR policy requires PRS providers to upload case closure
reports to ORR's case management system within 30 days of case closure,
and the commenters recommended ORR finalize the 30-day policy to allow
PRS providers additional time. A separate commenter recommended
fourteen (14) days from the completion of services to upload all PRS
documentation, stating 14 days is more manageable and appropriate for
PRS providers. Another commenter stated the current timing in Sec.
410.1210(i)(1) is ambiguous and recommends ORR clarify that
``completion of the services'' means completion of individual service
activities and not the overall completion of the PRS provider's
services to a child, i.e., when the PRS provider closes the child's
case.
Response: ORR notes PRS providers are already operating under a 7-
day timeframe, pursuant to its updated PRS policies.\208\ ORR is thus
codifying existing practice. ORR notes that the 30-day timeframe the
commenter mentioned relates to closing a case and that this is also
existing practice under ORR's revised PRS policies.\209\ ORR is
finalizing Sec. 410.1210(i)(1) as it was originally proposed in the
NPRM to ensure PRS providers upload information for individual services
in a timely manner. ORR will monitor implementation of Sec.
410.1210(i)(1) to determine if any unforeseen consequences necessitate
further policymaking.
Additionally, ORR clarifies that ``completion of the services'' in
Sec. 410.1210(i)(1) means the individual service provision (e.g.,
client case notes, referral summaries, assessments, etc.), and that
this provision codifies existing practice under its revised PRS
policies.\210\
Comment: A commenter requested that ORR clarify whether the record
management and retention requirements apply only to PRS providers or to
other types of ORR programs such as standard programs, restrictive,
influx care facilities, and heightened supervisions facilities.
Response: ORR clarifies that the record management and retention
requirements at Sec. 410.1210(i) apply to PRS providers. ORR is
finalizing recordkeeping requirements for care provider facilities at
redesignated Sec. 410.1303(h) and (i).
Comment: A few commenters did not support providing PRS record
access to ORR upon request and sharing information regarding released
children and their sponsors. Specifically, one commenter did not
support ORR obtaining access to PRS files upon request, PRS providers
uploading documentation into ORR's case management system, and PRS
providers providing active or closed case files to ORR, stating that
ORR has relinquished physical and legal custody of the child. Another
commenter did not support information sharing between ORR and PRS
providers due to concerns that it will discourage children and sponsors
from using PRS. A separate commenter recommended that PRS providers
provide only aggregated nonidentifying data to ORR and further
recommended that ORR not consider PRS casefiles to be ORR property
because PRS providers are subject to different laws and best practices
regarding ownership of children's records that may prohibit sharing
records with ORR.
Response: Although ORR does not retain custody of unaccompanied
children after releasing them from its custody, ORR has the authority
under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to conduct follow-up services
for unaccompanied children. ORR funds PRS providers to provide these
follow-up services and because PRS providers are ORR grantees, under
grant administration requirements, ORR is authorized to access grantee
records. ORR also notes that requiring access to PRS records is
consistent with HHS's Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for HHS Awards, codified at 45 CFR
part 75.\211\ ORR's updated PRS policies further clarify that PRS
providers may not release these records without prior approval from ORR
except for limited program administration purposes.\212\ These privacy
and confidentiality requirements implement the TVPRA requirement to
protect children from victimization and exploitation.
Additionally, ORR acknowledges the commenter's concern regarding
PRS providers uploading information into ORR's case management system.
At Sec. 410.1210(i)(1)(i), ORR is finalizing that PRS providers must
upload information into ORR's online case management system within
seven (7) days of completion of the services. ORR believes it is
necessary for PRS providers to upload this information to keep an
electronic record that is accessible to ORR to facilitate ORR's
oversight and monitoring of PRS providers to ensure they comply with
ORR policies and the requirements under Sec. 410.1210.
Further, as discussed above, ORR is finalizing privacy protections
for unaccompanied children and their sponsors at Sec. 410.1210(i)(3),
which includes requiring PRS providers to have policies and procedures
in place to protect information from being released to unauthorized
users and have appropriate controls in place for
[[Page 34477]]
information sharing. ORR refers the commenters to previous discussions
of these protections.
Comment: A few commenters opposed the requirement for PRS providers
to obtain prior ORR approval before releasing records to third parties.
One commenter opposed ORR approval for release to third parties because
PRS providers' security and confidentiality controls prevent release of
records to potentially dangerous parties. Another commenter opposed ORR
approval for release to third parties and stated all records must be
available upon request by any law enforcement agency and susceptible to
FOIA requests including third-party agencies.
Response: ORR notes that it funds PRS providers to provide these
follow-up services. Because PRS providers are ORR grantees, the records
of unaccompanied children are the property of ORR, whether in the
possession of ORR or its grantees, and ORR grantees may not release
these records without prior approval from ORR. ORR is revising Sec.
410.1210(i)(2)(iii) to clarify that PRS providers may not release
records to any third party without prior approval from ORR, except for
program administration purposes, which is consistent with the revised
PRS policies.\213\ ORR has these protections in place to ensure
information is not exploited by unauthorized users to the detriment of
released unaccompanied children. ORR notes that it will continue to
adhere to the Privacy Act, and its related System of Records Notice
(SORN), under which it may release records to law enforcement and other
entities for certain authorized uses.\214\ Finally, ORR notes that it
will evaluate requests to release information to determine if the
request is appropriate and may approve the request.
Comment: A commenter recommended that ORR exclude parents or legal
custodians from the term ``third party'' at Sec. 410.1210(i)(3)(iii)
due to the commenter's concern that ORR's approval prior to a PRS
provider releasing records interferes with the custodial rights of
sponsors, particularly parents. The commenter stated parents and legal
custodians have the authority to obtain records related to their
children and to determine what type of information should be shared
with third parties.
Response: ORR notes that consistent with the definition of ``case
file'' set forth at Sec. 410.1001, all records of unaccompanied
children are the property of ORR. Such requirement is essential to
ORR's ability to provide care and custody to unaccompanied children
pursuant to its statutory authorities, including appropriately managing
disclosures of children's information to protect from potentially
harmful disclosures. ORR notes, with respect to parents, however, that
as established in its SORN, unaccompanied child case file information,
including PRS records, are treated as ``mixed'' systems of record that
are subject to the Privacy Act.\215\ Consistent with the Privacy Act,
the parents and legal guardians of minors may act on behalf of their
children for purposes of the Act--including requesting their records
from ORR.\216\
Comment: A commenter requested that ORR clarify how Sec.
410.1210(i)(3)(i) and Sec. 410.1210(i)(2)(ii), as proposed in the
NPRM, differ substantively. On the one hand, as proposed in the NPRM,
Sec. 410.1210(i)(3)(i) requires PRS providers to have written policies
and procedures to protect information from being accessed by
unauthorized users. On the other hand, as proposed in the NPRM, Sec.
410.1210(i)(2)(ii) requires PRS providers to have established
``administrative and physical controls'' to prevent unauthorized access
to both electronic and physical records.
Response: ORR notes that proposed Sec. 410.1210(i)(2)(ii) and
(i)(3)(i) contain similar requirements because they both require PRS
providers to have administrative controls in place to protect against
unauthorized use of information. ORR clarifies that Sec.
410.1210(i)(2)(ii) contains general records management and retention
requirements for PRS providers and Sec. 410.1210(i)(3) contains
additional privacy protections that PRS providers shall have in their
written policies and procedures to safeguard the unaccompanied child's
information.
Comment: A few commenters recommended ORR strengthen the privacy
protections for children and their sponsors. A few of these commenters
recommended that the children's and sponsors' information and data may
not be released to third parties, including law and immigration
enforcement agencies, without the written request or consent of the
child and/or sponsor who is subject to the information request or a
judicial order. Another commenter expressed concern that PRS providers
will use non-secure communication channels and recommended PRS
providers conduct services in-person.
Response: ORR notes that its updated PRS policies require PRS
providers to encrypt electronic communications (including, but not
limited to, email and text messaging) containing healthcare or
identifying information of released children.\217\ ORR also notes that
it will continue to adhere to the Privacy Act, under which it may
release records to law enforcement for the purposes described in the
Privacy Act,\218\ and the UC Program SORN.
Comment: A few commenters had recommendations regarding Sec.
410.1210(i)(4), as proposed in the NPRM, regarding NOCs. One commenter
recommended including a short, exhaustive list of situations that
require a NOC in the regulatory text. Further, a separate commenter
recommended ORR clearly define the criteria for NOC to help identify
risks and respond to the risk promptly to ensure the safety of released
children. Another commenter recommended ORR clarify the language in the
preamble discussing situations that require a NOC and specifically
recommended updating ``potential fraud'' to mean ``being a victim of
fraud'' and clarifying what ORR means by ``media attention.'' Finally,
a commenter recommended elimination of the situations that require a
NOC, stating several of the situations are vague and not connected to
the imminent safety of the child. This commenter recommended ORR
instead require PRS providers to issue NOCs exclusively for concerns,
based on reliable evidence, about the imminent safety of the released
child.
Response: ORR clarifies that it intentionally did not propose in
the NPRM to codify a list of situations in which PRS providers would be
required to submit NOCs, to allow ORR the flexibility to specify the
reasons in subregulatory guidance. ORR notes that its updated PRS
policies currently describe such guidance.\219\ ORR believes it would
be more appropriate to issue subregulatory guidance because it
anticipates that the types of situations where NOCs would be
appropriate may evolve over time and are highly fact-dependent.
Delineating subregulatory guidance would allow ORR to make iterative
updates that correspond to emerging issues in the UC Program.
Comment: A commenter requested that ORR clarify the PRS provider's
obligations once the provider submits a NOC and recommended the PRS
provider conduct increased home visits and follow-ups until the PRS
provider is satisfied that the issue has been resolved.
Response: ORR notes that although it has not codified its
requirements in the final rule, such requirements are described in its
policies. These policies describe, for example, the PRS provider's
obligations once it submits a NOC.\220\ ORR may also refer a released
child to PRS at any point during the pendency of the child's
immigration
[[Page 34478]]
case and while the child is under age 18, if ORR becomes aware (e.g.,
through a NOC, or a call to the ORR NCC) of a situation warranting such
referral. ORR would then require the relevant PRS provider to follow up
with the child and assess whether PRS would be appropriate. ORR will
determine the appropriate level for which to refer all children to PRS
depending on the needs and the circumstances of the case and will make
PRS referrals accordingly. Under its updated PRS policies, ORR
specifies the check-ins and home visits required depending on the level
of PRS ORR determines appropriate.\221\
Comment: One commenter requested ORR to clarify the purpose of
requiring PRS providers to submit NOCs after a child is released and
requested ORR clarify what it intends to do with NOCs given ORR does
not have custody of a child after release.
Response: Although ORR does not retain custody of unaccompanied
children after releasing them from its custody, ORR has the authority
under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to conduct follow-up services
for unaccompanied children. A significant reason for requiring NOCs is
to promote the safety of unaccompanied children, even out of ORR's
legal custody, consistent with its statutory obligations.\222\ As
further set forth in its policies, ORR may refer NOCs to appropriate
authorities where a child's welfare may be at risk. It is also
important for ORR to receive NOCs as a matter of responsible program
administration, particularly with respect to services funded by the
agency. Finally, ORR notes that its updated PRS policies further
describe what ORR does with NOCs once received.\223\
Comment: A commenter recommended that PRS providers document NOCs
within three (3) business days of first suspicion or knowledge of the
event(s) instead of the proposed 24-hour turnaround time, stating this
would allow PRS caseworkers to carry out an intervention with the child
and family, report the event(s) to the appropriate investigative
agencies, and document the event(s) for ORR in a case note.
Response: Due to the serious nature of the reasons for concern
necessitating the PRS provider to submit a NOC, ORR does not agree with
the commenter's recommendation to lengthen the amount of time for PRS
providers to submit a NOC. ORR is finalizing at Sec.
410.1210(i)(4)(ii) that PRS providers shall document and submit NOCs to
ORR within 24 hours of first suspicion or knowledge of the event(s) to
ensure the child's safety and well-being post-release.
ORR did not receive any comments regarding the amount of time PRS
providers would have under the case closure proposal at Sec.
410.1210(i)(5) and notes that in the NPRM, it notified interested
parties that ORR anticipated 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 (88 FR 68936).
ORR is finalizing at Sec. 410.1210(i)(5)(iii) a requirement that PRS
providers must upload any relevant forms into ORR's case management
system within 30 calendar days of a case's closure. Based on the
feedback ORR received in response to the seven (7) day timeframe for
submitting information under Sec. 410.1210(i)(1), ORR believes 30 days
is an appropriate amount of time to allow PRS providers to review and
finalize documentation for case closures.
Comment: ORR sought public comment on whether it should consider
codifying SWB calls in this final rule or in future rulemaking and
whether ORR should integrate SWB calls into PRS, including the factors
that should be considered in doing so. A few commenters supported ORR
integrating SWB calls in PRS stating this could enhance their
effectiveness because PRS providers work with children post-release and
research and find resources, develop relationships and partnerships,
and engage with community stakeholders where children are released.
In contrast, a few commenters opposed ORR integrating SWB calls
into PRS because PRS providers lack capacity to provide these calls and
instead, recommended ORR codify SWB calls and require ORR to be
responsible for SWB calls. Several commenters expressed concern that
due to current funding levels of PRS and limited provider capacity,
integrating SWB calls into PRS would place additional strain on PRS
providers and lengthen the waitlist for PRS, and the commenters
recommended additional funding if SWB calls are integrated into PRS.
Several commenters had recommendations for how ORR could improve
SWB calls. One commenter recommended ORR provide various means of
communication for SWB calls, rename them ``SWB checks,'' and permit
communication via SMS text or other texting services. This commenter
recommended ORR continue to refine SWB checks to optimize
accessibility, cultural competency, building trust, and connection to
services. Another commenter recommended SWB calls provide an
opportunity to children and/or sponsors to communicate with a neutral
individual to request assistance, a change in PRS provider or services,
or to decline services. Additionally, the commenter recommended
personnel who conduct the SWB checks should have proficiency in
languages other than English, access to qualified interpreters,
experience working with youth and immigrant families, and training in
child welfare and other relevant areas.
Another commenter recommended that SWB calls focus on the interim
time between an unaccompanied child's release and the start of PRS.
Lastly, a few commenters expressed concern regarding the rate of
unanswered SWB calls, the unknown whereabouts of released children, and
sponsors reporting children as runaways or missing while under their
care. One of these commenters recommended ORR conduct an analysis of
ways to address released minors who are reported missing by their
sponsors.
Response: ORR thanks the commenters for their support,
recommendations, and concerns. After considering the comments received,
ORR is not codifying SWB calls into this final rule and will take into
consideration the commenters' concerns and recommendations for future
policymaking in this area.
Comment: ORR sought public comment on updating its policies to
three levels of PRS, as described in the preamble above. Several
commenters supported ORR updating its policies to provide three levels
of PRS, stating the levels benefit children and address their needs,
strengthen PRS providers' delivery and management of PRS, and foster
standardization and consistency among PRS providers. Additionally, a
few of these commenters also supported codifying PRS levels in this
final rule. A few commenters supporting the three levels of PRS also
expressed concern about each level having different levels of
engagement, stating the language is vague and presumes the amount of
contact rather than variation in service. These commenters recommended
ORR specify the type and frequency of contact for each level. One
commenter asked ORR to clarify how and when it determines levels,
stating it was unclear whether levels are assigned prior to referring
for PRS.
A few commenters expressed concern about PRS Level One SWB checks.
Specifically, a commenter expressed concern about PRS providers
conducting Level One PRS SWB check-ins virtually. Another commenter
expressed concern with describing Level One services as SWB checks,
[[Page 34479]]
stating these are insufficient for all children, and recommended SWB
checks be distinct from PRS because they do not align with the goals of
PRS. Instead, the commenter recommended that Level One PRS allow for
virtual case management due to the complexity of the child's case. This
commenter also stated that more unaccompanied children would benefit
from Level Two PRS.
Additionally, a few commenters had recommendations or requested
clarity for Level Three PRS. A few commenters requested ORR clarify
intensive home engagements and the desired outcome for Level Three PRS.
One commenter recommended revising the current policy for Level Three
providers and aligning requirements with available resources. This
commenter also stated that ORR's updated PRS policies imply the
preferred intervention for Level Three PRS is from PRS providers with
Trauma-Focused Cognitive Behavioral Therapy (TFCBT) training. The
commenter expressed concern that TFCBT training is unattainable for PRS
providers due to lack of ORR funding and recommended ORR fund PRS
providers to obtain this training and hire qualified clinical staff to
supervise this level of intervention.
A few commenters had recommendations and concerns regarding
assessments and re-evaluations for PRS. Specifically, one commenter
supported the PRS provider's assessment including the level of PRS to
be provided and stated this aligned with the international law
requirement to integrate unaccompanied children in the community. The
commenter recommended extra measures in the assessment to tailor PRS to
address the child's needs. Another commenter recommended ORR outline in
its subregulatory guidance the frequency with which ORR requires PRS
providers to re-evaluate the child's level of care, stating monthly
evaluations are adequate unless the PRS provider anticipates
significant changes and recommended ORR provide examples of factors PRS
providers should consider when deciding the frequency of contact. A few
separate commenters expressed concern about having different
assessments for PRS providers, stating each provider will have varying
definitions of cases that merit Level One, Two, or Three PRS and
recommended uniform assessments.
Further, a commenter recommended ORR require that Level Three PRS
include weekly contact for 45-60 days, or longer if necessary. Another
commenter recommended extending the proposal that PRS providers make at
least monthly contact, either in-person or virtually, for six months
after release to all unaccompanied children and their sponsors
regardless of the PRS Level because it allows PRS providers to
regularly assess level of care. One commenter recommended that all
children and sponsors who would like a PRS case manager have access to
one for at least six months, including in-home visits if desired.
Response: ORR thanks the commenters for their support,
recommendations, and concerns. As stated above, in this final rule, ORR
is not codifying standards related to differing levels of PRS. Rather,
ORR has updated its PRS policies to describe three levels of PRS in
alignment with ORR's discussion in the preamble to the NPRM (88 FR
68934 through 68935).
Additionally, in this final rule, ORR is revising Sec.
410.1210(a)(3) to require ORR to make an initial determination of the
level and extent of PRS, if any, based on the needs of the
unaccompanied child and the sponsor and the extent appropriations are
available. ORR is clarifying at Sec. 410.1210(a)(3) that PRS providers
may conduct subsequent assessments based on the needs of the
unaccompanied child and the sponsor that may result in a modification
to the level and extent of PRS assigned. ORR notes that these revisions
are aligned with its updated PRS policies, which specify additional
guidance on the assessment requirements. As ORR continues to make
refinements to its PRS policies and will take into consideration the
commenters' concerns and recommendations to inform that process.
Comment: One commenter recommended that when PRS providers
discharge children and their sponsors from PRS, the PRS providers
should connect the children and sponsors to local community-based
organizations to ensure an established support network and readily
accessible services if needed.
Response: ORR thanks the commenter for the recommendation and notes
that PRS providers refer unaccompanied children and sponsors to
community resources pursuant to Sec. 410.1210(f), as recommended by
the commenter. Further, ORR expects that even if ORR-funded PRS cease,
unaccompanied children and sponsors referred to such community
resources may continue receiving services from those resources.
However, ORR will monitor implementation of this final rule and
consider this recommendation for future policymaking in this area as
appropriate.
Comment: A few commenters recommended non-parent sponsors have
access to PRS. These commenters stated non-parent sponsors should
receive PRS because they may need assistance with enrolling children
into school or daycare, obtaining medical treatment for the children,
securing signed power of attorney forms from parents, complying with
educational and medical consent laws, and/or securing court orders of
custody or guardianship.
Response: ORR clarifies that Sec. 410.1210 does not limit PRS to
only parent sponsors and uses the term ``sponsor'' to include all types
of sponsors.
Comment: A number of commenters expressed concern that ORR does not
know the whereabouts of a large number of unaccompanied children
released from its care, with some recommending a formal audit and
investigation into the children's whereabouts before finalizing the
rule. Additionally, several commenters expressed concern about
following up with released children to ensure their safety and well-
being. A few commenters expressed concern about the lack of ORR follow-
up after a child has been released to a sponsor, with some commenters
emphasizing the need to hold sponsors accountable in cases where they
violate the terms of the Sponsor Agreement or abuse, neglect, or
traffic children. Another commenter expressed their view that ORR
conducts minimal follow-up on releases and the proposed rule would make
follow-up discretionary. A few commenters recommended the Government
check in on children after release, and one commenter recommended more
routine and frequent checks to ensure the safety and well-being of
released children. Another commenter recommended the Government
physically check on the children through unannounced visits several
times per year and coordinate with local law enforcement. One commenter
recommended ORR document follow-ups with children after they are
released.
Response: ORR understands that concerns that ORR does not know the
whereabouts of a large number of unaccompanied children was in
reference to media reporting regarding children with whom ORR was
unable to make direct contact during follow-up calls after they were
released from ORR custody. Although ORR's custodial authority ends when
a child is released from ORR care, ORR has the authority under the
TVPRA at 8 U.S.C. 1232(c)(3)(B) to conduct follow-up services for
unaccompanied children.
Pursuant to Sec. 410.1203(c), a sponsor agrees to provide for an
unaccompanied
[[Page 34480]]
child's physical and mental well-being, ensure the child's compliance
with DHS and immigration court requirements, adhere to Federal and
applicable State child labor and truancy laws, and notify appropriate
authorities of a change of address, among other things. ORR has
policies in place to promote unaccompanied children's safety and well-
being after they have been released from ORR care to the sponsor. For
example, as provided in Sec. 410.1210(a)(2) and (3), ORR provides PRS
to certain unaccompanied children, and subject to available funds, all
unaccompanied children are eligible for PRS. Additionally, under
existing ORR policies, ORR care provider facilities are required to
make at least three SWB calls to speak with the child and sponsor
individually to determine if the child is still residing with the
sponsor, enrolled or attending school, aware of any upcoming court
dates, and otherwise safe, as well as to assess if either the child or
the sponsor would benefit from additional support or services. Although
many sponsors and children may choose not to answer a call from an
unknown phone number or because they may be fearful of Government
entities, or they may simply miss the call, in FY 2022, ORR care
provider facilities made contact with either the child, the sponsor, or
both in more than 81 percent of households. Additionally, some children
who have not answered a SWB call, have still been accounted for through
the provision of PRS, legal services, or the ORR NCC.
Further, ORR notes that its revised PRS policies describe
additional requirements for the frequency of on-going contact during
PRS, which varies based on the level, with in-person visits required
for Levels Two and Three PRS.\224\ Additionally, pursuant to its
updated PRS policies, if PRS providers are unable to reach the child
and sponsor, and there is a safety concern related to potential child
abuse, maltreatment, or neglect, PRS providers must follow the mandated
reporting guidelines for the locality in which they are providing
services, which may involve contacting local law enforcement and
requesting a well-being check on the child, in addition to submitting a
NOC. Finally, ORR will monitor the implementation of the regulations.
If additional protections are needed for unaccompanied children after
release, ORR will take the commenters' recommendations into
consideration for future policymaking.
Comment: One commenter recommended ORR hold monthly listening
sessions with at least one representative from each PRS provider so
that providers could provide feedback on ORR policy changes and inform
ORR on potential issues that could impact the proposed policies.
Additionally, this commenter recommended ORR solicit feedback in
formats such as surveys, questionnaires, and digital suggestion boxes,
and ORR timely respond to this feedback.
Response: ORR regularly engages with PRS providers, including
through ORR staff assigned to liaise with and oversee PRS providers.
Further, although the recommendation that ORR hold monthly listening
sessions with at least one representative from each PRS provider is
outside the scope of this final rule, ORR will take it into
consideration for future policymaking.
Comment: A commenter recommended ORR require a formal review
conducted by an independent party within the first six months after
release to assess the sponsor's ability and willingness to care for the
released child until the child reaches age 18.
Response: This recommendation would represent a significant change
from PRS as contemplated in the NPRM, and is outside the scope of this
final rule. Nevertheless, ORR will take this into consideration for
future policymaking regarding PRS.
Comment: A commenter supported ORR's updates to its PRS policies to
allow children to continue to receive PRS if the child's sponsor
chooses not to continue. This commenter recommended ORR create
guidelines to ensure an unaccompanied child can make meaningful and
confidential decisions about receiving PRS when the sponsor has decided
not to participate and to include protections PRS providers will follow
to ensure they safely and confidentially maintain contact with the
child. Further, this commenter recommended ORR issue specific
regulations requiring the recorded affirmative participation of
unaccompanied children in the decision-making process to receive PRS.
Lastly, the commenter recommended the guidelines be consistent with the
applicable State and Federal law.
Response: ORR thanks the commenter for the support of its updated
PRS policies. With respect to the recommendation that ORR create
guidelines to ensure that unaccompanied children can make meaningful
and confidential decisions about receiving PRS when the sponsor has
decided not to participate, and to describe requirements on PRS
providers in such situations, ORR wishes to clarify that unaccompanied
children can continue to receive PRS even when sponsors, who are not
parents or legal guardians, choose not to, and ORR is codifying this at
Sec. 410.1210(h)(3).
With respect to the recommendation that ORR issue specific
regulations requiring the recorded affirmative participation of
unaccompanied children in the decision-making process to receive PRS,
and that such guidelines be consistent with applicable State and
Federal law, ORR declines to implement the recommendation in this final
rule. However, ORR will consider reviewing its revised PRS policies to
determine how it would implement this recommendation, as well as the
burden of implementing it, to inform future policymaking.
Comment: One commenter expressed concern that there are no
penalties for PRS providers failing to meet the requirements in Sec.
410.1210.
Response: ORR did not propose penalties in the NPRM, and has not
incorporated them in this final rule, because it does not intend 45 CFR
410 to govern or describe the entire UC Program. ORR notes that all its
grantees both agree to abide by ORR regulations and policies, but are
also subject to requirements set forth at 45 CFR part 75.\225\ Further,
ORR notes that its revised PRS policies specify other follow-up and
corrective actions that ORR may take if a PRS provider is found to be
out of compliance with ORR policies or procedures, and ORR will
communicate the concerns in writing to the Program Director or
appropriate person through a written monitoring or site visit report,
with corrective actions and child welfare best practice
recommendations.\226\
Final Rule Action: After consideration of public comments, ORR is
making the following modifications to Sec. 410.1210. ORR is revising
the first sentence of proposed Sec. 410.1210(a)(2) to state, ``ORR
shall offer post-release services (PRS) for unaccompanied children for
whom a home study was conducted pursuant to Sec. 410.1204.'' ORR is
revising the end of the first sentence of Sec. 410.1210(a)(3) to
state, ``ORR may offer PRS for all released children.'' ORR is revising
the second sentence of Sec. 410.1210(a)(3) to state, ``ORR may give
additional consideration, consistent with paragraph (c), for cases
involving unaccompanied children with mental health or other needs who
could particularly benefit from ongoing assistance from a community-
based service provider, to prioritize potential cases as needed.'' ORR
is revising the beginning of the third sentence of Sec. 410.1210(a)(3)
to state, ``ORR shall make an initial determination of the level . .
.'' ORR is adding a sentence to
[[Page 34481]]
the end of Sec. 410.1210(a)(3) to state, ``PRS providers may conduct
subsequent assessments based on the needs of the unaccompanied children
and the sponsors that result in a modification to the level and extent
of PRS assigned to the unaccompanied children.'' ORR is revising Sec.
410.1210(b)(1), (4), and (6) to add ``and unaccompanied children''
after ``sponsors.'' ORR is revising the first sentence of Sec.
410.1210(b)(3) to add ``and unaccompanied child'' after ``sponsor.''
ORR is revising the first sentence of Sec. 410.1210(b)(5) to add
``shall assist the sponsors and unaccompanied children'' after ``with
school enrollment and . . .'' Due to a drafting error, ORR is revising
the second sentence of Sec. 410.1210(b)(5) to state ``exceed the
State's maximum age requirement for mandatory school attendance.'' ORR
is revising the first sentence of Sec. 410.1210(b)(8) to add ``and
unaccompanied child'' after ``sponsor.'' ORR is revising Sec.
410.1210(b)(9), (10), and (11) to add ``and unaccompanied child'' after
``sponsor.'' ORR is revising Sec. 410.1210(b)(12) to add at the end of
the sentence ``or sponsor.'' ORR is revising the paragraph heading for
Sec. 410.1210(c) to state ``Additional considerations for prioritizing
the provision of PRS.'' ORR is revising Sec. 410.1210(c) to state
``ORR may prioritize referring unaccompanied children with the
following needs for PRS if appropriations are not available for it to
offer PRS to all children: . . .'' ORR is revising Sec. 410.1210(c)(3)
to state ``Unaccompanied children who identify as LGBTQI+.'' ORR is not
finalizing Sec. 410.1210(e)(2) as proposed in the NPRM, and as a
result, is updating the numbering for proposed Sec. 410.1210(e)(3) and
finalizing it as Sec. 410.1210(e)(2). ORR is revising Sec.
410.1210(g)(1) to state ``For a released unaccompanied child who is
required under the TVPRA at 8 U.S.C. 1232(c)(3)(B) to receive an offer
of PRS . . . PRS shall, to the greatest extent possible, start no later
than 30 days after release.'' ORR is revising Sec. 410.1210(g)(2) to
state ``. . . but is not required to receive an offer of PRS following
a home study . . .'' ORR is revising Sec. 410.1210(h)(1) to state
``For a released unaccompanied child who is required to receive an
offer of PRS under the TVPRA at 8 U.S.C. 1232(c)(3)(B), PRS shall be
offered for the unaccompanied child until the unaccompanied child turns
18 or the unaccompanied child is granted voluntary departure, granted
immigration status, or the child leaves the United States pursuant to a
final order of removal, whichever occurs first.'' ORR is revising Sec.
410.1210(h)(2) to state ``For a released unaccompanied child who is not
required to receive an offer of PRS under the TVPRA at 8 U.S.C.
1232(c)(3)(B), but who receives PRS as authorized under the TVPRA, PRS
may be offered for the unaccompanied child until the unaccompanied
child turns 18, or the unaccompanied child is granted voluntary
departure, granted immigration status, or the child leaves the United
States pursuant to a final order of removal, whichever occurs first.''
ORR is adding Sec. 410.1210(h)(3) to state ``If an unaccompanied
child's sponsor, except for a parent or legal guardian, chooses to
disengage from PRS and the child wishes to continue receiving PRS, ORR
may continue to make PRS available to the child through coordination
between the PRS provider and a qualified ORR staff member.'' ORR is
revising Sec. 410.1210(i)(1) to remove ``keep'' and replace with
``maintain''. ORR is revising Sec. 410.1210(i)(3)(i) to remove
``sensitive.'' ORR is revising Sec. 410.1210(i)(3)(iii) to include at
the end, ``except for program administration purposes.'' ORR is
revising Sec. 410.1210(i)(5) to add Sec. 410.1210(i)(5)(iii) to state
``PRS providers must upload any relevant forms into ORR's case
management system within 30 calendar days of a case's closure.'' ORR is
otherwise finalizing the proposals as proposed.
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 a specified level of quality of those services,
ORR proposed in the NPRM a set of minimum standards and required
services (88 FR 68936 through 68952). ORR proposed in the NPRM 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 proposed at Sec. 410.1300,
the purpose of the 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 welcomed public comment on this proposal.
Comment: Although a few commenters supported ORR setting standards
for unaccompanied children, many commenters stated the standards in
subpart D fall short in addressing the full scope of unaccompanied
children's current needs and the standards do not align with present
demographics and short stays in ORR care.
Response: Regarding concerns that the standards do not align with
unaccompanied children's needs, in drafting the proposals, ORR reviewed
its current policies that describe the services care provider
facilities must provide to address the needs of unaccompanied children.
Additionally, in this final rule, ORR has taken into consideration the
additional feedback provided by commenters and finalized additional
provisions based on that feedback.
Comment: One commenter expressed the need for additional funding to
provide Indigenous language safeguards and assessment of minimum
standards relevant to Indigenous unaccompanied children in ORR's care.
Response: ORR believes that it is important to provide language
access services, including translation and interpretation for all
unaccompanied children, including Indigenous children, as well as
services designed to meet the individualized needs of unaccompanied
children in its UC Program. For this reason, ORR is finalizing
requirements at Sec. 410.1306 that standard programs and restrictive
placements must offer interpretation and translation services in an
unaccompanied child's native or preferred language.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1300 as proposed.
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. ORR
proposed in the NPRM, at Sec. 410.1301, to apply these
[[Page 34482]]
care provider facility standards to all standard programs and to non-
standard programs where specified (88 FR 68936).
Comment: Many commenters recommended that secure facilities should
be included within the scope of subpart D. These commenters believe
that requiring secure facilities to meet the required minimum services
proposed for other ORR care provider facilities will help to ensure
that these facilities are held to the same minimum standards of care.
Response: Because ORR believes that all unaccompanied children
should receive the same minimum services and at least a specified level
of quality of those services, ORR proposed in the NPRM a set of minimum
standards and required services tailored to particular placement
settings (88 FR 68936). ORR notes, however, that its existing practice
is to require secure facilities to apply the minimum standards required
in the FSA at Exhibit 1, which are implemented in this final rule at
subpart D. Therefore, in this final rule, ORR is revising Sec.
410.1301 to state that subpart D is applicable to standard programs and
secure facilities, as well as to other care provider facilities and PRS
providers where specified. ORR notes that it is not changing any
requirements that were proposed in the NPRM for PRS providers, and is
merely adding ``PRS providers'' to reflect requirements that were
previously specified. Notwithstanding this change to the final rule
text, to make subpart D applicable to secure facilities as a general
matter, ORR notes that under this final rule, secure facilities may be
subject to other standards that do not apply to standard facilities.
For example, as discussed in Sec. 410.1304(d) and Sec. 410.1304(e),
secure facilities that are not RTCs are subject to different standards
as compared to standard facilities and RTCs with respect to the use of
restraints (88 FR 68942). ORR believes that establishing requirements
in this way is consistent with its authorities under the TVPRA and HSA,
as well as the requirements under the FSA.
Final Rule Action: After consideration of public comments, ORR
modifying Sec. 410.1301 to state ``This subpart applies to all
standard programs and secure facilities. This subpart is applicable to
other care provider facilities and to PRS providers where specified.''
Section 410.1302 Minimum Standards Applicable to Standard Programs and
Secure Facilities
ORR proposed in the NPRM, at Sec. 410.1302, minimum standards of
care and services applied to standard programs (88 FR 68936 through
68939). These standards are consistent with the HSA and TVPRA, and
meet, and in some cases, exceed the minimum standards of care listed in
Exhibit 1 of the FSA, with the exception of considerations relating to
State licensing discussed below.
ORR proposed in the NPRM at Sec. 410.1302(a), to require that
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 (88 FR 68937). As discussed above, however proposed
Sec. 410.1302(a) has been revised in this final rule to provide that
if a standard program is located in a State that will not license care
provider facilities that care or propose to care for unaccompanied
children, such care provider facilities must nevertheless meet the
licensing requirements that would apply in that State if the State was
willing to license ORR facilities.
Additionally, because there are other State and local laws and
other ORR requirements that are critical to ensuring safe and sanitary
conditions at care provider facilities, ORR proposed in the NPRM at
Sec. 410.1302(b), to further require 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
(88 FR 68937). Again, in this final rule, even if a standard program is
located in a State that will not license care provider facilities that
care or propose to care for unaccompanied children, the facility must
comply with all State and local building, fire, health and safety
codes--in addition to other requirements if specified by ORR. The
proposed rule provided that 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. The NPRM also provided 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.\227\
In order to ensure that each unaccompanied child receives the same
minimum services that are necessary to support their safety and well-
being for daily living while in ORR care, ORR proposed in the NPRM, at
Sec. 410.1302(c), to establish the services that standard programs
must provide or arrange for each unaccompanied child in care (88 FR
68937). ORR proposed in the NPRM, at Sec. 410.1302(c)(1), to 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. In the NPRM, ORR also proposed 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
U.S. Department of Agriculture (USDA) Dietary Guidelines for
Americans,\228\ and appropriate for the child and activity level, and
that drinking water always be available to each unaccompanied child.
ORR notes that access to routine medical and dental care, and other
forms of healthcare described in the FSA at Exhibit 1 paragraph 2 were
set forth at Sec. 410.1307 of the NPRM, and will be codified in that
section for purposes of this final rule.
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, ORR proposed in the NPRM, under Sec.
410.1302(c)(2), and consistent with ORR's existing policy and practice,
to 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 (88 FR 68937).
ORR noted that the use of ``special needs'' in this
[[Page 34483]]
paragraph is being included to match Appendix 1 of the FSA; it was
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 ORR solicited 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. ORR
proposed in the NPRM, at Sec. 410.1302(c)(3), to require standard
programs to provide educational services appropriate to the
unaccompanied child's level of development, communication skills, and
disability, if applicable (88 FR 68937). 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 also proposed that
educational services be 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 noted 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
specified 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 well-being of unaccompanied children. ORR
proposed in the NPRM, at Sec. 410.1302(c)(4), to require standard
programs to have a recreation and leisure time plan that includes daily
outdoor activity, weather permitting, and at least 1 hour per day of
large muscle activity and 1 hour per day of structured leisure time
activities, which does not include time spent watching television (88
FR 68937). Activities must be increased to at least three hours on days
when school is not in session.
Psychological and emotional well-being are important components of
the overall health and well-being of unaccompanied children, and
therefore, consistent with existing policy and practice, ORR proposed
in the NPRM that these needs must be met by standard programs. ORR
proposed in the NPRM at Sec. 410.1302(c)(5) to require 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
(88 FR 68937 through 68938). Group counseling sessions are another way
that the psychological and emotional well-being of unaccompanied
children can be supported while in ORR care. Therefore, ORR proposed in
the NPRM 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 noted 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.
ORR proposed in the NPRM at Sec. 410.1302(c)(7) to 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 (88 FR 68938). 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 therefore proposed to require at Sec.
410.1302(c)(8)(i) of the NPRM that upon admission, standard programs
must address unaccompanied children's immediate needs for food,
hydration, and personal hygiene, including the provision of clean
clothing and bedding (88 FR 68938). At Sec. 410.1302(c)(8)(ii), ORR
proposed in the NPRM that standard programs must conduct an initial
intakes assessment covering the 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
[[Page 34484]]
Ombuds that were proposed in Sec. 410.2002 in simple, non-technical
terms and in a language and manner that the child understands, if
possible, under Sec. 410.1302(c)(8)(iii) of the NPRM. In conjunction
with services supporting visitation and contact with family members
required under Sec. 410.1302(c)(10), ORR proposed that newly admitted
unaccompanied children 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) of the NPRM.
ORR noted that medical needs upon admission are required to be assessed
comprehensively under Sec. 410.1307. Finally, in the NPRM, ORR noted
that standard programs are required under 45 CFR 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, at Sec. 410.1302(c)(9) of the NPRM ORR proposed to require
that standard programs, whenever possible, provide access to religious
services of an unaccompanied child's choice, celebrate culture-specific
events and holidays, are culturally aware in daily activities as well
as food menus, choice of clothing, and hygiene routines, and cover
various cultures in educational services (88 FR 68938). ORR noted 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.\229\
Under Sec. 410.1302(c)(10) of the NPRM, ORR proposed to require
standard programs provide unaccompanied children with visitation and
contact with family members (regardless of their immigration status),
structured to encourage such visitation, such as offering visitation
and contact at regular, scheduled intervals throughout the week (88 FR
68938). As proposed in the NPRM, 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 emphasized 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 video calls. Standard
programs would also be required to respect an unaccompanied child's
privacy during visitation while reasonably preventing unauthorized
release of the child. ORR noted that standard programs should also
encourage in-person visitation between unaccompanied children and their
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 Sec. 410.1302(c)(11) of the NPRM,
ORR proposed to require standard programs to assist 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 children.
Under Sec. 410.1302(c)(12) of the NPRM, ORR proposed to require
standard programs to provide unaccompanied children with information on
legal services, including the availability of free legal assistance and
notification 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
removal (88 FR 68939). These services are foundational to ensuring that
unaccompanied children are aware of their legal rights and have access
to legal resources.
Finally, under Sec. 410.1302(c)(13) of the NPRM, ORR proposed to
require standard programs provide information about U.S. child labor
laws and permissible work opportunities in a manner that is sensitive
to the age, culture, and native language of each unaccompanied child
(88 FR 68939).
Cultural competency among ORR standard programs is considered an
important component of a successful program by ORR and under the FSA.
Under Sec. 410.1302(d) of the NPRM, ORR proposed that standard
programs would be 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 (88 FR
68939).
Finally, under Sec. 410.1302(e) of the NPRM, ORR proposed that
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 (88 FR 68939). 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, ORR proposed in the
NPRM that 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. As
proposed in the NPRM, Sec. 410.1302(e) would also require that
individual plans be in the 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
checking for understanding where appropriate.
As discussed in response to public comments received at Sec.
410.1301 and ORR's revision to apply subpart D to secure facilities,
ORR is revising Sec. 410.1302 to specify that ``standard programs and
secure facilities'' shall deliver the minimum standards and services
within this section. ORR is accordingly revising the section title of
Sec. 410.1302 to ``Minimum standards applicable to standard programs
and secure facilities.'' Further, for consistency, ORR is revising
Sec. 410.1302(c)(10) to remove the reference to standard programs.
Before proceeding to specific comments on Sec. 410.1302, ORR would
like to discuss a key issue raised by commenters relating to this
section, where ORR has made important revisions in response to these
comments. Section 410.1001 replaces the term ``licensed program'' used
in the FSA with the term ``standard program.'' The NPRM had specified
that standard program means ``any program, agency, or organization that
is licensed by an
[[Page 34485]]
appropriate State agency, or that meets other requirements specified by
ORR if licensure is unavailable in the State to a program 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.'' (88 FR 68982). As stated in the
preamble to the NPRM, the proposed definition of ``standard program''
was broader in scope than the FSA definition of ``licensed placement''
to account for circumstances where State licensure is unavailable to
ORR care provider facilities in a State because the facility cares for
unaccompanied children (88 FR 68915 through 68916). Several commenters
expressed concern that the proposed language ``or that meets other
requirements specified by ORR'' was not sufficiently specific or clear
and could lead to allowing programs to avoid licensure requirements
even in a State where licensing is available. In response, ORR is
revising its requirement under Sec. 410.1302(a) to make clear that if
a standard program is in a State that does not license care provider
facilities because they serve unaccompanied children, the standard
program must still meet the State licensing requirements that would
apply if the State allowed for licensure. Similarly, ORR is revising
Sec. 410.1302(b) to remove references to other additional requirements
specified by ORR if licensure is unavailable in their State to care
provider facilities providing care and services to unaccompanied
children. ORR notes that it has revised Sec. 410.1302 to require
standard programs and secure facilities meet the requirements of that
section but is not including secure facilities in the discussion here
of State licensure because no State has ceased licensing secure
facilities that care for or propose to care for unaccompanied children.
The FSA requires placement of unaccompanied children in State-
licensed facilities, subject to certain exceptions, a goal that ORR has
long shared.\230\ The FSA also requires ORR to make ``reasonable
efforts'' to place unaccompanied children in ``those geographical areas
where the majority of minors are apprehended, such as southern
California, southeast Texas, southern Florida and the northeast
corridor.'' \231\ For most of the years in which the UC Program has
operated since the program came to ORR in 2003, there was no tension
between these requirements. In fact, over the last two decades, ORR
built a large share of its care provider facility network in Texas,
Florida, and California, consistent with the FSA requirement that
unaccompanied children be placed in areas where the majority of minors
are apprehended. Today, Texas represents at least half of all UC
Program bed capacity.
On May 31, 2021, the Governor of the State of Texas issued a
proclamation 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
[unaccompanied children] under a contract with the Federal
government.'' \232\ Subsequently, HHSC exempted ORR care provider
facilities from the State's licensing requirements.\233\ Four months
later, the Governor of the State of Florida issued an Executive Order
that directed the Florida Department of Children and Families (DCF) to
de-license ORR care provider facilities.\234\ Accordingly, DCF then de-
licensed ORR's care provider facilities. These actions were historic
and unforeseen; never have States not licensed child-care facilities
simply because they serve migrant youth. Since then, ORR has
significantly enhanced monitoring of care provider facilities in Texas
and Florida and has required that care provider facilities in those
States continue to abide by the State licensing standards. ORR,
however, has not stopped placements in those States. As a practical
matter, ORR cannot currently operate the UC Program without using care
provider facilities in Texas and Florida.
ORR also notes that on April 12, 2021, the Governor of South
Carolina issued an Executive Order that ``prevent[s] placements of
unaccompanied migrant children . . . into residential group care
facilities or foster care facilities located in, and licensed by, the
State of South Carolina.'' \235\ At the time, ORR did not operate any
shelter facilities in South Carolina. ORR currently operates three
transitional foster care facilities in South Carolina that remain
licensed by the State.
In 2021 when Texas and Florida de-licensed ORR care provider
facilities, ORR was also facing a significant increase in referrals of
unaccompanied children. Since 2021, annual referrals to ORR have been
in the range of 120,000 or more.\236\ As a result, it is now impossible
for ORR to accommodate 120,000 or more referred unaccompanied children
each year while also limiting placements to licensed programs in States
that agree to license ORR's care provider facilities.
Shuttering facilities in Texas and Florida would result in the loss
of the significant expertise that has been developed over decades in
many care provider facilities in Texas and Florida. New facilities may
not have staff that have worked with this population of children and
new facilities may not have the same cultural competency that
longstanding facilities in Texas and Florida offer. Moreover, the vast
majority of unaccompanied children are apprehended at the Southwest
border, usually along the Texas-Mexico border. Shuttering facilities in
Texas, in particular, would lead to longer wait times for unaccompanied
children in DHS custody because the children would need to be
transported much longer distances. And in fiscal year 2023, nearly one-
quarter of all releases of unaccompanied children was to sponsors in
Texas and Florida; \237\ ceasing to operate programs in those States
would be enormously disruptive to efforts to promptly place children
with their parents or other appropriate sponsors.
Although ORR has not stopped placements in Texas and Florida, it
continues to look for ways to expand its capacity in States other than
Texas and Florida. However, ORR cannot maintain needed capacity to
receive referrals of unaccompanied children and find shelter for them
without continued reliance on Texas and Florida.
In the meantime, ORR is committed to ensuring that the protections
afforded through State licensing continue to be provided to
unaccompanied children placed in ORR's care provider facilities in
Texas and Florida. ORR is currently providing enhanced monitoring of
its care provider facilities in Texas and Florida to ensure that they
are in compliance with FSA Exhibit 1 and ORR's policies. Enhanced
monitoring includes on-site visits and desk monitoring. In the final
rule, ORR has committed to continuing this enhanced monitoring by
requiring at new Sec. 410.1303(e) (as redesignated) that ORR will
provide enhanced monitoring of standard programs in States that do not
allow State-licensing of programs providing care and services to
unaccompanied children, and of emergency or influx facilities.
ORR also notes that under the terms and conditions of their Federal
grants, unless waived by ORR, standard programs agree to obtain
accreditation by a nationally recognized accreditation organization
approved by ORR. Accreditation requires organizations to regularly
demonstrate on an ongoing basis that their organization adheres to
established best practice standards for
[[Page 34486]]
all levels of organizational operations. This includes governance and
management, financial operations, risk management, performance and
quality improvement, and policy. It also includes best practice
standards for each type of service an organization provides and the
staffing associated with that service (i.e., foster care, homes
studies, staff/child ratios, caseload size, training, supervisory
ratios). The organization completes an extensive initial ``self-study''
assessing itself against these best practice standards, and then the
accrediting body reviews it, and conducts a week-long site visit using
peer reviewers to assess true implementation of the standards
themselves. For each renewal cycle, the organization updates its self-
assessment, assuring any updates to best practice standards are
incorporated into their operations, and again undergoes a lengthy peer
review site visit. Generally speaking, licensing standards are viewed
as ``minimum basic standards'' and accreditation is a seal of
excellence that indicates an organization is committed to implementing
and sustaining the implementation of best practices in their field
(i.e., child welfare, mental health, residential treatment, etc.).
Accreditation organizations recognized by ORR include the Council on
Accreditation (COA), the Joint Commission (TJC), the Commission on
Accreditation of Rehabilitation Facilities (CARF), and the American
Correctional Association (ACA). As an explicit requirement under
standard programs' grants, ORR monitors for compliance with this
requirement, pursuant to Sec. 410.1303; further, failure to maintain
accreditation may subject standard programs to enforcement actions,
including remedies for noncompliance as described at 45 CFR 75.371.
The language in this final rule pertaining to ``standard'' programs
is intended to reflect the substantially changed circumstances since
the parties entered into the FSA. When the parties entered into the FSA
in 1997, the number of unaccompanied children entering federal custody
was less than 3,000, and the agreement contemplated the availability of
State licensure at facilities serving unaccompanied children. As noted
above, in recent years the number of referrals to ORR has been around
120,000 a year, and it would be impossible to operate the program, at
least for the foreseeable future, without programs in the States that
now do not license facilities that serve unaccompanied children.
Accordingly, ORR has adjusted by requiring programs in those States to
continue to meet their State licensing standards and by substantially
enhancing monitoring of facilities in those states. ORR continues to
believe it would be preferable if all States continued to license
facilities serving unaccompanied children, but ORR believes the actions
it has taken are necessary adjustments to these changed circumstances.
To be clear, under this final rule, standard programs must be
State-licensed if State licensure is available in their State; or if
State licensure is not available, standard programs must meet the
State's licensing requirements. This requirement replaces the NPRM's
reference to ``other requirements specified by ORR'' at Sec.
410.1302(a) and ``other additional requirements'' at Sec. 410.1302(b).
Comment: ORR received several comments that objected to its
proposal to use the term ``standard program,'' as defined at proposed
Sec. 410.1001, instead of ``licensed program,'' as defined in the FSA.
In particular, some commenters asserted that State licensure is a
material requirement of the FSA and that the proposed rule did not
fully incorporate the FSA's State-licensing requirement by allowing
care providers to ``meet[ ] other requirements specified by ORR if
licensure is unavailable in the State.'' These same commenters asserted
that the final rule must reintroduce a State licensing requirement in
every provision where the FSA requires State-licensed placement.
Commenters also stated that proposed Sec. 410.1302(a) and Sec.
410.1302(b) appeared to allow programs to avoid State licensing
requirements, even in States that have a licensing framework available,
which is inconsistent with the State licensing requirement of the FSA.
Two commenters expressed concern that removing the State licensure
requirement would relax the minimum standards for the care and
placement of unaccompanied children.
Response: ORR refers readers to the previous discussion of licensed
placements in the preamble. As explained, ORR must have a framework
that allows for placements in States that do not license facilities
because they serve unaccompanied children. ORR notes that by codifying
the term ``standard program,'' instead of ``licensed program'' as used
in the FSA, ORR does not intend for, and the final rule does not
permit, care provider facilities to avoid State licensure requirements.
ORR reiterates that in response to the comments received, ORR is
revising its requirement under Sec. 410.1302(a) to make clear that if
a standard program is in a State that does not license care provider
facilities because they serve unaccompanied children, the standard
program must still meet the State licensing requirements that would
apply if the State allowed for licensure.
Comment: A group of commenters recommended that ORR revise Sec.
410.1302(b) to read ``(b) Comply with all applicable State child
welfare laws, regulations, and standards, all State and local building,
fire, health, and safety codes, and other requirements specified by ORR
if licensure is unavailable in their State to care provider facilities
providing services to unaccompanied children.'' Several other
commenters expressed concern that proposed Sec. 410.1302(b) did not
require standard programs to follow State child welfare laws and State
and local building, fire, health, and safety codes. The same commenters
also expressed concern that the proposed rule included several Federal
preemption provisions, including in proposed Sec. 410.1302(b), and
these provisions could be interpreted broadly to give ORR discretion to
ignore State licensing requirements if the agency perceives a conflict
with State law.
Response: ORR has revised Sec. 410.1302(b) to clarify that all
standard programs and secure facilities must comply with child welfare
laws and regulations (such as mandatory reporting of abuse) and all
State and local building, fire, health, and safety codes. However, ORR
is not adding reference to ``standards'' in this final rule because it
believes ``standards'' are included within its references to ``laws and
regulations'' as well as ``codes.''
The intent of the language commenters referred to as a Federal
preemption provision had been intended to convey that if a State took
action to reduce or curtail protections of unaccompanied children under
Federal law, ORR would take needed actions to ensure that Federal
protections were preserved. However, in reviewing comments, it became
clear to ORR that that intent had not been effectively conveyed, and in
the interest of clarity, ORR has also removed the Federal preemption
statement from the final rule at Sec. 410.1302(b).
Comment: Several commenters stated that because the proposed rule
did not include a preference for State-licensed placements over
unlicensed placements, Sec. 410.1103(e) may be read as prioritizing
unlicensed placements in Texas over licensed placements in other
geographic areas, which undermines the purpose of paragraph 6 of the
FSA. Another commenter noted that facilities in States
[[Page 34487]]
without a licensing requirement could make more competitive bids due to
potentially lower operating expenses, lower-cost environments, and the
ability to provide more beds. The commenter expressed concern that ORR
might also expand existing programs in States that no longer license
ORR care provider facilities for those same reasons. One commenter also
highlighted that facilities may opt-out of State licensure because of
perceived burdens, additional requirements, or higher operating costs.
This commenter was also concerned that ORR would treat State licensure
and the ``other standards'' described in the NPRM as functionally
equivalent, and that this construction would allow latitude for care
provider facilities to meet the lowest of the available standards,
including unlicensed care provider facilities in States that do offer
licensure to facilities caring for unaccompanied children. Further,
several commenters stated that requiring State licensure, in addition
to FSA compliance, would ensure that State and local licensing agencies
are able to monitor ORR facilities.
Response: ORR appreciates the commenters' concerns and reiterates
its commitment to ensuring that all standard programs comply with State
licensing requirements, as required in Sec. Sec. 410.1302(a) and (b),
whether or not specific States will license programs that serve
unaccompanied children. Thus, all standard programs are similarly
situated in that they are required under the final rule to comply with
State licensing requirements. Also, consistent with paragraph 6 of the
FSA, ORR has revised Sec. 410.1103(e) to require ORR to ``make
reasonable efforts to provide licensed placements in those geographical
areas where DHS encounters the majority of unaccompanied children.''
Moreover, ORR is providing enhanced monitoring of its care provider
facilities in Texas and Florida to ensure that they are in compliance
with ORR's policies. In lieu of its regular monitoring of each facility
every two years, ORR is currently providing enhanced monitoring of its
care provider facilities in Texas and Florida to ensure that they are
in compliance with FSA Exhibit 1 and ORR's policies. Enhanced
monitoring may include on-site visits and desk monitoring. In the final
rule, ORR has committed to continuing this additional monitoring by
requiring at Sec. 410.1303(e) (as redesignated) that ORR will provide
enhanced monitoring of standard programs in States that do not allow
State-licensing of programs providing care and services to
unaccompanied children, and of emergency or influx facilities. ORR
notes that this enhanced monitoring makes it more expensive and
resource-intensive for ORR to operate programs in Texas and Florida,
not less.
Comment: Multiple commenters recommended that ORR enhance its care
provider staff training requirements to require training that ensures
services are provided to unaccompanied children in a child-friendly,
trauma-informed way. Several commenters also recommended that staff who
conduct individualized assessments under Sec. 410.1302(c)(2) be
trained in trauma-informed practices. One commenter recommended that
those staff also be trained professionals in medical and mental
healthcare so that they can make referrals for appropriate services.
Finally, one commenter suggested that ORR expressly require programs to
provide services in a way that recognizes a child's culture and
identity.
Response: Section 410.1302(d) requires that standard programs and
secure facilities provide services in a way that is sensitive to the
unaccompanied child's age, culture, native or preferred language, and
their complex needs. Also, ORR is requiring at Sec. 410.1305(a) that
standard programs, restrictive placements, and post-release service
providers provide training to staff, contractors, and volunteers that
is tailored to the unique needs, attributes, and gender of
unaccompanied children. The training also must be responsive to the
challenges faced by staff and unaccompanied children. ORR agrees with
commenters that staff, contractors, and volunteers should be trained in
trauma-informed practices and intends for the training requirement to
require training to provide services and individualized assessments in
a trauma-informed manner. Additionally, ORR expects that training
topics will include how to provide services in a child-friendly way and
how to effectively communicate with unaccompanied children. ORR notes
that it included a training requirement for standard programs and
restrictive placements to ensure that staff are appropriately trained
on behavior management strategies, including de-escalation techniques,
as a proposed requirement in the preamble discussion of Sec. 410.1304
(88 FR 68942) and Sec. 410.1305(a) (88 FR 68943), but the training
requirement was omitted in error in the regulation text of Sec.
410.1305(a). Therefore, ORR is finalizing the requirement under Sec.
410.1305(a) that ``Standard programs and restrictive placements shall
ensure that staff are appropriately trained on its behavior management
strategies, including de-escalation techniques, as established pursuant
to Sec. 410.1304.'' ORR is not, however, specifying other training
topics in the final rule but may do so in subregulatory guidance, which
will allow ORR to make more frequent, iterative updates to its training
requirements in order to ensure that training remains up to date on
best practices and is responsive to changing needs of unaccompanied
children in ORR custody.
Comment: Several commenters recommended that ORR provide a minimum
standard requirement that recognizes an unaccompanied child's
reasonable right to privacy and autonomy. Several commenters asserted
that proposed Sec. 410.1302(c) lacks a guarantee of a reasonable right
to privacy as required by the FSA. They pointed out that Exhibit 1 of
the FSA includes ``the right to: (a) wear his or her own clothes, when
available; (b) retain a private space in the residential facility,
group or foster home for the storage of personal belongings; (c) talk
privately on the phone, as permitted by the house rules and
regulations; (d) visit privately with guests, as permitted by the house
rules and regulations; and (e) receive and send uncensored mail unless
there is a reasonable belief that the mail contains contraband.'' They
noted that proposed rule Sec. 410.1801(b)(12) included this
requirement for children placed in EIFs, but proposed rule Sec.
410.1302(c) did not include this requirement for standard programs.
Response: ORR agrees with the commenters that the FSA requires that
unaccompanied children have a reasonable right to privacy, and ORR
agrees that ensuring a reasonable right to privacy is appropriate as a
matter of policy. ORR is therefore revising the final rule, consistent
with Exhibit 1 of the FSA, to additionally require at Sec.
410.1302(c)(14) that unaccompanied children must 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, and receive and send
uncensored mail unless there is a reasonable belief that the mail
contains contraband.
Comment: Several commenters recommended further ways to strengthen
the minimum services required under proposed Sec. 410.1302(c). Several
commenters recommended that ORR incorporate minimum physical
[[Page 34488]]
space requirements as applicable to standard programs. Several
commenters expressed support for requiring that unaccompanied children
receive weekly individual counseling sessions. One commenter
recommended that care provider facilities should be required to ensure
all unaccompanied children have access to mental health services. One
commenter supported the proposed requirement that upon admission,
standard programs must address unaccompanied children's immediate needs
for food, hydration, and personal hygiene, and recommended that ORR
specify that this includes feminine hygiene products.
Response: As an initial matter, except as to the licensing
requirements previously discussed, the final rule fully incorporates
the minimum standards of care and services required in Exhibit 1 of the
FSA. ORR has also exceeded those minimum standards. For example, ORR
requires at Sec. 410.1302(c) that unaccompanied children must be
provided with personal grooming and hygiene items, access to toilets
and sinks, adequate temperature control and ventilation, and adequate
supervision. Additionally, the final rule requires that food be of
adequate variety, quality, and in sufficient quantity to supply the
nutrients needed for proper growth and development and that water be
always available to each unaccompanied child. Related to physical space
requirements, ORR agrees that it is important that children have access
to outdoor and indoor spaces that allow them to exercise, socialize,
and move freely. ORR notes that the requirement of weekly counseling is
a minimum requirement, and that group counseling is also available to
support the needs of unaccompanied children. Further, Sec. 410.1307(a)
requires that unaccompanied children have access to appropriate routine
medical care, which includes access to mental healthcare. And under
Sec. 410.1307(b)(1), ORR requires standard programs and restrictive
placements to establish a network of licensed healthcare providers,
which must include mental health practitioners. While ORR notes that
the requirement to provide for immediate personal hygiene needs
includes the provision of feminine hygiene products, ORR is revising
Sec. 410.1302(c)(1) to explicitly state these items and other items as
follows: ``. . . personal grooming and hygiene items such as soap,
toothpaste and toothbrushes, floss, towels, feminine care items, and
other similar items.''
Comment: Many commenters proposed ways that ORR could enhance its
requirements related to how unaccompanied children communicate with
their families. One commenter recommended that ORR require standard
programs to provide unaccompanied children with an individualized case
management plan that includes family finding and outreach services.
Several commenters identified that the proposed phone call requirements
in Sec. 410.1302(c)(10) have been superseded by policy changes to
require daily minimum 10-minute calls Monday through Friday (or 50
minutes of phone time throughout the weekdays), as well as 45-minute
calls on weekends, holidays, and the child's birthday, and additional
calls as needed in exceptional circumstances. One commenter supported
the proposed requirement that unaccompanied children be provided at
least 15 minutes of phone or video contact three times a week with
family members, and that this should be a minimum requirement, as daily
contact is ideal. One commenter expressed support for the proposed
rule's specific mention of in-person visitation as well as the
provision of a private space for communications. A few commenters
recommended that ORR codify visitation and communication standards that
apply to unaccompanied children who have parents, caregivers, or family
members in Federal custody. Finally, many commenters noted that the
ability to provide unaccompanied children with video contact may be
limited for security reasons.
Response: As an initial matter, ORR encourages and supports contact
between unaccompanied children and their families. ORR believes that
unaccompanied children should be assisted as soon as possible upon
their admission into ORR custody with contacting their family members
and has included in Sec. 410.1302(c)(8)(iv) a requirement that
unaccompanied children be assisted with contacting family members as
part of the admissions process. Also, ORR appreciates the commenters'
concerns that its current policy as reflected in the ORR Policy Guide
provides for more opportunities for phone calls than was specified in
the proposed regulation. ORR emphasizes that the requirements under
Sec. 410.1302(c)(10) are the minimum requirements that care provider
facilities must meet and that standard programs and secure facilities
may provide additional phone call time over and above this requirement,
such as daily phone or video calls or calls for a longer length of
time. ORR intends to continue to apply its subregulatory guidance to
require additional phone call time above the requirements of this part.
Also, ORR intends for Sec. 410.1302(c)(10) to apply to calls with
family members who may be in Federal custody. Finally, ORR notes that
care provider facilities may provide phone calls if video calls are not
feasible due to security concerns.
Comment: One commenter expressed concern that foster care
facilities, or ``long-term home care'' facilities as referenced in this
final rule, may not be able to meet the standards for standard
programs.
Response: ORR notes that the standards under this section are
consistent with its existing policies and procedures that are required
for long-term home care facilities, such that meeting the requirements
under this section will not pose an additional burden for care provider
facilities. ORR believes that all unaccompanied children in standard
programs and secure facilities should receive the same minimum services
and at least a specified level of quality of those services, and for
that reason is establishing the same minimum standards for all standard
programs and secure facilities.
Comment: Some commenters expressed concern that the NPRM
contemplated placement of unaccompanied children in OON placements,
which were not defined as meeting either State licensing or ``standard
program'' requirements. One commenter recommended that the final rule
must provide that any OON placement shall be State-licensed and meet
the other requirements for licensed facilities outlined in the FSA,
including the minimum standards in Exhibit 1. The same commenter
recommended that the final rule state that a child may be placed in an
OON placement only if it is in the least restrictive placement
appropriate, consistent with paragraph 11 of the FSA, and that any
secure OON placement must satisfy the secure placement criteria in
paragraph 21 of the FSA. One commenter recommended requiring that OON
facilities be State-licensed and comply with FSA minimum standards
requirements.
Response: As noted by the commenters, ORR is finalizing, at Sec.
410.1001, a definition of care provider facility that does not include
OON placements. ORR refers readers to the discussion in response to
comments at Sec. 410.1001. ORR further notes that under existing
policies, ORR thoroughly vets OON placements prior to placing
unaccompanied children at such placements. Moreover, the final rule
expressly provides that OON placements must be State licensed
[[Page 34489]]
under Sec. 410.1001. As part of its vetting of OON placements, ORR
conducts monitoring of OON placements to ensure they are in good
standing with State licensing authorities and are complying with all
applicable State child welfare laws and regulations and all State and
local building, fire, health, and safety codes.
Comment: Some commenters expressed concern that under the NPRM ORR
proposed to permit unlicensed placements of unaccompanied children
without safeguards established in the FSA at paragraph 12A (requiring
that ``minors shall be separated from delinquent offenders'').
Specifically, these commenters recommended that the final rule specify
that until an unaccompanied child is placed in a program licensed by
the State to provide services for dependent children, the child ``shall
be separated from delinquent offenders,'' consistent with paragraph 12A
of the FSA, except as provided in paragraph 21 of the FSA.
Response: ORR refers commenters to ORR's previous response to
similar comments at Sec. 410.1103, as well as its discussion of
revisions made to the final rule at Sec. 410.1102.
Comment: Many commenters recommended that ORR explicitly protect
LGBTQI+ unaccompanied children from discriminatory treatment and abuse
as a minimum standard, noting that such an obligation would align with
current ORR policies. One commenter recommended increasing safeguards
by requiring standard programs and secure facilities to consider
factors relating to gender and sexual orientation under Sec.
410.1302(c)(2). A number of commenters recommended that ORR require
that unaccompanied children be provided with clothing that reflects a
child's gender identity and hygiene items that reflect their identity
and needs.
Response: ORR believes that protecting unaccompanied children from
discriminatory treatment is important. ORR's existing policies for the
care of LGBTQI+ unaccompanied children require that all children in ORR
care are entitled to human rights protections and freedom from
discrimination and abuse.\238\ For example, care providers must ensure
that children who identify as LGBTQI+ are fairly treated and served
during their time in ORR custody. ORR's existing policy also
establishes zero tolerance for discrimination or harassment of all
children, including LGBTQI+ children, a prohibition on segregating or
isolating children on the basis of their sexual orientation or gender
identity, and ensures confidentiality of personal information unless
disclosure is necessary for medical or mental health treatment or the
child requests it to be shared. ORR notes that, as set forth at Sec.
410.1302(c)(2)(iii), each unaccompanied child must receive an
assessment that includes identification of individualized needs, which
may include needs based on the child's sexual orientation or gender
identity. ORR notes that while some children affirmatively identify as
LGBTQI+ and readily share this information unprompted or when asked,
other children may not be comfortable providing this information as a
part of the individualized needs assessment or otherwise. As such, ORR
will continue to consider how to best identify LGBTQI+ children so that
they may be cared for fairly and with sensitivity. Further, section
410.1302(c)(8)(i) of this final rule requires that ORR establish an
admissions process that meets each unaccompanied child's immediate
needs for food, hydration, and personal hygiene, including clean
clothing and bedding, and ORR has existing policies that require care
provider facilities to provide unaccompanied children with clothing of
their choice.
Comment: One commenter recommended that ORR add a provision to
Sec. 410.1302(c), requiring ORR to conduct post-18 planning, to
include sufficient lead time to prevent any child 17 or older from
aging out of ORR custody without a concrete and actionable post-18 plan
that takes into account the child's resources and needs.
Response: As noted previously, ORR's existing policies already
include requirements regarding post-18 planning, and ORR believes these
policies are sufficient to meet the needs of children who ``age out''
of ORR care. Through the post-18 planning process, care provider
facilities explore other planning options for the future of
unaccompanied children if release to a sponsor is not an option. ORR
declines to further amend the final rule in response to these comments
at this time and will take them into consideration as part of its
continuous evaluation of its existing policies and potential future
updates to this part. ORR notes that addressing these concerns through
its policies in particular allows ORR to make more frequent, iterative
updates in keeping with best practices, to communicate its requirements
in greater detail, and to be responsive to the needs of unaccompanied
children and care provider facilities.
Comment: One commenter recommended that group counseling under
Sec. 410.1302(c)(6) include language and supports appropriate for
LGBTQI+ unaccompanied children, and that counseling groups specifically
for LGBTQI+ children should be available and implemented by trained
staff. Another commenter stated that unaccompanied children should have
access to age-appropriate professional counseling services that
respects Catholic Church teachings.
Response: ORR believes that care providers should affirmatively
support LGBTQI+ unaccompanied children in their placement settings, and
notes that existing policies require that LGBTQI+ unaccompanied
children be treated with dignity and respect, receive recognition of
their sexual orientation and gender identity, not be discriminated
against or harassed based on actual or perceived sexual orientation or
gender identity, and be cared for in an inclusive and respectful
environment.\239\
With respect to the second comment, ORR believes that counseling
services should respect the religious and cultural beliefs of
unaccompanied children. For example, it is ORR's existing policy that
if an unaccompanied child requests religious information or other
religious items, such as religious texts, books, or clothing, the care
provider must provide the applicable materials in the unaccompanied
child's native language, as long as the request is reasonable.
Unaccompanied children also have access to religious services whenever
possible under Sec. 410.1302(c)(9), and ORR notes that this can
include religious counseling.
Comment: One commenter recommended that ORR expressly include the
child's religious and cultural background in the lists of factors for
conducting an individualized needs assessment under proposed Sec.
410.1302(c)(2) in order to ensure that all appropriate measures are
taken to preserve the child's culture and identity. One commenter
recommended that ORR include language to ensure that unaccompanied
children have access to ``culturally responsive and religiously
appropriate'' meals and freely available snacks to ensure that
unaccompanied children are receiving adequate nutrition. One commenter
recommended that ORR add language guaranteeing that unaccompanied
children have better access to laundry and clean clothing and are
provided with clothing that is sensitive to the unaccompanied child's
cultural and religious identity. One commenter recommended that ORR
include access to cultural and religious hygiene needs as a requirement
under Sec. 410.1302(c)(1).
Response: ORR agrees it is important to respect unaccompanied
children's
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religious and cultural identities and practices. For that reason, ORR
proposed under Sec. 410.1302(c)(2) that each unaccompanied child
receive an individualized needs assessment that includes identification
and history of the unaccompanied child and their family, the
identification of any individualized needs the unaccompanied child may
have, and religious preferences and practices, among other requirements
(88 FR 68937). ORR is finalizing clarifying edits to Sec.
410.1302(c)(2)(v) to state ``Identification of whether the child is an
Indigenous language speaker'' instead of ``whether an Indigenous
language speaker.'' ORR agrees that it is important that unaccompanied
children receive adequate nutrition, and therefore proposed 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, and appropriate
for the child and activity level, and that drinking water is always
available to each unaccompanied child. ORR notes that its existing
policies further require that care provider facilities must establish
procedures to accommodate dietary restrictions, food allergies, health
issues, and religious or spiritual requirements, and that part 410 is
not intended to govern or describe the entire UC Program. ORR notes
that Sec. 410.1302(c)(8)(i) of this final rule provides as a minimum
standard an admissions process including meeting unaccompanied
children's needs to, among other things, ensure that children have
appropriate clean clothing and bedding. Further, at Sec.
410.1302(c)(9), the final rule requires standard programs and secure
facilities to practice cultural awareness in, among other areas, choice
of clothing. ORR agrees that children should be provided with personal
hygiene and grooming items that reflect their needs and identities,
including their religious needs and identities. Under existing
policies, ORR requires care provider facilities to provide religious or
spiritual items in the child's native or preferred language, as long as
the request for items in the particular language is reasonable, as
further discussed in the response to public comment at Sec.
410.1306(e).
Comment: One commenter expressed concern that proposed Sec.
410.1302(c)(9) is not sufficiently responsive to meeting unaccompanied
children's religious and cultural needs, recommending that ORR delete
``Whenever possible'' from proposed Sec. 410.1302(c)(9) to ensure that
unaccompanied children have access to individualized religious and
cultural services.
Response: ORR notes that the requirement to provide religious and
cultural services of a child's choice ``whenever possible'' is
consistent with the requirements under the FSA at Exhibit 1 and ORR's
existing practice in the Policy Guide. Under existing policies, ORR
requires care provider facilities to provide opportunities for
unaccompanied children to observe and practice their spiritual or
religious beliefs, and to comply with any requested religious or
spiritual items as long as the request is reasonable. ORR encourages
care provider facilities to proactively create opportunities to support
children's religious and cultural needs, to provide access to religious
services, and to provide transportation to outside places of worship or
specific items or information if the requests are reasonable.
Comment: One commenter expressed concern around the conditions of
care provider facilities and their ability to provide children with
basic services such as bathrooms, recommending that ORR inspect
facilities to ensure sufficient access to clean bathrooms and clean
running hot/cold water.
Response: ORR thanks the commenter for their recommendation and is
making edits to clarify, consistent with ORR's original intent, that
Sec. 410.1302(c)(1) includes that access to showers must be provided,
in addition to toilets and sinks as proposed in the NPRM, and requires
that care provider facilities maintain safe and sanitary conditions
that are consistent with ORR's concern for the particular vulnerability
of children. ORR is also requiring at Sec. 410.1302(c)(1), among other
things, that care provider facilities must provide suitable living
accommodations and provide drinking water that is always available. As
also clarified in this section, all standard programs and secure
facilities must meet State licensing requirements as well as all local
building, fire, health, and safety codes.
Comment: Many commenters recommended that ORR list the specific
initial intake forms, or otherwise include language that ORR will
develop specific policies and procedures based on this rule. One
commenter recommended that self-identification for Indigenous peoples
should be considered in intake forms.
Response: ORR has opted to not provide specific descriptions of
forms in these regulations because the forms and their contents, will
necessarily change over time to be responsive and adaptive to the
evolving needs of the UC Program. ORR thanks the commenter for the
recommendation related to the self-identification of Indigenous peoples
on intake forms and will take this feedback into consideration as it
continues to update its forms.
Comment: Many commenters expressed the view that the proposed
educational services do not adequately prioritize the skills that
unaccompanied children will need following their release from ORR care
or to integrate into schools in the United States. Many commenters
recommended that educational instruction for children with extremely
short lengths of stay be primarily focused on acculturation,
psychosocial education, self-regulation techniques, and beginning
language learning, with a secondary focus on the standard academic
subjects. For example, they recommended that education focus not on
basic academic competencies or subject matter education, but rather on
intensive English language immersion to help prepare unaccompanied
children for their transition to their community school after release
and on other forms of learning and healthy routines that would prepare
them for release given the average short stay in ORR custody.
Commenters also suggested a number of subjects that should be covered
in ORR-provided education, as well as resources including books in
preferred languages and the ability to earn transferable academic
credits.
Many commenters recommended that ORR strengthen its standard of
care to, at a minimum, meet the current standards provided to
unaccompanied children in ORR care, noting that the ORR Policy Guide
requires a minimum of six hours of structured education, Monday through
Friday. Many commenters recommended that ORR should not limit education
to Monday through Friday because this limits educational programming
for short stay unaccompanied children.
One commenter supported the provision of educational services to
the extent that such educational services aligned with international
standards under the Convention on the Rights of the Child. However, the
commenter expressed concern that proposed educational services do not
extend to secure facilities. Additionally, the commenter noted that the
proposed rule provides a much narrower description of the education
services that standard programs must provide to unaccompanied children
than what international standards require.
Response: ORR expects care provider facilities to tailor their
education offerings to meet the educational and
[[Page 34491]]
developmental needs of unaccompanied children to ensure they are
receiving appropriate social, emotional and academic supports and
services. Further, ORR believes that acculturation skills and other
life skills are necessary for unaccompanied children to prepare them
for release to a sponsor, and as such, is finalizing the rule to state
that educational services are required to take place in a structured
classroom setting, Monday through Friday, and should concentrate on the
development of basic academic competencies and on English Language
Training (ELT), as well as acculturation and life skills development.
The educational services must include instruction and education and
other reading materials in such languages as needed. Basic academic
areas may include such subjects as science, social studies, math,
reading, writing, and physical education.
Comment: A number of commenters expressed support for adaptation of
educational services to a child's disability and requested that the
final rule include explicit language to ensure that unaccompanied
children with disabilities receive program modifications, auxiliary
aids, and services and that care provider facilities must communicate
as effectively with children with disabilities as with children without
disabilities to ensure they have an equal opportunity to engage in the
program. The commenters recommended that needs for educational
modifications should be documented in the child's individual service
plan (ISP). The commenter also recommended referencing the Department
of Education's section 504 regulations for requirements for educational
programs.
Response: Under Sec. 410.1311(c), as revised in this final rule,
ORR shall provide reasonable modifications to the UC Program, including
the provision of services, equipment, and treatment, so that an
unaccompanied child with one or more disabilities can have equal access
to the UC Program in the most integrated setting appropriate to their
needs, as is consistent with section 504 and HHS implementing
regulations at 45 CFR part 85. ORR notes that it is not, however,
required to take any action that it can demonstrate would fundamentally
alter the nature of a program or activity. ORR is further requiring
that any program modifications be documented in the child's case file
under Sec. 410.1311(d).
Comment: One commenter expressed support for the proposal to
require facilities to provide recreation services to unaccompanied
children because it provides them with learning, exercise, and
socialization. Additionally, the commenter noted that these activities
provide an important outlet and routine for children to occupy
themselves, and help manage their anxiety.
Response: ORR agrees that recreation and outdoor activities are
important to children's development, and thanks the commenter for their
support.
Comment: One commenter expressed concern that group counseling
sessions proposed under Sec. 410.1302(c)(6) are not sufficient to meet
the needs of unaccompanied children in ORR care, recommending that ORR
consider factors such as the size of the group and the age ranges in
the group to ensure that the forum is appropriate for group counseling
sessions.
Response: ORR notes that this standard is consistent with FSA
Exhibit 1 minimum standards. Further, as also consistent with FSA
Exhibit 1, ORR is finalizing the provision of weekly individual
counseling, under Sec. 410.1302(c)(5). Further, under Sec.
410.1307(b), as finalized, ORR must ensure unaccompanied children have
access to appropriate routine medical and dental care, including
addressing the mental health needs of unaccompanied children.
Comment: One commenter recommended that the requirement at Sec.
410.1302(c)(8)(iii) of the NPRM requiring that the comprehensive
orientation presentation given to unaccompanied children including
information about the Ombuds be made mandatory for all programs, and
not limited to those meeting the definition of ``standard program.''
Response: ORR notes that ORR is expanding the applicability of
410.1302(c)(8)(iii) to secure facilities and that this requirement is
included at Sec. 410.1800(b)(9) for EIFs.
Comment: A few commenters requested clarification regarding whether
Sec. 410.1302(c)(10) as proposed in the NPRM applies to EIFs.
Response: Section 410.1302(c)(10) as finalized is applicable to
standard programs and secure facilities. Requirements for EIFs are in
subpart I, and ORR refers comments to that section for further
discussion on requirements ORR is finalizing.
Comment: Many commenters recommended that Sec. 410.1302(c)(13)
provide information to unaccompanied children regarding the purposes of
the Legal Services Provider, and their scope of work and authority, and
focus on providing information on practical areas such as the
employment approval process, permissible and prohibited work, human
trafficking awareness, and how to remain safe when engaging in
employment. Many commenters expressed concern that ORR may
miscommunicate information on child labor laws and work opportunities
and therefore requested examples of how ORR will convey this
information.
Response: ORR agrees that information related to the scope of LSPs,
and practical information relating to employment and labor laws are
important for unaccompanied children. ORR is engaging in a partnership
with the Department of Labor to effectively provide communications,
such as Know Your Rights videos and information, to unaccompanied
children and their sponsors.\240\
Comment: Many commenters expressed support for the proposed
requirement that individual service plans for each unaccompanied child
be developed under Sec. 410.1302(e).
Response: ORR thanks the commenter for their comment.
Comment: Several commenters recommended the final rule include
specific provisions for individual service plans and section 504
service plans for unaccompanied children with disabilities. This
includes identification of disability-related needs, and a description
of services, supports, and modifications the child will receive
including a plan for release. These commenters stated that ISPs should
also include services for children with mental health disabilities.
Commenters recommended that the child should be included in the
development of their ISP along with others knowledgeable about the
child, such as the unaccompanied child's parent/legal guardian, child
advocate, LSP, and treating professionals. Commenters recommended that
the final rule require, consistent with the Lucas R. settlement
agreement regarding disabilities, that the service plan of an
unaccompanied child with disabilities be reviewed every six months or
within 30 days of any of the following: (a) a transfer to a more
restrictive placement; (b) psychiatric hospitalization of the
unaccompanied child (unless the plan has already been reviewed within a
3-month period); or (c) upon the recommendation of a licensed medical
or mental health provider, including the unaccompanied child's
clinician. Commenters also recommended that, if an unaccompanied child
has one or more disabilities, the unaccompanied child's individual
service plan should include any triggers of the unaccompanied child's
disability-related behaviors and identify individualized responses
staff should attempt to de-escalate a situation. Commenters further
recommended that
[[Page 34492]]
if an unaccompanied child with disabilities exhibits persistent
behaviors that affect their safety or that of others, this should
trigger a re-evaluation of their individual service plan by the same
group of knowledgeable persons that developed the plan. The commenters
requested that a pending service plan not delay the release of a child.
With regard to changes in placement to more segregated settings, the
commenter requested that a new assessment and review of the ISP take
place before placement changes when possible.
Response: Consistent with the discussion of the Lucas R. litigation
above at section III.B.4, ORR is not incorporating in this rule all
aspects of the disability settlement agreement. However, ORR will be
assessing implementation of the relevant portions of the agreement, and
will evaluate future policymaking in this area, which may be informed
by the anticipated year-long comprehensive disability needs assessment
that ORR will be undertaking in collaboration with subject matter
experts, and ORR's development of a disability plan.
Comment: One commenter recommended that care provider facilities
provide the ISP in the unaccompanied child's primary language. The
commenter also recommended that given the complexity of ISPs, such
documents should be applied to unaccompanied children in restrictive or
longer-term placements, not standard or EIFs placements.
Response: ORR agrees that if the child's native language is not
their preferred language, then the ISP should be provided in the
preferred language as this is consistent with language access
requirements under Sec. 410.1306. ORR is therefore, in this final
rule, requiring that the ISP be provided in the child's native or
preferred language. Consistent with this, ORR is finalizing this change
to ``native or preferred language'' throughout Sec. 410.1302
(specifically at Sec. 410.1302(d) and Sec. 410.1302(c)(13)), rather
than ``native language'' as ORR had proposed. ORR also emphasizes that
the finalized requirements under Sec. 410.1302(e) pertain to standard
programs and secure facilities, and that ORR's existing requirement is
that all care provider facilities provide ISPs for each child in their
care. ORR did not propose to adopt each of its existing requirements
into this rule because of the sheer number and detail of those
requirements and because keeping those requirements at the
subregulatory level will allow ORR to make more appropriate, timely,
and iterative updates in keeping with best practices and to allow
continued responsiveness to the needs of unaccompanied children and
care provider facilities.
Final Rule Action: After consideration of public comments, ORR is
revising the section title of Sec. 410.1302 to ``Minimum standards
applicable to standard programs and secure facilities''; Sec. 410.1302
to add ``secure facilities'' to standard programs so that secure
facilities are required to provide the minimum standards under this
section; Sec. 410.1302(a) to require standard programs and secure
facilities be licensed by an appropriate State agency, or meet the
requirements of State licensing if located in a State that does not
allow State licensing of programs that care or propose to care for
unaccompanied children; Sec. 410.1302(b) to require standard programs
and secure facilities to comply with all State child welfare laws and
regulations (such as mandatory reporting of abuse) and all State and
local building, fire, health, and safety codes and by removing ``and
other additional requirements specified by ORR if licensure is
unavailable in their State to care provider facilities providing
services to unaccompanied children'' and removing ``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. 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;'' Sec.
410.1302(c)(2)(iii) to use the term ``individualized needs'' instead of
``special needs'' as was finalized in this final rule at Sec.
410.1001; Sec. 410.1302(c)(1) to specify that personal grooming and
hygiene items include items ``such as soap, toothpaste and
toothbrushes, floss, towels, feminine care items, and other similar
items,'' to include access ``showers'' in addition to toilets and
sinks, and to include ``maintenance of safe and sanitary conditions
that are consistent with ORR's concern for the particular vulnerability
of children;'' Sec. 410.1302(c)(2)(v) to state ``Identification of
whether the child is an Indigenous language speaker'' instead of
``whether an Indigenous language speaker;'' Sec. 410.1302(c)(3) to
replace ``concentrate primarily on the development of basic academic
competencies and secondarily on English Language Training (ELT),
including: . . .'' with '' concentrate on the development of basic
academic competencies and on English Language Training (ELT), as well
as acculturation and life skills development, including . . .;'' Sec.
410.1302(c)(13) to state ``native or preferred language instead of
``native language;'' Sec. 410.1302(c)(14) to add a requirement that
unaccompanied children must 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, and receive and send uncensored mail unless there is a
reasonable belief that the mail contains contraband; Sec. 410.1302(d)
to state ``native or preferred language'' instead of ``native
language;'' and Sec. 410.1302(e) to state ``native or preferred
language'' instead of ``native language;'' and is otherwise finalizing
this section as proposed in the NPRM.
Section 410.1303 Reporting, Monitoring, Quality Control, and
Recordkeeping Standards
ORR conducts ongoing 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.\241\ ORR proposed in the
NPRM language at Sec. 410.1303 to describe how ORR would ensure that
care provider facilities are providing required services (88 FR 68939
through 68941). Under Sec. 410.1303(a), ORR proposed in the NPRM to
monitor all care provider facilities for compliance with the terms of
the regulations in parts 410 and 411. ORR proposed in the NPRM 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
[[Page 34493]]
(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.
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 Sec. 410.1303(b),
ORR proposed in the NPRM to issue corrective actions to care provider
facilities when it finds that a care provider facility is out of
compliance with ORR regulations and subregulatory policies, including
guidance and terms of its contracts and cooperative agreements (88 FR
68939). If ORR finds a care provider facility to be out of compliance,
it would communicate the concerns in writing to the care provider
facility's 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 timeframe 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.\242\
ORR proposed in the NPRM, language at Sec. 410.1303(c) describing
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 (88 FR 68939).
ORR proposed in the NPRM, language at Sec. 410.1303(d) describing
monitoring of long-term home care and transitional home care facilities
(88 FR 68939 through 68940). ORR proposed 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 Sec. 410.1303(d), ORR proposed in the
NPRM that 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
proposed in the NPRM that ORR long-term home care and transitional home
care facilities that provide services through a sub-contract or sub-
grant be responsible for conducting annual monitoring or site visits of
the sub-recipient, as well as weekly desk monitoring. Finally, ORR
proposed to require that care providers provide the findings of such
reviews to the designated ORR point of contact.
ORR proposed in the NPRM at Sec. 410.1303(e),) 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 (88 FR 68940).
ORR proposed in the NPRM under Sec. 410.1303(f), to establish care
provider facility reporting requirements (88 FR 68940). 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. Reporting requirements increase safety for children in
ORR's care, and promote transparency and accuracy, and improve 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 well-being of all
unaccompanied children in care.
ORR proposed in the NPRM 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 (88 FR
68940). 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 regulations and subregulatory policies,
including ORR guidance and the terms of its contracts or cooperative
agreements.
ORR proposed in the NPRM, limitations on how certain reports may be
used by ORR or care provider facilities (88 FR 68940). 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 Sec. 410.1303(f)(3), ORR proposed in the
NPRM to 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 Sec. 410.1303(f)(4), ORR
proposed in the NPRM 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 noted 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
\243\ violations occurring in ORR care, along with any retaliatory
actions resulting from reporting such incidents; ORR also noted that
part 411
[[Page 34494]]
requires compliance with required staff background checks at subpart B.
ORR also proposed at Sec. 410.1307(c) of the NPRM 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 proposed in
the NPRM to initiate a Graduated Corrective Action Plan, with reporting
requirements increasing along with oversight measures if programs
remain non-compliant. ORR refers readers to Sec. 410.1307(c) for
additional 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.\244\ 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.'' \245\ These program statutes recognize that ORR is
responsible for maintaining and safeguarding 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's longstanding
policy is to protect from disclosure information about unaccompanied
children that could compromise the children's and sponsors' location,
identity, safety, and privacy.
Consistent with its statutory responsibilities, ORR proposed in the
NPRM in Sec. 410.1303(g) that all care provider facilities must
develop, maintain, and safeguard the individual case file records of
unaccompanied children (88 FR 68941). 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 noted that under its current policies
the records of unaccompanied children generated in the course of post-
release services (PRS) are not always considered to be included in the
individual case files of unaccompanied children. However, ORR has
determined that all unaccompanied children's records, including those
produced for PRS, should 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.\246\ 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.
Under Sec. 410.1303(g)(1) of the NPRM, ORR proposed to require
care provider facilities and PRS providers to maintain the
confidentiality of case file records and protect them from unauthorized
use or disclosure (88 FR 68941). ORR also proposed 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
proposed 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) of the NPRM, ORR proposed 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 (88 FR 68941).
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 an unaccompanied
child's 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.
For purposes of facilitating efficient program administration, ORR
policy is to allow certain limited disclosures by ORR grantees and
contractors for program administration purposes without attaining prior
ORR approval 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 any applicable whistleblower protection laws. These record
safeguarding policies allow 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.
ORR proposed in the NPRM at Sec. 410.1303(h) to require standard
programs to maintain adequate records and make regular reports as
required by ORR that permit ORR to monitor and
[[Page 34495]]
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 (88 FR 68941). ORR welcomed public comment on these
proposals.
Finally, ORR notes that as mentioned previously in the preamble in
relation to Sec. 410.1302, this final rule includes a new Sec.
410.1303(e), requiring enhanced monitoring of unlicensed standard
programs and EIFs. Under this new paragraph, ORR will require enhanced
monitoring, including on-site visits and desk monitoring, in addition
to other requirements of this section, for all standard programs that
are not State-licensed because the State does not allow State licensing
of programs providing care and services to unaccompanied children, and
emergency or influx facilities. Accordingly, paragraphs (e) through (h)
as published in the NPRM have been redesignated in this final rule.
Comment: Several commenters expressed concern that the proposed
rule does not indicate the frequency, duration, or scope of ORR's
monitoring and emphasized the need for more regular and rigorous
monitoring of all care provider facilities by ORR to ensure risks to
children and corrective actions are addressed in a timely manner. A few
commenters recommended incorporating more details from the ORR Policy
Guide for consistent implementation across all care provider facility
types, for example stating that routine site visits described in the
NPRM at Sec. 410.1303(a)(2) occur at ``every facility'' rather than at
``facilities,'' to avoid leaving open the possibility for ORR to not
monitor facilities. They requested additional information on what
``desk monitoring'' or ``ongoing oversight'' entails, how often such
oversight occurs, or who is part of such oversight. One commenter noted
that the language in the NPRM only describes monitoring activities but
does not directly require monitoring activities under Sec.
410.1303(a).
Response: ORR thanks the commenters for their feedback. ORR will
continue to use and update its existing guidance to provide more
detailed requirements for care provider facilities related to
monitoring. ORR notes that its existing policies provide more detailed
descriptions of desk monitoring and the ongoing monitoring activities
that are part of it. ORR opted for this approach so that it can remain
agile and provide more frequent iterative updates to its monitoring
requirements in keeping with best practices and to allow continued
responsiveness to the needs of unaccompanied children and care provider
facilities. Where the regulations contain less detail, other guidance
and communications from ORR to care provider facilities will provide
specific guidance on requirements. Related to the concern about
requiring monitoring at Sec. 410.1303(a), ORR is revising to ``ORR
shall monitor'' rather than ``ORR monitors'' to more accurately reflect
that monitoring of care provider facilities is indeed a requirement for
ORR. Similarly, ORR is revising Sec. 410.1303(c) to state ``ORR shall
review'' instead of ``ORR reviews'' to reflect that this is a
requirement of ORR; and new Sec. 410.1303(f) (previously Sec.
410.1303(e) in the NPRM) to state ``Care providers shall'' instead of
``ORR shall require care providers to'', new Sec. Sec. 410.1303(g)(1)
through (4) (previously Sec. Sec. 410.1303(f)(1) through (4) in the
NPRM) to state ``shall'' instead of ``must'' and ``shall not'' instead
of ``must never'' or ``are prohibited from'', new Sec. Sec.
410.1303(h)(1) through (4) (previously Sec. Sec. 410.1303(g) (1)
through (4) in the NPRM) to state ``shall'' instead of ``must'' or
``may'', and new Sec. 410.1303(i) (previously Sec. 410.1303(h) in the
NPRM) to state ``shall'' instead of ``must'', to reflect that they are
requirements of care provider facilities and PRS providers, where
specified.
With respect to the commenter's suggested revision to Sec.
410.1303(a)(2), ORR does not believe the revision is necessary because
paragraph Sec. 410.1303(a), as codified in this final rule, already
states that ORR shall monitor ``all care provider facilities.''
Comment: One commenter expressed concern that the rule weakens
monitoring standards by limiting the role of independent monitors and
child advocates. Similarly, one commenter expressed concern about the
credibility and impartiality of ORR if it is the same entity being
monitored and strongly supported the creation of independent,
contracted interdisciplinary teams for oversight of all ORR facilities
in order to ensure compliance with ORR standards and provide
recommendations for performance improvements.
Response: ORR acknowledges the commenters' concerns but does not
agree that the proposed regulation text weakens monitoring standards.
ORR first clarifies that while it has legal responsibility for the care
and custody of unaccompanied children in its custody by reason of their
immigration status, ORR carries out this responsibility by funding care
provider facilities to physically house children and provide direct
care and services. ORR monitoring is therefore an essential component
of ensuring care provider facilities adhere to relevant requirements
set out in statute, these final regulations, and other guidance
established by ORR. ORR is not in this sense monitoring itself; rather
it is monitoring grantees and contractors it funds. Care provider
facilities are also subject to performance and financial monitoring and
reporting as described at 45 CFR part 75, but as stated at Sec.
410.1303(a), this final rule codifies programmatic monitoring
specifically with respect to care provider facilities' adherence to
this part and with 45 CFR part 411. ORR also notes that Sec. 410.1303
codifies existing policies regarding monitoring. ORR notes that its
existing policies set out more detailed guidance describing ORR's
monitoring activities and the requirements related to monitoring that
care provider facilities must comply with. With respect to commenters'
suggestion of an independent form of oversight for the program, ORR
notes that at subpart K of this final rule, ORR is finalizing the
creation of the UC Office of the Ombuds. In creating the Ombuds Office,
ORR aims to provide an independent and impartial body that can receive
reports and grievances regarding the care, placement, services, and
release of unaccompanied children, and make recommendations to ORR
regarding its policies and procedures, specific to protecting
unaccompanied children in the care of ORR. ORR refers commenters to
subpart K for more detailed discussion of the Ombuds.
Comment: A few commenters were concerned that the proposed rule
limits ORR's monitoring to ``care provider facilities,'' as defined
under Sec. 410.1001 which do not include out of network placements
(OON or OONs). One commenter stated that children placed in OONs often
have more significant needs and relatively longer lengths of placement
than children who are not and stated that it is essential that ORR
monitor OON placements. One commenter recommended adding language in
this section stating that ORR monitors all care provider facilities and
OON placements for compliance with the terms of the regulations in this
part and 45 CFR part 411.
Response: ORR thanks the commenters for their comments and
emphasizes that it is current practice to conduct regular monitoring at
OON placements, and it will continue to do so. Part 410 will not govern
or describe the entire UC Program, and ORR will continue to use and
update its existing policies to provide more detailed
[[Page 34496]]
requirements. ORR's monitoring activities at OON placements largely
mirror the monitoring requirements that ORR uses at in-network
facilities and are collaboratively conducted by the monitoring team,
Federal Field Specialists, contracted field specialists, and case
managers to ensure maximum visibility and compliance with all
applicable standards of care at OON placements. ORR is not adding a
requirement at this time under this section because the unique nature
of each OON placement requires a collaborative and unique monitoring
approach from ORR, and ORR does not believe a ``one size fits all''
monitoring approach would be appropriate given the array of types of
OON placements, such as hospitals or other types of restrictive
settings. Even still, monitoring activities at OON placements in
practice largely mirror the monitoring requirements that ORR uses at
in-network facilities and are conducted to ensure maximum visibility
and compliance with all applicable standards of care at the OON
placement. ORR also notes that OON placements are not required to meet
the requirements of subpart D as they are not included in ORR's
definition of care provider facilities.
Comment: A few commenters were concerned that the corrective
actions and described process in proposed Sec. 410.1303(b) address
violations only on a case-by-case basis and that the proposed rule
appears not to contemplate contractors or other entities who violate
regulations regularly or systematically unless the violations are
criminal in nature because it takes each violation as a singular event
without relationship to other events or, potentially, to higher-level
decisions.
The commenters stated that both ORR and children's interests are
served when regulations are followed by care provider facilities, when
systematic problems are identified early and resolved, and when actors
who have consistently acted contrary to the best interests of children
no longer have access to Federal contracts to care for children. The
commenters suggested that to identify problem entities, the first step
is to collect data on incidents, particularly on the more serious
incidents, and aggregate incidents at the facility level as well as the
grantee and contractor level. The commenters suggested that ORR follow
Senate Finance Committee recommendations from 2021 stating ORR should
utilize drawdowns and the discontinuation or non-continuation of
grants/contracts to providers that do not effectively safeguard
children in their care. One commenter recommended adding text to Sec.
410.1303(b) requiring ORR to collect and aggregate data on violations
and resulting corrective actions for both facilities and grantees. The
commenter further suggested that ORR require such data to be used in
ongoing monitoring and in consideration of the future composition of
the ORR network, including to inform decisions regarding initiation,
renewal, or discontinuation of contracts or cooperative agreements.
Response: ORR believes that data collection can play a pivotal role
in facilitating the identification of potential issues, including
potentially systematic issues, related to the care of unaccompanied
children, and for that reason is finalizing requirements under Sec.
410.1501 to require ORR to collect data, and care provider facilities
to report data, under Sec. 410.1501(g) that is necessary to evaluate
and improve the care and services for unaccompanied children. It is
ORR's existing practice to consider this aggregate data in its care
provider facility scorecard reviews and ORR's Acquisition Requirements
Team, the General Services Administration, and the Office of
Acquisition Management Services also oversee performance under
contracts and take appropriate action when contractors do not meet
ORR's requirements for serving unaccompanied children. Additionally,
ORR consults its Office of Grants Management and Office of General
Counsel regarding performance issues for the grantee network. ORR
additionally notes that under Sec. 410.2002(c)(5), ORR is required to
provide the data it maintains to the finalized UC Office of the Ombuds,
and that the Ombuds is also empowered to provide recommendations and
publish reports, among other duties, based on its findings. With
respect to the Senate Finance Committee recommendations from 2021,\247\
ORR notes that ACF already has authority to take such actions, as
described at 45 CFR part 75,\248\ and regularly exercises this
authority (e.g., through audits and enforcement actions).
Comment: Due to their concerns about potential lawsuits and
treatment of children in secure placements within ORR's network, a few
commenters suggested that ORR increase its monitoring requirements for
secure facilities to ensure that routine site visits occur at a minimum
of once per month and that weeklong monitoring visits are conducted
yearly. The commenters also recommended that ORR review children's case
files at least every 14 days to determine if the child is ready for a
less restrictive placement, instead of at 30-day intervals, which they
believe is in closer compliance with ORR's statutory and child welfare
mandate.
Response: ORR has not specified specific time intervals for the
various types of monitoring it conducts for all care provider
facilities, including secure facilities, under Sec. 410.1303(a)
because, as previously discussed, ORR's existing policies provide more
detailed descriptions of desk monitoring and the ongoing monitoring
activities that are part of it. ORR opted for this approach so that it
can remain agile and provide more frequent iterative updates to its
monitoring requirements in keeping with best practices and to allow
continued responsiveness to the needs of unaccompanied children and
care provider facilities.
Comment: One commenter recommended including monitoring
requirements under Sec. 410.1303(d) for care provider facilities that
are unable to be licensed through their State to ensure best practices
and the safety of children in care.
Response: ORR is finalizing a requirement under Sec. 410.1302(a)
that all standard programs and secure facilities be licensed by their
State or meet the requirements of State licensing if located in a State
that does not allow State licensing of programs providing or proposing
to provide care services to unaccompanied children. ORR conducts
monitoring of all care provider facilities, regardless of whether they
are in a State that allows or does not allow State licensing for ORR
care provider facilities. ORR notes that it already conducts enhanced
monitoring which includes regular on-site visits and desk monitoring of
any care provider facilities where a State will not license the
facility because it cares for or proposes to care for unaccompanied
children.
Comment: One commenter was concerned that there is ambiguity about
whether monitoring by a prime contractor is intended to supplement or
replace ORR's monitoring of subrecipient long-term home care and
transitional home care facilities. The commenter recommended that ORR
directly monitor long-term home care and transitional home care
facilities with the activities described in Sec. 410.1303(a), which
may be tailored to the foster care arrangement, and recommended that
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. The commenter further recommended
[[Page 34497]]
including a requirement that upon request, care provider facilities
must provide findings of such reviews to the designated ORR point of
contact.
Response: ORR directly monitors all care provider facilities that
it funds. If a care provider facility, including a long-term home or
transitional home care facility, subawards ORR funds to another entity
to carry out care and custody of unaccompanied children, then
consistent with 45 CFR 75.352(d) the prime recipient of ORR funds is
responsible for monitoring its subrecipients ``as necessary to ensure
that the subaward is used for authorized purposes, in compliance with
Federal statutes, regulations, and the terms and conditions of the
subaward; and that subaward performance goals are achieved.''
Comment: A few commenters did not support the provisions at
proposed Sec. 410.1303(f)(4), stating that they are too limiting for
case managers and their ability to perform essential functions.
Response: ORR acknowledges the commenters concerns but notes that
the various requirements described at proposed Sec. 410.1303(f)(4) in
the NPRM (redesignated at Sec. 410.1303(g)(4) in the final rule)
concern placement decisions, and that ORR has statutory authority to
make placement determinations. Care provider facilities, including case
managers, do not decide on the placement of unaccompanied children in
ORR custody. Further, as stated in the NPRM preamble, ORR believes that
these provisions 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 (88 FR 68940).
Comment: A few commenters shared concerns that ORR care provider
facilities often engage in over-reporting of incidents and that many
SIRs frequently document minor rule infractions or developmentally
appropriate child or adolescent behavior such as when children fail to
follow facility rules, test boundaries, appropriately express
frustration, or engage in horseplay or recreational activities. The
commenters stated that SIRs frequently fail to contextualize children's
behavior within the stressful circumstances, conditions, and length of
time in government custody, or the trauma experienced. One commenter
therefore recommended that regulatory language at proposed Sec.
410.1303(f)(4) additionally state that care provider facilities may
deny a placement only on the basis of the reasons and in accordance
with the procedures set forth in Sec. 410.1103(f) through (g). The
commenter further recommended that ORR add language to Sec.
410.1303(f)(4) to directly state that these reports are not complete or
comprehensive and information in the reports may not be fully verified,
and that staff should also consider that ORR does not intend for an
incident report to provide complete context of the incident described
or a child's experience in home country, journey, or time in care.
Response: ORR proposed in the NPRM at Sec. Sec. 410.1303(f)(1) and
(2) (redesignated at Sec. Sec. 410.1303(g)(1) and (2) in the final
rule) to provide additional parameters around the information contained
in such reports 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. ORR intends to continue to use its subregulatory guidance
to provide additional details and requirements for care provider
facilities. ORR notes, as stated by the commenters, that SIRs are not
intended to provide complete context because they are internal records
that contain information that may not be fully verified about a given
incident or of the child's experience in home country, journey, or time
in care.
Comment: Several commenters recommended revisions to Sec.
410.1303(g), as proposed in the NPRM (redesignated as Sec. 410.1303(h)
in the final rule), to limit unauthorized access, use and disclosure of
information and to preserve confidentiality of children's data and
information. One commenter stated that the final rule should safeguard
the personal information of unaccompanied children and their sponsors
from unauthorized access, use, or disclosure, and include examples of
parameters for what privacy and confidentiality should include, such as
only collecting information that is necessary for the purposes of the
UC Program and reporting privacy breaches to affected individuals.
Commenters further recommended that ORR require compliance with
applicable Federal and State laws and regulations regarding privacy and
confidentiality because unaccompanied children may be vulnerable to
discrimination, harassment, or retaliation based on their immigration
status or background and face risks due to their personal information
being accessed, used, or disclosed without their knowledge or consent.
A few commenters stated that the proposed rule should not only prohibit
the mishandling of unaccompanied children's information but also
require organizations to implement policies and procedures to reduce
the risk of mishandling such as proactively ensuring the privacy,
security, and confidentiality of program data in accordance with
national standards for protecting sensitive and restricted data.
Another commenter recommended that proposed Sec. 410.1303(g)(4)
(redesignated to Sec. 410.1303(h)(4) in the final rule) be expanded to
address both unauthorized use and unauthorized disclosure of the
sensitive information it describes. One commenter recommended that
where the proposed rule uses the phrase ``unauthorized use or
disclosure'' or a similar phrase, to include the terms unauthorized
access, unauthorized use, misuse, and improper disclosure, stating that
authorized users fulfilling job-related functions can still misuse
private and sensitive data about children, and improper disclosure of
the protected information in a case file (or elsewhere) does not
require access to the file itself.
Response: ORR notes that the requirements under proposed Sec.
410.1303(g) in the NPRM (redesignated to Sec. 410.1303(h) in the final
rule) are supplemented by existing policies that speak to many of these
concerns, particularly related to care provider facilities policies for
maintaining case files and for record management, retention and
safekeeping. ORR notes that care provider facilities must ensure
compliance with all requirements imposed by Federal statutes concerning
the collection and maintenance of records that includes personal
identifying information. With regard to compliance with national
standards and State laws, ORR further notes, consistent with Sec.
410.1302(a) as codified in this final rule, that standard care provider
facilities must follow State licensing requirements, even if they are
in a State that does not license facilities that care for unaccompanied
children; further, all care provider facilities must follow the
requirements of part 410, and ORR policies and procedures.
Comment: A few commenters stated concerns that ORR's proposal to
share information about the children and their sponsors with other
Federal agencies, such as DHS, for immigration enforcement purposes
would violate the children's privacy rights and deter potential
sponsors from coming forward, resulting in prolonged detention and
increased costs for ORR.
Response: ORR clarifies that proposed Sec. 410.1303(g) in the NPRM
(redesignated to Sec. 410.1303(h) in the final rule) also prohibits
the sharing of information with other Federal agencies without prior
approval from ORR. This
[[Page 34498]]
provision, like ORR's current policies, is consistent with provisions
in House Report 116-450,\249\ and restricts sharing certain case-
specific information with EOIR and DHS that may deter a child from
seeking relief through their legal service provider.
Comment: A few commenters noted that the ownership of records
including case files of unaccompanied children is a complicated issue
in part because many organizations are direct providers of different
types of services for unaccompanied children, and that different
providers are subject to different laws and best practices concerning
the ownership of children's records. One commenter recommended that
this section should address the different types of records kept by
language access services providers, stating that some may be protected
by attorney-client privilege. One commenter stated that while they
agree that there is good reason for ORR to have ultimate responsibility
for safeguarding some unaccompanied children's records, such as case
files maintained by care provider facilities and PRS providers, the
same approach may not be appropriate for ownership of other types of
records such as a birth certificate, which belongs to the child and the
child's parent or legal guardian, and the document and its contents can
be shared with the child's or parent's consent. The commenter also
included examples where ORR ownership would not apply, such as records
maintained by legal services providers, which are protected by
attorney-client privilege and cannot be shared with ORR, or medical or
sensitive personal information protected by Federal and State policies.
The commenter recommended that proposed Sec. 410.1303(g)(2) in the
NPRM, which identifies ORR as the owner of unaccompanied children's
case files, should instead be addressed by a separate section not
intended to establish a single rule for all records kept by all types
of providers. The commenter also stated that the ownership of
children's records is unnecessarily tied to restrictions on how
providers may access or share information about a child and that the
provision of services by particular providers may require explicit
carve-outs from certain aspects of the uniform standards. The commenter
therefore recommended that ORR include a new section in the rule which
addresses the ownership of records maintained by different types of
service providers, arguing that this would affirm ORR's ultimate
responsibility for case files and other records kept by care provider
facilities and PRS providers and its right to oversee and to regulate
its grantees' and contractors' policies and procedures. The commenter
recommended that ORR explicitly state that records maintained by legal
service providers are not the property of ORR and address relevant
issues raised by providers of other types of services in a manner that
preserves their ability to efficiently serve unaccompanied children
according to the relevant legal regimes and best practices of their
field.
Response: ORR acknowledges the commenters' concerns related to
legal service providers or other types of service providers that have
records pertaining to unaccompanied children in ORR care. ORR clarifies
that the requirements related to privacy and confidentiality of
unaccompanied children's case file records under part 410 apply to care
provider facilities and PRS providers, and do not apply to legal
service providers. ORR notes that it includes privacy and
confidentiality requirements in its grants, cooperative agreements, and
contracts with other types of service providers, including legal
service providers. This allows ORR to ensure all record keeping,
privacy, and confidentiality terms are tailored as appropriate to the
nature of the grant or contract. ORR further emphasizes that
disclosures can be made, consistent with Sec. 410.1303(g)(2), in
accordance with law or for program administration purposes.
Comment: A few commenters noted that proposed Sec. 410.1210(i)
contains similar language to that found in proposed Sec. 410.1303(g)
in the NPRM and therefore recommended consolidating the general
guidelines of proposed Sec. Sec. 410.1303(g) through (h) in the NPRM
(redesignated to Sec. Sec. 410.1303(h) through (i) in the final rule)
with the provisions of Sec. 410.1210(i)(1) through (3) so that
provisions currently focused solely on records managed by PRS providers
will also apply to other types of service providers. One commenter
stated that the proposed guidelines for the management, retention, and
privacy of records maintained by PRS providers are both stronger and
more detailed than the more general requirements proposed at Sec.
410.1303(g) through (h) (redesignated to Sec. Sec. 410.1303(h) through
(i) in the final rule) that apply to care providers and suggested that
the PRS provider facilities as well. Another commenter encouraged ORR
to consolidate Sec. 410.1210(i) with proposed Sec. 410.1303(g) in the
NPRM by using the version with stronger privacy and confidentiality
protections, notably Sec. 410.1210(i)(2)(iii). A few commenters,
noting that proposed Sec. 410.1210(i)(3)(iii) states that PRS
providers' controls on information-sharing within the PRS provider
network shall extend to subcontractors, similarly suggested extending
safeguards from unauthorized access, inappropriate access, misuse, and
inappropriate disclosure to subcontractors of all agencies and stated
that the explicit inclusion of subcontractors is an important
clarification that should be incorporated into other sections that
safeguard children's information.
Response: ORR has many detailed subregulatory requirements for care
provider facilities related to the privacy and confidentiality of the
case file records of unaccompanied children, but did not propose to
adopt each of its existing requirements into this rule because of the
length and detail of those requirements and because maintaining those
requirements in subregulatory guidance will allow ORR to make more
appropriate, timely, and iterative updates to record management and
privacy policy in keeping with best practices and to allow continued
responsiveness to the evolving needs of unaccompanied children and care
provider facilities. In contrast, ORR does not have as many
subregulatory requirements for PRS providers related to the privacy and
confidentiality of the case file records of unaccompanied children, and
notes that the circumstances are different because the children served
by PRS providers are no longer in ORR custody. For this reason, ORR
chose to include more detail in the requirements under Sec.
410.1210(i)(2) for PRS providers. ORR thanks the commenters for
highlighting the nuances between Sec. 410.1210(i) and proposed Sec.
410.1303(g) in the NPRM (redesignated to Sec. 410.1303(h) in the final
rule) but does not believe these nuances cause a conflict between the
requirements under this part or in ORR's existing policies pertaining
to care provider facilities.
Comment: A few commenters expressed concern that the proposed rule
does not have uniformly high standards for all entities who may keep
records regarding unaccompanied children's personally identifiable
information (PII), and that the sections contemplating data collection
and safeguarding should be aligned to a high standard of protection and
made consistent across different types of service providers and
information. One commenter stated that, in contrast to the requirements
listed in proposed Sec. 410.1303(g) in the NPRM (redesignated to Sec.
410.1303(h) in the
[[Page 34499]]
final rule), the proposed rule's guidelines for the handling of PII by
child advocates under Sec. 410.1308(f) and the providers of language
access services under Sec. 410.1306(i) are sparse. One commenter
suggested that ORR should revise any text describing what organizations
are subject to the guidelines of proposed Sec. 410.1303(g) in the NPRM
(redesignated to Sec. 410.1303(h) in the final rule), to ensure
consistent inclusion of PRS providers and to ensure that other types of
service providers that encounter or handle records involving
unaccompanied children's PII are following best practices for
developing, maintaining, and safeguarding them. A few commenters noted
that, while the rule contemplates information and data that ORR
receives via its network of grantees and contractors, the proposed rule
fails to contemplate information and data that arrives via other means
and that implicates the continued well-being of children or safety and
security of children's placements.
Response: ORR includes privacy and confidentiality requirements in
its cooperative agreements and contracts with other types of service
providers and prefers to keep these requirements subregulatory so they
can be tailored, as appropriate, to the nature of a particular contract
or cooperative agreement. Related to data and information that ORR
receives via its network of grantees and contractors, ORR notes that
its requirements apply to all information contained in an unaccompanied
child's case file record, regardless of how it was received.
Comment: A few commenters stated concerns that ORR's policies in
this section would limit children's and their family's access to their
records of their treatment, thereby posing a potential infringement on
parental and family rights. One commenter expressed concern that the
provisions for prior approval and advance notice from ORR for
disclosure of case file records improperly limit the access of the
unaccompanied child, child's attorney, and child advocate to the case
file, stating that the child, their attorney, and their child advocate
should have unrestricted access to all non-classified records. The
commenter stated that unrestricted access to all documents will help
ensure that children are generally informed about their case. The
commenter suggested that the child, child's attorney, and child
advocate be afforded unrestricted access to the case file and that
advance notice or approval only be required before disclosing the case
file information to anyone else for any purpose.
Response: ORR does not agree that its proposed policies under Sec.
410.1303(g) in the NPRM (redesignated to Sec. 410.1303(h) in the final
rule) limit access to case files for unaccompanied children, children's
families, or children's LSPs, attorneys of record, or child advocates.
As stated above, regarding the definition of ``case file,'' ORR notes
that, consistent with the Privacy Act, codified at 5 U.S.C. 552a, the
UC Program's System of Records Notice (SORN), and ORR policies,
unaccompanied children have access to, and are entitled to copies of,
their own case file records.\250\ As such, both unaccompanied children
and their parents or legal guardians may request their own files. ORR
further notes that pursuant to the TVPRA, child advocates are
``provided access to materials necessary to effectively advocate for
the best interest of the child,'' \251\ and that under current ORR
policies, child advocates have immediate access to children's case
files without needing to submit a formal request to ORR. Further, under
current ORR policies, unaccompanied children's attorneys may request
their clients' case files, including on an expedited timeframe, as
needed. ORR notes that its existing subregulatory guidance contains
more detailed requirements related to the disclosure of records for
these individuals, and the process for requesting access to case files
or records. ORR believes that its established process for requesting
access to case files safeguard and maintain the confidentiality of
unaccompanied children's case file records consistent with ORR's
responsibilities under the HSA and the TVPRA, as stated in the preamble
discussion. Further, ORR believes that its proposed policies under
Sec. 410.1303(g) in the NPRM (redesignated to Sec. Sec. 410.1303(h)
in the final rule) recognize that unaccompanied children are vulnerable
persons, and therefore, the privacy and confidentiality of their
records is paramount, and carry out ORR's responsibility for
maintaining and safeguarding unaccompanied children's records and
information under the HSA and the TVPRA.
Comment: One commenter recommended that ORR require care provider
facilities to keep detailed records of any circumstance in which they
believe an unaccompanied child to have been separated from, a parent,
legal guardian, or other family member at the time of apprehension into
Federal custody. The commenter suggested that even if the separation
cannot be substantiated, care provider facilities must collect all
available information relating to the biographical information of the
separated parent, legal guardian, or family member, the specific facts
of the separation, documentation of notification to the child of the
child's rights, and documentation of a referral for a child advocate.
Response: ORR thanks the commenter for the recommendation, and
notes that under Sec. 410.1302(c)(2)(ii) it is finalizing a
requirement that essential data relating to the identification and
history of the unaccompanied child and family be collected upon the
referral of an unaccompanied child by another Federal department or
agency into the custody of ORR. ORR also notes that it is already
required to collect and share significant amounts of information
relating to separated children as part of a Settlement Agreement
reached in the class action Ms. L. litigation.\252\ The settlement
requires that ORR receive the information described by the commenter at
or near the time of such child's transfer to ORR custody. ORR further
notes that this information will be part of the separated child's case
file.
Comment: Several commenters stated concerns that the requirement to
provide advance notice to ORR prior to disclosure of information under
proposed Sec. 410.1303(g)(4) in the NPRM (redesignated to Sec.
410.1303(h)(4) in the final rule) would violate the Whistleblower
Protection Act, its subsequent amendments, and 5 U.S.C. 7211 and the
right of employees to furnish information to Congress without
interference. One commenter stated that proposed Sec. 410.1303(g)(4)
in the NPRM (redesignated to Sec. 410.1303(h)(4) in the final rule)
appears to formalize a blanket prohibition on certain personnel from
releasing information without ORR's prior approval and without
consideration for whistleblower protection and disclosure laws. One
commenter stated that, because ORR is requiring care provider
facilities and PRS providers to furnish records immediately, ORR should
be able to provide this same information to state and local agencies
for oversight of ORR.
Response: ORR emphasizes that no portion of this regulation impacts
the rights, protections, and vital work of whistleblowers in providing
information for the protection of children in ORR custody and for the
general public interest. Section 410.1303(g) as proposed in the NPRM
(redesignated to Sec. 410.1303(h)(4) in the final rule) has no bearing
on whistleblower policy and protections in any way and does not intend
to infringe upon them. ORR will continue to comply with all required
whistleblower
[[Page 34500]]
protection laws and encourages all whistleblowers to come forward as
necessary and appropriate. Whistleblowers can initiate the process to
report concerns to appropriate authorities, such as OIG or Congress. If
case records are needed, OIG or Congress can request them from ORR. ORR
discusses in the preamble of the NPRM its pre-approval of certain
limited disclosures for the purposes of facilitating efficient program
administration, and notes that it includes disclosures pursuant to all
available whistleblower protection laws. ORR is committed to fully
respecting and enforcing whistleblower protections, and nothing in part
410 should be read as removing or weakening those protections and
rights. ORR's policy of allowing certain limited disclosures by ORR
grantees and contractors without attaining prior ORR approval 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, and
it ensures that whistleblowing is not hindered or discouraged. ORR's
intention with these requirements is first and foremost to protect the
privacy and confidentiality of unaccompanied children and their
families. It is in their interest, broad child welfare interest, and
the public interest to ensure that their information is not freely or
erroneously shared with others. These information sharing requirements
have no bearing on existing whistleblower protections, which remain in
place and continue to be a key mechanism for ensuring the safety and
well-being of all children in ORR care. In order to make this clear, in
this final rule, ORR is amending proposed Sec. 410.1303(g)(4) in the
NPRM (redesignated to Sec. 410.1303(h)(4) in the final rule) to
explicitly state that the provision is subject to applicable
whistleblower protection laws.
Comment: Several commenters stated that providing a file to ORR
``immediately'' on request will likely be problematic for many programs
and requested that ORR include a reasonable standard of within 4
business days for routine requests and 4 business hours for urgent
requests. One commenter stated that the rationale for requiring
immediate access to a case file for a child in ORR's custody would not
necessarily apply to PRS providers, noting that the current policy of
ORR does not always consider PRS to be included in the case file and
that the proposed rule would be an expansion intended to apply to PRS
providers and files. While the commenter expressed support for the
expansion of PRS services, they did not believe that such an expansion
necessitated that ORR be given immediate access to all PRS case files
and noted that a requirement for immediate access could cause
difficulties with the stated goals of providing the expanded services.
Response: ORR acknowledges the commenters' concerns related to the
immediate provision of case files to ORR but believes the immediate
provision of case files is necessary to ensure ORR has timely and
accurate information. ORR will continue to monitor the impact of these
requirements as they are implemented and may provide additional
guidance related to the timelines for the immediate provision of case
file information.
As to the concern about this requirement applying to PRS providers,
ORR notes that it provides PRS to unaccompanied children by funding
organizations through cooperative agreements. As a matter of prudent
program management, ORR requires access to PRS provider records. ORR
notes this requirement is also consistent with HHS regulations
requiring agencies to have access to grantee records.\253\ ORR also
reiterates its discussion in the preamble that 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.'' Lastly, it was
unclear from the comments why an ORR requirement for immediate access
to PRS records would cause difficulties with expanding services.
However, ORR notes that it may provide additional subregulatory
guidance as necessary to support the implementation of expanded PRS
while ensuring ORR access to information as requested.
Comment: One commenter agreed that the language at proposed Sec.
410.1303(g)(4) in the NPRM (redesignated to Sec. 410.1303(h)(4) in the
final rule) prohibiting certain individuals from disclosing sensitive
information is appropriately strong and wide-ranging, but believed the
term ``program administration'' is ambiguous. The commenter recommended
that this should refer only to the administration of ORR's own
programs, and not to the administration of programs of other agencies,
such as those operated by U.S. Immigration and Customs Enforcement. The
commenter suggested that individuals affiliated with ORR-funded service
providers should not be allowed to communicate sensitive information
about a child or their family for purposes other than the care and
well-being of a child and that ORR should specify here that the named
exception applies only to its own programs.
Response: ORR clarifies that ``program administration'' refers to
administration of the UC Program and routine disclosures that are
necessary to provide relevant services to unaccompanied children. ORR
refers the commenter to its discussion above describing ORR's policy of
allowing certain limited disclosures by ORR grantees and contractors
without attaining prior ORR approval (noting examples such as
registration for school and for other routine educational purposes;
routine medical, dental, or mental health treatment; emergency medical
care; and otherwise obtaining services for unaccompanied children in
accordance with ORR policies). ORR reiterates that the provisions in
Sec. 410.1303(h) as codified in this final rule 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 also notes that its authority to regulate does not extend to
the programs of other agencies, and thus records requirements, along
with any of the requirements described in this final rule, apply only
to the ORR UC Program.
Comment: One commenter stated that it is unclear how accountability
systems for preserving the confidentiality of children's information
and protecting their records from unauthorized use or disclosure at
Sec. 410.1801(b)(17) in the NPRM (redesignated as Sec.
410.1801(c)(13) in the final rule) should be integrated with similar
requirements proposed at Sec. 410.1303(g) through (h) (redesignated to
Sec. Sec. 410.1303(h) through (i) in the final rule) that apply to all
care providers, including emergency facilities.
Response: The requirements at proposed Sec. 410.1801(b)(17) in the
NPRM (redesignated as Sec. 410.1801(c)(13) in the final rule) state
that emergency or influx facilities maintains records of case files and
make regular reports to ORR and must have accountability systems in
place which preserve the confidentiality of client information and
protect the records from unauthorized use or disclosure. ORR notes that
proposed Sec. 410.1303(g) through (h) in the NPRM, finalized at
redesignatedSec. 410.1303(h)
[[Page 34501]]
through (i), provides more detailed requirements for all care provider
facilities, and in the case of emergency or influx facilities, provides
additional parameters for the accountability systems that the EIFs must
have in place. However, ORR agrees that accountability to ensure that
EIFs faithfully follow these recordkeeping requirements is important.
Therefore, ORR will move the provision that was proposed at Sec.
410.1801(b)(17) in the NPRM (``The EIF shall maintain records of case
files and make regular reports to ORR. EIFs must have accountability
systems in place, which preserve the confidentiality of client
information and protect the records from unauthorized use or
disclosure.'') into the newly designated Sec. 410.1801(c)(13) so that
the provision is non-waivable for EIFs.
Comment: One commenter stated that the rule should also provide for
mechanisms to inform, obtain consent, and redress any breaches of
privacy and confidentiality, and recommended including language in this
section to explicitly address that.
Response: ORR notes that it has requirements related to informing
and obtaining consent for record disclosure in its existing
subregulatory guidance. In addition, as described above, ORR considers
unaccompanied children's records to be subject to the Privacy Act.
Therefore, it understands that unlawful disclosures may be subject to
remedies described in that Act. ORR further notes that the Office of
the Ombuds, as finalized and described under subpart K, may make
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, including any concerns reported to the Ombuds related to
privacy and confidentiality. However, ORR will continue to monitor the
impact of these requirements as they are implemented.
Final Rule Action: After consideration of public comments, ORR is
revising Sec. 410.1303(a) to state ``ORR shall monitor'' rather than
``ORR monitors;'' Sec. 410.1303(c) to state ``ORR shall review''
instead of ``ORR reviews;'' and new Sec. 410.1303(f) (previously Sec.
410.1303(e) in the NPRM) to state ``Care providers shall'' instead of
``ORR shall require care providers to;'' new Sec. Sec. 410.1303(g)(1)
through (4) (previously Sec. Sec. 410.1303(f)(1) through (4) in the
NPRM) to state ``shall'' instead of ``must'' and ``shall not'' instead
of ``must never'' or ``are prohibited from;'' new Sec. Sec.
410.1303(h)(1) through (4) (previously Sec. Sec. 410.1303(g) (1)
through (4) in the NPRM) to state ``shall'' instead of ``must'' or
``may;'' and new Sec. 410.1303(i) (previously Sec. 410.1303(h) in the
NPRM) to state ``shall'' instead of ``must.'' ORR is also adding a new
paragraph, (e), requiring enhanced monitoring of unlicensed standard
programs and emergency or influx facilities, which states, ``In
addition to the other requirements of this section, for all standard
programs that are not State-licensed for the care of unaccompanied
children and for emergency or influx facilities, ORR shall conduct
enhanced monitoring, including on-site visits and desk monitoring.''
The remaining paragraphs of Sec. 410.1303 have been redesignated
accordingly. Additionally, ORR makes a clarifying revision at new Sec.
410.1303(h) (previously Sec. 410.1303(g) in the NPRM) to delete
``whether the program is a standard program or not'' as both standard
and non-standard programs are already included in the definition of
care provider facilities. ORR makes grammatical revisions to the
previous Sec. 410.1303(g)(2) in the NPRM, now Sec. 410.1303(h)(2),
and divides this provision into two sentences. It now states ``The
records included in an unaccompanied child's case files are ORR's
property, regardless of whether they are in ORR's possession or in the
possession of a care provider facility or PRS provider. Care provider
facilities and PRS providers may not release those records or
information within the records without prior approval from ORR except
for program administration purposes.'' ORR is revising the previous
Sec. 410.1303(g)(4) in the NPRM, now Sec. 410.1303(h)(4), to add that
ORR's requirements to not disclose case file records or information are
``subject to applicable whistleblower protection laws.'' ORR is also
revising the previous Sec. 410.1303(h) in the NPRM, now Sec.
410.1303(i), to specify that care provider facilities and PRS providers
shall maintain adequate records in the unaccompanied child case file.
ORR is otherwise finalizing Sec. 410.1303 as proposed.
Section 410.1304 Behavior Management and Prohibition on Seclusion and
Restraint
ORR proposed in the NPRM language at Sec. 410.1304 describing the
requirements for behavior management and the prohibition on seclusion
and restraint (88 FR 68941 through 68942). ORR proposed in the NPRM
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
is subject to behavioral interventions.
Effective behavior management is critical to supporting the health,
safety, and well-being of unaccompanied children in ORR care and can
help prevent emergencies and safety situations. Consistent with ORR's
statutory responsibilities, ORR proposed in the NPRM at Sec.
410.1304(a) to 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 Sec. 410.1304(a), ORR proposed in
the NPRM that 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 proposed in the NPRM that the behavior management
strategies must not use any practices that involve negative
reinforcement or involve 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 relief). It
would also include prohibiting the use of forced chores or other
activities that serve no
[[Page 34502]]
purpose except to demean or humiliate an unaccompanied child, 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 Sec. 410.1304(a)(2), ORR proposed
in the NPRM to 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
noted that under Sec. 410.1305 of the NPRM it proposed requiring
training for care provider facility staff on behavior management
strategies, including the use of de-escalation strategies. Under Sec.
410.1304(a)(3), ORR proposed in the NPRM to prohibit the use of prone
physical restraints, chemical restraints, or peer restraints for any
reason in any care provider facility setting.
ORR proposed in the NPRM, language at Sec. 410.1304(b), requiring
that 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 noted 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
noted that 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 requested comments 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.
ORR proposed in the NPRM at Sec. 410.1304(c) to prohibit standard
programs and RTCs from the use of seclusion as a behavioral
intervention. ORR noted 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 proposed
in the NPRM that standard programs and RTCs should be permitted to use
personal restraints under Sec. 410.1304(d). ORR believes that
emergency safety situations should be prevented wherever possible and
that personal restraints should only be used after de-escalation
strategies and less restrictive approaches have been attempted and
failed. As such, ORR emphasized in 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 emphasized in 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
from immigration court or asylum interviews when there are certain
imminent safety concerns. ORR noted that under proposed Sec.
410.1303(f) in the NPRM 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 proposed in the NPRM 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 noted 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. ORR proposed in the NPRM at Sec. 410.1304(e)(2) to
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 proposed in the NPRM at
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 noted 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 should remain in
restraints while in their courtroom. ORR proposed in the NPRM 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 Sec. 410.1304(f) ORR
proposed in the NPRM to 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.
Comment: One commenter wrote that proposed Sec. 410.1304(a) aligns
with many State laws and recommended that ORR require care provider
facilities to employ trauma-informed, evidence-based de-escalation and
intervention techniques when responding to the behavior. The commenter
recommended an additional provision under Sec. 410.1304(b) requiring
that trauma-informed, evidence-based de-escalation and intervention
techniques be exhausted before resorting to law enforcement, and that
facilities should develop collaborative relationships with community-
based service organizations that provide culturally relevant and
trauma-informed services to the children served by the facility.
Response: Section 410.1304(a) of this final rule provides that care
provider facilities must develop behavior
[[Page 34503]]
management strategies that include evidence-based, trauma-informed, and
linguistically responsive program rules and behavior management
policies, and notes that the requirements for these strategies include
behavior intervention techniques utilized by care provider facilities.
As discussed in the preamble of the NPRM, 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 (88 FR
68941). ORR notes that under Sec. 410.1305 it is finalizing a
requirement for training for staff at standard programs and restrictive
placements on the behavior management strategies, including the use of
de-escalation strategies. ORR is revising Sec. 410.1304(a) to state
``shall'' instead of ``must'' and ``care provider facilities shall''
instead of ``the behavior management strategies must'' to reflect that
these are requirements of care provider facilities. ORR is also
revising Sec. 410.1304(a)(1) to replace ``family/sponsor'' with
``sponsor,'' as family in this context is redundant of sponsor.
Related to the recommendations for Sec. 410.1304(b), ORR
reiterates its discussion in the NPRM that ORR expects care provider
facilities to apply other means to de-escalate concerning behavior
before a call to law enforcement is made. ORR notes that it requested
comments in the NPRM 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.
Comment: One commenter recommended that access to privacy should
not be routinely used as an incentive or punishment for behavior
management because they believe it is ineffective.
Response: ORR believes that having a reasonable right to privacy is
important for unaccompanied children and is in line with the
requirements under Exhibit 1 of the FSA, and for that reason has
further revised its proposal to add Sec. 410.1302(c)(14) to require a
reasonable right to privacy as a minimum standard. ORR believes its
revisions at Sec. 410.1302(c)(14) establishing a reasonable right to
privacy as a minimum standard adequately protects unaccompanied
children's access to privacy related to behavior management as well.
Comment: A few commenters supported the prohibition of certain
practices under Sec. 410.1304(a)(2)(ii) and recommended that that the
provision should also state that limiting access to religious services
should not be a punishment for behavior, as children who miss religious
services often report anxiety and frustration.
Response: ORR believes that access to religious services is an
important source of support for unaccompanied children and is therefore
revising Sec. 410.1304(a)(2)(ii) to include religious observation and
services as part of the activities and items care provider facilities
shall not deny as part of behavior management strategies.
Comment: In response to ORR's request in the NPRM for comments on
the process ORR should require care provider facilities to follow
before engaging law enforcement, one commenter recommended factors to
consider before a call to law enforcement, including the nature,
duration, and severity of the risk; the probability that the potential
injury will actually occur; and whether reasonable modifications of
policies, practices, or procedures or the provision of auxiliary aids
or services will mitigate the risk without the involvement of law
enforcement. Another commenter recommended ORR implement a trauma-
informed care system that begins at the moment a child first enters ORR
custody, rather than in the midst of a crisis that warrants
intervention. Another commenter recommended that ORR implement
behavioral support systems that are fair, consistent, and equitably
enforced, with consideration for individualized needs and unconscious
bias.
Response: ORR thanks the commenters for their feedback related to
ORR's request for comments on the procedures that care provider
facilities should be required to follow before engaging law
enforcement. ORR may consider these suggestions for future policymaking
in this area.
Comment: Several commenters did not support Sec. 410.1304(b) as
proposed in the NPRM and were concerned that it would disincentivize
staff from contacting law enforcement with safety concerns or reporting
escalating behavior. Some commenters were concerned that a call to law
enforcement could trigger an evaluation of the staff involved, but not
an evaluation of the child's behavior or the care provider facility's
policies or procedures. One commenter stated that law enforcement could
be effective in preventing children from being involved in emergencies
and are better equipped to respond to such situations. One commenter
noted that in some cases, like emergencies, care provider facilities
may need to call 9-1-1. Other commenters did not support the proposal
under Sec. 410.1304(b) and were concerned that it would impede the
ability of law enforcement to investigate child trafficking.
Response: ORR disagrees that engaging law enforcement is an
effective first-line strategy to prevent emergency safety situations
arising from behaviors, because as stated in the preamble to the NPRM,
ORR does not believe that calls to law enforcement are an effective
behavior management strategy, and care provider facilities are expected
to apply other means to de-escalate concerning behavior (88 FR 68942).
ORR reiterates that it does believe that calls to law enforcement may
sometimes be necessary when other less restrictive approaches have been
tried and failed, when there is an emergency, or when the safety of
children or staff are at issue, and that care provider facilities may
need to call 9-1-1 as a last resort. ORR's proposal is intended to
ensure that calls to law enforcement occur only in these limited
scenarios, and that an evaluation of staff may be required to determine
compliance with this proposal.
ORR notes that it is finalizing under Sec. 410.1303(g) that 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. ORR routinely reviews all such reports and determines
whether further follow-up or corrective actions are necessary when care
providers are out of compliance with ORR's requirements. Further, ORR
is finalizing behavior management requirements under Sec. 410.1304(a)
pursuant to which care providers shall use evidence-based, trauma-
informed, and linguistically responsive program rules and behavior
management policies.
Comment: A few commenters supported the proposal under Sec.
410.1304(b) and had recommendations related to calls to law enforcement
for unaccompanied children with disabilities. Recommendations included
that a call to law enforcement should trigger a mandatory evaluation of
the involved staff and of compliance with
[[Page 34504]]
the requirements of the child's current ISP, as well as a re-assessment
of the child's ISP and whether the child needs additional services or
reasonable modifications.
Response: ORR will study these important issues further and will
consider the commenters' recommendations in future policymaking, which
may be informed by the anticipated comprehensive disability needs
assessment that ORR will be undertaking in collaboration with subject
matter experts, and ORR's development of a disability plan.
Comment: One commenter was concerned that the proposal would impede
whistleblowers and limit outside accountability.
Response: ORR does not believe that requiring a call to law
enforcement be a last resort to address behavior issues impedes the
ability of whistleblowers, and notes that this requirement under Sec.
410.1304(b) is specific to behavior management. ORR wishes to emphasize
that no portion of this regulation impacts the rights, protections, and
vital work of whistleblowers in protecting children in ORR custody and
for the general public interest. ORR notes that it is finalizing its
proposal to require, under Sec. 410.1303(g), reporting of all program-
level events, significant incidents, and emergency incidents consistent
with any applicable Federal, State, and local reporting laws because
ORR believes such reporting can increase safety for children in ORR's
care, and promote transparency and improve the care provided.
Specifically related to child trafficking, ORR's current policies, as
outlined in the ORR Policy Guide, require that care provider facilities
report suspicions about the possibility of human trafficking or
smuggling to OTIP within 24 hours, and that a child be referred to a
child advocate for support if a historical disclosure is made related
to labor or sex trafficking. Lastly, ORR is finalizing its proposal
under Sec. 410.2000 to establish a UC Office of the Ombuds; its goals
in doing so are to provide an independent and impartial body that can
receive reports and grievances regarding the care, placement, services,
and release of unaccompanied children.
Comment: One commenter stressed that special consideration should
be given to Indigenous children when calling law enforcement due to
historical and ongoing trauma of Indigenous peoples in their countries
of origin.
Response: ORR thanks the commenter for their feedback. ORR agrees
that culturally sensitive and trauma-informed approaches should be
exhausted first before resorting to a call to law enforcement for all
unaccompanied children, including Indigenous children, and that
individual needs assessments, outlined at Sec. 410.1302(c)(2), are an
important part of taking the historical and cultural backgrounds of
children into account when developing goals and plans for the children
while in ORR care.
Comment: A few commenters supporting the proposal had additional
recommendations, including requiring that a child's contact with law
enforcement trigger a referral for mental health services; requiring an
evaluation of staff in all instances of calls to law enforcement due to
the impact of unconscious bias and potential harm to children from
unnecessary interactions with the police; requiring staff to apply
other trauma-informed, evidence-based, age appropriate and strengths-
based means to deescalate concerning behavior, and principles for
effective de-escalation, such as requiring a mental health response for
a mental health crisis. One commenter recommended that ORR clarify that
law enforcement should only be called in emergency safety situations.
Response: ORR believes that the mental health needs of
unaccompanied children should be supported, and for that reason is
finalizing at Sec. 410.1307(a)(1) that care provider facilities must
have mental health professionals as part of their network of licensed
healthcare providers to ensure access to such healthcare services, and
at Sec. Sec. 410.1302(c)(5) and (6) that individual and group
counseling must be provided to unaccompanied children. ORR believes
that calls to law enforcement should only be made as a last resort,
such as emergencies or where the safety of unaccompanied children or
staff are at issue. ORR is not requiring staff evaluations in all
instances of calls to law enforcement out of concern that this could
prevent staff from calling law enforcement when it is indeed
appropriate (i.e., in emergency safety situations when it is a last
resort and other, less restrictive methods have been tried and failed).
Comment: One commenter recommended that ORR require documentation
of the use of restraints and seclusion, including the type of restraint
used, if applicable, and the justification to align with external
standards. The commenter also recommended that ORR clarify that any use
of restraints should be treated as an emergency incident, significant
incident, or program-level event subject to documentation under
proposed Sec. 410.1303(f) in the NPRM. A few commenters recommended
that ORR require documentation of any use of a restraint on a child,
including the evidence the staff relied upon in determining that the
use of a restraint or seclusion of a child was warranted. They
recommended every instance in which a restraint is used on a child be
reviewed and evaluated for compliance and staff qualification and
training, noting that this can be used to determine whether any
corrective action is warranted at the staff or facility-level.
Response: ORR is finalizing under Sec. 410.1303(g) that 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. ORR notes that the definition of significant incident
expressly includes the use of safety measures, such as restraints, and
the definition of emergency incident means an urgent situation in which
there is an immediate and severe threat to a child's safety and well-
being that requires immediate action. Accordingly, all uses of
restraints or seclusion must be appropriately documented and reported
to ORR, consistent with Sec. 410.1303(g). ORR believes these reporting
requirements are sufficient to document the use of restraints and
seclusion with enough detail to enable further incident review.
ORR emphasizes that, as finalized under Sec. 410.1304(e)(1),
mechanical restraints are permitted only in secure facilities (that are
not RTCs), in emergency safety situations, and consistent with State
licensure requirements. ORR notes that under Sec. 410.1001 it is
finalizing the definition of emergency safety situation to mean 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. ORR is further clarifying in the definition of mechanical
restraints at Sec. 410.1001 by adding that, ``For purposes of the
Unaccompanied Children Program, mechanical restraints are prohibited
across all care provider types except in secure facilities, where they
are permitted only as consistent with State licensure requirements.''
ORR reiterates that, as discussed in the preamble of this final
rule addressing subpart D and as it proposed in the NPRM, it believes
that mechanical restraints should only be used after de-escalation
strategies and less restrictive approaches have been attempted and
failed (88 FR 68942). ORR further emphasizes that it is finalizing,
under Sec. 410.1305(a), that
[[Page 34505]]
standard programs and restrictive placements (which include secure
facilities) shall ensure that staff are appropriately trained on
behavior management strategies, including de-escalation techniques. In
addition, under Sec. 410.1303(g), all uses of mechanical restraint as
well as personal restraint and seclusion must be appropriately
documented and reported to ORR. ORR will use these reports to closely
examine each use by a secure facility of restraints or seclusion to
ensure that it comports with these regulations as well as governing
Federal constitutional and statutory requirements.
Comment: One commenter recommended that ORR adopt a requirement to
frequently monitor a child during the use of restraints or seclusion,
and that staff should use only the minimum amount of force for the
minimum amount of time necessary to gain control of the child and that
restraints should never be used in a manner that causes physical,
emotional, or psychological pain, extreme discomfort, or injury. The
commenter noted that this is in alignment with external standards.
Response: For standard programs and RTCs, ORR reiterates that it is
finalizing under Sec. 410.1304(c) that seclusion and restraint are
prohibited, except for the circumstances under Sec. 410.1304(d) which
permit the use of personal restraint only in emergency safety
situations. ORR is revising Sec. 410.1304(c) to remove the phrase ``as
a behavioral intervention'' because ORR believes seclusion is already
distinct, by definition, from medical isolation. ORR reiterates
believes that personal restraints should only be used after de-
escalation strategies and less restrictive approaches have been
attempted and have failed.
Related to secure facilities, ORR first notes that it is replacing
``except for RTCs'' with ``(that are not RTCs)'' for consistency with
phrasing throughout the regulation text of part 410. Furthermore, ORR
is finalizing at Sec. 410.1304(e)(1) that personal restraint,
mechanical restraint, and/or seclusion are permitted in emergency
safety situations, and as consistent with State licensure requirements.
ORR believes that adding ``and as consistent with State licensure
requirements'' emphasizes how ORR requirements are intended to
complement State requirements related to the use of restraints and
seclusion in secure facilities that are not RTCs. Additionally, ORR is
adding at Sec. 410.1304(e)(1) that ``All instances of seclusion must
be supervised and for the short time-limited purpose of ameliorating
the underlying emergency risk that poses a serious and immediate danger
to the safety of others.'' ORR also notes that it is revising the
definition of seclusion at Sec. 410.1001 to ``the involuntary
confinement of a child alone in a room or area from which the child is
instructed not to leave or is physically prevented from leaving'' by
adding ``is instructed not to leave or.'' ORR believes that the use of
restraints or seclusion should only be utilized in emergency safety
situations, that staff should use only the minimum amount of force for
the minimum amount of time necessary to gain control of the child, and
that restraints and seclusion should never be used in a manner that
causes physical, emotional, or psychological pain, extreme discomfort,
or injury, but believes its policy otherwise as proposed is sufficient
to protect children from improper use of restraints or seclusion. This
policy is based on ORR's existing practices, and ORR prefers to keep
the details of its policy in subregulatory guidance so ORR can make
timely updates as best practices continue to evolve.
Comment: One commenter wrote that unaccompanied children with
disabilities are at a higher risk of being subjected to restraints or
seclusion due to their disability-related behavior. While the commenter
opposed the use of seclusion in any care provider setting, they
recommended, at minimum, that any use of personal restraints or
seclusion of a child with a disability trigger an evaluation of the
staff involved, including an evaluation for compliance with the child's
ISP and an assessment whether reasonable modifications could have
eliminated the need for the use of restraint or seclusion. Finally, the
commenter recommended that ORR delineate specific factors that staff
should consider when deciding whether it is appropriate to utilize
restraint or seclusion, such as the nature, duration, and severity of
the risk presented by the child's behavior and develop guidance to
ensure the child's physical health and safety and guard against the use
of restraint or seclusion where contraindicated based on the child's
individualized needs.
Response: ORR agrees that a child's disability is an important
factor to consider when determining whether restraint or seclusion is
appropriate. As noted in the background discussion at III.B.4 and
responses to previous comments, ORR is intending to work with experts
to undertake a year-long comprehensive needs assessment to evaluate the
adequacy of services, supports, and resources currently in place for
unaccompanied children with disabilities in ORR's custody across its
network, and to identify gaps in the current system, which will inform
the development of a disability plan and future policymaking that best
address how to effectively meet the needs of children in ORR's care and
custody. These efforts will provide ORR with an opportunity to consider
commenters' recommendations in greater depth.
Comment: One commenter supported ORR's provision limiting the use
of personal restraints to emergency safety situations. A few commenters
wrote that ORR should ensure personal restraints are used only when
absolutely necessary in emergency safety situations when the child
presents an imminent risk of physical harm to self or others. One
commenter recommended that ORR clarify that emergency safety situations
should be prevented wherever possible; that alternative interventions
to de-escalate emergency safety situations be exhausted, including
following a child's ISP; that decisions on whether a situation
necessitates personal restraints be made by staff with appropriate
training and child welfare expertise; that care providers only be
permitted to use a restraint for as long as necessary to ensure the
safety of the child or others and use of the restraint must immediately
end upon the cessation of the safety threat, with a maximum duration of
15 minutes.
Response: ORR agrees 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,
such as any detailed in a child's ISP, have been attempted and failed.
ORR also agrees that personal restraint should only be used when
absolutely necessary in emergency safety situations and for that
reason, is finalizing at Sec. 410.1304(d) that standard programs and
RTCs may use personal restraint only in emergency safety situations.
ORR further notes that under Sec. 410.1001 it is finalizing the
definition of emergency safety situation to mean 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.
ORR notes that it included a training requirement for standard
programs and restrictive placements to ensure that staff are
appropriately trained on behavior management strategies, including de-
escalation techniques, as a proposed requirement in the preamble
discussion of Sec. 410.1304 (88 FR 68942) and Sec. 410.1305(a) (88 FR
68943), but the training requirement was omitted in
[[Page 34506]]
error in the regulation text of Sec. 410.1305(a). As such, ORR is
finalizing the requirement under Sec. 410.1305(a) that ``Standard
programs and restrictive placements shall ensure that staff are
appropriately trained on its behavior management strategies, including
de-escalation techniques, as established pursuant to Sec. 410.1304.''
As previously discussed, ORR is not specifying further training topics
in this rule so it can provide more timely, frequent, and iterative
updates through its existing policies. However, ORR agrees that
training on the use of restraints, including how to determine when a
situation necessitates restraints, is a type of training that may be
appropriately required of staff pursuant to Sec. 410.1305. ORR
appreciates the commenters' feedback relating to potential time
limitations on personal restraint and decisions by staff on whether
restraint is necessitated.
Comment: One commenter was concerned, related to Sec.
410.1304(e)(2), that an unaccompanied child that is a danger to self or
others during secure transport has that same level of risk regardless
of the destination, and requested clarification.
Response: While placed at secure facilities (that are not RTCs),
children will rarely have the occasion to be transported for
circumstances other than for appearances in immigration court or asylum
interviews. However, because there could be other circumstances in
which transportation is needed, we have revised 410.1304(e)(2) to apply
to transportation generally. ORR notes that Sec. 410.1304(f) provides
for the use of soft restraints during transport to and from secure
facilities when the care provider facility believes a child poses a
serious risk of physical harm to self or others or a serious risk of
running away from ORR custody.
Comment: One commenter was concerned about the use of restraints
while unaccompanied children appear in immigration court or at an
asylum interview and recommended that ORR include a requirement for
staff to demonstrate that no reasonable alternative is available before
using restraints in court proceedings.
Response: ORR thanks the commenter for their feedback. ORR
reiterates that secure facilities may have safety or runaway risk
concerns for which they deem restraints necessary for certain
unaccompanied children. Further, the conduct of an immigration court
proceedings or asylum interviews are outside the scope of this rule.
Therefore, ORR does not adopt the commenter's recommendation.
Comment: One commenter was concerned about the qualifications of
staff determining whether to use restraints during transport and while
at immigration court or asylum hearings, noting that there is a risk of
harm from unnecessary use of restraints and trauma-informed approaches
are available instead. They recommended that the decision whether to
use restraints be made by a licensed psychologist or psychiatrist and
include a confirmation that there are no other alternatives available.
Finally, the commenter recommended that ORR require care provider
facilities to notify ORR, the child, and the legal services provider
when restraints are being considered to coordinate with children and
their legal representatives if assistance is requested to reschedule
hearings or interviews or for other accommodations; and documenting any
use of restraints.
Response: ORR agrees that trauma-informed and less restrictive
approaches should be attempted and failed before an unaccompanied child
is restrained. ORR thanks the commenters for their feedback related to
the qualifications of staff making determinations for the use of
restraints and notifications related to the potential use or use of
restraints. ORR is not requiring advanced notification related to the
use of restraints because such decisions may be time-sensitive and in
response to emergency safety situations or behaviors by the child that
demonstrate a risk of harm. ORR notes that it is finalizing
requirements requiring the reporting and documentation of any emergency
incident, significant incident, or program level event, which include
the documentation of the use of any restraints, and ORR has existing
policies on the reporting of certain significant incidents to attorneys
of record and legal service providers, among other individuals.
Comment: One commenter was concerned about the use of restraints
and seclusion in secure facilities under Sec. 410.1304(e), noting that
the limitation to emergency safety situations is too vague and does not
limit their use to exceptionally rare circumstances when there is no
reasonable alternative to prevent escape or physical injury, as
required by external standards. A few commenters opposed the provision
because mechanical restraints and seclusion are not permitted in other
placement types, due to concern over past alleged improper use of
mechanical restraints and seclusion in secure facilities, because
mechanical restraints and seclusion can cause harm even in emergency
safety situations, and finally, because the commenter asserted that
children in secure facilities have the greatest need for supports and
services, mechanical restraints and seclusion are particularly
inappropriate.
Response: ORR reiterates that it proposed in the NPRM to only allow
the use of mechanical restraints and seclusion in emergency safety
situations, and that it believes that they should only be used after
de-escalation strategies and less restrictive approaches have been
attempted and failed (88 FR 68942). ORR notes that under Sec. 410.1001
it is finalizing the definition of emergency safety situation to mean 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, and is finalizing the definition of mechanical restraint to
add ``For purposes of the Unaccompanied Children Program, mechanical
restraints are prohibited across all care provider types except in
secure facilities, where they are permitted only as consistent with
State licensure requirements.''
Final Rule Action: After consideration of public comments, ORR is
revising Sec. 410.1304(a) by replacing ``must,'' as used in the NPRM,
to ``shall'' and ``care provider facilities shall'' instead of ``the
behavior management strategies must.'' ORR is revising Sec.
410.1304(a)(1) to replace ``family/sponsor'' with ``sponsor.'' In
addition, ORR is revising Sec. 410.1304(a)(2)(ii) to include
``religious observation and services'' as one of the activities that
care providers are prohibited from denying to unaccompanied children
and is otherwise finalizing this section as proposed. Finally, ORR is
revising Sec. 410.1304(e)(1) by adding ``and as consistent with State
licensure requirements,'' and ``All instances of seclusion must be
supervised and for the short time-limited purpose of ameliorating the
underlying emergency risk that poses a serious and immediate danger to
the safety of others;'' and by replacing ``except for RTCs'' with
``(that are not RTCs).'' Finally, ORR is revising Sec. 410.1304(e)(2)
to apply to transportation generally.
Section 410.1305 Staff, Training, and Case Manager Requirements
Having requirements 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. ORR proposed in the NPRM at
Sec. 410.1305 to establish certain requirements consistent with ORR's
authority to oversee the infrastructure and personnel of facilities in
which unaccompanied
[[Page 34507]]
children reside (88 FR 68942 through 68943).\254\ Under Sec.
410.1305(a), ORR proposed in the NPRM to 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 anticipated that examples of training topics under
this 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 with training
in early childhood care best practices. Additionally, case managers
should be trained on child welfare best practices before providing
services to children.\255\ 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.
Under Sec. 410.1305(b), ORR proposed in the NPRM that 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
unavailable. 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 Sec. 410.1305(b), ORR proposed in the NPRM
to require the care provider to abide by that smaller ratio.
Standard programs and restrictive placements must 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 proposed in the NPRM
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.
Before proceeding to discuss comments on Sec. 410.1305, ORR would
like to discuss a key issue raised by commenters relating to Sec.
410.1302 that pertain to Sec. 410.1305 as well. Several commenters
expressed concern that the proposed language ``or that meets other
requirements specified by ORR'' at Sec. 410.1302(a) was not
sufficiently specific or clear and could lead to allowing programs to
avoid licensure requirements even in a State where licensing is
available. In response, ORR revised its requirement under Sec.
410.1302(a) to make clear that if a standard program is in a State that
does not license care provider facilities because they serve
unaccompanied children, the standard program must still meet the State
licensing requirements that would apply if the State allowed for
licensure. Similarly, ORR is revising Sec. 410.1305(b), to remove ``or
ratios established by ORR if State licensure is unavailable'' and to
apply to ``care provider facilities'' to replace ``standard programs
and restrictive placements.'' Therefore, ORR is requiring at Sec.
410.1305(b) that care provider facilities shall meet the staff-to-child
ratios established by their respective States or other licensing
entities.
Comment: One commenter recommended that ORR require standard
programs that are congregate care facilities to have registered or
licensed nurse and other licensed clinical and child welfare staff
onsite.
Response: ORR thanks the commenter for their recommendation. ORR
includes requirements for care provider facilities to have clinician
and lead clinician positions within its cooperative agreements and
believes this is sufficient to ensure clinical oversight at standard
programs.
Comment: Several commenters recommended all staff and contractors
interacting with children in ORR custody receive training in trauma-
informed care approaches. A few commenters noted that such training
improves awareness of trauma-related symptoms, promotes an emotionally
safe environment, and provides interventions to mitigate the effects of
trauma. Several commenters recommended that ORR mandate training on
comprehensive, trauma-informed, culturally, and linguistically best
practices for all staff and providers who have access to unaccompanied
children.
Response: ORR notes that it included a proposed training
requirement in the preamble discussion of Sec. 410.1304 (88 FR 68942)
and Sec. 410.1305(a) (88 FR 68943) for standard programs and
restrictive placements to ensure that staff are appropriately trained
on its behavior management strategies, including de-escalation
techniques; however, the training requirement was omitted in error in
the regulation text of Sec. 410.1305(a). As such, ORR is adding the
requirement under Sec. 410.1305(a) that ``Standard programs and
restrictive placements shall ensure that staff are appropriately
trained on its behavior management strategies, including de-escalation
techniques, as established pursuant to Sec. 410.1304.'' ORR further
notes that the preamble to the NPRM describes examples of trainings
that standard programs and restrictive placements may provide,
including: 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 (88 FR 68943). ORR notes that it is also
revising Sec. 410.1305(a) to remove the phrase ``at
[[Page 34508]]
the facility'' for clarity because it is a requirement for PRS
providers, but PRS providers are not facility-based.
Comment: One commenter recommended that ORR require congregate care
facilities to conduct criminal records checks and checks on any State
child abuse and neglect registries for adults working in the facility.
A few commenters expressed concern that proposed Sec. 410.1305 does
not include standards for minimum training or prohibitive background
criteria.
Response: ORR believes that thorough background checks for all care
provider facility staff and contractors are a critical element of the
UC Program. For that reason, ORR is finalizing at Sec. 410.1305(a)
that standard programs and restrictive placements complete and document
completion of background check requirements. Further, ORR's existing
policies for care provider facilities require complete background
investigations on staff, contractors, and volunteers, and a national
criminal history fingerprint check if not already required by State
law. ORR notes that 45 CFR part 411 sets forth the relevant background
check requirements that staff at care provider facilities must undergo
prior to being hired, which include criminal background checks, child
protective services check, and in addition, staff must undergo periodic
criminal background check updates every five years. These standards
continue to apply. ORR will continue to use and update its existing
guidance to provide more detailed requirements regarding background
checks for care provider facilities. This includes having procedures in
place to help care provider facilities navigate circumstances in which
care provider facilities are awaiting the background check results of
prospective personnel. ORR has encountered issues with some state
public safety agencies that refuse to either conduct child safety
background checks or conduct them in a timely manner. Because of this,
ORR has memorialized into policy that care provider facility staff
whose FBI background checks, sex offender registry checks, and
reference checks are complete but whose Federal suitability
investigation and Federally required State-based child abuse and
neglect checks are not yet fully adjudicated must either be supervised
by direct care staff whose checks are complete or satisfy the
provisional hiring requirements that ORR has established in policy
pursuant to 45 CFR part 411. Details on how ORR utilizes child welfare
best practices and robust background check measures to onboard staff
are further provided in ORR policy.
Therefore, ORR is removing the proposed text ``prior to service
provision'' and finalizing, ``All staff, contractors, and volunteers
must have completed required background checks and vetting for their
respective roles required by ORR'' in order to provide for the
efficient onboarding of staff even if there is a delay in the
completion of background checks due to circumstances outside the
control of the care provider facility or staff member.
Comment: A few commenters recommended that ORR require staff
receive cultural competency training. One commenter specifically
requested that such cultural competency training include indigenous
cultural competency.
A few commenters recommended that ORR mandate training on
unaccompanied children's rights and responsibilities. One commenter
recommended that ORR require care providers to provide their staff with
quarterly Know Your Rights trainings to ensure that unaccompanied
children, and Indigenous unaccompanied children in particular, are
protected from human trafficking and other crimes while in ORR care. A
few commenters recommended ORR mandate training on language access
services and linguistically best practices for all staff and providers
who have access to unaccompanied children.
Many commenters recommended that ORR include staff training on
gender identity and sexual orientation in order to support the needs of
unaccompanied children in ORR care who identify as LGBTQI+.
Many commenters recommended that ORR incorporate staff training on
the impact of racial discrimination on sponsor communities and the
criminal justice system, in order to inform the use of such information
in unification decisions.
Response: ORR thanks the commenters for their feedback and declines
to accept commenter's recommendations to specify training topics. ORR
believes these recommendations are consistent with the examples
provided of training topics in the NPRM at 88 FR 68943, which included
the rights of unaccompanied children, including to educational
services, creating discrimination-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. ORR requires at Sec. 410.1305(a) that
trainings provided are responsive to the challenges faced by staff and
unaccompanied children. ORR believes that keeping the topics of
trainings in subregulatory guidance will allow ORR to make more
appropriate, timely, and iterative updates in keeping with best
practices and to allow continued responsiveness to the needs of
unaccompanied children and care provider facilities.
Comment: One commenter expressed support for codifying an
expectation of onsite case management but recommended that ORR
strengthen the language in proposed Sec. 410.1305(c) to explicitly
require that all case management occur in-person and onsite. This
commenter expressed concern that the current language may be
interpreted to permit virtual case management services, which commenter
believes is insufficient to meet the needs of each individual
unaccompanied child.
Response: ORR believes its requirement at Sec. 410.1305(c) that
standard programs and restrictive placement must have case managers
based on site at the facility is sufficient for ensuring that case
management services occur onsite, and for that reason is updating this
requirement at Sec. 410.1305(c) to apply to all care provider
facilities. ORR believes this requirement provides care provider
facilities some flexibility to meet the needs for case management of
unaccompanied children while balancing the potential operational
infeasibility of providing onsite services for all case management. ORR
encourages care provider facilities to provide onsite services to the
fullest extent possible.
Final Rule Action: After consideration of public comments, ORR is
revising Sec. 410.1305(a) to remove the phrases ``at the facility''
and ``prior to service provision'' and to replace ``and must provide
documentation to ORR of compliance'' with ``required by ORR.'' So that
it states ``All staff, contractors, and volunteers must have completed
required background checks and vetting for their respective roles
required by ORR, '' instead of ``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,'' and to
replace ``standard programs and restrictive placements'' with ``care
provider facilities.'' ORR is adding the requirement under Sec.
410.1305(a) that ``Standard programs and restrictive placements shall
ensure that staff are appropriately trained on its
[[Page 34509]]
behavior management strategies, including de-escalation techniques, as
established pursuant to Sec. 410.1304.'' ORR is revising Sec.
410.1305(b) to remove the phrase ``or ratios established by ORR if
State licensure is not available'' and to apply to ``care provider
facilities'' to replace ``standard programs and restrictive
placements.'' ORR is revising Sec. 410.1305(c) to apply to ``care
provider facilities'' to replace ``standard programs and restrictive
placements.'' ORR is otherwise finalizing Sec. 410.1305 as proposed.
Section 410.1306 Language Access Services
ORR described under Sec. 410.1306 proposed requirements to provide
language accessibility for unaccompanied children (88 FR 68943 through
68945). 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. In the
NPRM, ORR's proposed requirements under Sec. 410.1306 applied to
standard programs and restrictive placements. As discussed later in
this section, ORR's finalized language access service requirements
apply to all care provider facilities.
Under Sec. 410.1306(a), ORR proposed in the NPRM that 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 (88 FR 68943). ORR noted
in the NPRM that under 45 CFR 85.51, standard programs and restrictive
placements shall also ensure effective communication with unaccompanied
children with disabilities (88 FR 68945). 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. In the
NPRM, ORR stated that under its existing policies, standard programs
and restrictive placements are required to make every effort possible
to provide interpretation and translation services (88 FR 68943).
However, ORR noted in the NPRM its belief that it was 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. ORR stated in the NPRM
that 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
(88 FR 68943). Under the proposals in the NPRM, 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). In the NPRM, ORR
stated its belief that the proposals struck 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.
In the NPRM, ORR stated that 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, ORR stated in the NPRM that
under Sec. 410.1306(b) it would be required to make placement
decisions informed by language access considerations (88 FR 68943). In
the NPRM, ORR proposed that 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
placement. ORR stated its belief that this would further ensure the
efficient use of resources while also considering the need for timely
and appropriate placement.
ORR proposed in the NPRM at Sec. 410.1306(c) to 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 (88 FR 68944). ORR
stated in the NPRM that 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. ORR stated in the NPRM that 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.
ORR proposed in the NPRM under Sec. 410.1306(c)(1) to require that
standard programs and restrictive placements both 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 (88 FR 68944). Under the proposals in the NPRM, 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).
ORR proposed in the NPRM under Sec. 410.1306(c)(2), to require
that 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 (88 FR
68944). ORR proposed in the NPRM under Sec. 410.1306(c)(3) to 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 Sec. 410.1306(c)(4), ORR proposed in the
NPRM for all step-ups to and step-downs from restrictive
[[Page 34510]]
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 Sec. 410.1306(c)(5), ORR proposed in the NPRM that 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 (88 FR 68944). Additionally, at Sec.
410.1306(c)(6) and (7), ORR proposed in the NPRM that standard programs
and restrictive placements would be required to provide unaccompanied
children information regarding grievance reporting 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), ORR
proposed in the NPRM that 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 Sec. 410.1306(c)(9), with respect to all requirements
described in Sec. 410.1306(c), ORR proposed in the NPRM to require
standard programs and restrictive placements to document in each
unaccompanied children's case file that they acknowledged that they
effectively understand what was provided to them (88 FR 68944).
Under Sec. 410.1306(d), ORR described proposed 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. In the
NPRM, ORR proposed at section 410.1306(d)(1) to 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. ORR proposed in the NPRM under Sec.
410.1306(d)(2) to 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. ORR proposed
in the NPRM under Sec. 410.1306(d)(3) to 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 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, ORR proposed in the NPRM the
standard program or restrictive placement 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 noted 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 (88
FR 68944).\256\
ORR proposed in the NPRM 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). Under the proposals in the
NPRM, 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 or
preferred language, depending on their preference. ORR noted in the
NPRM 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 (88 FR
68944).
In the NPRM, ORR acknowledged 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 (88 FR 68945).
Under Sec. 410.1306(g), while unaccompanied children are receiving
healthcare services, ORR proposed in the NPRM to require that standard
programs and restrictive placements 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.
In the NPRM, Sec. 410.1306(h) proposed language access
requirements for standard programs and restrictive placements while
unaccompanied children receive legal services. To facilitate
unaccompanied children receiving effective legal services, ORR stated
its belief 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 (88 FR 68945). ORR proposed in the NPRM 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 proposed in the NPRM 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.
Comment: A number of commenters supported ORR's proposals for
language access services, stating the proposals ensure unaccompanied
children can effectively communicate with their caregivers, legal
representatives, and other service providers. One commenter
specifically supported the requirement that care provider facilities
offer all unaccompanied children the option of interpretation and
translation services
[[Page 34511]]
in their native or preferred language, depending on their preference,
and in a way they understand to the greatest extent practicable.
Another commenter supported consistently offering all unaccompanied
children the option of interpretation and translation services;
language access considerations informing placement decisions; and
providing educational instruction, relevant materials, appropriate
recreational reading materials, and documents that are part of the
educational lessons in a format and language accessible to all
children. This commenter stated that language access is critical to
ensure unaccompanied children can fully participate in available
services and effectively communicate with their caregivers about their
needs and reduce the isolation that comes with being unable to
communicate. Another commenter supported providing language access
services when an unaccompanied child received legal services, stating
legal service providers and child advocates cannot render effective
services without quality interpretation and translation, and the
commenter also supported providing interpretation and translation
services for children who speak indigenous dialects, which the
commenter stated has been a problem.
Response: ORR thanks the commenters for their support. As described
in the NPRM, ORR's proposed requirements under Sec. 410.1306 applied
to standard programs and restrictive placements. Upon further review of
this section and other finalized requirements, ORR is revising Sec.
410.1306 such that the language access service requirements apply to
all care provider facilities.
Comment: A few commenters recommended ORR clarify how care provider
facilities will identify an unaccompanied child's native or preferred
language. One commenter recommended that ORR specify the methods and
tools care provider facilities should use to comprehensively assess an
unaccompanied child's language proficiency, which the commenter stated
ensures an accurate understanding of the child's language needs.
Another commenter expressed concern that unaccompanied children may
feel intimidated or be unaware of their language access rights and
recommended care provider facility staff proactively approach the
children at the earliest point of contact at the facility to correctly
identify the children's ``primary'' or preferred language and evaluate
the children's language throughout the duration of their care. A
separate commenter recommended that ORR take specific steps to assess
an unaccompanied child's language needs in a culturally competent and
child sensitive manner.
Response: ORR does not intend Sec. 410.1306 to describe all
requirements related to language access services, including procedures
care provider facilities should implement. Where Sec. 410.1306
contains less detail, ORR will consider issuing policy guidance, if
needed, to provide specific guidance to address the commenters'
recommendations.
Comment: One commenter expressed concern about Sec. 410.1306(a)(1)
and treating interpretation and translation services as an option
offered to unaccompanied children without more guidance may not be
enough to ensure that these services are utilized by children. The
commenter recommended that care provider facilities specifically offer
each child interpreter and translation services to alleviate the burden
on the child to request those services.
Response: As revised, section 410.1306(a)(1) states that, to the
greatest extent practicable, care provider facilities shall
consistently offer interpretation and translation services to
unaccompanied children. ORR believes that this requirement addresses
the commenter's concern that care provider facilities specifically
offer each child these services. ORR clarifies that this requirement
places the burden on the care provider facilities to ensure children
are aware of their ability to access and receive these services so that
the burden is not on children to request these services. Further, ORR
believes the language ``to the greatest extent possible'' and
``consistently offer'' are appropriate safeguards to guarantee that
care provider facilities ensure unaccompanied children are aware of
their ability to access and receive interpretation and translation
services.
Comment: A commenter recommended ORR focus on ``language justice''
by prioritizing the provision of services in the child's preferred
language as much as possible, rather than using translators and
interpreters, to ensure children can effectively and confidently access
services in their preferred language. This commenter also stated that
language justice is critical with highly sensitive and personal
services, such as health care, where a child may feel uncomfortable
disclosing information to a third party or important details may get
lost in translation. Lastly, the commenter recommended that when
providing services in the child's preferred language is not possible,
in-person interpreter services should be used with an aim of minimizing
their necessity.
Response: ORR understands ``language justice,'' as used by the
commenter, to mean ``the right everyone has to communicate, to
understand, and to be understood in [their] language(s)'' and ``entails
a commitment to facilitating equitable communication across languages
in spaces where no language will dominate over any other.'' \257\ ORR
acknowledges the importance of ensuring unaccompanied children can
communicate in the language they feel comfortable speaking and/or
reading and feel respected in their language choice. However, in this
final rule, ORR declines to codify the commenter's recommendation to
prioritize the provision of services in the child's preferred language
as much as possible, rather than using qualified translators and
interpreters, because this standard is not required by any applicable
laws, regulations, or guidance. Instead, ORR provides, and will
continue to provide, meaningful access to its programs and services to
LEP individuals through language access services as required by
applicable laws, regulations, and guidance from the Department, and as
set forth in Executive Order 13166, Improving Access to Services for
Persons with Limited English Proficiency. Accordingly, ORR is
finalizing, under Sec. 410.1306(a)(1), that care provider facilities
must, to the greatest extent practicable, 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.
Lastly, ORR notes that it is finalizing language access
requirements related to education services at Sec. 410.1306(e),
healthcare services at Sec. 410.1306(g), and legal services at Sec.
410.1306(h), so that unaccompanied children understand the services
that are being offered and/or provided. ORR's policies prohibit staff,
contractors, and volunteers from engaging in or permitting
discriminatory treatment or harassment of anyone on the basis of their
language, which ensures unaccompanied children feel respected in their
choice of language.\258\ Finally, ORR will monitor implementation of
the regulations and will consider additional revisions if needed in
future policymaking to ensure all unaccompanied children have
meaningful access to the program regardless of the child's language,
are provided the option of interpretation and translation services in
their native or preferred language to the greatest
[[Page 34512]]
extent practicable, and are respected in their language choice.
Comment: One commenter recommended clarifying the phrase ``in a way
they effectively understand'' used throughout Sec. 410.1306 by adding
to the phrase ``given the child's level of literacy, cultural
background, age, and developmental stage'' to ensure better
understanding.
Response: ORR clarifies that ``in a way they effectively
understand'' includes consideration of the child's level of literacy,
cultural background, age, and developmental stage, as recommended by
the commenter but believes it is unnecessary to revise Sec. 410.1306
to state so explicitly. ORR will monitor implementation of the
regulation to assess whether any additional clarification is needed in
future policymaking.
Comment: One commenter recommended ORR authorize the engagement of
qualified and vetted interpreters, regardless of whether they are
located within or outside the United States, and potentially require
interpreters be affiliated with a licensed business within the United
States.
Response: ORR declines to codify this level of detail at Sec.
410.1306 as it did not intend for this regulation to govern or describe
all requirements for language access services. ORR will consider
whether any additional clarification is needed in future policymaking.
Comment: A few commenters had recommendations for ORR to improve
unaccompanied children's access to language access services when the
children's native or preferred language is less commonly spoken. One
commenter recommended ORR work with the Guatemalan government to ensure
that certified individuals conduct interpretation and translation of
Mayan, Xinca, and Garilima languages. Another commenter recommended
that for less commonly spoken languages, interpretation services should
allow staff to communicate with the interpreter in Spanish and not just
English because there may be a limited number of available interpreters
due to the rarity of some dialects. This commenter also recommended
that interpretation services for indigenous individuals should
encompass their native language and not just English and Spanish.
Response: ORR appreciates the recommendations for how to best
implement the rule when unaccompanied children's native or preferred
language is less commonly spoken. At Sec. 410.1306(a), ORR is
finalizing the requirement that interpretation and translation services
be offered in the child's native or preferred language, depending on
the child's preference, which could include the Mayan, Xinca, and
Garilima languages as mentioned by the commenter.
Additionally, ORR notes that currently staff could communicate with
qualified interpreters in Spanish and not just English. However, ORR
declines to codify this recommendation in Sec. 410.1306 because it did
not intend for the final regulation to contain this level of detail,
and where the regulation contains less detail, ORR will consider the
recommendation during future policymaking.
Comment: One commenter recommended several revisions and additions
to Sec. 410.1306 to ensure each unaccompanied child and sponsor can
communicate effectively and respectfully with ORR staff and providers,
regardless of their language or dialect, and receive language access
services while in ORR custody. Specifically, this commenter recommended
definitions for the following terms: language access services,
interpretation services, translation services, multilingual materials,
and cultural competency training. The commenter also recommended ORR
provide language access services in a timely, confidential, and
culturally appropriate manner. Additionally, the commenter recommended
that ORR provide language access services in accordance with applicable
laws and regulations, such as Title VI of the Civil Rights Act of 1964
and Executive Order 13166, and follow the standards and guidelines
issued by HHS and DOJ. Lastly, this commenter recommended each
unaccompanied child and sponsor receive services and care that are
respectful and responsive to their cultural and linguistic diversity,
staff and providers receive cultural competency training in accordance
standards and guidelines issued by HHS and DOJ, and ORR hire staff and
providers who are competent and sensitive to the cultural and
linguistic diversity of unaccompanied children and sponsors.
Response: As finalized, ORR is requiring care provider facilities
to adhere to many of these recommendations, as reflected in this final
rule. ORR did not propose to codify all terms used in the NPRM,
including those that have generally accepted definitions like
interpretation and translation services. ORR believes the meaning of
the identified terms is generally accepted and can be further
clarified, if needed, through future policymaking. Additionally, ORR
notes that it is finalizing confidentiality requirements for
interpreters and translators under Sec. 410.1306(i), and standards for
``qualified interpreter'' and ``qualified translator'' at Sec.
410.1001.
ORR provides, and will continue to provide, meaningful access to
its programs and services to LEP individuals through language access
services in accordance with applicable laws, regulations, and guidance
from the Department, and as set forth in Executive Order 13166,
Improving Access to Services for Persons with Limited English
Proficiency. ORR did not propose to add language in this rule stating
it adheres to existing sources of authority. Further, ORR notes that
under its current policies it requires care provider facilities to
respect and support the cultural identity of unaccompanied children
when providing services. ORR also requires that care provider facility
staff, contractors, and volunteers receive cultural competency and
sensitivity training.\259\ ORR will continue to monitor its
requirements for language access services as they are implemented and
will consider whether additional clarification is needed through future
policymaking.
Comment: One commenter recommended virtual interpretation, noting
that other care provider organizations prefer virtual over in-person.
Response: ORR notes, first, that although the NPRM Sec. 410.1306
used the term ``professional telephonic'' interpretation, the
definition of ``qualified interpreter'' at Sec. 410.1001 refers to
``remote'' interpretation. For the sake of consistency and accuracy,
ORR is revising the use of ``professional telephonic'' to ``qualified
remote interpretation'' throughout Sec. 410.1306. Regarding the use of
in-person versus remote interpretation, ORR is finalizing as proposed
in the NPRM at Sec. 410.1306(a)(2), (d)(1) and (3), and (g) that care
provider facilities utilize in-person interpretation before using
qualified remote interpretation to ensure unaccompanied children
effectively understand what is being communicated to them. By using in-
person interpretation, qualified interpreters can read non-verbal cues
(e.g., body language and facial expressions), they can build trusting
relationships with the unaccompanied children and sponsors, and they
can securely discuss sensitive information (e.g., health information
and legal services). In-person qualified interpreters are better able
to accomplish these important aspects of
[[Page 34513]]
interpretation services than interpreters using visual forms of remote
communication. Further, ORR clarifies that care provider facilities may
utilize qualified remote, or virtual, interpreters if they undertake
reasonable efforts to secure qualified in-person interpreters and are
unable to do so, provided that the qualified remote interpreters meet
the requirements set forth in ORR's policies.\260\
Comment: One commenter opposed the proposal at Sec. 410.1306(a)(3)
that all posted materials must be in every unaccompanied child's
preferred language, stating this poses challenges to care provider
facilities that serve children whose native or preferred languages span
four to six different languages. Instead, the commenter recommended
that all posted materials be in the majority of languages with a
provision for additional language support as needed.
Response: ORR will monitor implementation of the regulation and
will take into consideration the concerns raised during future
policymaking if needed.
Comment: One commenter recommended ORR make grammatical revisions
to the regulation text at Sec. 410.1306(c)(1) to clarify that the
limits of confidentiality are related to the information they share
while in ORR care and custody.
Response: ORR appreciates the commenter's concern, but believes the
current regulatory text clearly states care provider facilities must
provide a written notice of the limits of confidentiality they share
while in ORR care and custody to the unaccompanied children and no
further revision is necessary.
Comment: One commenter recommended Sec. 410.1306(c)(6) state that
other grievance reporting policies and procedures must be provided in a
manner accessible to unaccompanied children with disabilities.
Additionally, this commenter recommended Sec. 410.1306(c)(6) require
care provider facilities to adopt grievance reporting procedures
consistent with 45 CFR 84.7.
Response: ORR agrees that grievance reporting policies and
procedures must be provided in a manner accessible to unaccompanied
children with disabilities, and therefore is adding that to Sec.
410.1306(c)(6) as finalized. Additionally, while ORR acknowledges that
care provider facilities must adopt grievance reporting procedures
consistent with 45 CFR 84.7, ORR is not explicitly adding such a
requirement that otherwise exists to this final rule.
Comment: One commenter recommended ORR require at Sec.
410.1306(c)(7) that care provider facilities educate unaccompanied
children on ORR's sexual abuse and sexual harassment policies in an
age-appropriate manner.
Response: ORR is not incorporating this recommendation at Sec.
410.1306(c)(7) because the existing regulations governing ORR at Sec.
411.33 already provide that unaccompanied children be notified and
informed of ORR's sexual abuse and sexual harassment policies in an age
and culturally appropriate fashion and in accordance with Sec. 411.15.
Additionally, ORR is finalizing at Sec. 410.1306(c)(7) that
unaccompanied children be educated in a way they effectively
understand, which includes in an age-appropriate manner.
Comment: One commenter recommended ORR define or provide examples
of what would constitute an unreasonable request for religious
accommodations at Sec. 410.1306(e), stating the standard, as proposed,
subjects programs to multiple interpretations of what actions are
acceptable.
Response: ORR notes that Sec. 410.1306(e) pertains specifically to
the language in which requested religious and/or cultural information
or items are provided to an unaccompanied child. ORR clarifies that a
request for religious and/or cultural information or items in the
unaccompanied child's native or preferred language, depending on the
child's preference, may be unreasonable, for example, if the request
would require the care provider facility to obtain a voluminous text
not published in the preferred language, or items that could not be
imported into the United States without great expense. ORR facilitates
the free exercise of religion by unaccompanied children in its Federal
custody and, in accordance with Sec. 410.1302(c)(9), ORR provides
access to religious services whenever possible. As such, ORR is
revising Sec. 410.1306(e) to remove ``accommodation'' to avoid
confusion with the distinct standard that applies under Religious
Freedom Restoration Act (RFRA). ORR is making clarifying edits to
reflect that Sec. 410.1306(e) concerns ``Religious and cultural
observation and services.''
Finally, ORR notes that it operates and will continue to operate
the UC Program in compliance with the requirements of the RFRA, Title
VII of the Civil Rights Act of 1964, and all applicable Federal
conscience protections, as well as all applicable Federal civil rights
laws and HHS regulations.
Comment: One commenter stated that some unaccompanied children have
waited three weeks or more to have an initial conversation with their
parents or other family members because the care provider facilities
were unable to obtain interpretation services in the relevant language
to approve contact. This commenter also expressed concern that there
are delays in unification due to delays in translating birth
certificates or other identity documents. Additionally, the commenter
stated that these delays unnecessarily detain unaccompanied children
for longer lengths of stay and impact the children's mental health and
well-being. To address delays in interpretation and translation
services, the commenter recommended revising Sec. 410.1306(f) to
require care provider facilities make all efforts to expeditiously
obtain interpretation and translation services needed to approve
contact between children, their family, and potential sponsors, and not
delay contact approval due to the children's language. The commenter
also recommended that care provider facilities must secure timely
translation services needed for documents required to complete the
unification process. Lastly, the commenter recommended care provider
facilities immediately notify ORR if they need translation and
interpretation services to facilitate family contact or unification,
and ORR would expeditiously provide such assistance.
Response: At Sec. 410.1306(a)(1), ORR is finalizing the
requirement that care provider facilities must make all efforts to
consistently offer interpretation and translation services to
unaccompanied children. ORR is also finalizing at Sec. 410.1306(a)(1)
that if after taking reasonable efforts, care provider facilities are
unable to obtain a qualified interpreter or translator for the
unaccompanied children's native or preferred language, depending on the
children's preference, care provider facilities 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. ORR notes that if the care provider
facility is unable to secure qualified in-person interpretation, the
facilities may use qualified remote interpreter services. ORR believes
these requirements will improve unaccompanied children's access to
language access services and alleviate the commenter's concerns.
Lastly, ORR will consider the commenter's recommendations during future
policymaking if needed to improve
[[Page 34514]]
unaccompanied children's access to language access services.
Comment: ORR received a few comments supporting privacy and
confidentiality requirements for interpreters at Sec. 410.1306(i) but
seeking further clarification and recommending additional requirements
to protect unaccompanied children receiving translation and
interpretation services. A few commenters recommended that ORR clarify
whether ORR requires interpreters to keep information confidential from
ORR personnel and stated the current language is not clear. Another
commenter recommended that ORR clarify the list of entities to whom
language access services providers are prohibited from disclosing
information about children's cases and/or services.
A few commenters recommended that interpreters involved in
communications between unaccompanied children and legal
representatives, or child advocates, must maintain confidentiality of
such communications. One of these commenters recommended additional
confidentiality protections for unaccompanied children receiving legal
services, stating that when an unaccompanied child receives legal
services, including consultations, meetings, or other communications
between the child and the child's attorney, accredited representative,
or legal service provider, interpreters must keep all information
confidential. Additionally, this commenter recommended that the
unaccompanied child's case file should not include interpretation
provided during legal services and that the interpreter or translator
should not disclose any information interpreted or translated during
confidential communications between the child and the child's legal
representative to any third party (including ORR staff or subcontracted
staff).
Finally, one commenter recommended additional safeguards for data
that should apply to all language access service providers.
Response: ORR agrees that it is important to protect the privacy
and confidentiality of interpretation and translation services
unaccompanied children receive.
ORR clarifies that Sec. 410.1306(i) of this final rule requires
interpreters and translators to keep all information about the
unaccompanied children's cases and/or services, confidential from non-
ORR grantees, contractors, and Federal staff. ORR clarifies that
interpreters and translators would be permitted to share information
about the unaccompanied child's case and/or services to care provider
facilities, care provider facility staff, ORR staff, ORR contractors,
and others providing services under the direction of ORR.
ORR also appreciates the recommendations to require additional
safeguards for data and additional confidentiality requirements for
communications made between unaccompanied children and their child
advocate and/or legal service providers. ORR notes that in other
sections of this final rule, it is finalizing confidentiality
requirements that would apply to communications made to child advocates
and legal services providers as well as data safeguard protections for
the unaccompanied children's case files. ORR clarifies that these
confidentiality requirements, discussed further below, will apply to
information that interpreters and translators have concerning
unaccompanied children's cases and/or services, and Sec. 410.1306(i)
of this final rule should be read in congruence with these other
confidentiality requirements.
Under the definitions of qualified interpreters and qualified
translators at Sec. 410.1001, ORR is finalizing the requirement that
qualified interpreters and translators adhere to generally accepted
ethics principles for interpreters and translators. At Sec.
410.1303(h), ORR is finalizing data safeguard and confidentiality
protections for the unaccompanied child's case file, which includes the
requirement that care provider facilities preserve the confidentiality
of the child's case and the facilities must protect the case file from
unauthorized use or disclosure. Further, under Sec. 410.1309(a)(2)(v)
and (vi), ORR is finalizing requirements that unaccompanied children
receive a confidential legal consultation with a qualified attorney (or
paralegal working under the direction of an attorney, or DOJ Accredited
Representative), that is provided in an enclosed area that allows for
confidentiality. ORR also notes that its current policies contain
confidentiality requirements for care provider facilities that would be
applicable to unaccompanied children receiving interpretation and
translation services.\261\ ORR believes that the data safeguard and
confidentiality requirements being finalized in this rule, and the
additional requirements set forth in ORR's current policies, are
sufficient to protect the confidentiality of the unaccompanied child's
information. However, based on the concerns raised by the commenters,
ORR is revising Sec. 410.1306(i) to clarify the requirements for
interpreters and translators with respect to confidentiality of
information. ORR is amending Sec. 410.1306(i) as follows:
``Interpreter's and translator's responsibility with respect to
confidentiality of information. Qualified interpreters and translators
shall keep confidential all information they receive about the
unaccompanied children's cases and/or services while assisting ORR, its
grantees, and its contractors, with the provision of case management or
other services. Qualified interpreters and translators shall not
disclose case file information to other interested parties or to
individuals or entities that are not employed by ORR or its grantees
and contractors or that are not providing services under the direction
of ORR. Qualified interpreters and translators shall not disclose any
communication that is privileged by law or protected as confidential
under this part unless authorized to do so by the parties to the
communication or pursuant to court order.''
Final Rule Action: After consideration of public comments, ORR is
finalizing this section with the following modifications. ORR is
revising Sec. 410.1306 to apply to all care provider facilities. ORR
is revising Sec. 410.1306 to align with the definition of qualified
interpreter at Sec. 410.1001 by replacing ``professional telephonic''
with ``qualified remote'' at Sec. 410.1306(a)(2), (d)(1), (d)(3), and
(g). ORR is also making clarifying edits to Sec. 410.1306(e) to state
``Religious and cultural observation and services'' instead of
``Religious and cultural accommodations.'' Additionally, ORR is
revising Sec. 410.1306(c)(6) to add the following sentence at the end:
``Care provider facilities shall also provide grievance reporting
policies and procedures in a manner accessible to unaccompanied
children with disabilities.'' Finally, ORR is revising Sec.
410.1306(i) by making clarifying edits, such that the provision now
states: ``Interpreter's and translator's responsibility with respect to
confidentiality of information. Qualified interpreters and translators
shall keep confidential all information they receive about the
unaccompanied children's cases and/or services while assisting ORR, its
grantees, and its contractors, with the provision of case management or
other services. Qualified interpreters and translators shall not
disclose case file information to other interested parties or to
individuals or entities that are not employed by ORR or its grantees
and contractors or that are not providing services under the direction
of ORR. Qualified interpreters and translators shall not disclose any
communication
[[Page 34515]]
that is privileged by law or protected as confidential under this part
unless authorized to do so by the parties to the communication or
pursuant to court order.''
Section 410.1307 Healthcare Services
The provision of healthcare to unaccompanied children is
foundational to their health and well-being and to supporting their
childhood development. Therefore, ORR proposed in the NPRM at Sec.
410.1307(a) to 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
(88 FR 68945 through 68946). ORR notes that it stated in error in the
NPRM preamble that ORR shall ensure this access only ``in standard
programs and restrictive placements'' (88 FR 68945), and clarifies that
Sec. 410.1307(a), as reflected in the regulation text, applies to all
unaccompanied children in all care provider facilities. This paragraph
would codify corresponding requirements from Exhibit 1 of the FSA. ORR
notes that Sec. 410.1307(b), as reflected in the regulation text,
applies to standard programs and restrictive placements; corresponding
requirements relating to emergency and influx facilities are discussed,
infra, at subpart I. Further, under Sec. 410.1307(b), ORR proposed in
the NPRM that standard programs and restrictive placements 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 included a requirement that unaccompanied children in
standard programs and restrictive placements 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 Sec.
410.1307(b)(2).
In order to prevent the spread of diseases and avoid preventable
illness among unaccompanied children, ORR also proposed to require in
standard programs and restrictive placements that children receive
appropriate immunizations as recommended by the Advisory Committee on
Immunization Practices' Child and Adolescent Immunization Schedule and
approved by HHS's 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 noted in the NPRM 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 (88 FR 68945). ORR would require the administration of
prescribed medication and special diets under Sec. 410.1307(b)(5) and
appropriate mental health interventions when necessary, under Sec.
410.1307(b)(6). ORR noted that it proposed in the NPRM to require
routine individual and group counseling session at Sec. 410.1302(c)(5)
and (6).
There are a number of policies and procedures related to medical
care and medications that ORR proposed in the NPRM to require in order
to promote health and safety at their facilities. ORR proposed in the
NPRM under Sec. 410.1307(b)(7), that standard programs and restrictive
placements must have policies and procedures for identifying,
reporting, and controlling communicable diseases that are consistent
with applicable State, local, and Federal laws and regulations. ORR
proposed in the NPRM under Sec. 410.1307(b)(8), that standard programs
and restrictive placements 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 Sec.
410.1307(b)(9), ORR proposed in the NPRM to require standard programs
and restrictive placements 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. ORR proposed in the
NPRM under Sec. 410.1307(b)(10) to 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 proposed in the NPRM that standard programs and
restrictive placements 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 or type of medical issue giving rise to the requirement for
isolation in the first instance).
In Sec. 410.1307(c), ORR proposed in the NPRM requirements
ensuring access to medical care for unaccompanied children. At Sec.
410.1307(c)(1), consistent with the requirements of Sec. 410.1103, ORR
proposed in the NPRM 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. ORR noted that the proposal
aligns with subpart B, Determining the Placement of an Unaccompanied
Child at a Care Provider Facility, which would require that ORR shall
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.
[[Page 34516]]
Additionally, ORR proposed in the NPRM 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 a
reasonable request is received, after the Initial Medical Exam, the
care provider facility shall immediately notify ORR. This proposal
aligned 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 the NPRM at Sec. 410.1307(c)(2), ORR proposed 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. ORR noted that the
proposal was 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. ORR stated that if there is a
potential conflict between ORR's regulations and State law, ORR would
review the circumstances to determine how to ensure that it is able to
meet its statutory responsibilities. The NPRM noted, 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 maintained 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.\262\ 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.\263\ In the NPRM, ORR stated that
it 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's annual appropriations, commonly referred to
as the ``Hyde Amendment.'' \264\ For purposes of this final rule,
consistent with current policy, ORR will continue to facilitate such
access. ORR's policies are consistent with the Hyde Amendment. ORR
further noted 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.\265\
Lastly, ORR proposed in the NPRM 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 was consistent with ORR's current policy requirements for
notifying ORR of significant incidents and medical services requiring
heightened ORR involvement.
Comment: Many commenters expressed support for the proposed
provisions that seek to protect and ensure access to medical services
that require heightened ORR involvement in Sec. 410.1307(a), including
access to abortion, citing the need to support unaccompanied children's
health and safety.
Response: ORR believes that providing access to medical care,
including access to abortion, is essential in light of ORR's statutory
responsibility to ensure that the interests of unaccompanied children
are considered in decisions and actions relating to their care and
custody.\266\ ORR also believes that the availability of medical
services is foundational to the health and well-being of unaccompanied
children.
Comment: One commenter expressed concern that the proposed
requirements do not adequately address the potential trauma and mental
health needs of unaccompanied children, who may have experienced
violence, abuse, or exploitation in their home countries or during
their migration journey. The commenter recommended that ORR ensure that
unaccompanied children receive appropriate health services related to
trauma and mental health issues. One commenter expressed the need to
have mental health care services available that are tailored to the
specific needs of Indigenous children.
Response: ORR believes that trauma-informed approaches should be
used to support unaccompanied children in ORR custody. Under Sec.
410.1304, ORR finalized that behavior management practices must include
evidence-based and trauma-informed strategies. Under Sec.
410.1302(c)(5) and Sec. 410.1302(c)(6), ORR finalized that at least
one weekly individual counseling session and at least two weekly group
counseling sessions must be provided to unaccompanied children in
standard programs and secure facilities. Further, under Sec.
410.1307(b), care providers must establish a network of licensed
healthcare providers that includes mental health practitioners and that
will accept ORR's fee-for-service billing system under Sec.
410.1307(b)(1). ORR believes that, wherever possible, services should
be tailored to the individualized needs of unaccompanied children,
including Indigenous children.
Comment: ORR received comments seeking clarity on the rule's impact
on the provision of gender-affirming healthcare for unaccompanied
children. A few commenters asked ORR to clarify whether ``medical
services requiring heightened ORR involvement'' included gender-
affirming healthcare.
A few commenters recommended that ORR explicitly state that gender-
affirming medical and mental care should be provided when medically
necessary.
A few commenters expressed concerns about providing
[[Page 34517]]
unaccompanied children with access to gender-affirming healthcare
because they believe this care is not in the best interests of the
unaccompanied children.
Response: ORR is not changing the final rule to include provisions
specific to gender-affirming healthcare because the NPRM did not
address this topic.
Comment: One commenter recommended that ORR add language requiring
that ORR coordinate with other Federal, State, and local agencies as
well as non-governmental organizations to ensure that unaccompanied
children receive appropriate healthcare services while in ORR care. The
commenter also recommended that ORR coordinate with other agencies and
providers to facilitate the continuity of healthcare services for
unaccompanied children after they are released from ORR custody.
Response: ORR understands the commenter's recommendation for
coordination to refer to efforts to communicate and partner with
agencies and organizations to ensure that children receive healthcare.
ORR believes such coordination is in alignment with the proposed
requirements of Sec. 410.1307(b) for standard programs and restrictive
placements to establish a network of licensed healthcare providers and
encourages care provider facilities to engage in coordination with
other Federal, State, and local agencies as well as non-governmental
organizations to support the health care needs of unaccompanied
children. Related to care after children are released from ORR custody,
ORR notes that it has existing subregulatory requirements that allow
for PRS case managers to provide referrals to community health centers
and healthcare providers and inform released children and sponsor
families of medical insurance options, including supplemental coverage,
and assist them in obtaining insurance, if possible, so that the family
is able to effectively manage the child's health-related needs. ORR
prefers to keep these requirements subregulatory at this time so that
they may evolve as needed to reflect best practices and the needs of
unaccompanied children.
Comment: One commenter recommended that ORR ensure that Indigenous
unaccompanied children have access to their communities' traditional
medicines as part of meeting their medical needs.
Response: ORR encourages care provider facilities and PRS case
managers to help connect children with communities, groups, and
activities that foster the growth of their personal beliefs and
practices and that celebrate their cultural heritage. ORR thanks the
commenter for their feedback and may take it into further consideration
for future policymaking.
Comment: Many commenters recommended that ORR should help
coordinate medical recordkeeping to ensure the continued accuracy of
health records after release from ORR care, and one commenter
recommended adding a requirement that vaccines be recorded in State
immunization registries and that records of vaccinations be provided to
sponsors upon the unaccompanied child's release. One commenter
supported the proposed immunization requirements, and further
recommended that any available vaccination records from other countries
be reviewed and included in the U.S. vaccination record if they have
been given at the appropriate age, dose, interval, and U.S. accepted
format.
Response: ORR agrees that accurate health care records,
particularly related to vaccinations, are important for the continuity
of care of unaccompanied children after their release from ORR custody.
ORR notes that unaccompanied children are eligible for the Vaccine for
Children (VFC) Program and must receive follow-up vaccinations in
accordance with the Advisory Committee on Immunization Practices (ACIP)
Catch-up schedule. ORR also notes that all health documents, including
vaccine records, must be recorded in the UC Portal. ORR thanks the
commenters for their support and feedback and may consider whether
further policymaking is needed in this area.
Comment: One commenter recommended clarifying that an exception to
completing a medical examination within two business days of admission
to a standard program or restrictive placement only be granted if the
unaccompanied child was recently examined at another ORR facility. The
commenter also suggested adding a requirement that the initial medical
examination document all medications ordered by a health care provider
in the unaccompanied child's file. The commenter further recommended
that ORR require that providers ask about and document any medications
and medical records the unaccompanied child arrived in the United
States with during the initial medical examination.
Response: Proposed Sec. 410.1307(b)(2) states that the medical
examination shall be conducted within two business days of admission,
excluding weekends and holidays, unless the child was recently examined
at another facility. ORR's existing subregulatory guidance further
clarifies that children who transfer between ORR care provider programs
do not need to receive a new initial medical examination, however State
licensing may require a new ``baseline'' medical examination.
Additionally, existing ORR procedures require care provider facilities
to request information from the referring agency about whether the
child had any medication or prescription information, including how
many days' supply of the medication will be provided with the child
when transferred into ORR custody and suggests that clinicians and
caseworkers ask unaccompanied children about medication they were
taking.
Comment: Many commenters expressed concern with the proposal to
provide all unaccompanied children with routine dental care under Sec.
410.1307(a), recommending that ORR update the provision to align with
current practice that provides routine dental care to any children in
ORR care beyond two months. One commenter recommended clarifying that
an initial dental exam should occur if a dental concern arises, in
addition to circumstances proposed under Sec. 410.1307(b)(2). One
commenter expressed concern that the proposed timeframe for an initial
dental examination was ambiguous and recommended that ORR clarify that
an initial dental examination be provided to unaccompanied children who
are still in ORR care 60 days after referral to ORR care, rather than
admission to ORR care, as transfers may interrupt the timeline
necessary to be eligible for dental care.
Response: ORR clarifies that routine dental care, as specified in
Sec. 410.1307(a), provided to unaccompanied children is provided
consistent with proposed Sec. 410.1307(b)(2), which states that an
initial dental exam is provided 60 to 90 days after admission, or
sooner if directed by State licensing requirements. ORR thanks the
commenter for the feedback related to the timeline, and notes that its
existing subregulatory guidance states between 60 and 90 days after
admission into ORR care, and this proposal is consistent with that
requirement. Related to dental concerns that may arise, ORR notes that
its existing subregulatory guidance further specifies that urgent
dental care should be given as soon as possible. After considering
public comments, ORR is codifying a new provision at Sec.
410.1307(b)(11) that is consistent with its current policies to ensure
that unaccompanied children experiencing urgent dental issues, such
[[Page 34518]]
as acute tooth pain, receive care as soon as possible and should not
wait for the initial dental examination.
Comment: One commenter recommended adding pharmacies to the network
of licensed healthcare providers that must be established by standard
programs and restrictive placements. The commenter also recommended
adding a requirement that care providers meet State and local licensing
as well as public health requirements, which the commenter noted would
be consistent with existing ORR policies.
Response: ORR agrees that health care providers must meet State and
local licensing requirements and notes, as highlighted by the
commenter, that this is a requirement under its existing subregulatory
guidance. ORR thanks the commenter for the recommendations, and notes
that it may continue to use and update its existing guidance to provide
more detailed requirements for care provider facilities.
Comment: One commenter recommended that medical isolation be
appropriately tailored to a child's age and that young children should
not be left alone when in medical isolation. The commenter also
recommended adding a requirement that medical isolation be limited to
the least amount of time possible, supported by expedited testing to
determine diagnoses if necessary.
Response: ORR agrees that medical care should be appropriate for a
child's age and maturation, and that medical isolation should be
limited to the least amount of time consistent with health care
provider recommendations and best practices. ORR notes that, pursuant
to its existing policies, during medical isolation, children should
continue to receive tailored services (educational, recreational,
social, and legal services) when feasible, and facilities must provide
regular updates to ORR regarding the mental and physical health of
children in isolation.
Comment: Many commenters recommended that ORR ensure that
unaccompanied children's reproductive healthcare is confidential and
that children's consent must be obtained before sharing healthcare
information with others. Commenters recommended that ORR update the
list of services proposed under Sec. 410.1307(b) to include access to
prenatal and postnatal care, which commenters believe is a critical
aspect of ORR's commitment to the health of youth and also ensures that
providers understand their duties.
Response: ORR notes that it has existing subregulatory requirements
related to the sharing of health care information, and that care
provider facilities must follow applicable Federal and State laws
regarding consent for release of medical or mental health records. As
part 410 will not govern or describe the entire UC Program, ORR will
continue to use and update its existing guidance to provide more
detailed requirements for care provider facilities. ORR notes that
medical care required under Sec. 410.1307(b) is inclusive of prenatal
and postnatal care.
Comment: Many commenters recommended that ORR strengthen and
clarify its healthcare service provisions by specifying that it will
use pediatric specialists and will also address health needs that arise
outside of the envisioned care timeframes. These commenters also
recommended that ORR align mental health interventions with Medicaid
Early and Periodic Screening, Diagnostic, and Treatment benefit
coverage when medically necessary.
Response: ORR notes that the proposed requirement under Sec.
410.1307(b) to establish a network of licensed healthcare providers
includes specialists such as pediatric specialists, and mental health
practitioners. ORR notes that Medicaid covered services vary by State,
making it difficult for ORR to align interventions across the States it
operates within. Nonetheless, ORR emphasizes that under Sec.
410.1302(c)(5) and Sec. 410.1302(c)(6), at least one weekly individual
counseling session and at least two weekly group counseling sessions
must be provided to unaccompanied children in standard programs.
Comment: One commenter recommended that Indigenous unaccompanied
children must provide their consent to all medical procedures and
medications due to historical sterilization practices and should also
have a child advocate to help with medical decision making.
Response: ORR agrees that consent is a critical component of the
provision of all health care services for all unaccompanied children,
including Indigenous unaccompanied children, and believes the current
rule sufficiently protects the health interests of all children.
Comment: Many commenters supported ORR's proposal at Sec.
410.1307(c)(1)(ii) to transfer unaccompanied children to a care
provider facility within three business days if medical services,
specifically abortions, are unavailable at the initial placement to
help ensure access to healthcare services regardless of geographic
location.
Response: ORR agrees and believes this proposal will help provide
unaccompanied children with access to medical care, including medical
services requiring heightened ORR involvement.
Comment: Many commenters supported the proposal at Sec.
410.1307(c) to provide access to medical care, including reproductive
healthcare, noting that this proposal is consistent with ORR's Field
Guidance #21--Compliance with Garza Requirements and Procedures for
Unaccompanied Children Needing Reproductive Healthcare \267\ and J.D.
v. Azar. One commenter supported the proposal but recommended the
proposal specify that ORR provides access to ``pediatric'' medical
specialists and providers.
Response: ORR believes that providing access to medical care,
whether prenatal services, pregnancy care, or abortion, is essential in
light of ORR's statutory responsibility to ensure that the interests of
unaccompanied children are considered in decisions and actions relating
to their care and custody \268\ and that having access to these medical
services is foundational to the health and well-being of unaccompanied
children. Finally, ORR notes that medical providers and specialists can
include, but are not limited to, pediatric-trained medical providers,
such as pediatric cardiologists and pediatric surgeons, as discussed in
the NPRM (88 CFR 68946).
Comment: A few commenters requested that ORR provide more
information on how ORR may facilitate access to medical care,
specifically as it relates to abortion. For instance, commenters
requested that ORR provide an estimate on the number of abortions ORR
would facilitate under this proposal, the associated costs of such
abortions, information on where abortions would take place, the types
of abortion procedures that may be provided to unaccompanied children,
and how ORR will determine whether abortions are in the best interests
of unaccompanied children.
Response: ORR notes that in Sec. 410.1307(c), ORR must make
reasonable efforts to facilitate access to medical services requiring
heightened ORR involvement, including access to abortion, if requested
by the unaccompanied child. These efforts include considering relevant
needs in initial placement and transfer decisions and providing
transportation for medical services as needed. Any specific needs
related to abortion will be determined on an individual basis, and ORR
is unable to reliably estimate how many unaccompanied children in ORR
[[Page 34519]]
care may need an abortion and any associated transportation costs under
this rule. Additionally, given the rapidly changing landscape of State
abortion laws and access to abortion, ORR is unable to reliably
estimate where abortions may take place.
Comment: Many commenters expressed concerns about the availability
and manner of abortion counseling. Some commenters believed that
pregnant unaccompanied children should receive unbiased options
counseling about alternatives to abortion. Finally, one commenter
requested more information on the counseling available to pregnant
unaccompanied children and victims of sexual assault, and the types of
staff that will provide this counseling.
Response: ORR acknowledges commenters' concerns and reiterates that
unaccompanied children are provided with family planning services,
which include non-directive options counseling among other services.
ORR also notes that under its current policies,\269\ ORR specifies that
pregnant minors will receive non-directive options counseling and
referrals to specialty care, such as obstetricians, for further
evaluation and services.
For additional counseling services available to unaccompanied
children, as discussed at Sec. 410.1302(c)(5), ORR is requiring
standard programs and secure facilities to provide counseling and
mental health supports to unaccompanied children that include at least
one individual counseling session per week conducted by certified
counseling staff. These counseling sessions would address both the
developmental and crisis-related needs of each unaccompanied child. ORR
notes that this requirement would apply to unaccompanied children who
have experienced sexual abuse or assault. For further information on
services for victims of sexual abuse, ORR refers readers to the interim
final rule, Standards To Prevent, Detect, and Respond to Sexual Abuse
and Sexual Harassment Involving Unaccompanied Children (79 FR 77768,
codified under 45 CFR part 411).
Comment: Many commenters did not support ORR's proposal to provide
unaccompanied children with transportation and access to medical
services requiring heightened ORR involvement, specifically abortion.
Some commenters expressed their belief that providing access to
abortion would violate the Hyde Amendment, an annual appropriations
rider that prohibits the use of Federal funds for abortions subject to
limited exceptions. Commenters also expressed the view that the Hyde
Amendment extends to services that facilitate access to abortion, such
as transportation. Further, commenters stated that ORR policies related
to the Garza lawsuit, or any other policies that provide unaccompanied
children with access to abortions, no longer apply in light of the
Supreme Court's decision in Dobbs v. Jackson Women's Health
Organization, which overturned Roe v. Wade and Planned Parenthood v.
Casey.
Response: ORR acknowledges commenters' concerns but reiterates that
ORR policy, as set out in Sec. 410.1307(c), is consistent with
limitations on the use of Federal funds for abortions. ORR must make
reasonable efforts to facilitate access to medical services requiring
heightened ORR involvement--which may include abortion--if requested by
the unaccompanied child; these efforts include considering relevant
needs in initial placement and transfer decisions and providing
transportation for medical services as needed. Additionally, in order
to fulfill its statutory responsibilities regarding the care of
unaccompanied children, ORR staff and care provider facilities must not
prevent unaccompanied children from accessing legal abortion and
related services, and ORR staff and care provider facilities must make
all reasonable efforts to facilitate lawful access to these services if
requested by unaccompanied children. The U.S. Supreme Court's decision
in Dobbs is not inconsistent with the terms of the Garza settlement,
nor ORR's determination to maintain these previously-binding
requirements. For further information, ORR refers readers to Field
Guidance #21 \270\ and the Policy Memorandum on Medical Services
Requiring Heightened ORR Involvement \271\ where ORR explains its
responsibilities under Garza while complying with the Hyde Amendment.
Regarding comments on the Hyde Amendment's implications for
transportation, ORR refers readers to the September 2022 memo from the
Department of Justice Office of Legal Counsel,\272\ which states that
``the Hyde Amendment is best read to permit expenditures to fund
transportation for women seeking abortions where HHS otherwise
possesses the requisite authority and appropriations,'' and ``best read
to prohibit only direct expenses for the'' discrete medical procedure
of abortion ``itself and not indirect expenses, such as those for
transportation to and from the medical facility where the procedure is
performed.'' In light of OLC's interpretation, ORR's policy providing
transportation for medical services is consistent with the Hyde
Amendment.
Comment: Many commenters did not support ORR's proposal to provide
access to medical care, specifically abortion, because in their view
abortions are not in the best interests of unaccompanied children and
could have detrimental impacts on their health. Commenters expressed
concern that ORR would force unaccompanied children to have unwanted
abortions, including through potential miscommunication due to language
barriers, or that the policy might encourage human traffickers to force
unaccompanied children to have abortions.
Response: ORR has determined that it should facilitate access to
legal abortions for unaccompanied children in ORR custody in light of
ORR's statutory responsibility to ensure that the interests of
unaccompanied children are considered in decisions and actions relating
to their care and custody and to implement policies with respect to the
care of unaccompanied children.\273\ The unaccompanied child, in
consultation with medical professionals, will make the decision whether
to access legally-permissible medical services requiring heightened ORR
involvement, including abortion. ORR also notes that this proposal
pertains to unaccompanied children in ORR custody and therefore, ORR
does not believe that there are human trafficking risks associated with
this proposal.
Regarding the commenter's concerns regarding language barriers, ORR
reiterates that it is finalizing at Sec. 410.1306(g), that while
unaccompanied children are receiving healthcare services, care provider
facilities would be required to 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 they effectively understand.
Further, under Sec. 410.1801, ORR is finalizing that EIFs must deliver
services, including medical services requiring heightened ORR
involvement, in a manner that is sensitive to the age, culture, native
language, religious preferences and practices, and other needs of each
unaccompanied child. ORR believes these provisions protect
unaccompanied children against miscommunication with care providers.
Comment: A few commenters did not support ORR's proposal to provide
access to medical care, specifically abortion, because they believed
that this proposal may negatively impact unaccompanied children and
their
[[Page 34520]]
families. Commenters believed that ORR would provide abortions to
unaccompanied children without the knowledge or consent of their
parents or legal guardians. Finally, commenters believed this proposal
would limit families' ability to access records of unaccompanied
children and that children may be separated from their siblings if one
of them seeks an abortion.
Response: Under current ORR policies, if a State-licensed physician
seeks consent from ORR to provide an abortion to an unaccompanied
child, neither ORR nor a care provider may provide consent to provide
abortions to unaccompanied children.\274\ Rather, the child would need
to obtain such consent from the appropriate individual identified under
State law (typically the parent or legal guardian) or, if available,
seek a judicial bypass of parental notification and consent. ORR
Federal staff and ORR care providers are required to ensure
unaccompanied children have access to medical appointments related to
pregnancy in the same way they would with respect to other medical
conditions.
ORR believes that safeguarding and maintaining the confidentiality
of unaccompanied children is critical to carrying out ORR's
responsibilities under the HSA and TVPRA. For further information on
confidentiality policies, ORR refers readers to the ORR Policy Guide,
Policy Memorandum on Medical Services Requiring Heightened ORR
Involvement, and Field Guidance #21 where ORR provides greater detail
on information sharing policies and how ORR will address circumstances
in which State laws may require parental notification. Finally, ORR
notes that in the case of related children, where at least one of the
related children is pregnant and requests an abortion, ORR will make
every effort to keep related children together while considering the
best interests of each child as described in Field Guidance #21.
Comment: A few commenters did not support ORR's proposal to provide
access to medical care, specifically abortion, because they believed
that ORR should provide the fetus with the same level of care as
provided to pregnant unaccompanied children.
Response: ORR carries 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.
Under these authorities, ORR must prioritize the best interests and
individualized needs of unaccompanied children, including pregnant
youth, in ORR custody. This includes facilitating access to medical
services, including access to abortions when requested by a pregnant
individual in ORR custody, consistent with relevant appropriations
restrictions (e.g., the ``Hyde Amendment'') and in compliance with the
requirements of the RFRA, Title VII of the Civil Rights Act of 1964,
and all applicable Federal conscience protections, as well as all
applicable Federal civil rights laws and HHS regulations. To the extent
the commenters are suggesting that ORR owes statutory duties to the
fetus such that ORR facilitating pregnant individuals' access to
abortion is legally impermissible, that theory is not supported by
ORR's statutory authority.\275\
Comment: Many commenters did not support ORR's proposal to provide
unaccompanied children with transportation and access to medical care,
specifically abortions, because they believed this policy violates or
circumvents State laws that place restrictions on abortion. Commenters
requested that ORR clarify the federalism implications of its proposals
and whether this proposal means to preempt State laws. A few commenters
expressed concerns regarding ORR's proposal to require ORR employees to
abide by the Federal duties if there are conflicts between ORR's
regulations and State law. Additionally, one commenter believed that if
programs are State licensed as required by the FSA, then they must
follow State licensure requirements if there are potential conflicts
between ORR regulations and State law. One commenter requested ORR
clarify if ``ORR employees'' includes grantee and contract staff, and
another commenter believed that ORR has misconstrued the Supremacy
Clause in a manner that enables ORR to overstep its authority by
overriding State laws when conflicts arise.
Response: ORR clarifies that the phrase ``ORR employees'' means
Federal employees of ORR and does not include grantee and contract
staff. Such individuals, who are care provider facility or other
service provider staff, are not Federal employees. ORR notes that it
expects and requires, under Sec. Sec. 410.1302(a) and (b) of this
final rule, that standard program and secure facility employees will
follow State licensure requirements. However, ORR Federal employees
must abide by their Federal duties in the limited circumstances where
ORR regulations and State laws may conflict, subject to Federal
conscience protections discussed below. Further, ORR refers readers to
the Regulatory Impact Analysis in the NPRM where ORR explains that the
proposed regulations do not have significant federalism implications
and would not substantially affect the relationship between the
National Government and the States (88 FR 68976). In proposing these
regulations, ORR was mindful of its obligations to ensure that it
implements its statutory responsibilities while also minimizing
conflicts between State law and Federal interests.
ORR refers readers to its Policy Memorandum on Medical Services
Requiring Heightened ORR Involvement and Field Guidance #21--Compliance
with Garza Requirements and Procedures for Unaccompanied Children
Needing Reproductive Healthcare for further information on alignment
with State law. ORR does not intend for this rulemaking to preempt
general State law restrictions on the availability of abortions. For
example, this rulemaking does not authorize any pregnant individual in
ORR custody to obtain an abortion in a State where the abortion is
illegal under that State's laws. This rulemaking does contemplate,
however, that State law cannot restrict ORR employees in carrying out
their Federal duties, including, when appropriate and consistent with
religious freedom and conscience protections, transferring pregnant
individuals in ORR custody to States where abortion is lawful. This
approach is fully consistent with principles of federalism, given
States' different approaches to regulating abortion within their
borders.
Comment: Many commenters did not support ORR's proposal to provide
unaccompanied children with transportation and access to medical care,
specifically abortions, because they believed it does not adequately
safeguard the religious freedom and conscience protections of ORR staff
and requested that ORR modify this proposal to more expressly protect
these rights. Commenters asserted that ORR staff and contractors would
be required to facilitate access to abortions under this proposal, even
if it violates their personal beliefs, religion, or conscience.
Commenters requested that ORR discuss specific religious freedom and
conscience protections such as the Religious Freedom Restoration Act,
Title VII of the Civil Rights Act of 1964, and the First Amendment and
explicitly explain how ORR will operate the UC Program in compliance
with these laws. These commenters also requested that ORR incorporate
these religious freedom and conscience protection provisions into the
regulatory text, in addition to the preamble of the rule. One
[[Page 34521]]
commenter also expressed concerns that ORR will discriminate or
disadvantage faith-based providers when awarding grants or contracts
for the UC Program.
Response: ORR reiterates that it operates and will continue to
operate the UC Program in compliance with the requirements of RFRA,
Title VII of the Civil Rights Act of 1964, and all applicable Federal
religious freedom and conscience protections, as well as all applicable
Federal civil rights laws and HHS regulations. Additionally, consistent
with ORR's Policy Memorandum on Medical Services Requiring Heightened
ORR Involvement \276\ and Field Guidance #21,\277\ ORR will provide
legally required accommodations to care provider facilities who
maintain a sincerely held religious objection to abortion. ORR also
refers readers to other regulations, such as the Equal Participation of
Faith-Based Organizations in the Federal Agencies' Programs and
Activities Final Rule \278\ and the Safeguarding the Rights of
Conscience as Protected by Federal Statutes Final Rule,\279\ which
establish rules and mechanisms for ensuring religious freedom and
conscience protections for faith-based providers participating in
Federal programs, such as the UC Program. Moreover, as to its own
employees, ORR highlights 29 CFR parts 1605 and 1614, which contain
religious discrimination and accommodation protections available to
Federal employees, including those of ORR. Pursuant to these
regulations, ORR will continue to provide legally required religious
accommodations to requesting employees. ORR anticipates that non-
objecting staff will be available to perform those duties. Given these
existing protections for religious freedom for participating
facilities, providers, and employees, ORR does not believe it is
necessary to create new or additional policies. However, ORR is
updating Sec. 410.1307(c) to clarify that ORR employees must abide by
their Federal duties if there is a conflict between ORR's regulations
and State law, subject to applicable Federal religious freedom and
conscience protections.
Final Rule Action: After consideration of public comments, ORR is
codifying a provision at Sec. 410.1307(b)(11) to state that
unaccompanied children experiencing urgent dental issues, such as acute
tooth pain, should receive care as soon as possible and should not wait
for the initial dental exam. ORR believes this addition is consistent
with its current policies and will help ensure unaccompanied children
receive necessary dental care that is foundational to their health and
well-being. ORR is also amending Sec. 410.1307(c) in three ways.
First, it is adopting clarifying language to include language that was
in the preamble at Sec. 410.1307(c)(2) to the regulation text at Sec.
410.1307(c) to underscore that ``ORR must not prevent unaccompanied
children in ORR care from accessing healthcare services, including
medical services requiring heightened ORR involvement and family
planning services. ORR must make reasonable efforts to facilitate
access to those services if requested by the unaccompanied child.''
Second, ORR is moving language previously included at Sec.
410.1307(c)(2) to Sec. 410.1307(c), with edits such that in the final
rule that paragraph contains the following additional sentences:
``Further, if there is a potential conflict between the standards and
requirements set forth in this section and State law, such that
following the requirements of State law would diminish the services
available to unaccompanied children under this section and ORR
policies, ORR will review the circumstances to determine how to ensure
that it is able to meet its responsibilities under Federal law. 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, subject to applicable Federal religious freedom and conscience
protections, to ensure unaccompanied children have access to all
services available under this section and ORR policies.'' Third, at
Sec. 410.1307(c)(1)(i), ORR is amending the text to state that ORR
``shall consider'' a child's individualized needs, in contrast to the
NPRM text, which provided that ``ORR considers'' the child's
individualized needs. ORR is finalizing all other paragraphs of Sec.
410.1307 as proposed.
Section 410.1308 Child Advocates
ORR proposed in the NPRM, at Sec. 410.1308(a), to codify standards
and requirements relating to the appointment of independent child
advocates for child trafficking victims and other vulnerable
unaccompanied children (88 FR 68946 through 68948). 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 \280\ and recommended
improving ORR monitoring of contractor referrals to the program and
improving information sharing with child advocates regarding the
unaccompanied children assigned to them. ORR noted 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. Under Sec. 410.1308, ORR proposed in the NPRM to codify
specific child advocates' roles and responsibilities which are
currently described primarily in ORR policy documents.
At Sec. 410.1308(b), ORR proposed in the NPRM to define the role
of child advocates as third parties who identify and make independent
recommendations regarding the best interests 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.
ORR considered several ways to strengthen or expand the role of
child advocates, 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 (except meetings between an unaccompanied child and their
attorney or DOJ 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
noted that, as required by the TVPRA, it already provides child
advocates with access to materials necessary to effectively advocate
for the best interests of unaccompanied children. In particular, per
current ORR policies, child advocates have access to their clients and
to their clients' records.
[[Page 34522]]
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 the NPRM, ORR believed that the language at Sec.
410.1308(b) (together with other paragraphs proposed in Sec. 410.1308)
represented an appropriate balance in codifying the role of child
advocates. ORR invited comment on these issues, and on the proposals of
Sec. 410.1308(b).
At paragraph Sec. 410.1308(c), ORR proposed in the NPRM 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), ORR proposed
in the NPRM under Sec. 410.1308(d), that it may appoint child
advocates for unaccompanied children who are victims of trafficking or
are especially vulnerable. Under Sec. 410.1308(d)(1), ORR proposed in
the NPRM that 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 DOJ Accredited Representative; an ORR care provider; a
healthcare professional; or a child advocate organization.
Under Sec. 410.1308(d)(2), ORR proposed in the NPRM that it 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, as well as specialized subject-matter expertise of
the child advocate, including disability expertise, 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.
Under Sec. 410.1308(d)(3), ORR proposed in the NPRM that 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. Regarding 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 believed that the 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 proposed in the NPRM 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.\281\ Consistent with existing
policy, child advocates would be provided access to their 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.
Under Sec. 410.1308(f), ORR proposed in the NPRM 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 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
proposed in the NPRM 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. Also, under Sec.
410.1308(f), ORR proposed to establish 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 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 noted that Sec. 410.1308(f) is to be read consistently
with the TVPRA requirement that child advocates ``shall not be
compelled to
[[Page 34523]]
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.'' \282\ Also, ORR sought comment on specific ways
to ensure confidentiality of unaccompanied child-child advocate
meetings, and invited public comment on that issue, in particular on
appropriate ways to ensure privacy, as well as on the text of Sec.
410.1308(f) generally.
Under Sec. 410.1308(g), ORR proposed in the NPRM 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 noted that 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.\283\ 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.\284\
Comment: A few commenters expressed broad opposition to the Sec.
410.1308 proposals concerning child advocates. One commenter opined
that under historical practice, ORR has released unaccompanied children
to sponsors prior to effectively coordinating with the Office on
Trafficking in Persons, in order to determine whether an unaccompanied
child has been trafficked. The commenter therefore concluded that ORR
has demonstrated an inability and unwillingness to prevent child
trafficking, such as to make moot the proposed standards concerning
child advocates. Another commenter raised similar concerns, as well as
concerns about expanding bureaucracy and inefficiency, in opposing
proposed Sec. 410.1308 on child advocates.
Response: As described more fully in comment responses under
subpart A, under historical practice and consistent with statutory
mandates under the TVPRA, ORR has long coordinated with other Federal
authorities, including the Office on Trafficking in Persons, when
carrying out its responsibility for caring for unaccompanied children
in its custody. ORR is committed to protecting unaccompanied children
in its care from any further victimization through child trafficking.
The proposals under Sec. 410.1308, by codifying and strengthening the
role of child advocates, will have the impact of protecting vulnerable
children, particularly with regard to child trafficking risks. ORR
believes that these proposals are well-calibrated to achieve this
impact, and that the proposals will strengthen ORR's operations and
care for unaccompanied children.
Comment: A few commenters expressed general concern about the
importance of independence for child advocates under the proposed rule.
A few other commenters recommended strengthening the language of Sec.
410.1308(b) on the role of child advocates, in order to better protect
advocates' independence. In support of these recommendations, the
commenters observed that the independence of child advocates from other
service providers was sufficiently important that such independence was
called out explicitly under the TVPRA. The commenters also recommended
making additional changes to Sec. 410.1308, to ensure that best
interests determinations are informed by trusted adults in children's
lives, citing best practices in child-centered advocacy in support of
this recommendation.
Response: ORR agrees with the commenters that protecting the
independence of child advocates is important, and ORR recognizes that
TVPRA addresses this issue by authorizing the appointment of advocates.
ORR, believes that proposed Sec. 410.1308 strikes the correct balance
in outlining the role and responsibilities for child advocates, in ways
that will enhance the independence of the child advocacy function, and
thereby contribute to protecting the best interests of unaccompanied
children. While ORR respects best practices in child-centered advocacy,
ORR believes that proposed Sec. 410.1308 already stipulates that best
interest determinations may draw on information from trusted adults in
a child's life, and that the proposed rule is consistent with related
best practices in child-centered advocacy. ORR will take under
consideration issuing additional future guidance regarding child
advocates, the standards for best interest determinations, and best
practices in child-centered advocacy.
Comment: One commenter recommended that all government actors be
required to consider an unaccompanied child's best interests at each
decision along the continuum of a child's case, from apprehension, to
custody, to release.
Response: ORR believes that it is beyond the scope of this rule,
and also beyond the scope of ORR's authority, to mandate the use of
best interest determinations by other government authorities, across a
wide range of enforcement and judicial proceedings that might intersect
with the full continuum of the case for any and all specific
unaccompanied children.
Comment: A few commenters recommended changes to the proposed rule
at Sec. 410.1308(c), to codify that child advocates have an obligation
to submit best interest determinations to any official or agency that
has the power to make decisions about a child.
Response: ORR believes that the language of Sec. 410.1308(c), as
proposed, strikes the correct balance in outlining and illustrating the
responsibilities for child advocates, but without limitation to those
responsibilities. ORR will take under consideration issuing additional
future guidance regarding child advocates, and standards for best
interest determinations made by child advocates.
Comment: A few commenters recommended changing proposed regulatory
language at Sec. 410.1308(c), to remove any implication that children
``belong'' to child advocates, by amending each reference to ``their
child'' under the rule.
Response: ORR believes that Sec. 410.1308(c) makes it clear that
child advocates stand in a professional-to-client relationship with
unaccompanied child clients, rather than in an ownership relationship
with them. When read in its entirety, ORR does not believe that there
is any implication of ownership in the phrasing of Sec. 410.1308.
However, for clarity and consistency of expression, ORR has added the
word ``client'' after ``unaccompanied child'' at the end of Sec.
410.1308(c)(2).
Comment: Several commenters recommended expanding ORR's obligations
to appoint child advocates for unaccompanied children under Sec.
410.1308(d) of the rule. A few commenters recommended making the
appointment of child advocates mandatory for all unaccompanied
children, on the grounds that all are vulnerable, and that all would
benefit from having child advocates. Several commenters recommended
making the appointment of child advocates
[[Page 34524]]
mandatory by ORR with regard to specific sub-groups of unaccompanied
children, on grounds of heightened vulnerability, including a few
commenters each recommending the appointment of child advocates for
LGBTQI+ children; or for children who have been sex-trafficked; or for
children lacking the capacity to make decisions regarding their own
cases; or for certain youth beyond the age of 18 (when youth age is in
dispute, or when the government's actions or inactions have put the 18-
year-old in a dangerous situation).
Response: ORR recognizes the importance of child advocates in
protecting the interests of child trafficking victims and other
especially vulnerable unaccompanied children. As described in this
final rule's discussion in subpart A, availability of child advocates
is dependent on appropriations. For this reason, ORR believes that
proposed Sec. 410.1308(d) strikes an important balance in seeking to
align child advocacy services with the children who are most in need of
them. Further, ORR specifically chose not to specify detailed standards
under Sec. 410.1308(d) for exactly which children will be considered
``especially vulnerable.'' ORR will consider addressing more detailed
standards on this issue in future policymaking. Finally, ORR notes that
the current language of Sec. 410.1308(d) makes it clear that child
advocate appointments terminate when an unaccompanied child turns 18.
In recognition of ORR's limited resources, statutory mandates, and the
primary aim of Sec. 410.1308(d) in protecting especially vulnerable
children, ORR believes that limiting child advocate appointments to
unaccompanied children under the age of 18 is reasonable and
appropriate under the rule.
Comment: A few commenters recommended modifying Sec. 410.1308(d)
to allow for appointment of child advocates to unaccompanied children
who were never transferred to ORR custody, or else who passed through
ORR custody only briefly, before being immediately reunified with
accompanying adult family members. The commenters argued that the TVPRA
statute, in authorizing the appointment of child advocates, did not
specifically constrain this authority based on ORR custody. The
commenters also argued that allowing for appointment of child advocates
for vulnerable children without regard to ORR custody status could help
to limit the number of children unnecessarily transferred to ORR
custody when such transfer is not in a child's best interests, and when
that transfer could result in a significant expense to the government.
Response: ORR believes that as written, Sec. 410.1308(d) allows
for appointment of child advocates for unaccompanied children who have
passed through, but who are not currently in, ORR custody (subject to
other applicable standards, such as being ``especially vulnerable'').
As for the recommendation made by a few commenters to extend the
appointment of child advocates to unaccompanied children who have never
been in ORR custody, it is beyond the scope of this rule to address,
since this rule focuses on children referred to ORR custody from other
Federal agencies.
Comment: One commenter expressed concern about the lack of
requirements in proposed Sec. 410.1308(d) for the qualifications and
training of child advocates in the appointments process. The commenter
recommended that ORR add those requirements to the proposals in Sec.
410.1308(d).
Response: The child advocate program is operated through a contract
that includes specific and comprehensive requirements for relevant
qualifications and skills, which includes, but is not limited to,
bilingual skills, minimum and advanced college degree requirements, and
minimum years of experience in child and family welfare, immigration
law, social work, trauma-informed approaches to advocacy, and program
management. Additionally, ORR's child advocate contract requires the
contractor to undergo and provide ongoing training and professional
development in areas such as cultural competency, case confidentiality,
child development theory, trauma-informed care, child abuse and neglect
reporting, issues around family separation, human trafficking
reporting, and health and mental health issues. Because standards for
the qualification and training of child advocates are set by ORR under
contract, ORR has chosen not to codify those standards as a part of
this rule.
Comment: A few commenters objected to the language of Sec.
410.1308(d) of the proposed rule allowing ORR discretion to determine
which unaccompanied cases are appointed child advocates, rather than
empowering the child advocate contractor to make independent decisions
about this. The commenters also argued that the proposed rule would
require an unnecessarily duplicative process for an interested
stakeholder to notify ORR of a referral before submitting the referral
to the child advocate contractor, and that this would involve adding
costs and delays to current ORR practice. The commenters recommended
instead that ORR maintain the current, well-established system, in
which the child advocate contractor receives all referrals, and then
submits referrals to ORR for a decision to appoint or decline to
appoint.
Response: The language at Sec. 410.1308(d) that allows ORR to
appoint child advocates is consistent with the TVPRA, which grants the
Secretary of HHS the authority to appoint child advocates. As discussed
in the background section, the Secretary's authority under the TVPRA
has been delegated to the Director of ORR. It is ultimately ORR's
responsibility and under its authority to appoint child advocates, and
the language at Sec. 410.1308(d) is consistent with that.
ORR has decided, after review, that the proposed language in Sec.
410.1308(d) that described the referral process for child advocates was
unnecessarily detailed, in a way that could unintentionally contribute
to inefficiency in ORR's processes. Accordingly, ORR in this final rule
has streamlined the language of Sec. 410.1308(d)(1), to say that ``an
interested party may refer an unaccompanied child for a child advocate,
when that unaccompanied child is or previously was in ORR's custody,
and when that child has been determined to be a victim of trafficking
or especially vulnerable.'' This rephrasing remains consistent with the
intent of the original proposal language and is also consistent with
ORR's operations and current policies in how referrals for child
advocate appointments are carried out.
Comment: A few commenters recommended adding proposal language to
Sec. 410.1308(d), to allow for ORR to make child advocate appointment
decisions more rapidly than the five-day standard, in specific time-
sensitive cases. The commenters recommended language allowing for ORR
to make child advocate appointment decisions within 24 hours of
receiving a recommendation to appoint, in time-sensitive cases
including when unaccompanied children are at-risk of aging out of ORR
custody, or have complex medical needs, or are facing upcoming court
hearings or agency interviews.
Response: There is nothing in Sec. 410.1308(d) to preclude ORR
from making child advocacy appointment decisions more rapidly than the
five-day standard, especially given the context of time-sensitive
circumstances being referred to by commenters above. ORR
[[Page 34525]]
likewise believes that there is no conflict between Sec. 410.1308(d),
and recent ORR practices concerning expedited appointment of child
advocates in time-sensitive circumstances. For these reasons, ORR
believes that the Sec. 410.1308(d) proposals are reasonable and
appropriate in their current form.
Comment: One commenter recommended that as a matter of equity under
Sec. 410.1308(d), ORR should ensure that all stakeholders, community-
based service providers, consulates, other children in custody, and
children's family members or proposed sponsors, are able to make
referrals for child advocate services for an unaccompanied child.
Response: As proposed, Sec. 410.1308(d) establishes that
interested parties may refer an unaccompanied child to ORR for a child
advocate, and then the proposal goes on to define ``interested
parties'' broadly, including individuals or organizations involved in
the care, service, or proceeding involving an unaccompanied child. ORR
believes that the language of Sec. 410.1308(d) is appropriate and
well-balanced as currently proposed and will allow a broad range of
interested stakeholders to initiate referrals for child advocacy
services.
Comment: A few commenters recommended modifying the proposed Sec.
410.1308(e), to ensure that child advocates will be able to access
their unaccompanied child clients on weekends, evenings, and outside of
business hours. The commenters observed that unaccompanied children
often prefer to meet with their child advocates on weekends or
evenings, when not in classes and when there tends to be less facility-
based programming. The commenters also noted that child advocates may
need to meet with children on weekends or evenings to address urgent
situations, such as transfers, releases, court dates, and other time-
sensitive matters.
Response: Although proposed Sec. 410.1308(e) establishes that
child advocates shall be provided access to their clients during normal
business hours at an ORR care provider facility, the provision would
not preclude or prevent care provider facilities from granting child
advocates access to their clients outside of normal business hours or
on weekends, particularly given the context of urgent situations such
as transfers, releases, court dates, etc. ORR believes it is reasonable
to only require access during business hours, given the potential
burden on the facilities to provide access to the facilities on
evenings or weekends, but will take under consideration addressing more
detailed standards or considerations for access outside of formal
business hours, in future policymaking, as necessary.
Comment: A few commenters recommended that the provisions under
Sec. 410.1308(e) be modified to emphasize that child advocates need to
be given prompt access to all information related to a child's case.
The commenters argued that child advocates may need to act urgently
when a situation affecting a child's safety or well-being arises, which
necessitates their having rapid access to the records, even outside of
business hours. A few commenters also argued that timeliness of
information access and advance notice for child advocates is critical
in some situations, including before a child is transferred over their
objection, is stepped up to a more restrictive facility, is required to
appear in court to request voluntary departure, or is at risk of
receiving a court order of removal.
Response: ORR agrees that prompt access for child advocates to the
case file records of their clients is important to protecting the
interests of unaccompanied children, in a range of time-sensitive
circumstances. The current language of Sec. 410.1308(e) establishes
minimum requirements for access by child advocates to the case file
records of their clients, including that advocates shall be provided
access to such case file information during normal business hours at an
ORR care provider facility, and that advocates may request copies of
the case file directly from the care provider facility. This language
does not preclude child advocates from accessing their clients' records
quickly, nor does it exempt ORR care provider facilities from being
responsive to requests by child advocates for rapid access to records
(including outside of regular business hours) when time-sensitive
circumstances create a need for such access. Again, ORR believes the
requirements of Sec. 410.1308(e) are reasonable given the burden to
care provider facilities. However, ORR will consider whether it should
address more detailed standards or considerations for expedited access
by child advocates to the case file records of their clients in ORR
care facilities in future policymaking.
Comment: One commenter recommended superseding and amending the
proposal at Sec. 410.1308(e) with a new consolidated proposal on data
safeguarding.
Response: After considering different approaches to drafting the
regulation, ORR concluded that the language of Sec. 410.1308(e) (on
child advocates' access to information), Sec. 410.1303(h) (on
safeguarding each individual unaccompanied child's case file) and at
subpart F (on data and reporting requirements) is reasonable and
appropriate, and offers clarity with regard to the intersection between
data safeguarding issues, and with regard to the powers and
responsibilities of child advocates, in particular. For these reasons,
ORR has chosen to proceed with finalizing Sec. 410.1308(e), Sec.
410.1303(h), and subpart F as described in this final rule.
Comment: One commenter recommended that ORR should codify a legal
obligation recently recognized in the Ms. L settlement agreement, to
ensure that in cases where the Federal Government has separated a
parent and child who traveled together, the Federal Government must
provide ORR with information regarding the separation at the time of
the child's transfer to ORR custody, and furthermore, that ORR is then
required to provide this information within three business days to any
appointed child advocate. The commenter argued that it is critical for
child advocates of separated children in ORR custody to have access to
all available information regarding the government's separation of the
child from their parent.
Response: ORR acknowledges the settlement agreement that addresses
these issues but believes that there is no conflict or inconsistency
between the proposed rule under Sec. 410.1308 and that settlement
agreement.\285\
Comment: Several commenters recommended that ORR revise its
proposals at Sec. 410.1308(f) on the confidentiality obligations of
child advocates, in order to establish that child advocates may
disclose information in an unaccompanied child's case file, either with
the child's consent or based on a best interests determination, for a
variety of purposes, including in State court proceedings, in Federal
court proceedings, as well as to attorneys considering representation
of unaccompanied children, when such representation has been determined
by a child advocate to be in a child's best interests. Several
commenters also asserted that the proposed rule should reflect that
child advocates shall keep communications with an unaccompanied child
confidential, except where the child advocate determines that sharing
of information is required to ensure the child's safety or otherwise to
serve the child's best interests.
Response: Under the language of Sec. 410.1308 as proposed, ORR did
not intend for there to be any conflict
[[Page 34526]]
between Sec. 410.1308(c) (which establishes that the responsibilities
of a child advocate include providing best interest determinations and
advocating in a proceeding or matter in which the unaccompanied child
is a party or has an interest) and Sec. 410.1308(f) (which otherwise
imposes confidentiality requirements on child advocates, with respect
to information in the unaccompanied child's case file). Per Sec.
410.1308(c), child advocates have both the responsibility and authority
to advocate in the manner and in proceedings as described under that
paragraph. Apart from and beyond that responsibility, both ORR and
child advocates also have broader duties to protect the confidentiality
of the case file records of their unaccompanied child clients, as
specified under Sec. 410.1308(f). In ORR's view, the language of
Sec. Sec. 410.1308(c) and (f), read in totality, serves to empower
child advocates to appropriately advocate for their unaccompanied child
clients through best interest determinations and in a range of
proceedings where those clients have an interest, while also imposing
appropriate confidentiality obligations on child advocates in other
contexts. Consistent with the originally proposed intent for Sec.
410.1308(f), ORR has decided to clarify the language of that provision
to read, in relevant part, ``Child advocates must keep the information
in the case file, and information about the unaccompanied child's case,
confidential. A child advocate may only disclose information from the
case file with informed consent from the child, when this is in the
child's best interests.'' These updates reflect ORR's dual intent (1)
to emphasize that child advocates must be given appropriate access to
materials necessary to effectively advocate for the best interest of
the child, consistent with the TVPRA; and (2) to express ORR's
responsibility to safeguard unaccompanied children's case files. See
above preamble discussion regarding Sec. 410.1303(h). ORR may engage
in additional policymaking to further refine the application of these
principles, but for purposes of this rule ORR underscores its
commitment to ensuring that child advocates retain their ability to
effectively advocate for the best interest of the child.
Comment: One commenter recommended modifying proposed Sec.
410.1308(f) to prohibit a child advocate from being compelled to
testify or otherwise provide evidence. That commenter specifically
recommended that the proposed rule cross-reference the proceedings
contemplated by proposed Sec. Sec. 410.1902 and 410.1903 and clarify
that child advocates cannot be compelled to testify in these
proceedings. The commenter stated that the statutory provisions of the
TVPRA establish that child advocates shall not be compelled to testify
or provide evidence in any proceeding concerning any information or
opinion received from a child in the course of serving as a child
advocate.
Response: ORR acknowledges that the TVPRA states that a ``child
advocate 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.'' \286\ With regard
to the proceedings contemplated by proposed Sec. Sec. 410.1902 and
410.1903 of this rule, the intent of those proceedings is to provide an
unaccompanied child review of a restrictive placement decision made by
ORR. In these administrative proceedings, an unaccompanied child may
ask their child advocate to assist in their representation. Neither the
unaccompanied child nor ORR can compel a child advocate 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. However, a child advocate may choose to participate in the
proceeding when doing so is in the child's best interest. ORR will
consider providing more detailed standards for child advocates in these
administrative proceedings in future guidance.
Comment: A few commenters expressed support for the Sec.
410.1308(g) proposal to protect child advocates from retaliation by
ORR. The commenters noted that because child advocates make best
interest determinations for unaccompanied children, this sometimes
results in the advocates challenging ORR's decisions with regard to
unaccompanied children. The commenters expressed appreciation for the
inclusion by ORR of language in the rule to prohibit retaliation
against child advocates, but also called for strengthening the proposal
language to be consistent with other laws prohibiting retaliation. One
commenter went further, by recommending the addition of specific
regulatory language to define ``retaliation'' against a child advocate
as including any adverse action impacting the child advocate's ability
to fulfill their role, including with regard to access to unaccompanied
children, referrals, or timely appointment decisions.
Response: ORR recognizes the importance of non-retaliation against
child advocates by ORR as a necessary foundation in order for child
advocates to carry out their function. ORR believes that the proposed
language of Sec. 410.1308(g) in protecting advocates from
``retaliation for actions taken within the scope of their duties'' is
both sufficient and well-tailored to accomplish this purpose.
Final Rule Action: After consideration of public comments, ORR is
revising Sec. 410.1308(c)(2) to add the word ``client'' after the
phrase ``unaccompanied child;'' is revising Sec. 410.1308(d)(1) to
clarify that an interested party may refer an unaccompanied child for a
child advocate when the unaccompanied child is currently, or was
previously in, ORR's care and custody; and is revising Sec.
410.1308(f) to clarify that a child advocate may only disclose
information from the case file with informed consent from the child
when this is in the child's best interests. ORR is otherwise finalizing
this section as proposed.
Section 410.1309 Legal Services
ORR proposed in the NPRM, at Sec. 410.1309, standards and
requirements relating to the provision of legal services to
unaccompanied children following entry into ORR care (88 FR 68948
through 68951). The proposals under Sec. 410.1309 also included
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 are built on current ORR policies,
which articulate standards for legal services for unaccompanied
children. ORR strives for 100 percent legal representation of
unaccompanied children and will continue to work towards that goal to
the extent possible. ORR invited public comment as to whether and how
to broaden representation for unaccompanied children (88 FR 68948).
In the NPRM, ORR noted 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 INA (8 U.S.C.
1362),'' that all unaccompanied children who are or have been in its
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
[[Page 34527]]
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 read these provisions together as establishing that,
while the statute establishes HHS's 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 U.S.C. 1232(c)(5), and insofar as
appropriations are available, the Secretary has discretion under that
section 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 proposed in the NPRM, at Sec. 410.1309(a)(1), that ORR would
ensure, to the greatest extent practicable and consistent with section
292 of the INA (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
stated in the NPRM that it understood ``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 (88 FR 68949).
ORR proposed in the NPRM, 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 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; \287\ (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 DOJ Accredited
Representative) to determine possible forms of legal relief in relation
to the unaccompanied child's immigration case. ORR also proposed in
Sec. 410.1309(a)(2) that an unaccompanied child in ORR care be able to
communicate privately with their attorney of record, DOJ Accredited
Representative, or legal service provider, in a private enclosed area
that allows for confidentiality for in-person and virtual or telephone
meetings. ORR noted 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, Sec. 410.1309(a)(2) would provide additional
specificity about the type of information that would be provided.
Additionally, ORR noted that 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 12A, 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, DOJ 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.
With respect to the confidential legal consultation, ORR noted the
importance of allowing unaccompanied children and their legal service
providers, attorneys of record, or DOJ 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 considered
including a requirement for additional presentations for unaccompanied
children who remain in ORR care beyond six months.
At Sec. 410.1309(a)(3), ORR proposed in the NPRM that it would
require this information, regarding unaccompanied children's legal
rights and access to services while in ORR care, to 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 proposed in the NPRM, 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
[[Page 34528]]
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 Sec. 410.1309(b), ORR proposed in the NPRM that it would
fund legal services for the protection of an unaccompanied child's
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 proposed in the NPRM that it 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 or close relative potential sponsor 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 invited
comment on these proposals under Sec. 410.1309(b), and 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 proposed in the NPRM to establish
relevant requirements and expectations for the provision of the legal
services described at Sec. 410.1309(a) and (b). ORR proposed in the
NPRM at Sec. 410.1309(c)(1) that in the course of funding legal
counsel for any unaccompanied children under 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 DOJ 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 Sec. 410.1309(c)(1), ORR considered the
alternatives of enacting a requirement that an unaccompanied child's
attorney of record or DOJ Accredited Representative always be required
to attend court hearings and proceedings in-person with the
unaccompanied child, or that the attorney of record or DOJ Accredited
Representative always engage in in-person meetings with the
unaccompanied child while representing them, absent a good cause reason
not to do so (88 FR 68950). ORR concluded that the proposal at Sec.
410.1309(c)(1) reflected 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 Sec. 410.1309(c)(2), ORR proposed in the NPRM to 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) reflected current ORR policy guidance describing
the process by which an individual will be recognized by ORR as the
attorney of record or DOJ Accredited Representative for an
unaccompanied child. Under current practice, ORR recognizes an
individual as an unaccompanied child's attorney of record or DOJ
Accredited Representative through the submission of an ORR form, the
ORR Notice of Attorney Representation. ORR noted that this form is not
identified specifically in the proposed regulatory text to preserve
operational flexibility for ORR to accept different forms of proof as
appropriate. ORR also considered the importance of timely notice by ORR
to the unaccompanied child's representative to allow for effective
legal representation, in connection with law enforcement events, age
redetermination processes, and allegations of sexual abuse or
harassment.
ORR sought 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 solicited public comment on privacy concerns and other
considerations. ORR also solicited comments on the appropriate
timeframes for various types of notification (88 FR 68950).
As discussed in section III.B of this final rule, 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
[[Page 34529]]
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.\288\ 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 the extent pro bono legal services are unavailable or
impracticable to secure because ORR has limited resources, ORR must be
selective in the kinds of legal services it funds. As a result, ORR
proposed in the NPRM to establish its discretion to fund legal services
for specific purposes, based on its judgment and priorities.
In terms of funding legal services, at Sec. 410.1309(d), ORR also
proposed, in its discretion and subject to available resources, to 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 proposed in the NPRM 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 provider's 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 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.
Comment: Several commenters suggested that ORR should provide
additional language access to unaccompanied children by ensuring that
legal services are provided in the child's ``native or preferred''
language. One commenter explained that this is especially important for
indigenous unaccompanied children so that they can make informed legal
decisions and file complaints with the correct oversight bodies.
Response: ORR agrees with the commenters that good quality legal
advice and representation for all children depends on the child's
ability to effectively communicate with their attorney in their native
or preferred language. After considering the public comments, ORR is
revising Sec. 410.1309(a)(2)(i) to state ``native or preferred
language of the unaccompanied child'' rather than ``the language of the
unaccompanied child.''
Comment: ORR sought public comments regarding whether and how to
broaden representation for unaccompanied children in its care. ORR
received multiple comments supporting the expansion of legal services
for unaccompanied children and offering ideas about how ORR could do
so. ORR also received multiple comments questioning ORR's legal
authority to pay for legal services for unaccompanied children and
suggesting that ORR not use taxpayer dollars to fund legal
representation for unaccompanied children.
Response: ORR recognizes that most unaccompanied children need
legal services to resolve their immigration status and that
representation appears to have a significant impact on both the court
appearance rate and the outcome of cases for unaccompanied children. As
ORR has explained, pursuant to the TVPRA, HHS has an obligation, ``to
the greatest extent practicable,'' and consistent with section 292 of
the Immigration and Nationality Act, to ensure that unaccompanied
children have counsel in their immigration proceedings. But as
explained in the preamble, the fact that the statute says that the
Secretary shall make every effort to utilize the services of pro bono
counsel to ``the greatest extent practicable'' makes clear that HHS
also has authority to pay for legal services beyond what is available
from pro bono counsel when meeting the Secretary's statutory
obligations.\289\
ORR understands that some commenters would like ORR to fully fund
legal services to all unaccompanied children while others do not
believe tax dollars should be spent on legal services for unaccompanied
children. After reviewing the various comments, ORR has determined that
its approach to providing legal services to unaccompanied children by
enabling them to access pro bono counsel ``to the greatest extent
practicable'' and funding legal services for additional unaccompanied
children, as resources allow, is consistent with ORR's statutory
obligations.
ORR believes that the commenters who challenged whether ORR has the
authority to pay for legal representation are mistaken. INA section 292
does not prohibit ``aliens in removal proceedings'' from receiving
Government-funded representation. Instead, section 292 establishes that
aliens have a privilege to be represented by counsel of their choice,
if the counsel is authorized to practice in immigration proceedings,
but that the aliens do not have a right to counsel paid for by the
Government. It does not place any limitation on the Government's
discretion to fund client representation and therefore does not limit
the Secretary's authority to fund such representation under section
235(c)(5) of the TVPRA.
Several commenters suggested that ORR should commit to fully
funding legal representation for all unaccompanied children or should
include language in the rule that requires appointment of an attorney
for every child in ORR's custody.
Response: While ORR does seek to expand legal representation for
unaccompanied children and will continue to seek appropriations from
Congress to make this possible,\290\ ORR cannot, by regulation, commit
itself to pay for representation without regard to whether Congress has
appropriated sufficient funds to do so. ORR has clarified at Sec.
410.1309(a)(2), however, its responsibility to provide unaccompanied
children with a list and contact information for pro bono attorneys and
assist them with retaining an attorney as needed.
Comment: Several commenters provided specific ideas for expanding
access to legal services short of mandated funding. One commenter
[[Page 34530]]
suggested using collaborative intake hubs which co-locate legal
services providers with other types of social services providers for
unaccompanied children. The commenter argued that such hubs can reduce
the need for children to engage in extensive outreach to numerous
providers to access both legal and social services, and that hubs
enable efficiencies in referring cases and screening children for
eligibility for relief. Several commenters also encouraged the use of
the ImportaMi program via Apps like WhatsApp, Facebook, and Facebook
Messenger. These commenters argued that these modes of communication
are more regularly used by unaccompanied children than telephone or
email, and that children have had greater success in finding counsel
with help from ImportaMi than by using ORR's conventional lists of
legal service providers. Another comment suggested deepening and
retaining pools of talented attorneys and legal staff through
partnerships and fellowships dedicated to public interest immigration
representation. The commenter also recommended convening regular
stakeholder engagements on a local and regional basis to gather
feedback about specific representation landscapes, barriers, and
opportunities. Another commenter argued that trainings and outreach
should be continuously available, with particular focus on trauma-
informed interviewing techniques, child-centered practices, cultural
responsiveness, and fluency or proficiency in languages commonly spoken
by unaccompanied children.
Response: ORR is considering these and additional options but has
deliberately not specified the specific mechanisms of service delivery
or the technical details of the modes of communication that an
unaccompanied child may use to communicate with or retain an attorney
given that technology platforms and applications continuously change
over time.
Comment: Multiple commenters suggested expanding the scope of legal
services orientations and information provided to children about their
rights. One commenter recommended that children should be provided with
information about avoiding exploitative situations, legal rights in the
context of labor exploitation, and local resources where children can
turn to for assistance. Several commenters recommended including in a
legal rights orientation notice information regarding the right to
counsel, steps for finding counsel, the right to confidential meetings
with counsel, and the right to counsel in step-up proceedings.
A few commenters indicated that telephonic and video legal services
orientations should only be permitted in rare instances and only to
protect the health and wellness of children in ORR's care. One
commenter argued that telephonic and video orientations limit
presenters' ability to gauge children's comprehension, engage children
throughout the orientation, and minimize external distractions. A
commenter pointed out that orientations serve to inform children of
critical information about the legal process and their rights, but also
lay a foundation for a child to begin to establish trust with a legal
service provider.
A few commenters offered feedback and recommendations on the
posting of legal services orientation information. One commenter
recommended that the rule should be expanded to incorporate specific
examples of what age-appropriate legal rights postings should look
like, for different age groups.
Response: ORR is committed to ensuring that all unaccompanied
children receive a comprehensive orientation and information about
their legal rights in an age-appropriate format. ORR believes that the
rule recognizes the minimal foundational requirements for the
orientation and accessibility of information while also providing ORR
with flexibility on how to operationalize it. Having said that, ORR
recognizes the benefit of providing unaccompanied children specific
notification of and information regarding their right to a risk
determination hearing during such orientations to ensure that they are
aware of this right and the process for exercising this right. Given
the multiple comments suggesting that ORR expand the scope of legal
services orientations and information provided to unaccompanied
children about their rights, ORR is adding new paragraph (a)(2)(vii) to
Sec. 410.1309 to provide that as part of a child's orientation, the
child shall receive information regarding the child's right to 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 self or to the community if released, as
described at Sec. 410.1903(a) and (b).
ORR appreciates the benefits of providing legal orientations in-
person. However, the feasibility of providing in-person orientations
may vary, particularly given the need to do so in a timely manner, and
the need to do so in each unaccompanied child's native or preferred
language. ORR anticipates that sometimes there may be unavoidable
trade-offs between providing a timely legal services orientation versus
providing an in-person legal services orientation. Rather than
establish detailed requirements or standards to address this issue,
ORR's proposal under Sec. 410.1309(a)(2)(i)(A) deliberately leaves
these details unspecified, in anticipation of future ORR guidance,
contracting terms, and the likelihood that ORR's policies and standards
regarding in-person versus telephonic or video legal services
orientations may need to be updated over time.
Comment: One commenter argued that the term ``in an age-appropriate
manner'' in Sec. 410.1309(a)(2) does not adequately address the
differences between age and development. The commenter recommended
replacing this language with the phrase ``in an age, developmentally,
and culturally appropriate matter.''
Response: ORR intends that the phrase ``age-appropriate,'' as used
in Sec. 410.1309(a)(2), is synonymous with the term ``developmentally
appropriate.'' ORR is revising the paragraph to state that the required
presentation must be presented in the native or preferred language of
the unaccompanied child, which ORR believes would cover the language
being culturally appropriate.
Comment: One commenter expressed support for the proposal under
Sec. 410.1309(a)(2) for confidential legal consultations for
unaccompanied children, and for the proposal for a second consultation
for some children once identified as falling into one of several
enumerated, high-risk categories. Several commenters recommended
modifying the proposals under Sec. 410.1309(a)(2) to require ORR to
allow at least one additional legal consultation for all unaccompanied
children to the extent practicable, rather than only to those children
at heightened risk as specified under Sec. 410.1309(a)(2)(v). The
commenters argued that, based on trauma-informed care experience, a
substantial number of contacts with an unaccompanied child may be
necessary to establish the rapport and trust needed for the child to
feel safe enough to disclose the difficult details of the events that
may make them eligible for various forms of relief. Another commenter
argued that it was over-inclusive for the proposal to require a second
legal consultation for those unaccompanied children at heightened risk
as specified under Sec. 410.1309(a)(2)(v), because for many of those
children, the heightened risk factors might already have been
identified during the first legal consultation, so as to render a
second consultation duplicative. The commenter recommended making the
[[Page 34531]]
second consultation subject to ORR's discretion, while adding an
additional category of children for whom ORR could permit a second
follow-up legal consultation to apply in other circumstances in which
ORR learns of new information or particular vulnerabilities that
suggest a child might benefit from additional information or advice
about their legal options.
Response: ORR believes that access to a confidential legal
consultation under Sec. 410.1309(a)(2)(v) constitutes an important
protection for the rights and welfare of unaccompanied children in ORR
care, and that a second (repeated) legal consultation can be very
valuable in protecting high-risk unaccompanied children, both by
helping to establish trust through repeated contact, and also by
allowing for more tailored discussion of an unaccompanied child's legal
situation, as new facts and vulnerabilities concerning the child are
discovered. In ORR's view, the current language of Sec.
410.1309(a)(2)(v) strikes a reasonable balance in making confidential
legal consultations available to unaccompanied children, while
prioritizing mandatory access to a second consultation when children
are identified as falling into a high-risk category. ORR also notes
that Sec. 410.1309(a)(2)(v) says that legal consultations shall occur
or shall be requested by ORR under stated conditions, but this does not
preclude ORR from requesting additional legal consultations for other
unaccompanied children, when deemed appropriate (e.g., when ORR learns
of new information that suggests a child might benefit from additional
advice about legal options). In sum, ORR believes that the current
proposal language of Sec. 410.1309(a)(2)(v) provides flexibility for
providing confidential legal consultations to unaccompanied children,
based on their needs and sensitive to changing conditions and new
information about the vulnerability of specific children in ORR
custody.
Comment: A few commenters recommended changing the proposal under
Sec. 410.1309(a)(2), which requires a legal services orientation to
occur within 10 business days of a child's admission to ORR, or
transfer to a new ORR facility other than long-term home care or
transitional home care. The commenters observed that the exception for
unaccompanied children in long-term care makes sense, because most or
all such children receive direct, full-scope representation by a legal
service provider upon their placement. However, the commenters argued
that the same is not true for children placed in transitional foster
care, which is typically short term, and for which it does not make
sense to forego the requirement for a timely refresher legal services
orientation. The commenters therefore recommended dropping the
exception regarding unaccompanied children placed in transitional home
care.
Response: In ORR's view, one of the defining attributes of a
placement for an unaccompanied child in transitional home care is that
such placements are short-term and will therefore typically be followed
in the short-term by another transfer, or by placement into long-term
home care, or by a release from ORR custody to a suitable sponsor. As
written, the exception in Sec. 410.1309(a)(2) contemplates this and
compels a follow-up legal services orientation to take place in the
short-term, in those situations where an unaccompanied child is once
again transferred by ORR out of the transitional home care setting,
while remaining in ORR custody. Taken in this light, ORR believes that
the Sec. 410.1309(a)(2) exception to the requirement for a legal
services orientation, in the case of transfers to transitional home
care, is reasonable and appropriate.
Comment: One commenter recommended, regarding Sec. 410.1309(a)(2),
that ORR should require facilities to set aside sufficient space for
attorneys to meet confidentially with their clients. The commenter
asserted that many facilities do not have designated space for legal
screenings and scramble at the last minute to find such space. The
commenter argued that as a result, legal screenings often take place in
a variety of inappropriate spaces. The commenter further argued that to
address these issues, ORR should provide clear guidelines to shelters
about the number of appropriate confidential spaces for legal
screenings and meetings that are needed, based on facility capacity.
Response: ORR notes that Sec. 410.1309(a)(2)(vi) provides that an
unaccompanied child in ORR care shall be able to conduct private
communications with their attorney of record, DOJ Accredited
Representative, or legal service provider in a private enclosed area
that allows for confidentiality for in-person, virtual, or telephonic
meetings. While ORR does agree with the importance of providing
unaccompanied children with access to private spaces for the conduct of
confidential legal meetings with counsel and is requiring it, ORR
believes that it is beyond the scope of Sec. 410.1309(a)(2) to address
this issue with detailed physical plant requirements for care
facilities.
Comment: One commenter recommended a change to the proposed
language at Sec. 410.1309(a)(2)(v) (which requires a legal
consultation meeting within 10 business days of a child's transfer to a
new ORR facility, either with a qualified attorney, supervised
paralegal, or DOJ Accredited Representative), by arguing that clarity
would be enhanced by stating that an ORR care provider facility should
not retain a child in its care solely to fulfill this requirement, if
the child is ready for unification before the 10-day mark. Another
commenter recommended revising the language of this proposal, by
replacing the word ``paralegal'' with ``other legal professional
working under the supervision of an attorney,'' regarding the types of
professionals who can carry out legal consultation meetings with
unaccompanied children. The commenter argued in support that many legal
service providers now serving unaccompanied children employ qualified
non-attorney legal services professionals who do not carry the specific
title of ``paralegal.''
Response: In ORR's view, there is nothing in the text of Sec.
410.1309(a)(2)(v) to compel a provider to hold unaccompanied children
in custody who are otherwise ready for unification for the sole purpose
of ensuring that a legal consultation meeting occurs and it is not
ORR's intent that a child otherwise ready to be released to a sponsor
should ever remain in custody on the basis of the need for a legal
services orientation. Regarding the use of the term ``paralegal'' in
Sec. 410.1309(a)(2)(v), and those categories of persons who are
authorized to engage in confidential legal consultations with an
unaccompanied child: ORR intended, when using the term ``paralegal,''
to refer to legal services professionals with technical skills and
experience akin to those possessed by a traditional paralegal. ORR will
consider issuing more detailed technical guidance in the future, to
address licensing, experience, and supervision requirements for legal
services professionals in this context, including paralegals.
Comment: One commenter expressed concern about the lack of quality
standards for legal counsel to unaccompanied children under proposed
Sec. 410.1309(a)(4). The commenter argued, by analogy, that in the
commenter's view, there can be quality concerns within the criminal
justice system regarding public defenders. The commenter questioned
whether the same deficiencies might be
[[Page 34532]]
true of appointed counsel in unaccompanied children's immigration
cases.
Response: ORR notes that attorneys are licensed and monitored by
State licensing authorities and that DOJ Accredited Representatives are
accredited according to DOJ standards. It is beyond the scope of this
rulemaking to address detailed quality standards for legal counsel to
unaccompanied children in immigration cases.
Comment: A few commenters expressed opposition to language in
proposed Sec. 410.1309(a)(4) that would exclude from potential funding
for legal representation unaccompanied children in the URM Program who
have reached the age of 18. One commenter argued that under this
proposed language, a child might turn 18 before being able to complete
their applications for relief, and that this result would be contrary
to the stated aims of the TVPRA statute. The commenter recommended
that, in order to uphold both the TVPRA and the mission of the URM
program, ORR should eliminate age-based restrictions on counsel for
children in URM. Another commenter made several additional arguments
against excluding children from legal representation based on turning
18, including that there might not be LSP capacity to serve a child
close to her 18th birthday; that indigenous language speakers might
face greater challenges in communicating with LSPs, leading to added
delays in accessing counsel; that the States are varied in recognizing
the age of majority, such that some States do not recognize the age of
majority until 21; and that recent neuroscientific evidence suggests
that adult brain development and reasoning skills are not achieved
until age 25. The commenter concluded that ORR should allow
unaccompanied children in URM custody to continue to be eligible for
legal representation until the age of 25, or at the very least until
age 21.
Response: ORR does recognize that the language in proposed Sec.
410.1309(a)(4), with regard to unaccompanied children in the URM
Program, may result in some children, who would otherwise be eligible
for legal representation funded by ORR, turning 18 before attaining
legal representation. However, ORR notes that similar problems could
also arise under any other bright-line eligibility criterion, based on
age, for access by unaccompanied children to legal counsel. Based on
ORR's analysis of Sec. 235(c)(5) of the TVPRA and Sec. 292 of the
INA, ORR believes that the language under Sec. 410.1309(a)(4) for
funding for immigration legal counsel for unaccompanied children is
reasonable and appropriate, including the exclusion from funding for
legal representation of unaccompanied children in the URM Program who
have reached the age of 18 before retention of an attorney.
Comment: A few commenters recommended modifying the proposals at
Sec. 410.1309(c)(2), to expand on ORR's obligations regarding
disclosing information from an unaccompanied child's case file to the
child's attorney. One commenter recommended adding an explicit list of
types of information that ORR is required to disclose to a child's
attorney, including all interactions with law enforcement; all
allegations or accusations of sexual harassment or abuse; and any
information that can or will be shared with any enforcement agencies.
One commenter argued that the current proposal does not specify a
reasonable timeframe for the delivery of the case file, and recommended
that at a minimum, the case file must be provided to counsel in a
reasonable timeframe before any applicable hearing. A few commenters
recommended that information from the case file regarding contact with
law enforcement or allegations of abuse and harassment should be turned
over no later than 30 days after the incident, or in the case of
investigations or reports, not more than 30 days after the creation of
the document. These commenters went on to assert that all interactions
with law enforcement or allegations of harassment should be shared with
counsel for the child, because such interactions and allegations will
likely be relevant to the child's immigration relief. A few commenters
recommended that the proposed language in Sec. 410.1309(c)(2)
(regarding disclosures of case file information by ORR to an
unaccompanied child's legal counsel) should be harmonized with current
ORR policy, which permits care provider facilities to share certain
information directly with a child's attorney, subject to the child's
consent and as related to the child's legal case.
Response: Under Sec. 410.1309(c)(2), as proposed, ORR ``shall
share, upon request, the unaccompanied child's complete case file,
apart from any legally required redactions.'' In ORR's view, this
language makes it clear that ORR will disclose, and is required to
disclose, all aspects of an unaccompanied child's case file to that
child's attorney of record, including, without limitation, contacts
with law enforcement and abuse and harassment allegations. In order to
clarify this point under the rule, ORR is revising Sec. 410.1309(c)(2)
to read, in pertinent part, that ``. . . ORR shall share, upon request
and within a reasonable timeframe to be established by ORR, the
unaccompanied child's complete case file, apart from any legally
required redactions, to assist in the legal representation of the
unaccompanied child.'' Because the rule contemplates that ORR will
disclose the entire case file to the attorney of record or DOJ
Accredited Representative within a reasonable time frame, it is ORR's
judgment and intent that this policy will usually result in full
disclosure well before a 30-day disclosure deadline would apply. It is
also ORR's judgment that it is better policy for ORR to retain
discretion through future guidance about what constitutes a reasonable
timeframe for disclosure of the complete case file upon request by the
attorney of record or DOJ Accredited Representative, since this may
need to be revisited by ORR from time to time, particularly as
circumstances change.
Furthermore, to clarify ORR's responsibility to provide access by
unaccompanied children and their attorney of record or DOJ Accredited
Representative to key documents from the case file on an expedited
basis, in the context of time-sensitive proceedings, ORR is revising
Sec. 410.1309(c) to add two new sub-paragraphs, to define what an
``expedited basis'' situation refers to, and to establish that ``If an
unaccompanied child's attorney of record or DOJ Accredited
Representative properly requests their client's case file on an
expedited basis, ORR shall, within seven calendar days, unless
otherwise provided herein, provide the attorney of record with key
documents from the unaccompanied child's case file, as determined by
ORR.''
In addition, ORR is also clarifying at Sec. 410.1309(c)(2) its
responsibility to share with an attorney of record or DOJ Accredited
Representative, upon request, the name and telephone number of all
potential sponsors who have submitted a completed Family Reunification
Application to ORR, if the sponsors have provided consent to release
their information.
Further, in response to comments about providing complete
documentation to attorneys of record, DOJ Accredited Representatives,
and unaccompanied children, ORR has clarified at Sec. 410.1309(c)(2)
that it will allow an unaccompanied child to review, upon request and
in the company of their attorney of record or DOJ Accredited
Representative, if any, such papers or writings as the child possessed
at the time they were
[[Page 34533]]
apprehended by DHS or came into the custody of the relevant Federal
department or agency, if those papers or writings are in ORR's or an
ORR care provider facility's possession. Specifically, ORR has revised
Sec. 410.1309(c)(2) to include the following language: ``Absent a
reasonable belief based upon articulable facts that doing so would
endanger an unaccompanied child, ORR shall ensure that unaccompanied
children are allowed to review, upon request and in the company of
their attorney of record or DOJ Accredited Representative if any, such
papers, notes, and other writings they possessed at the time they were
apprehended by DHS, or another Federal department or agency, that are
in ORR or an ORR care provider's possession.''
Finally, and to ensure that ORR is aware of and responsive to any
problems in timely disclosure of information to attorneys of record or
DOJ Accredited Representatives, as well as any other complaints or
problems from legal representatives regarding emerging issues, ORR is
further revising Sec. 410.1309 by adding a new paragraph (f), as
follows: ``Resource email box. ORR shall create and maintain a resource
email box for feedback from legal services providers regarding emerging
issues related to immediate performance of legal services at care
provider facilities. ORR shall address such emerging issues as
needed.''
Comment: One commenter recommended that ORR should codify in the
NPRM, at Sec. 410.1309(c)(2), certain requirements specified in the
recent Ms. L litigation relating to family separations, including a
requirement that where the Department of Homeland Security (DHS) has
separated a parent and child who traveled together, DHS must provide
ORR with information regarding the separation at the time of the
child's transfer to ORR custody. This information includes information
regarding DHS' reason for separation and the location and contact
information for the parent or legal guardian. ORR is then required to
provide this information, within three business days, to the facility
where the child is being held, to the child's attorney of record and/or
DOJ Accredited Representative, and to any appointed child advocate. The
commenter argued that ORR should codify this legal obligation in the
regulations to ensure that separated children's counsel and advocates
are promptly provided with the information they need to effectively
advocate for them, and to facilitate prompt unification of the child
with their parent whenever possible.
Response: ORR welcomed the judicial approval of the settlement in
the Ms. L litigation, which, among other things, established important
restrictions on future family separations and specified a set of
significant procedural protections when separations do occur. ORR
appreciates the importance of ORR receiving information about the
reasons for separations and sharing that information with the child's
attorney, child advocate, and the program in which a separated child is
placed. ORR is not codifying requirements of the Ms. L settlement in
this rule because they were not subject to notice and comment
procedures, but intends to fully comply with those requirements, and
believes that there is no conflict or inconsistency between the
proposed rule under Sec. 410.1309(c)(2) and ORR's obligations under
the settlement agreement.
Comment: A few commenters recommended additional steps that ORR
should take, moving beyond what is currently proposed under Sec.
410.1309(d), in order to increase the likelihood of ORR meeting its
goal of ensuring legal representation for all unaccompanied children by
2027. A few commenters objected to the proposed funding mechanism
described in the rule, ``based on the historic proportion of the
unaccompanied child population in the State within a lookback period
determined by the Director [of ORR].'' The commenters argued that
reliance on past apportioning across States could fail to account for
current referral volumes and recommended that ORR modify its proposal
to determine grant funding to States based in part on current ORR and
CBP referrals. The commenters also objected to giving discretion to the
ORR Director to determine the lookback period for determining
apportionment based on States' historical data, as creating another
opportunity for bias and gaming in funding decisions.
Response: Under Sec. 410.1309(d), ORR may make grants or
contracts, in its discretion and subject to available resources--
including formula grants distributed geographically in proportion to
the population of released unaccompanied children--as determined by ORR
in accordance with the eligibility requirements outlined in the
authorizing statute, for the purpose of providing legal representation.
ORR would note that this language broadly describes what ORR may do,
rather than what it must do, by way of grant and contract funding
mechanisms for immigration legal services to unaccompanied children. In
ORR's view, the proposal at Sec. 410.1309(d) is appropriate and
consistent with its statutory authorities.
Comment: A few commenters expressed support for the proposals at
Sec. 410.1309(e), codifying ORR's duty not to retaliate against legal
service providers who represent unaccompanied children. The commenters
observed that this safeguard is needed to uphold children's right to
receive independent legal counsel, and to ensure that their attorneys
can exercise their professional and ethical obligations free of
intimidation or interference.
Response: ORR thanks the commenters for their support of proposed
Sec. 410.1309(e) on non-retaliation against legal service providers.
ORR is correcting a typo in the language of Sec. 410.1309(e), by
adding an apostrophe to the expression ``for actions taken within the
scope of the legal service provider's . . . responsibilities.''
Final Rule Action: After consideration of public comments, ORR is
revising Sec. 410.1309(a)(2)(i) to refer to the native or preferred
language of the unaccompanied child; Sec. 410.1309(a)(2)(ii) to
require that when an unaccompanied child requests legal counsel, ORR
will ensure that the child is provided with a list and contact
information for pro bono counsel, and reasonable assistance to ensure
that the child is able to successfully engage an attorney at no cost to
the Government; Sec. 410.1309(a)(2) to add new paragraph (a)(2)(vii)
to provide that as part of a child's orientation, the child shall
receive information regarding the child's right to 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 self or to the community if released, as described at Sec.
410.1903(a) and (b); Sec. 410.1309(c)(2) to clarify that ORR shall
share, upon request and within a reasonable timeframe to be established
by ORR, the unaccompanied child's complete case file, apart from any
legally required redactions; Sec. 410.1309(c)(2) to require that ORR
share information with an attorney of record or DOJ Accredited
Representative, upon request, the name and telephone number of all
potential sponsors who have submitted a completed Family Reunification
Application, if the sponsors have provided consent to release their
information; Sec. 410.1309(c)(2) to clarify that ORR shall, absent a
reasonable belief based upon articulable facts that doing so would
endanger an
[[Page 34534]]
unaccompanied child, ensure that unaccompanied children are allowed to
review, upon request and in the company of their attorney of record or
DOJ Accredited Representative, if any, such papers, notes, and other
writings they possessed at the time they were apprehended by DHS or
another Federal department or agency, that are in ORR or an ORR care
provider's possession; Sec. 410.1309(c) by adding two new sub-
paragraphs (3) and (4), to define what an ``expedited basis'' situation
refers to, and to establish that if an unaccompanied child's attorney
of record or DOJ Accredited Representative properly requests their
client's case file on an expedited basis, ORR shall, within seven
calendar days, unless otherwise provided herein, provide the attorney
of record or DOJ Accredited Representative with key documents from the
unaccompanied child's case file, as determined by ORR; Sec.
410.1309(e), by adding an apostrophe to the phrase ``legal service
provider's,'' to clarify that ORR shall not retaliate against a legal
service provider for actions taken within the scope of that person's
responsibilities; and adding Sec. 410.1309(f) to state that ORR shall
create and maintain a resource email box for feedback from legal
services providers regarding emerging issues related to immediate
performance of legal services at care provider facilities, and that ORR
shall address such emerging issues as needed; and is otherwise
finalizing this section as proposed.
Section 410.1310 Psychotropic Medications
ORR proposed in the NPRM requirements related to the administration
of psychotropic medications to unaccompanied children while in ORR care
(88 FR 68951). ORR noted 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. case, as discussed in section III.B.4. of
this final 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[.]'' \291\ At the time of this writing, the
parties in the Lucas R. case have negotiated a proposed settlement
agreement that would resolve this claim. The settlement agreement was
preliminarily approved by the Court on January 5, 2024,\292\ and the
final approval hearing is scheduled for May 3, 2024.
The proposed rule stated ORR's belief that psychotropic medications
should only be administered appropriately and in the best interest of
the child and with meaningful oversight (88 FR 68951). Therefore, ORR
proposed in the NPRM 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 proposed in the NPRM 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.
Comment: One commenter recommended ORR strengthen due process
protections for unaccompanied children and provide enhanced safeguards
for children who are administered psychotropic medications.
Response: ORR agrees that safeguards for unaccompanied children who
are administered psychotropic medications are important and believes
that ensuring unaccompanied children have assistance of legal counsel
can help ensure their protection. Therefore, ORR is adding a new Sec.
410.1310(c) that ORR shall permit unaccompanied children to have the
assistance of counsel, at no cost to the Federal Government, with
respect to the administration of psychotropic medications.
Comment: A few commenters emphasized that in non-psychiatric
emergencies, ORR must ensure that an authorized individual provides
informed consent prior to the administration of psychotropic medication
and requested that ORR removed the term ``whenever possible'' from
Sec. 410.1310(a) since the regulatory text already includes an
exception for psychiatric emergencies.
Response: ORR agrees and is therefore removing the term ``whenever
possible'' from Sec. 410.1310(a) so that it states, ``Except in the
case of a psychiatric emergency, ORR shall ensure that authorized
individuals provide informed consent prior to the administration of
psychotropic medications to unaccompanied children.''
Comment: Several commenters stated that ORR should define who can
be an ``authorized consenter'' and recommended that it should be a
child's parent or legal guardian, whenever reasonably available,
followed by a close relative sponsor, and then the unaccompanied child
themself (if the child is of sufficient age and permitted to consent
under State law). They also stated that care provider staff must never
be considered authorized individuals for the purpose of informed
consent to psychotropic medication. One commenter requested
clarification if ORR intended that authorized consent should be
obtained according to authorized consent laws in the State where the
program operates.
Response: ORR agrees that additional detail regarding who can
provide authorized consent would provide additional clarity. Therefore,
ORR is clarifying at Sec. 410.1310(a)(1) that three categories of
persons can serve as an ``authorized consenter'' and provide informed
consent for the administration of psychotropic medication to
unaccompanied children in ORR custody: the child's parent or legal
guardian, followed by a close relative sponsor, and then the
unaccompanied child themself if the child is of sufficient age and a
doctor has obtained informed consent. ORR believes that this additional
language clarifies that care provider facility staff are not
``authorized consenters'' for the purposes of providing informed
consent prior to the administration of psychotropic medications to
unaccompanied children. Finally, ORR recognizes that medical providers
are required to operate within their respective State's licensing laws
and regulations.
Comment: One commenter stated that ORR should require that consent
be obtained voluntarily, without undue influence or coercion. A few
commenters recommended that ORR include language that care provider
facilities must not retaliate against an unaccompanied child or an
authorized consenter for withholding consent or refusing to take any
psychotropic medication, including, as noted by one commenter, when
consent is initially given, but the unaccompanied child or authorized
consenter later changes their mind. A few commenters also noted that
refusing to consent should not be used to step-up youth to more
restrictive placements or to coerce youth into taking medication as a
condition of placement.
Response: ORR agrees and is therefore incorporating a requirement
at Sec. 410.1310(a)(2) that consent must be
[[Page 34535]]
obtained voluntarily, without undue influence or coercion, and ORR will
not retaliate against an unaccompanied child or an authorized consenter
for refusing to take or consent to any psychotropic medication. ORR
notes that this would include when consent is initially given, but then
retracted later. ORR further notes that it believes the terms
``voluntarily, without undue influence or coercion'' encompasses that
refusal to consent should not be used to step-up children to a more
restrictive placement, or that taking medication should not be used as
a condition of placement.
Comment: A few commenters specified that ORR, in the instance of a
psychiatric emergency, should require that any emergency administration
of psychotropic medication be documented, that the child's authorized
consenter be notified as soon as possible, and that the care provider
and ORR review the incident to ensure compliance with ORR policies and
avoid future emergency administrations of medication.
Response: ORR agrees and is therefore adding Sec. 410.1310(a)(3)
requiring that any emergency administration of psychotropic medication
be documented, the child's authorized consenter be notified as soon as
possible, and the care provider and ORR must review the incident to
ensure compliance with ORR policies to reasonably avoid future
emergency administrations of medication.
Comment: One commenter emphasized that psychotropic medications
should not be used as a behavior management tool in lieu of or as a
substitute for identified psychosocial or behavioral supports required
to meet an unaccompanied child's mental health needs. They noted that
serious incidence reports have been used by care provider facilities to
document psychotropic medication non-compliance in ways that suggest
that youth who refuse to take their medications are being difficult or
oppositional. One commenter expressed that care provider facilities
should not use psychotropic medications to address an unaccompanied
child's history of trauma.
Response: ORR believes that a variety of behavioral supports and
trauma-informed approaches should support unaccompanied children with
mental health needs or those with a history of trauma, and that
psychotropic medications should only be used when medically appropriate
and when authorized consent is given by an authorized consenter.
Accordingly, psychotropic medications should not be used as a
replacement for effective and evidence-based behavior management tools.
ORR notes that it is adding under Sec. 410.1310(a)(2) that consent
must be obtained voluntarily, without undue influence or coercion, and
ORR will not retaliate against an unaccompanied child or an authorized
consenter for refusing to take or consent to any psychotropic
medication, and further notes that this includes the use of serious
incident reports as retaliation for refusing to take psychotropic
medication and applies to how such refusal is documented by care
provider facilities.
Comment: One commenter requested that ORR provide additional
clarification on what ``meaningful oversight'' will entail. The
commenter recommended including examples such as reviewing cases
flagged by care providers and conducting additional reviews of the
administration of psychotropic medications in high-risk circumstances,
including but not limited to cases involving young children,
simultaneous administration of multiple psychotropic medications, and
high dosages.
Response: ORR agrees and is modifying Sec. 410.1310(b) to clarify
that ``meaningful oversight'' includes reviewing cases flagged by care
providers and conducting additional reviews of the administration of
psychotropic medications in high-risk circumstances, including but not
limited to cases involving young children, simultaneous administration
of multiple psychotropic medications, and high dosages.
Comment: A few commenters recommended that ORR must also engage a
child and adolescent psychiatrist as part of its oversight function
because they are qualified professionals who are able to oversee
prescription practices and provide guidance to care providers.
Response: ORR agrees that qualified professionals are needed for
proper oversight of prescription practices and to provide guidance to
care providers. These qualified professionals may include child and
adolescent psychiatrists. Given the scarcity of child and adolescent
psychiatrists around the country, ORR is retaining some flexibility to
rely on other qualified professionals with similar backgrounds,
expertise, and educational experiences to child and adolescent
psychiatrists. Accordingly, ORR is revising Sec. 410.1310(b) to
clarify that ORR will engage qualified professionals who are able to
oversee prescription practices and provide guidance to care providers,
such as a child and adolescent psychiatrist.
Comment: One commenter recommended that ORR gather data on
unaccompanied children who are administered psychotropic medications
for oversight and so that ORR can understand how psychotropic
medications are administered across its network and within individual
care provider facilities. Another commenter expressed concern over
ORR's ability to monitor and assess patterns and trends relating to
unaccompanied children's needs for psychotropic medications.
Response: ORR agrees is incorporating additional data collection
requirements related to the administration of psychotropic medications
at Sec. 410.1501 (Data on unaccompanied children). Specifically, ORR
is requiring that care providers report information to ORR relating to
the administration of psychotropic medications, including children's
diagnoses, the prescribing physician's information, the name and dosage
of the medication prescribed, documentation of informed consent, and
any emergency administration of medication. Such data must be compiled
and aggregated in a manner that enables ORR to track how psychotropic
medications are administered across its network and in individual
facilities. ORR believes this data collection will enable ORR to
monitor potential patterns and trends related to the use of
psychotropic medications.
Final Rule Action: After consideration of public comments, ORR is
finalizing its proposal with the following modifications: At Sec.
410.1310(a) ORR is removing the phrase ``whenever possible'' and is
adding Sec. 410.1310(a)(1) that defines ``authorized consenter,''
which is a person who can provide informed consent for the
administration of psychotropic medication to unaccompanied children in
ORR custody: the child's parent or legal guardian, followed by a close
relative sponsor, and then the unaccompanied child themself if the
child is of sufficient age and a doctor has obtained informed consent;
Sec. 410.1310(a)(2) requires that consent must be obtained
voluntarily, without undue influence or coercion, and ORR will not
retaliate against an unaccompanied child or an authorized consenter for
refusing to take or consent to any psychotropic medication; and Sec.
410.1310(a)(3) that requires that any emergency administration of
psychotropic medication be documented, that the child's authorized
consenter be notified as soon as possible, and that the care provider
and ORR review the incident
[[Page 34536]]
to ensure compliance with ORR policies and avoid future emergency
administrations of medication. ORR is also revising Sec. 410.1310(b)
to require that ``meaningful oversight'' of the administration of
psychotropic medication(s) to accompanied children includes reviewing
cases flagged by care providers and conducting additional reviews of
the administration of psychotropic medications in high-risk
circumstances, including but not limited to cases involving young
children, simultaneous administration of multiple psychotropic
medications, and high dosages. Section 410.1310(b) also requires that
ORR must engage qualified professionals who are able to oversee
prescription practices and provide guidance to care providers, such as
a child and adolescent psychiatrist. ORR is adding a new Sec.
410.1310(c) that ORR shall permit unaccompanied children to have the
assistance of counsel, at no cost to the Federal Government, with
respect to the administration of 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. In the NPRM, ORR noted that the Lucas R. case, discussed in
the Background of this rule, is relevant to this topic area and that
ORR will be bound by any potential future court decisions or
settlements in the case (88 FR 68951). 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')].'' \293\ The Court's Preliminary Injunction
ordered on August 30, 2022, did not settle this claim and, as stated in
the NPRM, as of April 2023, ORR remained in active litigation regarding
this claim. ORR proposed in the NPRM requirements to ensure the UC
Program's compliance with the HHS section 504 implementing regulations
at 45 CFR part 85. ORR therefore proposed 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 (88
FR 68951).
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.\294\
ORR proposed in the NPRM at Sec. 410.1311(b) to 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.\295\
ORR proposed in the NPRM at Sec. 410.1311(c) to 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 fundamentally alter the nature of a program or
activity. Under Sec. 410.1311(d), ORR proposed in the NPRM to 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 Sec. 410.1311(e), in addition to the requirements for
release of unaccompanied children established elsewhere in this
regulation and through any subregulatory guidance ORR may issue, ORR
proposed in the NPRM 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 to
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
fundamentally alter 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 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.
Comment: A few commenters recommended that ORR designate an ORR
staff member as a section 504 coordinator to oversee ORR's compliance
with section 504 and ORR's treatment of unaccompanied children with
disabilities. These commenters also recommended this role have
authority to respond to complaints and approve additional resources for
unaccompanied children with disabilities. Many commenters also
recommended that ORR coordinate with Protection and Advocacy agencies
(P&As) to ensure independent oversight regarding the rights of
unaccompanied children with disabilities. These commenters recommended
that ORR cooperate with P&As across its network, providing reasonable
access to facilities as well as information regarding disability law
compliance.
Response: ORR agrees that Protection and Advocacy agencies are
often a valuable resource and partner considering their access to
facilities and expertise in disability law compliance. ORR also refers
readers to subpart K regarding the Office of Ombuds and its role in
responding to complaints and independent oversight of ORR's compliance
with applicable laws. Additionally, as noted in the Background section,
ORR will work with experts to undertake a year-long comprehensive needs
assessment to evaluate the adequacy of services, supports, and
resources currently in place for children with disabilities in ORR's
custody across its network, and to identify gaps in the current system,
which will inform the development of a disability plan and future
policymaking that best address how to meet the needs of children with
disabilities in ORR's care and custody effectively. These efforts will
provide ORR with an opportunity to consider commenters' recommendations
in greater depth.
Comment: Commenters recommended, consistent with the proposed Lucas
R. settlement agreement related to children with disabilities in
[[Page 34537]]
ORR's custody, that ORR create a mailbox for concerns raised by or on
behalf of unaccompanied children with suspected or identified
disabilities, and that ORR respond to concerns within no more than 30
days explaining what, if any, steps were taken or are planned to
address the concerns.
Response: Regarding the process for making a complaint, ORR again
refers readers to the provisions related to the Office of the Ombuds at
Sec. 410.2002(a)(1) that enables the Ombuds to receive ``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.''
Comment: Many commenters recommended that ORR include language
requiring that notices of rights and procedures are provided to
unaccompanied children in a manner accessible to children with
disabilities.
Response: ORR agrees that a notice of rights must be accessible to
children with disabilities to be consistent with section 504. ORR is
therefore adding a requirement to Sec. 410.1311(a) that the notice
must be provided in a manner that is accessible to children with
disabilities.
Comment: Some commenters recommended that ORR specify it will set
up procedural safeguards, which are analogous to 34 CFR 104.36, for
requesting reasonable accommodations or modifications or for making a
complaint about disability discrimination, including easily accessible,
child-friendly procedures, and promptly respond to any requests or
complaints. Commenters recommended that ORR have a clear process for
requesting and receiving auxiliary aids or services in a timely manner
as well as require training for providers to ensure effective
communication.
Response: ORR notes that 34 CFR 104.36 does not apply to ORR but
appreciates that it is an example of the codification of procedural
safeguards. ORR may consider commenters' feedback related to the
process for requesting reasonable modifications or for making a
complaint in future policymaking, which may be informed by the
anticipated comprehensive disability needs assessment process, and the
development of the disability plan.
Comment: Many commenters expressed general support for the
recognition of ORR's legal obligation to administer the UC Program in
the most integrated setting appropriate to the needs of unaccompanied
children and recommended that ORR adopt more specific requirements
regarding unaccompanied children with disabilities. Many commenters
recommended that ORR clarify that the most integrated setting for
unaccompanied children with disabilities will always be in a community
setting, and in a family setting wherever possible. Many commenters
recommended that unaccompanied children with disabilities be
prioritized for community-based placement to ensure that unaccompanied
children with disabilities are served in the most integrated setting
appropriate to their needs. These commenters also recommended that ORR
prioritize grants and outreach to community-based care providers that
can serve children with disabilities.
Some commenters expressed concern that they believe placement
decisions for unaccompanied children with disabilities are often made
quickly, by staff without training and who have limited information on
resources and services. These commenters requested that a review
process be put in place to ensure stays in congregate care are as short
as possible, believing that such placements can cause significant harm
to unaccompanied children with disabilities. These commenters also
noted that unaccompanied children with disabilities should never be
placed in residential treatment centers for things like medication
management and therapeutic services.
Response: ORR prefers to place unaccompanied children in
transitional and long-term foster care settings rather than large
congregate care facilities when possible and is making efforts to move
toward a community-based care model. Accordingly, ORR will provide
children with disabilities equal access to community-based placements
such as individual family homes and believes children with disabilities
should be included among the groups prioritized for community-based
placement. ORR intends to prioritize outreach and grants to community-
based care providers that can serve children with a variety of
disabilities as part of its efforts to move towards a community-based
care model. ORR's response to concerns expressed by commenters about
placement of children with disabilities who have serious mental or
behavioral health issues in RTCs are addressed at length in responses
to comments under Sec. 410.1105.
Comment: Although many commenters expressed support for the
proposed requirements under Sec. 410.1311(c), these commenters
recommended that the proposed regulations should set out more specific
requirements for unaccompanied children with disabilities. These
commenters also recommended that ORR explicitly incorporate the
consideration of reasonable modifications and auxiliary aids and
services to facilitate less restrictive placement. These commenters
recommended that such a determination should be made by clear and
convincing evidence that a less restrictive placement with additional
modifications or services is not possible. Commenters also recommended
that reasonable modifications for unaccompanied children with
disabilities should include delivery of crisis intervention and
stabilization services in a non-secure setting.
Response: ORR is revising Sec. 410.1311(c) in this rule to state
more explicitly that ORR shall make reasonable modifications to its
programs, including the provision of services, equipment, and
treatment, so that an unaccompanied child with one or more disabilities
can have equal access to the program in the most integrated setting
appropriate to their needs. In addition, ORR notes that it is
finalizing Sec. 410.1105(a)(1) and (b)(1) to state that restrictive
placement determinations under paragraphs (a) and (b) must be made
based on clear and convincing evidence documented in the unaccompanied
child's case file. ORR may also consider in future policymaking
commenters' recommendation that reasonable modifications for
unaccompanied children with disabilities should include delivery of
crisis intervention and stabilization services in a non-secure setting,
consideration which may be informed by the anticipated year-long
comprehensive disability needs assessment and development of a
disability plan.
Comment: Commenters recommended that Sec. 410.1311(e)(1) specify
more context and instruction on how ORR evaluates the unaccompanied
child's disability as part of determining the potential sponsor's
suitability because, the commenters argued, the provision as proposed
could result in discrimination against unaccompanied children with
disabilities by adding obstacles to release not faced by unaccompanied
children without disabilities. These commenters noted that ORR has a
legal obligation to ensure unaccompanied children with disabilities
have an equal opportunity to prompt release. These commenters also
recommended, consistent with the Lucas R. settlement agreement and
caselaw, the final rule specify ORR's consideration of the impact of an
unaccompanied child's disability or disabilities must also
[[Page 34538]]
include explicit consideration of the potential benefit to the
unaccompanied child of release to a community placement and/or a
sponsor.
Response: ORR agrees that 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. Under Sec. 410.1202(f)(5), ORR is
finalizing that it will evaluate any individualized needs of the
unaccompanied child, including those related to disabilities or other
medical or behavioral/mental health issues, and under Sec.
410.1202(h)(1) assess the sponsor's understanding of the child's needs
as part of determining the sponsor's suitability. ORR agrees that
unaccompanied children with disabilities should have an equal
opportunity for prompt release, and for that reason proposed under
Sec. 410.1311(e)(3) that release will not be delayed solely because
PRS is not in place. Finally, ORR agrees that consideration must be
given to the explicit benefits of community-based settings and is
therefore modifying Sec. 410.1311(e)(1) to state that ORR must
consider the potential benefits to the child of release to a community-
based setting.
Comment: Many commenters expressed support for the proposed
language in Sec. 410.1311(e)(2) requiring reasonable modifications in
the provision of PRS to enable unaccompanied children to live in
integrated settings with their sponsors. One commenter recommended that
ORR revise the regulatory language to incorporate reasonable
modifications for unaccompanied children with disabilities as part of
the release and PRS planning process to ensure prompt release.
Response: ORR agrees that reasonable modifications should be made
as part of the release process. Accordingly, ORR is modifying Sec.
410.1311(e)(2) to add ``planning for a child's release,'' so that it
requires ORR and any entities through which ORR provides PRS to make
reasonable modifications in their policies, practices, and procedures
in planning for a child's release and conducting PRS.
Comment: Many commenters recommended that unaccompanied children
with disabilities who wish to receive more intensive PRS should receive
service planning that develops a plan of services and supports such as
case management, community-based mental health services, and medical
care. Commenters recommended the final rule clarify that ORR document
its efforts to educate the sponsor about the unaccompanied child's
needs and assist the sponsor in accessing and coordinating PRS and
supports, and recommended the final rule state that ORR will not deny
release to sponsors prior to such education and assistance being
offered. One commenter also recommended that ORR explicitly state that
unaccompanied children will not be denied release solely based on a
finding that the unaccompanied child is a danger to themself, and that
ORR should affirmatively support sponsors in accessing PRS for
unaccompanied children with serious mental health needs.
Response: ORR notes that Sec. 410.1311(e)(2) as proposed in the
NPRM states that ORR will affirmatively assist sponsors in accessing
PRS to support the disability-related needs of a child upon release (88
FR 68952, 68997). ORR believes that a child's disability is not a
reason to delay or deny release to a sponsor unless there is a
significant risk to the health or safety of the child that cannot be
mitigated through the provision of services and reasonable
modifications, and ORR has documented its efforts to educate the
sponsor about the child's disability-related needs and coordinated PRS.
Related to findings of dangerousness and release, ORR may take the
commenter's feedback into consideration for future policymaking.
Comment: One commenter noted that PRS would be especially important
for unaccompanied children with disabilities, and that these services
should include a focus on insurance eligibility in the State to which
the child will be released.
Response: ORR agrees that unaccompanied children may need
particular services and treatment due to a disability but reiterates
that not all unaccompanied children with disabilities necessarily
require particular services and treatment. As such, ORR proposed in the
NPRM under Sec. 410.1311(e)(2) that it 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 Sec. 410.1210. ORR notes that existing PRS services
may include informing released children and sponsor families of medical
insurance options, including supplemental coverage, and assist them in
obtaining insurance, if possible, so that the family is able to manage
the child's health-related needs effectively.
Comment: Many commenters expressed support for proposed Sec.
410.1311(e)(3) and recommended that ORR further specify that a pending
assessment for unaccompanied children with a disability or service plan
development will not delay a child's release to an otherwise suitable
sponsor. One commenter also recommended that the final rule clarify
that an unaccompanied child's disability is not a reason to delay or
deny release to a sponsor unless there is a significant risk to the
health or safety of the unaccompanied child that cannot be mitigated
through the provision of services and reasonable modifications.
Response: ORR agrees that a child's disability is not a reason to
delay or deny release to a sponsor unless there is a significant risk
to the health or safety of the child that cannot be mitigated through
the provision of services and reasonable modifications, and ORR has
documented its efforts to educate the sponsor about the child's
disability-related needs and coordinated PRS. ORR further agrees that a
pending assessment for an unaccompanied child should likewise not delay
a child's release to an otherwise suitable sponsor. ORR notes that,
pursuant to Sec. 410.1311(e)(2), ORR will affirmatively assist
sponsors in accessing PRS to support the disability-related needs of a
child upon release.
Final Rule Action: After consideration of public comments, ORR is
finalizing its proposal as proposed with additions to Sec. 410.1311(a)
to require that notices must be provided ``in a manner that is
accessible to children with disabilities;'' to Sec. 410.1311(c) to
specify that ``ORR shall make reasonable modifications to its programs,
including the provision of services, equipment, and treatment, so that
an unaccompanied child with one or more disabilities can have equal
access to the UC Program in the most integrated setting appropriate to
their needs,'' and to state more clearly that ``ORR is not required,
however, to take any action that it can demonstrate would fundamentally
alter the nature of a program or activity;'' to Sec. 410.1311(e)(1) to
require ORR to correspondingly consider the potential benefits to the
child of release to a community-based setting; and to Sec.
410.1311(e)(2) to add ``planning for a child's release'' as an activity
for which ORR is required to provide reasonable modifications in their
policies, practices, and procedures, in addition to conducting PRS.
[[Page 34539]]
Subpart E--Transportation of an Unaccompanied Child
Section 410.1400 Purpose of This Subpart
This subpart concerns the safe transportation of each unaccompanied
child while in ORR's care (88 FR 68952). ORR noted in the NPRM that ORR
generally does not provide transportation 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.\296\ ORR, or its care provider facilities,
provides transportation while the unaccompanied child is in 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.
Subpart E provides certain requirements for such transportation while
unaccompanied children are under ORR care.
Comment: One commenter requested clarification on the expected
accountability of the transportation provider when transporting
unaccompanied children from DHS to ORR and the expectations for
communication between the transportation provider and care provider
facility.
Response: ORR reiterates that the TVPRA \297\ places the
responsibility for the transfer of custody of unaccompanied children on
referring Federal agencies. Therefore, the referring Federal agency
with custody of the child is responsible for the transportation of the
child to ORR and ensuring such accountability. ORR custody begins when
it assumes physical custody of the unaccompanied child from the
referring Federal agency as discussed at Sec. 410.1101(e). However,
ORR does collaborate closely with referring Federal agencies during the
referral of unaccompanied children to ORR custody. ORR refers readers
to Sec. 410.1101 for further information on the placement and referral
process. Also, ORR notes that the ORR Policy Guide provides more
detailed information on placement and transfer of unaccompanied
children in ORR care provider facilities. In this guidance, ORR states
that it remains in contact with care provider facilities to identify,
designate, and confirm placements during initial referrals.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1400 as proposed.
Section 410.1401 Transportation of an Unaccompanied Child in ORR's Care
ORR proposed in the NPRM transportation requirements for care
provider facilities to help ensure that unaccompanied children are
safely transported during their time in ORR care (88 FR 68952). ORR
proposed in the NPRM at Sec. 410.1401(a) to 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 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 Sec.
410.1304(e)(2), secure facilities, except for RTCs, may restrain a
child for their own immediate safety or that of others during
transportation to an immigration court or an asylum interview. ORR
stated that it believes the 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.
ORR proposed in the NPRM at Sec. 410.1401(b), to 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 Sec. Sec. 410.1202 and
410.1203. ORR also proposed 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,
ORR proposed in the NPRM at Sec. 410.1401(c) 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. ORR proposed in the NPRM at Sec. 410.1401(d),
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 proposed in the NPRM at Sec. 410.1401(e), to
require the care provider facility to conduct all necessary background
checks for drivers transporting unaccompanied children, in compliance
with Sec. 410.1305(a). Finally, ORR proposed in the NPRM at Sec.
410.1401(f) 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.
Comment: A few commenters supported ORR's proposals to provide safe
transportation of unaccompanied children while in ORR care. Commenters
believed these requirements will help ensure the safety and well-being
of unaccompanied children, establish high minimum standards for
facilities that transport unaccompanied children while in ORR care, and
enhance public transparency on the operations of the UC Program. A few
commenters specifically supported ORR's proposal at Sec. 410.1401(f)
that would require transport staff and unaccompanied children to be of
the same gender to the greatest extent possible under the
circumstances.
Response: ORR thanks commenters for their support. ORR agrees with
commenters and believes that these requirements are important to
ensuring the safety of unaccompanied children transported in ORR care.
Comment: A few commenters requested clarification on ORR's
proposals to provide for the safe transportation of unaccompanied
children in ORR care. One commenter requested ORR provide more detail
on the transportation of unaccompanied children to heightened security
facilities, and another commenter
[[Page 34540]]
requested information on the payment and planning processes for
transporting children. One commenter requested that ORR provide clarity
on the proposal at Sec. 410.1401(d) that requires ORR employees to
abide by their Federal duties if there are potential conflicts between
ORR's regulations and State law and inquired as to whether ORR
employees include care providers, grantees, and/or contractor staff.
Additionally, one commenter requested more information on if the
transportation requirements at proposed Sec. 410.1401(f) apply to
transfers, releases, or all circumstances in which a child is being
transported and whether children, deemed age-appropriate, are permitted
to travel alone for unification purposes.
Response: ORR refers commenters to the requirements proposed at
Sec. Sec. 410.1401 and 410.1601 regarding the transportation and
transfer of unaccompanied children to heightened supervision
facilities, and notes that under current ORR policies, referring and
receiving care providers will coordinate the logistics of the transfer.
ORR also clarifies that ``ORR employees'' means Federal employees of
ORR and does not include care provider facility staff or other service
providers who are not employed by ORR. As described in Sec. 410.1400,
ORR reiterates that the proposed transportation requirements would
apply in all circumstances where unaccompanied children in ORR care
require transportation, including: (1) for purposes of service
provision; (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. The transportation
requirements would apply while unaccompanied children are in ORR care,
and therefore, children would not be able to travel alone, even for
unification purposes. ORR believes this requirement is necessary to
ensure the safe transportation of unaccompanied children while in ORR
care. ORR also notes that subregulatory guidance and other
communications from ORR to care provider facilities provide more
detailed and specific guidance on transportation requirements, such as
information regarding the planning and payment processes for
transporting unaccompanied children.
Comment: A few commenters requested that ORR make technical changes
or clarifications to the rule. One commenter recommended that ORR
include language at proposed Sec. 410.1401(c) to clarify that State-
licensed programs must follow State licensure requirements if there is
a potential conflict between ORR's regulations and State law. Another
commenter noted an inconsistency between the preamble and regulation
text at proposed Sec. 410.1401(b). In the preamble, ORR states that it
may have the authority to ``require'' a care provider facility to
transport an unaccompanied child when releasing an unaccompanied child
to a sponsor whereas the regulation text states that ORR may have the
authority to ``request'' a care provider facility to transport an
unaccompanied child. The commenter recommended using the term
``require'' consistently in the preamble and regulation text. Lastly,
one commenter recommended ORR define the term ``gender'' to provide
clarification whether this term includes ``gender identity'' or to
replace the word ``gender'' with ``sex.''
Response: ORR has updated the language at Sec. 410.1401(b) to
state that ORR may ``require'' a care provider facility to transport an
unaccompanied child for release to a sponsor. ORR believes this update
ensures consistency between the preamble and regulation text. Further,
ORR reiterates that Sec. 410.1401(c) requires that care provider
facilities comply with all relevant State and local licensing
requirements and State and Federal regulations regarding transportation
of children. Care provider facilities means any facility in which an
unaccompanied child may be placed while in the custody of ORR and are
operated by an ORR-funded program that provides residential services
for children. Additionally, ORR clarifies that, consistent with Sec.
410.1302(a), all standard programs and secure facilities are required
to be State-licensed as long as State licensing is available where they
are located. Even where State licensure is not available, under this
final rule, such programs must still meet the requirements established
by the relevant State licensing authority. ORR also expects and
requires under Sec. Sec. 410.1302(a) and (b) of this final rule that
standard program and secure facility employees will follow State
licensure requirements. 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. Lastly, ORR notes that it
uses the term ``gender'' in a way that aligns with its current policies
and follows the definitions of the terms ``gender'' and ``sex'' as
defined in existing Federal regulations governing ORR at 45 CFR 411.5.
Comment: A few commenters expressed concerns related to the safety
and well-being of unaccompanied children during transportation. One
commenter expressed concern with the proposal regarding of the use of
restraints while transporting unaccompanied children at Sec.
410.1401(a). The commenter stated that the use of restraints could pose
serious risk of harm to and traumatization of children and recommended
that ORR conduct holistic evaluations of children's needs before using
restraints during transportation. The commenter also recommended that
ORR codify existing policies to ensure children are afforded due
process when restraints are used, such as notifying the child's legal
services provider when restraints are being considered for court
appearances and documenting any use of restraints. Another commenter
expressed concerns about the lack of staffing for providing
unaccompanied children with transportation to religious services. The
commenter recommended ORR add an explicit requirement to ensure care
provider facilities maintain sufficient staffing to allow equal access
to religious services. One commenter recommended that ORR establish
additional safeguards to protect children during transportation,
including equipping vehicles with GPS capabilities to enable facilities
to track vehicles, requiring more than one staff person to accompany
children during transportation, and notifying children's attorneys or
legal representatives of the transportation schedule. Another commenter
recommended that ORR transport children to an ORR care provider
facility nearest to the location of the child's sponsor, while another
recommended restricting the transportation of unaccompanied children
with detained adults.
Response: ORR notes that Sec. 410.1401(a) is aligned with existing
ORR policy and with Sec. 410.1304, where ORR enumerates limited
circumstances under which restraints may be used. For example, staff
may only use soft restraints during transportation to and from secure
facilities only when the care provider facility believes the child
poses a serious risk of physical harm to self or others or is a serious
risk of running away from ORR custody. Also, ORR staff will employ de-
escalation and positive behavior management techniques before using
restraints during transportation. ORR believes these requirements
regarding the use of restraints are important to ensure the safety of
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unaccompanied children and those around them while being transported in
ORR care. ORR policy describes additional guidance on the use of
restraints during transportation, including due process protections.
ORR did not propose to adopt each of its existing requirements into the
Foundational rule because maintaining subregulatory guidance in this
area will allow ORR to make more appropriate, timely, and iterative
updates in keeping with best practices. It also allows ORR to continue
to be responsive to the needs of unaccompanied children and care
provider facilities.
Regarding access to religious services, ORR reiterates that at
Sec. 410.1305(b), care provider facilities are required to meet the
staff-to-child ratios established by their respective States. ORR
believes that this requirement would provide care provider facilities
with adequate staff to ensure access to minimum standards, including
religious services, as described at Sec. 410.1302(c)(9). Further, in
the event ORR has identified a suitable sponsor for an unaccompanied
child, ORR assists without undue delay in making transportation
arrangements for release. Consistent with the FSA paragraph 26, ORR
will provide assistance in making transportation arrangements for the
release of unaccompanied children to the nearest location of the person
or facility the child is released to, as described at Sec.
410.1401(b). Additionally, ORR agrees with the commenter that
unaccompanied children should not be transported with detained adults,
consistent with the FSA. ORR does not have adults in custody. ORR
reiterates that unaccompanied children's attorneys or legal
representatives will be notified of all transfers within 48 hours prior
to the unaccompanied child's physical transfer, as discussed at
proposed Sec. 410.1601(a)(3). However, such advance notice is not
required in unusual and compelling circumstances which are further
detailed at proposed Sec. 410.1601(a)(3). Regarding commenters'
requests for additional transportation safeguards, such as equipping
vehicles with GPS capabilities, ORR notes that these are not required
by statute or the FSA nor are they current ORR practice. ORR may
consider the commenters' recommendations on additional transportation
safeguards for future policymaking.
Comment: A few commenters did not support the proposal to provide
for the safe transportation of unaccompanied children while in ORR care
due to concerns about the risk of child trafficking while transporting
unaccompanied children.
Response: ORR acknowledges the commenters' concerns, but ORR
believes that the proposal will not increase the risk of child
trafficking. Instead, ORR believes the proposal will help ensure the
safety of unaccompanied children being transported in ORR care. For
example, ORR believes that Sec. 410.1401(e), which requires care
provider facilities to conduct background checks for all drivers, will
help promote child safety and well-being and reduce the risk of child
trafficking. ORR notes that it is updating Sec. 410.1401(e) to require
care provider facilities or contractors to conduct background checks
for all individuals who may be transporting unaccompanied children. ORR
believes this revision reflects ORR's use of transportation contractors
that are not operated by a care provider facility and encompasses
various modes of transportation in addition to driving.
Final Rule Action: After consideration of public comments, ORR is
revising Sec. 410.1401(b) to state that ORR may ``require'' a care
provider facility to transport an unaccompanied child when releasing a
child to a sponsor. Also, at Sec. 410.1401(b), ORR is amending the
text to state that ORR ``shall assist'' without undue delay in making
transportation arrangements, in contrast to the NPRM text, which
provided that ``ORR assists'' in making arrangements. ORR believes this
revision ensures consistency with other requirements described in the
rule. Additionally, ORR is updating Sec. 410.1401(d) to clarify that
ORR employees must abide by their Federal duties if there is a conflict
between ORR's regulations and State law, subject to applicable Federal
religious freedom and conscience protections. Also, at Sec.
410.1401(d), ORR is amending the text to state that ORR ``shall
review'' the circumstances to determine how to ensure that it is able
to meet its statutory responsibilities, in contrast to the NPRM text,
which provided that ``ORR reviews'' the circumstances. Finally, ORR is
revising Sec. 410.1401(e) to state that care provider facilities or
contractors shall conduct all necessary background checks for
individuals transporting unaccompanied children, in compliance with
Sec. 410.1305(a). ORR is finalizing the remaining paragraphs of Sec.
410.1401 as proposed.
Subpart F--Data and Reporting Requirements
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 (88 FR
68952 through 68953).
Section 410.1500 Purpose of This Subpart
The HSA requires the collection of certain data about the children
in ORR's care and custody.\298\ 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 information about the disposition of
any actions in which the child is the subject.
Comment: Many commenters expressed general support for the
requirements proposed under subpart F. One commenter believed that
codifying data requirements will improve accountability and public
transparency.
Response: ORR thanks the commenters for their support.
Comment: Many commenters expressed concern that ORR is not capable
of collecting and properly storing data on unaccompanied children. Many
commenters also expressed concern regarding the reliability of data
collected by ORR because commenters believe that ORR does not have
appropriate data collection tools. Many commenters noted that sometimes
case information may be contained in multiple systems and recommended
that ORR use one official system of record to ensure data integrity.
Response: ORR notes that subpart F generally codifies and
implements existing ORR requirements under the HSA. ORR is already
substantively complying with these data collection and recordkeeping
requirements.
Comment: Many commenters recommended that ORR publicly report
aggregate data collected, noting that public data reporting is an
important step towards transparency given the absence of FSA
monitoring. Many commenters believed that ORR should require public
reporting on the demographics of unaccompanied children, their status
with respect to ORR programs, and the quality of care that ORR
provides. Many commenters also noted that ORR currently publishes a
significant quantity of aggregated information on its website and
recommended that ORR include guarantees that this publication will
[[Page 34542]]
continue and that currently available data will remain accessible. The
commenters also expressed concern that the proposed rule also does not
address the breadth, specificity, frequency of publication, quality, or
purpose of information that ORR must make publicly available in the
future and recommended that subpart F include a new section that would
require public reporting of ORR data in a manner that is reliable,
frequent, and regular, and guarantee the continued public availability
of critical information about unaccompanied children and their care.
Response: ORR thanks the commenters for their recommendations and
will take them into consideration in future policymaking. Regarding
commenters' requests for more information or additional requirements
related to public reporting of ORR data, ORR notes that the scope of
data and reporting requirements proposed under subpart F would codify
and implement existing ORR requirements under the HSA. Although
additional requirements regarding public reporting of ORR data are not
required by statute or the FSA, ORR may provide additional information
or guidance regarding publicly available ORR data in future
policymaking.
Comment: Many commenters noted that ORR's data protections are
found elsewhere in the NPRM and recommended that ORR consolidate all
data collection requirements and protections into a single location for
ease of reference and to eliminate ambiguity.
Response: ORR appreciates the commenters' recommendation but notes
that data collection and recordkeeping requirements are organized in a
way that aligns with the requirements of the parties responsible for
data collection and reporting requirements.
Comment: Many commenters expressed concern that the proposed rule
does not contemplate how ORR should handle information about
unaccompanied children that it learns through routes other than its own
service providers, contractors, and grantees, nor the necessity of
recording, codifying, and protecting such information. These commenters
suggested that the proposed rule include a new section addressing
information that arrives from these other sources (such as information
included in referrals or investigations from other Government agencies,
media reports, legal case information, or other information that is
available to ORR but is not directly provided to ORR by care provider
facilities). The commenters also recommended that ORR should be
required to record that information in a manner allowing it to be
aggregated, analyzed, disaggregated, and reported out, as appropriate.
Response: ORR thanks the commenters for their comments and
acknowledges their concerns. ORR notes that nothing in the Foundational
Rule would preclude ORR from collecting and recording information
obtained through certain data sources not specified in subpart F and
does not believe that additional requirements regarding the treatment
of such data are necessary at this time. However, ORR will continue to
monitor the requirements finalized under subpart F as they are
implemented and may consider providing additional guidance, as
necessary, regarding the treatment of such information obtained through
unspecified data sources through future policymaking.
Comment: Many commenters expressed concern that the proposed rule
would prevent the sharing of relevant data with law enforcement or
other agencies. Many commenters also recommended that ORR share
information with State and local law enforcement entities to provide
additional oversight.
Response: ORR notes that the data collection and reporting
requirements proposed under subpart F provide guidelines for care
provider facilities to report information such that ORR may compile and
maintain statistical information and other data on unaccompanied
children. Accordingly, the requirements proposed under subpart F are
not relevant to ORR's obligations relating to sharing data with law
enforcement entities. ORR also notes that it is establishing the Office
of the Ombuds under subpart K of this final rule, which will provide
additional oversight as 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.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed.
Section 410.1501 Data on Unaccompanied Children
ORR proposed in the NPRM at Sec. 410.1501 to implement the HSA by
requiring care provider facilities to maintain and periodically report
to ORR data described in 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 (88 FR
68953). 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 proposed in the NPRM at 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 noted
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
proposed in the NPRM 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.
Comment: Many commenters expressed support for ORR's commitment to
codifying the minimum data that care providers are required to maintain
and report to ORR.
Response: ORR thanks the commenters for their support.
Comment: Many commenters recommended that ORR include additional
provisions under Sec. 410.1501 to expand data collection and reporting
requirements to include children separated from parents/guardians,
children separated from family members (not parents or legal
guardians), as well as data collection on children with disabilities
and their needs.
Response: ORR thanks the commenters for their recommendations. ORR
believes that such data is included in the reporting requirements in
Sec. 410.1501. However, ORR also notes that Sec. 410.1501 specifies
minimum
[[Page 34543]]
requirements and does not preclude adding additional categories over
time. ORR will continue to monitor the regulatory requirements as they
are implemented and will consider whether additional clarification is
required through future policymaking.
Comment: Many commenters recommended that ORR require care
providers to collect and report data on children who identify as
LGBTQI+ to ORR, noting the importance of tracking how many children in
custody identify as LGBTQI+ to better meet the needs and placement
preferences of LGBTQI+ children. One commenter recommended that such
data reporting requirement should be limited to unaccompanied children
who voluntarily disclose such information.
Response: ORR thanks the commenters for their recommendations. ORR
agrees with commenters' recommendation that improving data collection
on LGBTQI+ children in ORR custody is a tool for strengthening service
delivery, and accordingly will finalize Sec. 410.1501(a) with a
revision to implement reporting of voluntarily disclosed data regarding
self-identified LGBTQI+ status or identity. ORR notes that the terms
``gender'' and ``sex'' are not synonymous and are separately defined in
the existing Federal regulations governing ORR at 45 CFR 411.5.
Therefore, ORR declines to list ``sex'' as a factor in lieu of
``gender'' in this rule. ORR believes that data collection about
``gender'' is sufficient and will maintain that requirement. ORR also
emphasizes that data collection related to a child's LGBTQI+ status or
identity pursuant to an Assessment for Risk under 45 CFR 411.41(a) is
intended only for purposes of reducing the risk of sexual abuse or
sexual harassment among unaccompanied children. Use and maintenance of
this information is also subject to the privacy safeguards in 45 CFR
411.41(d) ``in order to ensure that sensitive information is not
exploited to the [unaccompanied child's] detriment by staff or other
[unaccompanied children].'' Additionally, ORR's information collection
and sharing practices comport with Privacy Act requirements to ensure
that any information sharing is pursuant to ``a purpose which is
compatible with the purpose for which it was collected.'' 5 U.S.C.
552a(a)(7).
Comment: One commenter recommended that ORR utilize additional
resources to determine what data to gather on unaccompanied children,
their families, and sponsors, recommending that ORR collect data
regarding race and nationality, LGBTQI+ status or identity, disability
status, native language, and language preference.
Response: ORR thanks the commenter for their recommendations. ORR
notes that information regarding an unaccompanied child's family and
potential sponsors may be collected as part of the release requirements
provided under Sec. Sec. 410.1201 and 410.1202. ORR notes that, under
Sec. 410.1501(a), care provider facilities would be required to report
biographical data including information related to an unaccompanied
child's nationality and LGBTQI+ status or identity. Under Sec.
410.1501(c) and Sec. 410.1501(f), care provider facilities would be
required to report information that may include a child's native
language and language preference. Finally, under Sec. 410.1501(f) and
Sec. 410.1501(g)(2), care provider facilities would be required to
report information related to a child's disability status.
Comment: Commenters recommended that to ensure meaningful oversight
of psychotropic medications, care provider facilities should be
required to report information relating to the administration of
psychotropic medications, including the child's diagnoses, the
prescribing physician's information, the name and dosage of the
medication prescribed, documentation of informed consent, and any
emergency administration of medication, and commenter states that ORR
should compile this data in a manner that enables ORR to track how
psychotropic medications are administered across facilities and among
individual families.
Response: ORR agrees with commenters, and for that reason, is
incorporating requirements at Sec. 410.1501 that care providers must
report information relating to the administration of psychotropic
medications, including children's diagnoses, the prescribing
physician's information, the name and dosage of the medication
prescribed, documentation of informed consent, and any emergency
administration of medication. Such data must be compiled in a manner
that enables ORR to track how psychotropic medications are administered
across the network and in individual facilities.
Comment: Many commenters stated the proposed rule is unclear
whether the data reporting requirements under Sec. 410.1501 include
sufficient information to enable ORR to provide effective oversight of
the treatment of unaccompanied children with disabilities. Several
commenters recommended, consistent with the Lucas R. settlement,
required data include, at a minimum: whether an unaccompanied child has
been identified as having a disability; the unaccompanied child's
diagnosis; the unaccompanied child's need for reasonable modifications
or other services; and information related to release planning. These
commenters also recommended data regarding unaccompanied children with
disabilities be compiled in a manner that enables ORR to track how many
unaccompanied children with disabilities are in its custody, where they
are placed, what services they are receiving, and their lengths of stay
in order to facilitate ORR's ongoing oversight to ensure unaccompanied
children with disabilities are receiving appropriate care in while ORR
care.
Response: ORR agrees that such data collection could be useful for
the purpose of identifying children with disabilities in order to
ensure they are receiving appropriate care and services, and for that
reason, is incorporating requirements at Sec. 410.1501 that care
providers must report information relating to the treatment of
unaccompanied children with disabilities, including whether an
unaccompanied child has been identified as having a disability; the
unaccompanied child's diagnosis; the unaccompanied child's need for
reasonable modifications or other services; and information related to
release planning. Such data must be compiled in a manner that enables
ORR ongoing oversight to ensure unaccompanied children with
disabilities are receiving appropriate care while in ORR care across
the network and in individual facilities. ORR will also be working with
experts on a year-long comprehensive needs assessment of ORR's
disability services and developing a disability plan. Such efforts may
inform future policymaking concerning data collection and reporting to
enhance the care of children with disabilities in ORR's custody.
Comment: A few commenters recommended that ORR collect information
in addition to the information enumerated in the rule, such as
information on biographical relatives, criminal history, number of
unaccompanied children that access legal representation, the number of
unaccompanied children that receive PRS, the number of unaccompanied
children receiving home visits and well-being calls, and the number of
unaccompanied children that ran away from sponsors after released. A
few commenters recommended that ORR also collect data on child
trafficking to track the extent of the problem and effectiveness of
intervention efforts.
[[Page 34544]]
Response: ORR thanks the commenters for their recommendations and
may take them into consideration in future policymaking. ORR currently
collects some of this information in various capacities as part of its
operations relating to placement, minimum services, and release and
PRS. ORR notes that Sec. 410.1501 specifies minimum requirements and
does not preclude adding additional information collection requirements
over time. However, ORR is not required by the HSA or the FSA to
collect such information, and does not believe additional information
collection requirements recommended by the commenters are necessary at
this time.
Comment: One commenter recommended removing ``whether of Indigenous
origin'' from Sec. 410.1501(a) and adjusting to recognize their
Indigenous Nation, Native Identity, or Tribal affiliation to recognize
distinct nations with unique rights. This commenter noted the need for
more accurate data collection to determine how many Indigenous
unaccompanied children are migrating, as well as the Tribal affiliation
and Indigenous Nation of the unaccompanied child and recommended that
experts should be consulted to ensure proper collection and analysis of
data regarding Indigenous unaccompanied children. The commenter
stressed the importance of Indigenous identity being identified so that
the Indigenous unaccompanied child's rights as members of their Native
Nations can be upheld and ensure that their best interest is considered
during placement.
Response: ORR thanks the commenter for their recommendations but
believes the proposed section of the rule as written adequately
captures the data element that ORR uses on a daily basis. ORR notes
that requiring care provider facilities to report such information goes
beyond the scope of current obligations specifically enumerated at 6
U.S.C. 279(b)(1)(J). ORR agrees that it is important to collect data on
Indigenous unaccompanied children in order to better support their
needs, and that is why such biographical information is included under
Sec. 410.1501(a). Although nothing precludes care provider facilities
from reporting more specific data pertaining to a child's individual
Indigenous Nation, Native Identity, or Tribal Affiliation, ORR believes
that the current language is sufficient for ORR's data collection
purposes. However, ORR will continue to monitor the regulatory
requirements as they are implemented and will consider whether
additional clarification is required through future policymaking.
Comment: Many commenters recommended aligning the list of required
data from care provider facilities with requirements elsewhere in the
final rule noting that Sec. 410.1302(c)(2)(iv) requires providers to
assess ``whether [the child is] an indigenous language speaker'' and
asserting that proposed Sec. 410.1501(a) should align so that
preferred language can be aggregated and captured population-wide.
Response: ORR thanks commenters for their recommendation. ORR notes
that because data regarding the unaccompanied child's preferred
language is required to be collected pursuant to an individualized
needs assessment under Sec. 410.1302(c)(2), such data would be
required to be reported to ORR under Sec. 410.1501(f).
Comment: Many commenters expressed concern that proposed Sec.
410.1501(b) contemplates a basic data input for the duration of a
child's stay in custody which is potentially operationalized by time of
DHS apprehension rather than transfer to ORR care and recommended that
the rule should include both date of DHS apprehension and date of
placement into HHS custody.
Response: ORR acknowledges the commenters' concerns and has updated
the language in Sec. 410.1501(b) to clarify that such data includes
the date on which the unaccompanied child came into ORR custody.
Comment: Although many commenters appreciated that proposed Sec.
410.1501(d) requires documentation for when an ``unaccompanied child is
placed in detention or released,'' commenters noted that internal
transfers to heightened supervision facilities, restrictive placements,
and out-of-network facilities should also require documentation of the
justification. These commenters also recommended that Sec. 410.1501(d)
should add ``removals'' to ensure data fidelity for a future
circumstance in which another agency (such as DHS) effectuates a
removal that it believes does not meet the definitional requirements
for detention.
Response: ORR thanks the commenters for their recommendations. ORR
notes that data relating to a child's placement, release, removal, or
transfer would be required to be reported to ORR under Sec.
410.1501(c). ORR will continue to monitor the regulatory requirements
as they are implemented and will consider whether additional
clarification is required through future policymaking.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed, with the exception of Sec.
410.1501(a), Sec. 410.1501(b), Sec. 410.1501(c), and Sec.
410.1501(g). ORR is finalizing language for Sec. 410.1501(a) that is
updated from the proposed rule in order to include, if voluntarily
disclosed, self-identified LGBTQI+ status or identity as biographical
information that care provider facilities are required to report. ORR
is finalizing language for Sec. 410.1501(b) that is updated from the
proposed rule in order to clarify that such data includes the date on
which the unaccompanied child came into ORR custody. ORR is finalizing
language for Sec. 410.1501(c) that is updated from the proposed rule
to clarify that information relating to the unaccompanied child's
placement, removal, or release from each care provider facility in
which the unaccompanied child has resided includes the date on which
and to whom the child is transferred, removed, or released. ORR is
finalizing language for Sec. 410.1501(g) that is updated from the
proposed rule in order to specify that such data includes information
relating to the administration of psychotropic medication and
information relating to the treatment of unaccompanied children with
disabilities.
Subpart G--Transfers
ORR proposed in the NPRM to codify requirements and policies
regarding the transfer of an unaccompanied child in ORR care (88 FR
68953). 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 proposed in the NPRM at Sec. 410.1600 that the purpose of this
subpart is to provide guidelines for the transfer of an unaccompanied
child (88 FR 68953).
Comment: One commenter recommended that subpart G either reference
back to subpart E (Transportation) for information regarding
requirements for transportation or include those same standards in
subpart G.
Response: ORR thanks the commenter but believes that subpart G
adequately addresses ORR's requirements for the transfer of an
unaccompanied child.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed.
[[Page 34545]]
Section 410.1601 Transfer of an Unaccompanied Child Within the ORR Care
Provider Facility Network
ORR proposed in the NPRM, at Sec. 410.1601(a), to codify general
requirements for transfers of an unaccompanied child within the ORR
care provider network (88 FR 68953 through 68954). ORR proposed in the
NPRM that care provider facilities would be required to continuously
assess an unaccompanied child in their care to ensure that
unaccompanied child placements are appropriate. This 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.\299\ Additionally, care provider facilities would be
required to follow ORR policy guidance, including guidance regarding
placement considerations, when making transfer recommendations. ORR
also proposed requirements for care provider facilities to ensure the
health and safety of an unaccompanied child. The proposed requirements
in the NPRM align with Sec. 410.1307(b), where ORR proposed 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.
ORR proposed in the NPRM, at 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 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 welcomed public comment on these proposals.
ORR proposed in the NPRM at Sec. 410.1601(a)(3), notifications
that would be required when ORR transfers an unaccompanied child to
another care provider facility, including required timeframes for such
notifications. Specifically, ORR proposed in the NPRM 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 noted, in addition, that interested
parties may include EOIR. ORR proposed in the NPRM at Sec.
410.1601(a)(3) 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 finalizing these proposed requirements provide an
effective timeline and notice while still allowing for flexibility if
there are unusual and compelling circumstances. ORR believes that Sec.
410.1601(a)(3) of the NPRM 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.
ORR proposed in the NPRM, at Sec. 410.1601(a)(4) and (5), to
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.
ORR proposed in the NPRM, at Sec. 410.1601(b) to 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.
ORR sought public comment on proposed Sec. 410.1601(c),
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 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 believed 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 proposed in the NPRM, at Sec. 410.1601(d), 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 proposed in the NPRM, 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 proposed in the NPRM, 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 8 hours of transfer.
ORR's intent in the NPRM, was to minimize the transfer of an
unaccompanied child and limit transfers to situations in which a
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transfer is necessary in order to promote stability and encourage
establishment of relationships, particularly among vulnerable children
in ORR care (88 FR 68954). ORR invited public comment on all of the
proposals under subpart G, and solicited 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.
Comment: Several commenters supported the proposal and recommended
modifications to transfer procedures, including revising the proposal
such that the care provider will submit a transfer request to ORR and
ORR will be responsible for identifying the transfer program most
appropriate for the unaccompanied child; provide oral and written
notice of the transfer; provide the reason for the transfer,
particularly for transfers from a family or small community-based
program to a congregate shelter setting; and limit transfers that are
outside of ORR's child welfare mandate and that go beyond the TVPRA.
Response: ORR did not propose codifying procedures that are beyond
the general requirements for transfers of an unaccompanied child within
the care provider network. Where the final regulation contains less
detail, subregulatory guidance provides more specificity and will
support future iteration that allows more timely responsiveness to the
needs of unaccompanied children and care provider facilities.
Comment: A few commenters supported the proposal and recommend that
ORR document modifications and auxiliary aids and services that could
avert a restrictive placement and document reasons for a transfer to a
restrictive facility, in alignment with the proposed policy concerning
Restrictive Placement Case Reviews in Sec. 410.1901, the proposed
policy concerning Criteria for Placing a UC in a Restrictive Placement
in Sec. 410.1105, and the proposed definition of Notice of Placement
in Sec. 410.1001.
Response: ORR agrees that the consideration of reasonable
modifications and auxiliary aids and services to facilitate less
restrictive placement should be explicitly incorporated into the
regulation text and apply both to an initial transfer decision and to a
child's 30-day restrictive placement case review under proposed
Sec. Sec. 410.1105, 410.1601, and 410.1901. Accordingly, ORR is adding
new Sec. 410.1105(d) to state that for an unaccompanied child with one
or more disabilities, consistent with section 504 and Sec.
410.1311(c), ORR's determination under Sec. 410.1105 whether to place
the unaccompanied child in a restrictive placement shall include
consideration 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 services that would
allow the unaccompanied child to be placed in that less restrictive
facility. Section 410.1105(d) further states that ORR's consideration
of reasonable modifications and auxiliary aids and services to
facilitate less restrictive placement shall also apply to transfer
decisions under Sec. 410.1601 and will be incorporated into
restrictive placement case reviews under Sec. 410.1901. Additionally,
pursuant to Sec. 410.1311(d), 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.
Comment: Several commenters supported ORR's proposal to codify the
care provider facilities' requirements for transfer of an unaccompanied
child and recommended that they notify the following individuals prior
to the child's transfer: a parent, family member or guardian, sponsors
who have completed a sponsorship packet, and the attorney, legal
service provider, DOJ Accredited Representative, or accredited
representative of the unaccompanied child.
Response: ORR thanks commenters for their support and notes the
list of appropriate interested parties required to be notified prior to
a transfer of an unaccompanied child is not limited to the examples
noted in Sec. 410.1601(a)(3). The proposed and final regulation's list
of all appropriate interested parties to be notified is not all-
inclusive. ORR may consider lengthening the list of appropriate
interested parties in subsequent rulemaking or subregulatory guidance.
Comment: A few commenters supported the proposal to specify a
timeframe for advance notice of a transfer but recommended advance
notice modifications, including specifying 48 business hours, or
providing a 72-hour rather than 48-hour timeframe.
Response: ORR believes requiring 48 hours of advance notice prior
to an unaccompanied child's physical transfer goes beyond the
requirements of the FSA (paragraph 27 of the FSA requires 24 hours of
advance notice to the child's counsel), and is, therefore, adequate
time for the referring care provider facility to notify all appropriate
interested parties.
Comment: One commenter supported the requirement that the
unaccompanied child is transferred with health records and recommended
providing an attestation that all health records are in the UC Portal
and provide the receiving program access to the records prior to the
unaccompanied child's arrival, to protect against loss during
transportation or duplication of paper copies.
Response: ORR thanks the commenter and may consider more
specificity. Current ORR policy guidance requires all health records
for unaccompanied children to be recorded in the UC Portal. ORR's
policy guidance requires the sending medical coordinator or medical
staff to complete a medical check list for transfers and place an
electronic copy in the UC Portal so that a receiving care provider may
review the medical check list within the unaccompanied child's transfer
request file, and access the UC Portal information about the
unaccompanied child prior to the physical transfer of the unaccompanied
child. ORR will continue to use and update its existing guidance to
provide detailed requirements for care provider facilities regarding
the timely and complete availability of health records of unaccompanied
children upon a transfer.
Comment: One commenter supported the proposal to continuously
assess an unaccompanied child to ensure placements are appropriate and
recommend adding factors, including diagnosed and undiagnosed
disabilities, placement proximity to family, the unaccompanied child's
language barriers at the facility, restrictiveness, family separation,
and detention fatigue.
Response: ORR thanks the commenter and may consider additional
factors in support of assessing an unaccompanied child to ensure the
appropriateness of transfer in future policymaking. ORR directs readers
to the considerations generally applicable to placement in Sec.
410.1103 for the discussion about placement of an unaccompanied child
with disabilities, the placement proximity of an unaccompanied child to
family and the unaccompanied child's mental well-being. ORR directs
readers to Sec. 410.1105 for the discussion about the criteria for
placing an unaccompanied child in a restrictive placement. ORR also
directs readers to the minimum standards and required services that
care provider facilities must meet and provide for the discussion in
Sec. 410.1306 about offering interpretation and translation services
in an unaccompanied child's native or
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preferred language. Additionally, ORR directs readers to the
considerations generally applicable to placement in Sec. 410.1103(b)
for the discussion about placement of an unaccompanied child with
disabilities, Sec. 410.1306 for the discussion about an unaccompanied
child's native or preferred language.
Comment: One commenter supported the proposal at Sec.
410.1601(a)(2) and recommended a revision that the care provider
facility shall ensure the unaccompanied child is medically cleared for
transfer within three business days of ORR approving the transfer.
Response: ORR appreciates the comment and notes that the standard
of care required to transfer an unaccompanied child to appropriate care
provider facility includes the requirement that an unaccompanied child
is medically cleared for transfer within three business days.
Comment: One commenter supported the transfer proposal and
recommended a right for unaccompanied children to appeal the
determination of an appropriate transfer and the procedures for such an
appeal.
Response: ORR notes that pursuant to Sec. 410.1902 as proposed in
the NPRM and finalized, an unaccompanied child transferred to a
restrictive placement (secure, heightened supervision or Residential
Treatment Center) will be able to 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. Further, when an unaccompanied
child is placed in a restrictive setting, 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. While ORR did
not propose codifying corresponding procedures for a child to request
reconsideration of a transfer to a non-restrictive placement, ORR notes
that, as is consistent with current subregulatory policy, it will
consider information from stakeholders, including the child's legal
service provider, attorney of record or child advocate, as applicable,
when making transfer recommendations. Thus, under Sec. 410.1601(a)(3)
as proposed and finalized, 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 DOJ Accredited Representative legal
service provider, or child advocate, as applicable (88 FR 68953).
However, such advance notice is not required in unusual and compelling
circumstances.
Comment: One commenter expressed concern about the scope of the
interested parties in Sec. 410.1601(a)(3)(iii) who may have the
ability to waive advance notice of an unaccompanied child's transfer
and recommended specific and explicit paperwork that the unaccompanied
child can review before agreeing to the waiver of notice of transfer.
Response: As proposed and finalized in Sec. 410.1003(d), ORR
encourages unaccompanied children, as developmentally appropriate and
in their best interests, to be active participants in ORR's decision-
making processes relating to their care and placement. Additionally,
the responsibilities of child advocates, as proposed and finalized in
Sec. 410.1308, include requirements that child advocates visit with
their unaccompanied child client, explain consequences and outcomes of
decisions that may affect the unaccompanied child, and advocate for the
unaccompanied child's best interest with respect to placement. Thus,
the interested parties, as proposed and finalized in Sec.
410.1601(a)(3), would have access to materials necessary to effectively
advocate for the best interests of an unaccompanied child, and their
responsibilities could include a review of specific paperwork,
explanation of consequences and outcomes of a transfer or a waiver of
advance notice of a transfer.
Comment: One commenter requested the clarification that the Sec.
410.1601(b) protections regarding automatic 30-day review of
restrictive placement also are applicable to Out-of-Network RTC
facilities.
Response: As discussed at Sec. 410.1105(c), the clinical criteria
for placement in or transfer to a residential treatment center would
also apply to transfers to or placements in out-of-network residential
treatment centers. As such, the protections regarding automatic 30-day
review of restrictive placement also are applicable to out-of-network
residential treatment facilities.
Comment: One commenter recommended that ORR cross reference the
Restrictive Care Provider Facility Placements and Transfer provision in
Sec. 410.1601(b) with the proposed criteria for placing an
unaccompanied child in a restrictive placement in Sec. 410.1105, the
proposed restrictive placement case reviews in Sec. 410.1901, and the
proposed practice of reviewing restrictive placements at least every 30
days in Sec. 410.1103(d).
Response: While ORR does not explicitly cross reference Sec.
410.1601(b) with Sec. Sec. 410.1105, 410.1901, and 410.1103(d), as
proposed in the NPRM and finalized in this rule, ORR acknowledges that
those provisions which concern restrictive placements are interrelated
and should be read in tandem with each other regardless.
Comment: One commenter recommended the Group Transfer proposal
include language to protect the individual rights of an unaccompanied
child within a group of unaccompanied children being transferred so
that timelines or due process rights of each unaccompanied child is
recognized.
Response: Group transfer procedures support circumstances where a
care provider facility transfers more than one child at a time. As
previously discussed in Sec. 410.1302, care provider facilities, as
discussed previously in Sec. 410.1302, will continue to follow ORR
policy to ensure that the best interests of unaccompanied children are
met. As previously discussed in Sec. 410.1308, child advocates for
unaccompanied children are able to make independent recommendations
regarding the best interest of an unaccompanied child. This includes
advocating for the unaccompanied child's best interest with respect to
their placement, and providing best interest determinations, where
appropriate and within a reasonable time, to ORR in a matter in which
the child is a party or has an interest.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed.
Subpart H--Age Determinations
In subpart H of this rule, ORR provides guidelines for determining
the age of an individual in ORR care (88 FR 68954 through 68955). The
TVPRA instructs HHS to devise, in consultation with DHS, age
determination procedures for children in their respective custody.\300\
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
[[Page 34548]]
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.
Section 410.1700 Purpose of This Subpart
In the NPRM, ORR acknowledged the challenges in determining the age
of individuals who are in Federal care and custody (88 FR 68954). 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. As proposed in Sec. 410.1700,
the purpose of this subpart is to establish provisions for determining
the age of an individual in ORR custody. ORR noted that under this
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 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 noted
that Sec. 410.1309 covers required notification to legal counsel
regarding age determinations.
Comment: One commenter commended the protections incorporated into
the proposed rule's section regarding age determinations. The commenter
also suggested that to ensure that unaccompanied children are protected
to the greatest extent possible through this process, ORR should add
``if there is a reasonable suspicion that an individual is not a
minor'' to align with ABA UC Standards.
Response: ORR appreciates the input from the commenter. ORR
believes that the standard requiring a reasonable belief that the
individual is 18 years of age or older to determine that the individual
is not a minor is already explicitly stated at Sec. 410.1704. ORR
notes that under this section, and as a matter of current practice, ORR
would only conduct age determination procedures if there is a
reasonable suspicion that an individual is not a minor.
Comment: One commenter agreed with the language in the NPRM
considering the totality of the evidence in making age determinations
rather than relying on any single piece of evidence to the exclusion of
all others, stating that this aligns with international standards. The
commenter further stated that international best practices indicate
that age assessment procedures should be conducted only in cases where
a child's age is in doubt. The commenter stated that while ORR's
proposal in the NPRM incorporates many of the elements of international
best practices, the commenter recommended that ORR strengthen the
standards to specify that age determination should not be carried out
immediately, but rather in a safe and culturally sensitive manner after
the child has had time to develop a feeling of safety after crossing
the border. The commenter urged ORR to emphasize considerations of the
psychological maturity of the individual.
Response: ORR thanks the commenter for their additional
considerations. ORR notes that age determinations are not carried out
in all cases, but only when there is a reasonable suspicion that an
individual is not a minor and in accordance with the procedures
described in this section to make such a determination based on the
totality of evidence presented. This is a process that would
necessarily require time to initiate and would therefore not be carried
out immediately. However, to meet the definition of an unaccompanied
child and remain in ORR custody, an individual must be under 18 years
of age. ORR believes that it is imperative to the safety and security
of children in its custody to ensure that individuals who are under 18
years of age are not placed in facilities where they could be
inadvertently sharing housing with adults who have reached the age of
18 years or older. These procedures will ensure that children in ORR's
custody receive care in a safe and culturally sensitive manner per the
standards described in Sec. Sec. 410.1302 and 410.1801. Furthermore,
the types of evidence accepted in this section are intended to take
into account information that is culturally relevant to the individual,
such as baptismal certificates and sworn affidavits from parents,
guardians, and relatives. ORR appreciates that a child needs time to
develop a feeling of safety; ORR's obligation is to ensure proper
placement of a child without undue delay in a setting where they can
receive adaptation and acculturation services in accordance with the
standards described in this subpart. ORR does not believe that
considering the psychological maturity of the individual should be a
factor in the process for making an age determination, primarily
because such considerations are highly subjective.
Comment: A few commenters disagreed with the reasonable suspicion
standard as proposed in this section. One commenter recommended that
ORR replace the ``reasonable suspicion'' standard required to initiate
an age determination with the higher ``probable cause'' and that ORR
require staff to provide probable cause that the child is an adult
given the potential impact of an adverse finding on children. One
commenter requested that ORR further clarify what constitutes
reasonable evidence or suspicion of a falsely provided age. One
commenter stated that Sec. 410.1704 as proposed concludes that ORR
will treat a person as an adult if a reasonable person concludes that
the individual is an adult but argued that this does not sufficiently
protect the due process rights of unaccompanied children.
Response: ORR thanks the commenters for their input. ORR notes that
initiating an age determination based on a reasonable suspicion that an
individual in custody is not a minor is a matter of current practice
consistent with the ``reasonable person'' standard for age
determinations under the FSA that ORR is now codifying under this
section. In this context, ORR is concerned that limiting age
determinations only to instances where there is probable cause would
limit ORR's ability to consider factors such as lack of available
documentation; contradictory or fraudulent identity documentation and/
or statements; and ambiguous physical appearance of the individual. As
noted earlier in this section, ORR will consider available
documentation or statements from the presumed child in ORR's custody or
the child's attorney. ORR notes that an individual would be treated as
an adult under this section only when the totality of the evidence
indicates that an individual in ORR custody is age 18 years or older.
Comment: One commenter requested that ORR provide additional
information to clarify its age determination procedures, including
questions surrounding what happens for a child while the age
determination process is ongoing; what occurs in the event that the
totality of evidence is inconclusive; what happens for children who
claim to be adults or present paperwork as adults but are suspected to
be minors; detail surrounding the use of social media, internet, and
pictures in the process of age determination; and details surrounding
protective plans in place in the event potential adults are
[[Page 34549]]
placed with children for a period of time.
Response: Upon referral to ORR's legal custody, ORR would only
conduct an age determination in accordance with the procedures
described in this section if ORR has a reasonable suspicion that the
individual is not a minor. This section does not require ORR to conduct
an age determination when an individual claims to be an adult, but in
the event such a claim gives rise to a reasonable suspicion that the
individual is not a minor, ORR may decide to conduct an age
determination. In instances where the medical age assessment does not
reach the 75 percent probability threshold at Sec. 410.1703(b)(8) and
is therefore ambiguous, debatable, or borderline, forensic examination
results must be resolved in favor of finding the individual is a minor.
At this time, ORR does not agree to consider social media, internet,
and pictures as evidence of an individual's age because ORR does not
believe that this type of documentation is as reliable as the types of
evidence accepted under this section. In the event that potential
adults are placed with children for a period of time, as provided in
current ORR policy, 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 reevaluation 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. ORR further
emphasizes that pursuant to minimum standards under Sec. Sec. 410.1302
and 1801, programs must provide 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.
Comment: One commenter recommended that ORR create standards of
protection from discrimination such as standards for documenting
concerns of age and having those concerns verified by multidisciplinary
teams, suggesting that if a direct care staff member says they think a
child is actually an adult, a second opinion from the case management
supervisor or medical staff should be pursued before addressing
anything with the client.
Response: ORR thanks the commenter for their recommendation. ORR
notes that only when there is a reasonable suspicion that the presumed
child in ORR custody is not a minor would ORR proceed with conducting
an age determination, and not solely based upon an opinion. After
initiating an age determination, ORR would follow the procedures in
this section to collect and verify the available evidence, during which
time there will be additional opportunities to present documentation
and testimony, including medical assessments. ORR notes that during
this process, the presumed child who remains in ORR's custody will not
be treated as an adult until the age determination is resolved.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed.
Section 410.1701 Applicability
ORR proposed in the NPRM at Sec. 410.1701 that this subpart would
apply to individuals in the custody of ORR (88 FR 68954). This is
consistent with 8 U.S.C. 1232(b)(4), which specifies that DHS' and
HHS's age determination procedures ``shall'' be used by each department
``for children in their respective custody.'' Section 410.1701 also
reiterates that under the statutory definition of an unaccompanied
child,\301\ an individual must be under 18 years of age.
Comment: One commenter stated concern that the adoption of a
trauma-informed approach in verifying critical information such as age
could inadvertently result in adults falsely claiming to be minors and
accessing services meant for vulnerable children.
Response: ORR disagrees that providing trauma-informed services to
children in its legal custody is an impediment to conducting an age
determination when there is a reasonable suspicion when the individual
in custody is not a minor. ORR believes that the requirements in this
subpart properly balance the concerns of children who are truly
unaccompanied children with the importance of ensuring individuals are
appropriately identified as minors.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed.
Section 410.1702 Conducting Age Determinations
ORR proposed in the NPRM at Sec. 410.1702 to codify general
requirements for conducting age determinations (88 FR 68954). 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, 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 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.
Comment: A number of commenters expressed concern that proposed
Sec. 410.1702 is inconsistent with ORR policy updates to remove X-rays
and other changes in April 2022.
Response: ORR thanks commenters for their input. ORR notes that it
revised its policy to remove skeletal (bone) maturity assessments since
DHS does not accept this form of medical age assessment for age
determinations.\302\ However, ORR also notes that the policy under the
TVPRA requires that age determination procedures, at a minimum,
consider multiple forms of evidence, including ``non-exclusive'' use of
radiographs. Therefore, ORR is finalizing its proposal that X-rays for
medical age assessments may be taken into account in totality of the
evidence.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed.
Section 410.1703 Information Used as Evidence To Conduct Age
Determinations
ORR proposed in the NPRM, at Sec. 410.1703, information that ORR
would be able to use as evidence to conduct age determination (88 FR
68954 through 68955). Under 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 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 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
[[Page 34550]]
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 use of medical age assessments, ORR proposed in the
NPRM at Sec. 410.1703(b)(8), to 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. 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 determine 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 Sec. 410.1703 enable ORR to utilize
multiple forms of evidence.
Comment: A number of commenters expressed the view that ORR is
unable to verify the age of a purported unaccompanied child. A few
commenters disagreed with the documentation that ORR proposes would
allow it to make an age determination, stating concerns that ORR would
accept unverified documents and copies which remove all security
features. One commenter stated a concern that ORR's approach would
trust a facsimile or a baptismal certificate sent via a messaging
application, but diminish the use of medical age assessments.
Response: ORR recognizes the challenges in obtaining evidence to
verify the age of individuals in ORR's legal custody due to the
circumstances of entering the country unaccompanied and with
undocumented status. It is for this reason that ORR will not make an
age determination on the sole basis of one document or document type,
but rather based on the totality of the evidence. ORR notes that a
legible facsimile of a birth certificate is acceptable when the
original is not available. ORR believes that types of evidence accepted
under this section are aligned with standard documentation that are
widely accepted to verify age across multiple Federal agencies. ORR
disagrees that the requirements under this subpart diminish the use of
medical age assessments; rather, forensic results are recognized and
taken into consideration with other evidence.
Comment: A few commenters provided recommendations for preventing
wrongful age determinations. A few commenters recommended that
consulate-verified birth certificates be standard practice where
possible for age determination to prevent errors. One commenter
suggested that the Government invest in advanced document verification
technology to ensure the authenticity of birth certificates and other
identification documents, also stating that collaboration with foreign
consulates and embassies, as mentioned in Sec. 410.1703, should be
expedited to verify the validity of documents presented.
Response: ORR thanks commenters for their recommendations. ORR
notes that it may consult with the consulate or embassy of the
individual's country of birth to verify the validity of the birth
certificate presented. However, due to the variation in standards in
other nations outside of the U.S. for document protections, ORR does
not believe that it would be able to apply advanced document
verification technology consistently and believes the current types of
documents accepted as evidence of an individual's age are sufficient to
proceed with an age determination.
Comment: One commenter recommended that ORR minimize the use of
medical age assessments, and instead prioritize vulnerability-based
assessments and incorporate the benefit of the doubt and the best
interest principle in these assessments. The commenter recommended that
ORR ensure the children have access to legal counsel and a child
advocate during age assessments, so their rights and best interests are
represented during the process, and ensure all relevant staff are
trained on and have access to ORR policy on age assessments.
Response: ORR thanks the commenter for their input. While ORR
believes that the use of medical age assessments is still relevant to
making an age determination, ORR emphasizes that they are one kind of
evidence considered in making a determination based on the totality of
the evidence. Rather, medical age assessments are taken into
consideration with the totality of evidence accumulated if there is a
reasonable suspicion that an individual is not a minor. Additionally,
as stated at Sec. 410.1309(a)(2)(i)(B), ORR must provide an
unaccompanied child access to legal representation before and during an
age assessment to ensure their rights and best interests are
represented. ORR agrees that all relevant staff should be trained on
and have access to ORR policy on age assessments in accordance with
provisions at Sec. 410.1305, requiring that 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.
Comment: A few commenters recommended eliminating or reducing the
use of medical age determinations altogether, stating the process is
difficult and inaccurate, and expressing concerns about the
consequences of an erroneous age determination, such as sending a child
to an adult detention facility, causing them to lose access to the
range of services and protections to which children are entitled.
Specifically, a few commenters stated that the scientific community
agrees that bone and dental radiographs are unreliable because children
grow at different rates, with one commenter stating that radiographs
can only provide an age range of the person in question and ORR should,
therefore, not include them in the age determination process at all,
given their limitations. Additionally, a few commenters questioned the
reliability of dental examinations to determine age. One commenter
stated that age assessments of adolescents based on wisdom teeth growth
have an accuracy of only 2 to 4 years, also stating the timing of
eruption of the third molar depends on ethnicity, gender, socio-
economic status, and even birth weight. The commenter stated that for
these reasons, all forensic examination results should be deemed
debatable and
[[Page 34551]]
resolved in favor of finding that the individual is a child.
Response: ORR thanks the commenters for their input. Regarding the
proposed use of medical age assessments, at proposed Sec.
410.1703(b)(8), ORR is codifying 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 (88 FR 68955). 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. Consistent
with the TVPRA, ORR would not 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 determine 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, including evidence such as bone and dental radiographs.
ORR disagrees that all forensic examination results are deemed
debatable because they are evidence that merit consideration, but as
noted, they are one type of evidence considered in looking at the
totality of the evidence. ORR believes that requirements at proposed
Sec. 410.1703 would enable ORR to utilize multiple forms of evidence.
Comment: A few commenters recommended that ORR use DNA testing in
age determinations for unaccompanied children. One commenter cited an
example from an Inspector General report \303\ stating that ICE, HSI,
and CBP officials stated that testing with Rapid DNA helped deter and
investigate false claims about parent-child relationships and therefore
recommended that ORR include a provision to clearly allow for rapid DNA
testing, not only for age determinations, but also for verifying
familial relationships to deter and detect fraud and abuse and better
protect children.
Response: ORR thanks commenters for their recommendations and for
their concern. The referenced report is applicable to law enforcement
activities undertaken by immigration agencies and ORR does not believe
universal use of DNA is required under ORR's obligations under the HSA
to coordinate care and placement of unaccompanied children. For a
discussion of considerations relating to use of DNA in the sponsor
approval process, please see ORR's response to comments on Sec.
410.1201.
Comment: A few commenters agreed with the regulations as proposed
in this section, commending the protections incorporated in the NPRM
regarding age determinations and stating that this framework for age
determination can help protect children. One commenter agreed with the
proposed regulation and requested that ORR clarify at Sec.
410.1703(b)(8) that the medical age assessment report come from the
examining doctor as stated in the beginning of this subsection.
Response: ORR thanks commenters for their support. ORR believes
that the regulation text is sufficiently clear as proposed. However,
ORR will continue to monitor the requirements as they are implemented
and may provide additional clarification through future policymaking if
needed.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed.
Section 410.1704 Treatment of an Individual Whom ORR Has Determined To
Be an Adult
ORR proposed in the NPRM, at Sec. 410.1704, to codify the
substantive requirement from paragraph 13 of the FSA regarding
treatment of an individual who appears to be an adult (88 FR 68955).
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,\304\ 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.
Comment: One commenter stated that ORR must report all adults they
uncover who fraudulently pose as minors in ORR facilities to ICE and
State and local law enforcement.
Response: In cases where ORR has conducted an age determination and
concludes that the individual is not a minor, ORR follows all required
procedures including referral for a transfer evaluation with DHS/ICE.
If the individual is determined to be an adult based on the age
determination the individual is transferred to the custody of DHS/ICE.
Comment: One commenter recommended, ``for due process reasons,''
that the final rule provide for appeals of age determinations to an
independent reviewer outside of ORR.
Response: ORR believes its age determination practices as codified
in this section of the final rule are consistent with principles of due
process. ORR has a significant interest in having age determination
procedures not only to fulfill its statutory mandate,\305\ but also
because it is authorized only to care for unaccompanied children as
defined in the HSA. With respect to the adequacy of ORR's age
determination process, ORR relies not only on any information in its
possession, but also gives the individual, in addition to notice, the
opportunity to submit evidence in support of their claim to be a minor.
Based on these considerations, ORR believes its current processes align
with the principles of due process.
Final Rule Action: After consideration of public comments, ORR is
updating the heading for Sec. 410.1704 to clarify that it applies to
an individual whom ORR ``has determined to be'' an adult rather than to
an individual who ``appears to be'' an adult. ORR is otherwise
finalizing Sec. 410.1704 as proposed in the NPRM.
Subpart I--Emergency and Influx Operations
In subpart I of the NPRM, ORR proposed to codify requirements
applicable to emergency or influx facilities that ORR opens or operates
during a time of and in response to emergency or influx (88 FR 68955
through 68958). This subpart applies the requirement at paragraph 12C
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, and consistent with the discussion at Sec.
410.1302 of this final rule, 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
[[Page 34552]]
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 standard programs that is occupied or held
for placement of unaccompanied children meets or exceeds 85 percent for
a period of seven consecutive days. In this final 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 and sets a
substantially higher threshold for what constitutes an influx that used
in the FSA which defined ``influx'' as a situation in which 130 or more
unaccompanied children were awaiting placement. In the NPRM, ORR stated
that it 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 defines 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 other
Federal agencies 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 cease when net bed capacity
in standard programs drops below 85 percent for a period of at least
seven consecutive days.\306\
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. Because
emergency or influx facilities are intended to be a temporary response
to an influx or emergency, when speed may be critical, these facilities
may be unlicensed 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 standard programs whenever
possible, these emergency or influx facilities may be used to house
unaccompanied children temporarily to ensure children remain safe
during an emergency and do not remain in CBP border stations, which are
neither designed nor equipped to care for children, for prolonged
periods of time during an influx. 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. ORR
proposed at Sec. 410.1800 to codify guidelines for contingency
planning and procedures to use during an emergency or influx (88 FR
68955 through 68956).
ORR proposed in the NPRM, at Sec. 410.1800(a), to 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.
ORR proposed in the NPRM, at Sec. 410.1800(b), consistent with
paragraph 12A of the FSA, 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.
ORR proposed in the NPRM, at Sec. 410.1800(c), 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.
Comment: One commenter supported the updates to ORR's emergency
preparedness and contingency planning, agreeing with the focus on
placing children in standard programs first and ongoing efforts to
further expand the availability of standard programs.
Response: ORR thanks the commenter for their support.
Comment: One commenter welcomed updates to the definition of an
influx during which ORR can use unlicensed or emergency shelters that
do not have to meet the same standards as its network of licensed
facilities. The commenter also supported ORR's stated commitment to
regularly reevaluating and expanding regular shelter capacity as needed
to minimize the need to utilize influx facilities. The commenter stated
that together these proposed sections work toward a reduction in use of
unlicensed and large congregate care facilities and promote the best
interests of the children in ORR's care.
Response: ORR appreciates the commenter's agreement with the
updates in this section and agrees that such provisions will work
towards ORR's stated commitment to minimize the need to utilize
emergency or influx facilities.
Comment: Several commenters expressed concern that this section
created ambiguity by not distinguishing between Emergency Intake Site
(EIS) and Influx Care Facility (ICF). One commenter stated that the
text seems to treat them interchangeably, and references regulations
and policies applicable to the standard program, contributing to an
additional lack of clarity. One commenter questioned the purpose of
listing two program types within a single set of rules and requested
that ORR clarify and define what constitutes an EIS and an ICF. A few
commenters recommended that ORR remove EIS from this subpart and
establish it as a distinct subpart, stating that EIS should be reserved
exclusively for emergency declarations rather than
[[Page 34553]]
as an emergency response to sudden influx. The commenter stated that
existing ICFs should be used to manage influx situations at the border.
Response: ORR intends for ``Emergency or Influx Facilities''
(``EIFs'') as a single term to encompass both care provider facilities
that ORR opens in response to either an emergency (e.g., a public
health emergency), and facilities that ORR opens in response to an
influx, as defined in this final rule. ORR notes that using a single
term is consistent with the FSA which refers to emergencies and influx
together.\307\ EIFs will be subject to the minimum standards under this
section for the safety and well-being of children as codified at Sec.
410.1801. ORR notes that these standards are consistent with the
requirements of Exhibit 1 of the FSA, even though the FSA does not
require emergency or influx facilities to apply those standards.
Further, the standards for EIFs are similar to the standards described
at Sec. 410.1302(a), though with some differences to allow for greater
operational flexibility, which ORR believes are appropriate in order to
relatively quickly provide child-appropriate care for unaccompanied
children during times of emergency or influx. ORR further notes that
all the regulations not related to licensure or minimum standards in
this part would apply to all care provider facilities, including both
standard and non-standard programs as defined below unless otherwise
specified. ORR is not incorporating in this regulation the terms
``ICF'' or ``EIS,'' which are terms it has used in the past. Whatever
terms ORR uses to describe facilities opened in the event of an
emergency or influx, such facilities will be subject to the standards
described in this section.
Comment: A few commenters suggested investment in or expanding
licensed shelter beds. One commenter suggested that, instead of relying
on influx shelter beds, ORR should favor contingency planning for
onboarding of more licensed shelter beds and staff and focus on the
expansion of small-scale shelter models and community-based models.
Another commenter suggested that although under the FSA, the Government
is not obligated to fund additional beds on an ongoing basis, such
funding is necessary and may well be cost efficient. The commenter
suggested that ORR conduct research and analyze whether funding
additional beds on an ongoing basis would lead to cost savings when
compared to the costs ORR incurs operationalizing massive influx
facilities in a crisis environment. Another commenter expressed a
concern that EIFs would be used to replace licensed facilities,
including appropriate family and community-based placements.
Response: ORR thanks the commenters for their recommendations. ORR
currently operates a network of 289 care provider facilities in 29
States,\308\ and continually assesses its bed capacity and potential
opportunities for additional standard bed capacity as appropriate in
relation to trends in the rates of referrals of unaccompanied children
to ORR. ORR also notes that EIFs are not to be used as substitutes for
standard programs where such programs are available. EIFs are
specifically for situations of emergency or influx. ORR has worked to
build up its standard bed capacity, but because the frequency and size
of influxes of unaccompanied children, and the timing of emergencies or
conditions of influx are not always predictable, as a matter of prudent
planning ORR requires the ability to quickly add bed capacity when
circumstances require it to ensure child-appropriate placements. ORR
continually assesses its bed capacity and considers the comparative
costs between funding additional beds on an ongoing basis and placement
in EIFs, and has issued Notices of Funding Opportunity (NOFOs) to
qualified applicants to increase standard program capacity.
Comment: Several commenters expressed concern that Sec.
410.1800(b) would not be compliant with the FSA's requirement to make
licensed placements of unaccompanied children ``as expeditiously as
possible.'' One commenter stated concerns that Sec. 410.1800(b)
introduces qualifying language that would permit a delay in licensed
placement under circumstances inconsistent with the FSA. The commenter
further argued that the FSA's reference to licensed placement ``as
expeditiously as possible'' already provides ORR with leeway to delay
licensed placement when it is operationally infeasible to place
children within the FSA's time limits and stated that adding ``make all
reasonable efforts'' weakens the ``as expeditiously as possible''
requirement for placement in a licensed program. The commenter
suggested that ORR eliminate this additional qualifying language in
order to comply with the requirements of the FSA. Several commenters
stated the NPRM did not define ``expeditiously'' nor did it clearly
specify a timeframe for placement in a licensed facility, and stated
that this was in contravention of court decisions that have addressed
this question. Several commenters stated that the proposed rule implies
at Sec. 410.1802(a)(1) that ``expeditiously'' is within a 30-day
period but the U.S. Court of Appeals for the Ninth Circuit which is
monitoring compliance of FSA has opined that a 20-day extension may be
``expeditious.'' The commenter argued that ORR's 30-day window for
release from an ``emergency or influx facility'' may be considered
noncompliance, especially if the facilities are unlicensed and do not
meet minimum safety requirements of the FSA. One commenter stated that
the court monitoring compliance of the FSA has suggested that it may be
reasonable for ORR to exceed normal requirements up to 20 days in the
event of an influx and to adopt this timeframe in the proposed rule.
Response: ORR thanks the commenters for their input, and notes that
in this final rule it is updating Sec. 410.1800(b), to strike ``make
all reasonable efforts,'' and instead state that ORR shall place each
unaccompanied child in a standard program ``as expeditiously as
possible.'' ORR notes that the FSA itself does not establish a specific
timeline for placement in a licensed program. Instead, the FSA requires
ORR to place children ``as expeditiously as possible'' in a licensed
placement. ORR would also note that EIFs are required to follow the
minimum standards set forth at Sec. 410.1801. Even though not required
by the FSA, those standards essentially mirror the standards set forth
at Exhibit 1 of the FSA. Finally, ORR notes that the commenter's
reference to a 20-day period was in the court's discussion of standards
applicable to children in DHS custody in the context of family
detention,\309\ which presents a different set of considerations than
those applicable to expeditious transfer in conditions of emergency or
influx for the UC Program.
Comment: Several commenters asserted that ORR inappropriately
defined influx as an ``exceptional circumstance'' preventing the
placement of a child from other Federal agencies within 72 hours
permitted under Flores. One commenter argued that this proposal would
allow ORR to absolve itself of the responsibility to comply with the
terms of the FSA whenever it is presented with challenges to placing
children in standard programs within 72 hours and was concerned that
this would directly risk the safety of unaccompanied children for which
the agreement was issued to protect.
Response: ORR notes that, although an exceptional circumstance
under Sec. 410.1101(d) would include an influx, this final rule also
substantially raises
[[Page 34554]]
the threshold for influx above what is specified in the FSA. This final
rule, at Sec. 401.1001, defines influx as a situation in which the
percentage of ORR's existing net bed 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 contrast
with the FSA definition of more than 130 minors eligible for placement
in a licensed program. As a practical matter, it has been the case for
the last several years (with the exception of the period in 2020 in
which unaccompanied children were being expelled at the border) that
the daily average of unaccompanied child referrals from DHS
substantially exceeds 130.
Comment: One commenter argued that under this proposed definition,
ORR would have the authority to operate a temporary unlicensed facility
for any number of situations it considers an emergency, including an
influx, stating concerns that emergency and influx shelters are large,
often in remote areas, and child welfare advocates have long expressed
grave concerns with the treatment of children and the general
conditions in such facilities. The commenter recommended that emergency
or influx facilities only be allowed to shelter children if in
alignment with ORR's own stated minimum standards and with standards
under international law.
Response: ORR reiterates that emergency or influx facilities must
comply with the minimum standards set forth at Sec. 410.1801, which is
based on parts of Exhibit 1 of the FSA, as well as other requirements
and standards set by ORR under its statutory authorities. ORR notes
that EIFs are only authorized under the situations defined as an
emergency or influx under Sec. 401.1001. ORR additionally notes that
it operates EIFs as emergency care provider facilities in accordance
with the standards finalized at 45 CFR 411 in the Interim Final Rule,
Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual
Harassment Involving Unaccompanied Children.
Comment: One commenter stated that HHS has omitted data that shows
how frequently ORR operates under conditions that would permit ORR to
relax standards under this proposal. The commenter stated that there
has not been a single month since January 2021 in which ORR or its
contractors have not been operating at ``influx'' capacity, as defined
by the proposed rule. The commenter therefore requested that HHS make
data available to the public regarding how frequently ``emergency'' or
``influx'' conditions are present.
Response: As previously noted, the final rule is substantially
raising the threshold for determining that there is an influx. ORR
believes that rather than ``relaxing'' standards, this policy would
make placements in an EIF less frequent. For data regarding placements
in an EIF, ORR refers commenters to publicly available information
posted on its website.\310\
Comment: One commenter expressed concern that Sec. 410.1800(c)(2),
as proposed in the NPRM, merely stated that during an influx ORR
continually develops standard programs that are available to accept
emergency or influx placements and does not comport with the FSA
requirement to undertake extensive advance contingency planning. The
commenter argued that this provision is insufficient to minimize the
use of unlicensed congregate influx facilities.
Response: ORR thanks the commenter for their input. ORR is
committed to minimizing the use of unlicensed emergency or influx
facilities (EIFs) while ensuring that EIFs adhere to minimum standards.
ORR notes that it annually reviews its contingency plans based on the
actual and anticipated number of unaccompanied children referrals to
monitor available resources in light of expected needs. This is
consistent with the requirement set forth at Exhibit 3 of the FSA at
paragraph 5.\311\ ORR believes the requirements related to contingency
plans under Sec. 410.1800(c) of this final rule sufficiently comports
with the FSA requirement to undertake extensive advance contingency
planning.
Comment: One commenter asserted that it is not enough to regularly
``reevaluate'' the number of placements needed as stated in Sec.
410.1800(a) and recommended instead that ORR establish a sizeable list
of placements in waiting. The commenter stated that numbers required
under the FSA suggest the Government must have a list of beds equal to
62 percent of the capacity threshold constituting an influx and that
the FSA also requires the Government to maintain a list and ``. . .
update this listing of additional beds on a quarterly basis . . .'' and
should therefore revise Sec. 410.1800(c)(2) to require ORR to engage
in extensive contingency planning which at a minimum includes a list of
licensed placements in waiting equal to at least 62 percent of the
capacity threshold at which an influx facility can be utilized. The
commenter further stated such a list should include pre-vetted
temporary family foster care and small group home options. One
commenter suggested a proactive approach by ORR to address potential
influx situations, ensuring readiness for accommodating children.
Response: ORR thanks the commenter for their recommendation. ORR
notes that it annually reviews its contingency plans based on the
actual and anticipated number of unaccompanied children referrals to
monitor available resources in light of expected needs. Further, the
current scale of the UC Program, which in recent years has experienced
around 120,000 referrals of unaccompanied children per year, is
significantly greater than the situation in 1997 when the FSA was
finalized. Given the dramatically changed circumstances since that
time, ORR has repeatedly needed to engage in far more extensive
contingency planning than was envisioned in 1997. ORR notes that the
commenter's calculation of 62 percent of capacity threshold appears to
be a reference to FSA paragraph 12C, which required the former INS to
have 80 beds available for placement; 80 beds in no longer a meaningful
preparedness number in light of current trends in referrals of
unaccompanied children to ORR.
Comment: One commenter requested clarification on the population of
children meant by ``placement of such facilities of certain
unaccompanied children'' at Sec. 410.1800(c)(1) of the NPRM. The
commenter recommended that ORR consider serving children together at
specialized facilities catering to those who speak certain languages,
who are sibling sets, and/or who are turning 18 in fewer than 30 days.
Response: ORR thanks the commenter for their recommendation. By
``certain unaccompanied children,'' ORR means those children ORR
determines could be safely and appropriately placed at an EIF,
including as consistent with the standards set forth at Sec.
410.1802(a). ORR further clarifies that providers are required to
render services in the child's native or preferred language, thus
minimizing the need to consider grouping children in specialized
facilities based on certain language. With respect to siblings, ORR
stated at Sec. 410.1802(b)(1) that a child cannot be placed in an EIF
if the child is part of a sibling group with a sibling(s) age 12 years
or younger. As a matter of policy, 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 must be considered as a factor in
determining the child's best interests.
Comment: A few commenters suggested revisions or clarifications to
the provisions at Sec. 410.1800(c)(3) for the list of unaccompanied
children affected
[[Page 34555]]
by the emergency or influx. One commenter stated that this subpart does
not explain how this list would be used or whether only children housed
at an emergency or influx facility would be included. The commenter
further stated that it also does not appear to include all relevant
information needed to ensure that it only includes unaccompanied
children who meet the criteria at Sec. 410.1802(a). One commenter
stated that this list is a creation of ORR and argued that since the
extant privacy protections and policies specify the requirements of
contractors and grantees, the proposed rule failed to specify which
data protections apply to this information. The commenter suggested
that ORR specify how long the information in proposed Sec.
410.1800(c)(3) is retained, and whether this information is part of the
case file, included in the case file but separate, or altogether
separate from the case file.
Response: ORR first notes that this requirement is consistent with
Exhibit 3, paragraph 2 of the FSA. ORR also clarifies that the
requirements pertaining to maintenance and confidentiality of records
apply to the list described at Sec. 410.1800(c)(3) and the use of this
list is limited only to ensuring that ORR is aware of the volume of
children are placed in an EIF at any given time and is able to timely
transfer and place children.
Comment: A few commenters suggested defined timeframes for
emergency declarations, citing concerns such as the presence of cold
status sites awaiting activation and the changes in capacity
facilitated by the IDIQ vehicle which provides access to multiple ICFs/
EIS. One commenter recommended that if unlicensed influx facilities are
to be utilized, they should be temporarily open for no more than 60
days.
Response: ORR thanks the commenters for their recommendations. ORR
agrees that placements in EIFs should be temporary in nature but cannot
commit to closing EIFs when they are still needed due to emergency or
influx circumstances.
Comment: Several commenters cited concerns with health and safety
risks to unaccompanied children in emergency or influx facilities, with
one commenter stating that facilities that are overwhelmed pose
heightened risks for exploitation, abuse, and mismanagement. A few
commenters expressed concern that influx facilities are already failing
to meet minimum standards required under State law thus creating health
and safety risks and included examples where unaccompanied children
have experienced sexual assault, not enough staff to supervise them,
not eating throughout the day, or have tested positive for the
coronavirus are not being physically separated from others.
Response: ORR thanks the commenters for their concerns. ORR takes
reports of such incidents seriously and will continue to be responsive
to any information about failing to meet minimum standards in this
section and pursuant to the requirements for monitoring all providers
under Sec. 410.1303.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1800 as proposed in the NPRM, except that it is
clarifying that ORR shall regularly reevaluate the number of standard
program placements, and updating Sec. 410.1800(b) to state that ORR
shall place each unaccompanied child in a standard program ``as
expeditiously as possible,'' not that ORR will ``make all reasonable
efforts'' to place each unaccompanied child in a standard program as
expeditiously as possible.
Section 410.1801 Minimum Standards for Emergency or Influx Facilities
(EIFs)
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 (88 FR 68956 through 68958).
ORR proposed in the NPRM, at Sec. 410.1801(b), a list of minimum
services that must be provided to all unaccompanied children in the
care of emergency or influx facilities (EIFs), and available at the
time of the facility opening. These services, which are consistent with
Exhibit 1 of the FSA, would generally 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
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 proposed in the
NPRM, 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's 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, ORR proposed in the
NPRM at Sec. 410.1801(b)(3), and consistent with ORR's existing policy
and practice, to require that each unaccompanied child at an emergency
or influx facility 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 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 on the development of basic academic competencies, and on
English Language Training. ORR proposed in the NPRM 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 may
[[Page 34556]]
include such subjects as 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 well-being of unaccompanied children. ORR
proposed in the NPRM, at Sec. 410.1801(b)(5), to 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--with at least one hour per
day of large muscle activity and 1 hour per day of structured leisure
time activities (that should not include time spent watching
television). Activities should be increased to a total of 3 hours on
days when school is not in session.
The psychological and emotional well-being of unaccompanied
children are an important component of their overall health and well-
being, and therefore ORR proposed in the NPRM that these needs must be
met by emergency or influx facilities. ORR proposed in the NPRM, at
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 well-being of unaccompanied children can be supported
while in ORR care. Therefore, ORR proposed in the NPRM under Sec.
410.1801(b)(7), that unaccompanied children would also receive group
counseling sessions at least twice a week. As is the case at standard
facilities, these 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.
ORR proposed in the NPRM, at 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 proposed in the NPRM,
at Sec. 410.1801(b)(9), to require 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 proposed in the NPRM 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
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.\312\
ORR proposed in the NPRM 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. ORR proposed in the NPRM, at Sec. 410.1801(b)(12),
unaccompanied children at emergency or influx facilities 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 proposed in the NPRM 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.
ORR proposed in the NPRM at Sec. 410.1801(b)(14), emergency or influx
facilities 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 proposed in the NPRM at Sec. 410.1801(b)(15) that emergency or
influx facilities, whether State-licensed or not, 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. 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. The proposed rule also stated 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.\313\ ORR proposed in the NPRM at Sec. 410.1801(b)(16),
emergency or influx facilities deliver services in a manner that is
sensitive to the age, culture, native language, and needs of each
unaccompanied child. To support this minimum service, emergency or
influx facilities would be required to develop an individual service
plan for the care of each child. Finally, ORR proposed in the NPRM at
Sec. 410.1801(b)(17) that the emergency or influx facility be required
to maintain 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.
ORR proposed in the NPRM at Sec. 410.1801(c), 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
[[Page 34557]]
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 at Sec. 410.1309 in this 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 proposed in the NPRM to adopt them for
purposes of emergency or influx facilities under this rule.
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.
ORR proposed in the NPRM at Sec. 410.1801(d), certain scenarios in
which ORR may grant waivers for an emergency or influx facility
operator, whether a contractor or grantee, from the standards proposed
under Sec. 410.1801(b). Specifically, waivers may be granted for any
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.
Comment: A few commenters agreed with the improvements in the
minimum standards for standard programs and emergency or influx
facilities outlined in the NPRM. One commenter supported the inclusion
of requirements that both types of facility provide an individualized
needs assessment and an individualized services plan for each child.
The commenter likewise supported the requirement that facilities
provide services in a manner that is sensitive to the age, culture,
native language and needs of each child. The commenter further agreed
with requirements that standard programs implement trauma-informed
positive behavior management systems, stating the minimum standards
represent important protections for unaccompanied children in ORR's
care and custody. Another commenter stated that ORR's proposed rule
advances its efforts to plan for emergency and influx contingencies in
a way that seeks to minimize the impact on children, requiring a higher
standard of care than used in past temporary facilities, in particular
the Emergency Intake Sites opened in 2021.
Response: ORR thanks commenters for their comments concerning the
minimum standard provisions in this section.
Comment: One commenter stated that proposed Sec. 410.1801 offers
important protections for unaccompanied children and, if implemented,
would help mitigate some of the harms of unlicensed congregate influx
facilities documented in HHS Office of the Inspector General and NGO
reports. The commenter stated that the minimum standards and services
as outlined in the NPRM appear to address many of the challenges they
have identified during previous visits to Emergency Intake Sites at the
southern border. One commenter also stated agreement that as described,
the group counseling sessions and the acculturation and adaptation
services provide an opportunity for meaningful dialogue between staff
and children and stated the requirement for an individualized needs
assessment helps identify and address a child's particular situation
and determine whether the child should not be placed in an emergency or
influx facility. The commenter also agreed with ORR's requirement that
visitation and contact with family members is structured in a way to
encourage such visitation helps maintain communication with family
members and serves to enhance a child's feeling of connection and
safety in a challenging environment. The commenter further agreed that
provision of legal services information is always essential, but
particularly in a setting which may not be State-licensed.
Response: ORR thanks commenters for their comments.
Comment: One commenter suggested that to avoid confusion regarding
what standards to apply to emergency and influx facilities, as opposed
to standard programs, ORR remove a listing of minimum standards for
emergency and influx facilities instead require EIFs to meet the
minimum standards set forth at Sec. 410.1302.
Response: ORR thanks the commenter for their recommendation. ORR
clarifies that having a separate provision for EIF minimum standards is
appropriate due to the differing operational context when EIFs may be
activated (e.g., during influx, natural disaster, or medical
emergency). Codifying separate standards enables ORR to require
services consistent with the FSA at Exhibit 1, while preserving
operational flexibility that is appropriate in times of emergency or
influx.
Comment: One commenter expressed concern that the minimum standards
for both standard programs and emergency or influx facilities do not
address all of the issues for which the States have developed licensing
standards for children's residential facilities, including such
examples as minimum staff-to-child ratios, specifications as to the
size and maintenance of living quarters, children's independence and
access to the community, as appropriate, including access to
participation in recreational, cultural, and extra-curricular
activities outside the facility. The commenter stated that it is not
clear whether other requirements subsequently developed by ORR for
unlicensed standard programs would be consistent with or address all
issues addressed by the States' standards. The commenter recommended
that the minimum standards and any other requirements that ORR develops
for standard programs and emergency or influx facilities address the
issues for which the States have developed licensing standards,
including but not limited to the examples identified above. The
commenter suggested that ORR look to the States' licensing standards
and requirements for guidance in developing and elaborating its own
standards.
[[Page 34558]]
Response: ORR thanks the commenter for their concerns.
Traditionally, emergency or influx facilities are not State-licensed
since placements are made under exceptional circumstances and intended
to be temporary in duration. Also, under its terms, the FSA did not
contemplate that Exhibit 1 standards would apply to emergency or influx
facilities. Nevertheless, in this final rule ORR goes beyond the
requirements of the FSA to define minimum standards specific to
emergency or influx facilities in this section that are similar to
those described at Exhibit 1 and at Sec. 410.1302 of this rule, to
strengthen protections for unaccompanied children and ensure that they
receive specified services.
Comment: Several commenters disagreed with the inclusion of
unlicensed facilities in the operation of influx or emergency intake
sites and stated that such facilities should be required to meet the
same minimum standards for licensed facilities under this section, or
should be required to be State-licensed, or conform to State licensure
requirements even in influx or emergency circumstances to the greatest
extent possible. One commenter suggested that ORR should revise the
proposed rule to clearly require that standard programs and emergency
and influx programs meet both ORR requirements and applicable State
laws and regulations. One commenter urged ORR to revise Sec. 410.1801
to require that an emergency or influx facility be licensed by an
appropriate State agency if State licensure is available. One commenter
suggested that Federal preemption language be followed by qualifying
language stating: (1) State licensure is required, and (2) if a
conflict between ORR's policies or regulations and State law arises,
the State-licensed program must still follow State licensure
requirements.
Response: ORR thanks the commenters for their recommendations. ORR
declines to require EIFs to be state-licensed because it may be
essential for emergency or influx facilities to operate in exceptional
circumstances in which it is not possible to attain State licensure.
ORR further notes that the FSA does not require facilities operated in
response to emergency or influx conditions to be state-licensed.
However, this final rule goes beyond the requirements of the FSA by
establishing a set of minimum standards applicable to EIFs. ORR notes
these minimum standards are similar to those described at Sec.
410.1302. Nevertheless, Sec. 410.1302 and Sec. 410.1801 are separate.
Section 410.1302 applies to standard programs and secure facilities,
and Sec. 410.1801 applies to EIFs. While they bear some similarities,
ORR disagrees that all of the minimum standard requirements for the
standard programs and secure facilities should apply to emergency or
influx sites because the priority for these facilities is to provide
essential services to unaccompanied children when time is of the
essence. Issues relating to standard programs and secure facilities are
addressed at subpart D.
Comment: A few commenters stated that the minimum standards need to
provide trauma-based staffing criteria or training of staff at influx
facilities, with one commenter specifically stating this should consist
of licensed, trained, and trauma-informed child welfare staff who
should serve as the initial point of contact for any unaccompanied
children at influx facilities. The commenter stated that influx
facilities should be prepared to provide culturally and linguistically
appropriate trauma informed care and have registered and licensed
nursing and other medical and behavioral health professionals onsite.
The commenter also emphasized that facilities must be child-centered,
trauma-informed, and prioritize children's best interests that expedite
their safe release to family. One commenter stated that when opening an
emergency or influx facility, it is essential to ensure that staff,
many of whom may be newly hired in such a facility, are trained in all
aspects of working with and providing services to unaccompanied
children.
Response: ORR thanks the commenter for their input. ORR reiterates
its belief 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.\314\ ORR emphasizes that pursuant to Sec. 410.1801(b)(16)
(redesignated as Sec. 410.1801(b)(14) in the final rule), emergency or
influx facilities must deliver services in a manner that is sensitive
to the age, culture, native language, and complex needs of each
unaccompanied child, and must also develop an individual service plan
for the care of each child. Furthermore, an individualized needs
assessment must be conducted pursuant to Sec. 410.1801(b)(3), which
identifies the unaccompanied child's special needs including any
specific problems which appear to require immediate intervention. ORR
policies prioritize release to an ORR vetted and approved sponsor when
release is appropriate as described in subpart C of this rule. ORR
believes that, in order to comply with the requirements provided under
Sec. 410.1801(b), EIF staff must have the appropriate professional
experience and training relevant to working with and providing services
to unaccompanied children.
Comment: One commenter expressed concern with the temporary nature
of placements in an EIF, stating that any temporary operation
inevitably creates confusion and uncertainty for children and staff.
The commenter recommended prioritizing the need to appropriately inform
children in their preferred language about where they are, who is
responsible for them, the reasons for these arrangements, what to
expect, and their rights and how to exercise them. The commenter
further recommended ensuring services that interface with children and
impact their length of stay, such as case management, are in place from
the outset, arguing that this is critical to managing children's right
to information, their expectations, and planning for release from
custody and unification with family. The commenter stated that children
should not be placed in a temporary care arrangement that does not have
a plan in place to manage their eventual release.
Response: ORR thanks the commenter for their recommendations. ORR
agrees that minimizing transfers is in the child's best interest and
therefore seeks to place children in emergency intake sites and influx
care facilities only when there are exceptional circumstances and only
for children that meet the criteria for placement in an EIF described
in this section as discussed in previous responses. ORR notes that at
Sec. 410.1801(b)(3), EIF sites are required to perform individualized
needs assessment, which includes the various initial intake forms,
identification of the unaccompanied child's special needs including any
specific problems which appear to require immediate intervention, and
an educational assessment and plan; and a statement of religious
preference and practice; an assessment of the unaccompanied child's
personal goals, strengths and weaknesses. ORR agrees with one of the
commenter's recommendations that some provisions within Sec.
410.1801(b)(3) that involve planning for release from custody and
unification with family should be available at the outset at EIFs and
thus be non-waivable. As a result, ORR will move the provision of
``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'' out of
Sec. 410.1801(b)(3) and place it into the newly designated Sec.
410.1801(c)(10) as a non-waivable provision, while
[[Page 34559]]
adding ``Family unification'' before ``Services'' at the beginning of
the sentence. Relatedly, ORR will update Sec. 410.1801(b)(3) by
removing the provisions of ``collection of essential data relating to
the identification and history of the child and the child's family'';
``assessment of family relationships and interaction with adults, peers
and authority figures''; and ``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'' from 410.1801(b)(3) and
place them into the newly designated 410.1801(c)(11) as a non-waivable
provision. ORR also notes that it is updating Sec. 410.1801(b)(3) to
include consideration of whether a child is an indigenous language
speaker as part of the individualized needs assessment. ORR further
agrees with commenter recommendations to ensure that children
understand services that they will interface with, as well as
understand their right to information and expectations. ORR will
therefore move what was previously Sec. 410.1801(b)(9) (``A
comprehensive orientation regarding program intent, services, rules
(written and verbal), expectations, and the availability of legal
assistance.'') to the newly designated Sec. 410.1801(c)(12) as a non-
waivable provision and add a clarifying edit that this orientation will
include information about U.S. child labor laws to conform with
language in Sec. 410.1302(c)(8)(iii). Additionally, Sec.
410.1801(b)(16) (redesignated as Sec. 410.1801(b)(14) in the final
rule) requires that EIFs develop an individual service plan for each
child. ORR believes these requirements, as well as other requirements
under Sec. 410.1801(b), will ensure appropriate interfacing with
children to keep them informed of their rights regarding placement and
available services.
Comment: One commenter stated that under Sec. 410.1801(b)(1), the
nutrition standards should mirror those for standard programs and be
consistent with USDA recommendations.
Response: ORR thanks the commenter for their input. ORR believes
that while the requirement for nutrition standards consistent with USDA
recommendations is established for standard programs under Sec.
410.1302(c), ORR must consider the circumstances requiring placement in
an emergency or influx facility and the need to meet more immediate
care for needs during periods of influx or emergency such as adequate
shelter, health and safety, and provision of other required services
for facilities where housing is meant to be temporary. However, ORR
agrees with the commenter that further specificity is needed and is
therefore updating Sec. 410.1801(b)(1) to clarify that EIFs shall
provide sufficient quantity of food that is appropriate for children,
as well as drinking water. Although ORR requires the provision of food
and drinking water in emergency or influx facilities at Sec.
410.1801(c)(3), this may preclude the availability of food menus and
the type of variety and quality ORR would normally require. ORR will
continue to monitor these requirements as they are implemented and may
consider providing additional specificity through future policymaking.
Comment: One commenter stated the concern that many children in
emergency or influx facilities may be proficient in neither English nor
Spanish, and therefore recommended provision of alternative language
services.
Response: ORR thanks the commenter for their concern. ORR is
clarifying that it will always require the provision of services under
this subpart in a child's native or preferred language. ORR also notes
that it is updating Sec. 410.1801(b)(3) to include consideration of
whether a child is an indigenous language speaker as part of the
individualized needs assessment. ORR further notes that at Sec.
410.1802(a) criteria for placement in an emergency or influx facility
to the extent feasible include that the child speaks English or Spanish
as their preferred language. If ORR becomes aware that a child does not
meet any of the criteria at any time after placement into an emergency
or influx facility, ORR shall transfer the unaccompanied child to the
least restrictive setting appropriate for that child's need as
expeditiously as possible.
Comment: One commenter stated that the inclusion of educational
services is necessary to ensure that children are actively engaged and
learning while at an emergency or influx facility. A few commenters
stated that education services described in Sec. 410.1801(b)(4) should
be focused on English immersion, with one commenter suggesting to
concentrates primarily on the integration of the child into a routine
of education attendance and on foundational English language learning
rather than on development of basic academic competencies.
Response: ORR thanks the commenters for their input. ORR notes that
English language acquisition is already stated as a consideration for
providing educational services at Sec. 410.1801(b)(4). ORR also
believes, however, that instructing children in basic academic areas
such as science, social studies, math, reading, writing, and physical
education should be a consideration. Instruction is required to be
given under this section in such languages as needed so that children
do not miss critical instruction appropriate for the child's level of
development and communication skills.
Comment: One commenter suggested that group counseling at Sec.
410.1801(b)(7) should be better defined, stating that group counseling
should not include everyone at the site but should be much smaller
groups based on age and other criteria. Furthermore, the commenter
stated that greater attention is needed to clarify and clearly state
the purpose and scope of mental health services in ORR programs.
Response: ORR thanks the commenter for their input. In relation to
group counseling, ORR notes that since these sessions are required to
take place twice per week, children have options as to which session to
attend and may establish their own preferences based on age of those in
attendance and other criteria. However, ORR believes it is important to
allow all unaccompanied children to attend this open forum to speak
about decisions that affect them such as daily program management and
to get acquainted with staff. Given the limited nature and availability
of such sessions and limited capacity of emergency or influx
facilities, ORR believes that excluding certain children from some
sessions to establish specialized groupings may be unfair or
infeasible. ORR notes that it is updating Sec. 410.1801(b)(7) to more
closely align with the language at Sec. 410.1302(c)(6), which may
provide additional flexibility for EIFs to facilitate group counseling
sessions in a way that is appropriate to the unaccompanied children in
their care.
Comment: One commenter recommended that ORR focus mental health
services on stabilization, acculturation, and psychoeducation to
mitigate future risks due to the duration of the vast majority of stays
in ORR programs. To support this, the commenter recommended to change
the language from ``counseling session'' to ``adjustment support'' with
trained mental health staff. The commenter asserted that ``counseling
session'' implies a solution-focused service that cannot be reasonably
accomplished in such a short time period, while adjustment support
implies to provide transitional well-being support and individualized
advocacy sounds more feasible.
[[Page 34560]]
Response: ORR thanks the commenter for their input. ORR notes that
``counseling session,'' conforms to the language in the FSA and
therefore ORR disagrees with the recommended change in terms. ORR
further notes that acculturation and adaptation services are described
in the next subparagraph at Sec. 410.1801(b)(8) and provides for the
development of social and interpersonal skills which contribute to
those abilities necessary to live independently and responsibly. The
focus of such individual counseling sessions is to establish objectives
and review progress, and address both the developmental and crisis-
related needs of each child. The provisions in this section do not
prescribe certain methods for mitigation of risks, but rather require
trained social work professionals to evaluate and address
individualized needs on a case-by-case basis.
Comment: One commenter recommended that proposed Sec.
410.1801(b)(15), governing emergency or influx facilities, be revised
as follows: ``(15) Emergency or influx facilities, whether State-
licensed or not, must comply, to the greatest extent possible, with all
applicable State child welfare laws, and regulations (such as mandatory
reporting of abuse), and standards, as well as State and local
building, fire, health and safety codes, that ORR determines are
applicable to non-State licensed facilities.''
Response: ORR thanks the commenter for their recommendation, and
notes that it is updating Sec. 410.1801(b)(15) (redesignated as Sec.
410.1801(b)(13) in the final rule) to specify ``all'' State child
welfare laws and regulations, and ``all'' State and local building,
fire, health and safety codes, as applicable to non-State licensed
facilities.
Comment: One commenter sought clarification on accountability
systems under Sec. 410.1801(b)(17) (redesignated as Sec.
410.1801(c)(13) in the final rule), stating that it is unclear how this
section specific to emergency or influx facilities should be integrated
with similar requirements of all care providers described at Sec.
410.1303(g) through (h) as proposed in the NPRM (which includes
emergency facilities). The commenter recommended that if ORR intends to
use this subsection to emphasize that emergency or influx facilities
are subject to the minimum requirements of proposed Sec. 410.1303(g)
or the proposed consolidated section on data safeguarding, it should
add a cross reference and that if some other meaning is intended, ORR
should clarify the text of proposed Sec. 410.1801(b)(17) (redesignated
as Sec. 410.1801(c)(13) in the final rule).
Response: ORR thanks the commenter for their recommendation. ORR
notes that Sec. 410.1303(h) (proposed in the NPRM as Sec.
410.1303(g)) explicitly applies to all care provider facilities
responsible for the care and custody of unaccompanied children, whether
the program is a standard program or not. This includes emergency or
influx facilities. ORR refers readers to paragraph Sec. 410.1303(h)
for requirements and standards for safeguarding a child's case file.
ORR notes that Sec. 410.1801(b)(17) (redesignated as Sec.
410.1801(c)(13) in the final rule) only applies to facilities that meet
the definition of an EIF under this rule and although it reads
similarly in part to Sec. 410.1303(i) for maintaining records of case
files and regularly reporting to ORR, an important distinction for non
EIFs is the exclusion of language stating ``permit ORR to monitor and
enforce the regulations in this part'' since not all regulations in
this part apply to emergency or influx facilities.
Comment: One commenter recommended that Sec. 410.1801(b)(17)
(redesignated as Sec. 410.1801(c)(13) in the final rule) explicitly
outline that children's artistic works should not become a part of the
official case file, and there is no requirement to retain them.
Response: ORR thanks the commenter for their recommendation. ORR
does not believe an amendment to the final rule is necessary, as no
part of the rule or prior guidance states or implies that artistic
works be part of the child's official case file.
Comment: One commenter suggested that Sec. 410.1801(c)(4) should
provide pediatric medical care to the unaccompanied child instead of
limiting this to ``if the unaccompanied child is in need of emergency
services,'' stating that as medical care should be provided whenever
needed, not just in emergency circumstances. The commenter also
recommended adding a requirement to maintain full-time pediatric
medical expertise on site.
Response: ORR thanks the commenter for their recommendation. ORR
notes that appropriate routine medical and dental care is among the
required services at Sec. 410.1801(b)(2) and emergency services are
specified at Sec. 410.1801(c)(4) to ensure that children have access
to emergency medical services. ORR notes that ensuring full-time
pediatric medical expertise is on site is not necessary to ensure
routine medical and dental needs are met and would exceed the
requirements for both licensed and unlicensed emergency or influx
facilities under the FSA. However, ORR will make a clarifying revision
to Sec. 410.1801(c)(4) that modified medical examinations are non-
waivable at EIFs.
Comment: One commenter stated that Sec. 410.1801(d) does not make
clear what factors will be used to determine whether the standards are
operationally infeasible and what law is referenced. The commenter
suggested that clearer guidelines should be provided, and that a waiver
should only be granted in extreme situations. Another commenter
expressed concern that the waiver language was too broad and
recommended that the provision be amended or withdrawn.
Response: ORR thanks the commenters for their input. ORR notes
that, consistent with existing policies, which implement Congressional
appropriations requirements,\315\ ORR may grant a waiver of one or more
standards in this subsection only if the facility has been activated
for a period of six consecutive months or less; further, ORR would
consider which standards may be operationally infeasible on a case-by-
case basis. ORR does not agree that no waivers should be permitted or
that a waiver should be granted only in extreme circumstances, because
this language is potentially ambiguous and extreme circumstances are
likely to exist in many situations giving rise to placement in an
emergency or influx facilities. Instead, ORR believes waivers should be
limited to situations where one or more standards are in fact
operationally infeasible and only for facilities that are activated for
a period of 6 consecutive months or less. ORR believes that this will
limit the volume and scope of waivers granted under this subsection.
However, ORR has revised the language of Sec. 410.1801(d) to clarify
that while waivers may be granted during the first six months of EIF
activation, these waivers will only be granted to the extent that ORR
determines that they are necessary because it would be operationally
infeasible to comply with the specified standards. Further, waivers
will be granted for no longer than necessary in light of operational
feasibility. Finally, ORR is also adding language at Sec. 410.1801(d)
to state that, even where a waiver is granted, EIFs shall make all
efforts to meet requisite standards under Sec. 410.1801(b) as
expeditiously as possible.
Comment: One commenter expressed concern that the rule does not
explain how ORR will provide oversight to emergency or influx
facilities or ensure that such facilities comply with ORR's standards
and with State law. The commenter recommended that ORR
[[Page 34561]]
implement a more comprehensive regime for Federal oversight of
unlicensed facilities housing unaccompanied children where a State will
not be providing oversight, including EIFs. The commenter recommended
that ORR adopt additional monitoring and enforcement functions for
facilities that are not State-licensed such as requirements for:
inspection, screening, and documentation, criminal and child abuse and
neglect background checks, frequency of monitoring visits and
evaluations receiving, investigating, and responding to complaints;
enforcement of standards. The commenter urged ORR to allocate
sufficient staffing and other resources to ensure that oversight of any
unlicensed facilities is as robust as that which would otherwise have
been provided by the State in which the facilities are located.
Response: ORR thanks the commenter for their recommendations. ORR
notes that, as stated in Sec. 410.1303, it will monitor all care
provider facilities, including unlicensed standard programs and EIFs
for compliance with the terms of the regulations in parts 410 and 411
of this title. With respect to the specific recommendations made by the
commenters, ORR notes: regarding inspection, screening, and
documentation, such requirements are already built into the ORR grant
and contracting process through which grantees and contractors are
selected to operate care provider facilities, whereby care providers
agree to such requirements under ORR policies and as consistent with 45
CFR part 75; regarding background checks for EIF staff, ORR notes that,
like standard programs, EIFs are subject to requirements set forth at
45 CFR 411.16; regarding frequency of monitoring visits and evaluations
and responding to complaints, ORR notes that it would conduct enhanced
monitoring of EIFs; regarding investigating and responding to
complaints, ORR notes that the requirements established at Sec.
410.1303(f) apply to EIFs; and regarding establishing a framework for
the enforcement of standards at EIFs, ORR notes that Sec. 410.1303
establishes such a framework, which is in addition to other established
enforcement mechanisms such as those described at 45 CFR 75.371.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section as proposed in the NPRM with the following
changes. ORR is making clarifying edits at Sec. 410.1801(b)(1) to
specify that proper physical care and maintenance includes providing
children with a sufficient quantity of food and drinking water,
replacement of ``special needs'' with ``individualized needs'' at Sec.
410.1801(b)(3), addition of whether the child is an indigenous language
speaker at Sec. 410.1801(b)(3), removal of ``in the residential
facility, group or foster home'' at Sec. 410.1801(b)(11), replacement
of ``deportation'' with ``removal'' at Sec. 410.1801(b)(12), addition
of the word ``all'' in reference to complying with State child welfare
laws and regulations to the greatest extent possible at Sec.
410.1801(b)(15) (redesignated to Sec. 410.1801(b)(13)), and addition
of the word ``complex'' at Sec. 410.1801(b)(16) (redesignated to Sec.
410.1801(b)(14)) to more closely align with the language at Sec.
410.1302(d). ORR is also updating Sec. 410.1801(b)(7) to more closely
align with the language at Sec. 410.1302(c)(6). As a result of the
changes discussed in this final rule action, ORR is redesignating Sec.
410.1801(b)(10) as Sec. 410.1801(b)(9), Sec. 410.1801(b)(11) as Sec.
410.1801(b)(10), Sec. 410.1801(b)(12) as Sec. 410.1801(b)(11), Sec.
410.1801(b)(14) as Sec. 410.1801(b)(12), Sec. 410.1801(b)(15) as
Sec. 410.1801(b)(13), and Sec. 410.1801(b)(16) as Sec.
410.1801(b)(14). ORR is further updating Sec. 410.1801(b)(3) by moving
the provision of ``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'' from Sec. 410.1801(b)(3) and placing it in the
newly designated Sec. 410.1801(c)(10) as a non-waivable provision,
while also adding ``Family unification'' before ``services'' at the
beginning of the sentence. ORR is also updating Sec. 410.1801(b)(3) by
removing the provisions of ``collection of essential data relating to
the identification and history of the child and the child's family'';
``assessment of family relationships and interaction with adults, peers
and authority figures''; and ``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'' from Sec. 410.1801(b)(3)
and placing them into the newly designated Sec. 410.1801(c)(11) as a
non-waivable provision. ORR is also moving what was previously Sec.
410.1801(b)(9) (``A comprehensive orientation regarding program intent,
services, rules (written and verbal), expectations, and the
availability of legal assistance.'') to the newly designated Sec.
410.1801(c)(12) and adding a clarifying edit that this orientation will
include ``information about U.S. child labor laws'' to conform with
language in Sec. 410.1302(c)(8)(iii)). Additionally, ORR is updating
Sec. 410.1801(b)(15) (redesignated to Sec. 410.1801(b)(13)) to remove
language regarding the obligation of ORR employees to comply with their
responsibilities under Federal law where there is a potential conflict
between State and Federal law. ORR is moving the provision that was
proposed previously at Sec. 410.1801(b)(17) in the NPRM (``The EIF
shall maintain records of case files and make regular reports to ORR.
EIFs must have accountability systems in place, which preserve the
confidentiality of client information and protect the records from
unauthorized use or disclosure.'') into the newly designated Sec.
410.1801(c)(13) so that the provision is non-waivable for EIFs. ORR is
also replacing ``arrested'' with ``apprehended'' at Sec.
410.1801(c)(7). ORR is updating Sec. 410.1801(c)(9) to correctly refer
to Sec. 410.1309(a). Additionally, ORR is making clarifying edits to
Sec. 410.1801(d), including the addition of ``waivers are granted in
accordance with law,'' as well as clarifying edits to make clear how
long waivers may last, to what extent, and to which parts waivers may
apply. ORR is also revising Sec. 410.1801(c)(4) to add ``and provide a
modified medical examination'' after ``services.'' Finally, ORR is
adding language at Sec. 410.1801(d) to state that, even where a waiver
is granted, EIFs shall make all efforts to meet requisite standards
under Sec. 410.1801(b) as expeditiously as possible.
Section 410.1802 Placement Standards for Emergency or Influx Facilities
ORR proposed in the NPRM at Sec. 410.1802 to codify the criteria
and requirements for placement of unaccompanied children at emergency
or influx facilities (88 FR 68958). These requirements are consistent
with existing ORR policies.\316\
ORR proposed in the NPRM at Sec. 410.1802(a), 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
teenager; (6) would not have a diminution of legal services as a result
of the transfer to an unlicensed facility; and (7) is not a
[[Page 34562]]
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 shall transfer the unaccompanied child to the
least restrictive setting appropriate for that child's need as
expeditiously as possible. ORR believes that these 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 proposed in the NPRM at Sec. 410.1802(b) that it would also
consider the following factors for the placement of an unaccompanied
child in an EIF: (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 DOJ 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 provisions will help support the safe and
appropriate placement of unaccompanied children in ORR care. For
purposes of this final rule, ORR further clarifies that these
categories of children, to include particularly vulnerable children and
children likely to have extended lengths of stay, would be prioritized
for initial placement in standard programs as opposed to EIFs; they
would also be prioritized for transfer to standard programs if
currently placed at EIFs.
Comment: One commenter expressed concern that transfers between
care provider facilities are a barrier to care for the child, given the
delays that can be experienced from transfers. The commenter
recommended ORR implement an emergency placement system for children
with exceptional needs and that intakes should have 24 hours to place
that child with a safe and appropriate program. The commenter further
suggested that if a child is placed in an ICF but is then found to not
meet ICF placement criteria, the child's placement into an appropriate
facility should be considered under the same criteria as a border
placement. The commenter suggested that the ORR Intakes team would
obtain jurisdiction and assign the child to an appropriate program in a
manner similar to how ORR Intakes placed children arriving from the
border and that placement responsibility would not fall on the ICF.
Response: ORR notes that at Sec. 410.1802(a), ORR shall transfer
the unaccompanied child to the least restrictive setting appropriate
for that child's need as expeditiously as possible if the child is
found not to have made the specific criteria stated therein for
placement at an EIF.
Comment: One commenter stated that under Sec. 410.1802(a)(4) of
the NPRM, it was unclear which healthcare professionals determine
eligibility for having a known disability or other mental health or
medical issue--including pregnancy--or dental issue requiring
additional evaluation, treatment, or monitoring by a healthcare
provider. The commenter recommended that ORR medical staff be the ones
to complete this assessment and it is preferable for ORR staff to be
onsite at DHS and aiding in this determination as transfers of
unaccompanied children between programs is disruptive for the child and
that steps should be taken to minimize the number of transfers of
unaccompanied children between ORR facilities. The commenter further
expressed concern regarding ORR's ability to accurately make the
assessment of all the criteria for over 100,000 children under proposed
Sec. 410.1802(a).
Response: ORR thanks the commenter for their concerns, and first
clarifies that CBP personnel are not involved in placing unaccompanied
children in EIFs. Further, ORR understands that when transferring
unaccompanied children CBP relays available information, which may come
from a variety of sources (e.g., including officer observations,
contracted medical care providers, or existing CBP records). After an
unaccompanied child is transferred into ORR custody, pursuant to its
authority under the HSA, ORR makes all placement decisions. ORR agrees
that it is necessary to have information to make appropriate placement
determinations for children, and bases decisions to place an
unaccompanied child in an EIF on the criteria described in this
section, information in the child's case file, and, if the child is
being transferred into an EIF from another ORR care provider facility,
recommendations from the child's previous case manager as well as an
independent reviewer and ORR Federal field staff. In addition,
consistent with existing policies, ORR does not place particularly
vulnerable children in EIFs (e.g., children 12 years of age or younger;
children who are not proficient in English or Spanish; children who
have a known disability or other mental health or medical issue
requiring additional evaluation, treatment, or monitoring by a
healthcare provider; pregnant or parenting teenagers; children who are
at a documented enhanced risk due to their identification as LGBTQI+).
If a child is placed into an EIF as an initial placement and as a
result lacks records sufficient to indicate particular vulnerability
(i.e., immediately upon transfer into ORR custody from another Federal
agency), ORR screens such children for the particular vulnerabilities
within 5 days of EIS placement and continues to monitor children for
particular vulnerabilities thereafter.
Comment: One commenter questioned why children turning 18 within 30
days of the transfer should be excluded from placement at an ICF,
stating that an unaccompanied child who is within 30 days of turning 18
and has a potential sponsor who is a parent or legal guardian would be
best served at an ICF due to the short length of stay. Another
commenter recommended that an unaccompanied child only be placed in an
EIF if they are more than 90 days from turning 18 years old, not more
than 30 days as contemplated by Sec. 410.1802(b)(5) of the NPRM.
Response: ORR thanks commenters for their input. ORR notes that
under Sec. 410.1802(a)(1), the expectation that an unaccompanied child
will be released to a sponsor within 30 days is a factor in favor of
transfer into an EIF, because in this way, in the event of an emergency
or influx, ORR can prioritize placement in standard programs for
children potentially may need to stay in ORR custody for a longer
period (88 FR 68958). With respect to unaccompanied
[[Page 34563]]
children who are expected to be released to a sponsor within 30 days,
but who are also within 30 days of turning 18, ORR notes that it would
determine placement on a case-by-case basis, consistent with its
responsibility to place unaccompanied children in the least restrictive
setting that is in the best interest of the child--which requires an
individualized determination based on a totality of factors. Because
ORR favors placing unaccompanied children in EIFs whom it expects can
be released without complications that would typically delay release,
ORR does not believe at this time that it is necessary to update its
proposed 30-day criteria for unaccompanied children who are close to
turning 18.
Comment: One commenter requested clarification regarding whether
Sec. 410.1802(b)(8) requires that children be fully vaccinated prior
to being placed at an ICF.
Response: ORR clarifies that this paragraph refers to criteria that
ORR shall use to determine transfer from an EIF and not requirements to
be placed into an EIF. Regarding vaccination, if the specific EIF site
requires the child be medically cleared or vaccinated \317\ and ORR
finds out this condition has not been met, rather than requiring
children to conform to the facility, ORR shall transfer the
unaccompanied child to another standard program of appropriate non-EIF
facility based on the individualized needs of the child as
expeditiously as possible.
Final Rule Action: After consideration of public comments, ORR is
finalizing this section with the following modification to clarify at
Sec. 410.1802(b)(7), so that it now reads, ``The unaccompanied child
should not have a current set date in immigration court or State/family
court (juvenile included), and not have an attorney of record or DOJ
Accredited Representative.'' ORR is otherwise finalizing this section
as proposed in the NPRM with the additional clarifications described
above.
Subpart J--Availability of Review of Certain ORR Decisions
Section 410.1900 Purpose of This Subpart
Ensuring that placement decisions involving restrictive
placements,\318\ 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 regular administrative reviews helps
ensure, for the relatively few 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. In the
NPRM, ORR noted 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 III.B.4. of this final rule. ORR
proposed in the NPRM at Sec. 410.1900 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 (88 FR 68958
through 68959).
Final Rule Action: No public comments were received on this
section. ORR is finalizing its proposal as proposed.
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.\319\ 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 Sec. 410.1105 Criteria for Placing an Unaccompanied Child
in Restrictive Placement. ORR proposed in the NPRM, at Sec.
410.1901(a), 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 (88 FR 68959). ORR further proposed a
requirement that the evidence supporting a restrictive placement
decision be recorded in the unaccompanied child's case file.
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, ORR proposed in the
NPRM at Sec. 410.1901(b), to 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
(88 FR 68959). ORR notes that whenever possible, ORR seeks to provide
NOPs in advance of a step-up to a restrictive placement. ORR further
proposed requiring that the NOP clearly and thoroughly set forth the
reason(s) for placement and a summary of supporting evidence under
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 proposed in the NPRM
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 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 a parent or guardian
for an unaccompanied child also receive such notification. Therefore,
ORR proposed in the NPRM at Sec. 410.1901(c), 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 (88 FR 68959 through 68960). ORR
notes that this requirement may be subject to specific child welfare-
related exceptions.
ORR believes that placements of unaccompanied children in
restrictive placements should be routinely assessed
[[Page 34564]]
to ensure they meet the criteria at Sec. 410.1105. If an unaccompanied
child does not meet such criteria, they should accordingly be stepped
down to a placement that is the least restrictive setting that is in
their best interest, prioritizing their safety and the safety of
others. ORR proposed in the NPRM, at Sec. 410.1901(d), to establish
regular administrative reviews for restrictive placements (88 FR
68960). ORR proposed in the NPRM regular intervals for administrative
reviews depending on the type of restrictive placement: 30-day, at
minimum, for all restrictive placements under Sec. 410.1901(d)(1); and
more intensive 45-day reviews by ORR supervisory staff for
unaccompanied children in secure facilities, under proposed Sec.
410.1901(d)(2).\320\ 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 Sec.
410.1901(d)(3). ORR welcomed public comment on these proposals.
Comment: One commenter recommended adding to Sec. 410.1901(b)(2)
that the Notice of Placement (NOP) would inform the child of available
administrative review processes in their language of preference.
Response: ORR agrees that children should be informed in their
native or preferred language consistent with its language access
requirements under Sec. 410.1306 and is therefore revising Sec.
410.1901(b) to state that ORR shall provide an unaccompanied child with
a Notice of Placement (NOP) ``in the child's native or preferred
language.''
Comment: Related to unaccompanied children with disabilities, one
commenter recommended that Sec. 410.1901(a) should require clear and
convincing evidence that a child cannot be placed in a less restrictive
facility with additional accommodations or services.
Response: ORR agrees and is finalizing at Sec. 410.1105(d) that
ORR's determination whether to place an unaccompanied child in a
restrictive placement shall include consideration of 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 services that would allow the child to be placed in
that less restrictive facility. ORR agrees that evidence of such
consideration should be documented in the child's case file, consistent
with section 504. ORR is also finalizing at Sec. 410.1105(d) that
ORR's consideration of reasonable modifications and auxiliary aids and
services to facilitate less restrictive placements shall also apply to
transfer decisions under Sec. 410.1601 and will be incorporated into
restrictive placement case reviews under Sec. 410.1901. ORR notes,
however, that consistent with its finalized proposal at Sec. 410.1311,
it 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. ORR notes further that the final rule incorporates a clear
and convincing requirement at Sec. 410.1901(a), and that it is
correcting a technical error to replace ``In all cases involving
placement in a restrictive setting'' with ``In all cases involving a
restrictive placement'' in order to use the defined term ``restrictive
placement.'' Lastly, ORR is clarifying that the burden to determine if
sufficient grounds exists rests on ORR by adding the phrase ``have the
burden to'' to Sec. 410.1901(a) so that it states ``In all cases
involving placement in a restrictive placement, ORR shall have the
burden to 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.''
Comment: One commenter expressed concern about the unaccompanied
child's and their attorney's access to the evidence related to the
restrictive placement decision under Sec. 410.1901(a), noting that it
is critical that the child and their counsel have access to any
relevant document in advance of a PRP hearing when one is requested.
Response: ORR agrees that an unaccompanied child and their attorney
of record must have access to relevant documents in advance of the PRP
hearing, and notes that ORR is requiring that a summary of evidence
supporting the restrictive placement be provided with the NOP under
Sec. 410.1901(b)(1). Under Sec. 410.1902(b), ORR shall permit the
unaccompanied child or their counsel to review the evidence in support
of step-up or continued restrictive placement before the PRP review is
conducted.
Comment: Several commenters recommended that ORR provide NOPs in
advance of a step-up to a restrictive placement, stating their belief
that this would better align with child welfare principles and external
standards, provide unaccompanied children the opportunity to challenge
the step-up, and provide unaccompanied children an understanding of
what is happening before the step-up occurs and of the justification
for the step-up decision. Several commenters who recommended ORR
provide NOPs in advance of a step-up to a restrictive setting stated
they believe unaccompanied children should have the opportunity to
challenge the step-up, and the reasons for it, before a transfer to the
restrictive placement occurs. One commenter argued that the lack of
notice and opportunity to be heard before being transferred to a
restrictive facility does not comply with international law. Another
commenter said that ORR could design and implement an independent
hearing process that takes place before the transfer to a restrictive
placement happens.
A few of the commenters who recommended that ORR provide advanced
notice of step-ups into restrictive placements provided alternatives
for consideration. One commenter recommended that ORR establish an
exception that ORR could transfer an unaccompanied child to a
restrictive placement without prior notice only upon a reasonable
belief that the child is a present, imminent danger to self or others.
Another commenter recommended ORR, at minimum, incorporate the intent
expressed in preamble into the final regulation text that ORR would
provide NOPs in advance of a step-up to a restrictive placement
whenever possible.
Response: ORR's proposal under Sec. 410.1901(b) to provide the NOP
no later than 48 hours after a step-up does not preclude ORR from
providing the NOP before the step-up to a restrictive placement occurs
when it is safe and appropriate to do so. Thus, as ORR emphasized in
the NPRM preamble, ORR seeks to provide NOPs in advance of a step-up to
a restrictive placement whenever possible, although ORR is not
explicitly stating so in the final rule regulation text (88 FR 68959).
ORR agrees that unaccompanied children must understand the reasons for
their placement and their rights, including their right to contest such
a placement and their right to counsel, and for that reason ORR
proposed in the NPRM the requirements under Sec. 410.1901(b)(1) to
(4). ORR is finalizing a clarification at Sec. 410.1901(b)(3) that
unaccompanied children's right to counsel is ``at no cost to the
Federal Government'' for consistency with 8 U.S.C. 1232(c)(5). ORR
further notes that its proposals under Sec. 410.1901(b)(1) to (4) are
consistent with the Lucas R. Court's finding on summary judgment that,
``in light of the important Government interests at stake, as well as
the safety of the minors, full pre-deprivation notice and hearing are
not constitutionally required.'' \321\
[[Page 34565]]
Comment: Regarding Sec. 410.1901(c) in the NPRM, one commenter
recommended a clarification that both the attorney at the prior
facility or the legal service provider at the new, more restrictive
placement receive the NOP 48 hours within a step-up.
Response: ORR clarifies that the NOP shall be provided to the
unaccompanied child's attorney of record and LSP, regardless of whether
the child has a different attorney of record and LSP at the new, more
restrictive placement. Related to notice to the child's parent or legal
guardian, and as is consistent with the Lucas R. preliminary injunction
and ORR's role as the Federal custodian responsible for the care and
custody of the child, ORR is adding Sec. 410.1901(c)(1) to state that
service of the NOP on a parent or legal guardian shall not be required
where there are child welfare reasons not to do so, where the parent or
legal guardian cannot be reached, or where a unaccompanied child 14 or
over states that the unaccompanied child does not wish for the parent
or legal guardian to receive the NOP. Additionally, ORR is finalizing a
new provision at Sec. 410.1901(c)(2) to describe child welfare
rationales, which include but are not limited to, a finding that the
automatic provision of the notice could endanger the unaccompanied
child; potential abuse or neglect by the parent or legal guardian; a
parent or legal guardian who resides in the United States but refuses
to act as the unaccompanied child's sponsor; or a scenario where the
parent or legal guardian is non-custodial and the unaccompanied child's
prior caregiver (such as a caregiver in home country) requests that the
non-custodial parent not be notified of the placement. Finally, ORR is
adding Sec. 410.1901(c)(3) to state that when an NOP is not
automatically provided to a parent or legal guardian, ORR shall
document, within the unaccompanied child's case file, the child welfare
reason for not providing the NOP to the parent or legal guardian.
Comment: One commenter urged ORR to conduct reviews of children's
restrictive placements within 14 days, rather than the 30-day or 45-day
marks proposed under Sec. 410.1901(d) of the NPRM to ensure compliance
with its legal obligation under the TVPRA to place children in the
least restrictive setting in their best interests. Another commenter
supported the proposal for periodic administrative reviews and stated
that international standards also require that until the one-month mark
after the initial review, there should be a review every seven days so
that unaccompanied children have multiple opportunities to be assessed
for step-down or release from restrictive facilities.
Response: ORR appreciates the commenters' recommendations. ORR
continues to believe that requiring review of all restrictive
placements at least every 30 days is a reasonable standard and
consistent with the TVPRA at 8 U.S.C. 1232(c)(2)(A). ORR does not
believe Sec. 410.1901(d) prevents more frequent reviews when needed.
Therefore, Sec. 410.1901(d) states that restrictive placements must be
reviewed ``at least'' every 30 days, allowing ORR and its care provider
facilities the flexibility to assess placements more frequently as
determined appropriate in any given case. As such, ORR believes that
the frequency of reviews required under Sec. 410.1901(d) will
reasonably allow ORR to determine whether a restrictive placement
continues to be warranted.
Comment: One commenter requested that ORR clarify what is meant by
``more intensive'' relating to the 45-day review of placements in
secure facilities under Sec. 410.1901(d)(2) of the NPRM.
Response: ORR notes that its proposal in the NPRM at Sec.
410.1901(d)(2) of a 45-day ``more intensive'' review was a technical
error. In this final rule, ORR is codifying in the final rule at Sec.
410.1901(d)(2) a ``more intensive'' review every 90 days for
unaccompanied children in secure facilities to determine whether the
placement in a secure facility continues to be appropriate or whether
the child's needs could be met in a less restrictive setting. Ninety
days is consistent with current ORR policies, and with ORR policies as
they existed at the time the NPRM was published. These 90-day ``more
intensive'' reviews are conducted by ORR supervisory staff. Typically,
those staff review the child's case file, consult with clinical and
healthcare professionals who have examined or treated the child, and
discuss the case with the assigned ORR field staff.
Comment: A few commenters recommended that ORR, in its periodic
reviews of children in restrictive placements, should require
consideration of whether reasonable modifications and auxiliary aids
and services would permit a less restrictive placement for an
unaccompanied child with disabilities to adequately protect the child's
rights.
Response: ORR agrees that periodic reviews should take into
consideration whether reasonable modifications and auxiliary aids and
services would permit a less restrictive placement for an unaccompanied
child with disabilities. Therefore, ORR is adding in new Sec.
410.1105(d) which provides in pertinent part that, for an unaccompanied
child with one or more disabilities, restrictive placement case reviews
under Sec. 410.1901 shall incorporate consideration of reasonable
modifications and auxiliary aids and services to facilitate less
restrictive placement.
Comment: One commenter recommended that periodic reviews include
additional procedural protections, specifically that the 30-day review
of a placement in an RTC or OON RTC facility, as described at Sec.
410.1901(d)(3) of the NPRM, include a detailed and specific review
prepared by a qualified, licensed psychologist or psychiatrist of the
mental health needs of the child. The commenter included a list of
elements that should be required, such as medical assessment of
diagnoses, prescriptions, and therapeutic interventions, whether the
child continues to be a danger to self or others, explanation of the
reasons for continued placement in a restrictive setting, and whether
there are any reasonable modifications to the policies, practices, or
procedures of an available less restrictive placement or any provision
of additional support services or auxiliary aids that would allow the
child to be placed in a less restrictive facility.
Response: ORR believes that reviews should be conducted in
consultation with a qualified licensed psychologist or psychiatrist,
and should contain sufficiently detailed documentation and for that
reason incorporated the requirement at Sec. 410.1903(d)(3) for review
by a psychiatrist or psychologist for children in restrictive
placements in residential treatment centers. ORR notes that the list of
elements recommended for the review are consistent with ORR's beliefs,
but that ORR declines to adopt them into regulation because it prefers
to continue to use and update its existing guidance to provide more
detailed requirements for care provider facilities. Lastly, ORR refers
the commenter to the discussion at Sec. 410.1105(d) where it is
finalizing a requirement to incorporate consideration of reasonable
modifications and auxiliary aids and services to facilitate less
restrictive placement for children with one or more disabilities.
Final Rule Action: After consideration of public comments, ORR is
finalizing its proposal as proposed with revisions at Sec. 410.1901(a)
to replace ``In all cases involving placement in a restrictive setting,
ORR shall determine'' with ``In all cases involving a restrictive
[[Page 34566]]
placement, ORR shall have the burden to determine;'' at Sec.
410.1901(b) to state, ``in the child's native or preferred language;''
at Sec. 410.1901(b)(3) to add ``at no cost to the Federal
Government;'' at Sec. 410.1901(c) to replace ``legal counsel'' with
``attorney;'' at Sec. 410.1901(d)(2), to correct a technical error in
the NPRM by updating ``45 days'' to ``90 days;'' at Sec.
410.1901(d)(3) to write out residential treatment center instead of
``RTC;'' and at Sec. 410.1901(c), to add the following provisions:
(1) Service of the NOP on a parent or legal guardian shall not be
required where there are child welfare reasons not to do so, where the
parent/legal guardian cannot be reached, or where an unaccompanied
child 14 or over states that the unaccompanied child does not wish for
the parent or legal guardian to receive the NOP.
(2) Child welfare rationales include but are not limited to: a
finding that the automatic provision of the notice could endanger the
unaccompanied child; potential abuse or neglect by the parent or legal
guardian; a parent or legal guardian who resides in the United States
but refuses to act as the unaccompanied child's sponsor; or a scenario
where the parent or legal guardian is non-custodial and the
unaccompanied child's prior caregiver (such as a caregiver in home
country) requests that the non-custodial parent not be notified of the
placement.
(3) When an NOP is not automatically provided to a parent or legal
guardian, ORR shall document, within the unaccompanied child's case
file, the child welfare reason for not providing the NOP to the parent
or legal guardian.
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 paragraph (a), ORR proposed in
the NPRM to 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 (88 FR 68959 through 68960). As stated
in the NPRM, 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. ORR proposed in
the NPRM at Sec. 410.1902(a), that 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 could
present witnesses and cross-examine ORR's witnesses if such witnesses
are willing to voluntarily testify. ORR noted that an unaccompanied
child and/or their legal counsel of record would be 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 could also have their placement reconsidered by submitting a
request for a reconsideration along with any supporting documents as
evidence.
ORR proposed in the NPRM at Sec. 410.1902(b), that 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 an NOP and anytime thereafter.
ORR proposed in the NPRM at Sec. 410.1902(c), that the ORR would
require itself to convene the PRP within a reasonable timeframe, to
allow the unaccompanied child to have a hearing without undue delay.
ORR proposed in the NPRM to require, at 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 decided 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. Thus,
ORR proposed in the NPRM at Sec. 410.1902(e) that an ORR staff member
who was involved with the decision to step-up an unaccompanied child to
a restrictive placement could not serve as a Placement Review Panel
member with respect to that unaccompanied child's placement. ORR
welcomed public comment on these proposals.
Comment: A few commenters stated that ORR should include a
requirement in the final rule for care provider facilities to seek
legal assistance for unaccompanied children throughout the PRP process.
Another commenter wrote that ORR should ensure each unaccompanied child
that requests a PRP has legal representation and a child advocate. One
commenter urged ORR to clarify that the child has a right to counsel of
their choosing and a right to present witnesses and evidence under
Sec. 410.1902.
Response: ORR is revising its proposal under Sec. 410.1902(a) to
additionally state that where the child does not have an attorney, ORR
shall encourage the care provider facility to seek assistance for the
child from a contracted legal service provider or child advocate. ORR
believes that unaccompanied children should have the ability to present
witnesses and evidence, and for that reason, proposed these
requirements under Sec. 410.1902(a). ORR is also clarifying that the
assistance of counsel is ``at no cost to the Federal Government''
instead of ``if preferred'' for consistency with 8 U.S.C. 1232(c)(5).
Related to Sec. 410.1902(a) and for consistency with 8 U.S.C.
1232(c)(5), ORR is clarifying that a child's request to have their
placement reconsidered without a hearing must be written by adding the
word ``written'' before request, so that the sentence reads ``An
unaccompanied child that does not wish to request a hearing may also
have their placement reconsidered by submitting a written request for a
reconsideration along with any supporting documents as evidence.''
Finally, ORR is clarifying at Sec. 410.1902(a) to add ``child and
ORR'' to describe the witnesses that may be willing to voluntarily
testify, so that it reads ``An unaccompanied child may present
witnesses and cross-examine ORR's witnesses, if such child and ORR
witnesses are willing to voluntarily testify.''
Comment: A few commenters recommended that ORR both inform children
of their right to an interpreter and provide a certified interpreter in
the child's preferred language at the PRP hearing, noting that this is
consistent with most State laws and Federal law and would promote
effective communication and a fair hearing.
Response: ORR is adding at Sec. 410.1902(a) a requirement that an
unaccompanied child shall be provided access at the PRP hearing to
interpretation services in their native or preferred language,
depending on the unaccompanied child's preference, and in a way they
effectively understand.
Comment: A few commenters noted that Sec. 410.1902(a) does not
specify that unaccompanied children and their attorney will have a
right to review ORR's evidence before the hearing and will be provided
the casefile in a reasonable time. One commenter recommended that ORR
disclose the child's case file and all evidence supporting restrictive
placement no later than five business days prior to the PRP hearing.
[[Page 34567]]
Response: ORR is revising its requirement under Sec. 410.1902(b)
to additionally require that ORR shall permit the child or the child's
counsel to review the evidence in support of step-up or continued
restrictive placement, including any countervailing or otherwise
unfavorable evidence, within a reasonable time before the PRP review is
conducted. ORR shall also share the unaccompanied child's complete case
file apart from any legally required redactions with their counsel
within a reasonable timeframe to be established by ORR to assist in the
legal representation of the unaccompanied child. ORR recognizes that
the complete case file will need to be provided with sufficient time
for the unaccompanied child (and their counsel, if any) to review the
case file in advance of the PRP review, and for that reason added
``within a reasonable time'' to its revision of Sec. 410.1902(b).
Comment: One commenter expressed concern that in the majority of
States, court review of the secure detention of a child is ensured, and
that in those States, detention is either time-limited or the child is
entitled to a rehearing by the court upon request. The commenter
believed that unaccompanied children should similarly have a right to
continued placement review through periodic hearings.
Response: As is consistent with ORR's current policy, under this
final rule at Sec. 410.1901(d), periodic administrative reviews of
restrictive placements are automatically conducted every 30 days. In
accordance with current policy and pursuant to language finalized at
Sec. 410.1902(a) through (e), unaccompanied children have the
opportunity, with the assistance of legal counsel at no cost to the
Federal Government, to make a request for reconsideration of their
restrictive placement to the PRP, which is comprised of neutral senior-
level career staff who have experience in child welfare, restorative
justice, adverse childhood experiences, special populations, and mental
health and must not have been involved in the initial decision to place
the child in a restrictive setting.
Comment: A few commenters recommended that ORR provide additional
procedural protections. One commenter stated their belief that this
would decrease burden on ORR by eliminating the financial cost and
administrative challenges of transferring an accompanied child to a new
placement after a successful PRP challenge. One commenter stated that
ORR should provide unaccompanied children with NOPs and PRPs, absent a
present, imminent danger to self or others, before they are stepped up
to a more restrictive placement and that this would protect the
unaccompanied children's liberty interests, mental health, and well-
being. Another commenter stated that a specific timeframe for
scheduling the hearing should be provided, noting that an unaccompanied
child should not be transferred to the restrictive placement until the
PRP makes a decision regarding placement of the child.
A few commenters recommended that ORR should require an automatic
review of all placements in restrictive settings by the PRP. One
commenter recommended ORR provide the following timelines for such
automatic reviews: 5 business days prior to the step-up and no sooner
than 72 hours after receiving notice of the restrictive placement.
Another commenter noted their belief that ORR would face minimal burden
in scheduling automatic PRP reviews. Another commenter added that ORR
should then allow unaccompanied children, if they choose, to opt-out of
such hearings. The commenter noted that because many unaccompanied
children lack the English proficiency or literacy to request a PRP
review, that automatic PRP reviews are consistent with State juvenile
proceedings and would ensure the child's private interest in freedom
from prolonged detention, due process rights, and well-being.
Response: ORR thanks commenters for their recommendations. Due
process does not require that ORR provide a PRP review prior to the
step-up to a more restrictive placement or provide automatic PRP
reviews. As the Lucas R. Court found on summary judgment, ``in light of
the important Government interests at stake, as well as the safety of
the minors, full pre-deprivation notice and hearing are not
constitutionally required.'' \322\ The Court also did not require
automatic adversarial hearings for each stepped up unaccompanied child,
finding that the required 30-day administrative review for all
restrictive placements, and the more intensive 90-day reviews of
placements in secure facilities, ``already provide automatic procedural
safeguards'' for unaccompanied children.\323\
Comment: One commenter expressed concern that the PRP is not a
substitute for the FSA's mandatory and automatic juvenile coordinator
review and approval of all secure placements, noting that it is an
important safeguard because it eliminates the burden on the child to
contest the placement in cases where an error could have been
identified by the juvenile coordinator. The commenter recommended that
ORR include a requirement for juvenile coordinator review in the final
rule.
Response: ORR staff (e.g., a Federal Field Specialist (FFS) or FFS
Supervisor) perform the function of the juvenile coordinator described
in FSA paragraph 23 in order to provide the mandatory reviews and
approvals for all placements in secure facilities. Therefore, at Sec.
410.1902(a) ORR is adding that ``All determinations to place an
unaccompanied child in a secure facility that is not a residential
treatment center will be reviewed and approved by ORR federal field
staff.''
Comment: One commenter recommended requiring ORR witnesses to
testify because they may be crucial to a placement decision, and a
child does not have the same ability to call them to testify as ORR
does.
Response: Under Sec. 410.1902(a) of this final rule, an
unaccompanied child may present their own witnesses and cross-examine
ORR's witnesses, if any are willing to voluntarily testify. ORR may,
but is not required to, call and present its own witnesses.
Comment: Several commenters recommended that ORR require that the
placement review panel (PRP) issue a decision within 7 days of a
hearing and submission of evidence or, if no hearing or review of
additional evidence is requested, within 7 days following receipt of a
child's written statement. They noted that ORR could extend this
deadline as necessary under specified circumstances.
Response: ORR agrees and is revising Sec. 410.1902(c) to require
that ORR shall convene the PRP within 7 days of a child's request for a
hearing, and that ORR may institute procedures to request clarification
or additional evidence if warranted, or to extend the 7-day deadline as
necessary under specified circumstances.
Comment: A few commenters also noted that Sec. 410.1902(d) does
not require the PRP decision be in writing and recommended that the
final rule require a written decision. One commenter stated that ORR
should require the PRP to set forth, in writing, detailed, specific,
and individualized reasoning for any decision so that the reasoning
behind the decision is well-documented and there is access to the
evidence used to make the decision.
Response: ORR agrees and is accordingly revising Sec. 410.1902(d)
to require the PRP to issue a written decision within 7 days of a
hearing and submission of evidence or, if no hearing or review of
additional evidence is requested, within 7 days following
[[Page 34568]]
receipt of a child's written statement. ORR may institute procedures to
request clarification or additional evidence if warranted, or to extend
the 7-day deadline as necessary under specified circumstances. It is
ORR's existing practice that PRP decisions are detailed, specific, and
provide individualized reasons because ORR believes this is beneficial
to unaccompanied children and supports transparency.
Comment: A few commenters recommended that ORR require that the PRP
decision be issued or translated in a language the unaccompanied child
understands, and that the case manager explain the PRP decision to the
child in a language the child understands and prefers.
Response: ORR agrees that the PRP decision should be in a language
the unaccompanied child understands as this is consistent with Sec.
410.1306 language access requirements for written materials. ORR is
accordingly revising Sec. 410.1902(d) to require the PRP be issued in
the child's native or preferred language.
Comment: A few commenters recommended that ORR state that PRP
proceedings are separate and apart from the unaccompanied child's
immigration A-File and not relied upon in any deportation or removal
hearing or any USCIS adjudication because the potential for a negative
impact on their immigration case may discourage children from
exercising their right to the PRP review. One commenter suggested ORR
clarify that the PRP is conducted exclusively within the scope of ORR's
duty under the HSA as the custodian of unaccompanied children.
Response: ORR notes that Sec. 410.1902(a) explicitly provides that
PRP reviews are conducted for the purpose of determining the
appropriateness of an unaccompanied child's placement. Placement is a
defined term in this final rule, and assumes the unaccompanied child is
in ORR custody. ORR further clarifies, consistent with other parts of
this preamble, that ORR is not an immigration enforcement authority.
ORR notes that the A-file is the immigration file which belongs to DHS,
and not to ORR.
Comment: One commenter expressed concern that no timeline is
specified for step-down when the PRP decides the unaccompanied child
should be moved to a less restrictive setting, and stated if that is
not possible, ORR should provide a plan for an expeditious step-down to
the child and their counsel, along with documentation of all efforts to
find a placement.
Response: ORR agrees that when the PRP decides an unaccompanied
child is ready for step-down to a less restrictive setting, the child
should be stepped down as expeditiously as is possible, consistent with
Sec. 410.1101(f) in this final rule which would require that all
facilities accept children absent limited specific reasons (e.g.,
licensing requirements).
Comment: One commenter requested clarification regarding the
members of the PRP, including where the PRP would be located
organizationally within ORR, and whether care provider staff would be
members of the panel. The commenter recommended the PRP contain both
administrative as well as field staff to encourage decisions accounting
for a diversity of experience. Another commenter recommended that Sec.
410.1902(e) require that all PRP members be neutral and detached
because they believe this would be consistent with State child welfare
laws and court decisions.
Response: The PRP is a three-member panel of ORR senior-level
career staff, and as such is not organizationally located within any
certain unit of ORR. ORR's policy currently requires PRP panel members
have experience in child welfare, including restorative justice,
adverse childhood experiences, special populations, and/or mental
health. ORR is finalizing under Sec. 410.1902(e) that panel members
shall not have been involved with the decision to step-up an
unaccompanied child to a restrictive placement and believes this
requirement is sufficient to ensure an impartial reconsideration of
such placements.
Final Rule Action: After consideration of public comments, ORR is
finalizing its proposal as proposed, with the following revisions and
additions: At Sec. 410.1902(a) ORR is adding that ``All determinations
to place an unaccompanied child in a secure facility that is not a
residential treatment center will be reviewed and approved by ORR
federal field staff.'' ORR is also adding at Sec. 410.1902(a) that
``Where the minor does not have an attorney, ORR shall encourage the
care provider facility to seek assistance for the minor from a
contracted legal service provider or child advocate'', and that ``An
unaccompanied child shall be provided access at the PRP hearing to
interpretation services in their native or preferred language,
depending on the unaccompanied child's preference, and in a way they
effectively understand.'' At 410.1902(a), ORR is stating ``at no cost
to the Federal Government'' instead of ``if preferred.'' At Sec.
410.1902(a) ORR is adding the word ``written'' before request so that
the sentence reads ``An unaccompanied child that does not wish to
request a hearing may also have their placement reconsidered by
submitting a written request for a reconsideration along with any
supporting documents as evidence.'' At Sec. 410.1902(a) ORR is adding
``child and ORR'' so that the sentence reads ``An unaccompanied child
may present witnesses and cross-examine ORR's witnesses, if such child
and ORR witnesses are willing to voluntarily testify.'' At Sec.
410.1902(b), ORR is adding that ``ORR shall permit the minor or the
minor's counsel to review the evidence in support of step-up or
continued restrictive placement, and any countervailing or otherwise
unfavorable evidence, within a reasonable time before the PRP review is
conducted. ORR shall also share the unaccompanied child's complete case
file apart from any legally required redactions with their counsel
within a reasonable timeframe to be established by ORR to assist in the
legal representation of the unaccompanied child.'' At Sec.
410.1902(c), ORR is revising the text to state that ``ORR shall convene
the PRP within 7 days of a child's request for a hearing. ORR may
institute procedures to request clarification or additional evidence if
warranted, or to extend the 7-day deadline as necessary under specified
circumstances.'' At Sec. 410.1902(d), ORR is revising the text to
state that ``The PRP shall issue a written decision in the child's
native or preferred language within 7 days of a hearing and submission
of evidence or, if no hearing or review of additional evidence is
requested, within 7 days following receipt of a child's written
statement. ORR may institute procedures to request clarification or
additional evidence if warranted, or to extend the 7-day deadline as
necessary under specified circumstances.'' Finally, ORR is revising
language at Sec. 410.1902(e) to replace ``must'' with ``shall.''
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,
pursuant to the FSA 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.\324\ The
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
[[Page 34569]]
custody of unaccompanied children from the former INS to ORR.\325\
ORR proposed in the NPRM at Sec. 410.1903, 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 hearing officer (88 FR 68960 through 68962). Further, these
hearings would take place at HHS rather than the Department of Justice
(DOJ). ORR explained in the NPRM that this arrangement would parallel
the arrangement under the FSA because when the FSA was enacted, the
former INS, which then was responsible for the care and custody of
unaccompanied children, and the immigration courts were located in the
same department, DOJ. Similarly, ORR proposed in the NPRM the
availability of risk determination hearings before hearing officers who
are within the same department, HHS, but independent of ORR. In the
NPRM, ORR explained that it 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 officer schedules have greater availability in the short term,
particularly as compared to immigration courts. ORR noted in the NPRM
that it codified a similar provision in the 2019 Final Rule which the
Ninth Circuit held was consistent with the FSA, except to the extent
the 2019 Final Rule did not automatically place unaccompanied children
in restrictive placements in bond hearings.\326\ ORR proposed in the
NPRM 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.
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,\327\ ORR does not
require payment of money in relation to any aspect of its care and
placement of unaccompanied children. 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. 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.\328\ 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 and approved. ORR also notes
that if an unaccompanied child is found not to be a danger to self or
others through a hearing described in this section, such a finding may
be relevant to questions of placement and release, but any change of
placement or potential release must be implemented consistent with the
other requirements of this part (e.g., subparts B, C, and G).
Therefore, in hearings described in this section, an ALJ is unable to
order the release or change in placement of an unaccompanied child. The
ALJ rules only on the question of danger to self or the community.
ORR proposed in the NPRM at Sec. 410.1903(a), to 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 (88 FR 68960). For all other unaccompanied children in ORR
custody, ORR proposed in the NPRM that they may request such a hearing.
ORR proposed in the NPRM a process for providing notifications and
receiving requests related to risk determination hearings (88 FR
68960). ORR proposed in the NPRM at Sec. 410.1903(a)(1), to 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. ORR proposed in the NPRM at Sec.
410.1903(a)(2), that 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 proposed in the NPRM 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 proposed in the NPRM procedures related to risk determination
hearings so that the roles of each party are clear (88 FR 68960 through
68961). ORR proposed in the NPRM at Sec. 410.1903(b), that it 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. ORR
proposed in the NPRM 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 and their legal
counsel in a timely manner for these purposes. ORR proposed in the NPRM
at Sec. 410.1903(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 proposed in the NPRM 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 also proposed regulations related to hearing officers'
decisions in risk determination hearings (88 FR 68961). First, ORR
proposed in the NPRM at Sec. 410.1903(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 opportunity 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, under Sec.
410.1903(e) of the NPRM, ORR proposed that decisions under this section
may be appealed to the Assistant Secretary of ACF, or the Assistant
[[Page 34570]]
Secretary's designee. ORR proposed in the NPRM 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, ORR proposed in the NPRM at Sec.
410.1903(e)(3), 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 proposed in the NPRM 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 considered 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 proposed approach, the
official conducting de novo review would be able to reverse hearing
officer determinations. But 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. ORR requested
comments as to whether it should adopt this alternative scheme.
ORR reiterates that in the context of risk determination hearings,
although a finding of non-dangerousness may ultimately 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, because release or change of
placement implicate additional requirements described in this part
(e.g., sponsor suitability assessment, in the case of release; or
available bed space at a suitable care provider facility, in the case
of a change of placement). Placement and release decision-making
authority is vested in the Director of ORR under the HSA and
TVPRA.\329\ 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. Having said that, 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 determine flight risk for purposes of deciding
whether a child will be released.
ORR proposed in the NPRM at Sec. 410.1903(f) that decisions under
this section would be final and binding on the Department, meaning, for
example, 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 rule), the ORR
Director would not be able to disregard a determination that an
unaccompanied child is not a danger (88 FR 68961). 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 proposed 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 stated that 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 proposed in the NPRM at 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 (88 FR 68961 through 68962).
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 ordinary procedures on release for unaccompanied
children as discussed in subpart C of this rule.
Finally, ORR proposed in the NPRM at 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 (88 FR 68962). Under this 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 final 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.
For purposes of this final rule, as further explained below at
Final Rule Action, ORR notes that it is amending this section to
reorganize certain provisions proposed in the NPRM, including
consolidation of certain provisions; and to make changes regarding the
burden of proof. ORR is revising Sec. 410.1903(a) to encompass the
[[Page 34571]]
requirements of former Sec. Sec. 410.1903(a) and (a)(1) in the NPRM so
that it states ``All unaccompanied children in restrictive placements
based on a finding of dangerousness 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 self or to the community if released, unless the
unaccompanied child indicates in writing that they refuse such a
hearing. Unaccompanied children placed in restrictive placements shall
receive a written 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.''
ORR is revising new Sec. 410.1903(b) to incorporate the
requirements of former Sec. 410.1903(a)(2) in the NPRM so that it
states ``All other unaccompanied children in ORR custody may request a
hearing under this section to determine, through a written decision,
whether the unaccompanied child would present a risk of danger to self
or to the community if released. 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.''
For clarity, ORR is also revising new Sec. 410.1903(i) (formerly
Sec. 410.1903(g) in the NPRM) to remove the phrase ``and neither the
hearing officer nor the Assistant Secretary may order the unaccompanied
child released'' and new Sec. 410.1903(j) (formerly Sec. 410.1903(h)
to remove ``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 the level of custody for the
unaccompanied child'' and replace it with ``Determinations under this
section will not compel an unaccompanied child's release; nor will
determinations under this section compel transfer of an unaccompanied
child to a different placement. Regardless of the outcome of a risk
determination hearing or appeal, an unaccompanied child may not be
released unless ORR identifies a safe and appropriate placement
pursuant to subpart C; and regardless of the outcome of a risk
determination hearing or appeal, an unaccompanied child may only be
transferred to another placement by ORR pursuant to requirements set
forth at subparts B and G.''
Comment: One commenter requested clarity regarding where
independent hearing officers within HHS would be located
organizationally and emphasized the importance of hearing officers
having the proper knowledge and qualifications to preside over risk
determination hearings. Another commenter was concerned that a hearing
before a hearing officer within HHS would eliminate the right of an
unaccompanied child to have a hearing before an immigration judge, and
that there would be an inherent conflict of interest between ORR's role
as custodian and decision-maker relating to release.
Response: The independent HHS hearing officers described in this
final rule will be administrative law judges (ALJs) that are situated
within HHS's Departmental Appeals Board (DAB). DAB ALJs are appointed
by the Secretary of HHS, and as such, are independent of ORR. Further,
they have the appropriate experience and credentials to preside over
risk determination hearings.
ORR also notes that the Ninth Circuit found that ORR's similar
requirement in the 2019 Final Rule was not a material departure from
the FSA, and that ``shifting bond redetermination hearings for
unaccompanied minors from immigration judges, adjudicators employed by
the Justice Department, to independent adjudicators employed by HHS is
a permissible interpretation of the Agreement, so long as the shift
does not diminish the due process rights the Agreement guarantees.''
\330\ Consistent with the Ninth Circuit's holding, ORR does not agree
with the commenters that there is a conflict of interest in providing
risk determination hearings before HHS independent hearing officers,
who are ALJs. ORR anticipates that the independent hearing officers
will accrue specialized expertise allowing them to make adjudications
more quickly and effectively than immigration judges who remain largely
unfamiliar with ORR policies and practices.
Comment: One commenter noted that risk determination hearings are
proposed to be available to unaccompanied children determined by ORR to
pose a danger to the community, but that the proposed rule did not
specify the availability of such hearings for a child determined by ORR
to pose a danger to self. The commenter believes that the child must
have the ability to challenge such a determination under this section.
Response: ORR clarifies its intent that risk determination hearings
are available to unaccompanied children determined by ORR to pose a
danger to self. To make that more explicit, in the final rule at Sec.
410.1903(a) ORR will specify that an unaccompanied child whom ORR
determines is a ``danger to self or to the community if released'' will
have the opportunity to challenge such a determination in a risk
determination hearing.
Comment: One commenter believes that ORR should guarantee the
appointment of counsel to represent unaccompanied children in risk
determination hearings, as the outcome directly impacts their liberty.
Response: ORR will make legal services available for unaccompanied
children, subject to budget appropriations, consistent with 8 U.S.C.
1232(c)(5) and as finalized under Sec. 410.1309 of this part. ORR is
not able to guarantee the appointment of counsel to represent
unaccompanied children in risk determination hearings due to budgetary
fluctuations year to year.
Comment: One commenter expressed concern that some unaccompanied
children who are not placed in a restrictive placement may still be
determined as dangerous and subject to restrictive measures even though
they are not placed in a restrictive placement, and should nevertheless
receive an automatic risk determination hearing, like unaccompanied
children who are placed in a restrictive placement.
Response: ORR will provide automatic risk determination hearings to
unaccompanied children in restrictive placements due to a determination
of dangerousness. A restrictive placement may deprive an unaccompanied
child of certain liberties due to stricter security measures in those
facilities. ORR does not believe that unaccompanied children in non-
restrictive facilities need automatic hearings because such settings do
not restrict children's liberty to the same degree. Yet even so, under
this final rule, all unaccompanied children in non-restrictive
placements may request a risk determination hearing. ORR expects,
however, that in cases involving unaccompanied children in non-
restrictive placements, it typically would not consider the children to
be a danger to self or others, and so it would send notice to the ALJ
of that point. Subject to the relevant procedures established by the
DAB, such notice may obviate the need for a hearing. ORR informs all
unaccompanied children of their ability to request a risk determination
hearing during their orientation and makes
[[Page 34572]]
request forms available to them at all times.
Comment: One commenter requested clarification of what constitutes
a finding of dangerousness under Sec. 410.1903(a)(2).
Response: ORR refers the commenter to the factors it considers for
placing unaccompanied children under Sec. 410.1103(b), including
whether an unaccompanied child presents a danger to self or others,
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 (88 FR 68921).
Comment: One commenter stated that ORR should inform children of
their right to contest the hearing officer's findings following a risk
determination hearing.
Response: As stated in proposed Sec. 410.1903(e), an
administrative law judge'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 (88 FR 68961). ORR will
ensure the child is aware of the right to appeal in a written notice
provided consistent with Sec. 410.1903(a).
Comment: A few commenters recommended that ORR unambiguously state
in the regulations that a child has a right to review ORR's evidence
within a reasonable time in advance of a risk determination hearing or,
alternatively, specify that ORR's evidence at the risk determination
hearing will be limited to the evidence provided to the child as part
of the NOP in a restrictive placement.
A few commenters also stated the proposed regulations should
further clarify that ORR bears the burden of proof, with one commenter
recommending a beyond a reasonable doubt standard and others suggesting
a clear and convincing standard. Another commenter recommended that ORR
should bear the burden of proving the legitimacy of placement
determinations, which commenter asserted is supported by Federal case
law.
Response: In response to the commenters' suggestions about the
burden of proof in a risk determination hearing, ORR has revised Sec.
410.1903(c) to state that ORR will bear the burden of proof by clear
and convincing evidence that the unaccompanied child would pose a
danger to self or others if released from ORR's custody. This revision
is consistent with the burden applied in PRP reviews, as discussed in
Sec. 410.1902.
In order to enable an unaccompanied child and their counsel to
prepare for a risk determination hearing, ORR has clarified at Sec.
410.1903(e) that within a reasonable time prior to a hearing, ORR will
provide to the unaccompanied child and their counsel the evidence and
information supporting ORR's determination, including the evidentiary
record.
Comment: One commenter recommends that ORR use clearer language to
describe unaccompanied children's right to counsel, a right to present
evidence, and a right to present and cross-examine witnesses.
Response: Section 410.1903 of the final rule includes additional
procedural protections for unaccompanied children. First, new Sec.
410.1903(d) (previously Sec. 410.1903(c) in the NPRM) states that the
unaccompanied child may be represented by a person of their choosing,
which may include counsel, and may present oral and written evidence to
the hearing officer and may appear by video or teleconference. Also,
new Sec. 410.1903(e) requires ORR to provide the unaccompanied child
and their counsel the evidence and information supporting ORR's
dangerousness determination, including the evidentiary record, within a
reasonable time prior to the hearing.
Comment: A few commenters stated that only allowing an
unaccompanied child to seek another hearing under this section if they
can demonstrate a material change in circumstances is in violation of
the FSA's stated policy favoring release. The commenters expressed
concern that ORR may request reconsideration every month while barring
the child from requesting reconsideration absent a material change and
recommended that ORR either establish a policy permitting recurring
risk determination hearings for children detained long-term or permit
an unaccompanied child to request a new hearing under the same bases as
ORR.
Response: As an initial matter, the FSA did not include a right to
recurring bond hearings, which, among other things, would create an
enormous administrative burden on the Agency without offering any
additional procedural protections to an unaccompanied child. The final
rule permits the unaccompanied child to request a new hearing if they
can demonstrate a ``material change in circumstances.'' Without such a
material change in circumstances, the hearing officer would have no new
evidence to review and consider, rendering a new hearing superfluous.
ORR is revising new Sec. 410.1903(h) (previously Sec. 410.1903(f) in
the NPRM), however, to state that ORR may only seek a new hearing if
ORR can show a material change in circumstances as well, which is
consistent with the unaccompanied child's standard for reconsideration.
Final Rule Action: After consideration of public comments, ORR is
finalizing Sec. 410.1903 as follows: ORR is updating throughout Sec.
410.1903 to replace ``danger to the community'' with ``danger to self
or to the community;'' ORR is revising Sec. 410.1903(a) to encompass
the requirements of former Sec. Sec. 410.1903(a) and (a)(1) in the
NPRM so that it states, ``All unaccompanied children in restrictive
placements based on a finding of dangerousness 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 self or to the community if released,
unless the unaccompanied child indicates in writing that they refuse
such a hearing. Unaccompanied children placed in restrictive placements
shall receive a written 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.''
ORR is revising new Sec. 410.1903(b) to incorporate the
requirements of former Sec. 410.1903(a)(2) in the NPRM so that it
states ``All other unaccompanied children in ORR custody may request a
hearing under this section to determine, through a written decision,
whether the unaccompanied child would present a risk of danger to self
or to the community if released. 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;'' at new Sec.
410.1903(c) (formerly Sec. 410.1903(b) in the NPRM) to use the term
``proof'' instead of ``production'' and ``persuasion'', at new Sec.
410.1903(h) (formerly Sec. 410.1903(f) in the NPRM) to remove the
phrase ``if at least one month has passed since the original decision,
and'' and replace it with ``only if;'' at new Sec. 410.1903(i)
(formerly Sec. 410.1903(g) in the NPRM) to remove the phrase ``and
neither the hearing officer nor the Assistant Secretary may order the
unaccompanied child released;'' and new Sec. 410.1903(j)
[[Page 34573]]
(formerly Sec. 410.1903(h) in the NPRM) to remove ``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 the level
of custody for the unaccompanied child'' and replace it with
``Determinations under this section will not compel an unaccompanied
child's release; nor will determinations under this section compel
transfer of an unaccompanied child to a different placement. Regardless
of the outcome of a risk determination hearing or appeal, an
unaccompanied child may not be released unless ORR identifies a safe
and appropriate placement pursuant to subpart C; and regardless of the
outcome of a risk determination hearing or appeal, an unaccompanied
child may only be transferred to another placement by ORR pursuant to
requirements set forth at subparts B and G.''
Subpart K--UC Office of the Ombuds
Subpart K of this final rule is issued by the Secretary of HHS
pursuant to his retained authority under the TVPRA, rather than by ORR.
This is to ensure the new office's independence from ORR.
The NPRM proposed to establish an independent ombuds office that
would promote important protections for all children in ORR care (88 FR
68962). An ombuds office to address unaccompanied children's issues
does not currently exist, and HHS 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.'' \331\ 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 HHS or ORR to take certain actions, HHS
believes an Office of the Ombuds would provide a mechanism by which
unaccompanied children, sponsors, and other stakeholders, including
federal staff and care provider facility staff, could confidentially
raise concerns with an independent, impartial entity that could conduct
investigations and make recommendations 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. HHS believes that an Office of the Ombudsman is a
sound solution to serve a similar function as the oversight currently
provided by the Flores monitor. While this section would not create an
oversight mechanism with authorities that equate with court oversight
under a consent decree, HHS 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 HHS and ORR to potentially resolve
such issues and publish reports on its activities. HHS therefore
proposed to add new subpart K to part 410 to establish the UC Office of
the Ombuds.
Key Principles of an Office of the Ombuds
HHS 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.\332\ 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.\333\ These attributes align with HHS'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. The NPRM
therefore included a proposal for 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
(88 FR 68962).
Comment: A few commenters recommended the Office of the Ombuds
finalize minimum standards for a credible review process based upon the
United States Ombudsman Association (USOA) Governmental Ombudsman
Standards.
Response: HHS thanks commenters and may take into consideration
whether to adopt standards for a credible review process for the new
Office of the Ombuds consistent with those from the USOA Governmental
Ombudsman Standards and from other nationally recognized ombuds
organizations. However, HHS notes that such standards would be
promulgated through a future regulatory or subregulatory process to
more efficiently reflect standards as they evolve. Further, HHS
anticipates this future process would be undertaken by ACF or the
Office of the Ombuds, consistent with its independence from ORR.
Section 410.2000 Establishment of the UC Office of the Ombuds
Sec. 410.2000 of the NPRM described the establishment of a UC
Office of the Ombuds (88 FR 68962). As the literature identified
independence of the office as one of the key standards of an ombuds,
HHS proposed in the NPRM at 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. HHS requested input on
options relating to placement and reporting structure of this office
within ORR or in another part of ACF.
HHS proposed in the NPRM at Sec. 410.2000(b), that the UC Office
of the Ombuds would be an independent, impartial office with authority
to receive and investigate complaints and concerns related to
unaccompanied children's experiences in ORR care confidentially and
informally. This paragraph captured two additional key standards of an
ombuds identified by literature: impartiality and confidentiality. In
the NPRM, HHS noted 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. HHS stated
that it 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. Further, the UC
Office of the Ombuds would not supplant other roles and
responsibilities of other entities such as the HHS Office
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of Inspector General, ORR's monitoring activities of its grants and
contracts, or services included in this rule, such as child advocate
services (discussed in Sec. 410.1308 of the NPRM) or legal services
(discussed in Sec. 410.1309 of the NPRM). Rather, as proposed in the
NPRM, 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.
Comment: Several commenters supported the proposal to establish the
Office of the Ombuds.
Response: ORR thanks commenters for their support.
Comment: A few commenters did not support the establishment of the
Office of the Ombuds, due to concern about the authority to establish
the office, the ability of other Government agencies to fulfill the
proposed role, and the cost to establish the office.
Response: HHS notes that the TVPRA requires it, among other
agencies, 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.\334\ HHS
and ORR have identified the need for this office in order to ensure the
effective implementation of HHS's and ORR's statutory responsibilities.
An ombuds office, within HHS or ACF, to address unaccompanied
children's issues does not currently exist. As a result, HHS proposed
to create an independent ombuds office to specifically promote
protections for all children in ORR care. HHS further refers the
commenters to the discussion of costs to establish the Ombuds Office at
Section VI.
Comment: One commenter requested clarification about the role of
the Office of the Ombuds given that ORR has an internal Prevention of
Child Abuse and Neglect (PCAN) unit.
Response: The Office of the Ombuds and the PCAN Team perform two
key, but distinct, functions. The PCAN Team is situated within ORR and
oversees compliance with policies and procedures related to allegations
of staff-perpetrated child abuse and neglect arising at care provider
facilities.
In contrast, the Ombuds for the UC Program will be situated outside
of ORR, within ACF. As discussed above, and as codified in this final
rule at Sec. 410.2000, it will 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. Additionally, the
Ombuds will publish annual findings from its activities, will report to
the ACF Assistant Secretary, and will be managed as an entity distinct
from ORR.
Comment: Several commenters supported the establishment of the
Office of the Ombuds but expressed concern about its independence and
authority as the Office is not required to report to Congress.
Commenters also recommended the office report to the HHS Secretary.
Response: The agency's literature review pertaining to standards of
practice and establishment of ombuds offices identified independence,
confidentiality, and impartiality as core standards of any Federal
Ombuds office. These attributes will be present in the Office of the
Ombuds as it exists within ACF. The ability of the Office of the Ombuds
to refer concerns to the HHS Office of the Inspector General as well as
other Federal agencies such as DOJ, and to Congress, are examples of
the Office's ability to act independently while situated within ACF.
Comment: Several commenters supported the Office of the Ombuds and
recommended ensuring the Office's ability to access system data to
identify trends as part of its oversight and enforcement authority.
Several commenters also recommended an annual review process to
evaluate the Office of the Ombuds' effectiveness.
Response: HHS notes that ACF may take into consideration the
recommendations regarding access to system data in future policymaking.
ACF may consider adopting an annual review process to evaluate the
Office of the Ombuds' effectiveness as ACF develops practices,
policies, and procedures for the Office of the Ombuds consistent with
practices, policies, and procedures from nationally recognized ombuds
organizations.
Final Rule Action: After consideration of public comments, this
section is finalized as proposed.
Section 410.2001 UC Office of the Ombuds Policies and Procedures;
Contact Information
HHS proposed in the NPRM at Sec. 410.2001(a) and (b), that 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 (88 FR 68963). HHS requested comments identifying
potential standards, practices, and policies and procedures for ombuds
consideration. For example, HHS requested 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 should
be considered.
HHS further proposed at Sec. 410.2001(c) of the NPRM 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. Per the
NPRM, 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. HHS'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.\335\ HHS
proposed in the NPRM providing the UC Office of the Ombuds with the
discretion to determine the best approaches to providing outreach and
awareness of the office's 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.
Comment: A few commenters supported the Office of the Ombuds making
information about the office available and understandable by
unaccompanied children, paying special attention to the needs of
Indigenous children, and recommended using verbal and written means to
share the information with unaccompanied children, include anti-
retaliation messages in the information.
Response: HHS notes that ACF will take into consideration in future
policymaking the recommendation to share information about the Office
of the Ombuds with unaccompanied children verbally and in writing. ACF
will share information about the office in a child appropriate way
including information about anti-retaliation messaging.
Comment: Several commenters supported the Office of the Ombuds and
recommended that the Office of the Ombuds follow accepted best
practices for ombuds including confidentiality, transparency,
impartiality, accessibility,
[[Page 34575]]
and a code of ethics, and take a child-rights centered approach.
Response: The value of the Office of the Ombuds is predicated on
appropriate professional standards of practice and definitional
characteristics.\336\ The office will adhere to core standards
associated with federal ombuds--independence, confidentiality and
impartiality--and common characteristics that include a commitment to
fairness.\337\ HHS expects an Office of the Ombuds created to address
issues pertaining to unaccompanied children would adhere to the
professional attributes associated with ombuds while also specifically
protecting and advancing the interests and the rights of children in
the care and custody of ORR.
Comment: One commenter requested clarification on the interaction
of the Office of the Ombuds and the ORR Policy Guide relating to
investigative authority.
Response: The Office of the Ombuds will sit outside of ORR, within
ACF, will be independent of ORR, and have authority and responsibility
to receive, investigate and informally address complaints about
Government actions, make findings and recommendations and publicize
them when appropriate. The ORR Policy Guide is a guide for the actions
of ORR and its care providers.
Comment: Several commenters recommended that HHS provide more
details about communicating with the Office of the Ombuds, including
establishing a timeframe to enable public contact with the office, the
widespread publication of a toll-free hotline, contact information for
Office of the Ombuds on the agency website, and a process to annually
review the contact method effectiveness.
Response: HHS notes that ACF will provide further information about
methods made available to the public to communicate with the Office of
the Ombuds through subregulatory guidance, as such information may
change over time.
Final Rule Action: After consideration of public comments, this
section is finalized as proposed.
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.\338\ HHS 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.
HHS proposed in the NPRM at Sec. 410.2002(a), 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 implementation 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 (88 FR 68963). HHS proposed in the NPRM that
the UC Office of the Ombuds may request information and documents from
ORR and ORR care provider facilities and shall be provided with such
information and documents to the fullest extent possible. HHS further
proposed that the UC Office of the Ombuds may recommend new or revised
UC Program policies and procedures, or other process improvements. HHS
included these anticipated areas of activity at Sec. 410.2002(a) of
the NPRM.
HHS 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.
HHS proposed in the NPRM 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.
HHS proposed in the NPRM at Sec. 410.2002(b), 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 HHS Office of Inspector General (OIG),
as appropriate (88 FR 68963).
Finally, to assist the UC Office of the Ombuds in accomplishing its
responsibilities, HHS proposed in the NPRM at 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 while
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 (88 FR 68963).
Comment: Many commenters supported the proposed scope and
responsibilities.
Response: HHS thanks the commenters for their support.
Comment: A few commenters expressed support for the scope of the
Office of Ombuds, but also expressed concern the office would not be
able to refer matters to State licensing agencies for investigation and
enforcement.
Response: HHS believes the Office of the Ombuds would provide a
mechanism for independent review of care provider facilities. HHS
believes that Sec. 410.2002(b) broadly provides the Ombuds office with
making referrals to ``offices with jurisdiction over a particular
matter'' which could include State licensing entities.
Comment: A few commenters requested clarification if the reference
to Sec. 410.2100 in the regulation text at proposed Sec. 410.2002(a)
was in error as the regulatory text does not include Sec. 410.2100.
Response: HHS thanks commenters for identifying the error. The
correct reference is to Sec. 410.2001 and will be updated in the final
rule regulatory text at Sec. 410.2002(a).
Comment: A few commenters supported the Office of the Ombuds and
recommended the Office of the Ombuds scope and responsibilities include
protections from retaliation against those reporting concerns for the
care of unaccompanied children to the office.
Response: HHS notes that ACF may consider measures in future
policymaking that would clarify the protections against retaliation
available for individuals that would report concerns about the care of
unaccompanied children in ORR care to the Office of the Ombuds. In this
rule, the Office of the Ombuds is being created by the Secretary and
not ORR. In the future, the Secretary can advance requirements through
policymaking that would be mandatory for the Office to implement,
including protections from
[[Page 34576]]
retaliation by HHS against those who make reports to the Office.
Comment: A few commenters recommended removing the term ``non-
binding'' from the description of the office's recommendations to ORR
in Sec. 410.2002(a)(10), adding a timeframe for ORR written responses
to the recommendations, and reporting recommendations and responses to
Congress.
Response: HHS believes the fact that Office of the Ombuds
recommendations will not constitute a binding decision on the agency is
aligned with common characteristics among Federal ombuds offices and
will not impede the ability of the Office of the Ombuds to conduct
investigations and make recommendations and to refer concerns to other
Federal agencies. HHS notes that ACF will provide further details
regarding timeframes for ORR written responses and the process for
reporting recommendations and responses to Congress through
subregulatory guidance.
Comment: Several commenters support the Office of the Ombuds
proposed scope and responsibilities and recommend the Ombuds publish an
annual report describing activities conducted in the prior year,
summarize child welfare trends and challenges experienced by ORR, and
submit the annual reports to Congress.
Response: HHS may take this into consideration for future
policymaking.
Comment: Many commenters recommended expanding the Office of the
Ombuds' scope and responsibilities, including authority for
comprehensive oversight of facilities located in states where State
licensure is unavailable because the facility is housing unaccompanied
children, and specifying ORR responsibilities in response to Office of
the Ombuds reports and recommendations such as providing written
responses and corrective actions ORR agrees to take. One commenter
recommended a new proposal to provide the Ombuds unobstructed access to
any facility to meet confidentially with facility staff, ORR employees
and contractors and any unaccompanied children, and to ensure
unobstructed access by the Ombuds to information pertinent to the care
and custody of an unaccompanied child. One commenter recommended a new
subsection to give the Ombuds investigation and enforcement authority
for section 504 violations. One commenter recommended a requirement
that the Ombuds seek input from the unaccompanied children and former
unaccompanied children concerning what affects unaccompanied children
while in ORR care. A few commenters recommended making the proposed
activities in Sec. 410.2002(a) mandatory.
Response: HHS may take these recommendations into consideration for
future policymaking. As provided at Sec. 410.2001(a), the Office of
the Ombuds shall develop appropriate standards, practices, and policies
and procedures, giving consideration to the recommendations by
nationally recognized Ombudsperson organizations. The scope and
responsibilities of the Office shall be consistent with the standards,
practices, and policies and procedures to be developed, and ACF may
consider these recommendations in that context as well.
Comment: A few commenters expressed support for the Office of the
Ombuds scope and responsibilities and recommended expanding the scope
by revising Sec. 410.2002(a)(3) to include access to documents and
information from out-of-network provider facilities and emergency
placements as the office deems the information relevant. Other
commenters recommended specifying the annual reports proposed in Sec.
410.2002(a)(4) will be made to the Director of ORR, the Assistant
Secretary for Children and Families and the Secretary of HHS and will
be publicly available. Several commenters recommended expanding and
strengthening the Office of the Ombuds investigatory authority,
including revising Sec. 410.2002(a)(5) to remove the phrase '' as
necessary'' to expand and strengthen the Ombuds' authority and
recommend specifying what an investigation shall entail, creating a new
subsection to grant the Office of the Ombuds subpoena authority,
expanding Sec. 410.2002(a)(6) to require frequent visits and
monitoring out-of-network facilities and unlicensed facilities
including Influx Care Facilities (ICFs) and Emergency Intake Sites
(EISs).
Response: HHS may take these recommendations into consideration for
future policymaking.
Comment: One commenter recommended revising Sec. 410.2002(a)(12)
so that the responsibility to advise and update the Director of ORR,
Assistant Secretary, and the Secretary on the status of ORR's
implementation and adherence to Federal law or ORR policy is not
discretionary.
Response: HHS may take this recommendation into consideration for
future policymaking.
Comment: One commenter recommended revising Sec. 410.2002(a)(8) so
the Ombuds resolves complaints or concerns raised by interested parties
as it relates to ORR's implementation or adherence to Federal law or
ORR regulations and policy and HHS policy.
Response: HHS may take this recommendation into consideration for
future policymaking.
Comment: One commenter recommended that Sec. 410.2002(a) include a
new subsection stating the Office of the Ombuds shall create processes
for conducting coaching, mediation, and dispute resolution for reports
it receives and the processes invite participation by all interested
parties.
Response: HHS may take these recommendations into consideration for
future policymaking.
Final Rule Action: After consideration of public comments, the
reference at Sec. 410.2002(a) is being updated to correctly refer to
Sec. 410.2001 and the section is otherwise finalized as proposed.
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.\339\ 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.\340\ To align with the recommendations,
HHS proposed in the NPRM at Sec. 410.2003(a) that the UC Ombuds should
be hired as a career civil servant. HHS 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
(88 FR 68963). HHS proposed in the NPRM at Sec. 410.2003(b), 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, HHS proposed in the NPRM at 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
[[Page 34577]]
Sec. 410.2003(d), HHS proposed in the NPRM that the UC Ombuds shall
establish procedures for training, certification, and continuing
education for staff and other representatives of the Office.
Comment: One commenter supported the proposed Sec. 410.2003.
Response: HHS thanks the commenter for its support.
Comment: Several commenters supported the proposal and recommended
strengthening the requirements in Sec. 410.2003(b) for the Ombuds
position, including possessing a career's worth of demonstrated
leadership in the field of public child welfare administration ideally
with experience in the plight of unaccompanied children; must be
inclusive of LGBTQI+ affirming best practices; possess familiarity with
HHS functions, policies and procedures; experience in establishment and
assessment of Quality Assurance/Improvement practices; and membership
in good standing of a nationally recognized association of ombudsmen or
State bar association throughout the course of employment as the
Ombuds.
Response: HHS agrees that the Ombuds should possess demonstrated
leadership in public child welfare administration ideally experienced
with the experiences of unaccompanied children, inclusive of LGBTQI+
affirming best practices, content, and knowledge, experienced in
quality assurance and improvement practices, has familiarity with HHS
functions, policies and procedures and recognized as a member in good
standing of a State bar association or association of ombudsmen. HHS
notes that ACF will provide further details regarding the professional
experiences and credentials considered for the Ombuds position through
subregulatory guidance.
Comment: Several commenters supported the proposal for the Ombuds
to hire additional staff but expressed concern about the lack of
guidance on structure, framework or staffing criteria. Commenters also
recommended that Ombuds staff include individuals with lived experience
as an unaccompanied child and there are sufficient staff for timely
responses to reports received from across the nation.
Response: HHS notes that ACF may provide further details regarding
the Office of the Ombuds' structure, framework or staffing criteria
through future policymaking or subregulatory guidance. HHS believes
that Ombuds staff should include individuals with appropriate
professional and personal experiences that are relevant to the
functions of the office, which may include lived experience as an
unaccompanied child. HHS agrees that it is important that the Office of
the Ombuds be sufficiently staffed to ensure timely responses to
reports.
Comment: A few commenters supported the proposal the Ombuds
establish procedures for training, certification, and continuing
education for staff, and recommend consulting the ACUS framework for
training standards that link the Ombuds to professional ombuds
organizations and establish minimum standards for training and
certification that include but are not limited to mandatory reporting
laws and ombuds standards and practices offered by ombuds professional
associations or training programs.
Response: HHS may take these recommendations into consideration for
future policymaking.
Comment: One commenter did not support the proposal that the Ombuds
shall be a career civil servant, and recommended the Ombuds be
appointed by, and report directly to, the HHS Secretary to ensure
appropriate level of authority and impact.
Response: As discussed in the Background section, the Secretary of
HHS delegated the authority under the TVPRA to the Assistant Secretary
for Children and Families. The Office of the Ombuds will be managed as
an entity distinct from ORR. HHS believes the unaccompanied children
Ombuds should be a career civil servant, rather than a political
appointee, to support the goal of impartiality. Additionally, HHS
believes the Office of the Ombuds should report to the ACF Assistant
Secretary to be well positioned to offer recommendations to improve ORR
program processes and procedures.
Final Rule Action: After consideration of public comments, this
section is being finalized as proposed.
Section 410.2004 Confidentiality
HHS proposed in the NPRM at Sec. 410.2004(a), 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 (88 FR 68964). Additionally, the
Ombuds is prohibited from using or sharing information for any
immigration enforcement related purpose. This provision 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.\341\ HHS also proposed at Sec. 410.2004(b) that the UC Office
of the Ombuds may accept reports from anonymous reporters.
To align to these goals and to help in the development of the UC
Office of the Ombuds, HHS requested 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.
Comment: A few commenters supported the proposal at Sec.
410.2004(a), noting that confidentiality will help to establish trust
with the unaccompanied child.
Response: HHS thanks the commenters for their support.
Comment: One commenter supported the proposal at Sec. 410.2004(a)
that the Ombuds shall manage files and records in a manner that
preserves confidentiality and recommended adding a statement that an
exception may apply dependent on circumstances.
Response: HHS may consider this recommendation in future
policymaking.
Comment: A few commenters expressed concern that the proposal does
not explicitly indicate whether the Ombuds and associated staff are
considered mandated reporters and recommended establishing the
expectation that the Ombuds and associated staff are mandated reporters
and required to adhere to mandated reporting laws in States where they
are acting in their professional capacity.
Response: HHS may take this recommendation into consideration in
future policymaking.
Comment: One commenter recommended revising the proposal at Sec.
410.2004(b) so the Office of the Ombuds shall accept reports of
concerns from anonymous reporters.
Response: Under Sec. 410.2004(b) as proposed, the Office of the
Ombuds may accept reports of concern from anonymous reporters. HHS
believes this language sufficiently provides the Office of the Ombuds
the discretion necessary to review reports of concern from anonymous
reporters on a case-by-case basis.
Final Rule Action: After consideration of public comments, this
section is being finalized as proposed.
Request for Information
As stated in the NPRM, HHS believes the UC Office of the Ombuds
should be intentionally designed and requests any other comments and
input on how the
[[Page 34578]]
Ombuds should handle concerns relating to ORR practices (88 FR 68964).
HHS therefore included in the NPRM a request for information for
additional public input on the proposed UC Office of the Ombuds. HHS
sought public comment on whether the Office should provide services
relating to oversight in other areas, including more generalized
concerns about ORR conduct and services. HHS also sought comment on
potential intersections between the Ombuds and other avenues for
mitigation or redress of grievances (e.g., the ORR Placement Review
Panel). Additionally, HHS sought comment on additional independent and
impartial mechanisms to address grievances or complaints related to
children's experiences in ORR care.
Finally, HHS welcomed comments on other organizational and
structural matters relevant to the proposed UC Office of the Ombuds.
Comment: A few commenters recommended that the Office of the Ombuds
establish relationships with State and local law enforcement, CPS
agencies and other actors, enter into memoranda of understanding with
DHS, Office of the Immigration Detention Ombudsman (OIDO), and Office
for Civil Rights and Civil Liberties (CRCL) to address oversight of
unaccompanied children in Federal custody, and requiring the Office of
the Ombuds to collaborate with State and local ombuds as appropriate.
Response: HHS may consider these recommendations in future
policymaking.
Comment: A few commenters recommended a new provision requiring
ongoing engagement by the Ombuds and community stakeholders, FSA class
counsel, and the FSA court-appointed monitor to ensure the Ombuds is
aware of stakeholder concerns and priorities, and that the Ombuds
should invite collaboration with oversight entities and nonprofit and
international organizations with expertise in monitoring and protecting
children's rights.
Response: HHS may take into consideration these recommendations in
future policymaking.
Comment: A few commenters recommended clarification on the
connection between the ORR NCC and the Office of the Ombuds to
streamline reporting concerns and reduce confusion.
Response: The Office of the Ombuds is an entity situated outside of
ORR, within ACF, and with authority and responsibility to receive,
investigate and informally address complaints about Government actions.
The ORR NCC is funded directly by ORR. Given their distinct roles,
concerns reported to the ORR NCC would not be forwarded to the Office
of the Ombuds.
Comment: A few commenters recommended increasing the office size to
promote accessibility to unaccompanied children throughout the United
States.
Response: HHS may take this recommendation into consideration in
future policymaking.
Comment: One commenter recommended extending the scope of the
Office of the Ombuds to unaccompanied children within 6 months post-
release and to youth who are trafficking victims to age 18.
Response: The focus of the Ombuds office will be related to the
care, treatment, and access to services for children in ORR custody.
Comment: One commenter recommended the Office of the Ombuds
prioritize investigating and publishing a comprehensive report
reviewing systematic gaps in care of Indigenous unaccompanied children
and consult Indigenous experts in the report's development.
Response: The Office of the Ombuds will investigate and report on
all unaccompanied children in ORR custody pursuant to requirements
under Sec. 410.2002(a).
Final Rule Action: ACF welcomed the additional input on the
organizational and structural matters of the Office of the Ombuds and
may take these recommendations into consideration in future
policymaking.
V. 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 final rule does not require information
collections for which HHS plans to seek OMB approval.
Under Sec. 410.1902, as discussed in section IV. of this final
rule, ORR is finalizing its proposal 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.
Under Sec. 410.1903, as discussed in section IV. of this final
rule, ORR is finalizing its proposal to establish processes for risk
determination hearings. As part of these processes, five forms will be
made available to unaccompanied children placed in ORR custody by their
case manager or by individuals associated with the HHS Departmental
Appeals Board, which is responsible for the actual day-to-day
logistical operations of these hearings. These forms will be provided
to all unaccompanied children placed in a restrictive setting (i.e.,
secure facilities (including residential treatment facilities) and
heightened supervision facilities), and to unaccompanied children
placed in other types of facilities upon request. The five forms
include the Request for Risk Determination Hearing (Form RDH-1), the
Risk Determination Hearing Opt-Out (Form RDH-2), the Appointment of
Representation for Risk Determination Hearing (Form RDH-3), the Risk
Determination Hearing Transcript Request (Form RDH-4), and the Request
for Appeal of Risk Determination Hearing (Form RDH-5). ORR estimates
each form will require 10 minutes (0.167 hours) to complete.
Prospective respondents include ORR grantee and contractor staff,
unaccompanied children, parents/legal guardians of unaccompanied
children, attorneys of record, and legal service providers. ORR is
unable to estimate how many of each type of respondent will complete
each form, therefore ORR uses a range to estimate the cost associated
with completing these forms. For this range, ORR assumes unaccompanied
children and parents of unaccompanied children as a minimum and lawyers
as a maximum.
ORR believes that the cost for unaccompanied children and parents
of unaccompanied children undertaking administrative and other tasks on
their own time is a post-tax wage of $24.04/hour. The Valuing Time in
U.S. Department of Health and Human Services Regulatory Impact
Analyses: Conceptual Framework and Best Practices identifies the
approach for valuing time when individuals undertake activities on
their own time.\342\ To derive these costs, a measurement of the usual
weekly earnings of wage and salary workers of $1,145, divided by 40
hours to calculate an hourly pre-tax wage rate of $28.63/
[[Page 34579]]
hour.\343\ This rate is adjusted downwards by an estimate of the
effective tax rate for median income households of about 14 percent
calculated by comparing pre- and post-tax income,\344\ resulting in the
post-tax hourly wage rate of $24.62/hour. Unlike State and private
sector wage adjustments, ORR is not adjusting these wages for fringe
benefits and other indirect costs since the individuals' activities, if
any, would occur outside the scope of their employment. For lawyers,
ORR utilizes the median hourly wage rate of $65.26 in accordance with
the Bureau of Labor Statistics (BLS).\345\ ORR calculates the cost of
overhead, including fringe benefits, at 100 percent of the median
hourly wage. This is necessarily a rough adjustment, both because
fringe benefits and overhead costs vary significantly by employer and
methods of estimating these costs vary widely in the literature.
Nonetheless, ORR believes that doubling the hourly wage rate ($65.26 x
2 = $130.52) to estimate total cost is a reasonably accurate estimation
method. ORR provides burden estimates for forms RDH-1 through RDH-5 in
Table 1 below.
Table 1--Burden Estimates Associated With Risk Determination Hearing Forms
--------------------------------------------------------------------------------------------------------------------------------------------------------
# Annual Responses per Burden hours Annual total Minimum cost Maximum cost
Form respondents respondent per response burden hours ($24.62/hr) ($130.52/hr)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Request for Risk Determination Hearing (Form RDH-1)..... 435 1 0.167 72.5 $1,785 $9,463
Risk Determination Hearing Opt-Out (Form RDH-2)......... 435 1 0.167 72.5 1,785 9,463
Appointment of Representative for Risk Determination 1740 1 0.167 290 7,140 37,851
Hearing (Form RDH-3)...................................
Risk Determination Hearing Transcript Request (Form RDH- 16 1 0.167 2.67 66 348
4).....................................................
Request for Appeal of Risk Determination Hearing (Form 3 1 0.167 0.5 12 65
RDH-5).................................................
-----------------------------------------------------------------------------------------------
Total............................................... 2,614 1 0.167 438 10,788 57,190
--------------------------------------------------------------------------------------------------------------------------------------------------------
As shown in Table 1, ORR estimates an annual total burden of 438
hours at a cost ranging from $10,788 to $57,190 to complete and submit
forms associated with risk determination hearings. ORR will submit
these information collection estimates to OMB for approval as part of a
new information collection request.
Once the new risk determination hearing forms are in effect, ORR
will prepare a non-substantive change request to the OMB to discontinue
the use of three instruments currently approved under OMB control
number 0970-0565 (expiration date November 30, 2024). The forms to be
replaced by the Risk Determination Hearing forms described above
include the following: Request for a Flores Bond Hearing (Form LRG-7),
Motion Requesting a Bond Hearing--Secure or Staff Secure (Form LRG-8A),
Motion Requesting a Bond Hearing--Non-Secure (Form LRG-8B). ORR assumes
these forms will be completed by a Child, Family, or School Social
Worker at a wage rate of $42.94 per hour.\346\ The currently approved
annual burden hours associated with these three forms is 14 hours at a
cost of $601 (14 hours x $42.94). In aggregate, we estimate a total net
burden of 424 hours (438 hours-14 hours) at a cost ranging from $10,187
($10,788-$601) to $56,589 ($57,190-$601).
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 did not propose 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 did not propose any new
requirements which result in a change in burden.
ORR has reviewed the requirements being codified in subpart D and
determined that, with the exception of the regulatory burden associated
with risk determination hearing forms discussed previously, the
regulatory burden associated with reporting and recordkeeping
requirements is otherwise 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 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 did not propose 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 did not
propose any new requirements which result in a change in burden.
VI. 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
[[Page 34580]]
(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 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 ``an
analytically reasonable forecast of the way the world would look absent
the regulatory action being assessed, including any expected changes to
current conditions over time.'' 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
this rule. 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 final 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.\347\ In contrast, in FY 2022, ORR served 128,904
unaccompanied children and received $5.5 billion in
appropriations.\348\ 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.\349\
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 rule codifies 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 final rule
are already enforced by ORR, ORR does not expect this rule to impose
any additional costs aside from those costs incurred by the Federal
Government to establish the risk determination hearing process
described in Sec. 410.1903 and the UC Office of the Ombuds described
in 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 finalizing the proposal that to the
greatest extent practicable and consistent with section 292 of the INA
(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 finalizing the proposal 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.
Similarly, ORR is finalizing under Sec. 410.1210 that ORR may offer
PRS, which is voluntary for the unaccompanied child and sponsor, for
all released children based on their needs and the extent to which
appropriations are available. As discussed in Section VI, funding for
UC Program services is dependent on annual appropriations from
Congress. While ORR is unable to estimate the extent of the need for
PRS and legal services and the associated costs, the regulations
specifically mention that funding for PRS and legal service providers
are limited to the extent appropriations are available. ACF's
Justification of Estimates for Appropriation Committees provides
additional information regarding the impact of its requested
budget.\350\
At Sec. 410.1903, ORR is finalizing the proposal 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 rule shifts
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 to 4,000 hours to implement. This
estimate reflects 6 to 12 staff working full-time for 2 months
[[Page 34581]]
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 sought public comment on
these estimates but did not receive any comments.
In subpart K, ORR discusses the establishment of an Office of the
Ombuds for the UC Program. Although the scope of the 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. The Ombuds role will
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 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 ($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 percent for overhead, per OMB.\351\
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 percent]. ORR welcomed comments on the proposed staffing
and structure for the Office of the Ombuds but did not receive any
comments other than those previously included in subpart K.
ORR notes that all care provider facilities discussed in this final
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 final 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.
ORR also notes that EIFs discussed in this final rule are operated
by contractors who provide facility management and wraparound services
to safely house and care for unaccompanied children during a time of
and in response to emergency or influx. Because ORR is finalizing
subpart I to codify existing requirements and are not finalizing any
additional requirements which we believe will result in changes to
current operational practices which impact either facility or staffing
costs to operate EIFs, ORR does not estimate any additional costs.
ORR sought public comment on any additional costs associated with
the proposals in the NPRM which have not been otherwise addressed (88
FR 68975).
ORR did not receive any comments on additional costs which were not
otherwise addressed in the discussion of the proposals in this final
rule. As a result, ORR is making no changes or additions to the costs
previously discussed in the NPRM. In addition, ORR is making no changes
or additions to costs resulting from changes and amendments to
regulatory text.
3. Benefits
The primary benefit of the rule is 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.
As required by OMB Circular A-4 (available on the Office of
Management and Budget website at: https://www.whitehouse.gov/wp-content/uploads/2023/11/CircularA-4.pdf), ORR has prepared an
accounting statement to illustrate the impacts of the finalized
policies in this final rule in Table 3.
Table 2--Accounting Statement: Estimated Annual Costs and Benefits
------------------------------------------------------------------------
Category Estimate
------------------------------------------------------------------------
Benefits:
Annualized Monetized Benefits...... $0.
Annualized quantified, but non- None.
monetized, benefits.
Unquantified Benefits.............. (1) 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.
(2) Codification of minimum
standards for licensed
facilities and the release
process ensures a measure of
consistency across the
programs network of standard
facilities.
(3) Reduction in legal costs
and staff time associated with
the FSA and associated motions
to enforce.
Costs:
Annualized monetized costs......... $1,718,529.
Annualized quantified, but non- 2,000-4,000 hours.
monetized, costs.
Unquantified Costs.................
Transfers.............................. $0.
Net Benefits........................... $0.
------------------------------------------------------------------------
[[Page 34582]]
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.\352\
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.'' \353\ 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.\354\
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.\355\ 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.'' \356\ In accordance with
the relevant savings and transfer provisions of the HSA,\357\ the ORR
Director now possesses the authority to promulgate regulations
concerning ORR's administration of its responsibilities under the HSA
and TVPRA.
This rule would directly regulate ORR. ORR funds grantees and
contractors to provide shelter, counseling, medical care, legal
services, and other support services to unaccompanied children in
custody. Because the requirements being finalized in this rule are
already largely enforced by ORR, ORR does not expect this final 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 final 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.
Per the most recent SBA size standards effective March 17, 2023,
the SBA size standard for NAICS 561210 Facilities Support Services is
$47.0 million. The SBA size standards for NAICS 561612 Security Guards
and Patrol Services is $29.0 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 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 provisions in this
final rule make changes to ORR regulations and would not directly
financially impact any small entities. ORR reiterates that additional
costs associated with remedial actions necessary to meet requirements
promulgated in this final 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 requested information and data from the public that would
assist in better understanding the direct effects of this final rule on
small entities (88 FR 68976). Members of the public were invited to
submit a comment, as described in the NPRM under Public Participation,
if they think that their business, organization, or governmental
jurisdiction qualifies as a small entity and that the policies proposed
in the NPRM would have a significant economic impact on it. ORR
requested that commenters provide as much information as possible as to
why the policies proposed in the NPRM would create an impact on small
businesses.
ORR is unaware of any relevant Federal rule that may duplicate,
overlap, or conflict with the final rule and is not aware of any
alternatives to the final rule which accomplish the stated objectives
that would minimize economic impact of the proposed rule on small
entities. ORR requested comment and also sought alternatives from the
public that will accomplish the same objectives and minimize the
proposed rule's economic impact on small entities (88 FR 68976). ORR
did not receive any comments on the impacts of these policies on small
entities.
Based on this analysis, the Secretary certifies that the 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 $183 million, using the most current
(2023) Implicit Price Deflator for the Gross Domestic Product. This
final 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.
[[Page 34583]]
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.).
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 final rule complies
with settlement agreements, court orders, and statutory requirements,
most of whose terms have been in place for over 20 years. This final
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). We will be submitting forms associated with risk
determination hearings to OMB for approval as part of a new information
collection request as well as submitting associated revisions for
approval under OMB control number 0970-0565.
E. Executive Order 13132: Federalism
This final 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 final 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 finalizing its proposal 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 final 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 welcomed any comments from representatives of State and local
juvenile or family residential facilities--among other individuals and
groups--during the course of this rulemaking. ORR did not receive any
comments regarding the effects of these policies on the States or on
the distribution of power and responsibilities among the various levels
of Government.
F. Executive Order 12988: Civil Justice Reform
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
VII. 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.
Comment: One commenter disagreed that the rule did not erode family
stability, stating a belief that facilitating access to abortion has a
negative impact on families.
Response: While ORR acknowledges the opinion and concern of the
commenter, ORR concluded that the rule does not have an impact on
family-being within the meaning of Section 654 of the Treasury and
General Government Appropriations Act of 1999.
Final Rule Action: ORR is making no changes to its assessment of
the impact of the regulation on families in this final rule.
VIII. Alternatives Considered
ORR considered several alternatives to the proposed regulations
prior to finalizing this rule. First, ORR could have chosen not to
promulgate this rule proposing to codify requirements that would
protect unaccompanied children in ORR care. However, as discussed at
Section III.B.3, pursuant to a stipulation in California v. Mayorkas,
HHS agreed to pursue a new rulemaking to replace and supersede the 2019
Final Rule, which had been enjoined. This rulemaking represents that
broader rulemaking effort. Had HHS violated its stipulated agreement
and moved to lift the injunction of the 2019 Final Rule, it is likely
the California v. Mayorkas litigation would have resumed. In any case,
ORR believes that this 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 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 UC Program.
Once ORR decided to pursue a framework of regulatory requirements
through a rule, it considered the scope of a rule and whether to
propose additional regulations addressing further areas of authority
under the TVPRA. ORR rejected this alternative in order to solely focus
this rule on 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
[[Page 34584]]
notes that its decision to finalize more targeted regulations in this
final rule does not preclude ORR or other agencies from subsequently
issuing regulations to address other issues within ORR's statutory
authorities in the future.
After considering these alternatives, ORR is finalizing standards
that are consistent with its statutory authorities, implement the terms
of the FSA that create responsibilities for ORR, and reflect and are
consistent with current ORR practices and requirements, including
enhanced standards, procedures, and oversight mechanisms to help ensure
the safety and well-being 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 finalize a codified set of
standards and requirements that are uniform across care provider
facilities and in a way that accords with the way the UC Program
functions.
The FSA contemplates the publication of regulations implementing
the agreement. In a 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.\358\ In this final rule, ORR is
therefore finalizing regulations implementing the agreement by
codifying 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.
Jeff Hild, Acting Assistant Secretary of the Administration for
Children and Families, approved this document on April 14, 2024.
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 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 sponsor applications.
410.1208 ORR's discretion to place an unaccompanied child in 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 and
secure facilities.
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.
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 whom ORR has determined 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. 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
[[Page 34585]]
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 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 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 non-exhaustive
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, including an
individual family home, that houses one or more unaccompanied children
in ORR custody and is operated by an ORR-funded program that provides
residential services for unaccompanied children. Out of network (OON)
placements 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 but are not limited to biographical
information on each unaccompanied child; copies of 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 unification
information including the sponsor's individual and financial data; case
disposition; correspondence regarding the child's case; 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, except for program administration
purposes.
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 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.
Close relative means a brother, sister, grandparent, aunt, uncle,
first cousin, or other immediate biological relative, or immediate
relative through legal marriage or adoption, and half-sibling.
Corrective action means steps taken to correct any care provider
facility noncompliance identified by ORR.
Department of Justice Accredited Representative, or DOJ 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. A DOJ 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.
DHS means the U.S. Department of Homeland Security.
Director means the Deputy Assistant Secretary for Humanitarian
Services and 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 45 CFR 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
[[Page 34586]]
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 (EIF) means a type of care provider
facility that opens temporarily to provide shelter and services for
unaccompanied children during an influx or emergency. An EIF is not
defined as a standard program, shelter, or secure facility under this
part. Because of the emergency nature of EIFs, they may be unlicensed
or may be exempted from licensing requirements by State and/or local
licensing agencies. EIFs may also be operated on federally-owned or
leased property, 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.
Family planning services include, but are not limited to, Food and
Drug Administration (FDA)-approved contraceptive products (including
emergency contraception), pregnancy testing and non-directive options
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, or that meets the requirements of State licensing that would
otherwise be applicable if it is in a State that does not allow state
licensing of programs providing care and services to unaccompanied
children, 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 potential 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 HHS operations, 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 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+ includes 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. For purposes of the
Unaccompanied Children Program, mechanical restraints are prohibited
across all care provider types except in secure facilities, where they
are permitted only as consistent with State licensure requirements.
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 immigration legal proceedings. ``Long-term home
care'' has the same meaning as ``long-term
[[Page 34587]]
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 (OON) placement means a facility that is licensed by
an appropriate State agency and 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. An OON placement is not defined as a standard
program under this part.
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 TVPRA 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.
(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
(3) 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.
[[Page 34588]]
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 instructed not to leave or is
physically prevented from leaving.
Secure facility means 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 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) Separation from a parent or legal guardian upon apprehension by
a Federal agency;
(8) Mental health concerns; and
(9) Use of safety measures, such as restraints.
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 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
unaccompanied children with specific individualized needs; or that
meets the requirements of State licensing that would otherwise be
applicable if it is in a State that does not allow state licensing of
programs providing care and services to 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 unaccompanied children with specific individualized
needs, shall be non-secure as required under State law. However, a
facility for unaccompanied children with specific individualized needs
may maintain that level of security permitted under State law 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.
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 shall place 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.
[[Page 34589]]
(g) When requesting information or consent from unaccompanied
children ORR consults with parents, legal guardians, child advocates,
and attorneys of record or DOJ 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 shall accept 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 in its custody is an unaccompanied child and
therefore must be transferred to ORR custody, ORR shall identify a
standard program placement for the unaccompanied child, unless one of
the listed exceptions in Sec. 410.1104 applies, and notify 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. ORR
may seek clarification about the information provided by the referring
agency as needed. 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.
(c) ORR shall work 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 timely 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, a facility fire, or a civil disturbance;
(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.
(e) ORR shall take legal custody of an unaccompanied child 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, subject to Sec. 410.1103, if ORR
determines that a child has a specific need that cannot be met within
the ORR network of facilities, if no in-network care provider facility
equipped to meet the child's needs has the capacity to accept a new
placement, or if transfer to a less restrictive facility is warranted
and ORR is unable to place the child in a less restrictive in-network
facility. Unaccompanied children shall be separated from delinquent
offenders in OON placements (except those unaccompanied children who
meet the requirements for a secure placement pursuant to Sec.
410.1105). In times of influx or emergency, as further discussed in
subpart I of this part, ORR may place unaccompanied children in care
provider 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 shall consider the following factors to the extent they are
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 or identity;
(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.
[[Page 34590]]
(e) ORR shall make reasonable efforts to provide licensed
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
the nature of 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 shall place 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 (RTC). (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. This determination must
be made based on clear and convincing evidence documented in the
unaccompanied child's case file. All determinations to place an
unaccompanied child in a secure facility (that is not an RTC) will be
reviewed and approved by ORR Federal field staff. A finding that a
child poses a danger to self shall not be the sole basis for a child's
placement in a secure facility (that is not an RTC).
(2) ORR shall 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 shall 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 currently pose a danger to others and does not need placement in an
RTC pursuant to the standard set forth at 410.1105(c).
(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 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 directed at 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 others, as determined by the staff of the care provider
facility (e.g., stealing, fighting, intimidation of others, or sexually
predatory behavior), and ORR determines the unaccompanied child poses a
danger to 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. This
determination must be made based on clear and convincing evidence
documented in the unaccompanied child's case file.
(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 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 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, including
documentation by a licensed psychologist or psychiatrist that placement
in an RTC is appropriate.
(2) ORR may place an unaccompanied child in 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.
(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).
(d) For an unaccompanied child with one or more disabilities,
consistent with
[[Page 34591]]
section 504 of the Rehabilitation Act, 29 U.S.C. 794(a), ORR's
determination under Sec. 410.1105 whether to place the unaccompanied
child in a restrictive placement shall include consideration 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 services that would allow the unaccompanied child
to be placed in that less restrictive facility. ORR's consideration of
reasonable modifications and auxiliary aids and services to facilitate
less restrictive placement shall also apply to transfer decisions under
Sec. 410.1601 and will be incorporated into restrictive placement case
reviews under Sec. 410.1901. However, ORR is not required to take any
action that it can demonstrate would fundamentally alter the nature of
a program or activity.
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 individualized needs while in the
care and custody 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 standard program in which the
unaccompanied child with individualized needs can interact with
children without those individualized needs to the fullest extent
possible, but which provides services and treatment or equipment for
such individualized needs.
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 shall consider, among other
factors, whether:
(a) The unaccompanied child is currently under a final order of
removal.
(b) The unaccompanied child has previously absconded or attempted
to abscond from State or Federal custody.
(c) The unaccompanied child has displayed behaviors indicative of
flight or has expressed intent to run away.
(d) Evidence that the unaccompanied child is 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. ORR shall accept referrals for placement of
parenting unaccompanied children who arrive with children of their own
to the same extent that it receives referrals of other unaccompanied
children and shall prioritize placing and keeping the parent and child
together in the interest of family unity.
(b) Services. (1) ORR shall provide 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 and get advice about your rights to challenge this action.
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).
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 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 child's safety or that of
others, ORR shall release a child 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 licensed 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 unification 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 shall 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.
[[Page 34592]]
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) ORR's suitability assessment shall include taking all needed
steps to determine that the potential sponsor is capable of providing
for the unaccompanied child's physical and mental well-being. As part
of its suitability assessment, ORR may 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. In all cases, ORR shall
require background and criminal records checks, which at minimum
includes an investigation of public records sex offender registry
conducted through the U.S. Department of Justice National Sex Offender
public website for all sponsors and adult residents of the potential
sponsor's household, and may include a public records background check
or an FBI National Criminal history check based on fingerprints for
some potential sponsors and adult residents of the potential sponsor's
household. Any such assessment shall also take 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. Lack of a
pre-existing relationship with the child does not categorically
disqualify a potential sponsor, but the lack of such relationship will
be a factor in ORR's overall suitability assessment.
(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 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.
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(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 shall require 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 child with a disability (as defined in 42 U.S.C. 12102) who
requires particularized services or treatment;
(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 potential 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.
(e) An unaccompanied child for whom a home study is conducted shall
receive an offer of post-release services as described at Sec.
410.1210.
Sec. 410.1205 Release decisions; denial of release to a sponsor.
(a) A potential sponsorship shall 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 the completed sponsor application of a
parent or legal guardian; brother, sister, or grandparent; or other
close relative who has been the child's primary caregiver within 10
calendar days of receipt of the completed sponsor application, absent
an unexpected delay (such as a case that requires completion of a home
study). ORR shall adjudicate the completed sponsor application of other
close relatives who were not the child's primary caregiver within 14
calendar days of receipt of the completed sponsor application, absent
an unexpected delay (such as a case that requires completion of a home
study).
(c) If ORR denies release of an unaccompanied child to a potential
sponsor who is a parent or legal guardian or close relative, the ORR
Director or their designee who is a neutral and detached decision maker
shall promptly notify the potential sponsor of the denial in writing
via a Notification of Denial letter. The Notification of Denial letter
shall include:
(1) An explanation of the reason(s) for the denial;
(2) The evidence and information supporting ORR's denial decision
and shall advise the potential sponsor that they have the opportunity
to examine the evidence upon request, unless ORR determines that
providing the evidence and information, or part thereof, to the
potential sponsor would compromise the safety and well-being of the
unaccompanied child or is not permitted by law;
(3) Notice that the proposed sponsor may request an appeal of the
denial to the Assistant Secretary for Children and Families, or a
designee who is a neutral and detached decision maker and instructions
for doing so;
(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 sponsor and ORR 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.
(d) The ORR Director, or a designee who is a neutral and detached
decision maker, shall review denials of completed sponsor applications
submitted by parents or legal guardians or close relative potential
sponsors.
(e) 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 DOJ Accredited
Representative, the local legal service provider) of a denial of
release to the unaccompanied child's parent or legal guardian or close
relative potential sponsor and inform them that they have the right to
inspect the evidence underlying ORR's decision upon request unless ORR
determines that disclosure is not permitted by law.
(f) If the sole reason for denial of release is a concern that the
unaccompanied child is a danger to self or others, ORR shall send the
unaccompanied child and their counsel (if represented by counsel) a
copy of the Notification of Denial described at paragraph (c) of this
section. The child may seek an appeal of the denial.
(g) 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 potential sponsor.
Sec. 410.1206 Appeals of release denials.
(a) Denied parent or legal guardian or close relative potential
sponsors to whom ORR's Director or their designee, who is a neutral and
detached decision maker, must send Notification of Denial letters
pursuant to Sec. 410.1205 may seek an appeal of ORR's decision by
submitting a written request to the Assistant Secretary for 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, shall acknowledge
[[Page 34594]]
the request for appeal within five business days of receipt.
(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 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 at no cost to the Federal Government 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.
(d) ORR shall deliver the full evidentiary record including any
countervailing or otherwise unfavorable evidence, apart from any
legally required redactions, to the denied parent or legal guardian or
close relative potential sponsor within a reasonable timeframe to be
established by ORR, unless ORR determines that providing the
evidentiary record, or part(s) thereof, to the potential sponsor would
compromise the safety and well-being of the unaccompanied child.
(e) ORR shall deliver the unaccompanied child's complete case file,
apart from any legally required redactions, to a parent or legal
guardian potential sponsor on request within a reasonable timeframe to
be established by ORR, unless ORR determines that providing the
complete case file, or part(s) thereof, to the parent or legal guardian
potential sponsor would compromise the safety and well-being of the
unaccompanied child. ORR shall deliver the unaccompanied child's
complete case file, apart from any legally required redactions, to the
unaccompanied child and the unaccompanied child's attorney or legal
service provider on request within a reasonable timeframe to be
established by ORR.
(f) The appeal process, including notice of decision on appeal sent
to the potential sponsor, shall be completed within 30 calendar days of
the potential sponsor's request for an appeal, unless an extension of
time is granted by the Assistant Secretary or their neutral and
detached designee for good cause.
(g) The appeal of a release denial shall be considered, and any
hearing shall be conducted, by the Assistant Secretary, or their
neutral and detached designee. Upon making a decision to reverse or
uphold the decision denying release to the potential sponsor, the
Assistant Secretary or their neutral and detached designee, shall issue
a written decision, either ordering or denying release to the potential
sponsor within the timeframe described in Sec. 410.1206(f). If the
Assistant Secretary, or their neutral and detached designee, denies
release to the potential sponsor, the decision shall set forth
detailed, specific, and individualized reasoning for the decision. ORR
shall also notify the unaccompanied child and the child's attorney of
the denial. ORR shall inform the potential sponsor and the
unaccompanied child of any right to seek review of an adverse decision
in the United States District Court.
(h) ORR shall make qualified interpretation and/or translation
services available to unaccompanied children and denied parent or legal
guardian or close relative potential sponsors upon request for purposes
of appealing denials of release. Such services shall be available to
unaccompanied children and denied parent or legal guardian or close
relative potential sponsors in enclosed, confidential areas.
(i) If a child is released to another sponsor during the pendency
of the appeal process, the appeal will be deemed moot.
(j)(1) Denied parent or legal guardian or close relative potential
sponsors to whom ORR must send Notification of Denial letters pursuant
to Sec. 410.1205 have the right to be represented by counsel in
proceedings related to the release denial, including at any hearing, at
no cost to the Federal Government.
(2) The unaccompanied child has the right to consult with counsel
during the potential sponsor's appeal process at no cost to the Federal
Government.
Sec. 410.1207 Ninety (90)-day review of pending sponsor applications.
(a) ORR supervisory staff who supervise field staff shall conduct
an automatic review of all pending sponsor applications. The first
automatic review shall occur within 90 days of an unaccompanied child
entering ORR custody to identify and resolve in a timely manner the
reasons that a sponsor 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 sponsor application that remain
unresolved.
(c) For cases that are not resolved after the initial 90-day
review, ORR supervisory staff who supervise field staff shall conduct
additional reviews as provided in Sec. 410.1207(a) at least every 90
days until the pending sponsor application 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 place an unaccompanied child in 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. 7102(11);
(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 shall evaluate each unaccompanied child case
to determine whether it is in the child's best interests to be placed
in the URM Program.
(c) When ORR places 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 shall retain 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
[[Page 34595]]
invoke the jurisdiction of a juvenile court to determine or 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 Special Immigrant
Juvenile (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, or their designee, shall consider the
request for reconsideration and any additional evidence, and send 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.
(2) ORR shall offer post-release services (PRS) 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 offer PRS for all released children. ORR
may give additional consideration, consistent with paragraph (c), for
cases involving unaccompanied children with mental health or other
needs who could particularly benefit from ongoing assistance from a
community-based service provider, to prioritize potential cases as
needed. ORR shall make an initial determination of 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. PRS providers
may conduct subsequent assessments based on the needs of the
unaccompanied children and the sponsors that result in a modification
to the level and extent of PRS assigned to the unaccompanied children.
(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 and unaccompanied children 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 and unaccompanied child information about the benefits of
obtaining legal guardianship of the 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 and
unaccompanied children 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 shall assist the sponsors and unaccompanied children
with 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 maximum 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 and
unaccompanied children 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
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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 and unaccompanied child with relevant mental health
resources and referrals for the 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 and unaccompanied child with relevant resources and
referrals for family counseling and/or individual counseling that meet
individual needs of the child and the sponsor.
(10) Substance use. PRS providers shall assist the sponsor and
unaccompanied child in locating resources to help address any substance
use-related needs of the child.
(11) Gang prevention. PRS providers shall provide the sponsor and
unaccompanied child 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 or the sponsor.
(c) Additional considerations for prioritizing provision of PRS.
ORR may prioritize referring unaccompanied children with the following
needs for PRS if appropriations are not available for it to offer PRS
to all children:
(1) Unaccompanied children in need of particular services or
treatment;
(2) Unaccompanied children with disabilities;
(3) Unaccompanied children who identify as LGBTQI+;
(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 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 an
offer of 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, to the
greatest extent possible, 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 an offer of 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 an offer of PRS under the TVPRA at 8 U.S.C.
1232(c)(3)(B), PRS shall be offered for the unaccompanied child until
the unaccompanied child turns 18 or the unaccompanied child is granted
voluntary departure, granted immigration status, or the child leaves
the United States pursuant to a final order of removal, whichever
occurs first.
(2) For a released unaccompanied child who is not required to
receive an offer of PRS under the TVPRA at 8 U.S.C. 1232(c)(3)(B), but
who receives PRS as authorized under the TVPRA, PRS may be offered for
the unaccompanied child until the unaccompanied child turns 18, or the
unaccompanied child is granted voluntary departure, granted immigration
status, or the child leaves pursuant to a final order of removal,
whichever occurs first.
(3) If an unaccompanied child's sponsor, except for a parent or
legal guardian, chooses to disengage from PRS and the child wishes to
continue receiving PRS, ORR may continue to make PRS available to the
child through coordination between the PRS provider and a qualified ORR
staff member.
(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 maintain 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, except for program administration
purposes.
(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 information of
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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 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.
(iii) PRS providers shall upload any relevant forms into ORR's case
management system within 30 calendar days of a case's closure.
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 secure
facilities. This subpart is applicable to other care provider
facilities and to PRS providers where specified.
Sec. 410.1302 Minimum standards applicable to standard programs and
secure facilities.
Standard programs and secure facilities shall:
(a) Be licensed by an appropriate State agency, or meet the State's
licensing requirements if located in a State that does not allow State
licensing of programs providing or proposing to provide care and
services to unaccompanied children.
(b) Comply with all State child welfare laws and regulations (such
as mandatory reporting of abuse) and all State and local building,
fire, health, and safety codes.
(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 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 such as soap, toothpaste and toothbrushes, floss, towels,
feminine care items, and other similar items, access to toilets,
showers, and sinks, adequate temperature control and ventilation,
maintenance of safe and sanitary conditions that are consistent with
ORR's concern for the particular vulnerability of children, 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 individualized
needs including any specific problems that appear to require immediate
intervention;
(iv) An educational assessment and plan;
(v) Identification of whether the child is 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 unification;
(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 on the development of basic academic competencies and
on English Language Training (ELT), as well as acculturation and life
skills development including:
(i) Instruction and educational and other reading materials in such
languages as needed;
(ii) Instruction in basic academic areas that may 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
[[Page 34598]]
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, including 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;
(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 or preferred language of each unaccompanied
child; and
(14) Unaccompanied children must 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, and receive and send uncensored mail unless
there is a reasonable belief that the mail contains contraband.
(d) Deliver services in a manner that is sensitive to the age,
culture, native or preferred 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
or preferred 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 shall monitor all care provider
facilities for 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 subregulatory 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 timeframe 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 shall review 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) Enhanced monitoring of unlicensed standard programs and
emergency or influx facilities. In addition to the other requirements
of this section, for all standard programs that are not State-licensed
because the State does not allow State licensing of programs providing
care and services to unaccompanied children, and emergency or influx
facilities, ORR shall conduct enhanced monitoring, including on-site
visits and desk monitoring.
(f) Care provider facility quality assurance. Care provider
facilities shall 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.
(g) 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 shall 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
[[Page 34599]]
documentation that are made after the fact.
(2) Care provider facilities shall not 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 shall not use 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 shall 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.
(h) Develop, maintain, and safeguard each individual unaccompanied
child's case file. This paragraph (h) applies to all care provider
facilities responsible for the care and custody of unaccompanied
children.
(1) Care provider facilities and PRS providers shall 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 an unaccompanied child's case file are
ORR's property, regardless of whether they are in ORR's possession or
in the possession of a care provider facility or PRS provider. Care
providers facilities and PRS providers shall not release those records
or information within the records without prior approval from ORR,
except for program administration purposes;
(3) Care provider facilities and PRS providers shall provide
unaccompanied child case file records to ORR immediately upon ORR's
request; and
(4) Subject to applicable whistleblower protection laws, employees,
former employees, or contractors of a care provider facility or PRS
provider shall 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.
(i) Records. Care provider facilities and PRS providers shall
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 shall 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. Care provider facilities shall 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 shall not:
(1) Use or threaten use of corporal punishment, significant
incident reports as punishment, unfavorable consequences related to
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
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, religious observation and services, 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 residential treatment centers (RTCs) are
prohibited from using seclusion. 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 (that are not RTCs):
(1) May use personal restraints, mechanical restraints and/or
seclusion in emergency safety situations, and as consistent with State
licensure requirements. All instances of seclusion must be supervised
and for the short time-limited purpose of ameliorating the underlying
emergency risk that poses a serious and immediate danger to the safety
of others.
(2) May restrain an unaccompanied child for their own immediate
safety or that of others during transport.
(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
[[Page 34600]]
(PRS) 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. Standard programs
and restrictive placements shall ensure that staff are appropriately
trained on its behavior management strategies, including de-escalation
techniques, as established pursuant to Sec. 410.1304. 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, restrictive placements, and PRS providers
must document the completion of all trainings in personnel files. All
staff, contractors, and volunteers must have completed required
background checks and vetting for their respective roles required by
ORR;
(b) Care provider facilities shall meet the staff to child ratios
established by their respective States or other licensing entities; and
(c) Care provider facilities shall have case managers based on site
at the facility.
Sec. 410.1306 Language access services.
(a) General. (1) To the greatest extent practicable, care provider
facilities 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,
care provider facilities are unable to obtain a qualified interpreter
or translator for the unaccompanied children's native or preferred
language, depending on the children's preference, care provider
facilities 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) Care provider facilities shall prioritize the ability to
provide in-person, qualified interpreters for unaccompanied children
who need them, particularly for rare or indigenous languages. After
care provider facilities take reasonable efforts to obtain in-person,
qualified interpreters, then they may use qualified remote interpreter
services.
(3) Care provider facilities 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 care
provider facility.
(c) Intake, orientation, and confidentiality. (1) Prior to
completing the UC Assessment and starting counseling services, care
provider facilities 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) Care provider facilities 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) Care provider 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,
care provider facilities 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 sponsor's native or preferred
language, depending on the children's preference.
(5) If the 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 care
provider facility 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) Care provider facilities shall provide information regarding
grievance reporting 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. Care provider
facilities shall also provide grievance reporting policies and
procedures in a manner accessible to unaccompanied children with
disabilities.
(7) Care provider facilities 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) Care provider facilities shall notify the unaccompanied
children that care provider facilities shall accommodate the
unaccompanied children's language needs while they remain in ORR care.
(9) For paragraphs (c)(1) through (8) of this section, care
provider facilities 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) Care provider 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 qualified remote interpretation when in-person
interpretation options have been exhausted.
(2) Care provider 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) Care provider 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, care
provider facilities shall orally translate or sign language translate
all documents, prioritizing services from an in-person, qualified
interpreter and translation before using qualified remote
interpretation and translation services.
(e) Religious and cultural observation and services. If an
unaccompanied child
[[Page 34601]]
requests religious and/or cultural information or items, the care
provider 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. Care provider facilities
shall utilize any necessary qualified interpretation or translation
services needed to ensure meaningful access by an unaccompanied child's
parent(s), guardian(s), and/or potential sponsor(s). Care provider
facilities 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, care provider facilities 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 qualified remote interpretation services.
(h) Legal services. Care provider facilities 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. Qualified interpreters and translators
shall keep confidential all information they receive about the
unaccompanied children's cases and/or services while assisting ORR, its
grantees, and its contractors, with the provision of case management or
other services. Qualified interpreters and translators shall not
disclose case file information to other interested parties or to
individuals or entities that are not employed by ORR or its grantees
and contractors or that are not providing services under the direction
of ORR. Qualified interpreters and translators shall not disclose any
communication that is privileged by law or protected as confidential
under this part unless authorized to do so by the parties to the
communication or pursuant to court order.
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's 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;
(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;
(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); and
(11) Urgent dental care if an unaccompanied child is experiencing
an urgent dental issue (acute tooth pain, procedure(s) needed to
maintain basic function, i.e., severe and/or acute infection or a
severe and/or acute infection is imminent). Care should be provided as
soon as possible and not be delayed while awaiting the initial dental
exam.
(c) ORR must not prevent unaccompanied children in ORR care from
accessing healthcare services, including medical services requiring
heightened ORR involvement and family planning services. ORR must make
reasonable efforts to facilitate access to those services if requested
by the unaccompanied child. Further, if there is a potential conflict
between the standards and requirements set forth in this section and
State law, such that following the requirements of State law would
diminish the services available to unaccompanied children under this
section and ORR policies, ORR will review the circumstances to
determine how to ensure that it is able to meet its responsibilities
under Federal law. 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
[[Page 34602]]
duties, subject to applicable Federal religious freedom and conscience
protections, to ensure unaccompanied children have access to all
services available under this section and other ORR policies.
(1) Initial placement and transfer considerations--(i) Initial
placement. Consistent with Sec. 410.1103, when placing an
unaccompanied child, ORR shall consider 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.
(d) 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 client;
(2) Explaining the consequences and potential outcomes of decisions
that may affect their unaccompanied child client;
(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 for a
child advocate when the unaccompanied child is currently, or was
previously in, ORR's care and custody, and when that child has been
determined to be a victim of trafficking or 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 DOJ 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 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 shall keep the information in the case
file, and information about the unaccompanied child's case,
confidential. A child advocate may only disclose information from the
case file with informed consent from the child when this is in the
child's best interests. 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.
[[Page 34603]]
(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 native or preferred 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 native or preferred language
of the unaccompanied child and in an age-appropriate manner.
(B) Such presentation shall 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. When an unaccompanied child requests legal counsel, ORR
shall ensure that the child is provided with a list and contact
information for pro bono counsel, and reasonable assistance to ensure
that the child is able to successfully engage an attorney at no cost to
the Government.
(iii) Notification regarding the child's ability to petition for
Special Immigrant Juvenile (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 United States Citizenship and Immigration Services (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 DOJ 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, DOJ Accredited
Representative, or legal service provider in a private enclosed area
that allows for confidentiality for in-person, virtual, or telephonic
meetings.
(vii) Information regarding the child's right to 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 self or to the community if released, as described at Sec.
410.1903(a) and (b).
(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;
(ii) For unaccompanied children in ORR care who are in proceedings
before 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
[[Page 34604]]
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 DOJ Accredited Representative and the
unaccompanied child may substitute as appropriate. Either the
unaccompanied child's attorney, DOJ 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) 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 and
within a reasonable timeframe to be established by ORR, the
unaccompanied child's complete case file, apart from any legally
required redactions, to assist in the legal representation of the
unaccompanied child. In addition to sharing the complete case file,
upon request by an attorney of record or DOJ Accredited Representative,
ORR shall promptly provide the attorney of record or DOJ Accredited
Representative with the name and telephone number of potential sponsors
who have submitted a completed family reunification application to ORR
for their client, if the potential sponsors have provided consent to
release of their information. Furthermore, and absent a reasonable
belief based upon articulable facts that doing so would endanger an
unaccompanied child, ORR shall ensure that unaccompanied children are
allowed to review, upon request and in the company of their attorney of
record or DOJ Accredited Representative if any, such papers, notes, and
other writings they possessed at the time they were apprehended by DHS
or another Federal department or agency, that are in ORR or an ORR care
provider facility's possession.
(3) If an unaccompanied child's attorney of record or DOJ
Accredited Representative properly requests their client's case file on
an expedited basis, ORR shall, within seven calendar days, unless
otherwise provided herein, provide the attorney of record or DOJ
Accredited Representative with key documents from the unaccompanied
child's case file, as determined by ORR.
(4) Expedited basis refers to any of the following situations:
(i) Unaccompanied child has been reported missing to the National
Center for Missing and Exploited Children;
(ii) Unaccompanied child has a court hearing scheduled within 30
calendar days;
(iii) Unaccompanied child is turning 18 years old in less than 30
calendar days;
(iv) Unaccompanied child has a risk determination hearing pursuant
to Sec. 410.1903 of this part scheduled within 30 calendar days;
(v) Records are needed for the provision of medical services to the
child;
(vi) Records are needed for the child's enrollment or continued
enrollment in school;
(vii) Records are needed for a Federal, State, or local agency
investigation related to the subject of the request; or
(viii) Any other situation in which ORR determines, in its
discretion, that an expedited response is warranted.
(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 and other legal representatives
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 or other legal representative for actions taken within
the scope of the legal service provider's or representative's
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 or
appearance in an action adverse to ORR.
(f) Resource email box. ORR shall create and maintain a resource
email box for feedback from legal services providers regarding emerging
issues related to immediate performance of legal services at care
provider facilities. ORR shall address such emerging issues as needed.
Sec. 410.1310 Psychotropic medications.
(a) Except in the case of a psychiatric emergency, ORR shall ensure
that authorized individuals provide informed consent prior to the
administration of psychotropic medications to unaccompanied children.
(1) Three categories of persons can serve as an ``authorized
consenter'' and
[[Page 34605]]
provide informed consent for the administration of psychotropic
medication to unaccompanied children in ORR custody: the child's parent
or legal guardian, followed by a close relative sponsor, and then the
unaccompanied child themself if the child is of sufficient age and a
doctor has obtained informed consent; and
(2) Consent must be obtained voluntarily, without undue influence
or coercion, and ORR will not retaliate against an unaccompanied child
or an authorized consenter for refusing to take or consent to any
psychotropic medication; and
(3) Any emergency administration of psychotropic medication must be
documented, the child's authorized consenter must be notified as soon
as possible, and the care provider and ORR must review the incident to
ensure compliance with ORR policies and reasonably avoid future
emergency administrations of medication.
(b) ORR shall ensure meaningful oversight of the administration of
psychotropic medication(s) to unaccompanied children including
reviewing cases flagged by care providers and conducting additional
reviews of the administration of psychotropic medications in high-risk
circumstances, including but not limited to cases involving young
children, simultaneous administration of multiple psychotropic
medications, and high dosages. ORR must engage qualified professionals
who are able to oversee prescription practices and provide guidance to
care providers, such as a child and adolescent psychiatrist.
(c) ORR shall permit unaccompanied children to have the assistance
of counsel, at no cost to the Federal Government, with respect to the
administration of psychotropic medications.
Sec. 410.1311 Unaccompanied children with disabilities.
(a) ORR shall 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. This notice must be provided in a manner
that is accessible to children with disabilities.
(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 make reasonable modifications to its programs,
including the provision of services, equipment, and treatment, so that
an unaccompanied child with one or more disabilities can have equal
access to the UC Program in the most integrated setting appropriate to
their needs. ORR is not required, however, to take any action that it
can demonstrate would fundamentally alter 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. Correspondingly, ORR must
consider the potential benefits to the child of release to a community-
based setting.
(2) In planning for a child's release and conducting post-release
services (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 shall
assist without undue delay in making transportation arrangements. In
its discretion, ORR may require the care provider facility to transport
an unaccompanied child. In these circumstances, ORR may, in its
discretion, either 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 shall review the circumstances to
determine how to ensure that it is able to meet its statutory
responsibilities. 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, subject to applicable
Federal religious freedom and conscience protections.
(e) The care provider facility or contractor shall conduct all
necessary background checks for individuals 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.
[[Page 34606]]
Subpart F--Data and Reporting Requirements
Sec. 410.1500 Purpose of this subpart.
ORR shall maintain 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 shall include:
(a) Biographical information, such as an unaccompanied child's
name, gender, date of birth, country of birth, whether of indigenous
origin, country of habitual residence, and, if voluntarily disclosed,
self-identified LGBTQI+ status or identity;
(b) The date on which the unaccompanied child came into Federal
custody by reason of the child's immigration status, including the date
on which the unaccompanied child came into ORR custody;
(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 the date on which and to
whom the child is 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, including:
(1) Data relating to the administration of psychotropic
medications. Such information shall include children's diagnoses, the
prescribing physician's information, the name and dosage of the
medication prescribed, documentation of informed consent, and any
emergency administration of medication. Such data shall be compiled in
a manner that enables ORR to track how psychotropic medications are
administered across the network and in individual facilities.
(2) Data relating to the treatment of unaccompanied children with
disabilities. Such information shall include whether an unaccompanied
child has been identified as having a disability, the unaccompanied
child's diagnosis, the unaccompanied child's need for reasonable
modifications or other services, and information related to release
planning. Such data shall be compiled in a manner that enables ORR
ongoing oversight to ensure unaccompanied children with disabilities
are receiving appropriate care while in ORR care across the network and
in individual facilities.
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
provider facilities 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 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 business days of ORR
identifying the need for a transfer, 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 shall meet to review
the transfer recommendation. If a child is not medically cleared for
transfer within three 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 DOJ 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 cases in which 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. 410.1107; 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 unaccompanied child at a
time (e.g.,
[[Page 34607]]
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 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,
consulting 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 child.
Sec. 410.1704 Treatment of an individual whom ORR has determined to
be an adult.
If the procedures in this subpart would result in ORR reasonably
concluding that an individual is an adult, despite the individual's
claim to 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 shall regularly reevaluate the number of standard program
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
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 shall implement 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 shall continually develop standard programs that are
available to accept emergency or influx placements; and
(3) ORR shall maintain 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 (EIFs).
(b) EIFs shall provide the following minimum services for all
unaccompanied children in their care:
(1) Proper physical care and maintenance, including suitable living
accommodations, sufficient quantity of food appropriate for children,
drinking water, 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
[[Page 34608]]
Practices' Child and Adolescent Immunization Schedule and approved by
HHS's 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, identification of the unaccompanied child's
individualized needs including any specific problems which appear to
require immediate intervention, an educational assessment and plan, and
whether an indigenous language speaker; a statement of religious
preference and practice; and an assessment of the unaccompanied child's
personal goals, strengths, and weaknesses.
(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 on the development of
basic academic competencies, and on English Language acquisition. The
educational program shall include instruction and educational and other
reading materials in such languages as needed. Basic academic areas may
include such subjects as 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 must 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.
(8) Acculturation and adaptation services that include information
regarding the development of social and interpersonal skills that
contribute to those abilities necessary to live independently and
responsibly.
(9) Whenever possible, access to religious services of the child's
choice.
(10) 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.
(11) A reasonable right to privacy, which includes the right to
wear the child's own clothes when available, retain a private space 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.
(12) 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 removal.
(13) EIFs, whether state-licensed or not, must comply, to the
greatest extent possible, with all State child welfare laws and
regulations (such as mandatory reporting of abuse), as well as all
State and local building, fire, health and safety codes, that ORR
determines are applicable to non-State licensed facilities.
(14) EIFs must deliver services in a manner that is sensitive to
the age, culture, native language, and complex needs of each
unaccompanied child. EIFs must develop an individual service plan for
the care of each child.
(c) EIFs shall 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 children;
(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 and provide a modified medical examination;
(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 apprehended with
the unaccompanied child; and
(9) Provide access to legal services described in Sec.
410.1309(a).
(10) Provide family unification 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.
(11) Provide an individualized needs assessment, which includes the
collection of essential data relating to the identification and history
of the child and the child's family; an assessment of family
relationships and interaction with adults, peers and authority figures;
and 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.
(12) Provide a comprehensive orientation regarding program intent,
services, rules (written and verbal), expectations, information about
U.S. child labor laws, and the availability of legal assistance.
(13) Maintain records of case files and make regular reports to
ORR. EIFs must have accountability systems in place, which preserve the
confidentiality of client information and protect the records from
unauthorized use or disclosure.
(d) ORR may grant waivers of standards under paragraph (b) of this
section, in whole or in part, during the first six months of an EIF
activation, to the extent that ORR determines that the specific waivers
requested are necessary because it would be operationally infeasible to
comply with the specified standards, and are granted for no longer than
necessary in light of operational feasibility, and the waivers are
granted in accordance with law. Such waiver or waivers must be made
publicly available. Even where a waiver is granted, EIFs shall make all
efforts to meet requisite standards under Sec. 410.1801(b) as
expeditiously as possible.
Sec. 410.1802 Placement standards for emergency or influx facilities.
(a) Unaccompanied children who are placed in an emergency or influx
facility (EIF) 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 EIF, ORR shall
transfer the unaccompanied child
[[Page 34609]]
to the least restrictive setting appropriate for that child's need as
expeditiously as possible. ORR shall only place a child in an EIF if
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 teenager;
(6) Would not have a diminution of legal services as a result of
the transfer to the EIF; 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 EIF:
(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 EIF;
(6) The unaccompanied child should not be scheduled to be
discharged in three days or less;
(7) The unaccompanied child should not have a scheduled hearing
date in immigration court or State/family court (juvenile included),
and not have an attorney of record or DOJ Accredited Representative;
(8) The unaccompanied child should be medically cleared and
vaccinated as required by the EIF (for instance, if the EIF 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 a restrictive placement, ORR shall have
the burden to 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) in the child's native or preferred language 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 at no cost to the Federal
Government in challenging such restrictive placement.
(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 attorney 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.
(1) Service of the NOP on a parent or legal guardian shall not be
required where there are child welfare reasons not to do so, where the
parent or legal guardian cannot be reached, or where an unaccompanied
child 14 or over states that the unaccompanied child does not wish for
the parent or legal guardian to receive the NOP.
(2) Child welfare rationales include but are not limited to: a
finding that the automatic provision of the notice could endanger the
unaccompanied child; potential abuse or neglect by the parent or legal
guardian; a parent or legal guardian who resides in the United States
but refuses to act as the unaccompanied child's sponsor; or a scenario
where the parent or legal guardian is non-custodial and the
unaccompanied child's prior caregiver (such as a caregiver in home
country) requests that the non-custodial parent not be notified of the
placement.
(3) When an NOP is not automatically provided to a parent or legal
guardian, ORR shall document, within the unaccompanied child's case
file, the child welfare reason for not providing the NOP to the parent
or legal guardian.
(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 90-day review by ORR supervisory staff for
unaccompanied children in secure facilities; and
(3) For unaccompanied children in residential treatment centers,
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) All determinations to place an unaccompanied child in a secure
facility that is not a residential treatment center will be reviewed
and approved by ORR federal field staff. 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 at no cost to
the Federal Government, present evidence on their own behalf. An
unaccompanied child may present witnesses and cross-examine ORR's
witnesses, if such child and ORR witnesses are willing to voluntarily
testify. An unaccompanied child shall be provided access at the PRP
hearing to interpretation services in their native or preferred
language, depending on the unaccompanied child's preference, and in a
way they effectively understand. An unaccompanied child that does not
wish to request a hearing may also have their placement reconsidered by
submitting a written request for a reconsideration along with any
supporting documents as evidence. Where the unaccompanied child does
not have an attorney, ORR shall
[[Page 34610]]
encourage the care provider facility to seek assistance for the
unaccompanied child from a contracted legal service provider or child
advocate.
(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). ORR shall
permit the unaccompanied child or the unaccompanied child's counsel to
review the evidence in support of step-up or continued restrictive
placement, and any countervailing or otherwise unfavorable evidence,
within a reasonable time before the PRP review is conducted. ORR shall
also share the unaccompanied child's complete case file apart from any
legally required redactions with their counsel within a reasonable
timeframe to be established by ORR to assist in the legal
representation of the unaccompanied child.
(c) ORR shall convene the PRP within 7 days of an unaccompanied
child's request for a hearing. ORR may institute procedures to request
clarification or additional evidence if warranted, or to extend the 7-
day deadline as necessary under specified circumstances.
(d) The PRP shall issue a written decision in the child's native or
preferred language within 7 days of a hearing and submission of
evidence or, if no hearing or review of additional evidence is
requested, within 7 days following receipt of an unaccompanied child's
written statement. ORR may institute procedures to request
clarification or additional evidence if warranted, or to extend the 7-
day deadline as necessary under specified circumstances.
(e) An ORR staff member who was involved with the decision to step-
up an unaccompanied child to a restrictive placement shall not serve as
a PRP member with respect to that unaccompanied child's placement.
Sec. 410.1903 Risk determination hearings.
(a) All unaccompanied children in restrictive placements based on a
finding of dangerousness 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 self or to the community if released, unless the
unaccompanied child indicates in writing that they refuse such a
hearing. Unaccompanied children placed in restrictive placements shall
receive a written 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) All other unaccompanied children in ORR custody may request a
hearing under this section to determine, through a written decision,
whether the unaccompanied child would present a risk of danger to self
or to the community if released. 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.
(c) In hearings conducted under this section, ORR bears the burden
of proof to establish by clear and convincing evidence that the
unaccompanied child would be a danger to self or to the community if
released.
(d) 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.
(e) Within a reasonable time prior to the hearing, ORR shall
provide to the unaccompanied child and their attorney of record the
evidence and information supporting ORR's determination, including the
evidentiary record.
(f) A hearing officer's decision that an unaccompanied child would
not be a danger to self or to the community if released is binding upon
ORR, unless the provisions of paragraph (e) of this section apply.
(g) 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's 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 self or 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 self or 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 self or 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
self or to the community if released.
(h) Decisions under this section are final and binding on the
Department, and an unaccompanied child who was determined to pose a
danger to self or 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 only if
ORR can show that a material change in circumstances means the
unaccompanied child should no longer be released due to presenting a
danger to self or to the community.
(i) This section cannot be used to determine whether an
unaccompanied child has a suitable sponsor.
(j) Determinations made under this section will not compel an
unaccompanied child's release; nor will determinations made under this
section compel transfer of an unaccompanied child to a different
placement. Regardless of the outcome of a risk determination hearing or
appeal, an unaccompanied child may not be released unless ORR
identifies a safe and appropriate placement pursuant to subpart C of
this part; and regardless of the outcome of a risk determination
hearing or appeal, an unaccompanied child may only be transferred to
another placement by ORR pursuant to requirements set forth at subparts
B and G of this part.
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
[[Page 34611]]
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, 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. 410.2001, 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, 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 or 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 to 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 shall 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: April 15, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[[Page 34612]]
Endnotes
\1\ Unaccompanied Children Program Foundational Rule, 88 FR
68908 (Oct. 4, 2023).
\2\ Public Law 107-296, sec. 462, 116 Stat. 2135, 2202.
\3\ Public Law 110-457, title II, subtitle D, 122 Stat. 5044.
\4\ See also 45 CFR 75.101.
\5\ 6 U.S.C. 279(g)(2).
\6\ See generally 8 U.S.C. 1232.
\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).
\11\ See 8 U.S.C. 1232(a).
\12\ 8 U.S.C. 1232(b)(2).
\13\ 8 U.S.C. 1232(c)(1).
\14\ See Delegation of Authority, 74 FR 14564 (Mar. 31, 2009);
see also Delegation of Authority, 74 FR 19232 (Apr. 28, 2009).
\15\ As discussed further, below, INS was abolished when the
Department of Homeland Security was established in 2002. 6 U.S.C.
291.
\16\ 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).
\17\ Id. Flores Compl. at paragraph 1.
\18\ See id. at paragraph 66-69.
\19\ See Stipulated Settlement Agreement, Flores v. Reno, No. CV
85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001).
\20\ See Flores v. Lynch, 828 F.3d 898 (9th Cir. 2016) (holding
that the FSA applies to accompanied children as well as
unaccompanied children).
\21\ Id. at paragraph 11.
\22\ Id. at paragraphs 12A, 14.
\23\ Id. at paragraph 24A.
\24\ Id. at paragraph 9.
\25\ See 63 FR 39759 (July 24, 1998).
\26\ Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-
4544-RJK(Px) (C.D. Cal. Jan. 17, 1997, as amended Dec. 7, 2001), at
paragraph 40.
\27\ 67 FR 1670 (Jan. 14, 2002).
\28\ 83 FR 45486 (Sep. 7, 2018).
\29\ Id.
\30\ Apprehension, Processing, Care, and Custody of Alien Minors
and Unaccompanied Alien Children, 84 FR 44392, 44530 through 44535
(Aug. 23, 2019).
\31\ Id. at 44526.
\32\ Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal. 2019).
\33\ Flores v. Rosen, 984 F.3d 720 (9th Cir. 2020).
\34\ See id.
\35\ 984 F.3d 720, 737 (9th Cir. 2020).
\36\ 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.
\37\ California v. Mayorkas, No. 2:19-v-07390 (C.D. Cal. filed
Aug. 26, 2019).
\38\ 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.
\39\ See id.
\40\ Pending E.O. 12866 Regulatory Review, https://www.reginfo.gov/public/do/eoDetails?rrid=312162.
\41\ Lucas R. v. Becerra, Case No. 2:18-cv-5741 (C.D. Cal. filed
Jun. 29, 2018).
\42\ Amended 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. December 27, 2018), ECF No.
141 at 27-28.
\43\ Order re Preliminary Approval of Settlement and Approval of
the Parties' Joint Proposal re Notice to Lucas R Class Members of
Settlement of Plaintiffs' Third, Fourth, and Fifth Claims for Relief
[Psychotropic Medications, Legal Representation, and Disability,
Lucas R. v. Becerra, No. 2:18-cv-05741 (C.D. Cal. January 5, 2024),
ECF No. 410.
\44\ Since publication of the NPRM, the title of the ORR
Director was updated to Deputy Assistant Secretary for Humanitarian
Services and Director of the Office of Refugee Resettlement. The
definition of ``Director'' has been updated in the regulation text,
but the term has not been replaced in this final rule when
discussing statutory authorities or delegations of power under the
HSA or TVPRA.
\45\ 6 U.S.C. 279(b)(1).
\46\ 8 U.S.C. 1232(b)(2).
\47\ 8 U.S.C. 1232(c)(1).
\48\ 74 FR 14564 (2009).
\49\ 74 FR 1232 (2009).
\50\ See 8 U.S.C. 1232(c)(1); see also 6 U.S.C. 279(b)(1)(L).
\51\ https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2025-congressional-justification.pdf.
\52\ 8 U.S.C. 1232(c)(1).
\53\ See, e.g., Memorandum of Agreement between U.S. Department
of Labor and HHS Regarding Inter-agency Data Sharing (Mar. 23,
2023), https://www.acf.hhs.gov/sites/default/files/documents/main/23-MOA-096-between-DOL-WHD-and-HHS-ACF-Regarding-Inter-Agency-Data-Sharing-Agreement_0.pdf (expanding interagency efforts to identify
communities and employers where children may be at risk of child
labor exploitation; aiding investigations with information to help
identify circumstances where children are unlawfully employed; and
facilitating coordination to ensure that child labor trafficking
victims or potential victims have access to critical services).
\54\ https://www.hhs.gov/about/hhs-manuals/gam-part-30/302000/index.html.
\55\ To find information regarding regulatory reviews by the
Office of Management and Budget, visit https://www.reginfo.gov/public/. To confirm the status of review of this rule, search
``Foundational Rule'' in the search box.
\56\ ORR Unaccompanied Children Program Policy Guide, https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide.
\57\ Unaccompanied Children's Program Field Guidance, https://www.acf.hhs.gov/orr/policy-guidance/uc-program-field-guidance.
\58\ 8 U.S.C. 1232(c)(2)(A).
\59\ See, e.g., 8 U.S.C. 1226(c)(2) (authorizing the Attorney
General to release certain noncitizens from custody where, among
other circumstances, ``the alien satisfies the Attorney General that
the alien will not pose a danger to the safety of other persons or
of property and is likely to appear for any scheduled proceeding'').
See also Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006) (discussing
factors immigration judges may look to in determining whether an
alien merits release on bond, and noting among those factors, ``any
attempts by the alien to flee prosecution or otherwise escape from
authorities.'').
\60\ 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 (Sept. 28, 2021), available at: https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf.
\61\ Separate from this final rule, 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.
\62\ 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.
\63\ See 6 U.S.C. 279(b)(1)(B); 8 U.S.C. 1232(c)(2)(A).
\64\ See 81 FR 46683 (``As a matter of discretion, ORR will
treat information that it maintains in its mixed systems of records
as being subject to the provisions of the Privacy Act, regardless of
whether or not the information relates to U.S. persons covered by
the Privacy Act.'').
\65\ See e.g., 42 CFR 59.2 (defining ``family planning'' to
include: ``Food and Drug Administration (FDA)-approved contraceptive
products and natural family planning methods, for clients who want
to prevent pregnancy and space births, pregnancy testing and
counseling, assistance to achieve pregnancy, basic infertility
services, sexually transmitted infection (STI) services, and other
preconception health services''); the joint Centers for Disease
Control and Office of Population Affairs Quality Family Planning
guidebook, available at: https://opa.hhs.gov/sites/
[[Page 34613]]
default/files/2020-10/providing-quality-family-planning-services-
2014_1.pdf; and the State Medicaid Manual at section 4270, available
at: https://www.hhs.gov/guidance/sites/default/files/hhs-guidance-documents/sm_4_4270_to_4390.1_181.doc.
\66\ 45 CFR 92.101.
\67\ See, e.g., 6 U.S.C. 279(b)(1); see also 8 U.S.C. 1232(c)(1)
and (c)(2)(A).
\68\ See 8 U.S.C. 1232(c)(1).
\69\ See, e.g., 79 FR 77776 (``. . . ORR requires that all care
provider facilities refer all allegations, regardless of how an
allegation is made or who it comes from, to the proper investigating
authorities. ORR and care provider facilities have no control over
whether law enforcement, Child Protective Services, or a State or
local licensing agency conducts an investigation. Both ORR and care
provider facilities, however, must attempt to remain informed of
ongoing investigations and fully cooperate as necessary.'').
\70\ See 8 U.S.C. 1232(b)(1).
\71\ See FSA at paragraph 19.
\72\ 8 U.S.C. 1232(b)(1).
\73\ 6 U.S.C. 279(b)(1)(A).
\74\ See, e.g., paragraph 10 (defining the class in the action
as ``All minors who are detained in the legal custody of the INS'');
paragraph 14E (listing ``a licensed program willing to accept legal
custody'' within the preferred order of release of children;
paragraph 19 (``in any case in which the INS does not release a
minor pursuant to paragraph 14, the minor shall remain in INS legal
custody . . . All minors placed in . . . a licensed program remain
in the legal custody of the INS and may only be transferred or
released under the authority of the INS . . .'').
\75\ Jenny L. Flores v. William P. Barr, No. CV854544DMGAGRX,
2020 WL 5491445, at *3 (C.D. Cal. Sept. 4, 2020).
\76\ 6 U.S.C. 279(b)(1). See also 8 U.S.C. 1232(c)(2)(A).
\77\ 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 return to the
child's country of nationality or of last habitual residence. If the
child does not meet the criteria to return or no determination can
be made within 48 hours of apprehension, 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). ORR reads
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 final rule.
\78\ ORR has existing policies relating to the placement and
transfer of Saravia class members, defined as noncitizen minors who
(1) came to the United States as unaccompanied children, as defined
at 6 U.S.C. 279(g)(2); (2) were previously detained in the custody
of ORR but then released to a sponsor by ORR; and (3) have been or
will be rearrested by DHS on the basis of a removability warrant
based in whole or in part on allegations of gang affiliation. 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. 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.
\79\ 8 U.S.C. 1232(b)(3).
\80\ See, e.g., ORR Policy Guide 1.1.
\81\ See also infra preamble discussion at subpart C.
\82\ 8 U.S.C. 1232(b)(3).
\83\ See 8 U.S.C. 1232(b)(2), (3).
\84\ See www.acf.hhs.gov/orr/fact-sheet/programs/uc/influx-care-facilities-fact-sheet.
\85\ See FSA paragraph 21.
\86\ See generally 6 U.S.C. 279(b)(1).
\87\ See FSA at paragraph 19 and Exhibit 3.
\88\ The case manager is the case manager assigned at the
child's initial in-network placement.
\89\ See 8 U.S.C. 1232(c).
\90\ ORR is adopting recommendations to use the term ``LGBTQI+
status or identity'' in the final rule in lieu of ``LGBTQI+ status''
as proposed in the NPRM. As used by ORR, these terms have the same
meaning. Accordingly, for clarity, ORR has replaced ``LGBTQI+
status'' with ``LGBTQI+ status or identity'' in this final rule.
\91\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c)(2).
\92\ See 8 U.S.C. 1232(c)(2)(A); see also 2019 Final Rule at
Sec. 410.203(c).
\93\ See 6 U.S.C. 279(b)(1)(C) and (D).
\94\ See 8 U.S.C. 1232(b)(3).
\95\ See 6 U.S.C. 279(b)(2)(A).
\96\ 6 U.S.C. 279(b)(2)(A).
\97\ ORR notes that under 45 CFR 411.11(c), care provider
facilities must have a written policy mandating zero tolerance
toward all forms of sexual abuse and sexual harassment and outlining
the care provider facility's approach to preventing, detecting, and
responding to such conduct. Under 45 CFR 411.11(a), the care
provider facility also must ensure that all policies and services
related to part 411 are implemented in a culturally sensitive and
knowledgeable manner that is tailored for a diverse population.
\98\ See ORR Policy Guide 1.2.2.
\99\ 45 CFR 87.3(c); see also 45 CFR 87.3(e) (2014).
\100\ 45 CFR 87.3(b) and (n) (2014).
\101\ 88 FR 66752.
\102\ See, e.g., 6 U.S.C. 279(b)(2)(A)(ii); 8 U.S.C. 1232(c)(1).
\103\ 8 U.S.C. 1232(c)(2)(A).
\104\ The Office of Refugee Resettlement Needs to Improve Its
Oversight Related to the Placement and Transfer of Unaccompanied
Children (A-06-20-07002), May 2023.
\105\ 6 U.S.C. 279(b)(1).
\106\ 8 U.S.C. 1232(c)(2)(A).
\107\ 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.'').
\108\ 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.'').
\109\ FSA at paragraph 21C.
\110\ See also Order Re Plaintiffs' Motion to Enforce Class
Action Settlement at *11, Flores v. 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).
\111\ See 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.'').
\112\ See 6 U.S.C. 279(b)(1)(G).
\113\ See, e.g., Sec. Sec. 410.1003, 410.1103, 410.1300,
410.1302, 410.1801(b)).
\114\ See 8 U.S.C. 1232(c)((2)(A)).
\115\ See, e.g., Sec. Sec. 410.1302 through 1309, 1311.
\116\ 8 U.S.C. 1232(c)(2)(A).
\117\ See generally subpart J.
\118\ 8 U.S.C. 1232(c)(2)(A).
\119\ Id.
\120\ See FSA at paragraph 21A (``. . . is the subject of
delinquency proceedings, has been adjudicated delinquent, or is
chargeable with a delinquent act . . .'').
\121\ The Family First Prevention Services Act, which was
enacted as part of Public Law 115-123 and established a Title IV-E
prevention program in the domestic child welfare context, defines
the term Qualified Residential Treatment Program at 42 U.S.C.
672(k)(4).
\122\ 53 FR 25591, 25600 (July 8, 1988).
\123\ 8 U.S.C. 1232(c)(2)(A).
\124\ 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 . . .'').
\125\ 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 . . .''
\126\ 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.
\127\ 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'').
\128\ 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.''
\129\ See, e.g., Nat'l Archives & Records Admin. v. Favish, 541
U.S. 157, 174 (2004).
\130\ 8 U.S.C. 1232(c)(3)(A).
\131\ 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,
[[Page 34614]]
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.'').
\132\ See 6 U.S.C. 279(b)(1); see also 8 U.S.C. 1232(c)(2)(A).
\133\ See FSA at paragraph 14.
\134\ See 8 U.S.C. 1232(c)(2)(A) (requiring HHS to ``promptly''
place unaccompanied children).
\135\ See 88 FR 68928.
\136\ 8 U.S.C. 1232(c)(3)(A).
\137\ See 8 U.S.C. 1232(c)(3)(A); see also FSA paragraph 17.
\138\ See 8 U.S.C. 1232(c)(3).
\139\ See 8 U.S.C. 1232(c)(3).
\140\ 8 U.S.C. 1232(c)(3).
\141\ See, e.g., 6 U.S.C. 279(b)(2).
\142\ 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); 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.
(prohibiting public schools from discriminating on the basis of
race, color, or national origin).
\143\ 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.
\144\ See, e.g., ORR Policy Guide 2.1, 2.2.
\145\ ORR. Unaccompanied Children Fact Sheet. https://www.acf.hhs.gov/orr/about/ucs/facts-and-data#lengthofcare.
\146\ See 8 U.S.C. 1232(c)(3)(B).
\147\ 8 U.S.C. 1232(c)(3)(A).
\148\ 8 U.S.C. 1232(c)(1).
\149\ 8 U.S.C. 1232(c)(3)(A).
\150\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c).
\151\ See, e.g., 8 U.S.C. 1232(c) and (c)(3)(A); and 6 U.S.C.
279(b)(1).
\152\ Id.
\153\ A home study provider is a non-governmental agency funded
by ORR to conduct home studies.
\154\ Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at 42,
No. 18-CV-5741 (C.D. Cal.).
\155\ Id. at 41. In the Court's Summary Judgment Order, the
Court was addressing instances where providing information to the
child may cause distress to the child. Here, ORR is recognizing that
by providing some information to a sponsor, the child may also be
harmed.
\156\ Id.
\157\ Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at 37,
No. 18-CV-5741 (C.D. Cal.).
\158\ See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(c).
\159\ See 8 U.S.C. 1232(c)(1).
\160\ See Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at
40, No. 18-CV-5741 (C.D. Cal.) (``Furthermore, in recognition of
ORR's need to serve thousands of minors and potential sponsors and
the limited liberty interests at issue for minors with no familial
sponsor, the Court will not require such notice or an opportunity to
be heard for denial of a Category 3 sponsor.''). The definition of a
Category 3 sponsor as relied on by the court in Lucas R. includes
distant relatives and unrelated adult individuals. Id. at 11.
\161\ ORR is revising the heading of Sec. 410.1207 to update
the term ``release application'' to ``sponsor application,'' which
is consistent with the terminology used in ORR's policies regarding
release. See ORR Policy Guide 2.7.9. For clarity, ORR is also
updating the term ``release application'' to ``sponsor application''
throughout the rest of this final rule, even where summarizing NPRM
language, which used the term ``release application.''
\162\ See ORR Policy Guide 2.7.9.
\163\ 8 U.S.C. 1232(c)(2)(A).
\164\ See 45 CFR 400.115.
\165\ See generally 45 CFR 410.1001; 6 U.S.C. 279(b)(1); 8
U.S.C. 1232(c).
\166\ See 8 U.S.C. 1101(a)(27)(J). See also 8 U.S.C. 1232(d)(2).
\167\ See, e.g., 8 U.S.C. 1232(d).
\168\ 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.
\169\ Administration for Children and Families. Program
Instruction: Specific Consent Requests. Issued Dec. 9, 2009.
Available at https://www.acf.hhs.gov/sites/default/files/documents/orr/special_immigrant_juvenile_status_specific_consent_program.pdf.
\170\ See, e.g., Administration for Children and Families.
Program Instruction: Specific Consent Requests. Issued Dec. 9, 2009.
Available at https://www.acf.hhs.gov/sites/default/files/documents/orr/special_immigrant_juvenile_status_specific_consent_program.pdf.
\171\ See 8 U.S.C. 1232(c)(3)(B).
\172\ See Section 6 of the ORR Policy Guide.
\173\ See 8 U.S.C. 1232(c)(3)(B).
\174\ ORR's revised PRS policies state that all released
children are eligible to receive PRS.
\175\ ORR Policy 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.
\176\ The types of services that would be available as part of
PRS are described in ORR Policy Guide 6.2.5 through 6.5.
\177\ The types of services that would be available as part of
PRS are described in ORR Policy Guide 6.2.5 through 6.5.
\178\ 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.
\179\ Currently, ORR provides three levels of PRS--Levels One,
Two, and Three. See ORR Policy Guide 6.3 through 6.5.
\180\ ORR notes that care provider facilities currently conduct
safety and well-being follow-up calls 30 days after the
unaccompanied child's release date.
\181\ See ORR Policy Guide 6.4, 6.5, and 6.6 (requiring PRS
providers to start PRS within two (2) days of the child's release
from ORR custody for Level Two and Three PRS).
\182\ As revised since publication of the NPRM, ORR Policy Guide
6.3 states that for Level One PRS, PRS providers conduct three
virtual check-ins at seven (7) business days, fourteen (14) business
days, and thirty (30) business days after the child's release from
ORR custody to a sponsor. ORR Policy Guide 6.4 states that for Level
Two PRS, PRS case managers must make initial contact with the child
and/or sponsor within two (2) business days of a referral being
accepted by the PRS provider. ORR Policy Guide 6.5 states that for
Level Three PRS, a PRS clinician must make initial contact with the
child and/or sponsor within two (2) business days of a referral
being accepted by the PRS provider.
\183\ ORR revised the termination guidelines, and they vary by
PRS level and are described in ORR Policy Guide 6.3 through 6.6.
\184\ ORR Policy Guide 6.8.6 describes the list of reasons for
concern that necessitates the PRS provider to submit a NOC.
\185\ ORR Policy Guide 6.8.6.
\186\ 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 . . .'').
\187\ See ORR Policy Guide 6.2.3 (describing identification of
appropriate services).
\188\ 8 U.S.C. 1232(c)(3)(B).
\189\ See generally ORR Policy Guide 6.1; 6.2.9; and 6.2.13.
\190\ See, e.g., ORR Guide 6.2.4 (requiring PRS providers to
help educate children and their sponsor families on identifying
risks and red flags that may lead to child exploitation; sex and
labor trafficking; substance abuse; physical, emotional, or sexual
abuse; coercion by gangs or gang affiliation; or other situations
where the child would be in danger or at risk of harm).
\191\ See, e.g., ORR Policy Guide at 6.2.8; 6.2.9; 6.2.10.
\192\ See ORR Policy Guide 6.2.5 (stating that the PRS case
manager refers the sponsor to legal services that can assist with
establishing guardianship with a local court in a reasonable
timeframe).
\193\ 45 CFR 87.3(c) (2014).
\194\ 45 CFR 87.3(b) and (n).
\195\ See ORR Policy Guide 6.3 through 6.6.
\196\ See ORR Policy Guide 6.2.1.
\197\ See ORR Policy Guide 6.1; 6.2.13.
\198\ The Refugee Health Screener-15 ``screens for common mental
health conditions (anxiety, depression, PTSD, adjustment, coping),
but not for domestic violence, substance use, or psychotic
disorders.'' CDC. (2022, March 24). Guidance for Mental Health
Screening during the Domestic Medical Examination for Newly Arrived
Refugees. https://www.cdc.gov/immigrantrefugeehealth/guidelines/
[[Page 34615]]
domestic/mental-health-screening-guidelines.html.
\199\ The Trauma History Profile is a tool ``comprehensive list
of trauma, loss, and separation exposures paired with a rating scale
on which the interviewer records whether each trauma occurred or was
suspected to occur.'' Betancourt, T.S., Newnham, E.A., Layne, C.M.,
Kim, S., Steinberg, A.M., Ellis, H., & Birman, D. (2012). Trauma
History and Psychopathology in War-Affected Refugee Children
Referred for Trauma-Related Mental Health Services in the United
States. Journal of Traumatic Stress, 25(6), 682-690. https://doi.org/10.1002/jts.21749.
\200\ See ORR Policy Guide 6.2.7.
\201\ See ORR Policy Guide 6.7.3.
\202\ See generally ORR Policy Guide 6.3 through 6.6.
\203\ See ORR Policy Guide 6.3 through 6.6.
\204\ See ORR Policy Guide 6.3; 6.4; 6.5.
\205\ See ORR Policy Guide 6.8.5.
\206\ See also ORR Policy Guide 6.9.
\207\ See, e.g., ORR Policy Guide 6.2.5; 6.2.6; and 6.2.7.
\208\ See ORR Policy Guide 6.8.2 (stating PRS providers must
upload all PRS documentation to ORR's online case management system
within five to seven days of completion).
\209\ See ORR Policy Guide 6.8.7.
\210\ See ORR Policy Guide 6.8.2.
\211\ See, e.g., 45 CFR 75.364 (``The HHS awarding agency,
Inspectors General, the Comptroller General of the United States,
and the pass-through entity, or any of their authorized
representatives, must have the right of access to any documents,
papers, or other records of the non-Federal entity which are
pertinent to the Federal award, in order to make audits,
examinations, excerpts, and transcripts. The right also includes
timely and reasonable access to the non-Federal entity's personnel
for the purpose of interview and discussion related to such
documents.'').
\212\ See ORR Policy Guide 6.8.3.
\213\ See ORR Policy Guide 6.8.3.
\214\ See 5 U.S.C. 552a(b).
\215\ See 81 FR 46683 (``As a matter of discretion, ORR will
treat information that it maintains in its mixed systems of records
as being subject to the provisions of the Privacy Act, regardless of
whether or not the information relates to U.S. persons covered by
the Privacy Act.'').
\216\ See 5 U.S.C. 552a(h) (``For the purposes of this section,
the parent of any minor, or the legal guardian of any individual who
has been declared to be incompetent due to physical or mental
incapacity or age by a court of competent jurisdiction, may act on
behalf of the individual.'').
\217\ See ORR Policy Guide 6.8.5.
\218\ See 5 U.S.C. 552a(b).
\219\ See ORR Policy Guide 6.8.6.
\220\ See ORR Policy Guide 6.2.1.
\221\ See ORR Policy Guide 6.3 through 6.6.
\222\ See, e.g., 8 U.S.C. 1232(c)(1).
\223\ See ORR Policy Guide 6.2.1.
\224\ See ORR Policy Guide 6.3 through 6.6.
\225\ See, e.g., 45 CFR 75.371 (describing remedies for
noncompliance with Federal statutes, regulations, or the terms and
conditions of a Federal award).
\226\ See ORR Policy Guide 6.9.2.
\227\ For reasons discussed in our responses to comments
received regarding Sec. 410.1307(c), ORR is updating the regulation
to state that the ORR employee is required to abide by their Federal
duties ``subject to applicable Federal religious freedom and
conscience protections.''
\228\ Dietary Guidelines for Americans. Available at https://www.dietaryguidelines.gov/current-dietary-guidelines.
\229\ See 45 CFR part 87.
\230\ See, e.g., FSA at paragraphs 6, 12, and 19; see also
paragraph 40, as amended.
\231\ FSA paragraph 6.
\232\ See 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.
\233\ See 26 Tex. Admin. Code 745.115.
\234\ Fl. Executive Order No. 21-223 (Sep. 28, 2021), available
at: https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf.
\235\ S.C. Exec. Order No. 2021-19 (Apr. 12, 2021), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2021-04-12%20FILED%20Executive%20Order%20No.%202021-19%20-%20Prioritizing%20SC%20Children.pdf.
\236\ See ORR Fact Sheets and Data, available at https://www.acf.hhs.gov/orr/about/ucs/facts-and-data.
\237\ Calculations based on data available at ORR, Unaccompanied
Children Released to Sponsors by State, https://www.acf.hhs.gov/orr/grant-funding/unaccompanied-children-released-sponsors-state (last
accessed Feb. 14, 2024).
\238\ See, e.g., ORR Policy Guide 3.5.
\239\ See ORR Policy Guide 3.5.
\240\ https://www.dol.gov/agencies/whd/resources/videos/know-your-rights.
\241\ 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).
\242\ 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.
\243\ 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.
\244\ See 6 U.S.C. 279(b).
\245\ See 8 U.S.C. 1232(c)(1); see also id. at 1232(b).
\246\ See 81 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[.]'').
\247\ Exposing the Risks of Deliberate Ignorance: Years of
Mismanagement and Lack of Oversight by the Office of Refugee
Resettlement, Leading to Abuses and Substandard Care of
Unaccompanied Alien Children October 2021, available at: https://www.finance.senate.gov/imo/media/doc/102821%20Finance%20Committee%20Report%20ORR%20UAC%20Program.pdf.
\248\ See, e.g., 45 CFR 75.371.
\249\ H.R. REP. 116-450.
\250\ See 81 FR 46683.
\251\ 8 U.S.C. 1232(c)(6)(A).
\252\ See Joint Motion for Preliminary Approval of Class Action
Settlement, And to Certify Settlement Class, Ms. L. v. U.S Immigr. &
Customs Enf't, No. 3:18-cv-00428, (S.D. Cal. Oct. 16, 2023), ECF No.
711; Order Granting Final Approval of Settlement Agreement and
Certifying the Settlement Classes, Ms. L. v. U.S Immigr. & Customs
Enf't, No. 3:18-cv-00428, (S.D. Cal. Dec. 11, 2023), ECF No. 727.
\253\ See, e.g., 45 CFR 75.364(a).
\254\ See 6 U.S.C. 279(b)(1)(G).
\255\ 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.
\256\ See 45 CFR 87.3(a).
\257\ Atena Aire. How to Build Language Justice. (pg. 4).
Available at: https://antenaantena.org/wp-content/uploads/2020/10/AntenaAire_HowToBuildLanguageJustice.pdf.
\258\ See, e.g., ORR Policy Guide 4.3.5, Staff Code of Conduct.
\259\ See ORR Policy Guide 3.3.7 and 4.3.6.
\260\ See, e.g., Administration for Children and Families. Field
Guidance #22--Interpreters Working with the Unaccompanied Children
(UC) Program. Available at https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-22_interpreters-at-ucp-sites_10.26.2021-v2.pdf.
\261\ See ORR Policy Guide 5.9.
\262\ See, e.g., Policy Memorandum, Medical Services Requiring
Heightened ORR Involvement, available at https://www.acf.hhs.gov/sites/default/files/documents/orr/garza_policy_memorandum.pdf; 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) (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).
\263\ See 6 U.S.C. 279(b)(1)(B), (E).
\264\ 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.
\265\ See 45 CFR part 87.
\266\ 6 U.S.C. 279(b)(1)(B), (E).
\267\ Administration for Children and Families. Field Guidance
#21--Compliance with Garza Requirements and Procedures for
Unaccompanied Children Needing
[[Page 34616]]
Reproductive Healthcare, available at https://www.acf.hhs.gov/sites/default/files/documents/orr/field-guidance-21.pdf.
\268\ 6 U.S.C. 279(b)(1)(B), (E)).
\269\ See Administration for Children and Families. 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.
\270\ Administration for Children and Families. 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.
\271\ Administration for Children and Families. Policy
Memorandum, Medical Services Requiring Heightened ORR Involvement,
available at https://www.acf.hhs.gov/sites/default/files/documents/orr/garza_policy_memorandum.pdf.
\272\ 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.
\273\ 6 U.S.C. 279(b)(1)(B), (E)).
\274\ See Administration for Children and Families, Policy
Memorandum, Medical Services Requiring Heightened ORR Involvement
(Sept. 29, 2020), available at https://www.acf.hhs.gov/sites/default/files/documents/orr/garza_policy_memorandum.pdf.
\275\ See 6 U.S.C. 279(b)(1)(B); see also 1 U.S.C. 8(a).
\276\ Administration for Children and Families. Policy
Memorandum, Medical Services Requiring Heightened ORR Involvement,
available at https://www.acf.hhs.gov/sites/default/files/documents/orr/garza_policy_memorandum.pdf.
\277\ Administration for Children and Families. 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.
\278\ 85 FR 82037, codified under 45 CFR Part 87.
\279\ 89 FR 2078, codified under 45 CFR Part 88.
\280\ See GAO, April 19, 2016, ``Unaccompanied Children: HHS
Should Improve Monitoring and Information Sharing Policies to
Enhance Child Advocate Program Effectiveness,'' GAO-16-367.
\281\ 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 . . .'').
\282\ 8 U.S.C. 1232(c)(6)(A).
\283\ See 8 U.S.C. 1232(c)(6)(A).
\284\ See 6 U.S.C. 279(b)(1)(B), (E), and (G).
\285\ See Joint Motion for Preliminary Approval of Class Action
Settlement, And to Certify Settlement Class, Ms. L. v. U.S. Immigr.
& Customs Enf't, No. 3:18-cv-00428, (S.D. Cal. Oct. 16, 2023), ECF
No. 711; Order Granting Final Approval of Settlement Agreement and
Certifying the Settlement Classes, Ms. L. v. U.S. Immigr. & Customs
Enf't, No. 3:18-cv-00428, (S.D. Cal. Dec. 11, 2023), ECF No. 727.
\286\ 8 U.S.C. 1232(c)(6)(A).
\287\ See FSA, Exhibit 1, paragraph A14 (``Legal services
information regarding the availability of free legal assistance, the
right to be represented by counsel at no expense to the Government .
. .''). 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 A14 but
updated to avoid potential confusion. As discussed above, 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.
\288\ 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.
\289\ See 8 U.S.C. 1232(c)(5).
\290\ ORR cited the expansion of legal services in its budget
request for FY 2024. ACF, Fiscal Year 2024 Justification for
Estimates for Appropriations Committees, https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2024-congressional-justification.pdf.
\291\ 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), ECF No.
141.
\292\ Order re Preliminary Approval of Settlement and Approval
of the Parties' Joint Proposal re Notice to Lucas R Class Members of
Settlement of Plaintiffs' Third, Fourth, and Fifth Claims for Relief
[Psychotropic Medications, Legal Representation, and Disability,
Lucas R. v. Becerra, No. 2:18-cv-05741 (C.D. Cal. Jan. 5, 2024), ECF
No. 410.
\293\ 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).
\294\ 45 CFR 85.21(d).
\295\ 53 FR 25595, 25600 (July 8, 1988).
\296\ See 8 U.S.C. 1232(b)(3).
\297\ See 8 U.S.C. 1232(b)(3).
\298\ 6 U.S.C. 279(b)(1)(J).
\299\ 8 U.S.C. 1232(c)(3)(A).
\300\ See 8 U.S.C. 1232(b)(4).
\301\ See 6 U.S.C. 279(g)(2).
\302\ See 1.6.2 Instructions for Age Determinations at https://www.acf.hhs.gov/orr/policy-guidance/cunaccompanied-children-program-policy-guide-record-posting-and-revision-dates.
\303\ Office of the Inspector General. February 8, 2022. CBP
Officials Implemented Rapid DNA Testing to Verify Claimed Parent-
Child Relationships https://www.oig.dhs.gov/sites/default/files/assets/2022-02/OIG-22-27-Feb22.pdf.
\304\ ORR 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.
\305\ See 8 U.S.C. 1232(b)(4).
\306\ ORR Policy Guide 7.2.2.
\307\ See, e.g., FSA paragraph 12A; Exhibit 3.
\308\ See ORR Influx Care Facilities for Unaccompanied Children
Fact Sheet (March 1, 2024), available at: https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/influx-care-facilities-fact-sheet.
Accessed on March 1, 2024.
\309\ See Flores v. Lynch, 212 F. Supp. 3d 907, 914 (C.D. Cal.
2015), aff'd in part, rev'd in part and remanded, 828 F.3d 898 (9th
Cir. 2016).
\310\ See ORR Fact Sheets and Data, available at: https://www.acf.hhs.gov/orr/fact-sheet/programs/uc/influx-care-facilities-fact-sheet.
\311\ ``Each year the INS will reevaluate the number of regular
placements needed for detained minors to determine whether the
number of regular placements should be adjusted to accommodate an
increased or decreased number of minors eligible for placement in
licensed programs . . .''
\312\ See 45 CFR 87.3(a).
\313\ In this final rule, ORR is updating this language to
clarify that ORR employees must abide by their Federal duties if
there is a conflict between ORR's regulations and State law, subject
to applicable Federal conscience protections and civil rights.
\314\ See 6 U.S.C. 279(b)(1)(B); 8 U.S.C. 1232(c)(2)(A).
\315\ See, e.g., Public Law 117-328, Div. H, Tit. II, Sec. 231.
\316\ See ORR Policy Guide 7.2.1.
\317\ For example, U.S. Department of Defense or other Federal
sites may have this requirement.
\318\ In Sec. 410.1001, restrictive placement is defined to
include a secure facility, heightened supervision facility, or RTC.
\319\ 8 U.S.C. 1232(c)(2)(A).
\320\ 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.
\321\ Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at 28,
No. 18-CV-5741 (C.D. Cal.).
\322\ Lucas R v. Becerra, Summ. J. Order, Mar. 11, 2022, at 28,
No. 18-CV-5741 (C.D. Cal.).
\323\ Id. at 31.
\324\ See FSA at paragraph 24A.
\325\ See 6 U.S.C. 279(a).
\326\ See Flores v. Rosen, 984 F. 3d 720, 736 (9th Cir. 2020).
\327\ See, e.g., 8 CFR 1003.19, 1236.1.
\328\ 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
[[Page 34617]]
before an independent officer to determine whether the unaccompanied
children in fact posed a risk of flight if released from custody.
\329\ 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.'').
\330\ Flores v. Rosen, 984 F.3d 720, 734 (9th Cir. 2020).
\331\ 6 U.S.C. 279(b)(1)(B).
\332\ See, e.g., 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); 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 independence, confidentiality, and impartiality are essential
to the ombudsman profession.).
\333\ 2016 ACUS Report at 28.
\334\ 8 U.S.C. 1232(c)(1).
\335\ 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).
\336\ 2016 ACUS Report at 28.
\337\ 2016 ACUS Report at 29.
\338\ 2016 ACUS Report at 2.
\339\ 2016 ACUS Report at 56.
\340\ 2016 ACUS Report at 66.
\341\ 2016 ACUS Report at 41.
\342\ https://aspe.hhs.gov/reports/valuing-time-us-department-health-human-services-regulatory-impact-analyses-conceptual-framework.
\343\ https://www.bls.gov/news.release/pdf/wkyeng.pdf. Accessed
February 13, 2024.
\344\ https://www.census.gov/library/stories/2023/09/median-household-income.html. Accessed February 13, 2024.
\345\ https://www.bls.gov/oes/current/oes231011.htm. Accessed
February 13, 2024.
\346\ Under OMB control number 0970-0565, it is assumed these
forms will be completed by ``Child, Family, and School Social
Workers in the industry of Other Residential Care Facilities''. The
most recent BLS mean wage rate associated with this occupation is
$21.47 per hour (https://www.bls.gov/oes/current/oes211021.htm;
accessed February 13, 2024). Including a 100% adjustment for
overhead and fringe, this wage rate is calculated to be $21.47 x 2
or $42.94 per hour.
\347\ Annual Report to Congress, Office of Refugee Resettlement
(FY 2019), https://www.acf.hhs.gov/sites/default/files/documents/orr/orr-arc-fy2019.pdf.
\348\ 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.
\349\ Id. at 77.
\350\ https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2025-congressional-justification.pdf.
\351\ https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A76/a76_incl_tech_correction.pdf.
\352\ 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).
\353\ 6 U.S.C. 279(a).
\354\ 6 U.S.C. 279(f)(1).
\355\ 8 U.S.C. 1232(b)(1) (referencing 6 U.S.C. 279).
\356\ INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 8 CFR 2.1
(2002).
\357\ See 6 U.S.C. 279(e) and (f). See also 6 U.S.C. 552, 557; 8
U.S.C. 1232(b)(1).
\358\ See Flores v. Rosen, 984 F. 3d 720, 737 (9th Cir. 2020).
[FR Doc. 2024-08329 Filed 4-23-24; 8:45 am]
BILLING CODE 4184-45-P