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Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children

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Start Preamble Start Printed Page 44392

AGENCY:

U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Homeland Security (DHS); U.S. Customs and Border Protection (CBP), DHS; Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS).

ACTION:

Final rule.

SUMMARY:

This final rule amends regulations relating to the apprehension, processing, care, custody, and release of alien juveniles. The rule replaces regulations that were promulgated in 1988 in response to a lawsuit filed in 1985 against the Attorney General and the Department of Justice's legacy U.S. Immigration and Naturalization Service (INS), in Flores v. Meese. In January 1997, the parties reached a comprehensive settlement agreement, referred to as the Flores Settlement Agreement (FSA). The FSA, as modified in 2001, provides that it will terminate forty-five days after publication of final regulations implementing the agreement. Since 1997, intervening legislation, including the Homeland Security Act of 2002 (HSA) and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), have significantly altered the governing legal authorities relating to the detention, custody, processing, and release of alien juveniles. This final rule adopts regulations that implement the relevant and substantive terms of the FSA, consistent with the HSA and the TVPRA, with some modifications discussed further below to reflect intervening statutory and operational changes while still providing similar substantive protections and standards. The final rule satisfies the basic purpose of the FSA in ensuring that all alien juveniles in the government's custody pursuant to its authorities under the immigration laws are treated with dignity, respect, and special concern for their particular vulnerability as minors, while doing so in a manner that is workable in light of subsequent statutory, factual, and operational changes and builds on the government's extensive experience working under the FSA. Most prominently, in response to great difficulty working under the state-licensing requirement for family residential centers, the final rule creates an alternative to the existing licensed program requirement for ICE family residential centers, so that ICE may use appropriate facilities to detain family units together during their immigration proceedings, consistent with applicable law.

DATES:

Effective October 22, 2019.

ADDRESSES:

Comments and related materials received from the public, as well as background documents mentioned in this preamble as being available in the docket, are part of docket DHS Docket No. ICEB-2018-0002. For access to the online docket, go to https://www.regulations.gov and enter this rulemaking's eDocket number: DHS Docket No. ICEB-2018-0002 in the “Search” box.

Start Further Info

FOR FURTHER INFORMATION CONTACT:

For DHS: Office of Policy and Planning, U.S. Immigration and Customs Enforcement, Department of Homeland Security, 500 12th Street SW, Washington, DC 20536. Telephone 202-732-6960 (not a toll-free number).

For HHS: Division of Policy, Office of the Director, Office of Refugee Resettlement, Administration for Children and Families, by email at UACPolicy@acf.hhs.gov. Office of Refugee Resettlement, 330 C Street SW, Washington, DC 20201. Telephone 202-401-9246.

End Further Info End Preamble Start Supplemental Information

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Table of Abbreviations

II. Executive Summary

A. Purpose of the Regulatory Action

B. Legal Authority

C. Costs and Benefits

D. Effective Date

III. Background and Purpose

A. History

1. The Flores Settlement Agreement

2. The Reorganization of the Immigration and Naturalization Service

3. The Change in Migration and the Creation of the Family Residential Centers

B. Authority

1. Statutory and Regulatory Authority

2. Flores Settlement Agreement Implementation

3. Recent Court Orders

C. Basis and Purpose of Regulatory Action

1. Need for Regulations Implementing the Relevant and Substantive Terms of the FSA

2. Purpose of the Regulations

D. Severability

IV. Summary of Changes in the Final Rule

V. Discussion of Public Comments and Responses

A. Section-by-Section Discussion of the DHS Proposed Rule, Public Comments, and the Final Rule

B. Section-by-Section Discussion of the HHS Proposed Rule, Public Comments, and the Final Rule

C. Other Comments Received

VI. Statutory and Regulatory Requirements

A. Executive Orders 12866 and 13563: Regulatory Review

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act of 1996

D. Unfunded Mandates Reform Act of 1995

E. Congressional Review Act

F. Paperwork Reduction Act

G. Executive Order 13132: Federalism

H. Executive Order 12988: Civil Justice Reform

I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

J. National Environmental Policy Act (NEPA)

K. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights

L. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

M. National Technology Transfer and Advancement Act

N. Family Assessment

List of Subjects and Regulatory Amendments

I. Table of Abbreviations

ACF—Administration for Children and Families

BPA—U.S. Border Patrol Agent

CBP—U.S. Customs and Border Protection

DHS—U.S. Department of Homeland Security

DOJ—U.S. Department of Justice

EOIR—Executive Office for Immigration Review

FRC—Family Residential Center

FSA—Flores Settlement Agreement

HHS—U.S. Department of Health and Human Services

HSA—Homeland Security Act of 2002

ICE—U.S. Immigration and Customs Enforcement

IIRIRA—Illegal Immigration Reform and Immigrant Responsibility Act of 1996

INA—Immigration and Nationality Act

INS—Immigration and Naturalization Service

JFRMU—Juvenile and Family Residential Management Unit

OFO—Office of Field Operations, U.S. Customs and Border Protection

OMB—Office of Management and Budget

ORR—Office of Refugee Resettlement, U.S. Department of Health and Human Services

PREA—Prison Rape Elimination Act of 2003

TVPRA—William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

UAC(s)—Unaccompanied Alien Child(ren)

USCIS—U.S. Citizenship and Immigration Services

USBP—U.S. Border Patrol, U.S. Customs and Border Protection

YTD—Year to Date

Start Printed Page 44393

II. Executive Summary

A. Purpose of the Regulatory Action

On September 7, 2018, the Department of Homeland Security (DHS) and the Department of Health and Human Services (HHS), (the “Departments”) published a notice of proposed rulemaking (NPRM or proposed rule) that would amend regulations related to the Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children. See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children; Proposed Rule, 83 FR 45486 (Sept. 7, 2018). The proposed rule provided a 60-day public comment period ending on November 6, 2018.

This final rule adopts the proposed rule, with some changes in response to comments. The final rule parallels the relevant and substantive terms of the Flores Settlement Agreement (FSA), with changes as are necessary to implement closely-related provisions of the Homeland Security Act of 2002 (HSA), Public Law 107-296, sec. 462, 116 Stat. 2135, 2202, and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457, title II, subtitle D, 122 Stat. 5044.

This final rule also takes into account changes in factual circumstances since the time the FSA was approved in 1997 as well as extensive experience over the past twenty years operating the immigration system under the FSA. The rule thus reflects the operational environment and ensures that the regulations accomplish a sound and proper implementation of governing Federal statutes—including statutes requiring DHS to retain custody of aliens arriving at or crossing our borders without inspection during the pendency of immigration proceedings. It carefully considers public comments, and sets forth for DHS a sustainable operational model of immigration enforcement, and for HHS, codifies existing policies, procedures, and practices related to the temporary care and custody of UACs.

For example, one shift since the FSA entered into force in 1997 has been the 2015 judicial interpretation of the agreement as applying to accompanied minors, i.e., juveniles encountered with their parents or legal guardians. DHS strongly disagrees with that interpretation and disagrees that the FSA provisions were suited to handling the challenging circumstances that are presented—in exponentially more cases than in 1997—when aliens are apprehended in family units. Indeed, the Federal courts have agreed that the FSA was not designed to address the current-day circumstances presented by accompanied minors. See Flores, 828 F.3d 898, 906 (9th Cir. 2016) (“the parties gave inadequate attention to some potential problems of accompanied minors”). The FSA's application to accompanied minors has created a series of operational difficulties for DHS, most notably with respect to a state-licensing requirement for an ICE Family Residential Center (FRC) in which such parents/legal guardians may be housed together with their children during immigration proceedings, the need for custody of parents and accompanied minors as required by the immigration laws in certain circumstances, and avoiding the need to separate families to comply with the FSA when immigration custody is necessary for a parent.

Additionally, changes to the operational environment since 1997, as well as the enactment of the HSA and the TVPRA, have rendered some of the substantive terms of the FSA outdated or unsuited to current conditions at the border, similarly making simultaneous compliance with the HSA, the TVPRA, other immigration laws, and the FSA problematic without modification. These provisions are designed to implement the substantive and underlying purpose of the FSA, by ensuring that alien juveniles detained by DHS pursuant to the immigration laws, and UACs who are transferred to the temporary care and custody of HHS, are provided protections that are substantively parallel to protections under the FSA, taking into account intervening developments and changed circumstances. The Departments have also considered comments from the public, and this rule incorporates some adjustments from the proposed regulations based on those comments. The primary purpose of this rule is to codify the purposes of the FSA in regulations, namely, to establish uniform standards for the custody and care of alien juveniles during their immigration proceedings and to ensure they are treated with dignity and respect. The rule accordingly implements the FSA.

Summary of Key Provisions of the Final Rule

As part of the process of codifying the purpose of the FSA into regulations, the final rule clarifies and improves certain policies and practices related to:

• Parole

In the NPRM, DHS proposed to amend 8 CFR 212.5(b), Parole of aliens into the United States, by removing an internal cross-reference to 8 CFR 235.3(b). Eliminating that cross-reference is required to clarify that the provisions in § 235.3(b) governing the parole of aliens in expedited removal proceedings (i.e., those pending a credible fear determination or who have been ordered removed in the expedited removal process but still await removal) apply to all such aliens, including minors in DHS custody, and not just adults. The current cross-reference to § 235.3(b) within § 212.5(b) is confusing because it suggests, incorrectly, that the more flexible parole standards in § 212.5(b) might override the provisions in § 235.3(b) that govern parole when any alien, including a minor, is in expedited removal proceedings.

Many commenters expressed concern about a more restrictive parole standard that would allow minors in expedited removal proceedings who have not yet been found to have a credible fear of persecution (or who have been found to lack such a fear) to be paroled only on the basis of medical emergency or law enforcement necessity, the same standards applicable to adult aliens in expedited removal proceedings, while their credible fear claim remains pending.

Many commenters expressed concern about this standard, but it draws from the statute, which imposes a uniquely strong detention mandate for aliens in this cohort: such aliens “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” INA 235(b)(1)(B)(iii)(IV). Some commenters stated that accompanied minors would no longer be eligible for parole, which is incorrect, as they will be eligible under the same standard as adults in the same position. Additionally, other commenters mistakenly expressed that the FSA guaranteed parole, which it does not, nor does it provide a standard for parole. ICE will continue to exercise its parole authority, on a case-by-case basis, in appropriate circumstances, including when a family unit establishes credible fear of persecution or torture. The final rule preamble responds to these misconceptions, and the final regulatory text in § 236.3(j)(4) takes into account respondents' concerns by stating clearly that parole for minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) will generally serve an urgent humanitarian reason if DHS determines that detention is not required to secure the minor's appearance before DHS or the immigration court, or to ensure the minor's safety of the safety of others. DHS may also consider aggregate and Start Printed Page 44394historical data, officer experience, statistical information, or any other probative information in making these determinations.

• Licensing

Under the FSA, facilities that house children must be licensed “by an appropriate State agency to provide residential, group, or foster care services for dependent children.” FSA paragraph 6. The state-licensing requirement is sensible for unaccompanied alien children (UACs), because all States have licensing processes for the housing of unaccompanied juveniles who are by definition “dependent children,” and accordingly the rule does not change that requirement for those juveniles. But the need for the license to come specifically from a “State agency” (rather than a Federal agency) is problematic for DHS now that the FSA has been held in recent years to apply to accompanied minors, including those held at FRCs, because States generally do not have licensing schemes for facilities to hold minors who are together with their parents or legal guardians. The application of the FSA's requirement for “state” licensing to accompanied minors has effectively required DHS to release minors and—to avoid family separation—their parents from detention in a non-state-licensed facility, even if the parent/legal guardian and child could and would otherwise continue to be detained together during their immigration proceedings, consistent with applicable law, including statutes that require detention in these circumstances pending removal proceedings or to effectuate a removal order. See, e.g., INA 235(b)(1)(B)(iii)(IV).

DHS proposed to define “licensed facility” as an ICE detention facility that is licensed by the state, county or municipality in which it is located. But because most States do not offer a licensing program for family unit detention, DHS also proposed that where state licensing is unavailable, a facility will be licensed if DHS employs an outside entity to ensure that the facility complies with family residential standards established by ICE. Section 236.3(b)(9) requires DHS to employ third parties to conduct audits of FRCs to ensure compliance with ICE's family residential standards. This rule adopts these provisions as final, and thus eliminates the barrier to the continued use of FRCs by creating a Federal alternative to meet the “licensed facility” definition.[1] The goal is to provide materially identical standards for these facilities as what the FSA and state licensing would otherwise require, and thus implement the underlying purpose of the FSA's licensing requirement, and in turn to allow families to remain together during their immigration proceedings in an appropriate environment.

Commenters stated that DHS has previously not shared the results of third-party audits. While ICE has publicly posted the results of all facility inspection reports submitted by third-party contractors within 60 days of inspection since May 2018, these posts have not included results of FRC inspections. See Facility Inspections, https://www.ice.gov/​facility-inspections (last updated Mar. 15, 2019). To directly address the commenters' concerns, the final rule provides that third-party inspections of FRCs will be posted in the same manner and adds the phrase “DHS will make the results of these audits publicly available” to the definition of “licensed facility.”

Commenters also stated that DHS should not be allowed to self-license detention facilities because current facilities do not have adequate oversight and, as a result, DHS is not currently capable of maintaining clean, humane, and safe detention centers. They cited the Office of the Inspector General, DHS, OIG-18-67 report, ICE's Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements (June 26, 2018) to highlight the deficiencies in the agency's self-inspections by third-party contractors. However, this report did not examine oversight of the FRCs. As such, it is of limited value in assessing ICE's oversight of the FRCs. FRCs are subject to a different set of detention standards than other facilities and receive inspections more frequently, and by a larger number of outside entities than those detention centers reviewed in the OIG report. DHS also notes that ICE has already taken several steps to address OIG's recommendations. The agency's existing commitment to considering seriously OIG's recommendations regarding detention facilities and instituting them as appropriate will not change as a result of this final rule. In this final rule, however, DHS has added to the definition of licensed facilities that audits will occur when an FRC opens and regularly going forward. In addition, DHS has added a more thorough explanation of its standards and inspection processes to address the commenters' underlying concern, to emphasize the important role third parties play in this process, and to underscore DHS's commitment to ensuring that individuals in FRCs are indeed held in appropriate conditions and treated with dignity and respect.

The licensing change does not impact CBP facilities. Under the FSA, juveniles are transferred to licensed facilities “in any case in which [DHS] does not release a minor . . . .” FSA paragraph 19. Thus, the only facilities which must be licensed under the FSA are those facilities to which juveniles are transferred following their initial encounter. Facilities at which juveniles are held immediately following their arrest, including CBP holding facilities, are governed by paragraph 12 of the FSA, and are not required to be licensed under the FSA. Accordingly, these facilities are also not included within the definition of “licensed facility” in this rule. DHS notes that CBP facilities are also subject to regular oversight and inspection by entities such as CBP's Office of Professional Responsibility (OPR), DHS' Office of Inspector General, DHS' Office of Civil Rights and Civil Liberties, and the Government Accountability Office.

• Bond Hearings

DHS proposed revisions to § 236.3(m) to state that bond hearings are only required for minors in DHS custody who are in removal proceedings under section 240 of the INA, to the extent permitted by 8 CFR 1003.19. DHS also proposed updating the language regarding bond hearings to be consistent with the changes in immigration law. Several commenters supported or acknowledged that proposed 8 CFR 236.3(m) maintained the process required by FSA paragraph 24(A), while another set of commenters did not explicitly endorse the provision but acknowledged that it provided the protections and processes required by the FSA. Other commenters expressed due process concerns.

DHS agrees with commenters that the proposed regulatory text at 8 CFR 236.3(m) reflects the provisions of the FSA regarding existence of bond redetermination hearings for minors in DHS custody who are in removal proceedings pursuant to INA 240, to the extent permitted by 8 CFR 1003.19. The understanding that the term “deportation hearings” in paragraph 24(A) of the FSA refers to what are now known as removal proceedings has been reiterated throughout the Flores litigation. Accordingly, FSA paragraph 24(A) requires bond redetermination Start Printed Page 44395hearings solely for those alien minors in DHS custody who are in removal proceedings under INA 240. Minors who are in expedited removal proceedings are not entitled to bond hearings; rather, DHS may parole such aliens on a case-by-case basis. See Jennings v. Rodriguez, 138 S. Ct. 830, 844 (2018) (holding that INA 235(b)(1) unambiguously prohibits release on bond and permits release only on parole). Minors in removal proceedings under INA 240 may appeal bond redetermination decisions made by an immigration judge to the Board of Immigration Appeals, in accordance with existing regulations found in 8 CFR 1003.19, and are informed of their right to review. Accordingly, DHS is not amending regulatory provisions regarding the bond provisions for minors based on public comments.

Major Commenter Concerns

• Trauma

Many commenters expressed serious concerns about child trauma. Comments focused on the trauma juveniles experience during their dangerous journey to the United States (often at the hands of smugglers and traffickers), trauma associated with experiences in their country of origin, the possibility of government custody-induced trauma in the United States, and in particular trauma caused by detention itself, and the need for trauma-related training and awareness throughout the immigration lifecycle, to include repatriation. Some commenters suggested, incorrectly, that the FSA explicitly prohibits the custody of children entirely and therefore, temporarily detaining family units together is unjustified.

DHS disagrees with the view that the FSA altogether prohibits detention of juveniles (including in family units). The FSA clearly contemplates, allows, and articulates standards for the custody of juveniles in a variety of circumstances. The final rule accordingly allows for the detention of minors as well. Moreover, DHS's experience shows that family units who are released often abscond, and detention is an important enforcement tool, particularly in controlling the border.

DHS acknowledges, however, that detention and custody may have negative impacts for minors and adults, and acknowledges the importance of identifying signs of trauma and ensuring that personnel are properly trained to identify and respond to signs of trauma, particularly among juveniles. DHS notes that this rule does not mandate detention for all family units. On the contrary, DHS will make and record continuous efforts to release a minor in its custody and, as discussed more fully below, will generally consider paroling minors detained pursuant to INA 235(b)(1)(B)(ii) or 8 CFR 235.3(c) who do not present a safety risk or risk of absconding as serving an urgent humanitarian reason.

Moreover, DHS has adopted rigorous standards for facilities precisely to minimize further negative impacts on minors. DHS mandates training for personnel who regularly interact with minors and UACs during the course of their official duties. For example, ICE Enforcement and Removal Operations (ERO) officers receive training on family units and UACs in the Basic Immigration Enforcement Training Program (BIETP). The BIETP is the basic training for ERO officers and occurs at the beginning of their career. Additionally, ERO's Field Office Juvenile Coordinators (FOJC) participate in annual training. This annual training focuses on policies, procedures and protocols in accordance with the FSA, HSA, and TVPRA. FOJCs constitute a specialized officer corps whose expertise informs colleagues and leaders often confronting high-profile cases involving UACs and family units. FOJCs liaise with HHS ORR's Federal Field Specialists, who make case-by-case placement decisions. FOJC training covers best practices for case processing, A-file management, docket management, age determination, child interviewing techniques, child development and trauma, screening for human trafficking, transport, the ORR placement process and an overview of FRCs and Family Residential Standards. FRCs are staffed with medical professionals and social workers specially trained to recognize the symptoms of trauma and provide appropriate treatment.

CBP generally employs contracted medical staff, who provide medical screening and appropriate triage to minors and UACs in custody along the southwest border. Where appropriations and funding permits, CBP also employs other contracted staff who are able to address the unique needs of juveniles. Additionally, all Border Patrol agents and CBP officers receive training related to the processing and interviewing of juveniles, screening UACs for trafficking concerns, and the appropriate custodial treatment of juveniles.

Separately, HHS ensures that ORR-funded care provider staff are trained in techniques for child-friendly and trauma-informed interviewing, ongoing assessment, observation, and treatment of the medical and behavioral health needs of UACs. Care provider staff are trained to identify UACs who have been smuggled (i.e., transported illegally over a national border) and/or trafficked into the United States. Care providers must deliver services that are sensitive to the age, culture, and native language of each child as well.

Each ORR-funded care provider program maintains ORR-approved policies and procedures for interdisciplinary clinical services, including standards on professional licensing and education for staff, according to staff role or discipline. Staff who are required to have professional certifications must maintain licensure through continuing education requirements, and all care provider staff must complete at a minimum 40 hours of training annually.

All UACs in HHS' care participate in weekly individual counseling sessions with trained social work staff, where the provider reviews the child's progress, establishes short term objectives, and addresses developmental and crisis-related needs. Clinical staff may increase these once-a-week sessions if a more intensive approach is needed. If children have acute or chronic mental health illnesses, HHS refers them for mental health services in the community.

UACs participate in informal group counseling sessions at least twice a week, where all children are present. The sessions give UACs who are new to the program the opportunity to get acquainted with staff, other children in HHS care, and the rules of the program. These sessions provide an open forum where everyone has an opportunity to speak. Together, UACs and care providers make decisions on recreational activities and resolve issues affecting the UACs in care.

• Best Interests of the Child

Commenters raised issues regarding what was in the best interests of the child. DHS and HHS recognize that this is the heart of the FSA. Both Departments take seriously their responsibility to provide appropriate care to juveniles, many of whom have recently endured a hazardous journey to the United States. Juveniles are subject to different custody protocols depending upon whether they are unaccompanied or part of a family unit. Under the HSA, responsibility for the apprehension, temporary detention, transfer, and repatriation of UACs is delegated to DHS; whereas the responsibility for coordinating and implementing the care and placement of UACs with sponsors is delegated to HHS.Start Printed Page 44396

CBP takes temporary custody of UACs apprehended and encountered at the border, while ICE handles custody transfer and repatriation responsibilities, apprehends UACs in the interior of the country, and represents the Federal Government in removal proceedings. Within 72 hours, UACs in DHS custody are generally transferred into HHS custody, absent exceptional circumstances. Minors who do not meet the statutory definition of a UAC, including accompanied minors who enter the country as part of a family unit, may be placed in FRCs. These FRCs are designed to take into account the best interests of children during custody, pursuant to applicable laws., including by keeping the child with his or her parent(s) as a family unit.

Several commenters suggested, incorrectly, that the FSA prohibits temporary custody of juveniles entirely and that, therefore, detention goes inherently against the best interests of a child. DHS notes that even the authors of the FSA understood some amount of physical custody was going to be necessary and appropriate, as discussed above. The conditions of facilities and shelters that house children in DHS custody are designed to afford a protective environment for the best interests of the child and must adhere to the statutory, regulatory, and court-ordered requirements and standards governing the care and custody of children. FRCs are also designed to allow the child to live with his or her family, and thus to preserve family unity even when custody is warranted. And HHS care-provider facilities undergo rigorous State licensing processes in order to serve as residential child care shelters for the temporary care of UACs. This final rule implements those care and custody requirements and standards in full force.

Summary of Changes From the Proposed Rule

Following careful consideration of the public comments received, the Departments have made several modifications to the regulatory text proposed in the NPRM. These changes are:

  • Section 212.5(b) now provides that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention.
  • Section 236.3(b)(2) defines Special Needs Minor. DHS agrees to remove “retardation” and replace it with “intellectual disability.”
  • Section 236.3(b)(9), which defines Licensed Facility, requires DHS to employ third parties to conduct audits of FRCs to ensure compliance with ICE's family residential standards. In response to comments and for full transparency, DHS is adding the phrase “DHS will make the results of these audits publicly available” to the definition. DHS has also included in the definition that audits will occur upon the opening of a facility and on a regular basis thereafter to address comments regarding oversight of current facilities.
  • In § 236.3(b)(11), which defines a Non-Secure Facility, DHS agrees with commenters that the intention of the proposed rule was to provide a definition of non-secure when the term was not otherwise defined under the state law where the facility is located. Given commenters' concerns that the regulatory text was unclear, DHS will clarify the definition in this final rule and add “under state law” to the definition.
  • In § 236.3(f)(1) regarding transfer of UACs from DHS to HHS, DHS agrees to amend the proposed regulatory text to clarify that the reference to 8 U.S.C. 1232(a)(2) refers to the processing of a UAC from a contiguous country. DHS is deleting “subject to the terms of” and replacing it with “processed in accordance with.”
  • In § 236.3(f)(4)(i) regarding the transportation of UACs, DHS is amending the regulatory text to make clear that, as a general matter, UACs are not transported with unrelated detained adults. The two situations described in the regulatory text are limited exceptions to this general rule. DHS is adding the reference to unrelated “detained” adults, for clarity.
  • In § 236.3(g)(1)(i), DHS is amending the procedures applicable to the apprehension and processing of minors or UACs. The regulatory text will be clear that the notices required, including Form I-770, will be provided, read, or explained to all minors and UACs in a language and manner that they understand, not just to those minors believed to be less than 14 or who are unable to understand the notice, as was proposed in the NPRM.
  • In § 236.3(g)(2)(i) regarding DHS custodial care immediately following apprehension, DHS agrees to delete the term “exigent circumstances,” as it is redundant to “emergency.”
  • In § 236.3(i)(4), commenters requested additional language tracking the verbatim text of FSA Ex. 1 paragraph B and C. DHS reiterates that these standards in § 236.3(i)(4) apply to the non-secure, licensed facilities used for housing family units—FRCs.
  • Section 236.3(j) and (n) now provide that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention and is otherwise available to provide care and physical custody.
  • DHS has added new § 236.3(j)(2)-(4) to identify the specific statutory and regulatory provisions that govern the custody and/or release of non-UAC minors in DHS custody based on the type and status of immigration proceedings.
  • DHS has added a new § 236.3(j)(4) to state clearly that the Department will consider parole for all minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c), and that paroling such minors who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason. Paragraph (j) now also states that DHS takes aggregate and historical data, officer experience, statistical information or any other probative information into account when determining whether release may be appropriate.
  • Section 236.3(o) is amended to clarify that the Juvenile Coordinator's duty to collect statistics is in addition to the requirement to monitor compliance with the terms of the regulations.
  • In § 410.101, HHS agrees to amend the definition of “special needs minor,” replacing the term “retardation” with “intellectual disability.”
  • In § 410.201(e), HHS agrees with multiple legal advocacy organizations' analysis that the FSA and TVPRA run in contradiction to each other on the placement of UACs in secure facilities based solely on the lack of appropriate licensed program availability; therefore, ORR is striking the following clause from this section: “. . . or a State or county juvenile detention facility.”
  • In § 410.202, in response to commenters' concerns, HHS clarifies that it places UACs in licensed programs except if a reasonable person would conclude “based on the totality of the evidence and in accordance with subpart G” that the UAC is an adult.
  • In § 410.203, in response to commenters' concerns, HHS clarifies that it reviews placements of UACs in secure facilities at least monthly and that the rule does not abrogate any requirements that HHS place UACs in the least restrictive setting appropriate to their age and any special needs.
  • In § 410.302(a), in response to commenters' concerns, HHS clarifies that the licensed program providing care for a UAC shall make continual efforts at family reunification as long as the Start Printed Page 44397UAC is in the care of the licensed program.
  • In § 410.600(a) regarding transfer of UAC, the proposed regulatory text stated that, “ORR takes all necessary precautions for the protection of UACs during transportation with adults.” However, as ORR does not transport adult aliens, HHS has decided to strike this language from the final rule.
  • In § 410.700 HHS is adding the “totality of the evidence and circumstances” for age determinations standards to mirror the DHS standard in compliance with statute. See 8 U.S.C. 1232(b)(4).
  • In § 410.810(b), HHS declines to place the burden of evidence in the independent internal custody hearings on itself; however, it has modified the rule text to indicate that HHS bears the initial burden of production supporting its determination that a UAC would pose a danger or flight risk if discharged from HHS' care. The UAC bears the burden of persuading the independent hearing officer to overrule the government's position, under a preponderance of the evidence standard.

B. Legal Authority

The Secretary of Homeland Security derives authority to promulgate these regulatory amendments primarily from the Immigration and Nationality Act (INA or Act), as amended, 8 U.S.C. 1101 et seq. The Secretary may “establish such regulations” as he deems necessary for carrying out his authorities under the INA. INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). In addition, section 462 of the HSA and section 235 of the TVPRA prescribe substantive requirements and procedural safeguards to be implemented by DHS and HHS with respect to unaccompanied alien children (UACs).

Section 462 of the HSA also transferred to the Office of Refugee Resettlement (ORR) Director “functions under the immigration laws of the United States with respect to the care of unaccompanied alien children that were vested by statute in, or performed by, the Commissioner of Immigration and Naturalization.” 6 U.S.C. 279(a). 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. 6 U.S.C. 279(f)(1).

Consistent with provisions in the HSA, the TVPRA places the responsibility for the care and custody of all UACs who are not eligible to be repatriated to a contiguous country with the Secretary of Health and Human Services.[2] Prior to the transfer of the program, the Commissioner of Immigration and Naturalization, through a delegation from the Attorney General, had authority “to establish such regulations . . . as he deem[ed] necessary for carrying out his authority under the provisions of this Act.” INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 8 CFR 2.1 (2002). In accordance with the relevant savings and transfer provisions of the HSA, see 6 U.S.C. 279, 552, 557; see also 8 U.S.C. 1232(b)(1), the ORR Director now possesses the authority to promulgate regulations concerning ORR's administration of its responsibilities under the HSA and TVPRA, and the FSA at paragraph 40 (as modified) specifically envisions promulgation of such regulations.

C. Costs and Benefits

This rule implements the FSA by establishing uniform standards for the custody and care of alien juveniles during their immigration proceedings and to ensure they are treated with dignity and respect. The rule adopts regulatory measures that materially parallel the FSA standards and protections, and also by codifying the current requirements for complying with the FSA, the HSA, and the TVPRA, and respond to changed factual and operational circumstances.

U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) encounter minors and UACs in different manners. CBP generally encounters UACs and minors at or near the border. In Fiscal Year (FY) 2017, CBP apprehended 113,920 juveniles.[3] In FY 2018, CBP apprehended 107,498 juveniles. Generally, ICE encounters minors either upon transfer from CBP to an FRC, or during interior enforcement actions. In FY 2017, 37,825 individuals were booked into ICE's three FRCs, 20,606 of whom were minors. In FY 2018, 45,755 individuals were booked into ICE's three FRCs, 24,265 of whom were minors. ICE generally encounters UACs when it transports UACs who are transferred from CBP custody to ORR custody, as well as during interior enforcement actions. The Office of Refugee Resettlement (ORR) encounters UACs when they are referred to ORR custody and care by CBP, after border encounters, or by direct referral from ICE, after ICE-initiated interior immigration enforcement. It is important to note that HHS does not enforce immigration measures; that is the role and responsibility of HHS' Federal partners within DHS. ORR is a child welfare agency and provides shelter, care, and other essential services to UACs, while working to reunite them with family or other approved sponsors as soon as possible, with safety governing the process. In FY 2017, 40,810 UACs were placed in ORR's care. In FY 2018, 49,100 UACs were placed in ORR's care. (Please note that these numbers may reflect UACs who were in ORR's care from one fiscal year into the next.)

The Departments' current operations and procedures for implementing the terms of the FSA, the HSA, and the TVPRA are the primary baseline against which to assess the costs and benefits of this rule. DHS and HHS already incur the costs for these operations; therefore, they are not costs of this rule.

The primary changes to DHS's current operational environment resulting from this rule are implementing an alternative licensing process for FRCs and making changes to 8 CFR 212.5 to align parole for minors in expedited removal with all other aliens in expedited removal, consistent with the applicable statutory authority. Subject always to resource constraints, these changes may result in additional or longer detention for some groups of minors. Specifically, minors who are in expedited removal proceedings whose credible-fear determination is still pending or who lack a credible fear and are awaiting removal are more likely to be held until removal can be effectuated. Furthermore, minors who have been found to have a credible fear or who are otherwise in INA section 240 proceedings, and who pose a flight risk or danger if released, are more likely to be held until the end of their removal proceedings, although limited bed space in FRCs imposes a significant constraint on custody of this cohort. DHS estimates the total number of minors in FY 2017 in groups that might be detained longer was 2,787 and in FY 2018 was 3,663. The numbers of accompanying parents or legal guardians are not included in these estimates. While the above estimates reflects the number of minors in FY 2017 and FY 2018 in groups of individuals that would likely be held until removal can be effectuated, DHS is unable to forecast the future total Start Printed Page 44398number of such minors that may experience additional or longer detention as a result of this rule, or for how much longer individuals may be detained because there are many other variables that may affect such estimates. DHS also notes that resource constraints on the availability of bed space mean that if some individuals are detained for longer periods of time, then less bed space will be available to detain other aliens, who in turn could be detained for less time than they would have been absent the rule. DHS is unable to provide an aggregate estimate of the cost of any increased detention on the individuals being detained. To the extent this rule results in filling any available bed space at current FRCs, this may thereby increase variable annual costs paid by ICE to operators of current FRCs.

DHS notes that while additional or longer detention could result in the need for additional bed space, there are many factors that would be considered in opening a new FRC and at this time ICE is unable to determine if this rule would result in costs to build additional bed space. If ICE awarded additional contracts for expanded bed space as a result of this rule, ICE would also incur additional fixed costs and variable costs to provide contracted services beyond current FRC capacity.

The primary purpose of the rule is to implement applicable statutory law and the FSA through regulations, to respond to changes in law and circumstances, and in turn enable termination of the agreement as contemplated by the FSA itself, in doing so DHS will move away from judicial governance to executive government via regulation. The result is to provide for the sound administration of the detention and custody of alien minors and UACs to be carried out fully, pursuant to the INA, HSA, TVPRA, and existing regulations issued by the Departments responsible for administering those statutes, rather than partially carried out via a decades-old settlement agreement. The rule ensures that applicable regulations reflect the Departments' current operations with respect to minors and UACs in accordance with the relevant and substantive terms of the FSA and the TVPRA, as well as the INA. Further, by modifying the literal text of the FSA (to the extent it has been interpreted to apply to accompanied minors) in limited cases to reflect and respond to intervening statutory and operational changes, DHS ensures that it retains discretion to detain families, as appropriate and pursuant to its statutory and regulatory authorities, to meet its enforcement needs, while still providing protections to minors that the FSA intended.

D. Effective Date

This final rule will be effective on October 22, 2019, 60 days from the date of publication in the Federal Register.

III. Background and Purpose

A. History

1. The Flores Settlement Agreement

Prior to the enactment of the HSA, the Attorney General and the legacy INS had the primary authority to administer and enforce the immigration laws. In the period leading up to the Flores litigation in the mid-1980s, the general nationwide INS policy, based on regulations promulgated in 1963 and the Juvenile Justice and Delinquency Prevention Act of 1974, was that alien juveniles could petition an immigration judge for release from INS custody if an order of deportation was not final. See Reno v. Flores, 507 U.S. 292, 324-25 (1993). In 1984, the Western Region of the INS implemented a different release policy for juveniles, and the INS later adopted that policy nationwide. Under that policy, juveniles could only be released to a parent or a legal guardian. The rationale for the policy was two-fold: (1) To protect the juvenile's welfare and safety, and (2) to shield the INS from possible legal liability. The policy allowed such alien juveniles to be released to other adults only in unusual and extraordinary cases at the discretion of the District Director or Chief Patrol Agent. See Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc).

On July 11, 1985, four alien juveniles filed a class action lawsuit in the U.S. District Court for the Central District of California, Flores v. Meese, No. 85-4544 (C.D. Cal. filed July 11, 1985). The case “ar[ose] out of the INS's efforts to deal with the growing number of alien children entering the United States by themselves or without their parents (unaccompanied alien minors).” Flores v. Meese, 934 F.2d 991, 993 (9th Cir. 1990). The class was defined to consist of “all persons under the age of eighteen (18) years who have been, are, or will be arrested and detained pursuant to 8 U.S.C. 1252 by the INS within the INS' Western Region and who have been, are, or will be denied release from INS custody because a parent or legal guardian fails to personally appear to take custody of them.” Id. at 994. 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.” See Flores Compl. paragraph 1. The plaintiffs claimed that the INS's release and bond practices and policies violated, among other things, the INA, the Administrative Procedure Act, and the Due Process Clause and Equal Protection Guarantee under the Fifth Amendment. See id. paragraphs 66-69.

Prior to a ruling on any of the issues, on November 30, 1987, the parties entered into a Memorandum of Understanding (MOU) on the conditions of detention. The MOU stated that minors in INS custody for more than 72 hours following arrest would be housed in facilities that met or exceeded the standards set forth in the April 29, 1987, U.S. Department of Justice Notice of Funding in the Federal Register and in the document “Alien Minors Shelter Care Program—Description and Requirements.” See Notice of Availability of Funding for Cooperative Agreements; Shelter Care and Other Related Services to Alien Minors, 52 FR 15569, 15570 (Apr. 29, 1987). The Notice provided that eligible grant applicants for the funding described in the Notice included organizations that were “appropriately licensed or can expeditiously meet applicable state licensing requirements for the provision of shelter care, foster care, group care and other related services to dependent children . . . .” Id.

At approximately the same time that the MOU was executed, the INS published a proposed rule on the Detention and Release of Juveniles to amend 8 CFR parts 212 and 242. See 52 FR 38245 (Oct. 15, 1987). The stated purpose of the rule was “to codify the [INS] policy regarding detention and release of juvenile aliens and to provide a single policy for juveniles in both deportation and exclusion proceedings.” Again, however, the proposed regulations did not address the considerations that might arise if the INS ever held an accompanied minor in custody along with his or her parent, together as a unit. For example, the preamble discussed the need to coordinate “family re unification” and “locating suitable placement of juvenile detainees,” but did not discuss preserving family unity when a minor is already in custody together with the parent. Id. (emphasis added).

The INS issued a final rule in May 1988. 53 FR 17449 (May 17, 1988). The rule provided for release to a parent, Start Printed Page 44399guardian, or other relative, and discretionary release to other adults. See 53 FR at 17451. It also provided that when adults are in detention, INS would consider release of the adult and juvenile. Id.

On May 24, 1988, the district court where the original Flores case was filed held that the recently codified INS regulation, 8 CFR 242.24 (1988), governing the release of detained alien minors, violated substantive due process, and ordered modifications to the regulation. The district court also held that INS release and bond procedures for detained minors in deportation proceedings fell short of the requirements of procedural due process, and therefore ordered the INS “forthwith” to provide to any minor in custody an “administrative hearing to determine probable cause for his arrest and the need for any restrictions placed upon his release.” Flores v. Meese, 934 F.2d 991, 993 (9th Cir. 1990) (quoting the district court). The INS appealed, and the Ninth Circuit reversed the district court's holdings that the INS exceeded its statutory authority in promulgating 8 CFR 242.24 and that the regulation violated substantive due process. The Ninth Circuit also reversed the district court's procedural due process holding, identified the legal standard that the district court should have applied, and remanded the issue for the district court to further explore the issue. Id. at 1013. On rehearing en banc, however, the Ninth Circuit vacated the original panel's opinion, affirmed the district court's holding, and held that INS's regulation was invalid because the regulation violated the alien child's due process and habeas corpus rights, and detention where the alien child was otherwise eligible for release on bond or recognizance to a custodian served no legitimate purpose of the INS. Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en banc) (“The district court correctly held that the blanket detention policy is unlawful. The district court's order appropriately requires children to be released to a responsible adult where no relative or legal guardian is available and mandates a hearing before an immigration judge for the determination of the terms and conditions of release.”).

The INS appealed, and in 1993, the U.S. Supreme Court rejected Plaintiffs' facial challenge to the constitutionality of the INS's regulation concerning the care of alien juveniles. Reno v. Flores, 507 U.S. 292 (1993). The Supreme Court held that the regulations did not violate any substantive or procedural due process rights or equal protection principles. Id. at 306, 309. According to the Court, the regulations did not exceed the scope of the Attorney General's discretion under the INA to continue custody over arrested aliens, because the challenged regulations rationally pursued the lawful purpose of protecting the welfare of such juveniles. Id. at 315.

The regulations promulgated in 1988 have remained in effect since publication but were moved to 8 CFR 236.3 in 1997. See 62 FR 10312, 10360 (Mar. 6, 1997). They were amended in 2002 when the authority to decide issues concerning the detention and release of juveniles was moved to the Director of the Office of Juvenile Affairs from the District Directors and Chief Patrol Agents. See 67 FR 39255, 39258 (June 7, 2002).

The Supreme Court's decision in Reno v. Flores did not fully resolve all of the issues in the case. After that decision, the parties agreed to settle the matter and resolved the remainder of the litigation in the FSA, which the district court approved on January 28, 1997. In 1998, the INS published a proposed rule having a basis in the substantive terms of the FSA, entitled Processing, Detention, and Release of Juveniles. See 63 FR 39759 (July 24, 1998). Over the subsequent years, that proposed rule was not finalized. In 2001, as the original termination date of the FSA approached, the parties added a stipulation in the FSA, which terminates the FSA “45 days following defendants' publication of final regulations implementing t[he] Agreement.” Stipulated Settlement Agreement, Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Dec. 7, 2001). In January 2002, the INS reopened the comment period on the 1998 proposed rule, 67 FR 1670 (Jan. 14, 2002), but the rulemaking was ultimately abandoned. Thus, as a result of the 2001 Stipulation, the FSA has not terminated. The U.S. District Court for the Central District of California has continued to rule on various motions filed in the case and oversee enforcement of the FSA.

After the 2001 Stipulation, Congress enacted the HSA and the TVPRA, both of which impact the treatment of alien juveniles. Among other changes, the HSA created DHS and, along with the TVPRA, transferred the functions under the immigration laws with respect to the care and then custody of UACs referred by other Federal agencies to HHS ORR. The TVPRA also further regulated the Departments' respective roles with respect to UACs. See 6 U.S.C. 111(a), 279; 8 U.S.C. 1232(b)(1).

The HSA also contained a general savings clause at 6 U.S.C. 552(a) with respect to the transfer of functions from the INS to ORR and DHS. The savings clause has been interpreted by courts to have maintained the FSA as enforceable against HHS and DHS. By promulgating these final rules, HHS and DHS are completing an administrative action to terminate the FSA.

To summarize agency roles under the current statutory framework: DHS apprehends, provides care and custody for, transfers, and removes alien minors; DHS apprehends, transfers, and removes UACs; and HHS ORR provides for care and custody of UACs who are in Federal custody (other than those permitted to withdraw their application for admission) and referred to HHS ORR by other Departments.

2. The Reorganization of the Immigration and Naturalization Service

The FSA was entered into by the INS, which was under the U.S. Department of Justice, and the plaintiffs in the Flores lawsuit. INS had within it all of the immigration functions: Border patrol, detention, enforcement, deportation, investigations, and adjudication of immigration benefits. After the 9/11 attacks a major reorganization of the government took place, and most of the INS functions were transferred to the newly formed DHS in 2003 and divided into three distinct components. The U.S. Citizenship and Immigration Services (USCIS) took over adjudication of immigration benefits. ICE took over the investigative and enforcement functions of INS, which included longer-term detention of aliens when warranted. CBP took over the functions on the border, including apprehension of those entering illegally and inspections of individuals entering at ports of entry, as well as short-term detention for the purposes of processing aliens. The Homeland Security Act also transferred the responsibility for the care and custody of UACs to HHS' ORR. 6 U.S.C. 279(a). The obligations under the FSA therefore also had to be divided after the reorganization.

In 2008, Congress passed the TVPRA, which further provided that all UACs in government custody (other than those able to withdraw their application for admission and be immediately repatriated) must be transferred to HHS ORR.

3. The Change in Migration Patterns and the Creation of the Family Residential Centers as a Response

When the FSA was first entered into and even when DHS was first created, migration at the southern border primarily consisted of single adults and unaccompanied juveniles, mostly in their teens. Since then, the numbers of minors, both accompanied and Start Printed Page 44400unaccompanied, has skyrocketed. In 1993, for instance, the Supreme Court recognized that a surge of “more than 8,500” unaccompanied minors represented a “problem” that is “serious.” Reno, 507 U.S. at 294. Before 2012, the number of UACs encountered by the government stayed relatively consistent with an average of about 7,000 to 8,000 UACs typically placed in ORR custody each year before FY 2012.[4]

But that then changed. From Fiscal Year 2011 through 2018, apprehensions of UACs between ports of entry along the southwest border increased dramatically: Were as follows, resulting in a substantial net increase over that time period: FY 2011: 15,949; FY 2012: 24,403; FY 2013: 38,759; FY 2014: 68,541; FY 2015: 39,970; FY 2016: 59,692; FY 2017: 41,435; FY 2018: 50,036.[5] At ports of entry along the southwest border, 10,678 UACs were found inadmissible in FY 2016; 7,246 UACs were found inadmissible in FY 2017; and 8,624 UACs were found inadmissible in FY 2018.[6]

Additionally, a new trend also began of families with young children crossing the border. For family units, the overall numbers of apprehensions have increased dramatically: FY 2013: 14,855; FY 2014: 68,445; FY 2015: 39, 838; FY 2016: 77,674; FY 2017: 75,622; FY 2018: 107,212.[7] At ports of entry, 26,062 family units were found inadmissible in FY 2016, 29,375 family units were found inadmissible in FY 2017, and 53,901 family units were found inadmissible in FY 2018.[8]

In FY 2019 so far, from October 2018 through June 2019, the total number of UAC apprehensions along the Southwest border was 63,624, and the total number of family unit apprehensions was 390,308. An additional 3,572 UACs and 37,573 family units have been found inadmissible at ports of entry.[9]

As the number of family units increased, the Government faced a new challenge: Housing children primarily in adult facilities, even with their parents, while still trying to provide all of the services juveniles need. In the early 2000s, the government created ICE Family Residential Centers (FRCs). By 2016, there were three FRCs. Unlike the CBP facilities where juveniles are temporarily held following apprehension or encounter (which are designed for short-term detention), FRCs are more akin to a dormitory setting. For example, the first FRC in Berks, Pennsylvania, was converted from a senior living center. It has suites where each family is housed separately. Beds, tables, chests of drawers, and other standard amenities are provided. Bedding, towels, basic clothing, and toiletries are provided. There is also a laundry facility on premises. There is a large community “living room” that has a large screen television, large cushioned couches and lounge chairs, a gaming area and a separate library that contains books, smaller television sets, video games, and board games. The facility also has an entire wing dedicated to classroom learning where minors at the facility go to school five days a week and study English and other age appropriate subjects. Another wing is a medical facility where minors and their parents receive any necessary medical care, including all immunizations required for later admission to U.S. public schools, and a treatment area for those who have entered the country with a communicable disease, such as tuberculosis. There are also phone banks to call relatives, consulates, or attorney/representatives.

In all FRCs, three hot “all-you-can-eat” meals a day are provided, and snacks are available throughout the day. All three FRCs offer a variety of indoor and outdoor daily recreation activities for children and adults, and a monthly recreational schedule is posted within communal areas in each facility. Indoor activities offered include a variety of sports (e.g., basketball, badminton, indoor soccer, and volleyball), group exercise classes, arts and crafts classes, karaoke, movie nights, and seasonal and holiday-themed activities. Outdoor recreational facilities include soccer fields, sand volleyball courts, handball courts, sand boxes, and play structures with slides and jungle gyms. The facility is non-secure and a family is not physically prevented from leaving the facility.

The FRCs have video conferencing set up for court hearings and private meeting rooms so that families can meet with their attorneys or representatives. Child care is provided to the parents while they meet with their attorneys/representatives or attend their court hearings. Interpreting services are available 24 hours a day via telephone. Attorneys and representatives approved to appear at immigration court hearings are provided access to the residents at various times each week, enabling families to obtain counsel and not have to appear at immigration hearings as pro se respondents.

B. Authority

1. Statutory and Regulatory Authority

a. Immigration and Nationality Act and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

The INA, as amended, provides the primary authority for DHS to detain certain aliens for violations of the immigration laws. Congress expanded legacy INS detention authority in IIRIRA, Public Law 104-208, 110 Stat. 3009. In that legislation, Congress amended the INA by providing that certain aliens were subject to either mandatory or discretionary detention by the INS. This authorization flowed to DHS after the reorganization under the HSA. Specifically, DHS's authority to detain certain aliens comes from sections 235, 236, and 241 of the INA, 8 U.S.C. 1225, 1226, and 1231. Section 235 of the INA, 8 U.S.C. 1225, provides that applicants for admission to the United States, including those subject to expedited removal, shall be detained during their removal proceedings, although such aliens may be released on parole in limited circumstances, consistent with the statutory standard set forth in INA 212(d)(5), 8 U.S.C. 1182(d)(5) and standards set forth in the regulations. Section 236 of the INA, 8 U.S.C. 1226, provides the authority to arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, and section 241, 8 U.S.C. 1231, authorizes the detention of aliens during the period following the issuance of a final order of removal. Other provisions of the INA also mandate detention of certain classes of individuals, such as criminal aliens.

b. Homeland Security Act of 2002

As noted, the HSA, Public Law 107-296, 116 Stat. 2135, transferred most of Start Printed Page 44401the functions of the INS from DOJ to the newly-created DHS. DHS and its various components are responsible for border security, interior immigration enforcement, and immigration benefits adjudication, among other duties. DOJ's EOIR retained its pre-existing functions relating to the immigration and naturalization of aliens, including conducting removal proceedings and adjudicating defensive filings of asylum claims.

The functions regarding care of UACs were transferred from the INS to HHS ORR. The HSA states ORR shall be responsible to coordinate and implement the care and placement of UACs who are in Federal custody by reason of their immigration status. ORR was also tasked with identifying a sufficient number of qualified individuals, entities, and facilities to house UACs, and with ensuring that the interests of the child are considered in decisions and actions relating to his or her care and custody.

c. William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008

Section 235 of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Public Law 110-457, Title II, Subtitle D, 122 Stat. 5044 (codified in principal part at 8 U.S.C. 1232), states that consistent with the HSA, and except as otherwise provided with respect to certain UAC from contiguous countries (see 8 U.S.C. 1232(a)), the care and custody of all UACs, including responsibility for their detention, where appropriate, shall be the responsibility of HHS. The TVPRA, among other things, requires Federal agencies to notify HHS within 48 hours of apprehending or discovering a UAC, or receiving a claim or having suspicion that an alien in their custody is under 18 years of age. 8 U.S.C. 1232(b)(2). The TVPRA further requires that, absent exceptional circumstances, any Federal agency transfer a UAC to the care and custody of HHS within 72 hours of determining that an alien in its custody is a UAC. 8 U.S.C. 1232(b)(3).

The Secretary of HHS delegated the authority under the TVPRA to the Assistant Secretary for Children and Families, 74 FR 14564 (2009), who in turn delegated the authority to the ORR Director, 74 FR 1232 (2009).

2. Flores Settlement Agreement Implementation

As discussed above, in the 1990s, the U.S. Government and Flores plaintiffs entered into the FSA to resolve nationwide the ongoing litigation concerning the INS's detention regulations for alien minors. The FSA was executed on behalf of the Government on September 16, 1996. The U.S. District Court for the Central District of California approved the FSA on January 28, 1997. The FSA became effective 30 days after its approval by the district court and provided for continued oversight by that court.

Paragraph 9 of the FSA explains its purpose: To establish a “nationwide policy for the detention, release, and treatment of minors in the custody of the INS.” Paragraph 4 defines a “minor” as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS,” but the definition excludes minors who have been emancipated or incarcerated due to a criminal conviction as an adult. The FSA established procedures and conditions for processing, transportation, and detention following apprehension, and set forth the procedures and practices that the parties agreed should govern the INS's discretionary decisions to release or detain minors and to whom they should or may be released.

The FSA was originally set to expire within five years, but on December 7, 2001, the Parties agreed to a termination date of “45 days following defendants' publication of final regulations implementing this Agreement.” However, the proposed rule that was published for that purpose was never finalized. See 67 FR 1670 (reopening the comment period for the 1998 proposed rule). A copy of the FSA and the 2001 Stipulation is available in the docket for this rulemaking. A principal purpose of these regulations is to “implement[] the Agreement,” and in turn to terminate the FSA.

3. Recent Court Orders

a. Motion to Enforce I

On January 26, 2004, Plaintiffs filed their first motion to enforce the agreement, alleging, among other things, that CBP and ICE: (1) Regularly failed to release minors covered by the FSA to caregivers other than parents when parents refused to appear; (2) routinely failed to place detained class members in the least restrictive setting; (3) failed to provide class members adequate education and mental health services, and (4) exposed minors covered by the FSA to dangerous and unhealthy conditions. Ultimately, after a lengthy discovery process in which the government provided Plaintiffs numerous documents related to the government's compliance with the FSA, Plaintiffs filed a Notice of Withdrawal of Motion to Enforce Settlement on November 14, 2005. The court dismissed the matter on May 10, 2006.

b. Motion To Enforce II

On February 2, 2015, Plaintiffs filed a second motion to enforce the agreement, alleging that CBP and ICE were in violation of the FSA because: (1) ICE's supposed no-release policy—i.e., an alleged policy of detaining all female-headed families, including children, for as long as it takes to determine whether they are entitled to remain in the United States—violated the FSA; (2) ICE's routine confinement of class members in secure, unlicensed facilities breached the Agreement; and (3) CBP exposed class members to harsh and substandard conditions, in violation of the Agreement.

On July 24, 2015, the district court granted Plaintiffs' second motion to enforce and denied Defendant DHS's contemporaneous motion to modify the agreement. Flores v. Johnson, 212 F. Supp. 3d 864 (C.D. Cal. 2015). The court found: (1) The FSA applied to all alien minors in government custody, including those accompanied by their parents or legal guardians; (2) ICE's continuing detention of minors accompanied by their mothers was a material breach of the FSA; (3) the FSA requires Defendant DHS to release minors with their accompanying parent or legal guardian unless this would create a significant flight risk or a safety risk; (4) DHS housing minors in secure and non-licensed FRCs violated the FSA; and (5) CBP violated the FSA by holding minors and UACs in facilities that were not safe and sanitary. Id. The Court ordered the government to show cause why certain remedies should not be implemented as a result of these violations.

The government filed a response to the Court's order to show cause on August 6, 2015. On August 21, 2015, the court issued a subsequent remedial order for DHS to implement six remedies. Flores v. Lynch, 212 F. Supp. 3d 907 (C.D. Cal. 2015). In the decision, the court clarified that, as provided in FSA paragraph 12(A), in the event of an emergency or influx, DHS need not transfer minors to a “licensed program” pursuant to the 3- and 5-day requirements of paragraph 12(A), but must transfer such minors “as expeditiously as possible.” In the decision, the court referenced the Government's assertion that DHS, on average, would detain minors who are not UACs for 20 days—the general length of time required to complete credible or reasonable fear processing at that time for aliens in expedited Start Printed Page 44402removal. The court agreed that if 20 days was “as fast as [the Government] . . . can possibly go,” the Government's practice of holding accompanied minors in its FRCs, even if not “licensed” and “non-secure” per FSA paragraph 19, may be within the parameters of FSA paragraph 12(A). Id. at 914. In a decision issued on July 6, 2016, the Ninth Circuit agreed with the district court that during an emergency or influx, minors must be transferred “as expeditiously as possible” to a non-secure, licensed facility. Flores v. Lynch, 828 F.3d. 898, 902-03 (9th Cir. 2016). The Ninth Circuit affirmed the district court's holding that the FSA applies to all alien minors and UACs in government custody and concluded the district court did not abuse its discretion in denying the Government's motion to modify the FSA. The Ninth Circuit, however, reversed the district court's determination that the FSA required the release of accompanying parents. Id.

The government maintains that the terms of the FSA were intended to apply only to those alien children in custody who are unaccompanied.

Nonetheless, reflecting existing circuit precedent that the FSA applies to accompanied minors, this rule applies to both accompanied and unaccompanied minors.

c. Motion To Enforce III

On May 17, 2016, plaintiffs filed a third motion to enforce the agreement, claiming that DHS was violating the agreement by: (1) Holding class members in CBP facilities that did not meet the requirements of the FSA; (2) failing to advise class members of their rights under the FSA; (3) making no efforts to release or reunify class members with family members; (4) holding class members routinely with unrelated adults; (5) detaining class members for weeks or months in secure, unlicensed facilities in violation of the FSA; and (6) interfering with class members' right to counsel. The Government filed a response on June 3, 2016.

On June 27, 2017, the district court issued an opinion concluding that ICE had not complied with the FSA because it had failed to advise class members of their rights under the FSA, failed to make continuous efforts to release class members, and failed to release class members as required by FSA paragraphs 12(A) and 14. The Court also found that FRCs were unlicensed and secure. Flores v. Sessions, No. 2:85-cv-04544 (C.D. Cal. June 27, 2017). The district court, however, rejected the claims that ICE had impermissibly detained class members with unrelated adults and interfered with class members' right to counsel.

The district court also concluded that CBP acted in violation of the FSA in the Rio Grande Valley Border Patrol Sector. The court pointed to allegations that CBP failed to provide class members adequate access to food and water, detained class members in conditions that were not safe and sanitary, and failed to keep the temperature of the holding cells within a reasonable range. The court ordered the appointment of a Juvenile Coordinator for ICE and CBP, responsible for monitoring the agencies' compliance with the Agreement. On August 15, 2019, the Ninth Circuit dismissed the Government's appeal of that decision based on a lack of jurisdiction. See Flores v. Barr, No. 17-56297 (9th Cir. Aug. 15, 2019). On October 5, 2018, the U.S. District Court for the Central District of California appointed a Special Master/Independent Monitor to oversee compliance with the Agreement and with the June 27, 2017 Order. The Court's order appointing the Monitor also allowed for oversight over HHS related to Motion to Enforce V, discussed below.

d. Motion To Enforce IV

On August 12, 2016, Plaintiffs filed a fourth motion to enforce the agreement, claiming that ORR violated the agreement by failing to provide UACs in ORR custody with a bond redetermination hearing by an immigration judge. The Government argued that the HSA and the TVPRA effectively superseded the FSA's bond-hearing requirement with respect to UACs, that only HHS could determine the suitability of a sponsor (an essential part of release decision-making), and that immigration judges lacked jurisdiction over UACs in ORR custody.

On January 20, 2017, the court found that HHS breached the FSA by denying UACs the right to a bond hearing as provided for in the FSA. Flores v. Lynch, No. 2:850-cv-04544, 2017 WL 6049373 (C.D. Cal. Jan. 20, 2017). The district court agreed that only HHS could determine the suitability of a sponsor, but disagreed that subsequent laws fully superseded the FSA. The Government appealed to the Ninth Circuit. On July 5, 2017, the Ninth Circuit affirmed the district court's ruling. The Ninth Circuit reasoned that if Congress had intended to terminate the settlement agreement in whole or in part through passage of the HSA or TVPRA, it would have said so specifically. Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017). However, while affirming the district court's decision, the Ninth Circuit also acknowledged that determinations made at hearings held under Paragraph 24A of the FSA will not compel a child's release, because “a minor may not be released unless the agency charged with his or her care identifies a safe and appropriate placement.” Id. at 868. The Government did not seek further review of the decision.

e. Motion To Enforce V

On April 16, 2018, Plaintiffs filed a fifth motion to enforce the agreement, claiming ORR unlawfully denied class members licensed placements, unlawfully medicated youth without parental authorization, and peremptorily extended minors' detention on suspicion that available custodians may be unfit. On July 30, 2018, the district court issued an Order. Flores v. Sessions, 2:85-cv-04544-DMG-AGR (ECF No. 470, Jul. 30, 2018). The Order discussed the Shiloh Residential Treatment Center and placement therein, as well as informed consent for psychotropic drugs in such Center; placement in secure facilities; notice of placement in secure and staff-secure facilities; Director-level review of children previously placed in secure or staff-secure facilities; and other issues. Readers should refer to the full Order for details.

f. Motion for Relief From Settlement

On June 21, 2018, in accordance with the President's June 20, 2018, Executive Order “Affording Congress an Opportunity to Address Family Separation,” the Government sought limited emergency relief from two provisions of the FSA—the release provision of Paragraph 14, as well as the licensing requirements of Paragraph 19. This relief was sought in order to permit DHS to detain alien family units together for the pendency of their immigration proceedings. The court denied this motion on July 9, 2018, and denied reconsideration of the motion on November 5, 2018.

That motion sought relief consistent with the proposed rule, although the proposed rule included some affirmative proposals (like the Federal-licensing regime) that were not at issue in that motion. For example, as discussed below, by creating an alternative for meeting the “licensed facility” definition for FRCs, the final rule will eliminate a barrier to keeping family units in custody during their immigration proceedings, consistent with applicable law, while still providing similar substantive protections to minors.Start Printed Page 44403

The issue of family separation and reunification continues to be the subject of litigation in multiple jurisdictions. This rule does not directly address matters related to that litigation. A significant purpose of this rule with regard to accompanied minors is to allow DHS to make decisions regarding the detention of families applying a single legal framework, and to enable DHS to hold a family together as a unit in an FRC when lawful and appropriate.

g. Motion To Enforce VI

On November 2, 2018, Plaintiffs filed their sixth motion to enforce, which requests the court to enjoin the Government from implementing regulations that fail to implement the FSA. Plaintiffs allege the Government's proposed rulemaking of September 2018 is an anticipatory breach of the FSA, claiming that DHS's portion of the proposed regulations proposed to detain accompanied children indefinitely and consign them to unlicensed family detention centers. Plaintiffs also claim that the proposed rule replaces mandatory protections with aspirational statements and does not provide certain the protections granted minors. Plaintiffs also requested the court to provisionally adjudicate the Government in civil contempt to make it clear to that implementing the proposed regulations would place it in contempt. The motion is held in abeyance pending publication of this final rule and further briefing from the parties.

h. Motion To Enforce VII

On May 30, 2019, Plaintiffs filed a motion to enforce the FSA alleging that HHS' use of the Homestead influx shelter facility violates the FSA because the facility is not licensed, and, in Plaintiffs' opinion, HHS is not releasing UACs from the facility as expeditiously as possible. By agreement of the parties, the motion has been referred to mediation with the Monitor in order to avoid the need for adjudication by the district court.

i. Ex Parte Request for Temporary Restraining Order

On June 26, 2019, Plaintiffs filed an ex parte request for a temporary restraining order, which alleged that CBP facilities in the El Paso and Rio Grande Valley Border Patrol Sectors violated the terms of the FSA; that CBP failed to provide adequate medical care; and that CBP failed to comply with the release requirements of Paragraph 14 of the FSA. Plaintiffs requested emergency relief, including (1) immediate inspection of CBP facilities in the El Paso and RGV Sectors by “a public health expert authorized to mandate a remediation plan that [CBP] must follow to make these facilities safe and sanitary;” (2) immediate access to CBP facilities in the El Paso and RGV Sectors by medical professionals “who can assess the medical and psychological needs of the children and triage appropriately;” (3) “deployment of an intensive case management team to focus on expediting the release of [certain UACs] to alleviate the backlog caused by the inadequate [HHS ORR] placement array;” and (4) that CBP be held in contempt. On June 28, 2019, the Court referred the TRO to an expedited mediation schedule in front of the independent monitor. Dkt. 576. On July 8, 2019, the court appointed a medical expert, who would “consult with and assist the [court-appointed independent monitor] in assessing child health and safety conditions in [CBP facilities].” Dkt. 591. On July 10, 2019, the parties engaged in mediation, and agreed that the court-appointed monitor would submit a draft report of findings and recommendations to the parties and the monitor, and that the parties would reconvene in mediation following the submission of that report. See Joint Status Report, Dkt. 599.

C. Basis and Purpose of Regulatory Action

1. Need for Regulations Implementing the Relevant and Substantive Terms of the FSA.

When DHS encounters a removable alien parent or legal guardian with his or her removable alien child(ren), it has, following initiation of removal proceedings, three primary options for purposes of immigration custody: (1) Release all family members into the United States; (2) detain the parent(s) or legal guardian(s) and either release the juvenile to another parent or legal guardian or transfer the juvenile to HHS as a UAC; or (3) detain the family unit together as a family by placing them at an appropriate FRC during their immigration proceedings. The practical implications of the FSA, as interpreted by the Federal district court and the court of appeals (and the lack of state licensing for FRCs), is to prevent the Government from using the third option for more than a limited period of time. This final rule will eliminate that barrier to the use of FRCs.

DHS believes there are several advantages to maintaining family unity during immigration proceedings. These include the child being under the care of the parent, immigration proceedings occurring together and any removal or release occurring at the same time. But the practical implications of the FSA, as recently interpreted, and in particular the lack of state licensing for FRCs and the release requirements for minors who are not in state-licensed facilities, have effectively prevented DHS from using family detention for more than a limited period of time (typically approximately 20 days), and in turn often required the release of families regardless of the flight risk posed. DHS believes that combination of factors creates a powerful incentive for adults to bring juveniles on the dangerous journey to the United States and then put them in further danger by illegally crossing the United States border, in the expectation that coming as a family will result in an immediate release into the United States. At the same time, the alternative—that of separating family members so the adult may be detained pending immigration proceedings—should be avoided when possible, and has generated significant litigation. See, e.g., Ms. L v. ICE, No. 18-428 (S.D. Cal.).

This final rule serves to clear the way for the sensible use of FRCs when it is lawful and appropriate, to allow custody over a family unit as such. In particular, it creates a Federal licensing process to resolve the current problem caused by the FSA's state-licensing requirement that is ill-suited to family detention, and allows for compatible treatment of a family unit in immigration custody and proceedings by eliminating artificial barriers to that compatibility imposed by the FSA. Further, it helps to ensure that decisions to detain a family unit can be made under a single legal framework and that take into account the interest in family unity. In particular, the rule will ensure that custody decisions for both the parent and minor will be made pursuant to the existing statutes and regulations governing release on bond or parole (not under a freestanding FSA standard). Moreover, when exercising its parole discretion, DHS will continue to consider a detainee's status as a minor as a factor in exercising its parole discretion, on a case-by-case basis, and consistent with all requisite statutory and regulatory authority.

It is important that family detention be a viable option not only for the numerous benefits that family unity provides for both the family and the administration of the INA, but also due to the significant and ongoing surge of adults who have made the choice to enter the United States illegally with juveniles or make the dangerous overland journey to the border with juveniles, a practice that puts juveniles at significant risk of harm. The expectation that adults with juveniles Start Printed Page 44404will remain in the United States outside of immigration detention may incentivize these risky practices.

In the summer of 2014, an unprecedented number of family units from Central America illegally entered or were found inadmissible to the United States. In FY 2013, the total number of family units apprehended entering the United States illegally between ports of entry on the Southwest Border was 14,855. By FY 2014, that figure had increased to 68,445. See https://www.cbp.gov/​sites/​default/​files/​assets/​documents/​2019-Mar/​bp-total-monthly-family-units-sector-fy13-fy18.pdf. By June of 2019, that figure had increased to 390,308, with an additional 37,573 found inadmissible at ports of entry.

Table 1—Family Unit Apprehensions and Inadmissibles at the Southwest Border by Fiscal Year 10

Fiscal yearFamily unit apprehensions at the Southwest BorderFamily units found inadmissible at the Southwest Border 11
201314,855
201468,445
201539,838
201677,67426,062
201775,62229,375
2018107,21253,901
2019 *390,30837,573
* Partial year data for FY 2019; through June.

Prior to 2014, given the highly limited detention capacity, the only option available to the Government for the large majority of family units entering the United States was to issue the family Notices to Appear and release the alien family to temporarily remain in the United States pending their removal proceedings. Thus, when an unprecedented number of families decided to undertake the dangerous journey to the United States in 2014, DHS officials faced an urgent humanitarian situation. DHS encountered numerous alien families and juveniles who were hungry, thirsty, exhausted, scared, vulnerable, and at times in need of medical attention, with some also having been beaten, starved, sexually assaulted or worse during their journey to the United States.

DHS mounted a multi-pronged response to this situation. As one part of this response, DHS placed more families at the one existing FRC, stood up another FRC (which was later closed Start Printed Page 44405down), and oversaw the development of additional FRCs to detain family units together, in a safe and humane environment, during the pendency of their immigration proceedings, which typically involved expedited removal. Although it is difficult to definitively prove a causal link given the many factors that influence migration, DHS's assessment is that this change was one factor that helped stem the border crisis, as it correlated with a significant drop in family migration: Family unit apprehensions on the Southwest Border dropped from 68,445 in FY 2014 to 39,838 in FY 2015.

Although the border crisis prompted DHS to increase its use of FRCs to hold family units together, DHS quickly faced legal challenges asserting that the FSA applied to accompanied minors and that family detention did not comply with the provisions of the FSA. In July 2015, the Flores court rejected the Government's position that the FRCs comply with the FSA and declined to modify the FSA to allow DHS to address this significant influx of family units crossing the border and permit family detention. See Flores v. Lynch, 828 F.3d 898, 909-10 (9th Cir. 2016). The Government had explained to the district court that declining to modify the FSA as requested would “mak[e] it impossible for ICE to house families at ICE [FRCs], and to instead require ICE to separate accompanied children from their parents or legal guardians.” Flores v. Lynch, No. 85-4544, Defendants' Opposition to Motion to Enforce, ECF 121 at 17 (C.D. Cal. Feb. 27, 2015).

When the courts then found the FSA to apply to accompanied minors—an interpretation with which the Government continues to disagree—the agencies faced new practical problems. Indeed, the government has never understood the FSA to apply to accompanied minors. The Supreme Court in Flores understood the case to involve “the constitutionality of institutional custody over unaccompanied juveniles.” 507 U.S. at 305; see id. at 315 (“[T]he INS policy now in place is a reasonable response to the difficult problems presented when the Service arrests unaccompanied alien juveniles.”).

The FSA in turn has FSA has no language directly addressing the specific issues raised by custody over families as a unit. The FSA explains that the settlement arose from a lawsuit about “detention and release of unaccompanied minors,” FSA paragraph 1 (emphasis added); it provides for the INS to make efforts at releasing a minor “to” a parent or guardian, not “with” a parent or guardian, FSA paragraph 14, suggesting an underlying assumption that the minor is not already together with the parent as a family; the FSA indicates that the purpose of the release “to” another relative is to promote “family reunification,” which makes little sense if the family is already together as a unit, id.; the FSA generally requires custody to occur in a facility “licensed by an appropriate State agency,” FSA paragraph 6, but no State in the country had at the time an agency that would license facilities for holding families together in custody as a unit. The government used FRCs for more than 10 years—from 2001, when it first used the Berks facility to hold families in custody until 2014—with the class counsel's knowledge, and without the government ever considering that the FSA applied to minors accompanied by their parents.

The FSA requires DHS to transfer minors to a non-secure, licensed facility “as expeditiously as possible,” and further provides that a “licensed” facility is one that is “licensed by a State agency.” FSA paragraphs 6, 12(A). That prompted significant and ongoing litigation regarding the ability to obtain state licensing of FRCs, as many States did not have, and have not succeeded in putting in place, licensing schemes governing facilities that hold family units together. That litigation severely limited the ability to maintain detention of families together. Those limitations correlated with a sharp increase in family migration: The number of family units apprehended by CBP between the ports of entry along the Southwest Border again spiked—from 39,838 in FY 2015 to the highest level ever up until that time, 77,674 in FY 2016. In FY 2016, CBP also found 26,062 family units inadmissible at ports of entry along the Southwest Border. The number of such apprehensions and individuals found inadmissible along the Southwest Border has continued to rise, and reached 107,212 apprehensions between the ports of entry, and 53,901 family units found inadmissible at ports of entry in FY 2018. In the first nine months of FY 2019 (through June 30, 2019), the number of family unit apprehensions has already reached 390,308, a 469 percent increase from the same period in FY 2018. During this same time period, 37,573 family units have been found inadmissible at ports of entry along the Southwest Border.[12]

As long as the licensing must come from a State specifically (rather than from the Federal Government), DHS's ability to effectively use family detention is unduly limited. A Federal program (especially immigration enforcement) that the Constitution and Congress commit to Federal authority and discretion should not depend on state licensing. And that is particularly true when a well-established state-licensing process does not already exist and the FSA, as the Ninth Circuit pointed out, “gave inadequate attention to some problems of accompanied minors” and “does not contain standards related to the detention of . . . family units.” Flores, 828 F.3d at 906. In order to avoid separating family units, DHS must release adult family members in cases where detention would otherwise be mandatory and DHS determines parole is not appropriate, or in cases where DHS and/or immigration courts believe detention of the parent is needed to ensure appearance at future removal proceedings or to prevent danger to the community.[13] Because of ongoing litigation concerning state licensure for FRCs, ICE must release minors who are a part of family units as expeditiously as possible, which means that ICE rarely is able to hold family units for longer than approximately 20 days. As such, of the 107,212 FY 2018 family unit apprehensions at the Southwest border, 45,755 individuals were booked into FRCs in FY 2018. The result is that many families are released in the interior of the United States, even in cases when DHS or immigration courts deem detention is needed to effectuate removal proceedings or even when there are safety concerns.

According to EOIR, 43 percent of cases completed from January 1, 2014 through March 31, 2019 involving family unit aliens who were in detention, released, failed to appear at the required proceedings, and were issued final orders of removal in absentia.[14]

Start Printed Page 44406

Table 3 below reports DHS Office of Immigration Statistics (OIS) data on in absentia rates for aliens encountered at the Southwest Border by year of their initial enforcement encounter. For each of these initial encounter cohorts, the table reports on the number of aliens referred to EOIR, the number of EOIR cases completed (i.e. excluding cases that are still in proceedings), and the number of EOIR in absentia orders issued, as of the end of FY 2018. The bottom rows of the table show both the in absentia rate as a percentage of all referrals to EOIR, and as a percentage of all completed cases. DHS reports both statistics because DHS is aware that both indicators are biased indicators of the “true” rate at which people are ordered removed in absentia. In absentia as a percent of all completed cases is biased upward (i.e., tends to overestimate the true in absentia rate), especially for more recent fiscal years, because in absentia cases may take less time to complete cases with other types of final outcomes. The in absentia rates for people encountered in earlier years, such as FY 2014 and FY 2015, may be somewhat more meaningful than for those encountered more recently because the longer-standing cases have been working their way through proceedings for four to five years; but, more than half the cases remain in proceedings even for this longer-standing group. Viewing in absentia as a share of all referrals to EOIR is not affected by that bias. However, this statistic is biased downward (i.e., tends to be lower than the true in absentia rate), because it does not account for cases still in proceedings—again, more than half the cases—that may eventually result in an in absentia order. The “true” in absentia rate for encounters in any given fiscal year can't be observed until all the cases from that year are completed, at which time the two statistics will be the same number. As seen in Table 3, DHS OIS has found that when looking at all family unit aliens encountered at the Southwest Border from FY 2014 through FY 2018, the in absentia rate for completed cases as of the end of FY 2018 was 66 percent.

Based on the similar timeframes of the two rates from EOIR and DHS OIS, DHS can assume that family units who did not start their cases in FRCs have a higher in absentia rate. However, this does not account for other factors that may or may not have an impact the likelihood of appearance, such as enrollment in a monitoring program or Start Printed Page 44407access to representation. However, DHS still concludes that the in absentia rates of family units even who started their cases at an FRC is a serious concern, and flight risk can warrant detention throughout proceedings. Statistics that purport to show lower in absentia rates often count all court appearances, rather than only completed cases, thus counting multiple times aliens who appear for multiple court appearances and often not counting the time when being absent is most likely—at hearings where proceedings are completed and likely to result in a removal order. Addressing DHS's ability to effectively use family detention through an alternative licensing that will help ensure appropriate standards of care consistent with the terms of the FSA would enable DHS to ensure family units who are identified as flight risks appear at removal proceedings and for removal following the issuance of a final order.

ICE's mission is to remove individuals subject to final orders of removal. DHS OIS data show that, as of the end of FY 2018, aliens encountered from FY 2014 through FY 2018 and detained at the time a final order of removal was issued, were removed at a much higher rate than those not detained: 97 percent of aliens detained as compared to just over 18 percent of individuals not detained. See Table 4 below. The table reports for all aliens (not just family units) who were encountered by DHS from FY 2014 through FY 2018 and ordered removed, if they have been removed or not removed as of the end of FY 2018, and if they were detained or not detained at the time the removal order was issued. As shown in the table, detaining a person until the time of removal correlates strongly with the likelihood that removal will be effectuated. ICE has finite resources and bed space at FRCs and this rule would provide DHS the ability to use its detention authority and existing space at FRCs where lawful and appropriate to effectuate removal of family units determined not to be eligible for relief.

As described above, there have been several important changes in law and circumstance since the FSA was executed: (1) A significantly changed agency structure addressing the care and custody of juveniles, including the development of FRCs that can provide appropriate treatment for minors while allowing them to be held together with their families; (2) a new statutory framework that governs the treatment of UACs; (3) significant increases in the number of families and UACs crossing the border since 1997, thus affecting immigration enforcement priorities and national security; (4) a novel judicial interpretation that the FSA applies to accompanied minors; and (5) further recognition of the importance of keeping families together during immigration proceedings when appropriate, and the legal and practical implications of not providing uniform proceedings for family units in these circumstances. The Departments have thus determined that it is necessary to put into place regulations that will be consistent with the relevant and substantive terms of the FSA regarding the conditions for custodial settings for minors, but, through Federal licensing of FRCs, will provide the flexibility necessary to protect the public safety, enforce the immigration laws, and maintain family unity given current challenges that did not exist when the FSA was executed. This rule provides DHS the option of keeping together families who must or should be detained at appropriately licensed FRCs for the time needed to complete immigration proceedings, subject to the sound implementation of existing statutes and regulations governing release on parole or bond.

2. Purpose of the Regulations

A principal purpose of this action is to 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, and taking into account the agencies' expertise in addressing current factual circumstances, thereby terminating the FSA, as provided for in FSA paragraph 40 as well as general principles governing termination of settlements or decrees in institutional litigation. As it accounts for circumstances that have changed since the FSA was entered into and agency expertise in addressing current circumstances, the rule does not always track the literal text of the FSA, but provides similar substantive protections to juveniles. For example, the rule allows for detention of families together in federally-licensed programs (rather than facilities licensed specifically by a State). States generally do not have licensing schemes that apply to FRCs. Thus, the terms of the FSA currently impose a limitation on DHS's ability to detain family units together in an FRC during their immigration proceedings, consistent with applicable law. The Federal licensing process in turn will provide similar substantive protections regarding the conditions of such facilities, and thus implement the underlying purpose of the state-licensing requirement. These changes will allow for release in a manner consistent with the INA and applicable regulations. The rule also provides for third-party monitoring, and for publicizing the results of those inspections, to ensure that conditions Start Printed Page 44408on the ground in FRCs satisfy those standards.

This rule conforms to the FSA's guiding principle that the Government treats, and shall continue to treat, all juveniles in its custody with dignity, respect, and special concern for their particular vulnerability as minors.

The current DHS regulations on the detention and release of aliens under the age of 18 found at 8 CFR 236.3 have not been substantively updated since their promulgation in 1988.[17] DHS therefore is revising 8 CFR 236.3 to promulgate the relevant and substantive terms of the FSA as regulations. In addition, there are currently no HHS regulations on this topic. HHS is promulgating a new 45 CFR part 410 for the same reason.

As noted, these regulations implement the relevant and substantive terms of the FSA and related statutory provisions. Separate from the FSA, DHS has over time developed various policies and other sub-regulatory documents that address issues related to DHS custody of minor aliens and UACs.[18] In considering these regulations, DHS reviewed such policies, and determined that these regulations are compatible with them. Current policies on the custody, apprehension, and transportation of minors and UACs generally would not, therefore, need to be altered to bring them into conformity with this rule. This rule is not, however, intended to displace or otherwise codify such policies and procedures. Similarly, the rule is consistent with and does not abrogate existing ORR policies and procedures; nor does it necessitate any alteration in those policies and procedures, except in regards to the transfer of bond redetermination hearings from immigration courts to the HHS hearing officer as found at 8 CFR 410.810. Again, however, the idea is for the UAC to enjoy the same basic substantive protection (review of the custody determination), but simply to shift review from DOJ to HHS given that Congress has made HHS responsible for custody and care of UACs.

Finally, this rule excludes those provisions of the FSA that are relevant solely by virtue of the FSA's existence as a settlement agreement. For instance, the FSA contains a number of provisions that relate specifically to class counsel and the supervising court with respect to the Departments' compliance with the FSA. Following termination of the FSA, such provisions will no longer be necessary, because compliance with the published regulations will replace compliance with the settlement agreement. As a result, they are not included in this rule.[19]

D. Severability

To the extent that any portion of this final rule is declared invalid by a court, the Departments intend for all other parts of the final rule that are capable of operating in the absence of the specific portion that has been invalidated to remain in effect. Thus, even if a court decision invalidating a portion of this final rule results in a partial reversion to the current regulations or to the statutory language itself, the Departments intend that the rest of the final rule continue to operate, if at all possible in tandem with the reverted provisions.

IV. Summary of Changes in the Final Rule

Following careful consideration of public comments received and relevant data provided by stakeholders, DHS and HHS have amended the regulatory text proposed in the NPRM published in the Federal Register on September 7, 2018. As discussed elsewhere in this preamble, these changes in this final rule include the following:

  • Section 212.5(b) now considers that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention.
  • Section 236.3(b)(2) defines Special Needs Minor and includes the term “retardation,” which commenters noted was an outdated term and should be removed. DHS agrees to replace that term with “intellectual disability.” HHS likewise agrees to use “intellectual disability” in the corresponding definition of Special Needs Minor at § 410.101.
  • Section 236.3(b)(9), which defines Licensed Facility, requires DHS to employ third parties to conduct audits of FRCs to ensure compliance with family residential standards. Commenters stated that DHS has previously not shared the results of such audits. While ICE has publicly posted the results of facility inspection reports submitted by third-party contractors since May 2018, these posts have not included results of FRC inspections. To directly address the comment, the phrase “DHS will make the results of these audits publicly available” is added to the definition. DHS also adds to the final rule that the audits of licensed facilities will take place at the opening of a facility and take place on an ongoing basis.
  • In § 236.3(b)(11), which defines a Non-Secure Facility, DHS agrees with commenters that a non-secure facility means a facility that meets the definition of non-secure under state law in the State in which the facility is located, as was intended by the language of the proposed rule, and is adding “under state law” to the definition to clarify this point.
  • In § 236.3(f)(1) regarding transfer of UACs from DHS to HHS, DHS agrees to amend the proposed regulatory text to clarify that a UAC from a contiguous country who is not permitted to withdraw his or her application for admission, or if no determination can be made within 48 hours of apprehension or encounter, will be immediately transferred to HHS. The Departments believe that commenters misunderstood the intent of the regulatory text due to imprecise wording, which is now clarified by deleting “subject to the terms of” and replacing with “processed in accordance with.”
  • In § 236.3(f)(4)(i) regarding the transportation of UACs, DHS is amending the regulatory text to make it clear that, as a general matter, UACs are not transported with unrelated detained adults. The two situations described in the regulatory text are limited exceptions to this general rule. DHS is adding the specific reference to unrelated “detained” adults, for clarity.
  • In § 236.3(g)(1)(i) regarding DHS procedures in the apprehension and processing of minors or UACs, Notice of Rights and Request for Disposition, DHS is removing the qualification that the notice will be read and explained when the minor or UAC is believed to be less than 14 years of age or is unable to Start Printed Page 44409comprehend the information contained in the Form I-770, and is clarifying that the notice will be provided, read, or explained to all minors and UACs in a language and manner that they understand. DHS is making this change to avoid confusion related to DHS's legal obligations regarding this notice, while still acknowledging that it may be necessary to implement slightly different procedures depending on the particular minor or UAC's age and other characteristics.
  • In § 236.3(g)(2)(i) regarding DHS custodial care immediately following apprehension, the proposed regulatory text stated that UACs “may be housed with an unrelated adult for no more than 24 hours except in the case of an emergency or exigent circumstances.” Commenters objected to the use of the term “exigent circumstances” as it was not defined. DHS agrees to delete the term “exigent circumstances” as it is redundant to “emergency.”
  • In § 236.3(i)(4), commenters requested additional language tracking the verbatim text of FSA Ex. 1. In response to these comments, DHS added language of FSA Ex. 1 paragraph.
  • Section 236.3(j) and (n) now consider that DHS is not precluded from releasing a minor who is not a UAC to someone other than a parent or legal guardian, specifically a brother, sister, aunt, uncle, or grandparent who is not in detention and is otherwise available to provide care and physical custody.
  • DHS has added a new § 236.3(j)(4) to state clearly that the Department will consider parole for all minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) and that paroling such minors who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason. DHS will also consider aggregate and historical data, officer experience, statistical information, or any other probative information in determining the detention of a minor.
  • Section 236.3(o) is amended to clarify that the Juvenile Coordinator's duty to collect statistics is in addition to the requirement to monitor compliance with the terms of the regulations.
  • In § 410.101, HHS agrees to amend the definition of “special needs minor,” replacing the term “retardation” with “intellectual disability.”
  • In § 410.201(e), HHS agrees with multiple legal advocacy organizations' analysis that the FSA and TVPRA run in contradiction to each other in placing UACs in secure facilities based solely on the lack of appropriate licensed program availability; therefore, ORR is striking the following clause from this section: “. . . or a State or county juvenile detention facility.”
  • In § 410.202, in response to commenters' concerns, HHS clarifies that ORR places UACs in licensed programs except if a reasonable person would conclude, “based on the totality of the evidence and in accordance with subpart G” that the UAC is an adult.
  • In § 410.203, in response to commenters' concerns, HHS clarifies that it reviews placements of UACs in secure facilities at least monthly and that the rule does not abrogate any requirements that ORR place UACs in the least restrictive setting appropriate to their age and any special needs.
  • In § 410.302(a), in response to commenters' concerns, HHS clarifies that the licensed program providing care for a UAC shall make continual efforts at family reunification as long as the UAC is in the care of the licensed program.
  • In § 410.600(a) regarding transfer of UAC, the proposed regulatory text states that, “ORR takes all necessary precautions for the protection of UACs during transportation with adults.” However, as ORR does not transport adult aliens, HHS has decided to strike this language from the final rule.
  • In § 410.700 HHS is adding the “totality of the evidence and circumstances” for age determinations standards to mirror the DHS standard in compliance with statute. See 8 U.S.C. 1232(b)(4).
  • In § 410.810(b), HHS declines to place the burden of evidence in the independent internal custody hearings on itself; however, it has modified the rule text to indicate that HHS does bear the initial burden of production supporting its determination that a UAC would pose a danger or flight risk if discharged from HHS' care. The UAC must bear the burden of persuading the independent hearing officer to overrule the government's position, under a preponderance of the evidence standard.

V. Discussion of Public Comments and Responses

A. Section-by-Section Discussion of the DHS Proposed Rule, Public Comments, and the Final Rule

1. Parole (§ 212.5)

Summary of Proposed Rule

In § 212.5(b), DHS proposed to remove the cross-reference to § 235.3(b) as it currently appears in order to eliminate an ambiguity and to codify its longstanding understanding of how certain provisions in § 235.3(b)'s provisions relating to parole of aliens in expedited removal proceedings who lack a credible fear (or have not yet been found to have a credible fear) apply both to adults and minors. Accordingly, such minors will be paroled only in cases of medical necessity or when there is a law enforcement need. This is the same standard that applies to adults in these same circumstances. These proposed changes also eliminate an existing tension with the text of the relevant statutory provision.

Public Comments and Responses

One commenter stated that it agreed with the determination that parole should be limited to cases of medical necessity or law enforcement need and that parole must be within the discretion of DHS. Many commenters, however, disagreed with the proposal and expressed concern about more restrictive parole standards, the impact on asylum seekers, and questioned the necessity for the proposed changes given existing discretionary parole authority.

Limiting Parole to Medical Necessity or Law Enforcement Need

Comments. Several commenters stated that the proposed parole standards are restrictive and will unnecessarily prevent the release of children who pose no flight or safety risk. Most of these commenters expressed concern that the removal of the cross-reference to § 235.3(b) allows for children to only be paroled if there is a “medical necessity or law enforcement need,” whereas the FSA allows children to be paroled when there is an “urgent humanitarian need or significant public benefit.” Some of these commenters stated that this limitation fails to consider the particular vulnerability of children as required by the FSA and is unnecessary due to the already high standard for the limited number of children who would qualify for parole under the prior standards.

Multiple commenters stated that children with urgent humanitarian needs such as pregnant young women and children with physical disabilities, cognitive impairments, or chronic medical conditions would likely no longer qualify for parole under the proposed regulations and the medical emergency standard.

A few commenters stated that DHS should continue the general policy to prioritize parole to ensure the best interests of minors and their placement in the least restrictive setting appropriate. Another commenter stated that the proposed regulations should be withdrawn and asked the following questions: (i) How large was the Start Printed Page 44410population of minors who were in detention under § 235.3(c) and who were released on parole under § 212.5(b) on a yearly basis for the past five years; (ii) why is § 212.5(b) inappropriate for minors in removal proceedings under § 235.3(c); and (iii) why should accompanied minors not be permitted to be paroled on a case-by-case basis for an urgent humanitarian reason or a significant public benefit?

Fewer Minors Paroled

Multiple commenters stated that the proposed changes will result in children facing the same parole standards as adults and thereby being paroled less frequently. One of these commenters expressed concern that this would likely mean children will be detained beyond the 20 days that is generally the current practice permitted under the FSA. Another commenter stated that while the NPRM states that proposed § 236.3(j) “adds that any decision to release must follow a determination that such release is permitted by law, including parole regulations,” it does nothing to specify DHS parole procedures favoring the release of children, which the commenter contended was required by the FSA.

Impact on Asylum Seekers

Multiple commenters expressed concern about how the proposed changes to parole would impact asylum seekers. One of these commenters stated that the proposed rule provides no explanation for eliminating DHS's authority to consider unique circumstances that may arise for children seeking asylum. Another commenter stated that asylum applicants in detention have historically had an opportunity to be released through parole provisions, and contended that the proposed parole standards would afford DHS broad discretion to apply a new narrow standard, leaving survivors of sexual violence and other forms of trauma with minimal hope of release pending a lengthy adjudication of their complex, evidence-driven asylum claims. A different commenter stated that the proposed rule uses the detention of children to disincentivize asylum seekers from going forward with their asylum claims and that the changes will make it more difficult for certain vulnerable children and families in DHS custody to be paroled as they await an assessment of whether they have a credible fear of persecution.

Existing Discretionary Parole Authority

Other commenters pointed to existing discretionary parole authority and questioned the necessity of the proposed changes. One commenter likened the choice between detention and parole for children to the choice between incarcerating a minor or releasing them on probation, contending that detention alternatives are healthier for children and avoid expenses. Another commenter contended that ICE has the discretion to release on parole and that the new regulations place no meaningful limit on the ability of ICE to detain families during their proceedings. This commenter stated that DHS's proposed regulations provided no review of a parole denial, and that the Attorney General indicated his intention to review and possibly reverse the long-standing precedent providing for individualized ICE custody determinations with review in immigration court for asylum seekers who have passed a credible fear interview.[20] The commenter urged that children and families be given a meaningful ability to seek redress of detention after a parole denial. Still another commenter, characterizing the change as “severely restrict[ing]” parole for these individuals, stated that DHS's claim that this change is intended by Congress is “belied” by INA 212(d)(5)(A), wherein Congress authorized discretionary parole on a case-by-case basis for urgent humanitarian reasons or significant public benefit.

General Opposition to Proposed Changes

Several commenters objected to any attempt to curtail parole in the name of family unity, contending that detention significantly harms children. Another commenter, perceived that this rule would limit opportunities for minors to be released from detention and asserted that the Administration should make every effort to ensure that children, and as applicable, children with families, spend as little time in detention as possible. This commenter stated that, in the case of a minor who is traveling with a family member, absent an indication of trafficking or unfitness on the part of the relative, it is in the best interest of the child to be paroled from detention with the relative. A different commenter requested that the final rule provide that all minors are bond and parole eligible.

Response. For more general concerns about the release of minors from DHS custody, see the discussion under § 236.3(j). For concerns about the negative effects of detention, see the discussion under § 236.3(h) regarding detention of family units.

DHS provides the following counts of adults and minors who were released from FRCs on parole in FY 2014 through 2018 in response to comments. There are also other means to effectuate release. See Table 10 for Average Length of Stay and Table 11 for reasons for release.

DHS notes that the changes under this provision are limited in scope and intended not to foreclose the possibility of a minor's release, but to clarify that the provisions in § 235.3(b) governing the parole of aliens in expedited Start Printed Page 44411removal (specifically those pending a credible fear interview or ordered removed in the expedited removal process) apply to all such aliens, and not merely adults. Parole of minors will be applied in accordance with applicable law, regulations, and policies, and DHS will consider parole for all minors in its custody who are eligible. The current cross-reference to § 235.3(b) within § 212.5(b) is confusing because it suggests, incorrectly, that the more flexible parole standards in § 212.5(b) might, for minors, override the provisions in § 235.3(b) that govern parole for any alien in expedited removal proceedings (i.e., an alien who has been ordered removed or is still pending a credible-fear determination). See 8 CFR 235.3(b)(2)(iii), (b)(4)(ii). DHS disagrees with that interpretation of its current regulations, which, among other things, is in tension with the text of the relevant statutory provisions at 8 U.S.C. 1225(b)(1)(B)(iii)(IV) (“Any alien subject to [expedited removal] shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.”). By its terms, § 235.3(c) applies only to arriving aliens who are placed into section 240 proceedings. Many of the comments on the proposal—for example, those urging DHS to adopt a more flexible parole standard or a general practice of paroling alien juveniles—largely amount to disagreement with DHS's legal interpretation of INA 235(b)(1)(B)(iii)(IV), set out in the preamble of the NPRM, see 83 FR at 45502. But DHS is not persuaded that this legal interpretation is erroneous. Moreover, the FSA does not specifically discuss parole, much less require parole for urgent humanitarian reasons or significant public benefit. While the FSA expresses a preference for release for juveniles, it does not require release in all cases, and explicitly does not provide a specific standard for such release decisions.

DHS notes that many commenters appeared to confuse the proposed changes with changes that would be much broader in scope; for example, by eliminating from § 212.5(b) entire groups of aliens who have been or are detained from receiving case-by-case parole determinations and eliminating completely the “urgent humanitarian reasons” or “significant public benefit” justifications. As the regulatory language in the revised § 212.5(b) indicates, this is not the case. The intent of these provisions is only to remove the ambiguity in the current regulations that appears to erroneously apply the more flexible standard of parole for arriving aliens (“urgent humanitarian reasons or significant public benefit”) placed in section 240 proceedings to minors placed in expedited removal, rather than the standards generally applicable to all aliens placed in expedited removal who have yet to have a credible fear interview or who have been ordered removed (“required to meet a medical emergency or is necessary for a legitimate law enforcement objective”).

The Attorney General's recent decision in Matter of M-S, 27 I&N Dec. 509 (A.G. 2019), does not affect the parole standard applicable to the narrow category of aliens to whom the amendments to § 212.5(b) apply—specifically, aliens who are pending a credible fear interview or who have been ordered removed through the expedited removal process. In Matter of M-S-, the Attorney General's decision addressed aliens who enter the United States between the ports of entry, are processed for expedited removal, and are then placed into removal proceedings pursuant to INA 240 after establishing a credible fear. Matter of M-S-, 27 I&N Dec. 509. Those aliens, he concluded, are ineligible for release on bond under INA 236(a) and may only be released from DHS custody through parole under INA 212(d)(5). Id. But that is a different category of aliens and the proposal here would do nothing to alter the standards governing the detention or release of those aliens. DHS will continue to apply its parole authority in these cases in accordance with applicable law, regulations, and policies. DHS also declines to adopt commenters' suggestions that DHS codify a review process for denials of parole, which has never existed, given that the decision to grant parole is entirely discretionary. However, as previously explained, DHS's current bed space at FRCs necessarily limits the number of family units who could be detained at any given time.

Changes to Final Rule

Accordingly, DHS is finalizing its regulation at 8 CFR 212.5(b) as proposed but is adding language to permit release of a minor to someone other than a parent or legal guardian, specifically an adult relative (brother, sister, aunt, uncle, or grandparent) not in detention. The reason for this change is explained in the section below regarding comments on proposed 8 CFR 236.3(j).

2. Definitions § 236.3(b)

Minor § 236.3(b)(1) and Unaccompanied Alien Child (UAC) § 236.3(b)(3)

Summary of Proposed Rule

DHS proposed revisions to § 236.3(b)(1) to define a minor as any alien under 18 years of age who has not been emancipated or incarcerated for an adult criminal offense. DHS proposed to remove the definition of juvenile as it is too broad and replace it with the more specific terms minor and UAC. The difference between minor and UAC is that the term “minor” captures any alien under the age of 18 that is not defined as a UAC, for example, minors accompanied by their parents. Also, under these definitions, a “minor” cannot be legally emancipated or have been incarcerated due to an adult conviction, whereas the definition of UAC does not exclude these categories.

Public Comments and Response

Comments. One commenter stated that it was inconsistent with the FSA to delete the definition of “juvenile” and replace it with separate definitions for “minor” and “UAC,” thereby requiring different treatment between juveniles who are accompanied by their parent or legal guardians, and juveniles who are not. The commenter noted that although UACs must be transferred to ORR custody within 72 hours of apprehension, juveniles who did not meet this definition would not be transferred. The commenter also noted that under the NPRM, minors could be released only to a parent or legal guardian, whereas, the commenter contended, the FSA requires the release of all children to the least restrictive placement. The commenter concluded that adopting the two definitions would conflict with the FSA, which does not draw any distinctions between juveniles in ORR custody and juveniles in DHS custody.

Response. DHS disagrees that replacing the term juvenile with a definition for minor and a definition for UAC is inconsistent with the FSA or creates an improper distinction. The term “juvenile” originates not in the FSA, which did not use or define the term, but in existing DHS regulations. These regulations have not been updated since 1988 and do not reflect either the provisions of the FSA or any developments in law since that time. Accordingly, in updating the regulations to implement the FSA, DHS has adopted the same definition of “minor” as used in the FSA. Additionally, DHS has included the term UAC, as that term is defined in the HSA. Pursuant to the HSA and the TVPRA, ORR is Start Printed Page 44412responsible only for the care and custody of UACs. See 6 U.S.C. 279(b)(1); 8 U.S.C. 1232(b)(1). Because the HSA and the TVPRA specifically define UACs and impose certain requirements related only to UACs, the regulatory text must be able to distinguish between UACs and minors who do not meet the UAC definition. The term juvenile is too broad to provide a meaningful definition and does not track the language of the FSA.

Changes to Final Rule

DHS finalizes its definitions of minor and UAC as proposed and declines to make changes in response to public comments.

Special Needs Minor § 236.3(b)(2)

Summary of Proposed Rule

DHS did not propose any revisions to the FSA for the definition of special needs minor. Special needs minor is defined as any minor with physical disabilities, cognitive impairments or chronic medical conditions that was identified in the individualized needs assessment.

Public Comments and Response

Comments. Some commenters asked for expanded definitions of “special needs minor” or additional provisions relating thereto. One commenter stated the definition should be broadened to include developmental disability and learning disability. The commenter urged that it is important for children, particularly unaccompanied children, to be able to understand and follow instructions or directions given to them by Federal officials, attorneys, and care custodians in licensed facilities. The commenter also asserted that children with learning or developmental disabilities would be less likely to take advantage of the resources for which they are eligible and may not fully comprehend the life-changing decisions that they are asked to make during their immigration proceedings. Another commenter contended that the rule does not adequately discuss special needs or require DHS to consider a child's disability in determining placement in a secure facility or even in a FRC.

One commenter also condemned the use of the “outdated” term “retardation” in the definition of special needs minor. The commenter stated that the term is used as a slur that dehumanizes, demeans, and does very real emotional harm to people with mental and developmental disabilities. The commenter acknowledged the term was used in the FSA agreement, but argued that it is inappropriate in a modern-day regulation.

Response. The regulatory language adopted the same definition of “special needs” as the definition used in the FSA. This definition includes any minor whose mental condition requires special services and treatment as identified during an individualized needs assessment. DHS disagrees that the definition should be expanded because the definition is broad enough to include minors with developmental and learning disabilities, if the special needs assessment determines that these conditions require special services and treatment.

The proposed regulatory language contains multiple provisions requiring DHS and HHS to consider a minor or UAC's special needs, including provisions requiring consideration of special needs when determining placement. For example, 45 CFR 410.208 states that ORR will assess each UAC to determine if he or she has special needs and will, whenever possible, place a UAC with special needs in a licensed program that provides services and treatment for the UAC's special needs. Title 8 CFR 236.3(g)(2) requires DHS to place minors and UACs in the least restrictive setting appropriate to the minor or UAC's age and special needs. Title 8 CFR 236.3(i)(4) requires that facilities conduct a needs assessment for each minor, which would include both an educational assessment and a special needs assessment. Additionally, 8 CFR 236.3(g)(1) requires DHS to provide minors or UACs with Form I-770 and states that the notice shall be provided, read, or explained to the minor or UAC in a language and manner that he or she understands. These provisions ensure that a minor or UAC's special needs are taken into account, including when determining placement.

Changes to Final Rule

DHS is amending the regulatory language to delete the term “retardation” and insert the term “intellectual disability.” HHS has also deleted this term in its regulatory language.

Unaccompanied Alien Child § 236.3(b)(3)

Summary of Proposed Rule

DHS proposed to define a UAC as provided in 6 U.S.C. 279(g)(2), which states that a UAC is a child under the age of 18 who has no lawful immigration status in the United States and who has no parent or legal guardian present in the United States who is available to provide care and physical custody.

Public Comments and Response

The comments received are discussed above in conjunction with the definition of “minor.”

Changes to Final Rule

DHS declines to change the proposed definition of UAC in response to public comments.

Custody § 236.3(b)(4)

Summary of Proposed Rule

The term custody is not defined in the FSA. DHS has defined custody as the physical and legal control of an institution or person.

Public Comments and Response

DHS did not receive any comments requesting a change to this definition.

Changes to Final Rule

DHS is not making changes from the proposed definition of custody in the final rule.

Emergency § 236.3(b)(5)

Summary of Proposed Rule

DHS proposed revisions to § 236.3(b)(5) to define emergency as an act or an event that prevents timely transport or placement of a minor, or could delay compliance with or temporarily excuse compliance with other provisions of the proposed rule. As discussed in the preamble to the proposed rule, the new definition of emergency has been added in the regulatory text. The new definition largely tracks the existing text of the FSA except that it reflects DHS's recognition that emergencies may not only delay placement of minors but could also delay compliance with other provisions of the proposed rule or excuse noncompliance on a temporary basis.

Public Comments and Response

Comments. Several commenters expressed concern that the proposed “expanded” definition of “emergency” would grant DHS too much discretion to suspend compliance with certain FSA provisions relating to standards of care and custody for children, such as timely transport or placement of minors and other conditions implicating their basic services.

Some of these commenters contended that the definition would allow DHS to declare any situation an emergency and deny any and all protections to children Several commenters stated that the expanded definitions of emergency would make ignoring limitations on transfer the “default” and compliance with the FSA timeframe the exception Start Printed Page 44413rather than the rule. These commenters stated this would expose children to dangerous conditions documented repeatedly by government inspectors and outside researchers, including inadequate and inappropriate food, severely cold temperatures, bullying and abuse, and lack of medical care.

Other commenters had specific objections to the proposed definition. One contended that it was circular, defining an emergency primarily as an event that prevents compliance. Some expressed concern that events other than a natural disaster, facility fire, civil disturbance, and medical or public health concerns might also qualify as an emergency, leaving significant room for interpretation. Several commenters stated that the phrase “other conditions” would implicate the basic needs of the children which would further jeopardize their well-being, health, and safety and runs contrary to the explicit placement context of the FSA. Another commenter expressed concern that the language “medical or public health concerns at one or more facilities” which allow for a possible emergency in instances where several minors lack key vaccinations, or where a few minors may require treatment for chronic conditions such as asthma or diabetes.

With respect to the consequences of the emergency, commenters offered still other concerns. One commenter expressed concern with the language that minors must be transferred “as expeditiously as possible,” instead of including a defined period of 3 or 5 days, as the commenter believed required by the TVPRA.

A few commenters noted that, as a result of the proposed definition, minors may be held indefinitely in temporary CBP facilities that are intended only for short-term use and that are assertedly notorious for frigid temperature, deficient medical care, and other poor conditions (i.e., sleeping in office buildings without beds or showers, or in tents, vans or buses without water and sanitation). One commenter expressed concern that, even without invoking an emergency, CBP is often grossly negligent towards children and those in its custody.

Several commenters contended that the proposed definition contradicts FSA paragraph 12A which provides no exception for housing minors with unrelated adults for longer than 24 hours, because they viewed the broad interpretation of emergency as allowing DHS to house children with unrelated adults indefinitely and for virtually any reason.

One commenter stated that the example provided by DHS regarding delayed access to a snack or meal seems reasonable; however, it would provide DHS the flexibility to label any act or event an emergency and that recommended that DHS: (1) Look into the definition of emergency in the American Bar Association's (ABA) Unaccompanied Child Standards; and (2) adopt a more limited, non-circular definition of emergency, to avoid what the commenter considered an unnecessary relaxation of the FSA standards. Other commenters recommended that DHS instead ensure that non-perishable, nutritious food and bottled water in packs will be kept on site at all times in case of an emergency evacuation in order to ensure that nutritional needs of children are met.

Several commenters argued that DHS and HHS should provide more evidence and explanation of the need to expand the current definition; describe how the agencies arrived at these definitions; provide a timeframe for how long an emergency may last; and provide for the consequences for invoking the emergency when unwarranted.

One of these commenters recommended that DHS and HHS compile a comprehensive list of permissible emergency circumstances. One commenter noted that the proposed rule leaves the facility to decide the rationale and length of an emergency and recommended that DHS hold detainment centers accountable to the maximum safety and compliance requirements and make no exemptions to the minimum standards in FRCs for detainees.

Several commenters addressed conduct in the event of an emergency. Some, for example, recommended that the proposed rule should clarify the circumstances that the Government would consider constituting emergencies, establish that any corresponding exemptions be limited in scope, and ensure that the fundamental needs of children are met, regardless of the circumstances constituting the “emergency.”

One commenter suggested that in cases of emergency, rather than devising means to delay the provision of basic services or care and timely placement or transfer, DHS should consider how provisions could be made to serve the children during transport and should prioritize emergency preparedness planning to ensure readiness to respond. And several commenters recommended that, from a public health perspective, designation of an emergency should trigger additional resources, prepared in advance through contingency planning and made available through standing mechanisms.

Response. DHS notes that paragraph 12(B) of the FSA defines an emergency as “any act or event that prevents the placement of minors pursuant to paragraph 19 within the time frame provided” (i.e., three days or five days, as applicable). The FSA also contains a non-exhaustive list of acts or events that constitute an emergency, such as “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).” DHS notes that the definition of emergency contained within this provision does not depart from how the FSA defines an emergency act or event. Rather, this provision recognizes that, in rare circumstances, an emergency may arise, generally unanticipated, that affects more than just the transfer of a minor from one facility to another (e.g., a natural disaster or facility fire may render CBP temporarily unable to provide contact between a minor and family members apprehended with him or her). As indicated in the NPRM, the impact, severity, and timing of a given emergency situation dictate the operational feasibility of providing certain items to minors, and thus the regulations cannot contain every possible reality DHS will face. The applicability of “emergency” is intended to be flexible to the extent it fits within the parameters set forth by the FSA. Therefore, DHS disagrees with commenters' claim that the definition of emergency creates excessive discretion, allows DHS to declare an emergency for any reason, or unnecessarily relaxes the existing FSA standards.

DHS also notes that, during an emergency situation, it continues to make every effort to transfer minors and UACs as expeditiously as possible, and to provide all other required amenities as set out in the FSA. Depending on the severity of the emergency, the provision of one or more FSA requirements may be temporarily delayed for some minors and UACs. For instance, if a child in a CBP facility has a medical emergency such that he or she must be provided with urgent medical care, it may be necessary to temporarily delay the provision of meals to other minors and UACs during the time required to provide such medical care. As soon as the medical emergency subsides, however, CBP would resume the provision of meals to all other minors and UACs. Similarly, if a facility suffers an electrical failure, such that the air conditioning breaks, all minors and UACs in that facility may temporarily be Start Printed Page 44414held in temperatures that do not comply with the applicable standards set out in the FSA. CBP would work to rectify the problem as quickly as possible, and would take steps to mitigate the problem (e.g., providing extra fans for the facility). Once the air conditioning is fixed, however, the minors and UACs would return to conditions consistent with the standards set out in the FSA. CBP also records the provision of food to minors and UACs, and records that CBP has routinely confirmed the availability of drinking water, operational toilets, and sinks, as well as the conditions in its hold cells (e.g., temperature, cleanliness) in its electronic systems of records. Any emergency situations requiring temporary suspension of the requirements set out in the FSA, as well as the conclusion of that emergency, is also recorded in the electronic systems of records. To the extent it is able, CBP also maintains a sufficient stockpile of supplies, such as snacks, at its facilities to ensure that there are sufficient supplies available in an emergency situation.

DHS disagrees with commenters' concern about minors being held “indefinitely” as a result of a declared emergency and emphasizes that when emergency conditions exist, transfer must still occur “as expeditiously as possible.” DHS notes that the “as expeditiously as possible” time frame is derived from the FSA itself. The existence of an emergency under these regulations does not excuse DHS from transferring minors or UACs to licensed programs or HHS custody, respectively. DHS must still move as expeditiously as possible, given the emergency, to place minors and/or UACs.

DHS notes that the ABA's Unaccompanied Child Standards' concept of “emergency” appears to apply to a much narrower situation than the concept of “emergency” in the FSA, and declines to apply these standards to DHS's regulatory definition of emergency. The ABA concept of “emergency” appears to govern when it may be permissible to house minors and UACs with unrelated adults. The FSA definition of emergency covers a wider variety of situations than the ABA's provision. Accordingly, DHS has described such situations in other provisions of this rule. See, e.g., 8 CFR 236.3(g)(2)(ii). DHS notes that these provisions of the proposed rule do incorporate and contemplate certain emergency exceptions.

Changes to Final Rule

DHS declines to change its proposed definition of emergency in response to public comments.

Escape-Risk § 236.3(b)(6)

Summary of Proposed Rule

The term “escape-risk” is defined in paragraph 22 of the FSA. DHS proposed to define escape-risk as a minor who attempts to escape from custody. DHS proposed requirements and clarification for the definition of escape-risk. A minor is an escape-risk if he or she is subject to a final order of removal, has a prior breach of bond, has failed to appear before DHS or immigration court, or has previously absconded from state or Federal custody.

Public Comments and Response

Comments. One commenter stated that the proposed rule definition of escape risk includes a child who “has previously absconded or attempted to abscond from state or Federal custody.” The commenter argued that the FSA refers only to Federal custody and that the revised definition could include a child who has been ordered into foster care by a state juvenile court and then ran away from foster care. The commenter concluded children should not face detention in a secure facility because of such circumstances.

Response. In paragraph 22 of the FSA, escape risk is defined as “a serious risk that the minor will attempt to escape from custody.” The NPRM adopted that same definition. Paragraph 22 of the FSA also provides a non-exhaustive list of factors to consider when determining whether a minor is an escape risk. Because the list of factors to consider is not exhaustive, it is not inconsistent with the FSA for DHS to consider additional factors in determining a minor's escape risk. DHS continues to find that whether the minor has previously absconded or attempted to abscond from state or Federal custody to be relevant to whether there is a risk the minor will attempt to escape from DHS custody.

Changes to Final Rule

DHS declines to change its proposed definition of escape risk in response to public comments.

Family Unit § 236.3(b)(7)

Summary of Proposed Rule

The term family unit is not defined in the FSA. DHS proposed to define family unit as two or more aliens consisting of a minor accompanied by a parent or legal guardian. If evidence shows the minor has no relation to the purported parent or legal guardian, the individuals would not constitute a family unit, and, if no parent or legal guardian for the minor is in the United States or the/parent or legal guardian in the United States is not available to provide care and physical custody, the minor would be a UAC.

Public Comments and Response

Comments. Commenters expressed concern that the proposed definition of family member seeks to narrow the definition of “family unit” by excluding adult family members other than the child and his/her biological parent(s) or legal guardian(s). The commenters wrote that DHS has ignored the reality in some foreign cultures that extended family members may be the sole caregivers for the children and recommended that DHS adopt a broad definition of “family unit” to comply with the FSA and accepted child welfare principles and practices.

One commenter stated that the proposed definition violates the best interest of the child standard because it separates children from their related, non-parent caregivers. The commenter stated that, although the FSA mandates that UACs be “segregated from unrelated adults,” it requires that DHS provide access to “contact with family members that were arrested with the minor,” hence recognizing a broader definition of “family.” Likewise, the commenter stated that ORR's current definition of “family” and HHS' proposed regulations, which allow the release of a child to an adult seeking custody when family reunification is not possible, recognize a broader definition.

One commenter recommended that DHS adopt the broad definition of family similar to the “Standards for the Custody, Placement and Care; Legal Representation and Adjudication of Unaccompanied Alien Children in the United States” (UC Standards) and the ABA Civil Immigration Detention Standards. The commenter contends that nothing in the language of the TVPRA restricts DHS's ability to release a UAC to someone other than a parent or legal guardian and therefore there is no legal requirement to narrow the definition of “family member.”

Response. DHS notes that the definition of “family unit” in this rule does not encompass a broader definition of family as proposed by the commenters because DHS must ensure it complies with the applicable laws and regulations governing the apprehension, processing, care, and custody of alien juveniles. The HSA and the TVPRA transferred to ORR HHS the Start Printed Page 44415responsibility for the care and custody of UACs. A UAC, as defined in the HSA, is a minor under 18 years of age who lacks lawful immigration status in the United States and either lacks a parent or legal guardian in the United States or lacks a parent or legal guardian in the United States available to provide care and physical custody. See 6 U.S.C. 279(g)(2). Once an alien juvenile has been determined to be a UAC, DHS must transfer the UAC to the care and custody of HHS within 72 hours, absent exceptional circumstances (unless such a UAC is a national or habitual resident of a contiguous country and is permitted to withdraw his or her application for admission under section 1232(a)(2)). See 8 U.S.C. 1232(b)(3). Accordingly, DHS has no authority to release a UAC.

In accordance with the TVPRA, only non-UACs can be held in DHS custody at an FRC. By definition, a minor is not a UAC if he or she has an adult parent or legal guardian in the United States who is available to provide care and physical custody. The term “family unit” is defined to include those alien juveniles—minors who are accompanied by his/her/their adult parent(s) or legal guardian(s)—who are not UACs. Absent additional information available to DHS at the time of encounter indicating a parent or legal guardian was present in the United States and available to provide care and physical custody, if a juvenile alien is encountered or apprehended with an adult relative other than a parent or legal guardian, that juvenile alien lacks a parent or legal guardian in the United States available to provide care and physical custody of the juvenile. See 6 U.S.C. 279(g)(2). Thus, under the HSA and TVPRA, the juvenile alien would be determined to be a UAC and transferred to the care and custody of HHS. See 8 U.S.C. 1232(b)(3). Such a juvenile alien would not be detained in DHS custody at an FRC.

DHS notes that the commenter's suggestion that DHS adopt ORR's definition of “family” in the ORR proposed regulation at 45 CFR 410.300 is misguided, as that section does not contain a separate definition of “family” but instead identifies the types of potential sponsors to whom ORR may release a UAC. DHS notes that the term “family” encompasses a broader group of individuals than those individuals determined to be a “family unit.” HHS has unique authorities under the TVPRA and the HSA to determine whether release of a UAC to a sponsor—which may include an adult who is a member of the child's family, but who is not a parent or legal guardian—is appropriate. DHS does not have any similar authorities to release UACs to sponsors. For an additional discussion about the individuals to whom a non-UAC minor may be released, please see the discussion in Section B.10, Release of Minors from DHS Custody. The commenter also notes that the FSA requires DHS to provide “contact with family members that were arrested with the minor,” FSA paragraph 12, and thus “recognizes the broader definition of family.” However, this paragraph refers to procedures and temporary placement immediately following the arrest or apprehension of a minor. This paragraph acknowledges that a juvenile may be encountered with family members who are not parents or legal guardians, and that there is a meaningful benefit to providing contact with such family members. However, the FSA does not require DHS to detain juvenile aliens together with adult relatives who are not parents or legal guardians, and DHS is not permitted to detain UACs under the HSA and TVPRA.

DHS notes that the commenter recommends DHS adopt the broad definition of family similar to those described in the ABA “Standards for the Custody, Placement and Care; Legal Representation and Adjudication of Unaccompanied Alien Children in the United States” or the ABA Civil Immigration Detention Standards. However, those standards include family members who could not be detained together in DHS custody under the TVPRA and consistent with the HSA.

DHS also notes the commenter's disagreement with DHS's contention that the TVPRA restricts DHS's ability to release a UAC to someone other than a parent or a legal guardian. As stated in the proposed rule, following the passage of the TVPRA, HHS is solely responsible for the care and custody of UACs, and DHS no longer has the authority to release a UAC. However, upon further consideration of the commenter's contention and review of relevant statutes and case law, DHS has determined that the law does not prohibit DHS from releasing a non-UAC minor to someone who is not a parent or legal guardian. DHS acknowledges that this interpretation of the law differs from the interpretation represented to the U.S. Court of Appeals for the 9th Circuit in recent litigation, but is making this change upon due consideration. See Brief for Appellants, Flores v. Sessions, No. 17-56297 (9th Cir. Jan. 5, 2018). This is being permitted to facilitate transfers to non-parent family members when such a transfer is appropriate, that DHS has no concerns about the minor's safety upon such release, and no concerns about the adult relative's ability to secure the non-UAC minor's timely appearance before DHS or the immigration courts. Any release of a non-UAC minor to an adult relative other than a parent or legal guardian will be within the unreviewable discretion of DHS. DHS reiterates, however, that if no parent or legal guardian is in the United States and available to provide care and physical custody for an alien under the age of 18 with no lawful status, the juvenile meets the definition of a UAC and must be transferred to HHS custody as only HHS has the responsibility for the care, custody, and placement of UACs. See 6 U.S.C. 279(g)(2); 8 U.S.C. 1232(b)(1), (3).

Changes to Final Rule

DHS declines to change its proposed definition of family unit in response to public comments, but will change certain provisions regarding the release of minors as explained in subsequent sections.

Licensed Facility § 236.3(b)(9)

Summary of Proposed Rule

In § 236.3(b)(9), DHS proposed a definition for “licensed facility.” To parallel the provisions of FSA paragraph 6, DHS proposed that facilities that temporarily detain minors obtain licensing where appropriate licenses are available from a State, county, or municipality in which the facility is located. The proposed rule also eliminated existing barriers to the continued use of FRCs by creating an alternative to meet the licensed facility definition for such detention to provide reasonable assurances about the conditions of confinement at that facility, and thus to implement the underlying purpose of the FSA's licensing requirement. DHS's proposed definition considers a “licensed facility” to be one that is licensed by the State, county, or municipality in which it is located. If no such licensing scheme exists, DHS's proposed that the facility will meet the definition of “licensed facility” if it complies with ICE's family residential standards as confirmed by a third-party with audit experience hired for such a purpose.

Public Comments and Response

Comments. One commenter noted that she supports DHS-licensed facilities that would allow children to stay with their parents or relatives as long as possible, given that prolonged separation from families can be traumatic for children. The commenter stated that she would support these Start Printed Page 44416facilities to detain families during their immigration proceedings if they are “consistent with applicable law.” Many other comments, however, raised issues such as a potential conflict of interest in permitting DHS to establish the licensing requirements for DHS facilities, whether Federal licensing standards would be as rigorous as state standards, alleged inconsistencies with the FSA, whether the Federal Government has authority to license detention facilities, and whether Federal licensing would provide adequate monitoring and oversight.

• Self-Licensing and Oversight

Comments. Numerous commenters recommended alternative language to the proposed definition of “licensed facility.” One commenter suggested that in all cases where a state, county, or municipality licensing program is unavailable that ICE's family residential standards should align with applicable state child welfare laws and regulations—including all state and local building, fire, health, and safety codes. This commenter stated that in emergency situations where immediate or short-term solutions are needed, existing state licensed child welfare facilities should be considered as an option. Another commenter suggested that the period of detention should be shortened to 14 days. The commenter also objected to the proposed new limits on to whom children may be released, and the elimination of the requirement that detention centers be subject to State inspections. The commenter specifically suggested that detention centers be required to meet care requirements that apply to day care centers, such as having a small ratio of care givers to children, background checks, and check-in visits. Still other commenters stated that the proposed rule does not state who will propose the Federal licensing scheme for detention centers.

A few commenters stated that DHS's difficulty licensing facilities under state licensing regimes results from the unacceptable conditions of confinement within DHS's facilities rather than a failure of the state licensing processes. One commenter stated “In unlicensed facilities, children are at high risk for abuse and neglect, which in turn will ultimately result in high costs paid not only in the form of unnecessary suffering, the disintegration of the social fabric of our nation, but also by taxpayer money going towards Department of Children and Families, Department of Youth Services, and more state agencies responsible for welfare of youth.”

Numerous commenters stated that DHS should not be allowed to self-license detention facilities because current facilities do not have adequate oversight and, as a result, DHS is not currently capable of maintaining clean, humane, and safe detention centers.

Multiple commenters cited to a June 2018 report from the DHS Office of Inspector General (OIG), which found that the Nakamoto Group, the third-party contractor ICE has most frequently used to conduct inspections at adult detention facilities, did not always examine actual conditions, was not consistently thorough, and frequently failed to identify compliance deficiencies.[21] According to the commenters, the report showed that the agency's self-inspections by the Nakamoto Group have been lax and severely lacking. The report found that, in some instances, the Nakamoto Group even misrepresented results in their reports to ICE. The commenters also stated that the Nakamoto Group had standards that were very difficult to fail, and one commenter requested that DHS verify that the Nakamoto Group not serve as a third-party contractor for these licensed facilities.

Commenters also discussed other aspects of the OIG report. One commenter noted that the OIG report found that DHS-ICE existing inspections and monitoring mechanisms for detention facilities neither “ensure consistent compliance with detention standards, nor do they promote comprehensive deficiency corrections.” Some commenters noted that typically three to five inspectors have only three days to interview 85-100 detainees and perform and document their inspection, an amount of time that the OIG found insufficient to see if the facility was actually implementing its required policies. According to the commenters, the OIG also found that it could not characterize the interviews with detainees as sufficient because the conversations with detainees were not conducted in private and were in English only.

Yet another commenter cited the OIG report to state that inspections by third-party contractors did not insure minimum child welfare standards were met, and that although ICE completed oversight inspections every three years, it did not correct the problems it found.[22] Although the ICE Office of Detention Oversight conducted more thorough inspections, the commenter noted that the OIG expressed concern that these inspections were done only once every three years with no follow-up to see if the problems were corrected.

A commenter stated that reports from private inspections are rarely available and, even when they are, do not inform the public about what standards were used as a base and how long non-compliance issues took to be resolved. These commenters pointed to the case of Danya International, a private contractor hired by DHS to inspect family detention centers for compliance with ICE's internal standards, to highlight their concerns with the quality and lack of transparency in the inspections carried out by ICE's third-party vendors. They stated that only three reports from Danya's inspections have been released publicly. According to the commenters, the only information available about the remaining reports is an assertion by an ICE official in a court declaration that “Danya has generally found the FRCs to be compliant with a majority” of standards, and “[w]here Danya observed individual issues of non-compliance, the facilities took corrective action as appropriate and achieved compliance although this is a continuous process.” The commenters stated that the ICE descriptions were vague and provided very little information regarding which ICE standards were violated, or how severe or prolonged these violations were. The commenters claim that ICE denied requests for access to the reports even to DHS's Advisory Committee on Family Residential Centers. They also asserted that DHS's Office of Civil Rights and Civil Liberties (CRCL) has conducted more in-depth inspections of family detention centers, and what is publicly known from those inspections appears to undermine those conducted by DHS's third-party vendors.

Response. DHS understands commenters' concerns about the Federal Government setting its own standards instead of using state licensing standards; however, many States have no standards for facilities housing families. The Federal Government cannot require States to create regulatory structures to license and inspect FRCs. Therefore, to ensure compliance with the FSA in those States that do not have any applicable standards for the housing of family units, DHS established Family Start Printed Page 44417Residential Standards (FRS) in 2007 with the FSA as its base after a review of contemporaneous state codes of Pennsylvania and Texas. The first edition of the ICE FRS, released in 2007, was developed by independent subject matter experts (SMEs), government officials, and the nongovernmental organization (NGO) community. ICE's Juvenile and Family Residential Management Unit (JFRMU) engaged other DHS components in reviewing and providing input. Further, JFRMU sought various SMEs in areas such as emergency planning, detention administration, trauma informed care, child development, and legal rights and representation to evaluate the draft standards.

After several years of operations and data collection through a rigorous monthly and semiannual inspection program, ICE commenced a top-to-bottom review of the first-edition FRS. This review included an analysis of past and current best practices at FRCs, and focused on improving the standards to more effectively accommodate a residential program. JFRMU established a review team led by a child-focused SME with proficiency in assessing conditions of confinement and residential programming. The team assessed FRC practices and policies, and conducted interviews with existing FRC management and direct care staff, as well as with FRC ICE/Enforcement and Removal Operations (ERO) staff, health care and mental health providers, and case management staff. These interviews allowed participants the opportunity to recommend improvements based on their experiences. The review team also sought to implement improvements to the standards that directly addressed feedback received from numerous private sector agencies and NGOs. The review team synthesized those findings and incorporated relevant changes into a second-edition FRS. The FRS continue to be improved based on best practices.

DHS notes that while the June 26, 2018, report issued by DHS OIG did make recommendations on how ICE could improve oversight over detention facilities, OIG did not specifically examine oversight of the FRCs as part of the report. See Office of the Inspector General, Dep't of Homeland Security, OIG-18-67, ICE's Inspections and Monitoring of Detention Facilities Do Not Lead to Sustained Compliance or Systemic Improvements 2 n.1 (2018). As such, the report is of limited value in assessing ICE's oversight of the FRCs. FRCs are subject to a different set of standards—the Family Residential Standards (FRS)—than other facilities and receive inspections more frequently, and by a larger number of outside entities, than those detention centers reviewed in the OIG report. For instance, despite the ongoing litigation surrounding state licensure of the FRCs, the State of Texas and the Commonwealth of Pennsylvania regularly conduct both announced and unannounced inspections of FRCs, and the reports of those inspections are publicly available on the States' websites. Table 6 demonstrates the number of inspections ICE FRCs typically receive on a regular basis.

Table 6—FRC Inspections

FRC inspection typeTypical frequency of inspection
State inspectors1 Standard by Standard Review when submitting the license applications. 3 unannounced inspections prior to granting a temporary 6-month provisional license. 3 additional unannounced inspections prior to granting a permanent non-expiring license. Unlimited, randomized, unannounced audits.
Danya (ICE contractor)Monthly.
PREAEvery two years.
CRCL (DHS office)Annual audits until 2018. Presently, will inspect if warranted based on complaints received.
IHSCAnnual.
OIG/GAOVariable. Driven by OIG hotline and/or Congressional inquiries.
ICE ERO COR/ComplianceWeekly compliance audits/logs. Weekly COR meetings with Service Providers, IHSC, and ICE ERO.

Despite the OIG report's limited relevance to this situation, however, DHS notes that ICE has already taken several steps to address the recommendations set forth by OIG in the June 26, 2018 report. For instance, ICE has requested that OIG consider recommendation three, which addressed the development of a follow-up inspection process, resolved and closed due to progress made by ICE towards achieving this goal. In FY 2018, ICE Office of Detention and Oversight (ODO) conducted two follow-up inspections focused on areas where deficiencies were previously identified. And although not eliminating advanced notice for inspections because unannounced inspections would disrupt facility operations and the pre-inspection documentation review, ODO has decreased the amount of advanced notice provided to facilities in preparation for an ODO inspection. Furthermore, ICE has continued to make progress addressing the other four recommendations.

The second recommendation regarded reinstatement of and documentation for a quality assurance program for contracted inspections of detention facilities, and in October 2018, the ERO Detention Standards Compliance Unit created a Quality Assurance Team (QAT) to perform quality management over ICE's contract inspectors. Moving forward, one QAT staff member will accompany ICE contract inspectors during their annual facility inspections. The fifth recommendation regarded the development of protocols for ERO field offices to require facilities to implement corrective actions resulting from Detention Service Managers' identification of noncompliance with detention standards. The ERO Headquarters Detention Monitoring Unit (DMU) is continuing to work with field offices and unit staff enforce facility compliance to the ICE detention standards and to address deficiencies identified by the on-site Detention Services Manager and Detention Standards Compliance Officers.

More recent developments, specifically the release of the Joint Explanatory Statement (JES) to the Consolidated Appropriations Act, 2019, Public Law 116-6, have affected ICE's efforts to address certain Start Printed Page 44418recommendations. The first recommendation was for ICE to revise the inspection scope and methodology and the JES contains ICE inspection requirements that have directly impacted how ERO and OPR conduct inspections. The fourth recommendation focused on verification of identified deficiencies and tracking of corrective actions. How ICE addresses the fourth recommendation will flow directly from decisions made in addressing the first. ICE continues internal dialogue to discuss full implementation of both recommendations.

ICE's existing commitment to seriously considering OIG's recommendations regarding detention facilities and instituting them as appropriate will not change as a result of this final rule.

DHS disagrees with the commenters' assertions that reports from CRCL inspections have undermined the results of third-party auditor inspection reports. DHS responds to the allegations raised by commenters about the July 17, 2018, correspondence from Dr. Scott Allen and Dr. Pamela McPherson elsewhere in this document but notes that the correspondence from these two CRCL contractors does not reflect the complete posture of CRCL inspection reports. In particular, many of the broad negative assessments raised in the contractors' correspondence are inconsistent with formal findings they provided to ICE in CRCL's Expert Reports. More importantly, however, DHS notes that nothing in this rule will negatively affect the frequency or manner in which CRCL conducts FRC inspections.

With respect to concerns raised about the use of specific third-party contractors the Nakamoto Group and Danya, DHS notes that all contractors used to conduct inspections of FRCs are required to have child welfare experience, a requirement that will not change as a result of this rulemaking. DHS declines to identify the names of particular contractors that DHS will employ to conduct compliance inspections through this rulemaking. DHS complies with Federal contracting law and cannot pre-determine which contractors to employ via this rulemaking.

In response to concerns raised by the commenters about transparency and accountability in the proposed FRC inspection process, the final rule includes a provision requiring the results of third-party audits to be posted publicly. Since May 2018, ICE has publicly posted the results of all facility inspection reports submitted by third-party contractors within 60 days of inspection. See Facility Inspections, https://www.ice.gov/​facility-inspections, (last updated Mar. 15, 2019). The final rule stipulates that third-party inspections of FRCs will be posted in the same manner.

For commenters' concerns about past failures to inspect facilities, please see the discussion in Section C. Other Comments Received, DHS Track Record with Detention.

  • Inspections by Outside Sources

Comments. Many commenters suggested that in the creation of an alternative Federal licensing scheme, the following questions should be answered: Which third parties will be conducting audits of such facilities; what standards will be applied by those third parties; and how will DHS and HHS provide oversight over the third party auditors. A few commenters wrote that the proposed rule does not show how the third-party oversight system would work in practice. Multiple commenters suggested that inspections of detention facilities should be inspected by an outside source instead of being run and inspected by DHS.

One commenter stated that under the FSA, the Center for Human Rights and Constitutional Law must still be allowed to inspect every child detention site and to interview and evaluate the children.

Another commenter suggested that ICE and ORR consider issuing guidance to contractors, non-profits, and faith-based organizations that are tasked with assisting the Federal Government in the care or education of immigrant youth. The commenter also recommended the creation of a Blue Ribbon Panel to Assist with Creation of a new Federal Standard for dealing with asylum seekers. The commenter specifically suggested that ICE request the National Institute of Child Health and Human Development (NICHD) to establish such a panel to review standards for detaining family units and UACs.

Response. DHS declines to include further details about the use of third parties to conduct FRC inspections in the text of this rule. DHS notes, as stated elsewhere, that the results of these inspections will be posted publicly on DHS's website. DHS will require third parties to conduct inspections to ensure compliance with the ICE Family Residential Standards as well as the terms of this rule. While commenters raise concerns about private, for-profit contractors used for inspection of DHS facilities, such as the Nakamoto Group and Danya, DHS has the ability to penalize contractors for failing to comply with ICE's FRS as described further below in the section responding to comments on the topic of “Danger Due to Lack of Oversight.”

Existing family residential standards were created with a view to care for vulnerable populations such as minors. DHS is currently working on updating these standards to implement further improvements at FRCs. For this reason, DHS declines to adopt commenter's suggestions to establish additional panels for this purpose.

• DHS Licensing Is Inconsistent With FSA

Comments. Several commenters stated that the proposed licensing scheme would violate the FSA because it would place children in facilities that have not been licensed by state agencies. The commenters also contended that DHS proposed the scheme to avoid the FSA state licensing requirement. Multiple commenters stated that state licensing standards for the care of children in out-of-home settings exist to provide a baseline of protection for the health and safety of children. The commenters stated, citing researchers, that such licensing regulations can mitigate risks of injury or death, reduce the spread of communicable diseases, and set up conditions that promote positive child development.

Multiple commenters stated that the myriad of licensing challenges that have faced detention facilities demonstrate the importance of the state licensing requirement and the crucial role that licensing and monitoring can play in guarding against and identifying inappropriate conditions for children. The commenters cited, as an example, the closing of the T. Don Hutto Center in Texas after three years of operation due to lawsuits related to the center's poor conditions. The commenters also cited a 2016 revocation of a state child care license for the Berks County Residential Center contending that it demonstrated DHS's disregard for child care licensure standards and regulations. As a final example, the commenters stated that in late 2015, the Texas Department of Family Protective Services introduced a regulation called the “FRC rule” that would allow the Dilley detention center to detain children while exempt from statewide health and safety standards but that, in June 2016, a judge ruled that such an exemption could put children at risk of abuse, particularly due to shared sleeping spaces with non-related adults, a decision the commenter stated was upheld by a Federal judge in December 2016.Start Printed Page 44419

Response. DHS reiterates that, to the extent state licensing is available, DHS will seek licensure. DHS did not propose this alternative licensing process to avoid the FSA state licensing requirements. Rather, DHS proposed this process because DHS cannot control whether a State will provide such licensing in the first place. In States where licensing is unavailable, the minimum requirements of this regulation, which mirror those in Exhibit 1 of the FSA, and the Family Residential Standards will create conditions that are identical to those envisioned by the Agreement. A robust schedule of inspections, along with compliance mechanisms that create consequences for contractors, and increased transparency through publication of audit results, will ensure that these standards are met. In creating standards for family detention, DHS has learned from past litigation, including In Re Hutto Family Detention Center, No. A-07-CA-164-SS (W.D. Tex. Aug. 29, 2007), which was resolved through a settlement agreement that terminated in 2009.

Regarding the Berks FRC, this facility has been licensed since December 1, 1999, as a Child Residential and Day Treatment Facility under 55 Pa. Code 3800. The facility has been used to house family units since 2001 and the State has been regularly subjecting the facility to inspections since that time. The license was renewed every year until October 22, 2015, when the Pennsylvania Department of Human Services sent a letter stating that the agency was unaware that Berks housed families and that the license for the facility would not be renewed unless it turned into a children-only facility. However, on November 9, 2015, a new license was issued for the 2016-2017 operating period. The licensing matter has been in active litigation since that time, but a state court has temporarily reinstated the license of this facility pending litigation. In the Appeal of Berks Cty. Residential Ctr., Docket No. 061-15-0025 (Commonwealth of Pennsylvania Department of Human Services, Bureau of Hearings and Appeals filed November 23, 2015). The Berks facility continues to be regularly inspected by the Pennsylvania Department of Human Services.

In Texas, an appeals court reinstated the regulation that codifies licensing for FRCs. Texas Dep't of Family and Protective Servs. v. Grassroots Leadership, Inc., No. 03-18-00261-CV, 2018 WL 6187433 (Tex. App. Nov. 28, 2018). Texas authorities have inspected the facilities at Dilley and Karnes regularly during the pendency of the litigation, and the facilities will continue to seek licensure when that becomes available.

• Legally Insufficient Authority for Licensing

Comments. Numerous commenters questioned the legality of section 236.3(h). Most of these commenters stated that this provision violates the FSA and related court rulings. Specifically, commenters asserted that the proposed rule is contrary to the FSA because instead of expediting the release of children, it provides for the prolonged or indefinite detention of children and their families. One commenter stated that the arguments used to justify Federal licensure of FRCs in place of state licensure were unequivocally rejected on July 24, 2015, by the U.S. District Court for the Central District of California, which found that self-licensure would not satisfy the FSA's mandate to place unreleased children in a program, agency, or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services. This commenter also stated that the requirement for state licensure attaches to all facilities used for temporary detention or placement of alien children and any attempt by DHS and HHS to go around this requirement is not allowed under the FSA. A few commenters contended that it would take legislation or judicial action to change the feature of the FSA that requires children be housed in facilities that are state-licensed for the care of dependent children.

Several commenters also wrote that the Federal Government lacks the authority to license facilities for children because ensuring child welfare is a police power reserved to the States. The commenters stated that, as a result of this responsibility, States have the licensing and child welfare infrastructure to care for the health and well-being of children in its custody.

Several commenters also stated that the proposed Federal licensing process fails to comply with the requirements of Executive Order 13132, which requires consultation with the states and a federalism impact statement when a proposed rule raises significant federalism concerns, which the commenters state this rule raises.

Response. DHS reiterates that, to the extent state licensing is available, DHS will seek licensure from the State. However, DHS cannot control whether states provide such licensing, and in states where this option is unavailable, the minimum requirements of this regulation, which mirror those in Exhibit 1 of the FSA, and the Family Residential Standards will create conditions that are equivalent to those envisioned by the FSA. A robust schedule of inspections, along with compliance mechanisms that create consequences for contractors, and increased transparency through publication, will ensure that these standards are met. See sections on “Danger due to lack of oversight” and “Self-Licensing and Oversight.” DHS continues to disagree with court interpretations that extend the terms of the FSA to minors accompanied by their parents or legal guardians. DHS believes that it is preferable for family units to remain together during the pendency of immigration proceedings.

DHS has the sole legal authority to detain aliens for violations of immigration law; States do not. For this reason, the existence or non-existence of licensure in the States does not inform whether DHS can detain families who are in removal proceedings under Federal immigration law. DHS does not believe this rule raises significant federalism concerns under Executive Order 13132 because enforcing immigration laws falls within the sole purview of the Federal Government.

• Danger Due to Lack of Oversight

Comments. Commenters stated that the proposed regulations make clear that DHS does not intend to increase oversight of family detention centers as part of its new licensing authority. A commenter stated that DHS asserts in its proposed regulation that ICE currently meets the proposed licensing requirements because it currently requires family detention facilities to comply with ICE's detention standards and hires inspectors to monitor compliance, and therefore DHS would not incur additional costs in fulfilling the requirements of the proposed alternative licensing process.

Many commenters stated that holding children in facilities that are not licensed by state child welfare agencies is inhumane, dangerous, or unethical. Some commenters stated that there is no assurance of quality standards when the entity being licensed is setting the licensing standards and monitoring compliance with those standards and that there must be review or oversight by another entity. One commenter noted that the courts have already rejected DHS-licensed facilities and held that children who are not released should be housed in state-licensed facilities. Another commenter urged DHS to specify clear criteria for third party audits to ensure that any third party auditors are qualified to oversee Start Printed Page 44420licensing of facilities holding children and apply appropriate criteria for the protection of children. The commenter requested that the public have an opportunity to comment on these criteria before a final rule was implemented.

Several commenters argued that DHS and HHS' track record for meeting state-licensing requirements heightened concerns that a self-licensing regime would not afford sufficient protection or oversight for children. A few commenters stated that self-inspections by DHS and its contractors are much weaker, and do not provide materially identical assurances about the conditions or protections that the FSA provides. One commenter pointed to its experience with the Pennsylvania facilities contracted to provide services to DHS, which had its license revoked by the State of Pennsylvania, and in the commenter's opinion reinforces the need for state licensing standards.

Several commenters stated that the lack of licensed facilities is due to problems with the facilities themselves, not with state licensing regimes. This commenter stated that a Texas judge denied licenses to family detention facilities in Karnes and Dilley because the emergency rule under which those facilities sought licenses would eliminate the minimum child safety standards applicable to childcare facilities in Texas. The commenter stated that, without accountability standards, there is no way to ensure conditions of care imposed by the Federal Government in detention facilities will meet the current minimum standard for keeping children safe. Another commenter stated that the absence of a general family detention licensing procedure is not an unexplained policy gap but the effect of a determination that such detention is neither recommended nor typically done.

Response. DHS disagrees with the assertion that it is incapable of providing meaningful oversight for FRCs. DHS employs third-party inspectors to ensure that DHS Service Providers (such as the contracted entities that run the daily operations of the FRCs) abide by the standards that DHS requires. The results of these inspections may prompt DHS to take corrective action against the Service Providers if necessary. For instance, ICE uses a Quality Assurance Surveillance Plan (QASP) for each service provider, and this QASP is based on the premise that the Service Provider is responsible for the day-to-day operation of the facility, as well as all management and quality control actions required to meet the agreed-upon terms of the contract. The role of the Government in quality assurance and oversight is to ensure performance standards are achieved and maintained. The QASP is designed to provide an effective surveillance method to monitor the Service Provider's performance. Through the QASP, the Government validates that the Service Provider is complying with mandated quality standards in operating and maintaining facilities. These performance standards address all facets of detainee handling, including but not limited to safety, health, legal rights, and facility and records management.

The QASP contains a Performance Requirements Summary (PRS) which communicates what the Federal Government intends to qualitatively inspect. The PRS is based on the American Correctional Association (ACA) Standards for Adult Local Detention and ICE 2011 Performance Based National Detention Standards (PBNDS). The PRS identifies performance standards groups into nine functional areas, and quality levels essential for successful performance of each requirement. ICE uses the PRS when conducting quality assurance surveillance and oversight to guide inspections and review processes.

ICE monitors the Service Provider's compliance with performance standards using a variety of methods. All facilities are subject to a full annual inspection. Additionally, ICE may conduct routine, follow-up, or unscheduled ad hoc inspections as necessary (for instance, as a result of unusual incidents or data reflected in routine monitoring). At FRCs, ICE maintains an on-site presence in order to conduct more frequent oversight. Inspections and monitoring may involve direct observation of facility conditions and operations, review of documentation, and/or interviews with facility personnel and detainees.

In addition to routine and unscheduled monitoring, financial-based incentives are another way ICE holds Service Providers accountable. Performance of services and compliance with standards is essential for the Service Provider to receive the full payment identified in formal agreements or contracts. For example, ICE may withhold or deduct funds for unsatisfactory performance by the Service Provider that is recorded or observed through site inspections, document review, interviews, or other feedback. A Service Provider's performance is rated as either acceptable, deficient, or at-risk. Based on this rating, ICE may implement financial adjustments or penalties. Financial deductions or withholdings may be a one-time event, or alternatively, may continue until the Service Provider has corrected the identified deficiency or made substantial progress toward correction.

In response to the commenter's concern about the status and availability of state licensure in Texas, DHS notes, as mentioned above, that an appeals court recently reinstated the regulation that codifies licensing for FRCs. Texas Dep't of Family and Protective Servs. v. Grassroots Leadership, Inc., No. 03-18-00261-CV), 2018 WL 6187433 (Tex. App. Nov. 28, 2018).

Finally, DHS notes that although family detention is not needed as often at the state level does not mean that family detention is inappropriate in the Federal immigration context, particularly in circumstances involving control of the borders where Congress has generally expressed a mandate for detention of aliens pending removal proceedings and pending removal pursuant to a final order.

• Conflict of Interest

Comments. Several commenters asserted that allowing DHS to self-license facilities would be a conflict of interest “tantamount to the fox guarding the henhouse.” Many commenters stated that the Federal Government lacks the impartiality and expertise to ensure compliance with basic standards relating to the custody and care of migrant children. Another commenter asserted that the self-licensing process exists only to further the Administration's anti-immigration policy, and that a lack of oversight will result in facilities such as Tornillo in Texas with minimal safety and healthcare standards and several abuses. Several commenters contended that DHS would have no incentive to ensure compliance with baseline child protection standards since its principal objective is imprisonment rather than family detention. Some commenters stated that DHS's objective is to discriminate against Central American immigrants and one commenter said that removing the state licensing requirement is a cover allowing for more racial abuse “under the guise of deterrence.”

Some commenters stated that because of the unique vulnerability of children and their high risk for trauma, trafficking, and violence, independent licensing standards for detention facilities are of the utmost importance. One commenter stated that DHS should not be allowed to self-license because ICE's Inspector General has found self-auditing methods are “troubling and Start Printed Page 44421inadequate.” [23] Another commenter stated that reports from physicians within DHS CRCL have found serious compliance issues in DHS-run facilities resulting in imminent risk of significant mental health and medical harm. Other commenters stated that the proposed third-party monitor is not credible or impartial because the third-party monitor would be paid by DHS. Another commenter stated that the proposed rule's shift of the licensing authority from experienced and objective state licensers to an ICE contractor would have an inherent conflict of interest that would not assure the best welfare of traumatized children.

Relying on the alleged conflict of interest, several other commenters contended that the proposal would violate the FSA. For example, several commenters claimed that the licensing proposal would not comply with the FSA's requirements to place detained minors in the “least restrictive setting” and treat minors with “dignity, respect and special concern for their particular vulnerability.” Another commenter stated that the licensing proposal is inconsistent with the FSA because it weakens oversight over FRCs and does not provide a way to ensure that residential standards set by ICE are a safe replacement for state licensing standards.

Another commenter stated that the purpose of the FSA, as confirmed by the district court, is to provide “the essential protection of regular and comprehensive oversight by an independent child welfare agency,” which the commenter stated is absent from the proposed regulation.

Response. Regarding concerns about lack of accountability see section on “Danger due to lack of oversight.” Concerns about incentive to comply and lack of oversight are addressed in the section “Self-Licensing and Oversight.”

DHS reiterates that it will seek state licensing where available. However, DHS disagrees with commenters that suggest DHS is unable to provide care for families due to perceived conflicts of interest in its alternative licensing proposal. DHS notes that the DHS has held families (at the Berks FRC) since 2001, long before courts extended the protection of the FSA to minors accompanied by their parents. In the ensuing decades, DHS has refined its standards to better accommodate the needs of family units.

DHS is statutorily authorized and indeed mandated in many circumstances to detain aliens pending their removal from the United States. Congress has long been aware of the existence of alien family units seeking entry into the United States, but Congress has never specified the method through which DHS's detention facilities must obtain licensure. Thus while commenters perceive the application of standards developed by DHS and other stakeholders as a conflict of interest, Congress has not determined that the creation or application of these standards constitute a conflict of interest.

Further, in advocating for state licensure as the only method of meeting the “licensed program” requirement of the FSA, commenters appear to presume that States face no conflict of interest when they license facilities for the services or care of dependent children. DHS has created detention standards for all other facilities in which it detains aliens, just as the Bureau of Prisons has also created standards for their own detention operations. DHS believes that the Federal Government is equally capable of overseeing compliance with its standards, standards which incorporate and in certain cases go beyond the minimum requirements of the FSA, without negatively impacting the care of minors in its custody due to perceived conflicts of interest. Relatedly, the very financial incentive that commenters contend would bias third-party examiners is the same financial incentive that DHS uses to achieve quality control. If DHS's own inspections (e.g., CRCL, OIG, third-party auditors, etc.) reveal that contractors are not adequately meeting DHS's standards, such contractors can be penalized and replaced.

• Indefinite Detention of Children Due to Alternative Licensing

Comments. Multiple commenters stated that the proposal to create and self-license FRCs contravenes the FSA by attempting to allow for children to be placed in detention indefinitely. The commenters stated that detention centers are inappropriate long-term (indefinite) housing arrangements for families. They contended that the government is required to expeditiously release children to a parent or other family and if this is not possible, the government must release the child to a program licensed by a state child welfare agency program. Several commenters suggested that this new rule would restrict the ability to release families from government custody, resulting in indefinite detention. One commenter stated that indefinite detention would increase profits for private companies and be more expensive for taxpayers.

Response. DHS disagrees with these assertions, and discusses commenters' mischaracterization of DHS detention authority and practices subsequently in this rule. DHS considers that “indefinite detention” is inconsistent with the mission of the Department. The purpose of immigration detention is to effectuate removal, or for the alien to establish eligibility for relief, as quickly as possible. If the alien establishes that she merits relief from removal, she will be released and if not, she will be removed. The period of detention will last for as long as it takes to complete removal proceedings and no longer. ICE reports that the majority of minor and family unit removals involve countries in the Northern Triangle, and removals are normally effectuated promptly. Minors and family units are not likely to face long periods in detention because immigration proceedings involving detained family units and minors are placed on a priority docket by the Department of Justice, Executive Office for Immigration Review. Family units and minors can also benefit from release during the pendency of removal proceedings if they qualify for release on recognizance, parole, or other conditions.

Aliens subject to final orders of removal may generally remain detained for a reasonable period necessary to effectuate removal. For aliens detained pursuant to INA 241, 8 U.S.C. 1231, this includes a presumptively reasonable period of 180 days after a final order of removal has been issued, and thereafter, the alien must generally be released absent a significant likelihood of removal in the reasonably foreseeable future (in compliance with current law and regulation).

As Congress has recognized, detention is an important tool to ensure that proceedings are completed and that the immigration laws are enforced. EOIR data shows that of closed cases from January 1, 2013 through March 31, 2019 that started in an FRC, 43 percent of family units have received in absentia final orders of removal. DHS OIS has found that when looking at all family unit aliens encountered at the Southwest Border from FY 2014 through FY 2018, the in absentia rate for completed cases as of the end of FY 2018 was 66 percent. As a result, exercising the authority to detain minors in family units continues to be an important component of immigration enforcement. The ability to consider FRCs licensed through adherence to ICE's Family Residential Standards is intended to facilitate that component of Start Printed Page 44422immigration enforcement, not to increase profits for private companies at the expense of taxpayers.

• Miscellaneous Concerns

Comments. Several commenters stated that ICE family detention standards which would be utilized in the proposal are typically not as stringent as state standards currently utilized. One commenter, for example, noted that ICE FRC standards permit the use of mechanical restraints on children over 14 years old, whereas the licensing regulations in Texas prohibit the use of such devices. The same commenter noted that the ICE FRC standard states that the facility must meet the “minimal nutritional needs of toddlers and infants,” whereas the Texas regulation for licensed residential facilities states the facility must “feed an infant whenever the infant is hungry.”

Several commenters suggested that FRCs do not exist under state licenses because States feel they are inadequate to house both adults and children. Such commenters noted that state agencies typically license only facilities for the care of children who are dependent on the State, typically due to child abuse and/or neglect and the need to be removed from the care of a parent or parents. The commenters argued that if parents are fit and available, a state government would never seek to lock up a child with a parent.

Response. Regarding any conflicts between state regulations and DHS standards, DHS will follow state regulations where there is licensing available for FRCs. The regulations express a preference for state licensing when that option is available at the location of the FRC. For example, if Texas licenses FRCs, state standards will be followed. Regarding the use of family detention in the state context, the role of the States and the Federal Government are different. States do not enforce immigration laws, only the Federal Government does so; consequently, the presence or absence of state regulations addressing the civil detention of family units for immigration purposes is not indicative of whether it is appropriate or not to detain family units in accordance with Federal law.

Changes to the Final Rule

In response to public comments, DHS is adding to the definition of licensed facility that DHS will make the results of audits publicly available. In addition the definition also now includes that audits will occur upon the opening of a facility and on a regular basis thereafter.

Influx § 236.3(b)(10)

Summary of Proposed Rule

The NPRM proposed to define influx as a situation when 130 or more minors or UACs are eligible for placement in a licensed facility. DHS is adopting this definition without change from the FSA except to reflect the transfer of responsibilities from legacy INS to DHS and ORR, and to reflect that DHS maintains custody of minors, as defined in this section, and UACs, for the short period pending their transfer to ORR.

Public Comments and Response

Comments. Numerous commenters expressed concern that the proposed definition of “influx” was developed based on data from the 1990s, is outdated, and, if implemented, will result in DHS and HHS operating within a de facto permanent state of “influx.” If able to operate in that status, the commenters contended that DHS and HHS would have broad discretion to circumvent compliance with the FSA, HSA, and TVPRA provisions and the time limits on transferring children out of DHS custody.

Many commenters expressed the view that DHS and HHS disingenuously argued that they operate within a constant state of influx even while overall border crossings are 20 percent of what they were when that term was defined in the FSA and border staffing has increased by almost three times.

A few commenters stated that the 130-influx standard also does not account for the expansions and contractions of the number of UACs in custody at the border, which have fluctuated by tens of thousands of juveniles every year since the peak in 2014. They contended that the variable number requires a more flexible influx baseline.

Some commenters objected to the proposed definition of influx on the basis that it enables each agency to excuse noncompliance even where it is not itself experiencing influx conditions. Commenters stated that DHS conceded in the NPRM that it has been dealing with an influx of minors for years. The commenters claimed that as a result, even where HHS may not satisfy its own “influx” criteria, it may rely on DHS “influx” conditions because the definition allows HHS criteria to be met “under . . . corresponding provisions of DHS regulations.”

One commenter recommended that the agencies include a third alternative criterion for designation of influx conditions to track the meaning of influx in the INA. The INA recognizes the threat posed to national security where the Secretary of Homeland Security “determines that an actual or imminent influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate federal response. . . .” 8 U.S.C. 1103(a)(10). The commenter urged the agencies to consider a regulation that would define “urgent circumstances” to include the release without bond of a significant percentage of such minors, with or without a parent or legal guardian, near to the relevant Coast Guard or Border Patrol sector. The commenter ultimately proposed that influx conditions could exist when some combination of three criteria were present—the legacy FSA criterion of 130 minors, an alternative criterion that takes into account the problems created by lack of resources other than bed space, and a third criterion that aligns influx designations for minors with designations of influx conditions applicable to humanitarian entry in general. The commenter contended that such a standard would provide flexibility to respond to migrant crises that involve minor aliens in unpredictably dangerous ways.

One commenter maintained that, because the proposed rule changes the word “program” to “facility,” it could permit lengthier detention by a determination that there is an influx when more than 130 children are eligible for placement in any of the program's facilities even if the program has the capacity to provide placement resources for well over 130 children. The commenter viewed the proposed definition of influx as placing less focus on the needs of children than on the proposed facilities to detain them.

Some commenters were concerned that the proposed definition of influx lifts the requirement that UACs be transferred from DHS to HHS custody within three to five days and allows for broad exemptions to existing child protections that could impact basic needs, such as the provision of snacks and meals to children in custody. The commenters stated the rule should be changed to clarify that any such exemptions must be limited in scope and ensure that the fundamental needs of children are met in a timely manner.

Response. As stated in the proposed rule, DHS agrees with the commenters' observation that the definition of influx in the FSA, which was replicated in the proposed rule, renders the agency in an ongoing state of influx which has been the status quo for several years. DHS regularly has in its custody more than 130 minors and UACs eligible for placement in a licensed facility. For Start Printed Page 44423instance, as described in Table 7, CBP encountered 107,498 minors and UACs in FY 2018. Additionally, in May of 2019, the USBP apprehended 11,507 UACs along the southwest border along with 84,532 family units (accompanied minors and their parents).[24] OFO encountered 386 UACs and 4,134 family units during the same time period. Thus, these numbers show that CBP regularly has more than 130 minors and UACs in custody eligible for placement in a licensed facility. However, DHS disagrees with the statement that such an operational reality permits it to circumvent compliance with requirements that stem from the FSA, given that this definition of “influx” was included in the FSA. DHS had determined that the definition of “influx” as it was written in the FSA remains relevant to current operational realities.

DHS believes that the FSA's definition of influx is still relevant to today's operations. Indeed, it is obvious that DHS has been in a state of influx, and has been for some period of time. As further explained in the proposed rule, the main implication of the threshold for an influx is that in general, under the FSA, DHS is required to transfer non-UAC minors to licensed facilities “as expeditiously as possible” rather than within either a 3- or 5-day timeframe. This makes sense given the need for DHS to have additional flexibility when it is dealing with anything other than a very small and manageable number of minors in its custody. Given that DHS is currently operating under an influx pursuant to the FSA, DHS currently moves to transfer all minors into licensed facilities as expeditiously as possible. CBP facilities are, as recognized by Congress in the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), intended to be short-term detention facilities, generally designed to hold individuals for 72 hours or less, during the duration of their immigration processing. See 6 U.S.C. 211(m)(3) (defining “short-term detention” as “detention in a U.S. Customs and Border Protection processing center for 72 hours or less, before repatriation to a country of nationality or last habitual residence”). CBP makes efforts to transfer all individuals, especially minors, out of CBP facilities as expeditiously as possible, and generally within 72 hours. Additionally, CBP prioritizes the processing of all minors and UACs, as a means to expedite the transfer of custody to ICE or HHS, and to adhere to the TFTEA definition of short term holding, as well as the requirements currently applicable under the FSA, as well as the TVPRA. Thus, the definition of influx as provided in this rule would not change any aspect of current CBP operations, and therefore would not permit any change to the time that minors and UACs should remain in CBP custody.

DHS reiterates that the transfer time frames for the transfer of UACs from DHS to HHS are now governed by the TVPRA, rather than the timelines included in the FSA. The TVPRA requires DHS to transfer UACs to HHS within 72 hours of determining that an alien is a UAC, absent exceptional circumstances. This statute overrides any different period set out in the FSA.

As for the assertion that the proposed definition of influx could excuse non-compliance by one agency due to an influx facing the other, DHS notes that the definition as provided in the FSA does not establish the existence of an influx vis-à-vis each agency involved in the implementation of its terms. The 130 threshold in the FSA is the number of “minors eligible for placement in a licensed program . . . including those who have been so placed or are awaiting such placement.” FSA paragraph 12(B).

DHS disagrees with commenters' contention that changing the term “licensed program” to “licensed facility” has any impact on the understanding of what constitutes an influx. Changing the term from “program” to “facility” does not affect the requirement to transfer minors as expeditiously as possible during an influx. As previously stated, the definition of influx as proposed is designed to implement the terms of the FSA while accounting for current operations of the Agency and the TVPRA.

Changes to Final Rule

DHS declines to change its proposed definition of influx in response to public comments.

Non-Secure Facility § 236.3(b)(11)

Summary of Proposed Rule

Non-Secure Facility is not defined in the FSA, other than to say that “homes and facilities operated by licensed programs, including facilities for special needs minors, shall be non-secure as required under state law.” FSA paragraph 6. DHS proposed to define a non-secure facility as a facility that meets the applicable State or locality's definition of non-secure. If a State does not define “non-secure,” then a DHS facility shall be deemed non-secure if egress from a portion of the facility's building is not prohibited through internal locks within the building or exterior locks and egress from the facility's premises is not prohibited through secure fencing around the perimeter of the building.

Public Comments and Response

Comments. Several commenters provided comments on the DHS definition of “non-secure.” Comments focused on the definition itself and its alignment with the meaning in the FSA, length of stay at a facility, reasons for placing an alien juvenile in a secure facility, having locked/un-locked areas, and ability of those in custody to come and go as they would like.

One commenter suggested that the proposed definition should explicitly defer to the definition of non-secure “under state law,” in order to comply with the language of FSA paragraph 6.

Several commenters objected to the idea that the definition would allow a family detention center to be a non-secure facility, stating that they were opposed to holding children in jail-like settings. One commenter stated that the fact that family detention centers are patrolled by ICE officers, commonly surrounded by barbed wire fencing, and have locked points of ingress and egress, invalidates the definition of non-secure. Another commenter stated that an environment that contains locks and fences does not align with the FSA which, though it did not define non-secure, said that children should be in the least restrictive environment. Another commenter expressed concerned that there is no provision stating families can come and go as they desire, so families would be restricted in their movements or freedom.

Response. DHS notes that the definition of “non-secure” was intended to be subordinate to any definition that currently exists under state law and is applicable to a setting that houses minors. Accordingly, DHS accepts the commenter's suggestion to add the language “under state law” into the definition of “non-secure” in this final rule.

DHS disagrees with the commenters' assertions that FRCs are “jail-like settings.” Factors identified by commenters that commenters feel make FRCs secure do more to prevent unwanted intrusions into FRC properties than they do to prevent individuals housed at FRCs from leaving the property. Protections such as fencing, staff monitoring, and locks on doors that lead to the outside are basic safety measures that are often a part of facilities that are responsible for the care Start Printed Page 44424of children on a regular basis. These measures protect the children from strangers who are not FRC residents, and from hazards such as traffic and weather in the event they accidentally become separated from a parent. Individuals housed at these facilities are free to move within the facility on a daily basis, and ICE does not restrict individuals' movement within the FRCs for punitive reasons.

Changes to Final Rule

DHS agrees to amend the definition of non-secure facility in response to public comments to clarify that facilities will be deemed non-secure if they meet the definition of non-secure under state law where the facility is located.

Office of Refugee Resettlement (ORR) §  236.3(b)(12)

Summary of Proposed Rule

The definition of ORR is not defined in the FSA. DHS proposed to define ORR as the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Refugee Resettlement.

Public Comments and Response

DHS received no requests to change the definition as proposed in the regulatory text.

Changes to Final Rule

DHS is not changing the definition of ORR in the final rule.

3. Age Determination §  236.3(c)

Summary of Proposed Rule

DHS proposed to codify in § 236.3(c) the FSA's reasonable person standard to determine whether a child is under or over the age of 18 and proposed adding that age determinations shall be based on the “totality of the evidence and circumstances.” At times, making age determinations could include medical or dental examinations.

Public Comments and Response

Commenters generally expressed concern about how the proposed changes incorporate the FSA's reasonable person standard and standards regarding medical and dental examinations. They also questioned whether the proposed procedures are consistent with the TVPRA's requirement to rely on multiple forms of evidence for determining whether an alien is under or over the age of 18. Commenters expressed concern about a lack of sufficient guidance informing the totality of the evidence and circumstances threshold and an apparent lack of an appeals process for challenging incorrect age determinations.

• Reasonable Person Standard

Comments. Several commenters expressed concern about how DHS would interpret and apply the FSA's reasonable person standard. Multiple commenters asserted that the proposed language fails to provide adequate specificity about the type and amount of evidence used to inform the standard. One commenter stated that the reasonable person standard must be informed by consideration of multiple forms of evidence pursuant to the TVPRA, whereas another commenter suggested incorporating informational interviews and attempts to gather documentary evidence as part of the standard. Another commenter stated that, pursuant to the FSA, the reasonable person standard must include consideration of and should be initially informed by the child's own statements regarding his or her own age. Multiple commenters expressed concern about how medical or dental examinations will or will not inform the reasonable person standard, with one commenter stating that the inclusion of unreliable medical procedures in the reasonable person standard introduces a further layer of arbitrariness to the process of age determination.

• Medical and Dental Examinations

Comments. Several commenters expressed concern about whether the proposed regulations adhere to the FSA's standards and medical ethics regarding medical and dental examinations. Some of the commenters referenced various reports and studies indicating that certain medical and dental examinations cannot provide accurate age estimates and that radiographs unnecessarily expose children to radiation when used for non-medical purposes. One medical professional cautioned against using dental radiographs for age determination, contending that such tests can only provide an approximate age estimate and may not be able to differentiate between an individual in his/her late teens versus an individual who is 20 or 21 years of age. The commenter also expressed concern about the possibility of the individual administering these tests not having the requisite expertise, and not obtaining the consent of the patient. One commenter referred to medical and dental examinations as “pseudo-science.”

Multiple commenters expressed concern that the proposed procedures place inappropriate weight on medical tests to determine whether children are younger than or older than 18 years of age. The commenters stated that the proposed procedures do not match FSA or TVPRA requirements for considering medical tests and are inconsistent with agency practice. For example, the commenters stated that the proposed procedures fail to indicate that medical tests cannot serve as the sole basis for age determinations, limit medical testing to bone and dental radiographs, and to account for evidence demonstrating the unreliability of medical tests to make accurate age determinations. One commenter expressed concern about the lack of specificity governing when medical and dental examinations will be used, the absence of guidance regarding who will make the age determination, and the level of training or expertise required to conduct such examinations and determinations. Some commenters stated that medical and dental examinations have been used abusively by DHS in the past.

Multiple commenters recommended that age determination procedures be used as a last resort, that age determination findings be shared with the child in writing and in a language he/she understands, that the findings be subject to appeal, and that age determination procedures be conducted by an independent, multidisciplinary team of medical and mental health professionals, social workers, and legal counsel. The commenters also recommended that children have the right to refuse a procedure which subjects them to medical risks, pursuant to the international norm of what is in the best interest(s) of the child as well as medical ethical principles of patient autonomy.

• Totality of the Evidence and Circumstances/TVPRA Standards

Comments. Several commenters expressed concern about age determinations being based on the “totality of the evidence and circumstances” and questioned whether that basis is consistent with the TVPRA's requirement to use multiple forms of evidence for determining whether a child is under or over 18 years of age.

Another commenter expressed support for DHS and HHS personnel maintaining the flexibility to use multiple methods for age determinations. The commenter stated that the proposed standards and thresholds are mandated for jurisdictional as well as medical reasons, because ORR does not have Start Printed Page 44425custodial authority over individuals 18 years of age or older.

• Incorrect Age Determinations/Appeal Process

Comments. Several commenters expressed concern about the possibility of incorrect age determinations. For example, one commenter stated that the rule would reduce or eliminate the current ORR policy requiring a 75 percent probability threshold for age determinations. Other commenters stated that an individual claiming to be a minor should continue to be treated as a minor until age is confirmed through multiple forms of evidence, pursuant to the FSA. One of these commenters stated that it is more dangerous for a minor to be detained with adults than to have an individual who claims to be a minor, but is not, detained with other minors.

Many commentators expressed concern that the rule promotes the discriminatory and xenophobic treatment of immigrant people based on their race, ethnicity, and national origin. Multiple commenters noted that differences in race, ethnicity, gender, nutritional standards, and poverty impact perceptions of age and may negatively influence the age determination process leading to inaccurate age determinations. For example, one commenter cited articles concluding that the age of young people is often overestimated and exacerbated when there are differences in race. This commenter expressed concern that this would have disproportionate effects on certain indigenous populations. Another commenter cited a study indicating that “black felony suspects were seen as 4.53 years older than they actually were.”

Multiple commenters expressed concern about the lack of age determination appeal procedures. One of the commenters stated that the lack of an appeal mechanism compounds the possibility of arbitrary or baseless assessments, with serious consequences for minors in terms of their placement in and release from detention. Another commenter asked what remedy exists for a child falsely categorized as an adult and what repercussion a government official would face if he/she negligently or intentionally categorizes a child as an adult under this regulation. Another commenter stated that the ability to continually redetermine a child's age, as permitted under the proposed procedures, puts children at risk of losing critical and necessary substantive and procedural protections.

One commenter suggested that providing a presumption of minor status when there is doubt, considering only reliable evidence, and providing an appeals process would ensure fewer children find themselves incorrectly designated as adults. Another commenter suggested placing individuals in HHS custody, not DHS custody, during the age determination process.

Finally, one commenter expressed general concern about DHS and HHS using different language within the proposed regulations that may lead to disparate processes for determining age. The commenter stated that the proposed HHS language does not discuss the reasonable person standard, does not include a specific evidentiary standard through which to assess multiple forms of evidence, does discuss the non-exclusive use of radiographs where the DHS language does not mention radiographs as an option, and does not require a medical professional to administer the radiographs. The commenter suggested that DHS and HHS propose specific and identical language regarding age determination procedures and requirements.

Response. DHS initially notes that the “reasonable person” standard for age determination comes directly from the FSA. FSA paragraph 13 states that “[i]f a reasonable person would conclude that an alien detained by [DHS] is an adult despite his claims to be a minor, the INS shall treat the person as an adult for all purposes, including confinement and release on bond or recognizance.” The reasonable person standard does not require DHS to ignore claims made by an individual as to his or her age. Given that this language was agreed upon by all parties to the FSA as initially drafted, DHS disagrees that the standard lacks adequate specificity, and declines to further elaborate on the reasonable person standard in the regulatory text set forth in this rule.

DHS also disagrees with commenters that the text of this rule does not adhere to the FSA. First, FSA paragraph 13 states that aliens may be required to submit to a medical or dental examination or “other appropriate procedures” to verify his or her age. Second, despite commenters' concerns about the use of radiographs, this method of age determination is specifically authorized by Congress as one form of evidence in the multiple forms of evidence to support a determination of age; DHS lacks the authority to amend the TVPRA that codified this practice. See 8 U.S.C. 1232(b)(4). Third, DHS disagrees with commenters' assertions that DHS will place inappropriate weight on the use of medical tests in determining the age of an individual. DHS has incorporated a totality of the evidence standard into this rule, and nowhere states that medical examinations will be the sole factor in determining the age of an individual. In fact, DHS internal guidance states that medical exams are a last resort after all other avenues have been exhausted. The guidance also acknowledges that cultural differences make medical examinations for age determination more difficult and requires at least a 75 percent probability of an alien being older than 18. HHS has similar guidance.

Commenters who proposed that age determination findings be shared with the child in writing, be subject to appeal, and be made by a multidisciplinary team of third parties fail to appreciate the operational necessity of determining an individual's age as quickly as possible. If CBP encounters an individual at a port of entry who claims to be a minor, and has no accompanying parent or legal guardian, CBP must immediately determine the age of the individual, and accordingly whether the individual is a UAC, because DHS must transfer UACs to HHS custody within 72 hours of determining that a juvenile is a UAC. The volume of apprehensions and encounters at the border has increased so significantly in recent months that instituting appeal procedures and assessments by third-party committees could unnecessarily delay the UAC from receiving the services that he or she is otherwise provided under the law. Additionally, while commenters were concerned that the rule does not provide for an individual to decline the medical or dental examination for the purposes of age determinations, the TVPRA authorizes requiring such examinations. DHS also believes that the type of medical and dental examinations conducted for the purpose of age determination are not so invasive as to present significant medical risks such that an individual would want to decline the examination, particularly if the results of the examination can help demonstrate that the individual is a minor where other evidence would suggest the individual is an adult.

DHS disagrees with commenters that the “totality of the evidence and circumstances” standard conflicts with the TVPRA's “multiple forms of evidence” requirement. DHS drafted the text of proposed 8 CFR 236.3(c)(1) specifically referencing 8 U.S.C. 1232(b)(4) to ensure that multiple forms of evidence were used in considering the totality of the evidence and circumstances. DHS declines to codify more specific processes for age determinations given the need for Start Printed Page 44426flexibility in reviewing various types of evidence to make the most accurate age determination as possible.

Further, DHS notes that medical and dental examinations used in conjunction with the FSA's reasonable person standard are designed to protect against a situation in which a purported minor, who is in fact an adult, is placed in a facility with minors simply because he/she claims to be a minor. One commenter asserted that it is more dangerous for a minor to be detained with adults than to have an individual who claims to be a minor, but is not, detained with other minors. This commenter failed to appreciate, however, that the individual who claims to be a minor, but is not, is in fact, an adult. Similar to the commenter's initial concern, DHS strives to avoid situations in which an adult is unintentionally detained with minors simply because the adult claimed to be a minor because such situations may present danger to the minors. DHS also notes that the reasonable person standard coupled with the ability to conduct medical and dental examinations or other appropriate procedures is intended to defend against the effect of variables such as race, ethnicity, gender, etc., which could otherwise negatively impact an age determination. DHS strives to make the most accurate age determination possible, and may require various forms of evidence in order to make a valid assessment.

Changes to Final Rule

DHS declines to amend the proposed regulatory text regarding procedures for age determination in response to public comments.

4. Determining Whether an Alien Is a UAC §  236.3(d)

Summary of Proposed Rule

DHS proposed to determine whether an alien is an UAC at the time of encounter or apprehension by an immigration officer and to allow immigration officers to re-evaluate a child's UAC status at each encounter consistent with the statutory definition of a UAC. Once the alien has reached the age of 18, has obtained lawful immigration status, or has a parent or legal guardian in the United States available to provide care and physical custody to the alien, the alien is no longer a UAC. When an alien minor is no longer a UAC, relevant ORR and ICE procedures shall apply.

Public Comments and Response

Comments. Commenters generally opposed moving ahead with the proposed provision because they believe it will result in stripping UACs of vital protections mandated by Congress in the HSA and TVPRA. One commenter stated that the statutory language, the nature of the rights conferred, legislative history, and experience implementing the TVPRA, indicate that Congress intended for TVPRA protections to prevail throughout a UAC's legal proceedings, which would not be the case if UAC status was subject to limitless redeterminations. Another commenter stated that neither the HSA nor the TVPRA contain any mechanism for rescinding the protections accorded to UACs. The commenters recommended that once identified as a UAC, the individual should maintain this status for the duration of his/her immigration case. One commenter recommended striking proposed § 236.3(d) and the final sentence of proposed section 410.101 and codifying the current initial jurisdiction policy, set forth in USCIS' 2013 guidance, which provided that USCIS would take initial jurisdiction based on a previous UAC determination even after the applicant turns 18 or is reunited with a parent or legal guardian.

The commenters provided examples of the proposed provision undermining specific protections afforded by the TVPRA. Numerous commenters noted that the TVPRA provides UACs with a non-adversarial determination of their initial asylum claim at the USCIS Asylum Office, whereas the proposed provision would force children reuniting with their parent or turning 18 to immediately testify before an immigration judge in a more adversarial setting.

Another commenter stated that the one-year exemption given to UACs to file asylum claims is particularly important because it accommodates the needs and vulnerabilities of children fleeing persecution, who often require time before they feel comfortable confiding with the professionals preparing their legal cases.

Another commenter stated that the TVPRA requires HHS to make counsel available to UACs to the greatest extent practicable, including the appointment of counsel at government expense, where necessary, for all immigration processes and proceedings. The commenter suggested that UAC status should remain valid until the UAC's case concludes to ensure access to the resources needed to navigate the court system.

The commenters challenged the rationale for the proposed provision, stating that the act of reunifying with a parent or legal guardian or turning 18 does not eliminate the trauma and persecution a child may have experienced in his/her country or diminish the child's vulnerability in the U.S. immigration system. Nor do either of these conditions lead to the automatic joinder of the child's case with that of the adult. And the commenters contended that UACs often have a need for the protections and specialized services that UAC status affords them even after reaching age 18 or being reunited with a parent or legal guardian. One commenter cited the findings of “Children on the Run,” a report issued by the United Nations High Commissioner for Refugees (UNHCR) that found that the majority of children from the Northern Triangle countries and Mexico needed protection under international law.

The commenters expressed concerns over due process and administrative costs and delays related to changing UAC status mid-stream. One commenter contended that the screening of UACs by child welfare professionals for protection needs and by legal service providers for eligibility for legal relief, facilitates efficient filings and adjudications. According to that commenter, stripping children of the UAC-related protections would create and compound burdens on the system and the child.

Another commenter predicted a rush to file claims before a change in the child's status occurs, resulting in less comprehensive and well-prepared filings. The commenter stated that the proposed provision duplicates the labor of Federal agencies, as claims first filed with USCIS may be shifted to the caseload of EOIR.

Still another commenter stated that UAC's immigration proceedings can take several years to conclude, and if a minor reaches 18 in that time, this will create logistical burdens for the EOIR and DHS as cases currently in process will suddenly need to be handled differently.

Some commenters complained that § 236.3(d) lacks guidance on the methods immigration officers would use to make determinations at each encounter, thereby heightening the potential for arbitrary and capricious decision-making. They also thought the rule should address the consequences of erroneous re-determinations.

One commenter stated that § 236.3(d) raises due process, economic, and judicial resource concerns and DHS should withdraw the proposal.

Response. DHS disagrees with commenters' concerns about the impact on juvenile aliens if DHS's proposal is codified as part of the final rule. While commenters are correct that individuals Start Printed Page 44427who no longer meet the definition of UAC will not receive certain protections that the law otherwise provides UACs, the Departments have the responsibility to promulgate regulations that codify a reasonable interpretation of the statutes which they administer. The plain language of 6 U.S.C. 279(g)(2) provides criteria for determining whether an individual is a UAC, and this regulation applies those criteria. With regard to the filing of asylum applications, DHS notes that an individual who is a UAC at the time of filing his or her application, regardless of the time it takes to adjudicate the application, will still be subject to USCIS' initial jurisdiction.

DHS believes the proposal for immigration officers to make UAC determinations at each encounter will ensure greater fidelity to the laws affording special legal protections to UACs, including USCIS' initial jurisdiction over any asylum application filed by a UAC, by limiting treatment of individuals as UACs to those who are, in fact, UACs. Ensuring the correct classification and treatment of individuals as either a UAC or not for jurisdictional and other purposes is, by definition, consistent with and reinforcing of the effective administration of judicial (and other) resources. Although in some instances the proposal may result in DHS expending additional resources to make more UAC determinations and may lead to more asylum claims being initially heard in immigration proceedings before EOIR rather than adjudicated by an asylum officer, there may also be instances wherein UAC redeterminations conserve resources by vesting jurisdiction with the proper entity at an earlier juncture. Whether resources are ultimately conserved or not will depend on the specific facts of the case at hand. Additionally, the TVPRA, 8 U.S.C. 1232(c)(5), does not require that counsel be provided at government expense to UACs. Rather, HHS is encouraged to use pro bono services, and the statute specifically says that counsel is at no expense to the government.

Changes to Final Rule

This final rule adopts the language of the proposed rule without change.

5. Transfer of Minors Who Are Not UACs From One Facility to Another §  236.3(e)

Summary of Proposed Rule

DHS proposed that if there is an influx or emergency, DHS would transfer a minor who is not a UAC and who does not meet the criteria for secure detention to a licensed facility as expeditiously as possible. The proposed rule also stated that DHS will abide by written guidance detailing all reasonable efforts that it takes to transfer non-UACs. The proposed provisions would make “as expeditiously as possible” a default for all transfers of non-UACs in an influx or emergency. The proposed provisions also made it clear that if an influx or emergency ceases to exist, the associated timelines for non-UAC minors would continue to apply.

Public Comments and Response

Comment. Commenters disagreed with the proposed language under § 236.3(e) for the transfer of minors who are not UACs from one DHS facility to another in the case of an emergency or influx. They said the proposed language allows DHS discretion that the FSA does not allow. In particular, they contended that the proposed language could allow DHS the authority to delay transfer or placement of minors, in addition to suspending other conditions, and lead to indefinite detention. They also stated that the written guidance referred to in § 236.3(e)(2) should be published and subject to public comments.

One commenter objected that the ORR regulation does not clearly identify specific behaviors or offenses that allow placement of a juvenile in a secure facility. The commenter further contended that the broad and non-specific list provided is not clear enough for children to understand and thus fails to put them on notice of the rules that may result in their being detained in a jail-like setting.

One commenter stated that the entire transfer section does not speak to a minor who is not a UAC being transported to a facility that is an FRC or being held with their family. The commenter believes this could potentially create situations where children are separated from their parents, contrary to the intent of the FSA. The commenter is also concerned that future guidance about transportation requirements may not align with the FSA after the FSA is terminated. Another commenter stated that the proposal excludes transfers between DHS facilities of minors who are subject to secure detention, which means that they will not be transferred to a licensed facility in case of an emergency or influx nor transferred within the required time frame under the FSA.

One commenter stated that the proposed rule is an attempt to undermine DHS's obligations to quickly transfer children out of inappropriate facilities and to provide children with care within a licensed facility. The commenter opined that not transferring the children into licensed facilities quickly would impede the children's ability to meet with counsel, have privacy and liberty rights, be educated, have access to social services, and protect their due process rights. In this commenter's estimation, this would lead to increased likelihood of abuse and violations of children's human rights as protected under domestic and international law.

Another commenter stated that this section will result in the disparate treatment between accompanied minors and UACs. This commenter stated that the perceived disparate treatment is contrary to the FSA and not mandated by Federal law and will, therefore, prevent the termination of the FSA if left in the final rule.

Response. DHS emphasizes that this provision does not change the FSA-derived transfer timeframes that have applied to non-UAC minors for decades. As noted in the proposed rule, DHS has continuously been dealing with an “influx” of minors and UACs, as the term is defined in the FSA. Through this provision, DHS seeks to clarify that the requirement to transfer non-UAC minors “as expeditiously as possible” is only applicable (i.e., the “default”) insofar as influx or emergency conditions persist. Absent influx or emergency conditions, this provision requires DHS to adhere to the same three-day and five-day transfer timeframes set forth in the FSA. For a further discussion of the term “emergency,” please see the “emergency” definition in Section A. Definitions.

In response to one commenter's statement that this provision does not speak to FRCs, and another commenter's statement that it fails to address secure facilities, DHS notes that the NPRM specifically stated that licensed facilities must be non-secure and that “the only non-secure facilities in which ICE detains minors who are not UACs are the FRCs.” [25] This language was intended to demonstrate that under this provision, non-UAC minors in DHS custody would generally be transferred to licensed, non-secure, FRCs.

DHS notes that one commenter expressed concern about disparate treatment between accompanied minors and UACs. As noted in the NPRM, UAC transfer requirements are specifically governed by the TVPRA, whereas this provision codifies transfer requirements of non-UAC minors pursuant to Start Printed Page 44428paragraph 12(A) of the FSA. Absent emergency or influx conditions, this provision requires DHS to transfer non-UAC minors to a licensed facility within three days if the minor is apprehended in a district in which a licensed program is located. This is the same timeframe set forth by the TVPRA for transferring UACs into ORR custody.

Changes to Final Rule

The Department is finalizing this section as proposed with no changes.

6. Transfer of UACs From DHS to HHS §  236.3(f)

Summary of the Proposed Rule

The standards contained in the proposed rule would require DHS to transfer UACs apprehended by DHS to ORR for care, custody, and placement. DHS would notify ORR of the apprehension within 48 hours and, transfer custody within 72 hours of determining that the juvenile is a UAC, absent exceptional circumstances. The proposed regulation recommended procedures for such transfer. For example, the proposed rule required that UACs only be transferred with an unrelated detained adult during initial encounter or apprehension to a DHS facility, or if separate transportation is impractical or unavailable. The proposal also provided that requirements consistent with TVPRA would govern the processing and transfer of UACs.

Public Comments and Response

Comments. A few commenters wrote that the FSA allows DHS to transport UACs with unrelated adults only if separate transportation “impractical,” but that the language in § 236.3(f) would permit DHS to transport UACs with unrelated adults if it is not “operationally feasible” to separate them. The commenters pointed out that if “operationally feasible” is interpreted to mean “convenient,” it would conflict with the FSA; therefore, they recommended that the final rule retain the language of the FSA or more clearly define “operationally feasible.”

Other commenters also took issue with the use of the word “unavailable” and “impractical.” One of these commenters did not agree with the government's characterization that “unavailable” is added for clarification. This commenter contended that statutory construction says that every word should be considered, and none ignored; therefore, the addition of the word “unavailable” is neither supplemental nor clarifying and does not comply with the FSA. Another commenter was concerned that this provision would allow DHS to transport UACs with unrelated adults due to poor planning by DHS causing vehicles to be unavailable and placing vulnerable children at risk of harm. This commenter also took issue with the use of the term “DHS facility” as a place to which transportation with unrelated adults can take place, which could encompass facilities much farther away than Border Patrol stations and ports of entry near the site of apprehension.

Response. In response to comments, DHS is making a minor change to the regulatory text of § 236.3(f)(4)(i) to make it clear that, as a general matter, UACs will not be transported with unrelated adults. Specifically, pursuant to CBP's National Standards on Transport, Escort, Detention, and Search (TEDS) policy, UACs may not be transported with unrelated adults when separate transportation is immediately available. FSA paragraph 25A also provides that UACs may be transported with unrelated adults “when being transported from the place of arrest or apprehension to an INS office.” Thus, DHS updates the text in § 236.3(f)(4)(i) to reflect the general statement that UACs may not be transported with unrelated adults, as well as the two potential exceptions to this provision.

DHS notes that there may be situations in which separate transportation for UACs and unrelated adults is unavailable or impractical. For instance, in situations in which CBP apprehends a large group of aliens in a remote location, it would be impractical to transport any UACs in that group separately from unrelated adults in separate vehicles. To do so would cause a significant delay in transporting all of the aliens to the nearest DHS facility for processing and all appropriate amenities (e.g., the provision of food and water). Additionally, depending on the number of aliens encountered in a particular location or at a particular time, DHS's operational realities may result in there not being a sufficient number of vehicles with proper security available to transport a UAC separately.

Additionally, as the proposed regulation notes, where separate transportation is impractical or unavailable, DHS is committed to ensuring that necessary precautions will be taken to ensure the UAC's safety, security, and well-being. One of these precautions is ensuring that when a UAC is transported with any unrelated detained adult, DHS will separate the UAC from the unrelated adult(s) to the extent “operationally feasible.” In this context, “operationally feasible” can be described as mitigating all risk factors associated with transporting UACs with unrelated adults to the extent that the benefit of doing so favors the UAC, other aliens, and DHS. For instance, UACs may be separated from unrelated adults by either a separate passenger compartment or an empty row of seats.

With respect to the commenters who were concerned about the addition of the term “or unavailable” to the conditions of transfer standard, DHS reiterates that it considers the term “unavailable” to be clarification only and not a substantive change to the current standard set forth in paragraph 25 of the FSA.

A commenter also took issue with the term “DHS facility,” but this language is consistent with paragraph 25A of the FSA, which states that “unaccompanied minors arrested or taken into custody by the INS should not be transported by the INS in vehicles with detained adults except when being transported from the place of arrest or apprehension to an INS office.” DHS believes that the term “DHS facility” is equivalent to “INS office” after the reorganization under the HSA. As described above, there are occasions where it is impractical to transport UACs without unrelated adults. For instance, if DHS encounters a large group of aliens in a remote area, it is in the best interest of both the aliens and DHS to transport the aliens for humanitarian reasons to the nearest DHS facility for processing and assessment. This provision is not intended to permit DHS to transport UACs beyond the minimum distance required to accomplish the operational necessity.

Comment. One commenter stated that this provision is contrary to the TVPRA because it does not take into consideration the requirements for those from contiguous countries. The commenter explained that under the TVPRA, the government must screen children from contiguous countries within 48 hours of apprehension or before return to their home country and “if the child does not meet such criteria [of 8 U.S.C. 1232(a)(2)], or if no determination can be made within 48 hours of apprehension,” these children must be transferred to ORR. This commenter feared that these children could face indefinite detention in unlicensed facilities in contravention with the TVPRA. This commenter also stated that the TVPRA does not allow for the exceptions to the 72-hour timeframe listed in the proposed rule because they do not meet the high bar of “exceptional circumstances” as intended under the TVPRA.

Response. DHS disagrees that proposed § 236.3(f) is contrary to the TVPRA provisions, but in light of the comment, is amending the regulatory Start Printed Page 44429text to clarify that UACs from contiguous countries are be treated in accordance with the TVPRA. Pursuant to the TVPRA, an agency has 48 hours to determine if UACs who are nationals or habitual residents of a country that is contiguous with the United States meet the criteria listed in 8 U.S.C. 1232(a)(2)(A). See 8 U.S.C. 1232(a)(4). If a UAC does not meet the criteria, or a determination about the criteria cannot be made within 48 hours of apprehension or encounter, the UAC must immediately be transferred to HHS in accordance with the procedures set forth in 8 U.S.C. 1232(b). The timeframe provided in section 1232(b) is the time frame set forth in § 236.3(f). The only exception to the 72-hour timeframe is if a UAC is able to withdraw his or her application for admission pursuant to 8 U.S.C. 1232(a)(2). Therefore, the provisions of § 236.3(f) and the 72-hour timeframe apply to UACs who are treated in accordance with the terms of 8 U.S.C. 1232(a)(4).

DHS disagrees with the assertion that the proposed rule includes exceptions to the 72-hour timeframe that are inconsistent with the TVPRA. Section 236.3(f)(3) states that “unless exceptional circumstances are present, DHS will transfer custody of a UAC as soon as practicable after receiving notification of an ORR placement, but no later than 72 hours after determining that the minor is a UAC.” This strictly conforms to the TVPRA. See 8 U.S.C. 1232(b)(3). The emergency and influx exceptions are only applicable to minors who are not UACs. The only exception to the 72-hour timeframe for the transfer of UACs from DHS to HHS (other than those processed in accordance with 8 U.S.C. 1232(a)(2)) is exceptional circumstances.

Changes to Final Rule

In response to commenters' concerns about the operation of 8 U.S.C. 1232(a)(2), DHS is amending the proposed regulatory text in § 236.3(f)(1) to clarify that UACs from contiguous countries are be treated in accordance with the TVPRA; specifically, if a UAC from contiguous country is not permitted to withdraw his or her application for admission or if no determination can be made within 48 hours of apprehension, then the UAC will be immediately transferred to HHS.

Additionally, DHS is amending the proposed regulatory text in § 236.3(f)(4)(i) regarding conditions of transfer of UACs with unrelated adults. The revisions better reflect current operational practices and clarify that generally UACs will not be transported with unrelated detained adults. DHS has added the specific reference to unrelated “detained” adults, for clarity on this point.

7. DHS Procedures in the Apprehension and Processing of Minors § 236.3(g)

Summary of the Proposed Rule

The proposed rule would require DHS to issue a Notice of Rights (Form I-770) and Request for Disposition and Custodial Care. It would also require the Form I-770 to be provided, read, or explained to the minor or UAC in a language or manner that the minor or UAC understands. The proposed regulation would also provide that the minors or UACs who enter DHS custody would be able to make a telephone call to a parent or close friend. The proposal would also require that every minor who is not a UAC and is in DHS custody will be given a list of free legal service providers. Additionally, section 236.3(g)(2) provides custodial standards immediately following apprehension.

Public Comments and Response

Comments. Several commenters asserted that the proposed rule disregards important legal protections provided by the TVPRA regarding DHS procedures upon apprehension of a minor or UAC. The commenters raised concerns about the possibility of indefinite detention, family separation, expanding the possibility of placing UACs in secure detention, failure of the proposed rule to adequately address conditions in CBP processing centers, and the treatment of apprehended minors.

Some commenters found § 236.3(g)(1) problematic because it does not provide a timeframe for the processing of children immediately following apprehension. A commenter asserted that the use of “as expeditiously as possible” rather than a specific timeframe will result in the indefinite detention of children and violate the protections afforded children under the International Covenant on Civil and Political Rights (ICCPR) Article 9. The commenter also raised concerns about the requirement that a child must request a voluntary departure or withdraw their application for admission before they are informed about the possibility of administrative or judicial review. The commenter asserted that a child has “no practical mechanism to assert his or her rights under the ICCPR until after they are processed by DHS, yet the child can be detained for an indefinite period prior to processing.”

Another commenter objected to language in the proposed regulation stating that all minors or UACs who enter DHS custody will be issued Form I-770, as compared to the requirement that minors be issued the form upon apprehension. The commenter stated that apprehension at the border does not equate to being in DHS custody nor does it always prompt DHS custody. The commenter argued that notifying children of their rights at the earliest point of contact with DHS will ensure that all children will receive information that will benefit them thereafter and that DHS officers are reminded of their obligations when apprehending children.

One commenter claimed that the proposed regulation deviates from referenced paragraph 12(A) of the FSA by not requiring notification to minors of their rights, including the right to a bond redetermination hearing, if applicable, and that the Form I-770 does not include such notice.

Response. Proposed § 236.3(g) preserves the intent of the current regulations and is consistent with FSA paragraphs 12(A) and 24(D), continues to comply with Perez-Funez v. INS, 611 F. Supp. 990 (C.D. Cal. 1984), and complies with the TVPRA requirements.

With regard to the TVPRA, DHS currently screens all UACs from contiguous countries upon encounter and initial processing to determine whether such a UAC may be permitted to withdraw his or her application for admission. As stated in the NPRM, a UAC is provided with a Form I-770 Notice of Rights during this screening and initial processing. UACs from non-contiguous countries are not permitted to withdraw their application for admission under the TVPRA, but are nevertheless provided with a Form I-770 Notice of Rights.

DHS disagrees with the commenter that the proposed regulations violate Article 9 of the ICCPR. Detention under these regulations is in accordance with procedures established by law. See, e.g., sections 235, 236, and 241 of the INA, 8 U.S.C. 1225, 1226, and 1231. Furthermore, all minors and UACs who enter DHS custody are provided with a Form I-770, Notice of Rights and Request for Disposition. When a minor is transferred to or remains in a DHS detention facility, he or she is currently provided with a Notice of Right to Judicial Review.

DHS notes that the notice is confusing is some respects, because 8 U.S.C. 1226(e) broadly prohibits judicial review of custody determinations both in bond hearings and via parole. A regulation (and a form) cannot vest Federal courts with jurisdiction. DHS accordingly will, in a future action, Start Printed Page 44430amend this form to more accurately reflect the judicial review limits set forth in 8 U.S.C. 1226(e).

Additionally, the commenter's statement that a child has “no practical mechanism to assert his or her rights under the ICCPR until after they are processed by DHS,” reflects a misunderstanding of Article 9 of the ICCPR. Article 9 does not grant an individual the right to contest the grounds for his or her detention before he or she is detained.

With respect to paragraph 12(A) of the FSA, DHS reiterates that all minors taken into DHS custody will be notified of rights, including a bond redetermination hearing where applicable. Section 236.3(g) of the final rule preserves the requirement of notification of rights using Form I-770, Notice of Rights and Request for Disposition. All minors who are not UACs who are transferred to or who remain in DHS custody in removal proceedings will be given a Notice of Right to Judicial Review, which notifies the minor of the right to seek judicial review in appropriate circumstances. In addition, DHS serves all aliens, including minors, with a custody determination form that indicates whether they have the right to seek a bond redetermination. These actions are consistent with the requirements of FSA paragraphs 12(A) and 24(A).

Comments. One commenter noted that the proposed rule failed to require that every child be placed in the least restrictive placement in the best interests of the child, as required by the TVPRA and subsequent HHS policies.

Response. DHS notes that this section of the regulations applies only to minors and UACs when they are held in DHS processing facilities immediately following their initial arrest, and thus the TVPRA provisions regarding HHS' placement of UACs do not apply. Proposed § 236.3(g)(2)(i) states that “consistent with 6 CFR 115.114, minors and UACs shall be held in the least restrictive setting appropriate to the minor or UAC's age and special needs, provided that such setting is consistent with the need to protect the minor or UAC's well-being and that of others, as well as with any other laws, regulations, or legal requirements.”

Comments. Several commenters raised concerns regarding conditions in CBP processing facilities, stating that conditions are subpar to those outlined in the FSA. Commenters identified a lack of access to legal counsel, lack of bedding, forcing children to sleep on cement floors, open toilets, confiscation of belongings, constant light exposure, insufficient food and water, no bathing facilities, and extremely cold temperatures, which are traumatizing for children. Several commenters proposed that additional elements of custodial care following apprehension should be incorporated in § 236.3(g)(2) of the rule, including adding the term “bedding” to the listed elements facilities will provide; and striking the language “as appropriate” after “food and water” to avoid confusion, as food and water should never be withheld. Several commenters also recommended the rule should include custodial standards for architectural design, lighting, and mental health care services. Other commenters asked that DHS include provisions to address adequate temperature control in facilities that house children.

One commenter cited research and experience with family detention centers in the U.S. that shows that access to quality medical, dental and mental health care is limited for detainees. Specifically, the commenter contended that preventative care and mental health services are often lacking, and most detention centers relied on expensive emergency room visits to provide medical care, often after delay, increasing the detainees' severity of illness. The commenter also stated that the Infectious Disease Society of America has already found outbreaks of chicken pox, scabies and other infections among detainees, and that detention facilities are lacking in practices of hygiene and infection control, leading to conditions that will fuel the spread of infections.

One commenter also pointed out that contact with family members arrested at the same time should not be an issue because the family should all be housed together and this section should reflect the concept of family unity during apprehension and initial processing.

Response. DHS notes that the proposed text of § 236.3(g)(2) is, in substance, identical to the existing requirements in the FSA. Specifically, paragraph 12A of the Agreement requires that “following 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. Facilities will provide access to toilets and sinks, drinking water and food as appropriate, medical assistance if the minor is in need of emergency services, adequate temperature control and ventilation, adequate supervision to protect minors from others, and contact with family members who were arrested with the minor.” The text proposed in the NPRM at § 236.3(g)(2) provided that DHS will hold minors and UACs in facilities that are safe and sanitary and that are consistent with DHS's concern for their particular vulnerability. Facilities will provide access to toilets and sinks, drinking water and food as appropriate, access to emergency medical assistance as needed, and adequate temperature and ventilation. DHS will provide adequate supervision and will provide contact with family members arrested with the minor or UAC in consideration of the safety and well-being of the minor or UAC, and operational feasibility. Thus, DHS has, through this provision, included the same terms used in the FSA, with such changes as are required by the HSA and the TVPRA.

DHS also notes that CBP policies serve to implement these protections and go beyond the requirements of the FSA and these regulations. Specifically, CBP's policy states that all individuals who may require additional care or oversight while in custody, including minors and UACs, will be treated with dignity, respect, and special concern for their particular vulnerability. TEDS also addresses the provision of all amenities provided for by the FSA. For example, TEDS provides that minors and UACs in CBP custody have access to restrooms and appropriate toiletry items (e.g., toilet paper and sanitary napkins); have access to drinking water at all times; are provided with four meals daily; and have access to milk, juice, and snacks at all times. TEDS also provides that minors and UACs are provided access to basic hygiene items and clean bedding, and that CBP makes reasonable efforts to provide showers (including soap and a towel) to minors and UACs approaching 48 hours in CBP custody. Additionally, CBP documents the provision of all required amenities, as well as welfare checks of all minors and UACs, in its electronic systems of records. CBP also documents that the temperature is appropriate and that the cleanliness of its hold rooms has been checked in its electronic systems of record.

CBP also notes that it has recently taken several steps to enhance the provision of medical care to minors and UACs in its custody. Specifically, CBP currently provides medical screening and triage for all UACs and minors along the southwest border. Following a screening, any minor or UAC who requires emergency medical care is transferred to the hospital or other nearby medical facility for appropriate emergency treatment.

DHS declines to add “bedding” to the list of items provided by facilities, as that term does not appear and is not defined in the FSA. DHS notes, however, that generally CBP provides clean bedding to all minors and UACs, Start Printed Page 44431and that the provision of bedding is documented in CBP's electronic systems of record. Additionally, as noted above, the TEDS standards address these topics and more, and in many ways go over and above the requirements of the FSA, and these regulations. DHS also declines to delete the words “as appropriate” after “food and drinking water” since this is a reasonable limitation. The “as appropriate” phrase is derived from FSA paragraph 12A, and might apply in a situation in which a minor or UAC is in custody for a very short period of time.

Comments. One commenter recommended that the rule require that processing facilities not only be safe and sanitary but also provide a sense of comfort, including by prohibiting the use of wire fencing to separate youth and by providing access to beds, blankets, outdoor space, and comfort items (e.g., stuffed animals that be taken with the child/youth when they transfer to a licensed facility).

Response. The FSA requires that facilities in which minors and UACs are held immediately following arrest be “safe and sanitary” and reflect DHS's “concern for the particular vulnerability of minors.” DHS's short-term holding facilities, in which minors and UACs are held immediately following arrest, are generally designed to hold individuals for 72 hours or less. See 6 U.S.C. 211(m)(3). Thus, they are not designed for long-term detention, and do not provide many of the characteristics of such long-term detention. As explained elsewhere in this rule, DHS makes efforts to transfer all minors and UACs out of such facilities as expeditiously as possible. Additionally, the TVPRA requires that DHS transfer all UACs to HHS within 72 hours absent “exceptional circumstances.” Additionally, for the duration of time that minors and UACs do remain in CBP custody, CBP makes efforts to provide minors and UACs with appropriate safe and sanitary conditions, including hygiene products, showers where possible, and the opportunity to obtain clean clothes.

DHS notes that CBP facilities are also subject to several areas of oversight to ensure compliance with CBP policy and with the FSA requirements. First, CBP's Juvenile Coordinator conducts regular visits to CBP facilities across the southwest border, both announced and unannounced, to monitor compliance with the FSA requirements and with CBP policy related to the treatment of minors and UACs in CBP custody (including, for instance, determining whether facilities are safe and sanitary and whether minors and UACs have access to adequate food and water). The Juvenile Coordinator also conducts reviews of juvenile custodial records as part of this monitoring roles. CBP also has Juvenile Coordinators in its field offices and sectors, who are responsible for managing all policies on the processing of juveniles within CBP facilities, coordinating within CBP and across DHS components to ensure the expeditious placement and transport of juveniles placed into removal proceedings by CBP, and informing CBP operational offices of any policy updates related to the processing of juveniles (e.g., through correspondence, training presentations). Moreover, CBP's Juvenile Coordinators serve as internal and external agency liaisons for all juvenile processing matters.

CBP's own Management Inspections Division (MID) also conducts visits to CBP facilities and monitors compliance with CBP's policies. Additionally, CBP is subject to regular oversight and inspection by CBP's Office of Professional Responsibility (OPR), DHS' Office of Inspector General, DHS' Office of Civil Rights and Civil Liberties, and the Government Accountability Office. Such inspection and oversight helps ensure that CBP facilities continue to meet the FSA requirements and remain safe and sanitary for minors and UACs.

Comments. One commenter noted that there is no mention in the rule of a minor's or UAC's ability to contact his or her consulate upon apprehension. The commenter alleged that consistent with the ABA UC Standards, upon apprehension, a child should immediately be informed, both orally and in writing, in the child's best language and where applicable, dialect, of the right to contact the child's parents and consulate.

Response. Section 236.3(g)(1) codifies requirements that derive directly from the FSA. This section, like Paragraph 12(A) of the FSA, applies to facilities in which minors and UACs are held during their initial processing. Paragraph 12(A) of the FSA provides that, immediately following arrest, minors be “provided with a notice of rights.” And as indicated in § 236.3(g)(1)(i), all minors and UACs who enter DHS custody are provided a Form I-770, Notice of Rights and Request for Disposition. This form informs the minor or UAC that he or she may contact a parent, close relative, or friend. Thus, § 236.3(g)(1) codifies the requirements under the FSA, and no additional changes are required. DHS also notes that existing regulations at 8 CFR 236.1(e) provide that “every detained alien shall be notified that he or she may communicate with the consular or diplomatic officers of the country of his or her nationality in the United States.”

Comments. One commenter recommended adding language that would keep minors together with the family members arrested with them, rather than simply providing contact; and recommended adoption of a rule governing housing minors with unrelated adults more closely mirroring the rules for UACs. The commenters noted that housing UACs with unrelated adults upon apprehension is addressed in the proposed rule but minors other than UACs are not mentioned in this section. The commenter stated that this could be highly problematic, pointing to studies that have shown children commingled with adults are more likely to commit suicide and to be physically or sexually assaulted.

Several commenters raised concerns that proposed language in 8 CFR 236.3(g) stating that children will be provided contact with family members only to the extent that it does not pose an “undue burden on agency operations” will weaken the protections against family separation and allow CBP to separate children from their families if the agency is merely inconvenienced. One commenter recommended that the rule should provide in § 236.3(g)(1) that every minor or UAC must receive assistance with contacting his or her parent, legal guardian, and/or counsel.

Another commenter objected to the provision that a child be provided contact with family members with whom the child was arrested “in consideration of the safety and well-being of the minor or UAC, and operational feasibility.” The commenter claimed the reference to “operational feasibility” is not found in the FSA, which requires facilities to provide “contact with family members who were arrested with the minor” without qualification.[26] The commenter further stated that this language is also not found in existing regulations covering juvenile and family detainees.[27] The commenter concluded that the language conflicts with the FSA, as it allows the agency to restrict children's access to their families for its own convenience, with no specification as to the bounds of the vague term “operational feasibility.”

Response. DHS notes that, as explained in the preamble to the NPRM, “DHS's use of `operational feasibility' in Start Printed Page 44432this paragraph does not mean `possible,' but is intended to indicate that there may be limited short-term circumstances in which, while a minor or UAC remains together with family members in the same CBP facility, providing such contact would place an undue burden on agency operations.” 83 FR 45500. The preamble went to provide several examples: “For instance, if a family member arrested with a minor or UAC requires short-term, immediate medical attention, CBP may be required to temporarily limit contact between that family member and the minor or UAC, in order to provide appropriate medical treatment. Or, CBP may have a legitimate law enforcement reason to temporarily limit contact between a minor or UAC and accompanying family members, such as when CBP decides it is in the minor or UAC's best interest to interview all family members separately.” Id.

DHS reiterates its reasoning from the NPRM that CBP provides contact between the minor or UAC and accompanying family members unless CBP is concerned about the safety of the minor or UAC or there is a legitimate law enforcement reason not to provide contact on a temporary basis. It is never a matter of inconvenience. The proposed rule is much more detailed than FSA paragraph 12(A), which requires that the juvenile be provided contact with family members with whom he or she was arrested, and consistent with both FSA paragraph 11 and other DHS regulations on the prevention of sexual abuse and assault in its facilities. This provision takes into account the safety of the minor or UAC, and acknowledges that there may be some limited situations in which providing contact may not be in the minor or UAC's best interests (e.g., the accompanying family member has been observed to physically harm the minor or UAC, or a minor or UAC alleges physical abuse by the family member). Additionally, the term “operational feasibility” covers limited short-term circumstances where providing such contact would place an undue burden on agency operations. For example, if a family member requires short-term, immediate medical attention, CBP may be required to temporarily limit contact between that family member and the minor or UAC in order to provide the medical treatment. There may also be legitimate law enforcement reasons to interview family members separately.

Comments. Commenters expressed concern about the flexibility given to DHS to hold and transport UACs separately from unrelated adults based on emergencies or exigent circumstances. Some commenters commented that DHS failed to define the “exigent circumstances” that would allow it to house a UAC with an unrelated adult beyond 24 hours. The commentator stated that allowing UACs to be housed with an unrelated adult for emergency or exigent circumstances contradicts the FSA and endangers children.

A few commenters stated that the provision allowing DHS to house UACs with unrelated adults for more than 24 hours based on emergencies or exigent circumstances is inappropriate and is contrary to 6 CFR 115.14(b), which prohibits the housing of children with adults unless the child is in the presence of an adult family member. And a different commenter took issue with the proposed rule's distinction between UACs and minors when it comes to housing UACs with unrelated adults for up to 24 hours because minors should also not have to be housed with unrelated adults for more than 24 hours.

Other commenters focused on the term “operationally feasible” for purposes of the requirement to separate children from unrelated adults. Some commenters argued that the failure to define the term rendered the regulation unconstitutionally vague. One commenter requested that DHS and HHS clarify the percent of time they expect it will be operationally feasible to successfully transport and hold UACs separately from unrelated adults. The commenter asked whether DHS and HHS intend to rescind this policy and make it compliant with the FSA if they find that UACs are not held and transported separately from unrelated adults in most cases.

Another commenter asserted that DHS could dispense with contact with family members to accommodate “operational concerns” at a time when children need their family to insulate them from trauma and provide them comfort.

Response. The proposed regulation is designed to be consistent with the existing DHS regulations on the prevention of sexual abuse and assault in its facilities without diminishing any key protections set forth in the FSA. The proposed regulation at § 236.3(g)(2) contains the same limit as the FSA on the amount of time UACs can be housed with an unrelated adult (no more than 24 hours). The proposed regulation allows DHS to depart from this standard in emergencies, to the extent consistent with 6 CFR 115.14(b) and 115.114(b). DHS has decided to remove the reference to “exigent circumstances,” as DHS has already provided an explanation of the types of emergency situations in which it may be necessary to hold a UAC with an unrelated adult for more than 24 hours. Any “exigent circumstances” would be largely redundant of such emergency situations. Thus, the proposed regulation at § 236.3(g)(2) is designed to be consistent with the existing DHS regulations on the prevention of sexual abuse and assault in its facilities without diminishing any key protections set forth in the FSA. DHS also notes that the proposed regulation addresses only DHS custodial care of UACs immediately following their apprehension. Pursuant to the TVRPA (and consistent with the HSA), once an alien juvenile is determined to be a UAC, DHS must transfer the UAC to the care and custody of HHS within 72 hours, absent exceptional circumstances.

DHS provides examples in the regulations of when it may be necessary to hold UACs with unrelated adults for more than 24 hours, including during a weather-related disaster or if an outbreak of a communicable disease requires the temporary commingling of the detainee population. These examples confirm that any emergencies would address temporary and unforeseen dangers or public safety threats. DHS is unable to provide an exact length of time, beyond 24 hours, that it may be necessary to house a UAC with an unrelated adult, as the length of time will vary based on the particular emergency warranting such a situation. However, DHS will not house a UAC with an unrelated adult for any longer than is required based on the specific facts of the particular emergency. Moreover, even under emergency circumstances, appropriate consideration is given to age, mental condition, physical condition, and other factors when placing UACs into space with unrelated adults.

Concerns about recognizing an exception to the 24-hour limit in an “emergency” are unfounded. The exceptions would only apply to the extent consistent with the existing DHS regulations on the prevention of sexual abuse and assault in DHS facilities at 6 CFR 115.14(b) and 115.114(b).

Similarly, the commenter's concerns about distinguishing between UACs and minors for this requirement is misplaced because the FSA's provision on the amount of time UACs can be housed with an unrelated adult applies only to unaccompanied Flores class members. See June 27, 2017 Order at 31, Flores v. Sessions, No. 85-4544 (C.D. Cal. filed July 11, 1985) (noting that “Paragraph 12A of the Agreement states that upon apprehension, Defendants Start Printed Page 44433`will segregate unaccompanied minors from unrelated adults.' ”).

DHS also disagrees with commenters' concerns about the term “operationally feasible” because that term does not appear in the proposed regulatory text concerning the amount of time a UAC can be housed with an unrelated adult. This term is addressed above, in the discussion of providing contact between minors and UACs and family members with whom they were apprehended. And the proposed DHS regulatory text at § 236.3(f) contains a prohibition on transportation of UACs with unrelated adults in keeping with the FSA: A “UAC will not be transported with an unrelated detained adult(s) unless the UAC is being transported from the place of apprehension to a DHS facility or if separate transportation is otherwise impractical or unavailable.”

Changes to Final Rule

DHS is amending the proposed regulatory text to remove the language “exigent circumstances” in response to public comments. DHS is also amending the regulatory text to clarify that the Form I-770 will be provided, read, or explained to all minors and UACs in a language and manner that they understand.

8. Detention of Family Units § 236.3(h)

Summary of Proposed Rule

DHS proposed to clarify that DHS may, pursuant to existing legal authorities, maintain and detain family units together in ICE custody. The proposal also provided that DHS would transfer family units to an FRC if DHS determined that detention of family units is required. The terms contained in the proposed rule set out and clarify requirements that must be met for a family to be detained together in an FRC.

Public Comments and Response

Comments. Some commenters noted that there may be times when a child needs to be detained, such as when no alternative exists that meets the needs of the child and ICE's security concerns. But most commenters on this topic expressed general opposition to the detention of family units. Many commenters discussed the negative impacts of detention on the well-being of children, while some commenters also stated that family detention has negative impacts on parents and the family unit itself. One commenter also stated that DHS has failed to justify detaining children because of a misdemeanor crime allegedly committed by a parent and that it must exhaust less restrictive alternatives. Another stated that family immigration detention should only be used as a last resort where necessary to protect the best interests of the child, and only following an individualized assessment and judicial review.

With regard to the impact of family detention on family units, numerous commenters stated possible effects could include emotional distress, damage to family stability, the undermining of a parent's ability to appear as an authority figure and provide emotional support, and disruption of the parent/child bond, potentially leading to attachment issues. Several commenters also noted that, while they support the notion of family unity, they disagree with unity being created or maintained by family detention. Many commenters described the detention of family units as “inhumane,” “immoral,” “cruel,” or contrary to our country's values. One commenter stated that the detention of family units is rooted in a white nationalist agenda.

• Trauma

Comments. As a reason for their opposition to the detention of family units, numerous commenters stated that the detention of families has serious and long-lasting negative impacts on the physical and mental well-being of children. Many commenters, including doctors, social workers, and organizations specializing in medicine or mental health, listed numerous possible negative effects of detention on children, such as: Trauma; developmental delays; anxiety; depression; Post Traumatic Stress Disorder (PTSD); regressive behaviors; withdrawal; self-injury; suicidal ideation; nightmares; night terrors; bed-wetting; delayed cognitive development; digestive disturbances; panic attacks; clinginess; withdrawal; attachment disorders; loss of appetite; and educational delays.

One commenter stated that parents who find themselves in this highly stressful situation are at risk of developing similar emotional problems, in addition to being less available and responsive to their children which, in turn, can interrupt the natural attachment between children and parents. One commenter, relying on such possible effects, stated that detention of innocent children should never occur in a civilized society, especially if there are less restrictive options, such as parole, because the risk of harm to children simply cannot be justified.

Several commenters relied on research in this area to support their comments. For example, one commenter cited to a body of research linking the trauma of childhood detention with adverse outcomes, and a collection of articles that discusses the harm done to children from the toxic levels of stress and disruption in normal development that are inherent in being detained in U.S. custody.

Another commenter cited research to show that 44 percent of asylum seekers in the United States were torture survivors, and that detention was likely to compound the trauma already experienced by these individuals. Several commenters noted that detention is likely to re-traumatize mothers and children fleeing gender-based violence. Some commenters cited to the DHS Advisory Committee on Family Residential Centers Report that recommended DHS not detain families. One commenter suggested changes to the last sentence of the provision, “If DHS determines that detention of a family unit is required by law, or is otherwise appropriate, the family unit may be transferred to an FRC which is a licensed facility and non-secure.” Specifically, the commenter suggested changing “may be” to “shall be.” The commenter suggested adding “as available” or “as reasonably possible” to address a lack of space in FRCs.

• Indefinite Detention

Many commenters expressed concern that detention of family units would lead to prolonged or indefinite detention. For further discussion of this topic, see section “Indefinite Detention due to Alternative Licensing.”

Response. DHS responses to the issues of alleged indefinite detention and the trauma caused by detention are in the sections devoted to these topics below. DHS believes that misconceptions about FRCs abound, and these misconceptions are reflected in the comments. Detention of family units in this context is related only to civil immigration proceedings and not criminal charges. FRCs are non-secure, meaning that families are not physically prevented from leaving the facility if they wish. While leaving an FRC could result in significant immigration consequences, the families are not in prison and the decision to stay or go is their own. FRCs have classrooms for the children's education, cafeterias for family meals, and outdoor and indoor recreation areas. There are no cages, prison cells, or prison bars. There are, however, windowed bedrooms with plenty of space for beds, chests of drawers, and tables. There are also communal areas with couches and television sets. There are entire medical Start Printed Page 44434wings devoted to caring for the families, whether it is their initial intake screening where they are screened for communicable diseases, high blood pressure, and diabetes, or emergency situations where their trip from their home countries to the United States has caused them severe harm that requires hospitalization. ICE's Juvenile Family Residential Management Unit (JFRMU) is responsible for the ICE Family Residential program, and it periodically revises the Family Residential Standards that govern the program, consistent with best practices.

FRCs serve to encourage and strengthen family interaction and growth. Parents are expected to be responsible for their children and are encouraged to take an active role in their development. FRC staff counsel and mentor parents in appropriate non-physical behavior management techniques. Family units normally are assigned bedrooms together to further familial bonds. Centers provide age-appropriate play structures and recreational equipment for all residents. Mental health providers conduct weekly wellness checks on all juvenile residents. If additional treatment needs are identified during these checks, separate therapy sessions may also be established. Additionally, mental health providers are available to residents for adult counseling and family counseling needs. FRCs are not staffed by armed guards or uniformed ICE officers, rather they are staffed by facility counselors.

FRCs also provide liberal access to legal counsel and non-profit groups providing legal services. Interpreter services are available 24/7 via telephone. Private meetings rooms are available as is direct communication with the immigration courts.

FRCs also afford parents the ability to be parents; they exercise full parental rights. FRC staff do not make any decisions for the parents. If the parents do not want their children to participate in group activities, it is their choice. Similarly, if they do not want their children to be part of the individual or group mental health counseling sessions, it is the parent's choice. FRCs give parents and their children a chance to acclimate to the United States, get their bearings, find legal counsel, prepare their immigration cases, and in many cases be released after a finding of credible fear.

Medical issues at FRCs are managed by the ICE Health Service Corps (IHSC). The IHSC is responsible for providing direct care or oversight of care at FRCs to include medical, dental, and behavioral health care, and public health services. IHSC is made up of a multi-sector, multidisciplinary workforce of over 1,100 employees that include U.S. Public Health Service (PHS) Commissioned Corps officers, Federal civil servants, and contract health professionals. IHSC provides medical case management and oversight of detainees housed at non-IHSC staffed detention facilities and also oversees the management of off-site specialty and emergency care services for all detainees in ICE custody.

IHSC utilizes health care standards drawn from the American Correctional Association (ACA), the National Commission on Correctional Health Care (NCCHC), the ICE National Performance-Based Detention Standards (PBNDS), as well as the ICE Family Residential Standards to ensure that quality, culturally competent, and trauma-informed care is provided to detainees in ICE custody. These standards support IHSC's internal quality improvement program. Moreover, IHSC employs staffing models at its facilities tailored to the population and needs of the community under its care. IHSC's mandate to provide direct care for ICE detainees obligates IHSC to deliver individualized care that must be properly documented in medical records for the well-being of the detainees. IHSC takes seriously all allegations of inappropriate health care and investigates these allegations to remedy any identified deficiencies and ensure the integrity of the care it provides to ICE detainees.

With respect to the report of that the DHS Advisory Committee on Family Residential Centers, DHS notes that the report was issued by a committee of private citizens acting outside the scope of the committee's charter. The report states that any detention of families “should be only long enough to process a family for release into alternatives to detention.” But the report ignored DHS's legal authority to detain aliens in removal proceedings when legally required and when appropriate to ensure the alien presents himself for removal.

While DHS respects the views of the writers of the report, alternatives to detention (ATD) do not provide a means to effectively remove those who subject to a final removal order. For further discussion of this topic, see section on Alternatives to Detention.

Lastly, DHS does not concur with commenters' suggested changes to the text of the regulation. The word “may” in the proposed regulation accounts for the possibility that family units may be released at the time of encounter. The language in the regulation that states “as reasonably possible” also accounts for a lack of bedspace.

Changes to Final Rule

DHS declines to change the proposed regulatory text in response to public comments.

9. Detention of Minors Who Are Not UACs in DHS Custody § 236.3(i)

Summary of Proposed Rule

The Departments proposed that a minor who is not a UAC and not released by DHS, may be held in DHS custody where he/she is detained in the least restrictive setting appropriate to the minor's age and special needs. Additionally, the proposal would permit minors to be placed temporarily in a non-secure licensed facility until they are released.

Section 236.3(i)(1) proposed to require that a minor who is not a UAC be transferred to state or county juvenile detention facilities, a secure DHS detention facility, or a DHS-contracted facility having separate accommodations for minors if the minor meets certain criteria, including the minor is charged with, is chargeable with, or convicted of a crime or has been charged with, is chargeable with, is the subject of delinquency proceedings or has been adjudicated as delinquent, committing, or making credible threats to commit, a violent or malicious act while in custody or while in the presence of an immigration officer; engaging, while in a licensed facility, in certain conduct that is unacceptably disruptive of the normal functioning of the licensed facility; being an escape risk; or for the minor's own security.

Section 236.3(i)(2) proposed to require DHS to place a minor in a less restrictive alternative if such an alternative is available and appropriate in the circumstances, even if the provisions of § 236.3(i)(1) apply. Additionally, it would require that the secure facilities used by DHS to detain non-UAC minors shall also permit attorney-client visits pursuant to applicable facility rules and regulations.

Section 236.3(i)(3) proposed that, unless a detention in a secure facility is otherwise required, DHS facilities used for the detention of minors would be non-secure.

Section 236.3(i)(4) proposed that all non-secure facilities used for the detention of non-UAC minors abide by the standards for “licensed programs.” At a minimum, these standards must include, but are not limited to, proper physical care, including living accommodations, food, clothing, routine Start Printed Page 44435medical and dental care, family planning services, emergency care (including a screening for infectious disease) within 48 hours of admission, a needs assessment including both educational and special needs assessments, educational services including instruction in the English language, appropriate foreign language reading materials for leisure time reading, recreation and leisure time activities, mental health services, group counseling, orientation including legal assistance that is available, access to religious services of the minor's choice, visitation and contact with family members, a reasonable right to privacy of the minor, and legal and family reunification services. Additionally, this section would require DHS to permit attorney-client visits pursuant to applicable facility rules and regulations in all licensed, non-secure facilities in which DHS places non-UAC minors.

Section 236.3(i)(5) would permit “licensed, non-secure facilities” to transfer temporary physical custody of minors prior to securing permission from the Government in the event of an emergency, provided that they notify the Government as soon as practicable, but in all cases within 8 hours.

Public Comments and Response

Comments. Some commenters argued that the proposals would eliminate important provisions in the FSA, including a guarantee that the standards would incorporate state welfare laws and the requirements to provide acculturation and adaptation services, provide family reunification services; to provide services in a manner that is sensitive to the age, culture, native language, and complex needs of each minor; to provide information regarding the right to request voluntary departure in lieu of deportation; to create an individualized plan for each minor that is tracked through a case-management system; to maintain protections to keep minor's personal information confidential and avoid unauthorized disclosures; and to maintain records and make regular reports to INS to ensure compliance with the FSA.

One commenter stated that § 236.3(i)(4) omits several provisions that were standards in the FSA, including family reunification services; the prohibition of “corporal punishment, humiliation, mental abuse, or punitive interference with the daily functions of living, such as eating or sleeping;” the development of a “comprehensive, realistic individual plan for the care of each minor,” coordinated through a case management system, which should be safeguarded to preserve and protect confidential records; and regular record keeping and reporting. The commenter acknowledged that these provisions are found in other parts of the proposed rule concerning children in HHS custody, but asserted that there is no reason for a distinction between “alien minors” and “UACs” when it comes to these issues.

Response. This section is specifically about ICE custody of minors once a decision has been made not to release a minor, and the minor is not a UAC. The standards described are taken from Exhibit 1 of the FSA. The individualized plans, as one commenter calls them, are in § 236.3(i)(4)(iii), which mirrors Exhibit 1, paragraph 3 of the FSA. Family reunification provisions are not needed in this part of these regulations because minors in ICE custody are already housed with their parents or legal guardians. Similarly, case management services for minors in ICE custody are not needed the same way they are needed for UACs in HHS custody because minors in ICE custody are supervised by their parent or legal guardian. The parent or legal guardian is responsible for seeking any services or care that the minor requires while in DHS custody and fulfill the role of a case manager in seeking a continuum of care and services such as pediatric care, mental health services.

DHS disagrees with the commenter that this regulation does not provide services in a manner that is sensitive to the age, culture, native language, and complex needs of each minor. DHS has put numerous programs in place since the FSA was signed to take into account such needs. For example, it can generally provide interpretation services 24 hours a day via telephone. Further, DHS abides by language access policies that comply with the Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency, although DHS declines to codify these language access policies in regulation in order to maintain necessary operational flexibility. Similarly, DHS declines to codify through this regulation any additional of the commenters' suggestions: Creating an individualized plan for each minor that is tracked through a case-management system; maintaining protections to keep minor's personal information confidential and avoid unauthorized disclosures; and maintaining records and making regular reports to DHS to ensure compliance with the FSA. Technology advances, privacy laws, and reporting over the last 20 years have now made these suggestions standard operating practices, but codifying them through regulatory text limits DHS's operational flexibility to update and improve these practices as necessary.

DHS does not believe there is a need for advisals at FRCs regarding a minor's right to request voluntary departure in lieu of deportation. This is true because, DHS acknowledges parental rights for family units housed at FRCs and families are likely to make such decisions as a unit.

With respect to acculturation programs, DHS notes that the only difference between the FSA and the proposed language is that the FSA requires that the acculturation services contribute to the ability to “live independently and responsibly,” whereas the proposed language requires that the services would contribute to the abilities needed “as age appropriate.” After many years of experience, DHS has found that what a five-year-old needs to know about America is different from what teenager needs to know to successfully integrate into society.

DHS agrees to add the prohibitions in the FSA against corporal punishment, humiliation, mental abuse, and punitive interference with the daily functions of living, such as eating or sleeping to the regulation. DHS notes that these prohibitions have always been incorporated into personnel policies and contract vehicles with contractors who run ICE facilities. There are also mechanisms in place to monitor for such abuses. But DHS will add these provisions into the text of the regulation in response to commenters noting a lack of specific language addressing these issues in the proposed text. Such conduct is obviously inappropriate and has no place in any DHS facility.

Safety (§ 236.3(i))

Comments. Several commenters stated that there are numerous architectural layout and design problems with the facilities used to detain minors that would lead to an increase in injuries. DHS medical experts and non-profits reported instances of severe finger injuries resulting from the closure of heavy doors in a converted prison used as a family detention center. A few commenters stated that the facilities were likely to be inadequate because they would be hastily constructed. Several commenters also stated that the facilities often lack sufficient medical space and noted that in one case a gymnasium was used as an ad hoc overflow medical space.

Several commenters stated that there are not standards that limit the number Start Printed Page 44436of room occupants or prevent minors from sharing a room with unrelated adults and/or adults of the opposite gender, which increases the risk of child abuse. Several commenters detailed that in current FRCs, families are typically placed in rooms that accommodate six people, which results in children sharing rooms with unrelated adults, including sleeping, dressing, and using the restroom without adequate privacy. Additionally, one commenter noted that most space in detention facilities are reserved for mothers and young children, so fathers and older siblings are often separated from their families.

Several commenters commented that placing children in detention is inherently abusive, that children are at an increased risk of physical, verbal, mental, and sexual abuse in detention, and cited reports of sexual or physical abuse in detention facilities. One commenter referenced a guard at the Berks facility who was convicted of raping a woman in front of her three-year old son. One commenter referenced a ProPublica investigation that found patterns of abuse of immigrant children in Federal custody.

Response. ICE facilities are inspected for safety by state and Federal inspectors. The examples put forth by commenters of injuries sustained by children are isolated incidences and not a pattern from unsafe conditions. DHS is acutely aware of safety standards and ensuring that anyone in DHS custody, but especially children, are housed in safe and sanitary conditions. With respect to housing at ICE facilities, DHS notes that it has systems in place to ensure the safety of the minors, such as the “Standards To Prevent, Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities” (PREA) regulations and housing classifications that use restrictions by age and gender to inform the placement of families. Children remain in the care of their parents while housed at FRCs.

Regarding the commenter's reference to the incident at Berks, DHS followed the Prison Rape Elimination Act of 2003 (PREA) protocol and other applicable policies to appropriately address the situation. The guard involved was immediately terminated from his position and ultimately prosecuted for his crime. ICE fully cooperated with local law enforcement in all stages of the investigation and prosecution of the case. DHS strives to ensure that nothing remotely similar ever occurs in its facilities.

DHS notes that all ICE facilities, including FRCs, are subject to PREA regulations. DHS also has several policies on point and requires staff to participate in annual training related to PREA and sexual abuse and prevention initiatives.

Secure Facilities (§ 236.3(i)(1) and (2))

Comments. Several commenters expressed concern that factors proposed in the regulations for determining whether a child belongs in secure detention are overly broad, vague, or do not sufficiently incorporate the terms of the FSA. One commenter wrote that this section is in conflict with the TVPRA's rules for when the government may place a child in secure detention, section 235(c)(2) of the TVPRA, because it broadens the criteria under which a child may be placed in a secure facility beyond the two factors contained in the TVPRA. The commenter stated that it is inadequately clear what would constitute a “pattern or practice of criminal activity” for a minor under this regulation, that the term “probable cause” is too vague, and the agencies are not able or qualified to make such a determination. The commenter also argued that the language should include the FSA's list of examples of isolated and nonviolent offenses and petty offenses that would not rise to the level of justifying secure detention and its required finding that the child's action involved violence against a person or the use or carrying of a weapon.

Several commenters wrote that § 236.3(i) affords an inappropriate level of discretion to DHS and shelter staff in determining a minor's placement in a secure facility. The commenters stated that this section provides no clarity as to what would constitute an unacceptable level of disruption, how or on what basis staff will make the dangerousness determination, and which party will be responsible for making the determinations. One commenter recommended deleting provisions (i)(1)(i), (ii), (iv), and (v) as unacceptably broad and arbitrary language and noted that similar language included in the FSA has been interpreted by immigration officers to allow placement of a child in secure detention for minor matters such as shouting or smoking a cigarette. With respect to the language at (i)(1)(vi), the commenter recommended that the proposed rule add a separate provision that when a minor is at a demonstrated risk of harm from smugglers, traffickers, or others who might seek to victimize or otherwise engage him in criminal, harmful, or exploitative activity, the minor shall be placed in the least restrictive developmentally appropriate placement consistent with his safety and the safety of others. A few commenters stated that the rule must include a provision) for a periodic reassessment of a minor's placement in a secured facility at least every 30 days, as required by the TVPRA and a provision for independent review of a placement decision that satisfies due process requirements.

A few commenters wrote that studies show that LGBT youth face harsher penalties when engaging in the same behavior as their straight and cisgender counterparts, and that therefore the proposed rule's inclusion of “chargeable” offenses is more likely to subject LGBT youth to placement in secure facilities. One of the commenter also wrote that including “engagement in unacceptably disruptive behavior that interferes with the normal functioning” of the shelter as a chargeable offense will likely lead to placement of more LGBT in secured facilities, because studies have shown that in the juvenile justice context LGBT youth are more likely to face criminal consequences for engaging in consensual sexual activity than straight or cisgender youth, and also that such conduct may be considered “unacceptably disruptive behavior” in detention facilities. These commenters also wrote that the placement of more LGBT youth in restrictive settings would increase the vulnerability of those minors to abuse.

One commenter wrote that the proposed rule's omission of medium security facilities as an alternative detention facility is in violation of the FSA. The commenter noted that paragraph 23 of the FSA requires medium security facilities as one alternative in certain circumstances, but that the proposed rule states that because DHS only operates secure and non-secure facilities, a definition for medium security facilities is unnecessary. The commenter believed the proposed rule should be amended in order to implement the FSA's terms.

Other commenters argued for additional provisions that should have been included relating to the placement of children in restrictive settings. This included a proposal that in determining placement in a secure facility, threats from a juvenile be “credible and verified” (as opposed to just credible threats as discussed in the proposed rule). Further, one commenter was concerned that “disruptive behavior” is too subjective as a criterion for placement in a facility and should be replaced. Additionally, one commenter proposed that secure placements should include the consultation of a mental health specialist.

Response. As explained in the NPRM, the proposed regulation reframed the FSA requirements for placing a child in Start Printed Page 44437a secure facility from a negatively worded list to an affirmatively worded list. The FSA says that the provisions “shall not apply” in many instances. The proposed rule explains exactly when the provisions will apply. Not only was this done for clarity, but because the former INS and now DHS have found over 20 years of practice, that the FSA provisions are confusing enough that they may, in fact, result in placing more children in secure facilities than DHS believed should be subject to such provisions. DHS has been using this limited interpretation to use secure placement even though a different reading of the FSA may have resulted in more secure placements.

DHS also notes that the FSA did not define probable cause and neither did the proposed regulation, because this is a legal term of art that is already well-defined in case law and does not need to be defined in regulation. DHS also disagrees with one commenter's assertion that the secure placement provisions conflict with the TVPRA's requirements. Section 235(c)(2) of the TVPRA applies specifically to UACs, and does not apply to the minors in DHS custody who are not UACs.

One commenter brought up the possible disparity in treatment for LGBT youth. Specifically, this commenter presented data that LGBT youth are more likely to be charged with crimes because they are more likely to get into altercations due to their LGBT status. DHS takes all of this into consideration, and as stated above uses its discretion to ensure that no one is placed in secure facility that does not need to be in one. DHS believes that the proposed text rewording this provision actually lowers the chance for LGBT youth to be placed in secure facilities, rather than increasing it.

DHS declines to implement one commenter's suggestion that threats be “verified” in addition to “credible.” The language of the FSA permits detention in a secure facility for “credible threats.” Implementing an additional requirement that the threat be “verified” imposes a vague, unduly restrictive requirement upon DHS officers that is not otherwise required under the law and could ultimately place other minors at risk.

DHS disagrees with one commenter's assertion that FSA paragraph 23 requires the use of medium security facilities as part of DHS operations and that DHS is accordingly failing to implement the terms of the FSA by not using medium security facilities. The purpose of FSA paragraph 23 is to ensure that minors are not placed in a secure facility if less restrictive alternatives are available. Thus the paragraph, by its terms, does not require DHS to use medium security facilities for this purpose. DHS abides by the criteria of the FSA when determining whether a minor should be placed in a secure facility. Those requirements are codified in regulation through this final rule.

Non-Secure (§ 236.3(i)(3))

Comments. A commenter stated that the Federal Government should not give States the responsibility to determine whether their detention facilities are non-secure because this will mean that the definition of a non-secure facility may vary state by state.

Response. FSA paragraph 6 requires a licensed facility to be “non-secure as required under state law” and licensed by an appropriate State agency. The proposed regulations generally mirror the FSA. For additional discussion of the definition of non-secure, please see the non-secure definition in Section B.2. Definitions.

Standards (§ 236.3(i)(4))

Comments. Multiple commenters stated that the proposed regulations would result in inadequate conditions that were neither safe nor humane for children. Several commenters stated that the proposed standards failed to meet the FSA standards for adequate food, water, and medical care and that the FSA standards should be retained. Some commenters reiterated the Federal Government voluntarily entered into the FSA, which requires that facilities provide children in their custody with access to sanitary and temperature-controlled conditions, water, food, medical assistance, ventilation, and adequate supervision, and contact with family members and that facilities ensure that children are not held with unrelated adults.

Numerous commenters raised concerns about reports of children suffering from subpar conditions and abusive treatment in detention centers. One commenter argued that existing facilities fail to comply with nutritional standards of the FSA and that families often do not have access to adequate food, water, or clothing. Some commenters asserted that the current detention centers fail to provide basic necessities, with children being unable to sleep from the lights shining all night, a lack of bedding, open toilets, being crammed into cages, icy temperatures and a lack of pediatricians, child and adolescent psychiatrists and pediatric nurses. Some of these commenters stated that constant illumination causes sleep deprivation, affects circadian rhythms, and causes loss of muscle strength and inflammation. One commenter reported that she had twice toured the Tornillo Port of Entry Shelter and witnessed young children suffering from separation anxiety and other negative mental and physical effects due to incarceration and separation from their families. Two DHS medical professionals who had inspected existing facilities reported instances of neglect of children caused by failure to assess or accommodate the nutritional and medical needs of child detainees, including an infant who lost a third of its body weight due to an untreated disease, children vaccinated with adult doses, and children not being visited by a pediatrician in a timely manner.[28] An immigration attorney commented that her client's nine-month old infant was not treated for pneumonia for over two days and that the mother and infant were not given any warm clothing and fed only three bologna sandwiches in a two-day period, which the child could not eat. Another commenter stated that in the Berks, Pennsylvania, facility, infants had been sent to the emergency room due to dehydration. Several commenters stated that there had been misconduct at existing government facilities, and cited a court order and a news report stating that facilities had provided medication to minors without parental consent, including psychotropic drugs, given psychotropic drugs disguised as vitamins and forcibly injected minors with sedatives. Commenters cited two DHS experts who reported that one facility was using medical housing for punitive segregation of families and children, which according to the commenters violates the standard of care for any detained person.

Several commenters objected to the proposed regulations on the ground that they would permit facilities to deny access to food, water or medical care in the event of an emergency. These commenters stated that emergency food and water should be readily available in advance of such emergencies and that the regulations should be amended to require provision for the basic needs of minors, regardless of whether there is an emergency. One commenter encouraged DHS to ensure that meals meet nutrition standards established by the U.S. Departments of Agriculture and Health and Human Services. The commenter said that breast-feeding infants should continue to have access to milk from Start Printed Page 44438their mothers in all situations and DHS should identify those with special health care needs and to provide appropriate treatment according to evidence-based guidelines for care.

Response. DHS proposed to adopt the substantive standards of FSA Exhibit 1, and thus DHS disagrees with the commenters' characterization that the proposed standards fail to meet the requirements for food, water, and medical care required by the FSA. DHS proposed simply to adopt the substantive standards of FSA Exhibit 1. DHS notes that several of these comments appear to misunderstand the different types of facilities that are used to house minors by different components of DHS as well as its sister agencies.

DHS reiterates that these standards in § 236.3(i)(4) apply to the non-secure, licensed facilities used for housing family units—FRCs. At least some of the comments, however, appear to describe conditions at CBP facilities, which aliens may pass through during initial processing when first encountered. These facilities are not required to abide by the same Exhibit 1 standards under the FSA, which § 236.3(i)(4) incorporates. For instance, CBP processing facilities are very different from ICE FRCs. They operate 24/7 and thus need to have lights on at all times. These CBP facilities may also have temporary holding areas that are divided up that help separate minors and UACs from unrelated adults for the safety and protection of the children. Regardless of facility type, all DHS facilities (including CBP and ICE facilities) will continue to abide by the applicable standards that are consistent with the FSA, which are substantively incorporated into these regulations. Additionally, as described above, all DHS facilities are subject to inspection and monitoring by bodies such as the DHS OIG, DHS CRCL, and the GAO. CBP also has various internal methods for monitoring compliance with requirements that derive from the FSA, including the requirement that agents and officers document the provision or availability of all those requirements, as well as monitoring and inspection by CBP's Juvenile Coordinator and CBP's MID and OPR.

Regarding the comments relating to specific allegations of mistreatment and neglect of individuals in DHS custody, without sufficiently detailed information DHS is unable to investigate or otherwise substantiate these claims. DHS takes all allegations of misconduct seriously, and all allegations are referred to the appropriate investigative entity (e.g., the ICE and CBP Offices of Professional Responsibility, the DHS OIG) for investigation and appropriate action.

Regarding comments related to emergencies, DHS notes that DHS facilities are equipped to provide bare essentials during emergencies; however, if evacuation is warranted during weather-related or other situations, it may become necessary to abandon everything and move minors and UACs to safety, which may include not providing them with a meal or snack at the designated time. The FSA does not speak to the issue of meals during emergencies. It only spoke to the ability to transfer children during an emergency. The proposed regulations speak to the same provisions during emergencies, recognizing that true emergencies are fluid and it is thus difficult to codify specific requirements in regulations in advance.

Regarding the comments about the use of psychotropic drugs, DHS notes that the news articles mentioned referred to allegations against HHS. HHS emphasizes that the primary mission and daily commitment of its UAC Program is to safeguard the health and wellbeing of children in our custody and care. HHS does not condone medicating a child for punitive reasons. All ORR staff and contractors engaged in the direct care of UACs are mandated reporters with the expectation that they will immediately seek to protect any UAC in our care from such harm and report to law enforcement and other appropriate authorities any allegation of abuse. Many UACs have endured extraordinarily challenging and traumatic childhood experiences that can manifest into mental illnesses—whether acute or chronic. In some cases, UACs are diagnosed and prescribed psychotropic medication by licensed psychiatrists. Furthermore, ORR only authorizes UACs to receive psychotropic medication to treat the specific diagnosis identified by licensed mental health professionals. In cases where ORR is able to locate and correspond with a UAC's parent or legal guardian, ORR informs the parent of the UAC's diagnosis, seeks their input on the course of treatment, and obtains their consent to administer medication. ORR care provider facilities are required to abide by state law. State law regulates the facility and mental health professionals' usage of psychotropic medication as well as the manner and reasons for administering the medication.

Interpreting Services (§ 236.3(i)(4))

Comments. Several commenters stated that FRCs would be unable to provide adequate medical care because the facilities lack the necessary interpretation services for non-English language speakers. Several commenters noted that DHS has had difficulty providing language services for detained individuals, especially those that speak indigenous languages and that even telephonic translation has not been available in emergency situations. These commenters explained that without adequate interpretation services, individuals will be unable to properly communicate with the medical professions or understand their medical situations. Additionally, several commenters pointed out that in emergency situations, there is no reliable mechanism to allow detention center staff members to communicate effectively with all detainees.

Response. As stated above, DHS has put systems in place to provide appropriate language services for communications with minors. Whether it is during an emergency or during normal business operations, DHS typically is able to get the needed interpreter services very quickly and efficiently.

Provision of Medical Services (§ 236.3(i)(4)(ii))

Comments. Several comments focused on deficiencies in the existing and proposed provision of medical services. A medical doctor commented that the standards should include specialized training of medical professionals and staff due to the unique and complex problems present in a detention setting with children, including language barriers, limited resources, and lack of information about previous care. One commenter noted that there is no mechanism for health professionals to regularly monitor the conditions in DHS facilities and their appropriateness for children. Another commenter stated that detained minors are not given access to adequate or appropriate immunizations. One commenter stated that medication was confiscated and that limited medical screenings are conducted by non-medical staff, and another commenter observed that DHS has been unable to provide adequate observation of minors with suicidal tendencies or screening of minors for trauma. Still another commenter objected that the proposed regulations fails to require trauma informed care programming and to require facilities to screen for trauma, requirements the commenter viewed as essential to providing adequate medical care to individuals.

One commenter stated that the proposed regulations create an Start Printed Page 44439administrative process that is inconsistent with the health needs of infants and young children because detention facilities are inadequately staffed with medical, mental health, and nutrition professionals. This commenter cited to instances of neglect of infant and children's nutritional needs. Additionally, this commenter cited articles regarding the benefits of breastfeeding, expressed concern that detained infants may lose access to breastmilk because of a breastfeeding mother's lack of access to a breast pump, supplemental foods that ensure a breastfeeding mother can produce enough breastmilk, and complimentary foods that assist the infant with the transition to solid food.

Several commenters stated that while ICE detention facilities are legally required to act affirmatively to prevent disability discrimination, minors with disabilities in detention centers have not been consistently provided appropriate accommodations, specialized medical care necessary to treat minors with disabilities and chronic health problems is nonexistent, and other critical services such as physical, occupational, and speech therapy and other early interventions are not generally available. These commenters note that these minors are particularly vulnerable, particularly when separated from their parents they lose their primary caregivers who possess knowledge of their health problems and the care they need. One commenter noted that there are reports of children with disabilities being restrained or sent to psychiatric hospitals or secure facilities because of behavioral issues that they cannot control except with proper medical care.

One commenter wrote that long-term detention of alien children constitutes a serious risk for infection disease and that those coming from particular geographic regions or at-risk populations are more prone to serious, and highly infectious, diseases such as tuberculosis and pneumonia. This commenter wrote that a minimum standard of care in a detention setting requires administration of appropriate screening tests (including for tuberculosis, pneumonia, and sexually transmitted diseases), interpretation and patient follow up for at-risk individuals, and sufficient resources for separation or isolation of potentially infectious individuals.

Response. The proposed regulations mirrored the FSA requirements for medical care. Medical care is provided in accordance with American Medical Association standards. As stated above, FRCs have medical staff on-site to care for family units. They provide age appropriate vaccines and care for minor illnesses. FRCs refer any emergent or serious cases to hospitals for care as needed. Medical staff also make referrals to specialists as appropriate. Since parents are housed with their children at FRCs, they can make decisions regarding the care and treatment children receive at FRCs. Minors with special needs are evaluated in accordance with the FSA. In addition, individuals with disabilities are treated in accordance with specific laws and policies that provide for the provision of reasonable accommodations. See the section titled “Standards for Minors with Disabilities” immediately below for a more detailed response.

Standards for Minors With Disabilities (§ 236.3(i)(4)(iii))

Comments. Several comments were submitted concerning the standards of care of minors with disabilities. Some commenters stated that the proposed regulations do not contain enough guidance regarding the consideration of disability as part of placement determinations for children, and that requiring a psychologist or psychiatrist to determine whether a child is a danger to themselves or others is too little, too late to protect those with disabilities. One commenter wrote that the proposed rule should take into account studies suggesting that youth with disabilities in secure facilities are at high risk of unmet health needs, failure to provide appropriate accommodations, and harmful conditions, including use of restraints and solitary confinement. Another commenter stated that few children, if any, are screened for disability-related issues upon transfer from ICE to ORR custody, and a different commenter expressed concern that the proposed rule fails to guarantee special education for children with disabilities, in conflict with the U.S. Supreme Court case Plyer v. Doe, 457 U.S. 202 (1982), and The Individuals with Disabilities Education Act.

Response. The proposed regulatory language requires DHS and HHS to consider a minor's special needs, including provisions requiring consideration of special needs when determining placement. For example, 45 CFR 410.208 states that ORR will assess each UAC to determine if he or she has special needs and will, whenever possible, place a UAC with special needs in a licensed program that provides services and treatment for the UAC's special needs. Title 8 CFR 236.3(g)(2) requires DHS to place minors and UACs in the least restrictive setting appropriate to the minor or UAC's age and special needs. Title 8 CFR 236.3(i)(4) requires that facilities conduct a needs assessment for each minor, which would include both an educational assessment and a special needs assessment. Additionally, 8 CFR 236.3(g)(1) requires DHS to provide minors with Form I-770 and states that the notice shall be provided, read, or explained to the minor or UAC in a language and manner that he or she understands. These provisions ensure that a minor or UAC's special needs are taken into account, including when determining placement.

In addition to these provisions, ICE has policies and regulations in place that protect individuals with disabilities and implement section 504 of the Rehabilitation Act of 1973. For example, 8 CFR part 15 prohibits discrimination against individuals with a disability, and requires that DHS facilities be accessible. In addition, specific policies prohibit discrimination and address how detainees with a disability may be provided with a reasonable accommodation. The Family Residential Standards require that minors have an Initial Education Assessment completed within three days of their arrival at the facility. Through this process, minors with learning disabilities are identified and provided with an Individual Education Program and access to special education services.

Education (§ 236.3(i)(4)(iv))

Comments. Multiple commenters stated that the proposed regulations would fail to provide adequate educational opportunities for minors and that placing minors in detention would negatively impact their educational development. A few commenters citied multiple studies to show that long-term detention of any form, even with a parent, has lasting negative effects on learning and development of minors, and especially young children.[29] Several commenters stated that minors in detention facilities are not receiving appropriate and challenging coursework that align with state or local educational standards, and as a result typically are unable to make meaningful academic progress. One commenter stated that children should not be deprived of education during detention because that would result in uneducated or illiterate future members of the community, who would be a detriment to the country.

Start Printed Page 44440

One commenter stated that the minors should be placed in public schools in order to obtain necessary health socialization with other children and adults and avoid becoming second class citizens. Other commenters cited reports to show that children succeed emotionally and academically when they live in a stable home with an adult they trust and learn in a normal, structured and supportive classroom and not when the children are kept in indefinite detention without adequate services and protections. Commenters also cited to a study of children in immigration detention facilities in Australia, the United Kingdom, and the United States that shows that children react to detention with extreme distress, fear, and helplessness, all of which can result in a deterioration of functioning and impair the ability to learn.

Commenters stated that the proposed rule provides no assurance that the detention facilities will comply with the FSA's minimum standards for educational services and that the proposed rule does not address how DHS and HHS specifically intend to provide educational services appropriate to the minor's level of development in a structured classroom setting, as required by the FSA. One commenter stated that the proposed standards eliminate the requirement to provide education in languages other than English and, as a result, fail to ensure the minors are instructed in a language they can understand. Some commenters noted that DHS has had problems staffing detention facilities with bilingual teachers to meet the necessary educational needs, including special education services. Other commenters asserted that in unlicensed “emergency” or “influx” facilities, the Departments may opt to provide no educational services at all.

Response. The proposed regulations mirror Exhibit 1, paragraph 4 of the FSA except that the requirement for instruction in the minor's native language, which is substituted with a requirement the educational program design be appropriate for the minor's estimated length of stay and can include the necessary skills appropriate for transition into the U.S. school system. In practice, most educators who teach at FRCs are bilingual, typically in English and Spanish, and provide individualized education in a manner designed to be most effective for the minor. However, during a true emergency where children are evacuated to a different facility, it is likely that educational programs will be suspended just as they would be in the local public school system under those same circumstances.

It is unclear why commenters believe that this regulatory requirement would allow DHS not to provide educational services. The same requirements for a structured classroom setting are in both the FSA and the proposed regulation. There is no requirement in the FSA requiring the government to explain how it plans to provide the educational services. It has been doing so for 20 years and the regulations will mandate that it continue to do so.

Recreation Time (§ 236.3(i)(4)(vi))

Comments. Several commenters stated that the proposed standards would provide minors and their families with insufficient opportunity for recreational activities. One commenter stated that recreational and social enrichment activities, such as opportunities for physical activity and creative expression, should be required. This commenter stated that at a minimum, the outdoor and major muscle activity standards set by the FSA should be retained. Some commenters stated that 13,000 children in custody have no recreational and educational opportunities in tent cities, but these commenters provided no data to support this contention.

A mental health professional wrote that adequate opportunities for play should be provided for young children separated from their parents because at that age all psychological issues, including grieving, are resolved primarily through play. According to the commenter, younger children will need opportunities to focus on grieving to allow them to focus on other tasks when needed, and that adolescent children need structured opportunities to gain a sense of control in their lives and information about their early history so as to avoid suicidal or antisocial tendencies.

A different commenter stated that providing daily activities for minors in the detention center means that detention facility staff replace parents as authority figures, parents do not have a say in how their children are treated, and the staff that interact most with minors during their recreation time are the lowest paid staff with the least amount of training and experience, which leads to widespread behavioral problems and mistreatment of the children by the staff.

Response. As stated previously, § 236.3(i) is about ICE facilities. The proposed regulation reflected all of the requirements of paragraph 5 of the FSA in requiring recreation and leisure time activities, including outdoor activities when weather permits. The commenters did not explain why the FSA requirements are not sufficient to implement the FSA. Some commenters stated that children's time was being taken up by activities that kept them from their parents, but any activities outside the 1-3 hours required by the FSA are strictly voluntary on the part of both the parents and children in ICE facilities. It is unclear from the examples provided by the commenters which particular activities they believe were causing parents to feel that they were being deprived of time with their children and creating antisocial and suicidal tendencies in their children.

In response to the comment about “tent cities,” DHS believes commenters are referring to HHS operations. The commenter may be addressing concerns regarding the Tornillo Influx Care Facility, which was closed and dismantled in January 2019. HHS notes that at no point did ORR house 13,000 UAC in “tent cities.” HHS addresses concerns and comments on the Tornillo Influx Care Facility in its response below at “Procedures During an Emergency or Influx (45 CFR 410.209).”

The effects of trauma from the journey to the United States and detention in general are discussed in the trauma section.

Mental Health and Counseling (§ 236.3(i)(4)(vii) and (viii))

Comments. Several commenters expressed concern that the proposed regulations would not ensure appropriate mental health services. One commenter stated that detention facilities are not covered by HIPAA and thus social workers' notes may be used against the minors and their families in their deportation hearings when the children believe that the information will be kept confidential. This commenter pointed out that minors are unlikely to confide in social workers if they know that the information will not be kept confidential and this is detrimental to the minors' well-being and mental health. Another commenter stated that the proposed language could lead to fewer minors receiving counseling and a reduction in the length or quality of group counseling because the proposed language only requires a mental health wellness interaction and allows to be performed during other activities. The commenter also stated that the standards fail to require facilities to create appropriate rules and discipline standards and also fail to maintain the FSA limits of discipline standards.

Several commenters expressed concern that the FRCs would be unable Start Printed Page 44441to provide adequate mental health services in a compassionate and responsive manner. One commenter stated that facilities must have mental health professionals that speak Spanish, have training in cultural diversity, and have experience with trauma. One commenter stated that meaningful access to trauma-informed mental health care, especially in the cases of sexual assault, is critical. A medical association recommended that each facility staff their leadership teams with psychiatrists to care for persons suffering post-traumatic symptoms and other migration-related syndromes of distress.

Response. In response to comments expressing concern over alleged lack of confidentiality of ICE detainee health records and the potential that some minors may forgo mental health treatment because of this concern, IHSC advises that, although ICE health records are not subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), ICE detainee health records are kept confidential as a matter of policy, and access to such records is restricted. In most cases, a detainee's health information will not be released unless the detainee signs an Authorization to Disclose/Obtain Information from their health record. In addition, employees are required to sign and annually affirm a statement to protect and maintain the confidentiality and privacy of patient care information. While it is true that detainee health records may, in some instances, be disclosed without consent, this practice is authorized under the Alien Health System of Records Notice (SORN) [30] consistent with DHS's mission to fully execute its law enforcement and immigration functions. In addition, such disclosures are also permitted under certain limited routine uses identified in the SORN. Pursuant to the SORN, however, DHS notes that this information may only be released for a purpose consistent with the purpose of the initial information collection. Thus, concerns that detainee health records will somehow always be relevant to a minor's removal proceeding such that an immigration judge will allow routine use of such records as part of a removal case are purely speculative and unfounded.

With respect to the remaining concerns about the provisions related to mental health counseling, DHS notes that the proposed regulatory text mirrored Exhibit 1, paragraphs 6 and 7 of the FSA regarding individual and group counseling sessions. DHS added provisions to allow for assessments when minors refused to participate in counseling sessions and to combine the group sessions with other structured activities to remove the stigma of a “group counseling session” and encourage all minors to attend. DHS's years of experience have shown that too many minors decline to participate in counseling sessions when they are designated as such, and that children are more likely to participate in DHS group sessions are combined with other events. For those instances where children decline individual sessions, a mental health wellness interaction at least allows a counselor to do a wellness check and may be to get the minor to open up and have what professionals would call a counseling session. Adhering to the strict requirements of the FSA would not be workable, especially for teenagers who do not believe they will benefit from counseling.

Contact With Relatives and Attorneys (§ 236.3(i)(4)(xi), (xii), (xiii), and (xv))

Comments. Several commenters expressed concerns about the complexity of communications with individuals in detention. One commenter stated that it is extremely complicated for individuals, particularly children, to make phone calls in the detention center to their non-detained family and/or attorney because the detainee must either make a collect call or purchase a calling card. This commenter also noted that there is no method for non-detained individuals, such as attorneys or parents of detained minors, to make a phone call to a child in DHS custody. Another commenter stated that minors in existing facilities have been denied the opportunity to talk to family on the phone. One commenter expressed concern that the language in section 236.3(i)(4) regarding a minor's right to communicate privately and visit with guests, family members, and counsel is too restrictive and qualifying. The commenter recommended that detained minors have the right to receive regular and frequent visits from family and friends in circumstances that respect the minor's needs for privacy, contact, and unrestricted communication.

One commenter stated that proposed § 236.3(i)(4)(xiii) inappropriately restricts a child's ability to communicate with adult relatives in the United States and abroad to legal issues only when it is deemed “necessary.” This commenter noted that there is no definition of “necessary” or who makes that determination, and no justification for why detained minors should not universally be afforded visitation and contact with family members.

A foreign government wrote that, in accordance with the provisions of the Vienna Convention on Consular Relations, the proposed rule should grant access to consular officials to visit and interview alien children in the different stages of their processing.

Response. Non-secure, licensed ICE facilities must abide by standards that are set forth in 8 CFR 236.3(i)(4). A minor has the right to visitation and contact with family members, regardless of their immigration status. See 8 CFR 236.3(i)(4)(xi). DHS structures the visitation and contact with family members to encourage this visitation including requiring the staff at the ICE facility to respect the minor's privacy while reasonably preventing the unauthorized release of the minor and the transfer of contraband. A minor has a reasonable right to privacy in the facility which specifically includes the right to talk privately on the phone and visit privately with guests, as permitted by applicable facility rules and regulations. See 8 CFR 236.3(i)(4)(xii)(C) and (D). In addition to the right to talk privately on the phone, the DHS regulations specifically note that when necessary, arrangements will be made for communication with adult relatives living in the United States and in foreign countries regarding legal issues related to the release and/or removal of the minor. See 8 CFR 236.3(i)(4)(xiii). A commenter expressed concern about the “when necessary” language, but that language is used to convey that in most cases there would not be a need to communicate with other adult relatives because the minor is in custody with his or her parent. But nevertheless, if there is such a need it can be accommodated. Additionally, the minor has the right to receive and send uncensored mail unless there is a reasonable belief that the mail contains contraband. See 8 CFR 236.3(i)(4)(xii)(E). All residents at FRCs have access to the internet to receive and send email.

One commenter stated that the regulations should grant access to consular officials to visit and interview minors in the different stages of their processing. The Vienna Convention on Consular Relations notes that consular functions include helping and assisting nationals, both individual and corporate, of the sending State; safeguarding the interests of minors; and representing or arranging appropriate representation for nationals of the sending State before tribunals and other authorities of the receiving State. See Article 5(e), (h), and (i). In addition, the Start Printed Page 44442Convention states that consular officers shall be free to communicate with nationals of the sending State and to have access to them; that the receiving State shall inform the consular post, if the national of the sending State so requests, of their detention; and that consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention to converse and correspond with the national and to arrange their legal representation. See Article 36. DHS is compliant with the Vienna Convention on Consular Relations and does not believe any changes need to be made to the text of the regulations to accomplish this.

Access to Legal Services (§ 236.3(i)(4)(xiv) and (xv))

Comments. Multiple commenters objected to the proposed rule on the ground that it would provide fewer legal protections for minors who may not understand the concept of the rights they are asked to waive, including an example of a five year old signing away her rights. One commenter asserted that minors must be provided with access to legal representation because children are the most vulnerable individuals in society with the most to lose and their human rights will otherwise be violated. Another commenter noted that children should never be presumed a threat to our society and that expecting minors to make legal arguments without an attorney is unreasonable and unacceptable when their liberty is at stake.

Several commenters expressed concern that the proposed rule would fail to provide minors with adequate access to legal services. Many commenters were concerned about how minors in detention centers would obtain access to legal services and whether minors were being properly apprised of their legal rights. Several commenters stated that minors would not have access to adequate legal services because most detention centers are located in rural and remote areas of the country where there is limited access to qualified immigration legal assistance. A commenter noted that non-profit organizations that provide pro bono immigration services to minors have encountered logistical difficulties accessing minors in detention and more resources must be allocated for each client.

Multiple commenters stated that numerous studies and data show that detention significantly raises barriers to access to legal counsel, but that legal representation was critical to obtaining relief before an immigration judge. One commenter cited research explaining that in Houston from 2007-2012, 13 percent of detained respondents had counsel as opposed to 69 percent of those that were not detained. This commenter noted that immigrants without counsel are significantly more likely to be ordered removed than those with representation and cited supporting data including one study that stated that individuals without attorneys were granted relief at a rate of 4 percent compared to when all indigent immigrants in removal proceedings were provided attorneys and the rate increased to 48 percent.

Some commenters stated that the proposed rule improperly eliminates FSA provisions requiring class counsel's right to attorney-client visits for all types of placements and counsel's right to access facilities where minors have been placed. Another commenter stated that paragraph 32(A) of the FSA provided access to counsel to all children in custody including those whom counsel may not have met before the visit and expressed concern that the proposed regulations do not contain comparable language. One commenter recommended that the proposed rule should guarantee that minors will be permitted to visit with their attorney, child advocate, or other persons necessary for their representation, any day of the week, including holidays, and that such visits should be permitted at any time during the period of at least eight hours a day.

Response. DHS ensures that all minors know of their rights including their right to access counsel by providing them with this information during processing and when they are admitted to a detention facility.

Every minor who enters DHS custody, including minors and UACs who request voluntary departure or request to withdraw their application for admission, will be issued a Form I-770, Notice of Rights and Request for Disposition. See 8 CFR 236.3(g)(1)(i). The Form I-770 includes a statement informing the minor or UAC that they can make a telephone call to a parent, close relative, or friend. This is to ensure that the minor or UAC can contact an individual who has their best interest in mind because, as the above commenter states, children are the most vulnerable individuals in society. Additionally, to make sure that the minor properly understands their rights, proposed § 236.3(g)(1)(i) required the notice to be read and explained to the minor or UAC in a language and manner he or she understands if it is believed (based on all available evidence) that the minor is less than 14 years old or is unable to understand the information. As explained above, DHS is changing this section such that the notice will be provided, read, or explained to all minors and UACs in a language and manner that they understand. Every minor who is not a UAC transferred to or who remains in a DHS facility will also be advised of their right to judicial review and will be provided with a current list of free legal service providers. See 8 CFR 236.3(g)(1)(ii) and (iii).

Additional protections support the right to counsel. Upon admission to a non-secure facility, a minor is provided with a comprehensive orientation including information about the availability of legal assistance, the availability of free legal assistance, the right to be represented by counsel at no expense to the Government, the right to apply to asylum or to request voluntary departure, and the right to attorney-client visits in accordance with applicable facility rules and regulations. See 8 CFR 236.3(i)(4)(ix), (xiv), and (xv). Minors in secure facilities are also permitted attorney-client visits in accordance with applicable facility rules and regulations. See 8 CFR 236.3(i)(2). The Family Residential Standards require access to counsel.

Regarding one commenter's example of a five-year old child signing a legal document that deprived her of her rights, the example may be referring to a New Yorker article about a child who signed an ORR form to indicate she did not need a custody hearing before an immigration judge as allowed for by paragraph 24 of the FSA.[31] This example does not speak to DHS custody of children, but HHS has responded to all substantive comments about its proposal to replace custody determination hearings before immigration judges with independent, internal HHS proceedings at section 410.810 of this rule. With respect to this specific example, HHS notes that both custody hearings under the FSA and the proposed internal hearings under this rule are only for UACs whom ORR will not discharge solely because they would be a danger to community. ORR did not consider the child in the article to be a danger to self or others, nor would it consider any five-year old in its care to be a danger.

Technical Drafting

Comments. One commenter noted that § 236.3(i) lists, as an exception to the least restrictive setting requirement, Start Printed Page 44443“the need to ensure the minor's timely appearance before DHS and the immigration courts” and cross-references 6 CFR 115.14 in doing so. The commenter noted that no such language is included in 6 CFR 115.14, and the group recommended striking the referenced language, as it appears to prioritize appearances before DHS over the minor's special needs and well-being.

Response. DHS notes that 6 CFR 115.14 states that minors shall be detained in the least restrictive setting in accordance with the applicable laws, regulations, or legal requirements. FSA paragraph 14, which this section of the rule implements, recognizes that the Government has the authority to detain minors if it is necessary to secure the minor's timely appearance before the Government or the immigration court, or to ensure the minor's safety or that of others. DHS declines to amend this section.

Prison-Like Conditions

Comments. Multiple commenters stated that the proposed standards would result in conditions similar to prisons and that such conditions were inappropriate for minors. These commenters noted that prison-like facilities are antithetical to the healthy development of children and undermines the ability of parents to properly care for and nurture their children. Several commenters noted that it was never appropriate to place minors in prisons, jails, cages, or freezers and that the FSA explicitly prohibits jail-like conditions for minors.

One commenter said that, nevertheless, facilities for minors required badge checks three times a day, used electronically locked doors for access to basic areas such as the library, and limited and monitored access to telephones and email. Other commenters said that the detention standards would severely restrict the movement and freedom of minors, regulate meal breaks, and result in disruptive bed-checks every 15 minutes at night. They note that “non-secure” as defined in the regulation does not mean that families can come and go as they please, but rather that only one small portion of the facility must be unlocked.

Response. DHS does not put children in jails, prisons, cages, or freezers. Pursuant to § 236.3(i), when minors who are not UACs are detained in DHS custody (that is, when they are detained together with their parents or legal guardians in a FRC), the minors shall be detained in the least restrictive setting appropriate to the minor's age and special needs. Unless a secure facility is authorized under § 236.3(i), the minor will be placed in a licensed, non-secure facility. A non-secure facility means that a facility either meets the definition of non-secure in the State in which the facility is located or if no such definition exists under state law, a DHS facility is deemed non-secure if egress from a portion of the facility's building is not prohibited through internal locks within the building or exterior locks and egress from the facility's premises is not prohibited through secure fencing around the perimeter of the building. See 8 CFR 236.3(b)(11). All FRCs allow families open access during the day to libraries, gymnasiums, and other activities, and access to snacks and telephones in their living areas at all hours.

Although DHS maintains that its FRCs have been and continue to be non-secure, the comments received on this point demonstrate that DHS could take additional steps to ensure the public that DHS has no intention of running FRCs as secure facilities. To that end, DHS will be adding additional points of egress to the Dilley and Karnes facilities by September 30, 2019.

Changes to Final Rule

In response to comments, DHS adds additional language from FSA Exhibit 1 to the regulatory text at 8 CFR 236.3(i)(4).

10. Release of Minors From DHS Custody (§ 236.3(j))

Summary of Proposed Rule

The terms contained in paragraph (j)(1) permitted release of a minor only to a parent or legal guardian who is available to provide care and custody, in accordance with the TVPRA, using the same factors for determining whether release is appropriate as are contained in paragraph 14 of the FSA, once it is determined that the applicable statutes and regulations permit release. Included in the relevant factors typically is consideration of whether detention is “required either to secure his or her timely appearance before [DHS] or the immigration court, or to ensure the minor's safety or that of others.”

The terms contained in paragraph (j)(2) required DHS to use all available evidence, such as birth certificates or other available documentation, to ensure the parental relationship or legal guardianship is bona fide when determining whether an individual is a parent or legal guardian. Additionally, the terms contained in this sub-paragraph required DHS to treat a juvenile as a UAC and transfer him or her into HHS custody, if the relationship cannot be established.

The terms contained in paragraph (j)(3) required DHS to assist with making arrangements for transportation and maintaining the discretion to provide transportation to the DHS office nearest the parent or legal guardian, if the relationship is established, but the parent or legal guardian lives far away.

The terms contained in paragraph (j)(4) required DHS to not release a minor to any person or agency whom DHS has reason to believe may harm or neglect the minor or fail to comply with requirements to secure the minor's timely appearance before DHS or the immigration court.

Public Comments and Response

Comments. Commenters generally disagreed with DHS's assertion that it does not have the authority to release a minor to anyone other than a parent or legal guardian. Several commenters expressed concern that the proposed changes codify family separation by not requiring DHS to consider releasing a parent and child simultaneously. Several commenters pointed to what they generally perceived as flaws in DHS's interpretation of the FSA's “general policy favoring release” as well as the requirement to release minors “without unnecessary delay.”

• Restricting Release to Parents and Legal Guardians Only

Comments. Many commenters expressed concern about restricting release of minors from DHS custody to parents and legal guardians. These commenters pointed to paragraph 14 of the FSA and the current language of 8 CFR 236.3, both of which articulate that minors may currently be released to parents, legal guardians, as well as other “adult relatives.” These commenters stated that restricting release to parents and legal guardians will increase the likelihood of family separation and detention time.

A significant number of commenters expressed concern that the TVPRA did not justify changing the conditions imposed by paragraph 14 of the FSA with regard to families with children, because the TVPRA only addresses unaccompanied children. These commenters further noted that a District Court has held that the TVPRA is not inconsistent with the FSA, and the government abandoned its appeal.[32]

Multiple commenters asked DHS to provide a more detailed justification to Start Printed Page 44444explain why DHS does not have the legal authority to release children to anyone other than a parent or legal guardian, especially in light of rigorous suitability assessments. One of these commenters asserted that “circular citations” in the NPRM made it difficult to assess the rationale behind changing this provision. Other commenters stated that there is evidence indicating that placing a child with extended family members when parental custody is not viable results in improved outcomes for children and that doing so is preferable to detaining children in government custody for an undetermined amount of time.

Multiple commenters stated that the proposed changes create an inconsistency between DHS and HHS release procedures. These commenters stated that it makes no sense for DHS to separate a child from his or her parent, re-designate that child as a UAC, and transfer the child into HHS custody, only to have HHS potentially release that same child to an adult relative sponsor. They questioned why DHS could not simply maintain existing procedures and release minors to adult relatives, as appropriate.

A commenter stated that children who do not have a parent or legal guardian to whom they can be released often have a stronger defense against removal, including but not limited to eligibility for Special Immigrant Juvenile status. One commenter stated that restricting release to parents and legal guardians goes against common cultural practices in other parts of the world where extended family members play a prominent role in providing care and custody of children. Another commenter stated that many refugee children do not have parents in-country and disallowing extended family members from accepting immigrant minors would keep many refugee children in detention unnecessarily.

Multiple commenters expressed concern about DHS not implementing paragraph 15 of the FSA, which according to commenters, allows a parent to appoint a guardian with a notarized affidavit. One of these commenters stated that discontinuing the use of affidavits allowing parents to approve release of their child to an adult relative unnecessarily limits the options available and goes against the FSA's general policy favoring release.

However, one commenter expressed support for the proposed changes and stated that given high absconder rates for minors and UACs, releasing minors to parents or legal guardians places the child in the best position to prepare for immigration proceedings. This commenter noted that the HSA and TVPRA supersede the FSA and therefore DHS does not have statutory authority to release minors to anyone other than parents, legal guardians, or HHS.

• Simultaneous Release of Parent and Child

Comments. Several commenters stated that the proposed changes further codify family separation by eliminating the current requirement that DHS consider releasing a parent and child simultaneously. One commenter pointed Supreme Court's opinion in Flores v. Reno, in which the majority stated, “[t]he parties to the present suit agree that the [INS] must assure itself that someone will care for those minors pending resolution of their deportation proceedings. That is easily done when the juvenile's parents have also been detained and the family can be released together.” This commenter questioned how DHS and HHS can justify departing from the Supreme Court's opinion under the proposed regulations.

One commenter expressed concern that eliminating current requirements to consider simultaneous release of parent and child will lead to either longer detention time for children and/or increased instances of family separation. Other commenters said the proposed changes go too far and eliminate the required evaluation, thereby reducing the likelihood of discretionary exercises of this existing authority. Another commenter stated that forcible separation of children from their parents is generally considered a war crime, or at least morally reprehensible.

• FSA's “General Policy Favoring Release”

Comments. Several commenters expressed concern about the proposed changes not adhering to the FSA's general policy favoring release and family reunification. Another commenter stated that the proposed regulations codify a change from the FSA's general policy favoring release to indefinite detainment. Another commenter expressed concern about longer detention times and costs. This commenter cited a report noting that the Tornillo detention center began operating in June 2018, expanded from 1,200 to 3,800 beds, and now has an estimated monthly cost of $100 million.[33] A commenter expressed concern that the proposed changes contradict Congressional intent that children are to be reunified with a sponsor in the best interest of the child and in the “least restrictive” placement.[34] This commenter stated that the existing regulatory language comports with the fundamental right to family unity, whereas the proposed changes would interfere with this right.

• FSA's Requirement To Release Children “Without Unnecessary Delay”

Comments. Several commenters stated that the proposed changes would delay release and prolong institutionalization swelling an already overburdened HHS shelter system. For example, one expressed concern that parents will not be incentivized to come forward and sponsor their child once they are transferred to HHS, further adding to increased detention times for children. This commenter pointed to an April 2018 Memorandum of Agreement between DHS and HHS requiring the collection of sponsor fingerprints for the purposes of immigration enforcement. Another commenter stated that the proposed changes are at odds with paragraph 14 of the FSA which is the heart of the settlement's protections requiring DHS and HHS to release children without unnecessary delay. A commenter stated this would lead to long detention, placement in long-term foster care, or detention fatigue, potentially forcing a child to accept voluntary departure and risk re-exposure to the danger he or she fled from in the first place, rather than being able to pursue relief in the United States for which the child may qualify.

Response. DHS maintains its position that the FSA, when originally drafted, was never intended to apply to alien minors who were accompanied by their parents or legal guardians. DHS has also found that balancing its enforcement of immigration laws with its obligations to comply with the FSA as the courts have interpreted the Agreement has presented significant operational challenges. Nevertheless, this rule provides for the release of both accompanied minors and UACs, through the existing statutes and regulations, in a way that complies with the intent of the FSA, while allowing DHS to fulfill its statutory requirements.

The TVPRA mandates that the care and custody of UACs is solely the domain of HHS. Absent exceptional circumstances, DHS is required to transfer UACs to HHS within 72 hours of determining that an individual is a UAC. By definition, a UAC is a child Start Printed Page 44445who has no lawful immigration status in the United States, has not attained 18 years of age, and with respect to whom there is no parent or legal guardian in the United States or no parent or legal guardian in the United States is available to provide care and physical custody. 6 U.S.C. 279(g)(2). If a juvenile is encountered with the juvenile's parent or legal guardian, DHS is likely to consider the group a family unit and is unlikely to consider the juvenile a UAC. However, if the parent or legal guardian is required to be detained in a setting in which he/she cannot provide care and physical custody of that juvenile, for instance in criminal custody, the juvenile may become a UAC by operation of law.

If the juvenile becomes a UAC, DHS no longer has the legal authority to provide for the care and custody of the juvenile and must transfer the juvenile to HHS. Because DHS has no authority to provide for the care and custody of UACs, DHS cannot release a UAC but instead must transfer a UAC to HHS.

Regarding commenters' concerns about the implementation of paragraph 15 of the FSA, DHS notes that paragraph 15 does not provide a means by which a parent can appoint a guardian; rather, it requires that a potential sponsor sign an affidavit of support. With respect to the Tornillo facility, DHS notes that it is an HHS facility and § 236.3 does not apply to HHS facilities.

Upon consideration of the comments, however, DHS now agrees that DHS is not statutorily barred by the HSA and TVPRA from releasing a non-UAC minor to someone other than a parent or legal guardian. DHS acknowledges that this interpretation of the law differs from the interpretation DHS represented to the U.S. Court of Appeals for the 9th Circuit in recent litigation,[35] but after considering the comments received on this rulemaking and further reviewing the language of the HSA and the TVPRA, DHS has determined that this revised interpretation of these statutes is the best reading of them, and that allowing for such releases here is necessary and appropriate.

The current text of 8 CFR 236.3(b) permits release of a juvenile to an adult relative, specifically a brother, sister, aunt, uncle, or grandparent, who is not presently in detention. DHS believes that release of non-UAC minors to these other adult relatives may be lawful and appropriate in certain circumstances, provided that the Government has no concerns about the minor's safety upon such release, and it has no concerns about the adult relative's ability to secure the non-UAC minor's timely appearance before DHS or the immigration courts. However, DHS will maintain a presumption for keeping minors with parents or legal guardians. Any release of a non-UAC minor to an adult relative other than a parent or legal guardian will be within the unreviewable discretion of DHS. DHS notes that the TVPRA and HSA provisions that apply to UACs cannot be superseded by the FSA or by existing regulations. The court decisions cited by commenters state that the TVPRA and HSA do not supersede the FSA solely as to the point that the FSA applies to both minors and UACs, and the Government is currently appealing these decisions.

DHS reiterates that it does not hold minors for extended periods of time without their parents or legal guardians, unless these minors are subject to secure detention. Regarding the comments about the FSA generally favoring release, DHS must release minors pursuant to the existing statutes and regulations; this includes release on parole. Consistent with the language of paragraph 14 of the FSA, DHS will consider parole for all minors in its custody who are eligible, and such consideration will include whether the minor presents a safety risk or risk of absconding. DHS believes that paroling such eligible minors detained pursuant to INA 235(b)(1)(B)(ii) or 8 CFR 235.3(c) who present neither a safety risk or risk of absconding will generally present an urgent humanitarian need. For more general concerns about parole, see the discussion above regarding § 212.5.

Changes to Final Rule

Accordingly, DHS amends its proposed regulatory text in 8 CFR 236.3(j) to not preclude release of a non-UAC minor to an adult relative (brother, sister, aunt, uncle, or grandparent) who is not in detention and is available to provide care and physical custody. Such release, if deemed appropriate, will be effectuated within the discretion of DHS. DHS also adds paragraph (j)(4) stating that DHS will consider parole for all minors who are detained pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) and that paroling such minors who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason, and may also consider the minor's well-being. Lastly, DHS adds that it may consider aggregate and historical data, officer experience, statistical information, or any other probative information in making these determinations.

11. Procedures Upon Transfer § 236.3(k)

Summary of Proposed Rule

DHS proposed revisions to § 236.3(k) state that all minors or UACs transferred from one ICE placement to another will be transferred with all possessions and legal property. The proposed regulations added that a minor or UAC will not be transferred until a notice has been provided to their counsel, except in an unusual or compelling circumstance.

Public Comments and Response

Comments. One commenter commented that the requirements for providing notice to counsel prior to transferring a UAC or minor do not align with the ABA UC Standards, which recommends both oral and written notice to the child and his or her attorney prior to transfer to include, (1) the reason for transfer; (2) the child's right to appeal the transfer; and (3) the procedures for an appeal.

The ABA UC Standards further recommend that the notice include the date of transfer and the location, address, and phone number of the new detention facility, and the commenter urged DHS to include these provisions in the rule.

The commenter also raised a concern with the use of the terms “unusual and compelling circumstance” without further guidance. The commenter suggested that DHS adopt the language from the ABA UC Standards, which define “compelling and unusual circumstances” as the child posing an immediate threat to himself or others or the child posing an escape risk. A state agency similarly commented that the exception to providing prior notice to counsel in “unusual and compelling circumstances” is too broad and will “result in arbitrary and capricious application.” Finally, a commenter urged DHS to include language from the ABA UC Standards addressing a right to an independent review of a transfer decision that places the burden of persuasion that a transfer is necessary on DHS and allows a dissatisfied minor or UAC to seek further de novo review in Federal court.

Response: DHS declines to adopt this suggestion to adopt the ABA UC standards because the standards impose requirements on DHS that exceed what the FSA requires and may place an undue burden on DHS operations or compromise the security of UACs and/or minors or DHS personnel and facilities. The proposed regulation at § 236.3(k) incorporates the transfer standards required by the FSA, as amended to account for the changes in law made by the HSA and TVPRA.Start Printed Page 44446

The FSA does not require DHS to provide notice of the transfer of a UAC or minor to anyone other than legal counsel. The FSA does not specify the form in which notice be provided nor does it specify that any other details (i.e., date of transfer, location, address and phone number of new facility) must be disclosed. The FSA does not require DHS to provide an explanation of the reasons for a transfer or provide a process of administrative review and appeal of DHS's decision to transfer a UAC or a minor. However, paragraph 24B of the FSA provides a UAC or minor an opportunity to challenge that placement determination by seeking judicial review in any U.S. District Court with jurisdiction and venue over the matter, and the proposed regulation in § 236.3(g)(1)(ii) and (iii) provide that minors will receive notice of his or her right to judicial review, as well as be provided with the free legal service provider list.

DHS notes that the commenter's concern about the use of the term “unusual and compelling circumstances” without further guidance is misplaced, because the term is taken from paragraph 27 of the FSA. Paragraph 27 provides guidance on what could be “unusual and compelling circumstances,” including “where the safety of the minor or others is threatened, or the minor has been determined to be an escape-risk, or where counsel has waived such notice.” FSA paragraph 27. These illustrative definitions are included in proposed regulation § 236.3(k).

DHS declines to adopt the commenter's suggestion to substitute “unusual and compelling circumstances” as defined in the FSA with the ABA's definition of “compelling and unusual circumstances”; namely: “i. the Child poses an immediate threat to himself or others; or ii. the Custodial Agency has made an individualized determination that the Child poses a substantial and immediate escape risk.” UC Standards section VII.H.2.c. By imposing a heightened standard of danger and escape risk to trigger the exception, the UC Standard definition potentially exposes the UAC or minor and others to a risk of harm or flight that was otherwise mitigated in the FSA. The definition is also unworkable as applied to DHS, because the UC Standards define “Custodial Agency” to exclude an Immigration Enforcement Agency. The UC Standards definition places undue burden on DHS operations and compromises the security of UACs and/or minors and DHS personnel and facilities.

Changes to Final Rule

Accordingly, DHS declines to amend the proposed regulatory provisions regarding monitoring based on public comments, and adopts the language proposed in the NPRM through this final rule.

12. Notice to Parent of Refusal of Release or Application for Relief § 236.3(l)

Summary of Proposed Rule

DHS proposed to move and clarify current regulatory provisions in § 236.3(e) and (f) to a new § 236.3(l) to state that a parent shall be notified if a minor or UAC in DHS custody refuses to be released to his or her parent; or if the minor or UAC request any type of relief from DHS that would terminate the parent-child relationship, or the rights or interest are adverse to that of the parent(s). The proposed regulation balances the minor's or UAC's desire to take an action adverse to the wishes of his/her parent with the parent's or legal guardian's right to be notified and present their views to DHS, especially if the adverse action would terminate the parent-child relationship. The proposed regulatory text, as with existing regulations, does not allow the parent to request a hearing on the matter before an immigration judge.

Public Comments and Response

Comments. One commenter stated that the provision does not meet the stated purpose of this rulemaking because it does not implement the FSA, TVPRA, or HSA, but rather continues this dated provision. Several commenters stated that the proposed language does not explain how DHS will determine when a grant of relief will effectively terminate an inherent interest in a parent-child relationship or how DHS will determine when a child's rights and interests are adverse to the parents' rights and interests. One commenter is also worried that there is no provision in the proposed regulation about how DHS would determine whether such notification is prohibited by law or would pose a risk to the minor's safety or well-being. Another commenter urged a right to appeal.

When the original regulations were promulgated, the INS adjudicated applications and had custody of the children. Some commenters believe that ICE and CBP inherently lack the knowledge needed to understand the risks of revealing the type of application filed by a minor because neither organization knows about the content of immigration applications and might inadvertently put the child at risk or thwart the child's ability to obtain humanitarian relief. These commenters suggest that the complex nature of the issues raised by this provision underscore the need for appointed counsel in immigration proceedings.

Several commenters recommended that DHS be required to appoint an independent advocate to be appointed for each child; one who represents the individual child's best interest and legal needs through the maze of bureaucracy.

Response. DHS has determined that the language of this provision is sufficiently detailed to guide decision-makers and that any further detailed explanation of terms is more appropriate for guidance documents and policies. Given DHS's experience that many legal representatives vigorously advocate for children in immigration proceedings, DHS declines to commit to appointing an independent child advocate at this time.

Changes to Final Rule

DHS declines to expand the provisions of 8 CFR 236.3(l) to provide a detailed explanation of the meaning of the terms in this paragraph.

13. Bond Hearings §  236.3(m)

Summary of Proposed Rule

DHS's proposed revisions to § 236.3(m) state that bond hearings are only applicable to minors who are in removal proceedings under INA 240, to the extent permitted by 8 CFR 1003.19, and who are in DHS custody. DHS has also removed the term “deportation proceeding” from the existing regulation and updated the language with bond hearings to be consistent with the changes in immigration law. The proposed rule also adds language to specifically exclude certain categories of minors over whose custody immigration judges do not have jurisdiction.

Public Comments and Response

Comments. Several commenters wrote about the proposal to update the provision for bond hearings under DHS proposed 8 CFR 236.3(m) and HHS proposed 45 CFR 410.810. Because both provisions related to paragraph 24(A) of the FSA, comments sometimes transitioned fluidly between being directed toward DHS and HHS. The comments submitted can be grouped into two main categories: (1) That the changes to the bond hearing provision are incompatible with the text of the FSA and case law interpreting it and (2) that such changes raise due process concerns.

The most frequent comment was that the proposed transition of bond hearings from an immigration court to an Start Printed Page 44447administrative setting does not comply with the FSA and applicable case law. The commenters reasoned that paragraph 24(A) of the FSA requires minors in deportation proceedings to be afforded a bond redetermination hearing before an immigration judge in every case. They further pointed to the decision in Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017), as evidence that the Ninth Circuit, in interpreting and applying the FSA had already ruled against the government when it argued that the limiting of bond hearings applied to minors in DHS custody only. Many of the commenters pointed to a quote from the court's decision discussing how the hearing is a “forum in which the child has the right to be represented by counsel, and to have the merits of his or her detention assessed by an independent immigration judge.” Another commenter also wrote that the TVPRA and the HSA do not supersede the FSA or allow for inconsistent standards, which the commenter believed would result from the implementation of the proposed rule.

Many commenters wrote that the change threatened the due process rights of UACs. They stated that the proposed rule reverses a child's right to a bond hearing and instead creates an agency-run administrative process that poses threats to due process. These commenters wrote that as a matter of policy, immigration judges are best suited to rule on UAC bond hearings, as they have the relevant background and knowledge base to understand the situation and determine the appropriate course of action. Some of these commenters objected to the standard of proof required in bond hearings and said it should be by clear and convincing evidence. They reasoned that the clear and convincing evidence standard governs almost all civil detentions, with the exception of immigration detention, and a higher standard of proof should be applied where children's rights are at stake. Similarly, one commenter stated that the burden should never be on the child to show that he or she is not a danger to the community or a flight risk and asked that the burden be on the government, not the minor. Commenters also suggested that children and families should have access to legal counsel throughout the “immigration pathway” and that alternatives to detention, specifically “community-based case management” should be the government's default policy. Another commenter wrote urging the appointment of child advocates, hearings within 48 hours of request by child or counsel, and procedures to ensure that all minors are informed of their right to request review of continued detention.

Some commenters who differentiated between the provisions applicable to DHS and HHS, supported or acknowledged that proposed 8 CFR 236.3(m) maintained the process required by FSA paragraph 24(A). One commenter wrote in support of proposed 8 CFR 236.3(m) because the provision clarifies that minors detained in DHS custody but not in section 240 proceedings are ineligible to seek review by an immigration judge of their DHS custody determination, consistent with the TVPRA. Other commenters did not explicitly endorse the provision, but acknowledged that it provided the protections and processes required by the FSA.

Response. For responses to comments relating to the HHS proposed hearings in 45 CFR 410.810, please see below in the HHS section by section comment analysis under § 410.810.

DHS agrees with commenters that the proposed regulatory text at 8 CFR 236.3(m) reflects the requirements of the FSA regarding existence of bond redetermination hearings for minors in DHS custody who are in removal proceedings pursuant to INA 240. The understanding that the term “deportation hearings” in paragraph 24(A) of the FSA refers to what are now known as removal proceedings has been reiterated throughout the Flores litigation. See Order Re: Plaintiff's Motion to Enforce at 2 n.2, Flores v. Sessions, No. 85-4544, (C.D. Cal. Jan. 20, 2017) (“The Court will therefore treat “deportation proceedings” as written in the Flores Agreement as synonymous with “removal proceedings.”); see also Flores v. Sessions, 862 F.3d 863, 869 n.5 (9th Cir. 2017) (“Administrative removal proceedings to determine a non-citizen's right to remain in the United States have been re-designated as `removal' rather than `deportation' under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (1996)”). Accordingly, the terms of FSA paragraph 24(A) requires bond redetermination hearings solely for those aliens who are in removal proceedings under INA 240 and who are otherwise entitled to bond under relevant Executive Office for Immigration Review regulations. Minors who are in proceedings other than removal proceedings under INA 240 (i.e., expedited removal proceedings) are not entitled to bond hearings under the FSA. Under the INA, minors in expedited removal proceedings are not afforded bond hearings; rather, DHS may parole such aliens on a case-by-case basis. See INA 235(b)(l)(B)(iii)(IV); Order Re: Motion to Enforce and Appoint a Special Monitor at 23, Flores v. Sessions, No. 85-4544 (C.D. Cal. June 27, 2017). DHS also notes that arriving aliens, even those in section 240 proceedings, are not entitled to bond. See INA 235(b)(2)(A); 8 CFR 1003.19(h)(2)(i)(B). DHS, therefore, will maintain the proposed language of 8 CFR 236.3(m) in this final rule.

DHS reiterates that the provision applies to minors in DHS custody; DHS has no authority to regulate custody determinations for individuals in the custody of another agency. See generally INA 103(a)(3); 5 U.S.C. 706(2)(c) (considering agency regulations that are “in excess of statutory jurisdiction” to be unlawful). In accordance with the relevant savings and transfer provisions of the HSA, see 6 U.S.C. 279, 552, 557; see also 8 U.S.C. 1232(b)(1), the ORR Director now possesses the authority to promulgate regulations concerning ORR's administration of its responsibilities under the HSA and TVPRA. Commenters who disagree with DHS's limiting proposed 8 CFR 236.3(m) to minors in DHS custody cite to a case relating to UACs and seem to disregard the distinction between DHS's proposed 8 CFR 236.3(m) and HHS' proposed 45 CFR 410.810 custody redetermination regulations for UACs. The commenters aver that minors other than those in DHS custody are entitled to individualized custody hearings. Though it is true under governing case law that paragraph 24(A) applies to both accompanied and unaccompanied minors in removal proceedings such that those aliens are entitled to individualized custody assessments, proposed 8 CFR 236.3(m)—as a DHS regulation—cannot extend to the cases of UACs in ORR custody. The paragraph expressly applies only to “minors in DHS custody;” by its terms, the group covered in this regulation does not overlap with the group addressed in the Ninth Circuit's 2017 Flores decision. The Departments refer commenters to HHS' response below, with respect to the hearings under 45 CFR 410.810. Though DHS and HHS hearings are separate and distinct from one another, both Departments are issuing regulations that are consistent with the FSA, HSA, and the TVPRA, and are justified by the different roles of each agency.

Proposed § 236.3(a)(1) codifies the FSA's general policy statement, found in paragraph 11 of the FSA, that minors and UACs in DHS custody shall be Start Printed Page 44448treated with dignity, respect, and special concern for their particular vulnerability. The proposed language at § 236.3(m) does not represent a shifting in the burden of proof applicable in bond proceedings for minors in DHS custody. Aliens in DHS custody who are seeking bond have the burden to show that they do not present a danger or flight risk. See Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006). Immigration Judges have broad discretion in determining whether an alien merits release on bond. See id. But the regulations maintain language from the FSA provision which specifies that a minor be given notice of the right to judicial review in the United States District Court.[36] Thus, the proposed language does not represent a shift from current practices.

Moreover, minors in DHS custody are accorded rights in bond proceedings that extend to aliens generally. An alien in DHS custody who is otherwise entitled to bond may seek a bond hearing before an immigration judge prior to the filing of the Notice to Appear containing the charges of removability. An alien may submit evidence and present arguments as to whether his or her release is authorized under the immigration laws and whether he or she merits release as a matter of discretion. An alien may be represented by an attorney or other representative of his or her choice at no expense to the government; Congress has not provided for government-funded counsel in bond proceedings, or in fact, in any immigration proceedings. Minors subject to 236.3(m) are necessarily not UACs without a parent or legal guardian in the United States available to provide for their care and physical custody. Moreover, bond hearing standards are not so complicated that many minors without representation would be unable to participate in a bond hearing with the assistance of an immigration judge. Aliens may appeal bond redetermination decisions made by an immigration judge to the Board of Immigration Appeals and are informed of their right to review. See 8 CFR 1236.1(d)(4); 1003.19(f).

Changes to Final Rule

DHS declines to amend the proposed regulatory provisions regarding bond hearings based on public comments.

14. Retaking Custody of a Previously Released Minor §  236.3(n)

Summary of Proposed Rule

DHS proposed revisions to § 236.3(n) to state that if a minor is an escape-risk (as defined at § 236.3(b)(6)), a danger to the community or has a final order of removal, DHS may take the minor back into custody. The proposed regulation adds language to explain that if the minor no longer has a parent or legal guardian available to provide care and physical custody, the minor will be treated as a UAC and DHS will transfer him or her to the custody of HHS.

Public Comments and Response

Comments. Several commenters discussed § 236.3(n) in the proposed rule, which would provide for DHS to retake custody of a child when there is a material change of circumstances indicating the child is an escape risk, a danger to the community, or has a final order of removal. Several commenters expressed concern that § 236.3(n) is overly broad, is inconsistent with the FSA, or does not include adequate procedural safeguards to protect a child's rights.

One commenter stated that neither the FSA nor the current regulations provide for retaking custody of previously released juveniles if a juvenile becomes an escape-risk, becomes a danger to the community, or receives a final order of removal after being released. The commenter stated that this violates the FSA and lacks any limitations or procedural safeguards, including any independent review of the decision to retake custody of a child following release from ORR. The commenter additionally suggested, without providing any data to support this, that for-profit detention facilities would benefit from this as it would increase the number of detained persons and DHS could use the proposed regulation to retake custody of a child following an accidental or erroneous in absentia final order of removal.

Another commenter expressed concern that the proposed rule presents a danger for arbitrary application and needless traumatization. In considering retaking custody, this commenter recommended applying the standards for transfer outlined in the ABA's UC Standards.

Several commenters also stated concerns about adequate procedural protections to challenge DHS's actions after retaking custody of a previously released minor. One commenter wrote that the regulation is silent on who bears the burden of proof that there is a material change in circumstances. Several commenters cited a recent ruling on Saravia v. Sessions, No. 18-15114 (9th Cir. 2017), by the U.S. Court of Appeals for the Ninth Circuit, which held that immigrant children are entitled to prompt hearings in which the Government bears the burden of demonstrating why there was a material change in circumstances. One commenter recommended the government immediately provide minors and UACs who are taken back into custody with an opportunity to contact family members as well as their attorneys.

One commenter stated that children who have been released from custody are at risk of receiving a final order of removal, and thus subject to DHS retaking custody, because they have a higher risk of missing a court appearance for reasons that are not intentional. This may be because they are under the control of the sponsor, lack the resources to travel to the immigration court, or are unable to independently seek legal counsel to assist with attendance. Several commenters opined that the rule would result in the increased policing of immigrant and non-immigrant members of communities of color in the country.

Response. DHS disagrees with commenters' statements that this provision presents a “danger of arbitrary application.” Currently, there are no regulatory provisions for retaking custody of a previously released minor. Therefore, this provision is intended to provide regulatory guidance and clarity where it currently does not exist. As noted in the NPRM, a material change in circumstances could potentially be triggered by a released minor later becoming an escape-risk, becoming a danger to the community, receiving a final order of removal, and/or if there is no longer a parent or legal guardian available to care for the minor. DHS notes that the FSA's definition of escape risk allows consideration of, inter alia, whether “the minor has previously absconded or attempted to abscond from INS custody.” This rule would specifically identify absconding from any Federal or state custody as a relevant factor, not just the custody of INS or its successor agencies. This change is consistent with the FSA, which provides only a non-exhaustive list of considerations. The purpose of providing this regulatory clarity is to ensure that release and custody determinations are generally informed by the same factors for consideration (i.e. if a minor is determined to be a danger to the community prior to release, that minor may not be released. Likewise, if that minor later becomes a Start Printed Page 44449danger to the community, DHS seeks to regain custody of that minor).

In response to comments about the lack of procedural safeguards, including burden of proof and independent review of custody determinations, DHS notes that minors who are not UACs and who are taken back into DHS custody may request a custody redetermination hearing in accordance with 8 CFR 236.3(m) of this rule and to the extent permitted by 8 CFR 1003.19.

DHS notes the recommendation to ensure that minors and UACs who are taken back into custody are immediately provided with an opportunity to contact family members or legal counsel. These provisions and other detention standards are incorporated into § 236.3(i) describing standards for detention of minors in DHS custody who are not UACs.

Changes to Final Rule

DHS declines to amend the proposed regulatory provisions regarding retaking custody of previously released minors based on public comments.

15. Monitoring § 236.3(o)

Summary of Proposed Rule

The terms contained in the proposed rule required CBP and ICE each to identify a Juvenile Coordinator for the purpose of monitoring statistics about UACs and minors who remain in DHS custody for longer than 72 hours. The statistical information may include, but would not be limited to, biographical information, dates of custody, placement, transfers, removals, or releases from custody. The juvenile coordinators may collect such data, if appropriate, and may also review additional data points should they deem it appropriate given operational changes and other considerations.

Public Comments and Response

Comments. Multiple commenters expressed concern that DHS's proposed changes would remove important protections for children by limiting monitoring and oversight performed by agencies; decreasing data collection requirements; eliminating attorney monitoring responsibilities; and implementing vague or broad Juvenile Coordinators duties that lack standard and omitted provisions of the FSA.

Some commenters expressed concern with respect to the proposed rule's Juvenile Coordinator monitor provision. Although a few of the commenters acknowledged that language in the proposed rule in part reflects monitoring provisions in FSA paragraph 28A, the commenters argued that the proposed rule omits important collections of information regarding the placement of minors in more restrictive or secure facilities. Additionally, the commenters claimed that the proposed regulation omits associated FSA provisions requiring the Juvenile Coordinator to share reports with Plaintiffs' counsel and permit Plaintiffs' counsel to engage with the Juvenile Coordinator regarding implementation of the FSA. Another commenter complained that the proposed rule would direct the collection of information about minors who had been held in CBP or ICE custody for longer than 72 hours, but this scenario would not require DHS to do anything with this information or to provide it for independent oversight and review, or corrective action. A few commenters cited that paragraph 28(A) of the FSA requires a weekly collection of specific data from all ICE and CBP district offices and Border Patrol stations; however, the proposed rule does not set forth how frequently data collection is required, nor does it require CBP/ICE to collect the same types of information. Another commenter added that the proposed regulations provided no mandatory qualifications for the Juvenile Coordinator and the requirements necessary to become one are broad and unclear. As general practice, the commenter advised that any government official charged with making placement determinations for children, particularly children who have experienced trauma, should be required to have child welfare experience and qualifications, rather than law enforcement expertise. Another commenter recommended expanding immigration courts and appointing guardians for children so they are not alone in the process.

Commenters expressed concern with the Juvenile Coordinators provision, which allows for collection of hearing dates and “additional data points should they deem it appropriate given operational changes and other considerations” for aliens in DHS custody. The commenters voiced concern that statement is extremely broad and does not provide meaningful standards for monitoring. The commenter cited the legal case of Checkosky v. SEC, 139 F.3d 221, 226 (D.C. Cir. 1998). This commenter recommended the Government withdraw the rule or provide specific information about the persons to whom Juvenile Coordinators will report; operational changes and who would determine them; accountability; recordkeeping; resources; qualifications for Juvenile Coordinators; data sharing; the process to receive additional data points or statistical inquiry suggestions; etc.

Some commenters objected to the elimination of the third-party monitoring by Flores plaintiffs' counsel and oversight of compliance with the FSA that results when the FSA is terminated. The commenters recounted recent reports and lawsuits before and after the proposed rule was published that they allege demonstrate the Government has not followed the terms of the FSA with respect to monitoring.[37] Some of these examples involved ORR, (i.e., a July 2018 court order in Flores v. Sessions regarding Shiloh Residential Treatment Center and prescription of psychotropic medications, as well as placement in secure and staff-secure shelters and residential treatment centers (RTCs), and certain policies regarding release (such as requiring post-release service providers to be in place prior to release)). The commenter also noted the appointment of a Special Master/Independent Monitor in October 2018, to monitor compliance with the court's orders and to make findings of fact reports and recommendations.[38] The commenter claimed that the ability of Flores counsel to interview detained children in a confidential way allows them to share information about how they are being treated and has been critical to identify ill-treatment and non-compliance with FSA standards.

Response. Although commenters are concerned that the proposed regulation § 236.3(o) limits the monitoring and oversight of the Government's responsibilities set forth in the FSA, such concerns are misplaced. Many of the data collection, monitoring, and oversight provisions included in the FSA are provisions that were included to guide the operation of the agreement itself and, as such, are not relevant or substantive terms of the FSA. The FSA, as modified in 2001, provides that it will terminate 45 days after publication of final regulations implementing the agreement and accordingly, the terms that are not relevant or substantive, such as certain requirements to report to plaintiffs' counsel and to the court, will cease to apply to the parties to the agreement. DHS, in § 236.3(o), is adopting a policy specifically to provide for the data collection and monitoring to Start Printed Page 44450assist in its own internal monitoring, and while the provisions reflect those, as set forth under paragraph 28A of the FSA, such provision is an internal agency practice. The provisions of paragraph 28A exist solely in order for the Court and plaintiff's counsel to monitor compliance with the terms of the Agreement on behalf of the Class (see, for example, paragraph 28B regarding what plaintiff's counsel should do if the reporting and monitoring lead to reasonable suspicion that a minor should have been released.). That of monitoring provision for counsel is not appropriate for Federal regulations. Moreover, this rule will result in the termination of the FSA making that type of monitoring provision inapt.

The current regulations at 8 CFR 236.3(c) describe the duties of the Juvenile Coordinator, including the responsibility of locating suitable placements for juveniles. The language proposed at § 236.3(o) will provide for monitoring by the Juvenile Coordinators. This regulation will also eliminate the requirement in the current regulations that the Juvenile Coordinator locate a suitable placement for minors, as these duties are generally exercised by immigration officers and other employees at DHS (or by HHS and its grantees for UACs). The Juvenile Coordinator as described in the FSA is tasked with overseeing the compliance with the FSA. The CBP and ICE Juvenile Coordinators as described in the proposed regulation will be tasked with overseeing CBP and ICE's compliance with the regulations. This monitoring may involve whatever actions the Juvenile Coordinators determine is appropriate to monitor compliance, (including, for instance, conducting facility visits, reviewing agency policies and procedures, or interviewing employees and/or detainees). They will not make placement decisions.

As the FSA requires, the Juvenile Coordinators will also continue to collect data about placement in a detention facility. DHS notes that this data is currently collected by the ICE Juvenile Coordinator, as CBP does not maintain data about a minor's placement in a detention facility. Collecting data will be an additional part of the Juvenile Coordinator's duties (in addition to their role monitoring compliance with the terms of the regulations). In this final rule, DHS is amending the regulatory text to clarify that the Juvenile Coordinator's duty to collect statistics is in addition to the requirement to monitor compliance with the terms of the regulations.

The commenters' concerns that this rule omits important collection of information regarding the placement of minors in more restrictive or secure facilities misapprehends the omission of collection of reasons for placement in a detention facility or medium secure facility. In the discussion to proposed regulation § 236.3(b)—Definitions, DHS explains that it does not propose to adopt the FSA's term “medium security facility” because DHS does not maintain any medium security facilities for the temporary detention of minors and the definition is now unnecessary. In addition, § 236.3(o) includes the “reasons for a particular placement” in the list of statistical information that may be collected routinely by the Juvenile Coordinators, and both the discussion of the proposed regulation and § 236.3(o) itself propose two Juvenile Coordinators—one for ICE and one for CBP—and charge each with monitoring compliance with the requirements of these regulations, and with monitoring statistics about UACs and minors who remain in DHS custody for longer than 72 hours.

This requirement to collect statistical information about UACs and minors who remain in CBP or ICE custody for longer than 72 hours will necessarily capture the data set forth in paragraph 28A of the FSA without reference to location or frequency of collection. The proposed regulation specifies the statistical information to be collected as a baseline and allows the Juvenile Coordinators to review additional data points as appropriate given operational changes or other considerations. DHS believes that the commenter's concern that the proposed regulation contains no mandatory qualifications for the Juvenile Coordinator and that any government official charged with making placement decisions should be required to have child welfare experience is misplaced. Section 236.3(o) eliminates the requirement in the current regulation at 8 CFR 236.3(c) that the Juvenile Coordinator locate suitable placements for minors. DHS declines to adopt the commenter's suggestion as the Juvenile Coordinators are not responsible for placement determinations.

DHS rejects the suggestion that the text allowing Juvenile Coordinators to collect information on hearing dates if appropriate and “additional data points should they deem it appropriate given operational changes and other considerations” is overbroad and ill-defined. The proposed regulation allows the Juvenile Coordinators to collect the statistical information, as under paragraph 28A of the FSA, relevant to monitor compliance and allows the Juvenile Coordinators flexibility to consider other data points (including immigration court hearing dates) as appropriate given operational changes and other considerations. Checkosky, 139 F.3d at 226, in which the U.S. Circuit Court for the District of Columbia dismissed disciplinary proceedings against two accountants after the SEC issued multiple inconsistent interpretations of a Commission rule, is inapposite here, since the proposed regulation and discussion make clear the statistical information to be collected and that the Juvenile Coordinators have discretion to collect and review additional data points where appropriate. DHS declines to provide more specific information, as the proposed regulation already provides information adequate to the task of the Juvenile Coordinator and the information covered by paragraph 28A of the FSA.

DHS has carefully considered commenters' proposal to continue monitoring by and reporting to Flores counsel to enforce the FSA but declines to adopt it based on the parties' agreement in 2001 that the FSA will terminate 45 days after publication of final regulations implementing the agreement. DHS is unable to comment on pending litigation concerning the FSA but notes that, though not required, the final regulation will codify the monitoring and statistical information collection requirements in paragraph 28A of the FSA, which do not exist in the current regulations.

DHS also disagrees with the suggestion that it has failed to provide adequate oversight over its detention facilities. DHS is committed to ensuring adequate oversight over its facilities. As described above, ICE FRCs are subject to regular audits by outside entities. Additionally, all DHS facilities (both CBP and ICE) are subject to inspection and monitoring by bodies such as the DHS OIG, DHS CRCL, and the GAO. DHS is also making it clear in this final rule that the CBP and ICE Juvenile Coordinators will have responsibility for monitoring compliance with these regulations, and not merely the responsibility to maintain statistics. Such monitoring of ongoing compliance may include oversight of DHS facilities. The purpose of this change is to ensure that an independent monitor will remain in place to help to ensure that all DHS facilities satisfy applicable standards at all times.

Changes to Final Rule

DHS is amending the regulatory provisions to make it more clear that the Start Printed Page 44451Juvenile Coordinators will monitor compliance with the requirements of these regulations and, as an independent requirement, maintain statistics related to the placement of minors and UACs.

Section-by-Section Discussion of the HHS Proposed Rule, Public Comments, and the Final Rule

Subpart A—Care and Placement of Unaccompanied Alien Children (45 CFR part 410) Definitions (45 CFR 410.101)

DHS

Summary of Proposed Rule

HHS proposed to define “DHS” as the Department of Homeland Security. This term is not defined in the FSA.

Public Comments and Response

HHS did not receive any comments requesting a change to this definition.

Changes to Final Rule

HHS is not making any changes to this definition in the final rule.

Director

Summary of Proposed Rule

HHS proposed to define “director” as the Director of the Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), Department of Health and Human Services. This term is not defined in the FSA.

Public Comments and Response

HHS did not receive any comments requesting a change to this definition.

Changes to Final Rule

HHS is not making any changes to this definition in the final rule.

Emergency

Summary of Proposed Rule

HHS 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 ORR facility) that prevents timely transport or placement of UACs, or impacts other conditions provided by this part. This definition incorporates the existing text of the FSA except for HHS' recognition that emergencies may not only delay placement of UACs, but could also delay compliance with other provisions of the proposed rule or excuse noncompliance on a temporary basis.

Public Comments and Response

Comments. Several commenters expressed concern that the proposed “expanded” definition of “emergency” would grant DHS too much discretion to suspend compliance with certain FSA provisions relating to standards of care and custody for children, such as timely transport or placement of minors and other conditions implicating their basic services.

Some commenters expressed concern that events other than a natural disaster, facility fire, civil disturbance, medical or public health concerns might also qualify as an emergency, leaving significant room for interpretation. Several commenters argued that the phrase “other conditions” would implicate the basic needs of the children, including timely transfer, provision of snacks and meals, prolonged detention, and would further jeopardize their well-being, health, and safety and runs contrary to the explicit placement context of the FSA.

Other commenters had specific objections to the proposed definition. One organization argued that the proposed rule defines emergency in a circular manner because the term is primarily defined as an event that prevents compliance.

A coalition expressed concern that the proposed provision that minors must be transferred “as expeditiously as possible,” can be broadly interpreted, instead of a defined period of three to five days. The same commenter also argued that this provision contravenes the TVPRA because it creates exceptions to the 72-hour timeframe for the required transfer of UACs to ORR that do not meet the high bar of “exceptional circumstances” as intended under the TVPRA.

An organization expressed concern that the proposed rule replaces the term “medical emergencies” with “medical or public health concerns at one or more facilities,” which would broaden the possible application of emergencies, allowing for a possible emergency in instances where several minors lack key vaccinations, or where a few minors may require treatment for chronic conditions such as asthma or diabetes.

An organization expressed concern that implementation of the proposed definition would take away the ability to monitor or check the decision whether to deem a situation as an emergency, as well as the conditions that would result from such a determination and recommended that the Departments provide the basis arriving at these definitions; provide a timeframe for how long may an emergency last; and provide for the consequences for invoking the emergency when unwarranted.

An organization recommended that DHS and HHS provide explanation and evidence of the need to expand the current definition and compile a comprehensive list of permissible emergency circumstances.

Two organizations recommended that the proposed rule should clarify the circumstances under which emergency waivers would be implemented, that any such exemptions be limited in scope and ensure that the fundamental needs of children are met, regardless of the circumstances requiring a waiver.

Several organizations and individual commenters recommended that from a public health perspective, designation of an emergency should trigger additional resources, prepared in advance through contingency planning and made available through standing mechanisms.

Response. HHS notes that paragraph 12(B) of the FSA defines an emergency as “any act or event that prevents the placement of minors pursuant to paragraph 19 within the time frame provided” (i.e., three days or five days, as applicable). The FSA also contains a non-exhaustive list of acts or events that constitute an emergency, such as “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).” HHS notes that the definition of emergency contained within this provision does not depart from how the FSA defines an emergency act or event. Rather, this provision recognizes that, in rare circumstances, an emergency may arise, possibly unanticipated, that impacts more than just the transfer of UACs from one facility to another. As indicated in the NPRM, the impact, severity, and timing of a given emergency situation dictate the operational feasibility of providing certain elements of care and custody to UACs, and thus the regulations cannot capture every possible reality HHS will face. The applicability of “emergency” is intended to be flexible to the extent it fits within the parameters set forth by the FSA. Therefore, HHS disagrees with commenters' assertion that the definition of emergency creates “too much discretion” or allows HHS to declare an emergency “for whatever reason.”

HHS also notes that, during an emergency situation, it continues to make every effort to provide all required services and provide for UACs' needs under the FSA as expeditiously as possible. Depending on the severity of the emergency, however, the provision of one or more FSA requirements may be temporarily delayed for some UACs. Start Printed Page 44452For instance, if a facility is located in an area that is forecasted to be impacted by a hurricane and the UACs must be evacuated to another facility, it may be necessary to temporarily delay the provision of meals to those UACs during the time required to evacuate the facility. However, as soon as the UACs arrive at the other facility, ORR would resume the provision of meals to those UACs. Similarly, if a facility suffers an electrical failure, such that the air conditioning breaks, all UACs in that facility may temporarily be held in temperatures that do not comply with the FSA. ORR would work to rectify the problem as quickly as possible, and would take steps to mitigate the problem (e.g., providing extra fans for the facility). Once the air conditioning is fixed, however, the UACs would return to FSA-compliant conditions.

HHS also notes that placing UACs in licensed programs “as expeditiously as possible” is consistent with the spirit of the FSA's language, but is also a more appropriate standard, since it provides the flexibility needed to respond to emergencies on a case-by-case basis. We interpret “as expeditiously as possible” as what is reasonably possible considering the circumstances of the particular emergency. At the same time, HHS notes that the requirements of the TVPRA still apply to transfers of UACs to ORR custody, and that the “exceptional circumstances” standard would still apply even with the publication of this final rule.

In response to one commenter's concern that the proposed rule replaces the term “medical emergencies” with “medical or public health concerns at one or more facilities,” which would broaden the possible application of emergencies, HHS respectfully disagrees, and notes that the rule is consistent with the FSA. The FSA provides, as an example of a medical emergency, “a chicken pox epidemic among a group of minors.” The language of the rule is consistent with this example. HHS disagrees that the rule would broaden the scope of medical emergencies beyond what is already contemplated by the FSA.

Although many of the comments are beyond the scope of the FSA and the purposes of this rule in implementing the FSA, HHS will consider incorporating commenters' recommendations into the written guidance implementing this provision, as appropriate and to the extent they do not conflict with the FSA or other governing statutes. This includes but is not limited to the recommendations to mandate contingency planning if an emergency situation can be anticipated, reviewing the American Bar Association's UC Standards, and clarifying roles and responsibilities regarding the officials who have the authority to declare an emergency.

Changes to Final Rule

HHS is not making any changes to this definition in the final rule.

Escape Risk

Summary of Proposed Rule

HHS proposed to define “escape risk” as a serious risk that a UAC will attempt to escape from custody. HHS is adopting this definition without change from the FSA.

Public Comments and Response

HHS did not receive any comments requesting a change to this definition that specifically named HHS, although please see the section of the preamble discussing §  236.3(b)(6 ) for responses to comments DHS received regarding its definition of escape risk.

Changes to Final Rule

HHS will not be making any changes to this definition in the final rule.

Final Rule

Escape risk means there is a serious risk that an unaccompanied alien child (UAC) will attempt to escape from custody.

Influx

Summary of Proposed Rule

The NPRM proposed to define “influx” as a situation when 130 or more minors or UACs are eligible for placement in a licensed facility under this part or corresponding provisions of DHS regulations, including those who have been so placed or are awaiting such placement. HHS is adopting this definition without change from the FSA with the clarification that DHS will maintain custody of UACs pending their transfer to ORR.

Public Comments and Response

Comment. Numerous commenters expressed concern that the proposed definition of “influx” was developed based on data from the 1990s and is outdated, and, if implemented, will result in DHS and HHS operating within a de facto permanent state of “influx.” If able to operate in that status, the commenters contended that DHS and HHS would have broad discretion to circumvent compliance with the FSA, HSA, and TVPRA provisions and the time limits on transferring children out of DHS custody.

Many commenters expressed the view that DHS and HHS disingenuously argued that they operate within a constant state of influx even while overall border crossings are 20 percent of what they were when that term was defined in the FSA and border staffing has increased by almost three times.

A few commenters argued that the 130-influx standard also failed to account for the expansions and contractions of the number of UACs in border custody, which have fluctuated by tens of thousands of juveniles every year since the peak in 2014. The variable yearly numbers of UACs require a more flexible influx baseline.

Some commenters objected to the proposed definition of influx on the basis that it enables each agency to excuse noncompliance even where it is not itself experiencing influx conditions. Commenters stated that DHS conceded in the NPRM that it has continuously been dealing with an influx of minors for years. The commenters claimed that as a result, even where HHS may not satisfy the “influx” criteria itself, it may rely on DHS's “influx” conditions because the definition allows HHS criteria to be met “under . . . corresponding provisions of DHS regulations.”

One commenter recommended that the agencies include a third alternative criterion for designation of influx conditions to track the meaning of influx in the INA. The INA recognizes the threat posed to national security where the Secretary of Homeland Security “determines that an actual or imminent influx of aliens arriving off the coast of the United States, or near a land border, presents urgent circumstances requiring an immediate federal response.” 8 U.S.C. 1103(a)(10). The commenter urged the agencies to consider a regulation that would define “urgent circumstances” to include the release without bond of a significant percentage of such minors, with or without a parent or legal guardian, near to the relevant Coast Guard or Border Patrol sector. The commenter ultimately proposed that influx conditions could exist when some combination of three criteria were present—the legacy FSA criterion of 130 minors, an alternative criterion that takes into account the problems created by lack of resources other than bed space, and a third criterion that aligns influx designations for minors with designations of influx conditions applicable to humanitarian entry in general. The commenter contended that such a standard would provide flexibility to respond effectively to migrant crises that involve minor aliens in unpredictably dangerous ways.

One commenter maintained that, because the proposed rule changes the Start Printed Page 44453word “program” to “facility,” it could permit lengthier detention by a determination that there is an influx when more than 130 children are eligible for placement in any of the program's facilities, even if the program has the capacity to provide placement resources for well over 130 children. The commenter viewed the proposed definition of influx as placing less focus on the needs of children than on the proposed facilities to detain them.

Some commenters were concerned that the proposed definition of influx lifts the requirement that UACs be transferred from DHS to HHS custody within three to five days, and allows for broad exemptions to existing child protections that could impact basic needs, such as the provision of snacks and meals to children in custody. The commenters stated the rule should be changed to clarify that any such exemptions must be limited in scope and ensure that the fundamental needs of children are met in a timely manner.

Response. When there is a sharp increase, or “influx,” in the number of UACs entering the United States and Federal agencies are unable to transfer them into state-licensed, ORR-funded care provider facilities in a timely manner, ORR places certain UACs at an influx care facility. It is important to note that HHS does not enforce immigration laws or implement immigration policies. HHS provides shelter, care, and other essential services to UACs, while working to release them to appropriate sponsors, often members of the child's family, without unnecessary delay.

Periodically, ORR operates influx care facilities to meet its statutory obligations to care for UACs transferred from DHS, during a time of high numbers of arrivals. ORR maintains the ability to rapidly set-up, expand, or contract influx infrastructure and services as needed. ORR has detailed policies that set forth criteria for when UACs may be placed at an influx care facility. Some of the criteria include a minor's age (the minor must be between 13 and 17 years of age), medical and behavioral health conditions (no known special needs or issues), sibling status (no accompanying siblings below the age of 12), and pending reunification status (ability to be discharged to a sponsor expeditiously), among other considerations. (For a complete list of the requirements, please see the ORR Policy Guide, Section 1.7.3 Placement into Influx Care Facilities at https://www.acf.hhs.gov/​orr/​resource/​children-entering-the-united-states-unaccompanied-section-1#1.7.3)

HHS is the primary regulator of influx care facilities and is responsible for their oversight, operations, physical plant conditions, and service provision. States do not license or monitor ORR influx care facilities because they are located on Federal enclaves. However, ORR influx care facilities operate in accordance with applicable provisions of the FSA, HSA of 2002, TVPRA, the Interim Final Rule on Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving Unaccompanied Alien Children, as well as ORR policy.

For the purposes of continuity of joint operations and for the reasons DHS explains above, HHS adopts the same definition of influx. DHS's response to comments related to the definition of influx can be found above in the Section-by-Section Discussion under Influx §  236.3(b)(10).

Changes to Final Rule

HHS is not making any changes to this definition in the final rule.

Licensed Program

Summary of Proposed Rule

HHS proposed to define a “licensed program” as any program, agency, or organization that is licensed by an appropriate State agency to provide residential, group, or foster care services for dependent children, including a program operating group homes, foster homes, or facilities for special needs UACs. All homes and facilities operated by a licensed program, including facilities for special needs UACs, are non-secure as required under State law. However, a facility for special needs UACs may maintain a level of security permitted under State law which is necessary for the protection of UACs or others in appropriate circumstances (e.g., cases in which a UAC has drug or alcohol problems or is mentally ill). HHS is adopting this definition without change from the FSA with the clarification that the standards a licensed program must meet are set forth in § 410.402 of this rule instead of Exhibit 1 of the FSA.

Public Comments and Response

HHS did not receive any comments requesting a change to this definition.

Changes to Final Rule

HHS is not making any changes to this definition in the final rule.

ORR

Summary of Proposed Rule

HHS proposed to define “ORR” as the Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services. This term is not defined in the FSA.

Public Comments and Response

HHS did not receive any comments requesting a change to this definition.

Changes to Final Rule

HHS is not making any changes to this definition in the final rule.

Secure Facility

Summary of Proposed Rule

HHS proposed to define a “secure facility” as a State or county juvenile detention facility or a secure ORR detention facility, or a facility with an ORR contract or cooperative agreement having separate accommodations for minors. A secure facility does not need to meet the requirements of § 410.402, and is not defined as a “licensed program” or “shelter” under this part. This term is not defined in the FSA, but is consistent with the provisions of the FSA applying to secure facilities.

Public Comments and Response

Comment. Most public comments regarding the definition of secure were directed towards the DHS portion of the rule. HHS did receive several comments regarding the placement of UAC in secure facilities; those comments and responses are captured in the discussion of §§ 410.203 and 410.205. Regarding the definition of secure as it relates to the facility's physical plant, one commenter stated that the definition of non-secure does not comport with the intent of the FSA in the following areas: secure external fencing and locks (internal and external) effecting egress.

Response. The term “secure” is not defined in the FSA, however, HHS finds that the definition of “secure” in the proposed rule is consistent with the provisions in the FSA applying to secure facilities. In addition, HHS is committed to ensuring the security, safety, and well-being of all UACs, many of whom fled dangers in their home countries and endured abuse along their journey to the United States. Some children remain under threat of continued harm, including trafficking, fraud, ransom demands, and gang violence. Therefore, any security measures, such as fences and locked points of entry, are for the safety of UACs, to supervise public access to children, and protect them from harm, in keeping with child welfare practices in State-licensed facilities.Start Printed Page 44454

Changes to Final Rule

HHS will not be making any changes to this definition in the final rule.

Shelter

Summary of Proposed Rule

HHS proposed to define “shelter” as a licensed program that meets the standards set forth in § 410.402. Shelters include facilities defined as “licensed facilities” under the FSA, and also includes staff secure facilities (i.e., medium secure facilities as defined by the FSA). Other types of shelters might also be licensed, such as long-term and transitional foster care facilities.

Public Comments and Response

HHS did not receive any comments requesting a change to this definition.

Changes to Final Rule

HHS is not making any changes to this definition in the final rule.

Special Needs Minor

Summary of Proposed Rule

HHS proposed to define a “special needs minor” as a UAC whose mental and/or physical condition requires special services and treatment by staff. A UAC may have special needs due to drug or alcohol abuse, serious emotional disturbance, mental illness or retardation, or a physical condition or chronic illness that requires special services or treatment. A UAC who has suffered serious neglect or abuse may be considered a special needs minor if the UAC requires special services or treatment as a result of neglect or abuse. This definition was adopted without change from the FSA.

Public Comments and Response

Comment. Some commenters asked for expanded definitions of “special needs minor” or additional provisions relating thereto. One commenter stated the definition should be broadened to include developmental disability and learning disability. The commenter urged that it is important for children, particularly unaccompanied children, to be able to understand and follow instructions or directions given to them by Federal officials, attorneys, and care custodians in licensed facilities.

Another commenter contended that the proposed rule does not adequately discuss special needs, even though many immigrant children entering the United States have disabilities.

The commenter also condemned the use of the outdated term “retardation” in the definition of special needs minor, stating that the term is used as a slur that dehumanizes, demeans, and does real emotional harm to people with mental and developmental disabilities. The commenter acknowledged the term was used in the FSA agreement, but argued that it is inappropriate in a modern-day regulation.

Response. The regulatory language adopted the same definition of “special needs” as the definition used in the FSA. This definition includes any minor whose mental conditions require special services and treatment as identified during an individualized needs assessment. HHS disagrees that the definition should be expanded because the definition is broad enough to include minors with developmental and learning disabilities, if the special needs assessment determines that these conditions require special services and treatment.

The proposed regulatory language contains multiple provisions requiring DHS and HHS to consider a UAC's special needs, including provisions requiring consideration of special needs when determining placement. For example, section 45 CFR 410.208 states that ORR will assess each UAC to determine if he or she has special needs and will, whenever possible, place a UAC with special needs in a licensed program that provides services and treatment for the UAC's special needs. Section 8 CFR 236.3(g)(2) requires DHS to place minors and UACs in the least restrictive setting appropriate to the minor or UAC's age and special needs. Section 8 CFR 236.3(i)(4) requires that facilities conduct a needs assessment for each minor, which would include both an educational assessment and a special needs assessment. Additionally, section 8 CFR 236.3(g)(1) requires DHS to provide minors and UACs with Form I-770 and states that the notice shall be provided, read, or explained to the minor or UAC in a language and manner that he or she understands. These provisions ensure that a minor's or UAC's special needs are taken into account, including when determining placement.

HHS agrees that the term “retardation” is outdated and is amending the regulatory language to delete this term. DHS has also deleted this term in its regulatory language.

Changes to Final Rule

HHS removed the term “retardation” from the final rule.

Sponsor

Summary of Proposed Rule

HHS proposed to define “sponsor” as an individual (or entity) to whom ORR releases a UAC out of ORR custody. Sponsor is comparable to the term custodian, which is used but not defined in the FSA.

Public Comments and Response

HHS did not receive any comments requesting a change to this definition.

Changes to Final Rule

HHS is not making any changes to this definition in the final rule.

Staff Secure Facility

Summary of Proposed Rule

HHS proposed to define a “staff secure facility” as a facility that is operated by a program, agency, or organization licensed by an appropriate State agency and that meets the standards for licensed programs set forth in § 410.402. A staff secure facility is designed for a UAC who requires close supervision but does not need placement in a secure facility. It provides 24-hour awake supervision, custody, care, and treatment. It maintains stricter security measures, such as intensive staff supervision, than a shelter in order to control problem behavior and to prevent escape. A staff secure facility may have a secure perimeter but is not equipped internally with major restraining construction or procedures typically associated with correctional facilities. The term “staff secure facility” is used in the same sense as the FSA uses the term “medium security facility.”

Public Comments and Response

HHS did not receive any comments requesting a change to this definition.

Changes to Final Rule

HHS is not making any changes to this definition in the final rule.

Unaccompanied Alien Child (UAC)

Summary of Proposed Rule

HHS proposed to define a “UAC” as provided in 6 U.S.C 279(g)(2), which states that a UAC is a child under the age of 18 who has no lawful immigration status in the United States and who has no parent or legal guardian present in the United States or no parent or legal guardian in the United States is available to provide care and physical custody. When a child previously determined to have been a UAC has reached the age of 18, when a parent or legal guardian in the United States is available to provide care and physical custody for such a child, or when such a child has obtained lawful immigration status, the child is no longer a UAC. A child who is no longer a UAC is not eligible to receive legal protections limited to UACs.Start Printed Page 44455

Public Comments and Response

Comments. Several organizations believed that the proposed rule directly contravenes the TVPRA and does not comport with the protective principles of the FSA by giving HHS and DHS unconstrained discretion to determine who meets the definition of a UAC, which could result in minors losing current protections under the FSA and TVPRA.

One commenter recommended striking proposed § 236.3(d) and the final sentence of proposed § 410.101 and codifying the current initial jurisdiction policy, as set forth in USCIS' 2013 guidance, which provided that USCIS would take initial jurisdiction based on a previous UAC determination even after the applicant turns 18 or is reunited with a parent or legal guardian.

Comments related to separate definitions for minor and UAC, as proposed by DHS in § 236.3(b)(1), are discussed above under the Section-by-Section Discussion of the DHS Proposed Rule, Public Comments, and the Final Rule.

Response. HHS adopted the definition of UAC as written in the HSA, 6 U.S.C 279(g)(2), with no change. HHS must abide by this definition when evaluating if a child in HHS custody meets the definition of a UAC and, as such, does not have unconstrained discretion to determine who qualifies as a UAC. Operationally, HHS will continuously evaluate whether an individual is a UAC, because it is unlawful for HHS to maintain custody of any child who has obtained lawful immigration status or obtained 18 years of age while in custody. 6 U.S.C. 279(g)(2). HHS is required to promptly release from its custody any individual who no longer meets the HSA definition of a UAC. HHS notes that USCIS' initial jurisdiction policy was implemented for the purpose of administratively tracking a child's case and is unconnected to the services provided to the child. Once a UAC is released from ORR care and custody, the child is no longer considered a UAC. HHS only tracks released children (former UACs) for the provision of post-release case management and a safety and well-being follow-up call. HHS has a system by which to track these released children for service provision.

Changes to Final Rule

Between the FSA and final rule, the only change HHS is making is substitution of the word “minor” with the word “UAC.” The text of the FSA only uses the term minors, and HHS has interpreted this term to include UACs who may or may not meet the definition of “minor” in the FSA. Given the subsequent enactment of the TVPRA, and the fact that HHS does not have custody of juveniles who are not UAC, HHS is expressly stating in this subpart that the provision applies to UACs and not “minors” as a whole.

ORR Care and Placement of Unaccompanied Alien Children (45 CFR 410.102)

Subpart B—Determining the Placement of an Unaccompanied Alien Child (45 CFR part 410)

Purpose of This Subpart (45 CFR 410.200)

Summary of Proposed Rule

As stated in § 410.200, this subpart of the proposed rule set forth factors that ORR considers when placing UACs.

Public Comments and Response

None.

Changes to the Final Rule. HHS is not making any changes to proposed § 410.200 in the final rule.

Final rule. 45 CFR 410.200—Purpose of this subpart.

This subpart sets forth what ORR considers when placing a UAC in a particular ORR facility, in accordance with the FSA.

Considerations Generally Applicable to the Placement of an Unaccompanied Alien Child (45 CFR 410.201)

Summary of Proposed Rule

Section 410.201 of the proposed rule addressed the considerations that generally apply to the placement of UAC. The provision generally paralleled the FSA requirements. The provision noted that ORR makes reasonable efforts to provide placements in the geographic areas where DHS apprehends the majority of UACs. ORR complied with this provision, as ORR maintains the highest number of UAC beds in the state of Texas where most UACs are currently apprehended.

Comment. Several organizations stated that the proposed rule conflicts with the FSA and current laws that encourage the placement of children in the least restrictive setting and favor release to a parent or family member.

In jointly submitted comments, multiple legal advocacy organizations argued that secure placement based on a lack of availability of licensed placements is statutorily barred by the TVPRA. The commenters cited the TVPRA's requirement that children under HHS custody “shall be promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. 1232(c)(2)(A). In making such placements, “the [HHS] Secretary may consider danger to self, danger to the community, and risk of flight.” Id. The TVPRA also 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.” Id. The commenters thus argued that Congress made clear that the “best interest of the child” evaluation permits placement in a secure facility only under the limited finding of a `danger to self or others' or a criminal charge; no other grounds are permissible, even those previously recognized in the FSA. In other words, according to the commenters, 8 U.S.C. 1232(c)(2)(A) prohibits secure placement based on issues unrelated to the best interests of the child, such as licensed shelter availability. As a result, the commenters argued that §§ 410.201(e) and 410.205 in the proposed rule are inconsistent with the terms of the FSA as amended by Congress by passage of the TVPRA.

Response. HHS notes that consistent with the TVPRA, 8 U.S.C. 1232(c)(2)(A), under the proposed rule, “ORR places each UAC in the least restrictive setting that is in the best interest of the child and appropriate to the UAC's age and special needs, provided that such setting is consistent with its interests to ensure the UAC's timely appearance before DHS and the immigration court.” As specified in proposed rule § 410.203, however, ORR will only place a UAC in a secure facility if the UAC has been charged with or is chargeable with a crime, or has been determined to pose a danger to self or others. ORR does not place UACs in a secure facility such as a State or county juvenile detention facility based on issues unrelated to the best interests of the child. ORR does not consider emergency or influx facilities to be secure facilities.

Comment. Section 410.201 of the proposed rule outlined factors that determine where a child is placed including the timely appearance of children before DHS and the immigration courts. Two organizations commented that while this language is included in the FSA, it is not in the TVPRA, and this creates a conflict between the proposed regulation and Federal law. They argued that a child's appearance in immigration court should not be given priority over a child's best interest or special needs. One of these advocacy organizations argued that the proposed rule does not indicate how to prioritize each factor and that it allows HHS and DHS to focus on “their own Start Printed Page 44456efficiencies for court and DHS adjudications” instead of the best interest of the child.

Response. HHS reiterates that this rule implements the terms of the FSA, and these comments go beyond the scope of the rule. But in response, HHS notes that the TVPRA at 8 U.S.C. 1232(c)(2)(A), states that when placing UAC, the HHS Secretary (whose authority is delegated to ORR) may consider not only danger to self, and danger to the community, but also risk of flight. Neither the TVPRA nor the FSA prescribe how ORR, in its discretion, is to evaluate the permissible factors in determining placement of a UAC. Like the TVPRA and the FSA, the rule describes general principles that govern placements of UACs. Also, ORR notes that per its policy, see ORR Guide, 1.4.1, “care providers must make every effort to place and keep children and youth in a least restrictive setting. For children who are initially placed in a least restrictive setting, care providers must provide support services and effective interventions, when appropriate, to help keep a child in the setting.” Moreover, in the ORR Guide, 1.2.5, ORR delineates factors which may indicate that a minor poses a risk of escape from ORR custody which it considers in making an informed placement decision, such as consideration whether the minor has an immigration history that includes failure to appear before DHS or the immigration courts. Notably, however, per ORR policy, “ORR does not place a child or youth in secure care solely because he or she may pose a risk of escape from ORR custody. However, ORR may place a child in a staff secure facility solely because he or she poses a risk of escape.” Id.

Comment. One advocacy organization commented that proposed § 410.201(d) did not include children's access to showers or bedding and it limited children's access to medical care to only emergencies.

The commenter further expressed concern that even though a minor who is in ORR custody may have contact with their family members who are not parents or legal guardians (for example, siblings) with whom they traveled to the United States and were arrested, the child should be permitted to be housed in family detention with those relatives consistent with their best interest.

Response. The language referenced by the commenter in proposed section 410.201 derives directly from paragraph 12 of the FSA, which pertains to services provided at emergency or influx facilities, as described at Exhibit 3. While State licensing standards do not apply to these temporary influx programs, HHS is the primary regulator of influx care facilities and is responsible for their oversight, operations, physical plant conditions, and service provision. Influx care facilities operate in accordance with provisions of the FSA, the HSA, the TVPRA, the Interim Final Rule on Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving Unaccompanied Alien Children, as well as ORR policy. UACs at temporary influx programs still have access to services to the greatest extent possible UACs in ORR care at influx facilities always have access to showers and bedding, as well as necessary medical care services.

Additionally, § 410.101 defines UAC according to the definition set forth in the HSA. The HSA and the TVPRA only give ORR the authority to provide care and custody to individuals who meet that definition. DHS, not ORR, has the authority to detain minors and their family members together.

Comment. Several commenters including medical doctors and mental health professionals wrote about abuse allegedly taking place in detention facilities. They also mentioned allegations of abuse occurring within ORR custody such as in Southwest Key facilities in Arizona. An article in Reveal (Aura Bogado, Patrick Michels, Vanessa Swales, and Edgar Walters, published June 20, 2018), detailed several allegations of abuse at shelters serving children in ORR custody, including abuse allegations at Shiloh Treatment Center in Texas. These commenters expressed concern that the new rule would allow for longer periods of detention, which raises the risk of more abuse.

Some commenters cited an investigative report which they say showed that the Federal Government continues to place alien children in for-profit residential facilities where allegations of abuse have been raised and where the facilities have been cited for serious deficiencies. Allegations include failure to treat children's sickness and injuries; staff drunkenness; sexual assault; failure to check employees' backgrounds; failure to provide appropriate clothing for children; drugging; and deaths from restraint. The commenters stated that few companies lose grants from HHS based on such allegations.

Response. HHS agrees with the importance of immediately identifying and minimizing the risk that UACs suffer abuse. The rule is consistent with HHS' existing obligations to protect the welfare of children. For example, the TVPRA requires HHS to establish policies and programs to ensure that UACs are “protected from traffickers and other persons seeking to victimize or otherwise engage such children in criminal, harmful, or exploitative activity.” 8 U.S.C. 1232(c)(1). Further, HHS operates under an Interim Final Rule, which describes HHS' comprehensive approach to preventing, detecting, and responding to allegations of sexual abuse, sexual harassment, sexually inappropriate behavior. See Standards To Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving Unaccompanied Children, 45 CFR part 411 (the “IFR”). Finally, in compliance with such IFR, ORR policies are designed to address any allegations of abuse swiftly and fully. As described in Section 5.5.2 of the ORR Guide, in addition to the routine monitoring process, ORR has an Abuse Review Team (ART) to review allegations of abuse (physical, sexual, negligent treatment) that are particularly serious or egregious. The team is composed of ORR staff with the appropriate expertise to assess and identify remedial measures to address these allegations, including ORR's Monitoring Team, the Division of Health for Unaccompanied Children and ORR's Prevention of Sexual Abuse Coordinator.

Comment. Various commenters wrote about the plight of Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual (LGBTQIA) and transgender and gender non-conforming (TGNC) children in custody. For brevity and because the vast majority of commenters used the acronym LGBTQ, HHS will do likewise; note that we also use the acronym LGBTQ consistent with ORR policy. Commenters expressed concern that LGBTQ youths would be mistreated and possibly abused if kept in custody for an extended period of time and one commenter was concerned in particular that their due process rights might be infringed. One commenter noted that youth who are identified as lesbian, gay, bisexual, or “other” reported a rate of sexual victimization by other youth in juvenile detention facilities at a rate of nearly seven times higher than straight youth.

Response. Even after publication of this rule, the IFR will continue to require ORR care provider programs to assess and periodically reassess UACs for risk of sexual victimization and abuse according to certain minimum criteria, including any gender nonconforming appearance or manner or identification as lesbian, gay, bisexual, transgender, questioning, or intersex and whether the UAC may Start Printed Page 44457therefore be vulnerable to sexual abuse or sexual harassment; and train staff on communicating effectively and professionally with LGBTQ UACs. Further, as mandated by law, ORR places each UAC in the least restrictive setting that is in the best interests of the child. The rule is also consistent with, and would not abrogate existing ORR policies protecting LGBTQ youth from mistreatment and abuse. Per ORR Guide 1.2.1, when making a placement determination or recommendation, ORR and care providers consider whether the child or youth identifies as lesbian, gay, bisexual, transgender, questioning or intersex, or is gender non-conforming in appearance or manner. Moreover, section 3.5 of the ORR Guide articulates guiding principles for the care of UACs who identify as LGBTQ: “are treated with the same dignity and respect as other unaccompanied alien children”; “receive recognition of 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.” ORR care providers must “house LGBTQI youth according to an assessment of the youth's gender identity and housing preference, health and safety needs, and State and local licensing standards.” Id. Section 3.5.5 of the ORR guide sets forth specific principles for housing LGBTQI children and youth in ORR care in a manner that treats them fairly and protects them from discrimination and abuse. Finally, Section 4 of the ORR Guide offers further guidance for ORR care providers in how to prevent, detect, and respond appropriately to sexual abuse and harassment, consistent with the IFR.

Comment. One commenter noted that the proposed rule failed to require that every child be placed in the least restrictive placement in the best interests of the child, as required by the TVPRA and subsequent HHS policies.

Response. The proposed rule is consistent with the TVPRA and UACs shall be held in the least restrictive setting appropriate to the UAC's age and special needs, provided that such setting is consistent with the need to protect the minor or UAC's well-being and that of others, as well as with any other laws, regulations, or legal requirements.

Comment. One commenter believes that children should be placed as soon as possible in homes with family or community members, not kept in shelters or government care for long periods.

Response. The proposed rule did not impact HHS' policies or procedures for placing UACs in foster care, where UACs are placed in homes in the community, not in shelters or other ORR facilities. See ORR Policy Guide Sections 1.2.1 and 1.2.6. But, shelter placements are state-licensed and fully consistent with the FSA, which the rule implements.

Changes to the Final Rule

In response to public comments from multiple legal advocacy organizations that the FSA and TVPRA run in contradiction to each other on the placing of UACs in secure facilities based solely on the lack of appropriate licensed program availability, ORR is striking the following clause from § 410.201(e): “. . . or a State or county juvenile detention facility.”

Placement of an Unaccompanied Alien Child in a Licensed Program (45 CFR 410.202)

Summary of Proposed Rule

Section 410.202 of the proposed rule stated that ORR places a UAC into a licensed program promptly after a UAC is referred to ORR custody, except in certain enumerated circumstances. The FSA also recognized that in some circumstances, a UAC may not be placed in a licensed program. These circumstances include emergencies or an influx as defined in § 410.101 (in which case the UAC shall be placed in a licensed program as expeditiously as possible); where the UAC meets the criteria for placement in a secure facility; and as otherwise required by any court decree or court-approved settlement. Like the DHS portion of the proposed rule, proposed § 410.202 did not include the exception, which appears at paragraph 12(A)(4) of the FSA, that allows transfer within 5 days instead of 3 days in cases involving transport from remote areas or where an alien speaks an “unusual” language that requires the Government to locate an interpreter. As noted above, DHS has matured its operations such that these factors no longer materially delay transfer.

Comment. Commenters stated that unlike licensed shelter placements, many of ORR's more restrictive settings closely resemble prison. Children may be under constant surveillance, required to wear facility uniforms, and have little control. These commenters stated that placement decisions have significant consequences for UACs.

Response. HHS recognizes that, as is consistent with paragraph 21 of the FSA and the TVPRA 8 U.S.C. 1232(c)(2)(A), by definition a secure facility, such as a State or county juvenile detention facility, is a more restrictive setting than a shelter or a staff-secure facility. As stated in the proposed definition of “secure facility” (see § 401.101) and as is consistent with paragraph 21 of the FSA and the definition of “licensed program” in that agreement, such facilities do not need to meet the requirements of “licensed programs” as defined in § 401.101 under this subpart.

As the proposed rule indicates ORR only places a UAC in a secure facility in limited, enumerated circumstances where the UAC has been charged with a crime or is chargeable with a crime, or when the UAC is similarly a danger to self or others. This will be read in light of the other criteria in the regulations. In addition, the proposed rule is consistent with and does not abrogate ORR policies, under which the decision to place a UAC in a secure facility is then reviewed at least once monthly (see ORR Policy Guide, Section 1.4.2) to make sure that a less restrictive setting is not more appropriate.

The criteria for placement of UAC in a secure facility are discussed in accordance with section 410.203 of this part.

Comment. A commenter noted the importance of age determination because HHS only has jurisdiction over persons under 18 years of age.

Response. HHS agrees with the comment. Because HHS' authority is only for individuals under 18, if a person is determined to be an adult, that person cannot be placed in HHS custody. Procedures for determining the age of an individual, and criteria for the treatment of an individual who appears to be an adult are discussed at greater length in accordance with §§ 410.700 and 410.701 of subpart G.

Changes to the Final Rule

HHS is not making any changes in the final rule to proposed § 410.202 which is consistent with the FSA and the TVPRA. However, HHS clarifies that it places UACs in licensed programs except if a reasonable person would conclude “based on the totality of the evidence and in accordance with subpart G” that the UAC is an adult.

Criteria for Placing an Unaccompanied Alien Child in a Secure Facility (45 CFR 410.203)

Summary of Proposed Rule

Section 410.203 of the proposed rule set forth criteria for placing UACs in secure facilities. HHS followed the FSA criteria, except that under the TVPRA, “[a] child shall not be placed in a secure Start Printed Page 44458facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense.” 8 U.S.C. 1232(c)(2)(A). With respect to these regulations, therefore, HHS did not include factor of being an escape risk, even though that was a permissible ground under the FSA for placement of a UAC in a secure facility.

In addition, HHS chose not to include in the proposed regulatory text the specific examples of behavior or offense that could result in the secure detention of a UAC under paragraph 21 of the FSA, because the examples are non-exhaustive and imprecise. For instance, examples listed in paragraph 21 of what may be considered non-violent, isolated offenses (e.g., breaking and entering, vandalism, or driving under the influence) could be violent offenses in certain circumstances depending upon the actions accompanying them. In addition, state law may classify these offenses as violent. Including these examples as part of codified regulatory text may inadvertently lead to confusion rather than clarity, and eliminate the ability to make case-by-case determinations of the violence associated with a particular act.

Under the proposed regulations, a UAC may be placed in a secure facility if ORR determines that the UAC has been charged with, is chargeable,[39] 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; and where ORR assesses that the crimes or delinquent acts were not:

  • Isolated offenses that (1) were not within a pattern or practice of criminal activity and (2) did not involve violence against a person, or the use or carrying of a weapon; or
  • Petty offenses, which are not considered grounds for a stricter means of detention in any case.
  • While in DHS or ORR's custody or while in the presence of an immigration officer, has committed, or has made credible threats to commit, a violent or malicious act (whether directed at himself/herself or others). Note: Because the FSA states that such acts would have occurred “while in INS custody” or “in the presence of an INS officer,” we proposed to evaluate such activities in either DHS or HHS custody or in the presence of an “immigration officer.”
  • 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 the UAC is placed such that transfer is necessary to ensure the welfare of the UAC or others, as determined by the staff of the licensed program.

In addition, ORR proposed the following as warranting placement in a secure facility, even though the FSA does not specifically mention such criteria, if a UAC engages in unacceptably disruptive behavior that interferes with the normal functioning of a “staff secure” shelter, then the UAC may be transferred to secure facility. The FSA looks only to such disruptive behavior when it occurs in a “licensed” facility—which under the strict terms of the FSA does not include staff-secure facilities—even though all such facilities are indeed state-licensed, and the vast majority of such facilities receive the same licenses as non-secure shelters. Thus, under a strict interpretation of the FSA, UACs could be immediately transferred to a secure facility for disruptive behavior in a non-secure shelter, without first evaluating the UAC in a staff secure setting, where further disruption might lead a higher level of restriction in care.

The proposed rule would afford HHS the flexibility to first evaluate the UAC in a staff-secure setting, and then, if a UAC is significantly disrupting the operations of a staff-secure facility, transfer the UAC to protect the other children who remain within the staff secure facility.

In addition to the behaviors listed in paragraph 21 of the FSA as unacceptably disruptive—(e.g., drug or alcohol abuse, stealing, fighting, intimidation of others, etc.).—HHS adds to this list “displays sexual predatory behavior.”

In keeping with the July 30, 2018 order in Flores v. Sessions, the proposed rule stated that placement in a secure RTC may not occur unless a licensed psychologist or psychiatrist determined that the UAC poses a risk of harm to self or others. The proposed rule also stated that ORR may place a UAC in a secure facility if the UAC is “otherwise a danger to self or others,” which HHS will read in light of the other criteria in the FSA and is consistent with the plain language of the TVPRA. See 8 U.S.C. 1232(c)(2)(A).

Section 410.203 also sets forth review and approval of the decision to place a UAC in a secure facility consistent with the FSA. The FSA states that the determination to place a minor in a secure facility shall be reviewed and approved by the “regional juvenile coordinator.” The proposed rule used the term “Federal Field Specialist,” as this is the official closest to such juvenile coordinator for ORR. (Note: Although not covered in the proposed rule, ORR also recognizes that the TVPRA at 8 U.S.C. 1232(c)(2)(A) delegates to the Secretary of HHS the requirement for prescribing procedures governing agency review, on a monthly basis, of secure placements. ORR directs readers to sections 1.4.2. and 1.4.7 of the ORR Policy Guide (available at: https://www.acf.hhs.gov/​orr/​resource/​children-entering-the-united-states-unaccompanied) for these procedurals under the TVPRA.)

Comment. Various organizations expressed concern that proposed § 410.203(b) fails to provide that HHS will review all secure placements monthly, as required by the TVPRA, and fails to specify how placements in staff secure or residential treatment centers will be reviewed. Commenting organizations also stated that this section fails to take into consideration the best interest of the child.

Response. HHS intends for proposed § 410.203(b) incorporates legal requirements such as monthly review of secure placements required by the TVPRA; this is indicated by the provision's statement that review of secure placements is performed “consistent with legal requirements.” In addition, the rule is consistent with and does not abrogate current ORR policies and practices. Section 1.4.2 of the ORR Policy Guide states that, at least every 30 days, the care provider staff, in collaboration with the independent Case Coordinator and the ORR/Federal Field Specialist (FFS), reviews the placement of UACs not only into secure facilities, but also staff secure and RTC facilities in order to determine whether a new, less restrictive level of care is more appropriate. ORR refers the reader to Section 1.4.6 of the ORR Guide, which discusses RTC placements. Consistent with the TVPRA, see 8 U.S.C. 1232(c)(2)(A), ORR generally places UACs in the least restrictive setting that is in the best interest of the child. See ORR Policy Guide, Section 1.2.1.

Comment. One advocacy organization stated that the provisions in the proposed rule regarding when UACs can be placed in secure facilities violates the FSA because it allows HHS to place individuals in secure custody based on “danger to self or others”—a requirement not found in the FSA and so vague as to compromise the government's obligation to place UACs in the least restrictive setting appropriate to their age and special needs.

Response. HHS notes that this language of “danger to self or others” as Start Printed Page 44459permissible criteria for secure placements of UACs comes directly from the TVPRA. See 8 U.S.C. 1232(c)(2)(A). Additionally, as indicated in the proposed rule, the July 30, 2018 order in Flores v. Sessions mandated that placement of a UAC in a secure RTC may not occur unless a licensed psychologist or psychiatrist determined that the UAC poses a risk of harm to self or others. However, to respond directly to the concern that this provision is overly vague, HHS will add that nothing in the provision abrogates requirements to place UACs in the least restrictive setting appropriate to their age and special needs.

Comment. Several organizations stated that the language in § 410.203 is too vague and gives HHS broad discretion to place children in secure settings is contrary to the TVPRA and the FSA. A policy group stated, in particular, that the proposed regulation does not clearly identify specific behaviors or offenses that allow placement of a UAC in a secure facility. And where explanation of placement is authorized, it is not clear enough for children to understand because it is a broad and non-specific list, which is confusing for children and fails to put them on notice of the rules that may result in their being detained in a jail-like setting.

A couple of commenters discussed alleged missing provisions or provisions that should have been included related to the placement of children in restrictive settings. This included a proposal that HHS consider that in determining threats from children who the agency sought placement in a secure facility that those threats be “credible and verified” (as opposed to just credible threats as discussed in the proposed rule). Further, the commenter recommended removal of the term “disruptive behavior” as criteria for placement in a secure facility as the term is far too subjective. The commenter also stated that secure placements should include the consultation of a mental health specialist. Another commenter stated that HHS provisions to provide placement in the “least restrictive setting” require more specificity. Similarly, that commenter derided the use of criteria not directly related to violence as justification for placement in a restrictive setting and objected that there was no monthly review of these placements as required by 8 U.S.C. 1232(c)(1)(A).

Response. As explained in the proposed rule preamble, HHS chose not to include in the proposed regulatory text the specific examples of behavior or offense that could result in the secure detention of a UAC listed in paragraph 21 of the FSA, because the examples are non-exhaustive and imprecise. For instance, examples listed in paragraph 21 of what may be considered non-violent, isolated offenses (e.g., breaking and entering, vandalism, or driving under the influence) could be violent offenses in certain circumstances depending upon the actions accompanying them. In addition, state law may classify these offenses as violent. Including these examples as part of codified regulatory text may inadvertently lead to confusion rather than clarity, and eliminate the ability to make case-by-case determinations of the violence associated with a particular act. Finally, ORR notes that the proposed rule does include a list of behaviors that may be considered unacceptably disruptive; HHS proposed to add “displays sexual predatory behavior” to the non-exhaustive list of examples provided at paragraph 21 of the FSA, including drug or alcohol abuse, stealing, fighting, and intimidation of others.

HHS discusses notification of secure placement further under § 410.206—Information for UACs concerning the reasons for his or her placement in a secure or staff secure facility. ORR also notes that all ORR programs have clinicians (see subpart D) that provide mental health services for UAC regardless of program type.

Comment. Two commenters also add that there is no consideration of disability as part of ORR's placement determinations, particularly for secure facilities.

Response. ORR Federal Field Specialists review and approve all placements of UACs in secure facilities consistent with legal requirements. This review includes consideration of any disabilities identified as part of ORR's intake assessment process for every UAC in care.

Comment. The commenter also found it unacceptable to move a child from “the least restrictive setting that is in the best interest of the child” for behaviors related to his or her disability without attempting first to ameliorate the need through the provisions of accommodations and individualized treatment.

Response. ORR acknowledges and appreciates the commenter's feedback. The proposed rule did not impact ORR's policies and procedures for ORR Federal Field Specialists to review and approve all placement changes of UAC in ORR care, including UACs with disabilities. (See ORR Policy Guide, Section 1.2.) Please see § 410.208 for information on the proposed rule regarding special needs minors in ORR care.

Comment. Multiple organizations noted that research shows the children with disabilities in secure facilities may not have their individual needs met. One disability-rights organization objected that Section 504 of the Rehabilitation Act of 1973 is not addressed in the rule.

Response. ORR acknowledges and appreciates commenters' feedback. The proposed rule did not impact ORR assessments or services based on each individual UAC needs, including any identified children with disabilities placed in any ORR facility, including secure facilities. ORR did not directly address Section 504 of the Rehabilitation Act of 1973, because the proposed rule did not impact ORR's assessments or services for disabled children. ORR assessments and services for disabled UAC meet all requirements laid out in Section 504 of the Rehabilitation Act of 1973.

Comment. Another commenter stated that the rule does not provide adequate notice or opportunity to be heard in the event that a mental health professional believes that a youth poses a risk of harm and must be moved into a more restrictive setting. The commenter noted that such notice and opportunity to be heard is necessary to safeguard against violations of section 504 of the Rehabilitation Act of 1973.

Response. HHS agrees that, in situations where an individual poses a risk of harm to self or others, it is in the best interest of the individual, those detained with the individual, as well as the Federal employees overseeing the individual, to ensure a mental health professional's concerns are addressed reasonably and efficiently. HHS provided specifically for this scenario (for purposes stemming from a licensed psychologist or psychiatrist determining the individual poses a risk of harm to self or others) in § 410.203(a)(4). Moreover, as noted in § 410.203(b), ORR Field Specialists review and approve all placements in this context consistent with the relevant legal requirements (including all relevant Acts of Congress).

Changes to the Final Rule

In response to public comments, HHS clarifies that it reviews placements of UACs in secure facilities on at least a monthly basis, and that, notwithstanding its ability under the rule to place UACs who are “otherwise a danger to self or others” in secure placements, this provision does not abrogate any requirements that HHS place UACs in the least restrictive Start Printed Page 44460setting appropriate to their age and any special needs.

Considerations When Determining Whether an Unaccompanied Alien Child Is an Escape Risk (45 CFR 410.204)

Summary of Proposed Rule

Section 410.204 of the proposed rule described the considerations ORR takes into account when determining whether a UAC is an escape risk. This part is consistent with how the term “escape risk” is used in the FSA. Although the TVPRA removes the factor of being an escape risk as a ground upon which ORR may place a UAC in a secure facility, the factor of escape risk is still relevant to the evaluation of transfers between ORR facilities under the FSA as being an escape risk might cause a UAC to be stepped up from a non-secure level of care to a staff secure level of care where there is a higher staff-UAC ratio and a secure perimeter at the facility. Notably, an escape risk differs from a “risk of flight,” which is a term of art used in immigration law regarding an alien's risk of not appearing for his or her immigration proceedings.

Comment. One organization noted that the TVPRA does not include escape risk as a factor for placement in a secure facility and disagrees with section 410.204 including this factor in placement decisions.

Response. HHS acknowledges that the TVPRA does not include escape risk as a factor for placement in a secure facility, and ORR does not propose to consider escape risk when determining whether to place UAC in a secure facility. As specified in proposed rule § 410.203, ORR will only place a UAC in a secure facility if the UAC has been charged with or is chargeable with a crime, or has been determined to pose a danger to self or others.

Changes to the Final Rule

HHS is not making any changes to proposed § 410.204 in the final rule.

Applicability of § 410.203 for Placement in a Secure Facility (45 CFR 410.205)

Summary of Proposed Rule

Section 410.205 of the proposed rule provided that ORR does not place a UAC in a secure facility pursuant to § 410.203 if less restrictive alternatives, such as a staff secure facility or another licensed program, are available and appropriate in the circumstances.

Comment. Several organizations argued the FSA and current laws encourage the placement of children in the least restrictive setting and favor release to a parent or family member. They argue that the proposed rule is designed to place more children in the most restrictive setting, which is not in the best interest of the child. One commenter stated that that the proposed rule eliminates the requirement that all UACs be housed in the least restrictive placement available.

Response. HHS agrees that the FSA and current laws encourage the placement of children in the least restrictive setting and that the FSA encourages release to a parent or family member. However, HHS disagrees that that the proposed rule is inconsistent with these goals. As the proposed rule indicates, for the protection of all UACs in its care and custody, HHS only places a UAC in a secure facility in limited, enumerated circumstances where the UAC has been charged with a crime or is chargeable with a crime, or when the UAC is a danger to self or others, which HHS reads in light of the other criteria in the FSA. When such placement criteria is met, a secure facility is in fact the least restrictive setting that is in the best interest of the child. Notably, ORR reviews the decision to place a UAC in a secure facility, in accordance with the TVPRA, at least once monthly to make sure that a less restrictive setting is not more appropriate. See also ORR Policy Guide, Section 1.4.2.

Comment. Several commenters contended that the proposed rule violates the TVPRA because it inserts availability and appropriateness factors as part of the placement decision. In 2008, Congress enacted a requirement that children under HHS custody “shall be promptly placed in the least restrictive setting that is in the best interest of the child.” 8 U.S.C. 1232(c)(2)(A). In making such placements, “the [HHS] Secretary may consider danger to self, danger to the community, and risk of flight.” Id. But “[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.” Id. These commenters argued that 8 U.S.C. 1232(c)(2)(A) accordingly prohibits secure placement based on issues unrelated to the best interests of the child, such as licensed shelter availability.

Response. Consistent with the TVPRA, 8 U.S.C. 1232(c)(2)(A), under the proposed rule, “ORR places each UAC in the least restrictive setting that is in the best interest of the child and appropriate to the UAC's age and special needs, provided that such setting is consistent with its interests to ensure the UAC's timely appearance before DHS and the immigration court.” ORR will only place a UAC in a secure facility if the UAC has been charged with or is chargeable with a crime, or has been determined to pose a danger to self or others. Notwithstanding § 410.201(e) of the proposed rule, ORR does not place UAC in a secure facility such as a State or county juvenile detention facility based on issues unrelated to the best interests of the child, such as licensed shelter availability. ORR does not consider emergency or influx facilities to be secure facilities.

Comment. Several organizations stated that the final rule should have a mechanism that allows a minor to challenge their placement in a facility and whether the facility complies with FSA-required standards.

Response. HHS notes that nothing in the FSA contains the requirements commenters suggest with respect to an administrative appeal process (other than the hearings of paragraph 24(A) in the FSA). Nevertheless, pursuant to proposed § 410.206, within a reasonable period of time, minors transferred or placed in secure facilities are provided with a notice of the reasons for the placement in a language the UAC understands. In addition, ORR policy states that “After 30 days of placement in a secure or RTC facility, UAC may request the ORR Director, or the Director's designee, to reconsider their placement. The ORR Director, or designee, may deny the request, remand the request to the ORR/FFS for further consideration, or approve the request and order the youth transferred to a staff secure or other care provider facility.” See ORR Guide, Section 1.4.7. Moreover, subpart H of this rule provides UAC with the opportunity to have an independent hearing officer review ORR's decision as to whether the UAC presents a danger to self or others, or is a risk of flight.

Changes to the Final Rule

HHS is not making any changes in the final rule to proposed § 410.205 which is consistent with the FSA and the TVPRA.

Information for Unaccompanied Alien Children Concerning the Reasons for His or Her Placement in a Secure or Staff Secure Facility (45 CFR 410.206)

Summary of Proposed Rule

Section 410.206 of the proposed rule specified that, within a reasonable period of time, ORR must provide each UAC placed in or transferred to a secure or staff secure facility with a notice of the reasons for the placement in a language the UAC understands.Start Printed Page 44461

Comment. A policy group stated that the proposed regulation does not clearly identify specific behaviors or offenses that allow placement of a UAC in a secure facility. Further, the commenter stated that the notice of restrictive placement it is not clear enough for children to understand because it is a broad and non-specific list, which is confusing for children and fails to put them on notice of the rules that may result in their being detained in a jail-like setting.

Response. As explained in the proposed rule preamble, HHS chose not to include in the proposed regulatory text (see proposed rule, § 410.203) the specific examples of behavior or offense that could result in the secure detention of a UAC in paragraph 21 of the FSA because the examples are non-exhaustive and imprecise. ORR notes, however, that in addition to standard check boxes to indicate reasons why a UAC is being placed in a secure, RTC, or staff-secure facility, ORR's Notice of Placement in a Restrictive Setting as is required by proposed rule, § 410.206, provides a space for a narrative to be included which explains in greater detail why a particular restrictive setting is being recommended for a given UAC. The ORR form also specifically encourages a UAC to seek out assistance from his or her case manager at the ORR care provider facility, attorney, or legal service provider, if the UAC has have any questions about his or her placement, or their right to challenge it.

Comment. One commenter stated that the rule does not provide adequate notice or opportunity to be heard in the event that a mental health professional believes that a youth poses a risk of harm and must be moved into a more restrictive setting. The commenter stated that such notice and opportunity to be heard is necessary to safeguard against violations of section 504 of the Rehabilitation Act of 1973.

Response. HHS only places a UAC in an RTC if the youth is determined to be a danger to self or others by a licensed psychologist or psychiatrist. See ORR Policy Guide, Section 1.4.6. UACs have an opportunity to challenge such a placement in an RTC. Per ORR policy (see ORR Guide, Section 1.4.7): “After 30 days of placement in a secure or RTC facility, UAC may request the ORR Director, or the Director's designee, reconsider their placement. The ORR Director, or designee, may deny the request, remand the request to the ORR/FFS for further consideration, or approve the request and order the youth transferred to a staff secure or other care provider facility.” The right to such administrative review is set forth on ORR's Notice of Restrictive Placement form, which is provided to UACs. Included in the notice is information on the UAC's right to seek judicial review in a Federal District Court with jurisdiction and venue. Immediately upon placement in a secure facility, staff secure facility, or RTC, a UAC may ask a lawyer to assist him or her in filing a lawsuit in a Federal District Court, if he or she believes they have been treated improperly and/or inappropriately placed in a restrictive setting. A judge will decide whether or not to review the UAC's case to determine whether the UAC should remain in a restrictive setting. Requests for reconsideration of placement in a restrictive facility is a separate process and a separate determination from the 810 hearings, which determine whether a UAC is a danger to the community or flight risk if released from ORR custody.

Consistent with the Ninth Circuit Court of Appeals decision in Flores v. Sessions and paragraph 24A of the FSA, UACs also have the opportunity to seek a bond hearing with an immigration judge. This rule, at § 410.810, creations of an independent hearing officer process (“810 hearings”) which would provide substantially the same “practical benefits” as a bond hearing under the FSA, as described by the Ninth Circuit. In a bond hearing, an immigration judge decides whether the child poses a danger to the community. Similarly, an independent hearing officer within HHS would decide on the same question in an 810 hearing under this rule. ORR would take such a decision into account when determining a UAC's continued placement while in care.

HHS notes that further information about the placement of special needs minors in ORR care is found in the discussion regarding proposed rule, § 410.208.

Comment. A commenter noted that there was no provision in the proposed rule for a periodic reassessment of a minor's placement at least every 30 days, as the commenter contends is required under 8 U.S.C. 1232(c)(2)(A), or for independent review of a placement decision that satisfies due process requirements. The commenter recommended the adoption of standards it developed for providing both of these protections, which the commenter believes are necessary to ensure secure placements are limited to extreme circumstances only.

Response. The proposed rule did not impact ORR's policies and procedures for the 30 day restrictive placement review, for all UACs placed in secure, staff secure, and RTCs. (See ORR Policy Guide Section 1.4.2). HHS declines to adopt the standards suggested by the commenter because the rule implements and codifies both the FSA and other existing practices under the HSA and TVPRA.

Comment. Several commenters also expressed concern that the proposed rule § 410.206 weakened notice requirements for children placed in secure program.

Response. The proposed rule did not impact the notice requirements for children placed in secure programs. (See ORR Policy Guide Section 1.4.2)

Changes to Final Rule

HHS is not making any changes in the final rule to proposed § 410.206 which is consistent with the FSA.

Custody of an Unaccompanied Alien Child Placed Pursuant to This Subpart (45 CFR 410.207)

Summary of Proposed Rule

Section 410.207 of the proposed rule specified who has custody of a UAC under subpart B of these rules. The proposed regulation specified that upon release to an approved sponsor, a UAC is no longer in the custody of ORR. ORR would continue to have ongoing monitoring responsibilities under the HSA and TVPRA, but would not be the legal or physical custodian. See, e.g., 6 U.S.C. 279(b)(1)(L); 8 U.S.C. 1232(c)(3)(B). This interpretation accords with ORR's longstanding position, as well as provisions of the FSA (see e.g., paragraphs 15 through 17, discussing “release” from custody).

Comment. No public comments were submitted concerning this section of the proposed rule.

Changes to the Final Rule

HHS is not making any changes to the proposed rule.

Special Needs Minors (45 CFR 410.208)

Summary of Proposed Rule

In the proposed rule, ORR described ORR's policy regarding placement of a special needs minor. ORR also noted that an RTC may be considered a secure level of care and is discussed in proposed § 410.203.

Comment. Several comments submitted concerned the standards for ORR's care of children with disabilities. Two advocacy groups commented that the proposed regulations do not contain enough guidance regarding the consideration of a child's disability as part of a placement determination, and the provision which requires a psychologist or psychiatrist to determine whether a child is a danger Start Printed Page 44462to themselves or others, is insufficient to protect children with disabilities.

Multiple legal and advocacy organizations noted that research shows that children with disabilities placed in secure facilities may not have their individual needs met. One of these commenters stated that the proposed rule should take into account studies suggesting youth with disabilities who are placed in secure facilities are at high risk of unmet health needs, fail to receive appropriate accommodations for their disabilities, and are subject to harmful conditions, including the use of restraints and solitary confinement. Another organization asserted that the proposed rule contains inadequate standards to address the needs of children with disabilities and fails to guarantee special education for children with disabilities, in conflict with the U.S. Supreme Court case Plyler v. Doe, 457 U.S. 202 (1982), and the Individuals with Disabilities Education Act. Another commenter, a disability-rights organization noted that Section 504 of the Rehabilitation Act of 1973 is not addressed in the rule.

Several organizations commented that education and special needs plans for UACs in ORR care are vague and that educational assessment needs to be defined. In addition, the organizations contended that the proposed rule needs to be more specific regarding how children's individualized educational needs will be met.

Response. Under the rule, ORR will individually assess each UAC to determine whether the UAC has special needs and place the UAC in the least restrictive setting appropriate to the UAC's age and individual special needs. The proposed language also requires ORR, whenever possible, to place a UAC with disabilities in licensed programs where children without special needs are placed but that can provide the services and treatment needed to accommodate such special needs. UACs are placed in more restrictive settings, such as a RTC, only if the facility is the least restrictive placement available that meets the needs of the UAC as required by the TVPRA. See 8 U.S.C. 1232(c)(2)(A). Moreover, consistent with the July 30, 2018 Order in Flores v. Sessions, § 410.203 states that “placement in a secure RTC may not occur unless a licensed psychologist or psychiatrist determines that the UAC poses a risk of harm to self or others.”

All UACs in ORR custody are provided access to educational services while in care. Under § 410.402, all licensed programs must identify a UAC's special needs, including any specific problems that appear to require immediate intervention, as well as develop an individualized educational assessment and plan for each minor. ORR care providers must provide educational services appropriate to the UAC's level of development, literacy level, and linguistic or communication skills in a structured classroom setting, which concentrate mainly on the development of basic academic competencies and secondarily on English Language Training (ELT). Further guidance regarding academic educational services provided to UAC is included in ORR Guide, section 3.3.5, which again is consistent with and not abrogated by the rule. Care providers adapt or modify local educational standards to develop curricula and assessments, which must reflect cultural diversity and sensitivity. Remedial education and after school tutoring is provided as needed. Academic reports and progress notes are included and updated in the UAC's case file.

Changes to the Final Rule

HHS is not making any changes to proposed § 410.208 in the final rule, which adopts the special needs provision as found in the FSA, paragraph 7.

Procedures During an Emergency or Influx (45 CFR 410.209)

Summary of Proposed Rule

Section 410.209 describes the procedures ORR follows during an emergency or influx. The FSA defines “emergency” and “influx.” Consistent with the FSA, the proposed rule states that UACs should be placed in a licensed program as “expeditiously as possible.”

HHS proposed a written plan describing the reasonable efforts it will take to place all UACs as expeditiously as possible into a licensed shelter when there is an influx or emergency consistent with proposed § 410.209.

Comment. HHS received several comments on the use of influx facilities when there are not enough beds at licensed facilities during an emergency or influx. Many individuals wrote that UACs should not be detained in unlicensed or non-state licensed “tent cities,” but instead should be treated with respect and dignity.

Commenters were concerned with ORR's use of unlicensed soft-sided structures to house UACs during an influx, referring to them as “tent cities.” Commenters were concerned about the location of the Tornillo Influx Care Facility, especially the distance from El Paso, available services, and accommodations. Another commenter compared “tent cities” to Japanese and German internment camps.

The commenters highlighted the facility's exemption from state oversight and licensing requirements and described cramped detention conditions existing there. Several commenters argued that placement of UACs in such facilities would be contrary to the TVPRA and the HSA, and undermine the FSA.

Response. The FSA contemplates scenarios when the U.S. government's ability to place every UAC in a licensed facility is not possible during an emergency or influx. The HSA and the TVPRA do not prohibit the use of unlicensed facilities in some circumstances. The proposed rule defines those circumstances in § 410.101—Definitions.

When there is a sharp increase, or “influx,” in the number of UACs entering the United States and Federal agencies are unable to transfer them into state-licensed, ORR-funded care provider facilities in a timely manner, HHS may place certain UACs at influx care facilities. HHS has detailed policies for when children can be sheltered at a temporary influx care facility. The minor must be a youth between 13 and 17 years of age; have no known special medical or behavioral health conditions; have no accompanying siblings age 12 years or younger; and be able to be discharged to a sponsor quickly—among other considerations. (See ORR Policy Guide: Children Entering the United States Unaccompanied, Section 1.3.5).

HHS is the primary regulator of temporary influx care facilities and is responsible for their oversight, operations, physical plant conditions, and service provision. While states do not license or monitor influx care facilities, they operate in accordance with applicable provisions of the FSA, HSA, TVPRA, interim Final Rule on Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving Unaccompanied Alien Children, and ORR policy and procedures, and contract requirements.

HHS monitors temporary influx care facilities through assigned Project Officers, Federal Field Specialists, Program Monitors, and an Abuse Review Team, and all have the authority to issue corrective actions if needed to ensure the safety and wellbeing of all children in HHS' care.

HHS choses locations for temporary influx care facilities based on a number of factors relevant to child welfare, which included size, types of housing structures, and time considerations. HHS assesses possible influx sites for suitability to temporarily house UACs. Start Printed Page 44463HHS also seeks to limit the use of soft-sided temporary influx structures except as a last resort to prevent UACs from lengthy stays in U.S. Border Patrol stations or to address any other emergent issues that could cause a temporary inability to use one of our regular shelters.

HHS strives to provide a quality of care at temporary influx care facilities that is parallel to our state-licensed programs. Children in these facilities can participate in recreational activities and religious services appropriate to the child's faith, and receive case management, on-site education, medical care, legal services, and counseling.

HHS' goal is to place as many UACs as possible into permanent state-licensed facilities or transitional foster care while their sponsorship suitability determinations or immigration cases are adjudicated (in the event there is no sponsor available).

Changes to the Final Rule

HHS is not making any changes in the final rule to proposed § 410.209.

45 CFR Part 410, Subpart C, Releasing an Unaccompanied Alien Child From ORR Custody

This subpart covers the policies and procedures used to release, without unnecessary delay, a UAC from ORR custody to an approved sponsor.

45 CFR 410.300—Release a UAC From ORR Custody to an Approved Sponsor

Summary of Proposed Rule

In the proposed rule, HHS described the policies and procedures used to release a UAC from ORR custody to an approved sponsor.

Comment. HHS did not receive any comments on this section.

Changes to Final Rule

HHS adopts the standard in the proposed rule.

45 CFR 410.301—Sponsors to Whom ORR Releases an Unaccompanied Alien Child

Summary of Proposed Rule

In the NPRM, HHS proposed that it would release a UAC to a sponsor without unnecessary delay when ORR determines that continued custody of the UAC is not required to either secure the UAC's timely appearance before DHS or the Immigration Courts or to ensure the UAC's safety or the safety of others. HHS also listed individuals (and entities) to whom ORR releases a UAC. HHS refers to the individuals and entities in this list as `”approved sponsors,” regardless of their specific relationship with the UAC. The list of approved sponsors follows the order of preference set out in the FSA.

Comment. A few commenters disagreed with HHS' proposed language under § 410.301, which they believed afforded ORR broad authority to deny family reunification and raises serious due process concerns. For instance, the commenters pointed out that § 410.301 permits ORR to deny reunification on the basis that the child's sponsor will not secure the child's appearance before DHS or the Immigration Courts, which they believe improper. They also raised concerns that the proposed rule does not establish any process by which the child is protected from an erroneous decision by being provided a notice of such a determination; presented with evidence supporting ORR's determination; or given an opportunity to contest such a determination and to present their own evidence in opposition to ORR's determination.

Two commenters highlighted that the process also lacks a delineated timeline for decision-making or release. Multiple organizations argued that reuniting children with their families as quickly as possible is in the child's best interest. These organizations noted that it is in recognition of this interest that the FSA requires ORR to make “prompt and continuous efforts” towards family reunifications and to release children from immigration related custody “without unnecessary delay.”

Response. As stated above, the purpose of this rulemaking is to implement the provisions of the FSA. ORR derived language on denying UAC release verbatim from paragraph 14 of the FSA, which in itself was intended to address and fully settle Constitutional concerns, including due process issues, on behalf of the full class of UACs in INS legal custody, now HHS legal custody. The FSA did not include any provisions for the process urged by commenters. Similarly, the TVPRA—which includes Congress' detailed protections for UACs in the legal custody of HHS—did not include the process for challenging reunification urged by some commenters. ORR nevertheless notes that the various protections specified by commenters are addressed by ORR's existing policies (see ORR Policy Guide, section 2.7). Additionally, ORR notes that each case is unique and release decisions, by necessity, must be based on multiple factors, some of which are outside the agency's control (e.g., the time it takes for a sponsor to complete a sponsor application). ORR addresses timelines for its decision-making process and release recommendations in policies and procedures that interpret ORR's authorities and require that the decision-making process and release recommendations be made in a timely manner.

Comment. A commenter who is a former director of ORR stated that during his tenure at ORR, the agency interpreted (and implemented) the TVPRA mandate of placing UACs in the “least restrictive setting” to require that children be released from congregate care to parents, other family members, or other responsible adults (“sponsors”) as promptly as possible. The commenter further stated that sponsors' requests for reunification were denied only in narrow circumstances where reuniting a child with the sponsor would not be in the child's best interest. He also objected to the Director-level review and approval policy of the current Administration as needlessly delaying the release of children from ORR custody, putting children at risk of considerable harm, and violating the TVPRA. The commenter said that in circumstances where even short delays can have serious implications for child well-being, the delays that necessarily accompany this new layer of review pose a serious risk of harm. He also asserted that the Director-level review for dangerousness of the entire category of children previously in staff-secure or secure placements serves no conceivable purpose and was put into place in a manner contrary to any notion of responsible agency administration and management.

Response. HHS notes that the language regarding denying release of a minor derives from paragraph 14 of the FSA, and does not specify a regulatory requirement for a Director-level review. Likewise, ORR's current release policy, see ORR Policy Guide, section 2.7, does not include such a mandate for Director-level review. Additionally, ORR has an appeals process for when sponsorship is denied in ORR Policy Guide, section 2.7.7. This rule does not affect the appeals process for denying sponsorship.

Changes to Final Rule

While recognizing that ORR policy includes some of the process urged by commenters, the purpose of this final rule is to implement provisions of the FSA. HHS accordingly is not deviating from the language of the proposed rule. The rule adopts the substantive terms of the corresponding release provisions of the FSA, paragraph 14.Start Printed Page 44464

45 CFR 410.302—Sponsor Suitability Assessment Process Requirements Leading to Release of an Unaccompanied Alien Child From ORR Custody to a Sponsor

Summary of Proposed Rule

In the proposed rule, HHS outlined the process requirements leading to release of a UAC from ORR custody to a sponsor (also referred to as a “custodian”). The FSA at paragraph 17 allows ORR the discretion to require a suitability assessment prior to release, and the TVPRA provides that ORR may not release a UAC to a potential sponsor unless ORR makes a determination that the proposed custodian is “capable of providing for the child's physical and mental well-being. Such determination shall, at a minimum, include 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.” 8 U.S.C. 1232(c)(3)(A). As such, the proposed rule requires a background check, including at least a verification of identity for potential sponsors in all circumstances. In accordance with the FSA, under the proposed rule, suitability assessments can include an investigation of the living conditions in which the UAC would be placed; the standard of care he or she would receive; interviews of household members; a home visit if necessary; and, follow-up visits after the child's release from care. Furthermore, where the TVPRA requires a home study, as specified in 8 U.S.C. 1232(c)(3)(B), the proposed regulations acknowledge such requirement. The FSA says that the proposed sponsor must agree to the conditions of release by signing a custodial affidavit (Form I-134) and release agreement. However, the Form I-134 is a DHS form, and ORR does not use this form. Therefore, the proposed rule would have the sponsor sign an affirmation agreeing to abide by the sponsor care agreement, which is the agreement and accompanying form ORR has used so that the sponsor acknowledges his or her responsibilities.

Further, consistent with the FSA and the TVPRA, ORR's suitability assessment includes biographic background checks (such as public records checks and sex offender registry checks) of potential sponsors, including biological parents, and household members, as well as fingerprinting only as is needed to ensure that release of a UAC to prospective sponsors is safe. Of note is that, in many, if not most cases, as well, while a sponsor may be a biological parent, the child arrived unaccompanied, and may not have lived with the parent for much or a significant portion of his or her childhood, so background checks remain important for safety reasons. Such background checks of all potential sponsors and household members are consistent with various state child welfare provisions. For example, all states require background checks for prospective foster care and adoptive parents, and kinship caregivers typically must meet most of these same requirements. See “Background Checks for Prospective Foster, Adoptive, and Kinship Caregivers,” available at: https://www.childwelfare.gov/​pubPDFs/​background.pdf#page=​2&​view=​Who Aug. 4, 2018). As of the time of the publication of the report, in 48 states, all adults residing in the home also were subject to background checks. A criminal records check for adult sponsors and other household members will check the individual's name in State, local or Federal law enforcement agencies' records, including databases of records for any history of criminal convictions. Moreover, nearly all states require a check of national criminal records. See also 42 U.S.C. 671(a)(20) (providing that states receiving Federal funding for foster care and adoption assistance provide “procedures for criminal records checks, including fingerprint-based checks of national crime information databases (as defined in section 534(e)(3)(A) 1 of title 28), for any prospective foster or adoptive parent before the foster or adoptive parent may be finally approved for placement of a child.”).

In § 410.302(e), HHS ORR proposed a list of conditions and principles of release. ORR also invited public comment on whether to set forth in the final rule ORR's general policies concerning the following:

1. Requirements for home studies (see 8 U.S.C. 1232(c)(3)(B) for statutory requirements for a home study);

2. Denial of release to a prospective sponsor, criteria for such denial, and appeal; and

3. Post-release services requirements.

Note: In accordance with the Flores v. Sessions July 30, 2018 court order, ORR stated in the preamble that it will not have a blanket policy of requiring post release services to be scheduled prior to release—for those UACs who required a home study—but will evaluate such situations on case-by-case basis, based on the particularized needs of the UAC as well as the evaluation of the sponsor, and whether the suitability of the sponsor may depend upon having post release services in place prior to any release. It is not necessary to include the policy on post-release services being in place, discussed above, explicitly in the regulation text, as the requirement for release without “unnecessary delay” is already included in the substantive rule, and this process is an interpretation of that requirement. Current policies are set forth in the ORR Policy Guide available at https://www.acf.hhs.gov/​orr/​resource/​children- entering-the-united-states-unaccompanied at: Sections 2.4 through 2.7.

Comment. Some organizations disagreed with HHS' proposed language under § 410.302 because they thought it lacked accountability and oversight for ORR and establishes discretionary factors ripe for discriminatory application. The commenters noted that § 410.302(a) fails to establish any timeline requirements or requirements for prompt release. One commenter noted that HHS lacked requirements to make continuous efforts at release, and referenced agency practice as opposed to statutory and Flores requirements.

Response. HHS wishes to reiterate that this final rule is intended to implement the terms of the FSA (and the TVPRA and HSA to the extent such statutes directly affect FSA provisions). It is not designed to address litigation related to children separated from their parents. HHS disagrees with commenters who indicated that the agency did not follow statutory or FSA requirements; the language in § 410.302 is verbatim of language in paragraph 18 of the FSA that the licensed program “shall make and record the prompt and continuous efforts on its part toward family reunification and the release of the minor.” Issues of timeline requirements are not included in the FSA. With respect to separated children, HHS notes that this rule is intended to implement the FSA, and it is beyond the scope of this rulemaking to incorporate any requirements stemming from ongoing litigation. Such requirements govern how a Federal agency interacts with, monitors, and oversees its grantees and contractors and are more appropriately discussed and defined in ORR policy while this rule focuses exclusively on codifying the FSA.

Comment. Organizations and commenters raised concerns that § 410.302(b) may lead to discrimination on account of economic status due to the lack of specificity in describing what standard of care is satisfactory for reunification, and what living conditions would raise concerns. They argue that poverty alone should not prevent a child's release from government custody.Start Printed Page 44465

Response. HHS disagrees with the commenter's characterization of this requirement. Paragraph 17 of the FSA states specifically that the suitability assessment may include: “verification of identity and employment of the individuals offering support.” ORR notes that the employment check is only one factor among many in the suitability assessment to ensure that the potential placement is in the child's best interest. Poverty, alone, will not prevent a UAC's release, but the TVPRA prohibits HHS from releasing a UAC unless it determines that a potential sponsor is “capable” of caring for the minor's “physical and mental well-being.” Part of such analysis requires determining the sponsor's means to do so, which may include employment.

Comment. Many commenters believed that § 410.302(c) allows ORR to unnecessarily and inappropriately require a further suitability assessment and delay a child's placement with a sponsor. Several organizations argued that information obtained by ORR during the suitability assessment of a sponsor should not be shared with DHS for immigration enforcement purposes. In addition, some organizations said that sponsors should receive notice of the additional requirements and an opportunity to contest their necessity or to satisfy concerns in an alternate manner. One commenter suggested HHS could get the information it needs through its own Central Index System or the Executive Office for Immigration Review Hotline, which provides immigration hearing information. The commenter argued that the procedures in the proposed rule are contrary to children's best interests, which the law requires HHS to prioritize.

Response. The FSA does not include provisions for sponsors contesting the necessity of additional conditions. Instead, paragraph 17 of the FSA provides the discretion for the agency to conduct a suitability assessment prior to release. Such suitability assessment may include interviews of household members and may require home visits. In addition, ORR adheres to the TVPRA, which states that, “[b]efore placing the child with an individual, the Secretary of Health and Human Services shall determine whether a home study is first necessary.” 8 U.S.C. 1232(c)(3)(B). ORR policies similarly allow the Office to use its discretion to provide home studies when it is in the best interest of the child, see ORR Policy Guide, section 2.4. Home studies—a common practice in State foster care systems—ensure that a home is investigated, especially in cases where there is concern about the sponsor, or the UAC is especially vulnerable.[40] The agency is required to balance timely releases with ensuring the safety of UACs, including that they are not released to traffickers or others who would abuse or exploit them. Further, HHS notes section 224(a) of DHS's current fiscal year 2019 Appropriations Act [41] bars DHS, except in certain limited circumstances, from taking certain enforcement actions “against a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of an unaccompanied alien child [`UAC'] . . . based on information shared by [HHS].” [42]

ORR notifies sponsors following its policies and procedures on the home study process.

Lastly, with regard to obtaining information through the Central Index System, HHS notes that this system is actually maintained by the U.S. Citizenship and Immigration Service, an agency within DHS.

Comment. Commenters also referred to the expanded suitability assessments, as described in § 410.302(c) and in the Memorandum of Agreement (MOA) between ORR, ICE, and CBP concerning information sharing (see ORR-ICE-CBP Memorandum of Agreement Security Regarding Consultation and Information Sharing in Unaccompanied Alien Children Matters (Apr. 13, 2018)), as unnecessary, likely to deter potential sponsors from coming forward, and violative of DHS's own privacy policy and the privacy rights of potential sponsors. One commenter stated that HHS and DHS have never convincingly articulated why immigration status determinations merit the privacy risk to parents and relatives. Several commenters believed that HHS' pre-MOA suitability assessments were sufficiently robust without expanding data collection and exchange and argued that the proposed rule fails to justify why additional steps are necessary to assess sponsor suitability. To support the assertion that pre-MOA suitability assessment policies were sufficient, the commenters referenced three reports published by the Government Accountability Office (dated 4/26/2018, 2/5/2016, and 7/14/2015) recommending improvements to HHS' care of UACs and pointed out that none of the reports made recommendations calling for enhancements to HHS' sponsor suitability assessments. One commenter also referenced a report written by the Senate Permanent Subcommittee on Investigations (dated 8/15/2018) that focused on procedures for distant relatives or non-relatives but made no recommendations for procedures for parental or close relative sponsors. The commenters pointed out that neither the TVPRA or the FSA require HHS to collect immigration status information on sponsors or other adult members of the household. They argued that the expanded collection and sharing of information about potential sponsors' immigration status serves no legitimate purpose in that, per the ORR Policy Guide, immigration status is not used to disqualify a potential sponsor. They also mentioned that there are alternative methods to obtain immigration status information that does not involve ICE, such as USCIS's Central Index System or the Executive Office for Immigration Review Hotline. The commenters posited that the practice of using information collected under the MOA for immigration enforcement purposes deters and/or delays family reunification because potential sponsors, many of whom are in the United States without legal immigration status, fear coming forward to sponsor children. The commenters also theorized that individuals who are lawfully present, including U.S. citizens, may also be deterred from sponsoring UAC in order to avoid interacting with ICE or exposing others living with or near them who lack legal immigration status to potential immigration enforcement. One commenter highlighted that further complications can arise when a household member refuses to undergo a background check. The commenter explained that sponsors may be forced to choose between leaving their home and leaving their child or loved one in Federal custody. The commenters suggested that HHS restrict access and use of data only to the vetting of potential sponsors. The commenters stated repurposing the data will Start Printed Page 44466contribute to the fear that interacting with any government agency will bring about an enforcement action.

Response. Consistent with the FSA and TVPRA, the proposed rule would codify the FSA standard to release UACs to sponsors promptly and without unnecessary delay. HHS disagrees with the commenters' assertion that additional information, such as information about a sponsor's immigration status, or fingerprinting in certain cases, is unnecessary. The TVPRA requires HHS to conduct a suitability assessment and is clear that the standards it requires (verification of the custodian's identity and relationship to the child, if any, as well as a determination that a proposed sponsor is “capable of providing for the child's physical and mental well-being,” including an “independent finding that the individual has not engaged in any activity that would indicate a potential risk to the child”) are the minimum standards required. The TVPRA also sets forth a general principle that HHS “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.” 8 U.S.C. 1232(c)(1).

In order to carry out the Department's mission to ensure safe release of UAC to their sponsors, while protecting vulnerable children from traffickers or others seeking to victimize or exploit them, ORR must be able to fingerprint or apply suitability assessments as appropriate. The rule does not require fingerprinting or immigration status checks for all cases; ORR uses the information from background check results to make release decisions in the child's best interest. ORR also engages in information sharing with other Federal agencies to ensure that children are protected from smugglers, traffickers, or others who might seek to victimize or otherwise engage the child in criminal, harmful or exploitative activity, as required by the TVPRA, 8 U.S.C. 1232(c)(1). HHS acknowledges that some requirements of suitability assessments and information sharing are factors that may contribute to a longer reunification process in some cases, however, HHS must balance its mandate to promptly release the child with its equally important mandate of ensuring that the child be released into a safe environment.

HHS continuously evaluates its UAC Program and operations. As part of this ongoing review process, ORR evaluated the effect expanded suitability assessments had on its mission of safe and timely release of UACs. This included evaluation of whether the expanded biometric background checks, as described in the ORR-ICE-CBP Information Sharing Memorandum of Agreement (Apr. 2018), yielded new information that enabled ORR to identify child welfare risks that the office would not have found under the prior policy, as well as whether a correlation existed between the expanded biometric background checks and UAC length of care in ORR custody (“length of care” refers to the total time that a UAC is under ORR care and custody; whereas “length of stay” refers to a UAC's placement at one specific care provider facility and does not account for time a UAC may have been placed at another care provider facility). ORR then issued a series of four operational directives (one in December 2018, one in March 2019, and two in June 2019) that modified the suitability assessment process to achieve an appropriate balance between safety and timeliness under the operating conditions faced by ORR.

Under the operational directives, ORR completes individualized suitability assessments of sponsors without obtaining fingerprints from all household members, or all parent/legal guardian or close relative sponsors in appropriate cases. ORR also permits under certain circumstances the release of children to other relatives who were their primary caregivers prior to receiving the results of a fingerprinting background check. Further, ORR no longer requires verification of immigration status information before releasing UAC to sponsors, or mandates Child Abuse and Neglect (CA/N) checks unless there is a specific and substantial child welfare concern.

Congress has prohibited HHS from using funds provided in the Emergency Supplemental Appropriations for Humanitarian Assistance and Security at the Southern Border Act, 2019 (Pub. L. 116-26) or previously appropriated funding to reverse the procedures of the first three operational directives, unless the Secretary determines that a change is necessary to protect an unaccompanied alien child from being placed in danger. Further the Secretary is required to submit the justification for the change in writing to the HHS/Office of Inspector General and to Congress prior to implementation of the proposed change. See section 403 of Public Law 116-26.

HHS disagrees with the commenters' assertion that immigration status checks are unnecessary. While ORR does not use immigration status to disqualify a proposed sponsor, ORR does use the proposed sponsor's immigration status to determine whether a sponsor care plan is necessary in the event the sponsor is required to leave the United States.

Additionally, HHS notes section 224(a) of DHS's fiscal year 2019 appropriations bars DHS from taking certain enforcement actions “against a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of an unaccompanied alien child [`UAC'] . . . based on information shared by” HHS. Per the June 10, 2019 Operational Directive, case managers working with ORR grantee care providers are to share this information with persons subject to fingerprint background checks.

Comment. Another commenter urged HHS to resist cooperating with DHS enforcement activities relating to sponsors, citing several immigration related contexts in which access to data has been limited to further a greater societal need. This commenter shared that numerous police departments resist working with or sharing information with immigration enforcement entities because doing so has demonstrably limited their ability to respond to crime; that individuals who applied for Deferred Action for Childhood Arrivals (DACA) were promised that the data in their DACA applications would not be proactively shared with ICE for enforcement purpose; and that there are also restrictions on what data the Internal Revenue Service (IRS) can share with DHS, despite mounting pressure to enable DHS to use IRS data for enforcement purposes. Similarly, another commenter proposed that HHS require information that relates to sponsors' and household members' criminal status and immigration status be sealed upon the conclusion of a suitability assessment.

Response. The MOA and information sharing with other agencies is not the subject of the FSA and the rules implementing such Agreement. In addition, HHS does not control how another Federal agency may use information HHS shares in order for HHS to carry out its FSA and/or TVPRA requirements. However, HHS notes that section 224(a) of DHS's fiscal year 2019 appropriations bars DHS from taking certain enforcement actions “against a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of an unaccompanied alien child [`UAC'] . . . based on information shared by [HHS].”

Comment. One organization asserted that HHS would be violating the Fair Information Practice Principles (FIPP) Start Printed Page 44467and the privacy rights of potential sponsors by using information from background checks to deport sponsors and other relatives. The commenters cited an April 27, 2017, memorandum issued by DHS in which DHS extended FIPPs protections to all persons regardless of citizenship or legal status; the commenters stated that HHS is aiding DHS in violating the spirit of two of the FIPPs principles: Individual participation and use limitation.

The commenters believe that meaningful consent is impossible here because HHS presents parents with a Hobson's choice: Either consent to the release of your personal information to DHS and face possible deportation, or allow your child to languish in Federal custody until he or she turns 18 and is transferred into ICE custody.

Response. HHS disagrees that any information it shares with DHS would violate FIPPs. Once again, HHS does not share information with DHS for law enforcement purposes and notes that section 224(a) of DHS's fiscal year 2019 appropriations bars DHS from taking certain enforcement actions “against a sponsor, potential sponsor, or member of a household of a sponsor or potential sponsor of an unaccompanied alien child [`UAC'] . . . based on information shared by [HHS].” Additionally, HHS' March and June 10, 2019 Operational Directives, specifically exempts the vast majority of parent (and legal guardian) and close relative sponsors from fingerprint background check requirements.

Comment. The commenters pointed out that § 410.302(f) of the proposed rule permits ORR to deny reunification on the basis that the child's sponsor will not secure the child's appearance before DHS or the immigration courts; does not establish any process by which the child may be protected from an erroneous decision; or be provided notice of such a determination or the evidence used to make it.

One organization proposed expanding the use of affidavits to require sponsors of children to submit sworn statements attesting that their homes are safe for children. Additionally, the commenter proposed that HHS create an appeals process for denying sponsorship and produce aggregated annual reports on sponsors it denies. Another commenter urged HHS to put requirements regarding home studies, denial of release to sponsors, and post release services in the policy and procedure guide, not the final rule.

Response. HHS notes that the language regarding denying release of a minor derives from paragraph 14 of the FSA. HHS refers readers to earlier responses regarding including additional process or timelines that were not outlined or included in the FSA. Regarding the various denial procedures specified by commenters, the safety of UACs and others is paramount when deciding whether to approve or deny release to a sponsor, and the sponsor denial procedures which ORR implements appear in section 2.7 of the ORR Policy Guide. ORR notes that is not possible to have specific timeframes for release because each case is unique, and decisions are based on multiple factors. However, ORR will address timelines for decision-making or release in policies and procedures interpreting the regulations with the understanding that all decisions be made in a timely manner. Historically, ORR utilizes a sponsor care agreement, in which the sponsor signs and affirms responsibility to provide for the physical and mental well-being of the minor, and the proposed rule will not affect this agreement. To ensure a sponsor's home is safe and appropriate for a UAC, ORR has policies and procedures in place to conduct a home study (see Section 2.4.2 of the ORR Policy Guide) and to provide post release services (see Section 6.2 of the ORR Policy Guide). ORR also has an appeal process for denying sponsorship (see section 2.7.7 of the ORR Policy Guide). The rule does not impact the requirements regarding home studies, post release services, and denial of release to sponsors in ORR's policies and procedures, nor the aggregated data reported by ORR in annual reports.

Changes to Final Rule

The rule adopts the substantive terms of the corresponding release and suitability provisions of the FSA, paragraphs 14 and 17. However, in response to commenters' concerns, HHS clarifies that the licensed program providing care for a UAC shall make continual efforts at family reunification as long as the UAC is in the care of the licensed program.

45 CFR Part 410, Subpart D, Licensed Programs

45 CFR 410.400—Purpose of This Subpart

Summary of Proposed Rule

In this subpart, HHS described the standards that licensed programs must meet in keeping with the FSA, including the general principles of the settlement agreement of treating all minors in custody with dignity, respect, and special concern for their particular vulnerability.

Comment. A commenter said that the United States government should utilize international rights-based standards for the care and treatment of children, who need special protections given their vulnerability.

Response. HHS notes that the proposed rule does not replace the requirements ORR has for licensed programs to provide a high-quality standard of care as outlined in ORR's Policy Guide. Rather, the rule adopts the FSA's minimum standards for licensed programs, found at Exhibit 1. Please see the introduction to the ORR Policy Guide and section 3.3 of the ORR Policy Guide for more information about ORR's special protections for vulnerable children.

Changes to the Final Rule

HHS is not making any changes in the final rule to § 410.400.

45 CFR 410.401—Applicability of This Subpart

Summary of Proposed Rule

This subpart applies to all ORR licensed facilities providing care in shelters, staff secure facilities, residential treatment centers, or foster care and group homes.

Comment. Some commenters cited research indicating that the best practice is to place immigrant youth in foster family placements and not large detention or shelter settings. A different commenter suggested that children be placed in orphanages until they reached a certain age.

Response. ORR has foster care programs for some immigrant youth, and the proposed rule does not impact minimum standards for those programs. See Exhibit 1 of the FSA; see also ORR Guide, Sections 1.4.4 and 3.6. ORR does not place children in orphanages; orphanages in the U.S. have been replaced by foster care systems.

Changes to the Final Rule

HHS is not making any changes in the final rule to § 410.401.

45 CFR 410.402—Minimum Standards Applicable to Licensed Programs

Summary of Proposed Rule

In this subpart, ORR described the specific minimum standards of care each licensed program must follow.

Section 410.402 reflected the minimum standards of care listed in Exhibit 1 of the FSA, which are consistent with the Flores v. Sessions Court order of July 30, 2018, as they require that licensed programs comply with applicable state child welfare laws and regulations and that UACs be Start Printed Page 44468permitted to “talk privately on the phone, as permitted by the house rules and regulations.” ORR expected licensed programs to easily meet those minimum standards and, in addition, to strive to provide additional care and services to the UACs in their care.

Comment. Many commenters stated that holding children in facilities that are not licensed by state child welfare agencies is inhumane and dangerous. Several commenters suggested that the proposed rule is vague and would harm children by overturning longstanding conditions that the government previously agreed to and which have effectively protected children.

Response. The rule adopts the FSA's provisions regarding placement of UACs in state-licensed programs. Each licensed program must meet the minimum standards outlined by the FSA, which will effectively protect children.

Comment. One commenter urged HHS and DHS to protect the FSA, stating that knowingly exposing migrant children to prison like conditions, while simultaneously removing existing mechanisms for court monitoring and independent oversight, would be a deliberate violation of their human rights.

Response. ORR's standards for licensed care provider programs are adopted from the FSA. For the UAC program, all licensed facilities must meet the minimum standards set forth in Exhibit 1 of the FSA.

Comment. Commenters noted that even under the current requirements around licensing, conditions could result in trauma. Commenters contend that children's rooms are cramped and subject to uncomfortable temperatures and they cannot access medical attention right away. Commenters stated that unlike licensed shelter placements, many of ORR's more restrictive settings closely resemble prison. Children may be under constant surveillance, required to wear facility uniforms, and have little control.

Response. In § 410.402 of the proposed rule, HHS outlined all the minimum standards applicable to licensed care provider programs for children in ORR's care, and included requirements to comply with child welfare laws and regulations and all State and local building, fire, health, and safety codes. These minimum standards were adopted directly from Exhibit 1 of the FSA. Further, the proposed rule is consistent with and does not abrogate ORR's policies and procedures for UAC services, including items provided to each UAC, safety planning, and living arrangements (see ORR Policy Guide, Section 3).

Comment. Several commenters wrote about allegations of abuse taking place in detention facilities. They also mentioned allegations of abuse occurring within ORR custody such as in Southwest Key facilities in Arizona. Commenters also submitted an article from Reveal (Aura Bogado, Patrick Michels, Vanessa Swales, and Edgar Walters, published June 20, 2018) that detailed several allegations of abuse at shelters serving children in ORR custody, including abuse allegations at Shiloh Treatment Center in Texas. These commenters expressed their concern that the new rule would allow for longer periods of detention, which would raise the risk of abuse.

Response. HHS takes any and all allegations of abuse of UACs seriously. The proposed rule will not change ORR's standards of care or reporting requirements. See IFR; ORR Guide, sections 3, 4, and 5.

Comment. Commenters wrote that many of the migrants who arrive in the United States have experienced trauma and thus, it is important for facilities to provide trauma-informed care to migrants to help them heal and achieve self-sufficiency.

Response. The proposed rule does not affect ORR's mental health services for UACs. It adopts the FSA's requirement that licensed programs provide appropriate mental health interventions when necessary and weekly individual counseling sessions by trained social services staff. Individual counseling sessions address crisis-related needs, including trauma. See also ORR Guide, section 3.3 for more information on counseling services for UAC.

Comment. Several commenters argued that education and special needs plans are vague and that educational assessment needs to be defined. In addition, they contended that the proposed rule needs to be more specific regarding how children's specific education needs will be met. One commenter noted that few children, if any, are screened for disability-related issues upon transfer from ICE to ORR custody. Another commenter advocated that ORR should take into account the special needs of children, as is required under the Individuals with Disabilities Education Act (34 U.S.C. 1400 et seq.) and 34 CFR 300.7.

Response. The provision adopts the standards of Exhibit 1, including a requirement for licensed programs to deliver services in a manner sensitive to the complex needs of each individual UAC. HHS takes into account the special needs of children, through education assessments and education services. See ORR Guide, sections 3.3 and 3.3.5. The proposed rule will not affect assessments and services.

Comment. One medical faculty group recommended that HHS strive to reduce trauma among families by adopting Substance Abuse and Mental Health Services Administration (SAMHSA) guidelines for a trauma-informed approach, which include: (1) Safety; (2) trustworthiness and transparency; (3) peer support; (4) collaboration and mutuality; (5) empowerment, voice and choice; and (6) sensitivity to cultural, historical, and gender issues. The commenters believe that the proposed changes to current regulations violate standards of trustworthiness, transparency, collaboration, and empowerment, and they and they urge that the current FSA standards be retained.

Response. HHS notes that it provides care for UACs, not adults. The proposed rule does not impact ORR's policies and procedures for ORR services to UACs, as outlined. The proposed rule keeps the FSA minimum standards for licensed facilities. For responses regarding DHS FRCs, refer to Section 8 “Detention of Families.”

Comment. Several commenters argued that HHS omitted certain minimum standards. For instance, one organization found the minimum standards at section 410.402 did not provide sufficient safeguards for children's health and safety, while another contended that HHS does not address the educational service requirement. Another interest group commented that the minimum standards do not address basic services such as the provision of food, water, and medical care.

Response. HHS notes that the proposed rule keeps the FSA standards for licensed facilities, including the provision of food, water, and medical care. The proposed rule does not impact the safeguards for child health and safety. See ORR Guide, sections 3.3 and 3.4. ORR's policies and procedures also address the education service requirement. See ORR Guide, section 3.3.5. The proposed rule does not impact ORR's education services.

Comment. An organization representing multiple welfare agencies recommended that HHS include trauma screenings and developmental learning; that outdoor activity time frames be expanded; that clinical services be trauma-informed; that celebration of cultural and religious celebrations be included; and that internet access for correspondence be required.Start Printed Page 44469

Response. HHS will address specific changes to UAC services through its policies and procedures.

Comment. Another organization found that service provisions in the proposed rule did not address the needs of victims of violence and sexual abuse, victims who are most likely going to be women and children.

Response. Because it adopted the provisions of Exhibit 1 of the FSA, the proposed rule did not change ORR's mental health services for UAC in care, including weekly individual counseling sessions by trained social work staff. Individual counseling sessions address any crisis-related needs, including sexual abuse and violence. See ORR Policy Guide, section 3.3.

Comment. One commenter contended that “the proposed rules are, at worst, expressly prohibited by the FSA and, at best, incompatible with the letter and spirit of the agreement.” It also argued that the proposed new layer of Federal rules was duplicative of State law requirements already in place.

Response. HHS disagrees that the rule is prohibited by or incompatible with the FSA. In fact, the proposed rule adopts the FSA's minimum standards for ORR licensed facilities. HHS recognizes that the proposed rule may be duplicative of State licensing requirements in some respects, and any duplication issues will be addressed in ORR policies and procedures.

Comment. Several commenters asserted that UACs are housed in prison-like conditions, sleeping on cement floors, using open toilets, and suffering from exposure to extreme cold and insufficient food and water.

Response. HHS believes these public comments specifically refer to allegations about CBP facilities (see § 236.3(g)). HHS provides living standards meeting the minimum standards of the FSA. The proposed rule, as well as ORR policies and procedures, address food and water for UACs in care.

Comment. Many commenters and organizations argued the rule removes child protections set in both U.S. child welfare standards and the FSA, undermining the safety, development, and well-being of children. The commenter argued that the procedures that the proposed rule would codify are contrary to children's best interests, which the law requires HHS to prioritize.

One commenter stated harms may surface or be aggravated when unaccompanied minors are placed in confined, institutional settings and are separated from family members and other community affiliations.

Response. HHS notes that the proposed rule adopts FSA standards for licensed facilities. It requires licensed facilities to comply with all applicable state child welfare laws and regulations. The proposed rule also did not change ORR's services for UAC, which prioritize safety, development, and well-being of children. ORR's services for UAC are outlined in section 3.3 of the ORR Policy Guide. The proposed minimum standards for licensed facilities do not change ORR's policies for UACs to have a minimum of two phone calls per week with their family, and access to community outings. Please see section 3.3 of the ORR Policy Guide for more details.

Comment. A commenter advocated hiring of Spanish speaking counselors to hear asylum claims and provide education on birth control.

Response. HHS notes that it is not an immigration enforcement or adjudication agency, and does not hear asylum claims. The proposed rule did not impact HHS' services for UACs, and it adopts the FSA's requirement to deliver services in a manner sensitive to UACs' cultures and native languages. The proposed rule did not impact ORR's UAC family planning services. See ORR Guide, section 3.3.

Comment. A commenter suggested that ICE and ORR consider issuing guidance to contractors, non-profits and faith-based organizations that are tasked with assisting the Federal Government in the care or education of immigrant youth.

Response. HHS notes that ORR already issues guidance in the form of policies and procedures to the grantees it funds to support the provision of care and custody to UACs in its custody. The minimum standards ORR communicates are based on the FSA's minimum standards, which the proposed rule has adopted. As a result, the proposed rule did not impact ORR's guidance to contractors, non-profits, and faith-based organizations regarding services for UAC. For more information on ORR's guidance for UAC services, please see section 3.3 of the ORR Policy Guide.

Comment. One commenter said that children, whether unaccompanied or accompanied, should receive timely, comprehensive medical care that is culturally and linguistically-sensitive by medical providers trained to care for children. The commenter said that trauma-informed mental health screening should be conducted once a child is in the custody of US officials via a validated mental health screening tool, with periodic re-screening, additional evaluation, and care available for children and their parents.

Response. The proposed rule did not impact medical services or mental health services for UAC, which are culturally- and linguistically-appropriate as required by the FSA. See also ORR Guide, sections 3.4 and 3.3. The proposed rule does not impact ORR's mental health screening tools.

Comment. One organization objected that the proposed rule did not include provisions for ensuring availability of licensed programs in geographic areas where children are apprehended.

Response. The proposed rule did not impact the location of ORR licensed programs, nor the cultural and linguistic requirements for UAC services in ORR care.

Comment. One commenter is concerned that the proposed rule will put LGBTQ youth in more restrictive settings, increasing their vulnerability to abuse. Other commenters noted that due to negative stereotypes about LGBTQ people as being more likely to engage in coercive sexual activity, LGBTQ youth are more likely than their straight and cisgender counterparts to face criminal consequences for consensual sexual activity. Commenters also asserted that, in the juvenile justice system, LGBTQ youth are sometimes even classified as sexual offenders at intake.

Response. HHS recognizes that LGBTQ youth may have unique needs and concerns, which its care providers must provide for, under both the FSA and the proposed rule. In addition, the IFR requires staff training and efforts to protect LGBTQ youth from abuse. Further, the proposed rule is consistent with and does not abrogate existing ORR policies to protect and care for LGBTQ youth. See ORR Guide, section 3.5. The proposed minimum standards for licensed facilities do not impact the quality of care for these vulnerable youth.

Comment. One commenter claimed that the proposed rule is immoral as well as illegal under international law. The commenter cited to a portion of Article 12 of the Universal Declaration of Human Rights which states: “No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honor or reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Response. HHS notes that the proposed rule adopts the FSA's minimum standards for licensed programs, which explicitly include a UAC's reasonable right to privacy. Because the rule adopts the FSA's standards, this provision does not impact the privacy standards set forth by the FSA for licensed facilities.Start Printed Page 44470

Comment. One organization recommended the government immediately provide minors and UACs who are taken back into custody with an opportunity to contact family members as well as their attorneys.

Response. As stated in both the FSA and the proposed rule, all UACs are provided the opportunity to talk privately on the phone subject to house rules. The proposed minimum standards for licensed facilities do not change ORR's policies for UAC to have a minimum of two phone calls per week with their families, and unrestricted access to preprogrammed phone to contact legal service providers. Please see section 3.3 and 4.10.1 of the ORR Policy Guide for more details.

Comment. One commenter noted that in a study of immigration court cases involving unaccompanied minors over a two year period, the presence of an attorney proved crucial to the fate of the children in those cases. In nearly three quarters of the cases (73 percent) where the child was represented, the court allowed the child to remain in the United States. The child was ordered removed in only 12 percent of these cases while the remaining 15 percent filed a voluntary departure order. Where the child appeared in immigration court alone without legal representation, only 15 percent were allowed to remain in the country. The rest of the unrepresented minor children in immigration court were ordered deported, 80 percent through the entry of a removal order, and 5 percent with a voluntary departure order.

Several commenters cited government statistics [43 44] that show that between 1997-2017, border arrests decreased from 1,412,953 to 310,531, while the number of border agents increased from 6,895 to 19,437. For unaccompanied children's cases in FY2017, nearly 60% were unrepresented.[45] Without an attorney, children are five times more likely to be deported.[46]

Response. HHS notes that the proposed rule does not change ORR's policies for UAC in licensed facilities to have access to legal service providers. The proposed rule for minimum standards in licensed facilities states UAC in licensed facilities receive “Legal services information regarding the availability of free legal assistance, the right to be represented by counsel at no expense to the government, the right to a removal hearing before an immigration judge, the right to apply for asylum or to request voluntary departure in lieu of removal.”

Comment. Another commenter supported locating children in facilities near relatives slated to receive custody, and streamlining the custody process.

Response. The proposed rule does not impact the location of ORR licensed programs, nor the procedures to approve release to appropriate sponsors.

Changes to the Final Rule

HHS is not making any changes in the final rule to § 410.402.

45 CFR 410.403—Ensuring That Licensed Programs are Providing Services as Required by These Regulations

In this subpart, HHS describes how ORR will ensure licensed programs are providing the services required under § 410.402. As stated in this section, to ensure that licensed programs continually meet the minimum standards and are consistent in their provision of services, ORR monitors compliance with these rules. The FSA does not contain standards for how often monitoring shall occur, and this regulation does not propose to do so. At present, ORR provides further information on such monitoring in section 5.5 of the ORR Policy Guide (available at: https://www.acf.hhs.gov/​orr/​resource/​children-entering-theunited-states-unaccompanied-section-5#5.5).

Comment. One commenter stated that having State licensing is important to ensure that facilities are investigated and violations are brought to light. The commenter noted that the Texas State health regulators documented roughly 150 standards violations at more than a dozen Southwest Key migrant children shelters across Texas, including: Children left unsupervised and harming themselves; staff members belittling children and shoving them; keeping kids in un-air conditioned rooms in hot weather; and improper medical care. In the past five years, the commenter stated, police have responded to at least 125 calls reporting sex abuse offenses at shelters in Texas that primarily serve immigrant children, though psychologists have said that such records likely undercount the problems because many immigrant children do not report abuse for fear of affecting their immigration cases.

Commenters also cited an investigative report claiming that the Federal Government continues to place migrant children in for-profit residential facilities where allegations of abuse have been raised and where the facilities have been cited for serious deficiencies. Allegations include failure to treat children's sickness and injuries; staff drunkenness; sexual assault; failure to check employees' backgrounds; failure to provide appropriate clothing for children; drugging; and deaths from restraint. According to the commenters, few companies lose grants from DHS and HHS based on such allegations.

Response. HHS takes all and any allegations of abuse of UAC seriously. The proposed rule did not change ORR's standards of care of UAC and reporting requirements, as outlined in sections 3, 4, and 5 of the ORR Policy Guide. As under the FSA, licensed programs operating under the proposed rule are subject to state licensing standards, monitoring, and investigations. In addition, the proposed rule would not impact ORR's monitoring of licensed facilities for compliance with ORR policies and procedures, which occurs in addition to state monitoring. Please see section 5.5 of the ORR Policy Guide for more information on ORR monitoring of licensed facilities.

Comment. One commenter advocated HHS and other Federal departments should be held accountable for the fear and life-long psychological damage the commenter believes is being inflicted on alien minors coming into this country.

Response. HHS is committed to the physical and emotional safety and wellbeing of all children in ORR's care. HHS recognizes that many children and youth who come into the United States unaccompanied have experienced traumatic childhood events and that migration and displacement can contribute significantly to ongoing stressors and trauma in children. ORR care providers are trained in techniques for child-friendly and trauma-informed interviewing, assessment, and observation, and they deliver services in a manner that is sensitive to the age, culture, native, language, and needs of each child. In addition, when Start Printed Page 44471discharging UACs, ORR may connect them with ongoing services as appropriate, for up to six months, at the discretion of the sponsor.

Changes to the Final Rule

HHS is not making any changes in the final rule to § 410.403.

45 CFR Part 410, Subpart E—Transportation of an Unaccompanied Alien Child

45 CFR 410.500—Conducting Transportation for an Unaccompanied Alien Child in ORR's Custody

Summary of Proposed Rule

In the proposed rule, HHS described how ORR conducts transportation for UACs in ORR's custody, substantively adopting the two provisions of the FSA that govern transportation. ORR proposed that UACs cannot be transported with unrelated detained adult aliens. The proposed rule also stated that when ORR plans to release a UAC from its custody under family reunification provisions (found in §§ 410.201 and 410.302), ORR assists without undue delay in making transportation arrangements. ORR may, in its discretion, provide transportation to a UAC.

Public Comments and Response

Comment. One commenter recommended that if an emergency or influx changes transportation rules, then such guidance, which is alluded to in the regulation, should be published and open to public comment or included in the regulatory text. The commenter is concerned that future guidance may not align with the FSA after the FSA is terminated.

Response. The proposed rule did not change the transportation rules for ORR transporting UACs during an emergency or influx. All ORR policies on influx facilities, including transportation, are publically online, in Section 1.7 of the ORR Guide. The proposed rule did not change ORR's policy of posting guidance publically online, including any future guidance that aligns with the proposed rule and the FSA, in the ORR Policy Guide.

Comment. An individual commenter stated that DHS did not define “operationally feasible,” in § 236.3(f) for purposes of the requirement to transport and hold children separately from unrelated adults, and that DHS and HHS should clarify the percent of time they expect it will take to be operationally feasible to successfully transport and hold UAC separately from unrelated adults. The commenter asked whether DHS and HHS intend to rescind this policy and make it compliant with the FSA if they find that UACs are not transported and held separately from unrelated adults in most cases.

Another individual suggested that the government should provide families and minors transportation to and from their immigration hearings.

Several advocacy organizations and a state's department of social services provided comments specific to DHS regarding a similar transportation provision in DHS's proposed rule as it related to transportation of children with unrelated detained adults. For more information on those comments please refer to the DHS comment sections regarding 8 CFR 236.3(f).

Response. The comments received by the Departments on transportation issues were more substantively concerned with DHS provisions than with ORR provisions. Although both ORR and DHS provided similar regulatory rules, HHS notes that it does not provide care to adult aliens but only for UACs as defined at 6 U.S.C. 279(g)(2).

There are only a few instances where ORR might transport an adult alien—in extremely limited emergency circumstances (i.e., emergency medical care or evacuation); unknowingly, if ORR believes the person is a minor but he or she is later found to be an adult after making an age determination (see 8 CFR 236.3(c) and 45 CFR 410.700); or if a UAC turns 18 while in ORR custody.

Generally speaking, existing protocols between HHS and DHS provide that DHS is responsible for transferring a detained adult alien from ORR's care to DHS custody. See DHS-HHS Joint Concept of Operations, I. Transportation, July 31, 2018. In certain episodic emergencies, ORR may be required to transport an adult alien prior to DHS assuming custody of and transferring that adult alien to ICE detention. For instance, if the adult alien requires emergency medical care or evacuation from an ORR care provider facility due to a natural disaster, and transfer cannot possibly be completed by DHS due to the emergency, ORR may be responsible for transporting the adult alien to an emergency medical provider or assist in evacuating the adult alien. In these latter episodic emergencies (which are not exhaustive), under the rule, ORR does not transport UAC with unrelated adults in the agency's care.

In response to the comments regarding assisting UACs with transportation to immigration hearings, HHS notes that it is already required to transport UACs to immigration hearings by statute. See 6 U.S.C. 279(b)(2). HHS also notes that these provisions of the rule are consistent with and do not abrogate existing ORR policies on transportation. See ORR Policy Guide, section 3.3.14 Transportation Services. As these provisions are intended to implement the FSA, HHS believes further specification in the final rule is unnecessary and redundant.

Changes to Final Rule

HHS is not deviating from the language of the proposed rule. The rule adopts the substantive terms of the corresponding transportation provisions of the FSA, paragraphs 25 and 26.

45 CFR Part 410, Subpart F, Transfer of an Unaccompanied Alien Child

In this subpart, HHS set forth provisions for transferring a UAC between HHS facilities. In some cases, HHS may need to change the placement of a UAC. This may occur for a variety of reasons, including a lack of detailed information at the time of apprehension, a change in the availability of licensed placements, or a change in the UAC's behavior, mental health situation, or immigration case.

45 CFR 410.600—Principles Applicable to Transfer of an Unaccompanied Alien Child

Summary of Proposed Rule

As specified in 45 CFR 410.600, HHS would adopt the FSA provisions concerning transfer of a UAC to ensure: (1) That a UAC is transferred with all of his or her possessions and legal papers, and (2) that the UAC's attorney, if the UAC has one, is notified prior to a transfer, with some exceptions.

Public Comments and Response

Comment. Two organizations commented that UACs should receive notice of placement in a more restrictive facility (i.e., a “staff secure” facility) with enough time to protest the transfer before it happens.

Response. See generally response in § 410.206. With respect to the organizations' recommendation that UACs receive notice of placement in a more restrictive facility in such a manner as to allow them to argue against transfer before it occurs, HHS notes that the comment goes beyond the scope of the FSA, which this rule is intended to implement. As both the FSA and the proposed rule indicate, some circumstances necessitate quickly transferring a UAC (e.g., threats to the safety of UACs or others). As a result, HHS will not add any new requirements to this provision. But HHS appreciates the commenter's contribution and will consider methods to enable greater Start Printed Page 44472notice to UACs through subsequent policies.

Comment. One commenter stated that the rule does not provide adequate notice or opportunity to be heard in the event that a mental health professional believes that a youth poses a risk of harm and must be moved into a more restrictive setting. The commenter said that such notice and opportunity to be heard is necessary to safeguard against violations of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794).

Response. HHS disagrees with the characterization that the final rule does not provide adequate notice or opportunity to be heard regarding a transfer to a more restrictive setting. In accordance with 45 CFR 410.206 of the final rule, ORR provides each UAC placed or transferred to a secure or staff secure facility with a notice of the reasons for the placement in a language the UAC understands, and does so within a reasonable amount of time. In addition, any UAC in ORR care also has an opportunity to challenge ORR Placement decisions in Federal District Court.

Comment. One commenter said that the requirements for providing notice to UAC counsel prior to transferring a UAC or minor do not align with the American Bar Association's standards for the custody, placement, care, legal representation, and adjudication of UACs, which recommends both oral and written notice to the child and the child's attorney prior to transfer to include the reason for transfer; the child's right to appeal the transfer; and the procedures for an appeal. The American Bar Association's standards further recommend that the notice include the date of transfer and the location, address, and phone number of the new facility.

The same commenter, along with a state agency, raised a concern that the exception to providing prior notice to counsel in “unusual and compelling circumstances” is too broad and will “result in arbitrary and capricious application.”

Response. HHS declines to adopt the comment's suggestion that ORR adopt the ABA's standard for transfer of UAC in the “Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States.” The language used in § 410.600 pulls its language directly from the FSA (paragraph 27), and the only difference between the ABA's suggested standard for transfer of UAC and the proposed rule is that counsel may be notified within 24 hours after a UAC is transferred as opposed to 24 hours before. Specifically, under this rule, counsel maybe notified within 24 hours after a UAC is transferred (1) where the safety of the UAC or others has been threatened; (2) the UAC has been determined to be an escape risk consistent with § 410.204; or (3) where counsel has waived such notice. In all other circumstances, counsel will have advance notice of any transfers. HHS is not changing the final rule to include the American Bar Association's standard for the transfer of UAC.

Changes to Final Rule

In the proposed rule, HHS stated that it would take all necessary precautions for the protection of UAC during transportation with adults. This language runs in contradiction to 45 CFR 410.500(a), which states that ORR does not transport UAC with unrelated detained adult aliens. Therefore, the sentence from 45 CFR 410.600(a) that, “ORR takes all necessary precautions for the protection of UACs during transportation with adults,” will be struck from the final rule.

HHS notes that there will be instances when UACs are transferred with adult staff members. These situations are covered under 45 CFR 411.13(a) of the Interim Final Rule (IFR) on the Standards to Prevent, Detect, and Respond to Sexual Abuse and Sexual Harassment Involving Unaccompanied Children. The IFR states, “Care provider facilities must develop, document, and make their best effort to comply with a staffing plan that provides for adequate levels of staffing, and, where applicable under State and local licensing standards, video monitoring, to protect [UACs] from sexual abuse and sexual harassment.” This provision applies to transfers as well.

45 CFR Part 410, Subpart G—Age Determinations

45 CFR 410.700—Conducting Age Determinations

Summary of Proposed Rule

Section 410.700 incorporates both the provisions of the TVPRA, 8 U.S.C.1232(b)(4), and the requirements of the FSA, in setting forth standards for age determinations. These take into account multiple forms of evidence, including the non-exclusive use of radiographs, and may involve medical, dental, or other appropriate procedures to verify age.

Public Comments and Response

Comment. A number of commenters expressed concern about whether the proposed regulations adhere to the FSA's standards and medical ethics regarding medical and dental examinations. Some of the commenters referenced reports and studies indicating that certain medical and dental examinations cannot provide accurate age estimates and that radiographs unnecessarily expose children to radiation when used for non-medical purposes. One medical professional cautioned against using dental radiographs for age determination, contending that such tests can only provide an approximate age estimate and may not be able to differentiate between an individual in his/her late teens versus an individual who is 20 or 21 years of age. The commenter also expressed concern about the possibility of the individual administering these tests not having the requisite expertise, and not obtaining informed consent of the patient. One commenter referred to medical and dental examinations as “pseudo-science.”

Multiple commenters expressed concern that the proposed procedures place inappropriate weight on medical tests to determine whether children are younger than or older than 18 years of age. The commenters stated that the proposed procedures do not match FSA or TVPRA requirements for considering medical tests and are inconsistent with agency practice. For example, the commenters stated that the proposed procedures fail to indicate that medical tests cannot serve as the sole basis for age determinations, limit medical testing to bone and dental radiographs, and to account for evidence demonstrating the unreliability of medical tests to make accurate age determinations.[47] One commenter expressed concern about the lack of specificity governing when medical and dental examinations will be used, the absence of guidance regarding who will make the age determination, and the level of training or expertise required to conduct such examinations and determinations.

Multiple commenters recommended that age determination procedures be used as a last resort, that age determination findings be shared with the child in writing and in a language he/she understands, that the findings be subject to appeal, and that age Start Printed Page 44473determination procedures be conducted by an independent, multidisciplinary team of medical and mental health professionals, social workers, and legal counsel. The commenters also recommended that children have the right to refuse a procedure that subjects them to medical risks, pursuant to the international norm of what is in the best interest(s) of the child as well as medical ethical principles of patient autonomy.

Several commenters expressed concern about age determinations being based on the “totality of the evidence and circumstances” and questioned whether that basis is consistent with the TVPRA's requirement to use multiple forms of evidence for determining whether a child is under or over 18 years of age. Another commenter expressed support for DHS and HHS personnel maintaining the flexibility to use multiple methods for age determinations. The commenter stated that the proposed standards and thresholds are mandated for jurisdictional as well as medical reasons, because ORR does not have custodial authority over individuals 18 years of age or older.

A number of commenters expressed concern about the possibility of incorrect age determinations. For example, one commenter stated that the rule would reduce or eliminate that the current ORR policy requiring a 75 percent probability threshold for age determinations.

Multiple commenters noted that differences in race, ethnicity, gender, nutritional standards, and poverty impact perceptions of age and may negatively influence the age determination process leading to inaccurate age determinations. For example, one commenter cited articles concluding that the age of young people is often overestimated and exacerbated when there are differences in race. This commenter expressed concern that this would have disproportionate effects on certain indigenous populations. Another commenter cited a study indicating that “black felony suspects were seen as 4.53 years older than they actually were.”

Multiple commenters expressed concern about the lack of age determination appeal procedures. One of the commenters stated that the lack of an appeal mechanism compounds the possibility of arbitrary or baseless assessments, with serious consequences for minors in terms of their placement in and release from detention. Another commenter asked what remedy exists for a child falsely categorized as an adult and what repercussion a government official would face if he/she negligently or intentionally categorizes a child as an adult under this regulation. Commenters and organizations argued that the continual re-determination of a child's UAC status would deny children of their right to due process, legal protections and access to social services if they were determined to not be a UAC.

One organization noted that the reassessment of a child exacerbates their vulnerability and contradicts the very purpose of U.S. anti-trafficking law. Organizations and commenters further noted if a child was determined to not be a UAC, many rights would be stripped from the child, including the right to have their asylum claims heard before the asylum office and the exception to the one-year filing deadline.

One commenter suggested that providing a presumption of minor status when there is doubt, considering only reliable evidence, and providing an appeals process would ensure fewer children find themselves incorrectly designated as adults. Another commenter suggested placing individuals in HHS custody, not DHS custody, during the age determination process.

One commenter expressed general concern about DHS and HHS using different language within the proposed regulations that may lead to disparate processes for determining age. The commenter stated that the proposed HHS language does not discuss the reasonable person standard, does not include a specific evidentiary standard through which to assess multiple forms of evidence, does discuss the non-exclusive use of radiographs whereas the DHS language does not mention radiographs as an option, and does not require a medical professional to administer the radiographs. The commenter suggested that DHS and HHS propose specific and identical language regarding age determination procedures and requirements.

Organizations and commenters argued that HHS should not have the authority to re-determine if a minor is a UAC or not because it impacts their immigration benefits and this is contrary to Federal law, see e.g., 6 U.S.C. 279(a). They further argued that this would cause confusion to UAC on how and when they meet certain legal immigration obligations and it would likely impact their access to legal assistance. They noted that UAC receive access to pro bono legal services because of their UAC designation and by allowing ORR to re-determine their status would undercut ORR's responsibility to facilitate access to legal services which is not in the best interest of the child.

Response. HHS disagrees with commenters who stated that HHS' proposals did not accord with the FSA, which states as follows: “If a reasonable person would conclude that an alien detained by the INS is an adult despite his claims to be a minor, the INS shall treat the person as an adult for all purposes, including confinement and release on bond or recognizance. The INS may require the alien to submit to a medical or dental examination conducted by a medical professional or to submit to other appropriate procedures to verify his or her age. If the INS subsequently determines that such an individual is a minor, he or she will be treated as a minor in accordance with this Agreement for all purposes.” FSA paragraph 13. The FSA uses a “reasonable person” standard and specifically states that the INS “may require” submitting to a medical or dental examination. Such language does not place restrictions on the authority for ORR to require a medical or dental examination. In addition, the TVPRA states: “The Secretary of Health and Human Services, in consultation with the Secretary of Homeland Security, shall develop procedures to make a prompt determination of the age of an alien, which shall be used by the Secretary of Homeland Security and the Secretary of Health and Human Services for children in their respective custody. At a minimum, these procedures shall take into account multiple forms of evidence, including the non-exclusive use of radiographs, to determine the age of the unaccompanied alien.” Again, nothing in such language places limits on when radiographs may be required, although it does state that procedures shall take into account multiple forms of evidence, which is also reiterated in the rules at § 410.700.

Commenters suggested types of information that an agency can use in addition to medical and dental examinations and radiographs. While the FSA, the TVPRA and the proposed rule specifically list medical and dental examinations and radiographs, HHS provides, in policy, a list of additional information that can be considered, including the types of evidence suggested by commenters like the child's statements.[48]

HHS believes the commenters' concerns about the reliability of Start Printed Page 44474radiographs and medical or dental examinations as part of an age determination process are addressed by the regulatory text requiring multiple forms of evidence, including “non-exclusive use of radiographs,” to determine age. Recognizing that there is no one test appropriate for every child in every case, HHS, in compliance with the TVPRA, requires in its rule “multiple” forms of evidence when conducting age determination. HHS interprets “multiple forms of evidence” to mean a totality of the evidence. Here, HHS is trying to avoid an instance where those determining age simply rely on two or three pieces of evidence, and ignore potentially reliable evidence merely because a standard of two or more pieces of evidence have been presented. But HHS notes that Congress chose to include radiographs as a type of evidence that agencies can use, and HHS will not exclude their consideration in this rule.

In addition, ORR states through guidance that the medical and dental examinations and radiographs, will be conducted by medical professionals with experience conducting age determinations and will take into account the child's ethnic and genetic background.[49] Relying on experienced medical professionals also addresses concerns raised by commenters that the proposed rule fails to specify reliability standards or who will perform the tests. HHS depends on the experience and professional opinion of the medical professional choosing and performing an examination.

Similarly, HHS expects those professionals who perform those tests to do so in accordance with medical and ethical standards. HHS declines to add additional standards beyond the current standards that apply to all medical professionals.

HHS agrees with the commenter who noted the importance of age determination because HHS only has jurisdiction over persons under 18. If a person is determined to be an adult, that person cannot be placed in HHS custody even if that person is undergoing an age redetermination. If DHS has determined that an individual in its custody is an adult, but the individual claims otherwise, HHS cannot place an alien into HHS custody while the individual contests DHS's determination.

Many commenters wrote about the requirement that age determinations be based on the “totality of the evidence and circumstances” DHS proposed in § 236.3(c). One commenter noted that HHS did not include this language in subpart G and expressed concern that this might create disparate processes. Based on the TVPRA, which requires HHS and DHS to use the same procedures, HHS has added the totality of the circumstances language to § 410.700 in this final rule. The explicit instruction that agencies use the totality of the evidence and circumstances when making an age determination enhances the TVPRA's language of “multiple sources.”

In response to the request for additional clarity about what constitutes the totality of the evidence and the circumstances, HHS notes that each age determination is an adjudication, where the ORR responsible staff review the evidence in its totality. The ORR Guide at section 1.6 provides ample description of how ORR reviews the age determination process. While some evidence may be weighted more than other evidence, HHS will only make an age determination adjudication after weighing all of the evidence. Adding more specificity would take away from the holistic approach envisioned with the totality language and could lead to a situation where the agency is unable to consider relevant information because it was not listed.

One commenter was concerned that the totality of the evidence and circumstances language would impact HHS' 75 percent probability threshold for age determinations. Under current HHS policy, “[I]f an individual's estimated probability of being 18 or older is 75 percent or greater according to a medical age assessment, and this evidence has been considered in conjunction with the totality of the evidence, ORR may refer the individual to DHS.” [50] Adopting the totality of the evidence and circumstances language would not eliminate the 75 percent threshold because similar language already exists with that threshold in policy. ORR does not intend to revise its policy in this regard. The 75 percent threshold is consistent with totality of the evidence and circumstances language, and adds an additional requirement on the agency when making an age determination.

Several commenters raised concerns that the rule does not provide for an appeals process or a limit on the number of age determinations, allowing for continuous redeterminations. HHS policy allows an individual or his/her designated legal representative to present new information or evidence related to an age determination at any time.[51] A limitation on the number of times an age determination can occur is inappropriate. An arbitrary limit may negatively affect an individual who wishes to have an age redetermination. And if there is reason to believe that an individual is not in an appropriate placement, then safety concerns and statutory limits on jurisdiction may demand that an age determination take place. Additionally, the totality of the evidence and circumstances language requires the agency to consider all new evidence, regardless of whether there has already been an age determination. Therefore, HHS does not believe a formal appeals process or limitation on the number of age determinations is necessary or in the best interest of the agencies or UACs. Moreover, neither the FSA nor the TVPRA requires an appeals process for the age determination.

Changes to Final Rule

HHS will add the “totality of the evidence and circumstances” language into § 410.700 so that the age determinations decisions by HHS and DHS have the same standard. While the language of the DHS regulation differs slightly from the HHS language, primarily because DHS transfers adults and HHS does not, both provisions contain the same fundamental standards. These standards are the use of a totality of the evidence standard, including the non-exclusive use of radiographs; compliance with the FSA reasonable person standard; and authorization to require an individual to submit to a medical or dental examination conducted by a medical professional or to submit to other appropriate procedures to verify age.

45 CFR 410.701—Treatment of an Individual Who Appears To Be an Adult

Summary of Proposed Rule

Section 410.701 states that if the procedures of § 410.700 would result in a reasonable person concluding that an individual is an adult, despite his or her claim to be a minor, ORR must treat that person as an adult for all purposes. As Start Printed Page 44475with § 410.700, ORR may take into account multiple forms of evidence, including the non-exclusive use of radiographs, and may require such an individual to submit to a medical or dental examination conducted by a medical professional or other appropriate procedures to verify age.

Public Comments

Several commenters expressed concern about how DHS would interpret and apply the FSA's reasonable person standard and pointed to what they perceived as a lack of clarity on how the standard is defined. Multiple commenters expressed concern that the proposed language fails to provide adequate specificity about the type and amount of evidence used to inform the standard. For example, one commenter stated that the reasonable person standard must be informed by consideration of multiple forms of evidence pursuant to the TVPRA, whereas another commenter suggested incorporating informational interviews and attempts to gather documentary evidence as part of the standard. Another commenter stated that, pursuant to the FSA, the reasonable person standard must be initially informed by the child's own statements regarding his or her own age. Multiple commenters expressed concern about how medical or dental examinations will or will not inform the reasonable person standard, with one commenter stating that the inclusion of unreliable medical procedures in the reasonable person standard introduces a further layer of arbitrariness to the process of age determination.

Other commenters stated that an individual claiming to be a minor should continue to be treated as a minor until age is confirmed through multiple forms of evidence. One of these commenters stated that it is more dangerous for a minor to be detained with adults than to have an individual who claims to be a minor, but is not, detained with other minors.

Organizations noted that in the interest of administrative consistency, children designated as UACs should keep this designation throughout their removal proceedings.

Response. HHS notes that neither the FSA nor the TVPRA require that a specific amount of evidence be considered in an age determination; the TVPRA simply requires HHS to use multiple forms of evidence. Practically speaking, the same amount of evidence will not be available in every case, and requiring a specific amount of evidence would be arbitrary and operationally impractical. Relatedly, creating a specific list of evidence that can be considered may lead to the exclusion of relevant information. Thus, HHS declines to make the suggestions made by the commenters; however, HHS has changed the proposed rule at § 410.700 to add the “totality of the circumstances” standard proposed by DHS to ensure that all evidence is included in the age determination process.

HHS declines to adopt a presumption that an individual is a minor until proven otherwise. Section 410.701 requires HHS to treat a person determined to be an adult as an adult and to follow the process outlined in § 410.700 to change an individual's status from a minor to adult. Additionally, in policy, HHS provides “[u]ntil the age determination is made, the unaccompanied alien child is entitled to all services provided to UAC in HHS care and custody.” [52] While it is not clear what commenters intended by the phrases “presumption” and “proven otherwise,” the commenters appeared to intend something more extensive than the ORR age determination process—such as, perhaps a judicial review or a standard higher than the reasonable person standard of the FSA. However, setting a presumption that individuals are minors until proven otherwise is not contemplated in the FSA nor by Congress. A presumption of minority is not consistent with the reasonable person standard, which allows for the agencies to look at the totality of the evidence and circumstances and determine whether someone is under 18. Thus, HHS declines to include this recommendation.

Relatedly, a commenter raised a concern that it is more dangerous for a minor to be housed with adults than it is for an adult to be housed with minors. However, this comment focused only on the individual adult who is the subject of the age determination and not the other UACs housed alongside him or her in a group home setting. HHS believes that both scenarios present a risk of harm and will not transfer a person until an age determination has been made.

Commenters wrote that, for administrative consistency, agencies should not conduct age determinations and the designation of UAC should last through the individual's removal proceedings. The comment about the UAC designation lasting throughout removal proceedings is not related to the age determination regulation—which is about the proper placement of an individual (in DHS or ORR legal custody) and not removal proceedings. In addition, the suggestion is inconsistent with the FSA, which set standards specifically for people under 18. The suggestion also would violate the HSA and the TVPRA, both of which intended specific protections for people under 18. Congress also granted HHS and DHS the authority to conduct age determinations in 8 U.S.C. 1232(b)(4). The fact that Congress created the authority for DHS and HHS to conduct age determinations demonstrates that Congress recognized that children need protection and intended accuracy over administrative consistency.

Changes to Final Rule

HHS is not making any changes to the rule for § 410.701, but states that because such regulation refers back to § 410.700, it also will incorporate a totality of the evidence and circumstances standard.

45 CFR Part, 410 Subpart H, Unaccompanied Alien Children's Objections to ORR Determinations

45 CFR 410.800-410.801—Procedures

Summary of Proposed Rule

While the FSA at paragraph 24(B) and 24(C) contains procedures for judicial review of a UAC's shelter placement (including in secure or staff-secure), and a standard of review, the agreement is clear that a reviewing Federal District Court must have both “jurisdiction and venue.” Once these regulations are finalized and the FSA is terminated, it would be even clearer that any review by judicial action must occur under a statute where the government has waived sovereign immunity, such as the Administrative Procedure Act. Therefore, HHS did not propose regulations for most of paragraphs 24(B) and 24(C) of the FSA, although it did propose that all UACs continue to receive a notice stating as follows: “ORR 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 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.” The proposed rule also contained a requirement parallel to that of the FSA that when UACs are placed in a more restrictive level of care, such as a secure or staff secure facility, they receive a notice—Start Printed Page 44476within a reasonable period of time—explaining the reasons for housing them in the more restrictive level of care. Consistent with the July 30, 2018 order of the Flores court, the proposed rule stated that the notice must be in a language the UAC understands. Finally the proposed provision required that ORR promptly provide each UAC not released with a list of free legal services providers compiled by ORR and provided to UAC as part of a Legal Resource Guide for UAC (unless previously given to the UAC).

Public Comments and Response

Comment. Some commenters wrote that the proposed rule does not give UACs enough notice or access to information about his or her placement in a staff secure or secure facility; that UACs should be provided notice of the reasons for their placement in secure or staff secure placements, and have the opportunity to contest such placement, before they are referred to such facilities; and that placements must be accompanied by periodic reviews.

Response. This section is consistent with current ORR practice implementing statutory and FSA requirements (see paragraph 24A), by which children are provided a written explanation of the reasons for their placement at secure or staff secure care providers in a language they understand, within a reasonable time either before or after ORR's placement decision, see ORR Policy Guide, section 1.2.4 and 1.4.2. In many cases, ORR places children in restrictive placements because of new information or a child's disruptive behavior, which makes it impossible for the child to remain at a shelter care facility. For example, some shelter care providers are prohibited under their State licensing requirements to house children with violent criminal histories. When ORR discovers new information indicating such a history, it must immediately ensure the child is transferred or risk jeopardizing the shelter's licensing. Under ORR policy, care providers must provide written notice of the reasons for placement in secure or staff secure settings at least every 30 days a child is in such a placement. This requirement goes beyond the TVPRA, 8 U.S.C. 1232(c)(2)(A), which requires the Secretary to prescribe procedures to review placements in secure facilities, such as juvenile detention centers. The TVPRA is silent on staff-secure facilities—which generally are much like non-secure shelter facilities, but may include a higher staff-UAC ratio to manage behavior. In practice, care providers continuously assess a child's behavior in order to ensure the child is properly placed in the least restrictive setting that is appropriate for the child's needs.

Changes to Final Rule

HHS has made no changes to the rule text at §§ 410.800-410.801 because the rule fully the relevant requirements of the FSA and TVPRA.

45 CFR 410.810 “810 Hearings”

Summary of Proposed Rule

Consistent with subpart C, see § 410.301(a), HHS proposed an internal administrative hearing process to serve the relevant functions of bond redetermination hearings described in paragraph 24A of the FSA.

The proposed rule made no provision for immigration judges employed by the DOJ to conduct bond redetermination hearings for UACs under paragraph 24(A) of the FSA. DOJ has concluded that it no longer has statutory authority to conduct such hearings. In the HSA, Congress assigned responsibility for the “care and placement” of UACs to HHS' ORR, and specifically barred ORR from requiring “that a bond be posted for [a UAC] who is released to a qualified sponsor.” 6 U.S.C. 279(b)(1)(A), (4). In the TVPRA, Congress reaffirmed HHS' responsibility for the custody and placement of UACs. 8 U.S.C. 1232(b)(1), (c), and imposed detailed requirements on ORR's release of UACs to proposed custodians—including, for example, a provision authorizing ORR to consider a UAC's dangerousness and risk of flight in making placement decisions. 8 U.S.C. 1232(c)(2)(A). Congress thus appears to have vested HHS, not DOJ, with control over the custody and release of UACs, and to have deliberately omitted any role for immigration judges in this area.

Although in Flores v. Sessions, the Ninth Circuit concluded that neither the HSA nor the TVPRA superseded the FSA's bond-hearing provision. 862 F.3d at 881. The court did not identify any affirmative statutory authority for immigration judges employed by DOJ to conduct the custody hearings for UACs. “[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.” La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 374 (1986). HHS, however, as the legal custodian of UACs who are in Federal custody, clearly has the authority to conduct the hearings envisioned by the FSA. It also is sensible, as a policy matter, for HHS to conduct the hearings envisioned by the FSA, because unlike immigration courts, HHS as an agency has expertise in social welfare best practices, including child welfare practices. Further, having an independent hearing process take place within the same Department is consistent the FSA at the time it was implemented, when both the former INS and EOIR were housed within DOJ.

HHS thus proposed regulations to afford the same type of hearing paragraph 24(A) calls for, while recognizing the transfer of responsibility of care and custody of UAC from the former INS to HHS ORR. Specifically, the proposed rule included provisions whereby HHS would create an independent hearing process that would be guided by the immigration judge bond hearing process currently in place for UACs under the FSA. The idea was to provide essentially the same substantive protections as immigration court custody hearings, but through a neutral adjudicator at HHS rather than DOJ.

Under the proposal, the Secretary would appoint independent hearing officers to determine whether a UAC, if released, would present a danger to community (or flight risk). The hearing officer would not have the authority to release a UAC, as the Flores court has already recognized that paragraph 24(A) of the FSA does not permit a determination over the suitability of a sponsor. Specifically, the Ninth Circuit explained that “as was the case when the Flores Settlement first went into effect, [a bond hearing] permits a system under which UACs will receive bond hearings, but the decision of the immigration judge will not be the sole factor in determining whether and to whose custody they will be released. Immigration judges may assess whether a minor should remain detained or otherwise in the government's custody, but there must still be a separate decision with respect to the implementation of the child's appropriate care and custody.” Flores, 862 F.3d at 878. The Flores district court, too, stated: “To be sure, the TVPRA addresses the safety and secure placement of unaccompanied children. . . . But identifying appropriate custodians and facilities for an unaccompanied child is not the same as answering the threshold question of whether the child should be detained in the first place—that is for an immigration judge at a bond hearing to decide. . . . Assuming an immigration judge reduces a child's bond, or decides he or she presents no flight risk or danger such that he or she needs to remain in HHS/ORR custody, HHS can still exercise its coordination and placement duties under the TVPRA.” Flores v. Lynch, No. CV 85-4544 DMG at 6 (C.D. Cal. Jan. 20, 2017).Start Printed Page 44477

Thus, the hearing officer would decide only the issues presented by paragraph 24(A) of the FSA—whether the UAC would present a danger to the community or a risk of flight (that is, not appearing for his or her immigration hearing) if released. For the majority of UACs in ORR custody, ORR has determined they are not a danger and therefore has placed them in shelters, group homes, and in some cases, staff secure facilities. For UACs that request a hearing, but ORR does not consider a danger, ORR will concur in writing and a hearing will not need to take place. In these cases, a hearing is not necessary or even beneficial and would simply be a misuse of limited government resources. However, for some children placed in secure facilities (or otherwise assessed as a danger to self or others), the hearing may assist them in ultimately being released from ORR custody in the event a suitable sponsor is or becomes available.

As is the case now, under section 2.9 of the ORR Policy Guide (available at: https://www.acf.hhs.gov/​orr/​resource/​children-entering-the-united-statesunaccompanied-section-2#2.9), the hearing officer's decision that the UAC is not a danger to the community will supersede an ORR determination on that question. HHS does not have a two-tier administrative appellate system that mirrors the immigration judge-BIA hierarchy. To provide similar protections without such a rigid hierarchy, the proposed rule would allow appeal to the Assistant Secretary of ACF (if the appeal is received by the Assistant Secretary within 30 days of the original hearing officer decision). The Assistant Secretary would review factual determinations using a clearly erroneous standard and legal determinations on a de novo basis. Where ORR appeals, there would be no stay of the hearing officer's decision unless the Assistant Secretary finds, within 5 business days of the hearing officer decision, that a failure to stay the decision would result in a significant danger to the community presented by the UAC. That written stay decision must be based on clear behaviors of the UAC while in care, and/or documented criminal or juvenile behavior records from the UAC. Otherwise, a hearing officer's decision that a UAC would not be dangerous (or a flight risk) if released, would require ORR to release the UAC pursuant to its ordinary procedures on release as soon as ORR determined a suitable sponsor.

In accordance with the Flores district court's order analogizing Flores custody hearings to bond hearings for adults, immigration judges currently apply the standard of Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).[53] Thus, under current practice, the burden is on the UAC to demonstrate that he or she would not be a danger to the community (or flight risk) if released. Due to the unique vulnerabilities of children and subsequent enactment of the TVPRA, however, HHS requested comments on whether the burden of proof should be on ORR to demonstrate that the UAC would be a danger or flight risk if released.

Under the proposed rule, ORR also would take into consideration the hearing officer's decision on a UAC's level of dangerousness when assessing the UAC's placement and conditions of placement, but, consistent with current practice under the FSA, the hearing officer would not have the authority to order a particular placement for a UAC.

If the hearing officer determines that the UAC would be a danger to the community (or a flight risk) if released, the decision would be final unless the UAC later demonstrates a material change in circumstances to support a second request for a hearing. Similarly, because ORR might not have yet located a suitable sponsor at the time a hearing officer issues a decision, ORR might find that circumstances have changed by the time a sponsor is found such that the original hearing officer decision should no longer apply. Therefore, the proposed regulation stated that ORR could request the hearing officer to make a new determination if at least one month had passed since the original decision, and ORR could show that a material change in circumstances meant the UAC should no longer be released due to danger (or flight risk).

Requests for hearings under this section (“810 hearings”) could be made by the child in ORR care, by a legal representative of the child, or by parents/legal guardians on their child's behalf. These parties could submit a written request for the 810 hearing to the care provider using an ORR form [54] or through a separate written request that provides the same information requested in the ORR form, because the questions to be adjudicated at 810 hearings are relevant mainly to UACs placed in secure, RTC, and staff secure facilities. ORR would provide a notice of the right to request the 810 hearing to these UACs. Technically, a UAC in any level of care may request an 810 hearing, but hearings for children in non-restrictive placements (e.g., shelter placements) would likely be unnecessary, because ORR would likely stipulate that such children, by virtue of their placement type are not dangerous or flight risks. HHS also stated that it expected that the hearing officer would create a process for UACs or their representatives to directly request a hearing to determine danger (or flight risk). During the 810 hearing, the UAC could choose to be represented by a person of his or her choosing, at no cost to the government. The UAC could present oral and written evidence to the hearing officer and could appear by video or teleconference. ORR could also choose to present evidence either in writing, or by appearing in person, or by video or teleconference.

Because the 810 hearing process would be unique to ORR and HHS, if a UAC turned 18 years old during the pendency of the hearing, the deliberations would have no effect on DHS detention (if any).

HHS invited public comment on whether the hearing officers for the 810 hearings should be employed by the Departmental Appeals Board, either as Administrative Law Judges or hearing officers, or whether HHS would create a separate office for hearings, similar to the Office of Hearings in the Centers for Medicare & Medicaid Services. See https://www.cms.gov/​About-CMS/​Agency-Information/​CMSLeadership/​Office_​OHI.html.

While the FSA contains procedures for judicial review of a UAC's placement in a secure or staff secure shelter, and a standard of review, once these regulations are finalized and the FSA is vacated, HHS did not propose any regulations for such review by Federal courts should occur under extant statutory authorizations, including, where applicable, the APA, and not via HHS regulations or a consent decree.

Public Comments and Response

Several commenters wrote about the proposal to update the provision for bond hearings under DHS proposed 8 CFR 236.3(m) and “810 hearings” under HHS proposed 45 CFR 410.810. Because both provisions related to paragraph 24A of the FSA, comments sometimes transitioned fluidly between being directed toward DHS and HHS. As with the comments related to 8 CFR 236.3(m), the comments related to 810 hearings largely concerned compatibility with the text of the FSA and case law interpreting the FSA, and due process concerns. However, Start Printed Page 44478commenters expressed various other concerns as well.

Comment. Many comments argued that the proposed transition of bond hearings from a DOJ-based administrative immigration court to an administrative setting in HHS does not comply with the FSA and applicable case law. The commenters reasoned that paragraph 24(A) of the FSA requires minors in deportation proceedings to be afforded a bond redetermination hearing before an immigration judge in every case. They further pointed to the decision in Flores v. Sessions, 862 F.3d 863 (9th Cir. 2017) as evidence that the Ninth Circuit, in interpreting and applying the FSA had already ruled against the government when it argued that the limiting of bond hearings applied to minors in DHS custody only. Many of the commenters pointed to a quote from the court's decision discussing how the hearing is a “forum in which the child has the right to be represented by counsel, and to have the merits of his or her detention assessed by an independent immigration judge.” Another commenter also wrote that the TVPRA and the HSA do not supersede the FSA or allow for inconsistent standards, which the commenter believed would result from the implementation of the proposed rule.

Response. HHS disagrees with commenters who suggested that § 410.810 does not comply with the FSA and applicable case law. HHS submits that 810 hearings provide substantively the same functions as bond hearings under paragraph 24A of the FSA, as expressed by the Flores court and the Ninth Circuit (e.g., independent review of ORR determinations as they relate to a child's dangerousness and risk of flight and due process protections). The Ninth Circuit found that bond hearings under paragraph 24A of the FSA “do not afford unaccompanied minors the same rights that may be gained through an ordinary bond hearing,” and that a favorable finding does not entitle minors to release; however, it also stated that bond hearings provide UACs with certain “practical benefits.” Flores, 862 F.3d at 867. These benefits include providing a forum in which a child has the right to be represented by counsel to examine and rebut the government's evidence, and build a record regarding the child's custody. Id. 810 hearings provide UACs with all of these benefits, and take place before an independent adjudicator in a role similar to immigration judges under current practice. In addition, commenters are incorrect that the immigration judge is any more independent than would be the hearing officer under the 810 hearing process. As noted below, at the time the FSA was signed, INS and the immigration courts both resided within the DOJ—similar to what HHS is finalizing in this rule, where an independent HHS office would operate the hearings. Moreover, immigration judges are not administrative law judges, but rather are “attorneys whom the Attorney General appoints as administrative judges.” 8 CFR 1003.10(a). Immigration judges act as the Attorney General's “delegates” in the cases that come before them. Immigration judges are governed by decisions by the Attorney General (through a review of a decision of the BIA, by written order, or by determination and ruling pursuant to section 103 of the Immigration and Nationality Act). 8 CFR 1003.10(d). Thus, HHS does not believe that the administrative process of § 410.810 is any less independent than the process the Parties agreed to in the FSA.

Comment. A couple of commenters wrote that moving bond redetermination hearings from EOIR to HHS is inconsistent with protections for UACs in the FSA, the HSA, and the TVPRA—which protect children from prolonged detention.

Response. As stated above, HHS disagrees with commenters regarding the FSA, HSA, and TVPRA. Section 810 hearings would provide both practical benefits and due process in a manner consistent with paragraph 24A of the FSA, as interpreted most recently by the Ninth Circuit. The rule would allow requests to be made by UACs themselves, or their parents, legal guardians, or legal representatives. HHS notes that this provision mirrors current practice, and so there is no reason to expect a reduction in the number of UACs receiving 810 hearings, as compared to those who receive bond hearings. Since the Ninth Circuit held in 2017 that paragraph 24A of the FSA would require bond hearings for determinations of dangerousness and risk of flight, every child in ORR custody has been afforded the opportunity to request a bond hearing. In addition, legal service providers funded by ORR have explained the nature of bond hearings, including procedures to request them, to UACs during orientation and legal screenings. The alternative to allowing UACs to request such hearings would be to place every UAC in an 810 hearing as a default. This would impose a heavy burden on government resources while providing no benefit for the overwhelming majority of UACs, most of whom are in shelter-level care and therefore are not considered dangerous or flight risks to begin with. The alternative to allowing UACs to request such hearings would be to place every UAC in an 810 hearing as a default. This would impose a heavy burden on government resources while providing no benefit for the overwhelming majority of UACs, most of whom are in shelter-level care and therefore are not considered dangerous or flight risks to begin with. The best solution is, as written in the rule, to notify children in more restrictive placements of their right to request 810 hearings, connect them with legal service providers, and allow them to decide whether to request a hearing. Consistent with existing practice, the rule does not impose any timeframe within which UACs must request 810 hearings. Also, if UACs can demonstrate a material change in circumstances, they are free to request 810 hearings even if they previously had one that resulted in a negative decision.

Comment. A commenter noted that that under the proposed rule, the hearing officers cannot make decisions on placement or release. To the commenter, this limitation does not make sense because in other child welfare determinations, judges do make decisions about placement and reunification for children that are not in the custody of their parents. This commenter also wrote that the limitation is inconsistent with the Ninth Circuit's interpretation of the FSA because the court rejected ORR's argument that it has sole authority to determine placement and make release decisions.

Response. HHS does agree that the original Flores court ruling created a bond hearing procedure whose utility relates mainly to providing due process protections to UACs, but does not extend to the ability to order ORR to release a child. However, that is explicit in the text of the Ninth Circuit's ruling, which HHS is now attempting to incorporate into this rule implementing the FSA.

Comment. A group of commenters recognized the distinction between the DHS and HHS provisions relating to bond hearings, but disagreed that proposed 8 CFR 236.3(m) properly implemented section 24(A) of the FSA in light of Flores, 862 F.3d 863. They restated the court's discussion of the important policy interests served by allowing children a bond hearing.

Response. These comments refer to the bond hearings proposed by DHS, which are separate and distinct from the 810 hearings proposed by HHS. HHS has proposed an independent adjudication process responsive to the policy interests served by immigration Start Printed Page 44479judges in bond redetermination hearings. In 810 hearings, UACs, their legal representatives, or their parents or legal guardians would be able to request review of ORR findings regarding a child's danger to self or others, and the child's flight risk. The child's independent hearing officers would not have the authority to order release of UACs from ORR custody, and would not have authority to make placement decisions. See Flores v. Sessions, 862 F.3d 863, 867 (9th Cir. 2017) (acknowledging that a favorable finding in a hearing under paragraph 24A does not entitle minors to release because “the government must still find a safe and secure placement into which a child can be released.”) The UAC would be permitted to have representation of his or her choosing at no cost to the government; and the UAC would be able to present oral and written evidence. The proposed rule would both provide these practical benefits while at the same time streamlining the current process. For example, under the current system, if a UAC is moved to a different venue during the pendency of a bond redetermination hearing, the case must also be transferred to the new venue, typically resulting in a delay of weeks. In contrast, such a case would not be interrupted under the proposed rule, because the proposed rule would establish a centralized hearing office.

Comment. Multiple commenters opposed the language proposed under § 410.810 because bond redetermination hearings would be conducted by HHS, not EOIR, a change that would, in the opinion of the commentators, remove the opportunity for a ruling by an independent or neutral arbiter. Commenters wrote that HHS would be the “judge and jailer” of UACs and that there would be no meaningful independent review of HHS decisions. Commenters argued that immigration judges, who are employed by DOJ can serve as neutral arbiters and afford UACs a meaningful opportunity to challenge HHS' decisions. Commenters wrote that the lack of independence undermines due process protections for UACs, and for this reason, immigration judges should continue to conduct bond redetermination hearings.

Response. HHS notes that by its own terms, § 410.810 calls for an independent hearing officer to preside over these hearings. This is a departure from what was envisioned in the FSA, because in 1997, both INS and EOIR were located within DOJ. In other words, Flores counsel agreed that immigration judges in EOIR were sufficiently independent from INS, such that they could make independent bond redetermination rulings. Arguably, one of the reasons for inserting paragraph 24A into the FSA was to provide exactly the kind of independent review of decisions made by the former INS, which at the time was responsible for both the care of minors, and for initiating immigration enforcement actions against them. If they were sufficiently independent at that time, then having independent hearing officers located within HHS under the proposed rule should also be acceptable now, especially since ORR is not a law or immigration enforcement agency, and 810 hearings are not related to removal proceedings initiated by DHS. The same reasoning applies to comments questioning the independence of any appeal of 810 hearing decisions. Just as the BIA, like immigration courts, is an administrative appellate body within DOJ, so too in this case another office within the same department would serve as the appellate body for 810 hearings.

Comment. Other commenters were concerned simply with the change in process. They stated that the NPRM reverses a child's right to a bond hearing and instead creates an agency-run administrative process that poses threats to due process. While most of these commenters did not provide a justification for their opposition to the proposed change, one commenter stated he opposed the jailing of children and families on moral grounds and suggested the government focus on keeping families together, alternatives to detention, and full due process. Finally, in addition to the Flores v. Sessions justification, several groups wrote that as a matter of policy, immigration judges are best suited to rule on UAC bond hearings as they have the relevant background and knowledge base to understand the situation and determine the appropriate course of action—or, alternatively, that HHS lacks the appropriate expertise or experience with the issues associated with child custody or child welfare to conduct such hearings.

Response. HHS is unable to respond to comments stating that 810 hearings would violate due process, but offering no specifics. Ultimately the benefit of an administrative process is for the agency to avoid erroneous determinations, and HHS believes that the 810 hearings meet any relevant due process requirements for that process. HHS again notes that the rule provides substantially “practical benefits” as described by the Ninth Circuit, which largely described provision of due process (e.g., an independent decision-making authority to review ORR child welfare decisions, access to counsel, the ability for children to confront the evidence and establish a record).

With respect to comments arguing that the government has a moral duty to keep families together, HHS believes that these comments are really about other issues addressed in this preamble, not about the 810 hearings and exceed the scope of this rulemaking, especially because neither bond hearings under the FSA nor 810 hearings, in and of themselves, prevent family reunification. In providing for an independent review of ORR determinations of a child's dangerousness and risk of flight, 810 hearings serve a similar function to the bond hearings described by the Ninth Circuit in 2017 and thus may serve to promote family integrity. But ultimately, ORR has a statutory duty to ensure safe release of UACs under the HSA and TVPRA, and a similar duty under the FSA.

With respect to the comment that immigration judges are best situated to decide on the questions raised by these hearings, HHS respectfully disagrees. HHS believes that an independent hearing office within HHS, the government agency with specific and relevant expertise in child welfare, would be best suited to adjudicate 810 hearings. As acknowledged by the Ninth Circuit, in Flores custody hearings, even favorable rulings do not entitle UACs to release. This is because, under the HSA and TVPRA, the government must still identify safe and secure placements for UACs in its care. Id. In light of the separation of the former INS's functions in the HSA and TVPRA, at least one court has distinguished ORR custody of UACs, which it termed “child welfare custody,” from immigration detention. See Beltran v. Cardall, 222 F. Supp. 3d 476, 488 (E.D. Va. 2016) (internal citations omitted) (noting that ORR does not withhold discharge of UACs to sponsors due to pending removal proceedings, but does withhold discharge due to child welfare concerns as established in the TVPRA; and noting that Congress intentionally withheld from ORR any role in removal proceedings pending against UACs). ORR's purposes for assessing a child's dangerousness and flight risk relate to its duty to effect safe releases of children, and not to any immigration detention purpose. This makes 810 hearings fundamentally a review of child welfare determinations, and we believe such reviews more appropriately occur within the government agency with direct child welfare expertise, rather than in immigration courts.Start Printed Page 44480

Congress itself endorsed HHS' child welfare expertise when it transferred responsibility for the care and custody of UACs from the former INS to HHS Immigration courts adhere closely to the language of the 9th Circuit decision in 2017 on bond hearings, including its understanding of the limited scope of the hearings (i.e., to decide only on questions of dangerousness and flight risk, not on release or sponsor suitability). Especially with respect to issues associated with child custody or child welfare, an internal HHS hearing office could fulfill the same role as immigration judges, only with greater familiarity and expertise than judges trained to adjudicate cases relating more directly to immigration status and detention.

Comment. Several commenters wrote that the proposed rule would prolong detention of UACs, which is detrimental to the UACs. Some commenters wrote that detention would be prolonged because of the lack of process provided to UACs under the rule and a lack of access to counsel. Another commenter claimed that by placing the onus on UACs—who lack familiarity with their rights and the immigration process in general—to request a redetermination hearing, the rule will inevitably lead to fewer minors receiving such hearings and, therefore, prolonged detention.

Response. HHS notes that 810 hearings as described in the rule are modeled substantively after existing bond hearing practices. Under current practice, UACs do not receive automatic hearings before immigration judges. Also, like bond hearings, favorable 810 hearing decisions in and of themselves do not result in discharge of UACs from ORR custody. Also as with bond hearings, UACs are entitled to be represented by counsel at no expense to the government. HHS does not intend to use 810 hearings to prolong “detention” of UACs in ORR custody. As indicated already, ORR does not detain UACs, rather, it provides temporary care and custody of UACs and has a general policy favoring release to suitable sponsors. For these reasons, HHS disagrees that instituting the 810 hearings as proposed would prolong the length of time UACs remain in ORR custody.

Comment. Another commenter wrote regarding the practices that should be adopted to protect due process of minors in bond hearings including: Appointment of child advocates, hearings within 48 hours of request by child or counsel, and ensuring all minors are informed of their right to request review of their continued detention.

Response. Although this comment appears to be directed to bond hearings for minors in DHS custody, HHS responds as follows with respect to 810 hearings for UACs in ORR custody. HHS notes that, as previously discussed, 810 hearings preserve the substantive benefits of bond hearings as described by the Flores court and the Ninth Circuit. Regarding child advocates, HHS notes that ORR already appoints child advocates, where they are available, for victims of trafficking and other vulnerable children. HHS may establish further policies that include children seeking 810 hearings as another category of children for whom ORR should appoint child advocates, but believes it is not possible to mandate child advocates for all children requesting hearings because child advocates are not available in all ORR care provider locations. In any case, nothing in the FSA, or TVPRA, or case law requires child advocates during the bond or 810 hearings.

Regarding the commenter's suggestion that hearings be scheduled within 48 hours of request, HHS notes that bond hearings in the immigration court have rarely, if ever, occurred within 48 hours of the initial request. Where there have been special circumstances (e.g., a child with an imminent 18th birthday), courts have made special arrangements to hear such cases. HHS intends that the independent hearing officer in 810 hearings will similarly prioritize such cases. But it would be inappropriate to apply a one-size-fits-all timeframe on these scheduling matters, and nothing in the FSA or TVPRA includes such time limits.

Regarding review of placement, § 410.810 already states that UACs placed in secure or staff secure facilities will receive a notice of the procedures under this section and may use a form to make a written request for an 810 hearing. Because the questions at issue in 810 hearings are dangerousness and flight risk, 810 hearings are relevant in almost all cases only to children in secure, and potentially staff secure facilities. For purposes of 810 hearings, HHS plans to treat RTCs as secure facilities. HHS does not consider children in shelter or other less restrictive placements to be dangerous or flight risks; if they were, they would not be placed there. As a result, such children would not require 810 hearings—though the rule would not preclude such children from requesting them. Based on HHS' experiences with bond hearings, except in unusual circumstances, in these cases ORR would stipulate to the independent hearing officer that it does not consider the children to be dangerous or flight risks.

Comment. One commenter noted that if the only review of HHS decisions happens within HHS' apparatus, there is a high chance that due process rights will be violated and that Federal courts have struck down similar agency actions.

Response. HHS has already discussed both the procedural guarantees and other practical benefits that 810 hearings would afford UAC sand incorporates those discussions here. Similarly, HHS has discussed at length the point about the independence of 810 hearing officers and incorporates that discussion here as well.

With respect to the commenter's claim that this rule would violate a 2016 decision of the Eastern District of Virginia,[55] HHS notes that the process at issue in that case was distinguishable from 810 hearings. That case concerned ORR's release process with respect to a parent seeking to sponsor her child. In contrast, as already discussed, under the Ninth Circuit ruling in Flores v. Sessions, the purpose of custody hearings, and 810 hearings by extension, is to decide on the questions of a UAC's dangerousness and flight risk—not release from ORR custody. Considering that different context and the “practical benefits” for UACs discussed by the Ninth Circuit, HHS is confident that 810 hearings satisfy any applicable due process requirements.

Comment. Several commenters wrote that under the proposed rule UACs do not have adequate notice of the hearing, time to prepare for the hearing, or access to the evidence supporting HHS' determination of dangerousness and/or flight risk.

Response. HHS notes that under the rule, UACs have notice of their right to request an 810 hearing as soon as they enter a secure or staff secure care provider facility. Further, they have the right to counsel, and counsel has the ability request the child's full case file at any time. Even if a UAC who requests an 810 hearing does not have an attorney, ORR will provide the UAC with the information and evidence it used as its basis for determining dangerousness and flight risk. In HHS' experience participating in custody hearings before the immigration courts, representatives for UACs (almost all UACs requesting bond hearings have had free legal representation), and ORR have cooperated to ensure hearings take place promptly and that all stakeholders have access to the evidence provided by Start Printed Page 44481both parties. HHS anticipates that the 810 hearing process would similarly allow the parties and counsel for the parties to cooperate.

Comment. Some commenters claimed that HHS is incapable of or not authorized to provide a bond redetermination hearing.

Response. Under the proposed rule, 810 hearings would not mimic the proceedings of an Article 3 court but would instead serve to review ORR child welfare-based determinations regarding dangerousness and flight risk. Child welfare determinations are clearly within the responsibility vested in the Secretary of HHS under the TVPRA for the care and custody of UACs.

Comment. Many commenters wrote that without more information about procedures to protect due process rights in 810 hearings, the hearing process does not meet the requirements set out in the APA for agency decision making.

Response. disagrees with the suggestion that the proposed rule provides inadequate information about procedures in 810 hearings. As explained in the rule, 810 hearings will decide on specific questions noted in the rule, allow for the introduction of evidence, be subject to a preponderance of the evidence standard, result in a written decision, and subject to appeal.

810 hearings are not removal hearings, nor adjudications required by statute to be determined on the record after opportunity for an agency hearing. Where matters of immigration detention and removal are involved, this rule provides for bond hearings for accompanied children in § 236.3(m). HHS notes that 810 hearings flow from HHS' duty to provide care and custody to UACs, and the APA is satisfied by HHS' promulgation of this rule after notice and comment.

Comment. Commenters wrote that the role of a UAC's attorney in an 810 hearing was unclear. They also contended that UACs would not have adequate assistance because UACs would not receive government appointed attorneys to represent them during the 810 hearings.

Response. HHS anticipates that counsel for UACs would have the same role and ability to represent their clients in 810 hearings as they do for UACs in bond hearings. For example, they will be able to request their clients' case files, present evidence, and cross-examine the government's evidence. In practice, essentially all UACs in bond hearings have had counsel. Nevertheless, Congress did not require the government to pay for counsel in any circumstance, and that counsel may be present at no expense to the Government. 8 U.S.C. 1232(c)(5), incorporating 8 U.S.C. 1362.

Comment. Several commenters took exception with placing the burden of proof in 810 hearings on the UAC, and with the standard of evidence applicable to hearings. Some commenters expressed concerns that the rule would result in a shifting of the burden of proof from the government to prove that the child is a safety or flight risk to the alien child to prove that he or she is not. The commenters suggest this is inconsistent with the FSA and Flores v. Sessions, 862 F.3d at 867-68.

Response. HHS believes that it may, in this rule, recognize the child welfare nature of ORR care and custody of UAC. As a result, although HHS will not place the burden of proof on the government in 810 hearings, it has modified the rule to state that the government does bear an initial burden to produce evidence supporting its determination of the UAC's dangerousness or flight risk. Once the government produces its evidence, the UAC bears the burden of persuading the hearing officer to overrule the government's determination, under a preponderance of the evidence standard.

Comment. Several commenters urged HHS to both assume the burden of proof and adopt a clear and convincing standard of proof for bond hearings. They stated that the clear and convincing evidence standard is the governing standard in almost all civil detentions, with the exception of immigration detention. Specifically, the standard of evidence for the government should be clear and convincing, which is a higher standard than preponderance of the evidence.

Response. HHS will assume the burden of producing documentation and evidence supporting its finding of a UAC's dangerousness or flight risk, which the UAC must then successfully rebut before an 810 hearing officer, under a preponderance of the evidence standard. See Flores v. Lynch, No. CV854544DMGAGRX, 2017 WL 6049373AsAsA20, 2017, at *2 (citing Matter of Guerra, 24 I & N Dec. 37 (BIA 2006) to support the proposition that aliens in custody must establish that they do not present a danger to persons or property and are not flight risks). Although ORR and EOIR implemented Flores bond redetermination hearings by immigration judges equivalent to bond hearings in the adult context (where the burden is on the alien to demonstrate they are not a danger or risk of flight), in practice ORR has produced the evidence supporting its determination of the UAC's dangerousness or level of flight risk, which the UAC has then attempted to rebut. HHS believes it is closest to current bond hearings to have the burden of persuasion on the UAC, and to apply a preponderance of the evidence standard rather than a clear and convincing standard.

Requiring UACs to bear the burden of persuasion under a preponderance of the evidence standard allows HHS to balance the equities of UACs in care with its responsibility under the FSA to ensure public safety. See FSA paragraph 14 (describing ORR's general policy favoring release, together with its responsibility to ensure the safety of the UAC and others when it releases a UAC). To the extent the courts have ordered ORR to provide bond hearings to UAC under Paragraph 24A of the FSA, they have not imposed a standard of evidence. Rather, one of the cases cited by the Flores district court, Matter of Guerra, stated, “An Immigration Judge has broad discretion in deciding the factors that he or she may consider in custody redeterminations. The Immigration Judge may choose to give greater weight to one factor over others, as long as the decision is reasonable.” 24 I & N Dec. at 40. Further, ORR custody of UACs is not the equivalent of civil detention or immigration detention; and even if it were, determining the proper standard of proof for Paragraph 24A bond hearings or the proposed section 810 hearings would depend first on the text of any applicable statutes and case law.[56] The TVPRA and HSA do not speak to the issue of bond hearings or their equivalent for UAC in ORR custody, but the relevant case law has applied existing immigration court practices calling for broad discretion by the hearing officer in these cases. Finally, we also note that the regulation specifically provides that UACs will have access to counsel for 810 hearings.

Comment. Organizations noted § 410.810 fails to take the best interest of the child into consideration. Another organization argued that the hearing officer's work should be reviewed under “substantial evidence” to ensure they considered the best interest of the child.

Response. As mentioned above, Congress recognized that HHS has expertise in child welfare and is the most capable agency to make decisions that factor in the best interest of the child. In 2008, Congress enacted a requirement that children under HHS custody “shall be promptly placed in Start Printed Page 44482the least restrictive setting that is in the best interest of the child.” 8 U.S.C. 1232(c)(2)(A). In making such placements, “the [HHS] Secretary may consider danger to self, danger to the community, and risk of flight.” Id. The 810 hearing does not require a formal best interest determination, just as immigration courts and the FSA do not require a best interest determination for a bond hearing nor does the FSA require this. As noted above, the scope of an 810 hearing is also limited to the question of whether the UAC poses a danger or a flight risk, although these are not the only factors when determining release. ORR takes the best interest of the child into account, in addition to potential danger or flight risk, when making a decision about release.

HHS declines to require the hearing officer's work be reviewed under “substantial evidence.” As already explained, HHS will apply a preponderance of the evidence standard of evidence for 810 hearings.

Comment. Other comments concerned the appeals process for 810 hearings. Several commenters expressed concern about the proposed appeals of HHS hearing officers going to the Assistant Secretary for Children and Families. One commenter wrote the Assistant Secretary would create a bottleneck for cases, but others were concerned that, because the Assistant Secretary is a political appointee, the appeal decisions would be politicized.

Response. HHS believes that directing all 810 hearings appeals through a dedicated office will result in efficiencies. Only a limited number of bond hearings have been requested each year—approximately 70 in the past year—and an even smaller number were appealed. HHS anticipates a manageable number of appellate cases in any given year, not a bottleneck. In addition, HHS does not believe that it is improper to vest an appellate decision of this sort in the Assistant Secretary, who is an Officer of the United States and therefore legitimately exercises significant authority pursuant to our laws. See Lucia v. SEC., 138 S.Ct. 2044 (2018).

Comment. Several commenters argued that 810 hearings should only occur in person because video or telephonic conferencing is not child friendly and that they should follow best practices used in state juvenile custody determinations.

Response. HHS anticipates that the procedures governing 810 hearings to develop more fully with experience. As written, the rule provides for minimum requirements. But HHS declines to impose the sorts of protocols recommended by the commenters recommended by the commenters. Just as ORR makes child welfare decisions on an individualized basis, so too does HHS envision a process by which the individual needs of UACs requesting 810 hearings can be accommodated. HHS accordingly declines to require all hearings to take place in person, or to state that video or telephonic conferencing is necessarily not child friendly. Neither the FSA nor the TVPRA impose such a requirement.

Comment. One commenter complained that the proposed rule does not provide information about the qualifications for HHS hearing officers.

Response. As indicated above, HHS invited comments on whether hearing officers should be employed by the Departmental Appeals Board, either as Administrative Law Judges or hearing officers, or whether HHS would create a separate office for hearings, similar to the Office of Hearings in the Centers for Medicare & Medicaid Services. But the comments received did not make responsive suggestions. As a result, HHS maintains that 810 hearings will be conducted by independent hearing officers to be identified by HHS.

Comment. Two commenters wrote that creating a new custody redetermination process at HHS would create a fragmented and uncoordinated administrative processes resulting in confusion and contradictory results between HHS and EOIR. One commenter wrote that in addition to bond redetermination cases remaining with EOIR, immigration judges should be charged with informing UACs of their rights, and appeals to the BIA should be heard and decided within 48 or 72 hours of the appeal.

Response. As an initial matter HHS disagrees with the commenter that housing hearings within HHS will result in a fragmented process. One of the benefits of moving these child welfare hearings to an independent HHS office is to allow continuity of child welfare decision-making within the Department. Moreover, HHS proposed an independent hearing process to replace the current regime of custody hearings before immigration judges. Immigration judges would play no role in informing UACs of their rights regarding 810 hearings, including information on the opportunity for appeal, which are distinct from immigration enforcement proceedings. HHS has, however, considered this comment with respect to the 810 hearing process and notes that, typically, immigration judges have informed UACs and ORR of their rights to appeal bond hearing decisions concurrently with the issuance of those decisions. HHS anticipates that it will create a new bilingual form that will explain the 810 hearings process, notify UACs of their rights within the administrative process, and allow UACs to formally request an 810 hearing—or withdraw a request. If a child speaks a language other than English or Spanish, HHS will use interpretation services to convey the form's meaning and content to the UAC. But the timetable for appellate decisions proposed by the commenter is not practically feasible, nor even required by regulations governing BIA appeals of bond determinations by immigration judges.

Comment. One commenter argued that according to his observations of bond redetermination hearings, the process is currently disorganized and inefficient, and insufficiently protects UACs. He further contended that that in the hearings he observed, the immigration judge disagreed with HHS' assessment of the dangerousness of the child. The commenter concluded that HHS officials are thus incapable of providing an adequate bond hearing to a UAC.

Response. Based on the context of this comment, the commenter appears to have confused bond hearings under paragraph 24A of the FSA, with Saravia hearings. See Saravia v. Sessions, 280 F. Supp. 3d 1168 (N.D. Cal. 2017), aff'd sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018). Saravia hearings originated in a case in which DHS had re-apprehended based on gang affiliation certain UACs whom ORR had discharged to sponsors. The District Court for the Northern District of California ordered that, going forward, any such UACs must be afforded a hearing before an immigration judge, in which the burden is on the government to demonstrate that circumstances changed sufficiently to justify re-apprehension and referral to ORR custody. ICE counsel, not HHS, represents the government in Saravia hearings. In contrast, ICE counsel does not represent the government in UAC bond redetermination hearings under the FSA; HHS does. Anecdotal information that an immigration judge disagreed with ORR's original judgment to release a particular child to a sponsor, in the context of a Saravia hearing, is insufficient to establish that an independent hearing officer unaffiliated with ORR is unable to make an appropriate child welfare determination.

Comment. One commenter objected that the 810 hearings do not provide an opportunity for sponsors to participate in the bond redetermination case to Start Printed Page 44483show that the child has an appropriate sponsor.

Response. HHS reiterates that neither bond hearings nor the proposed 810 hearings make determinations on release, let alone release to particular sponsors. Sponsor suitability determinations are within ORR's statutory mandate, and are a separate question from the analysis done in the current bond hearings or the proposed 810 hearings. As a result, potential sponsors need not always be afforded the right to participate in 810 hearings. Having said that, UACs are frequently sponsored by their parents, and the rule allows parents or legal guardians to request 810 hearings on their children's behalf, just as they are able to request bond hearings on their children's behalf presently. In these situations, the rule would not prevent parents from participating in the hearings. For example, they could testify or present evidence, or could argue on behalf of their children.

Comment. Some commenters disagreed with the agency's analysis that EOIR lacks the authority to hear UAC bond redetermination hearings because Congress did not authorize EOIR to hear these cases and because release authority for UAC rests solely with HHS. These commentators supported their objection by citing to the Ninth Circuit's analysis of these issues. One commenter noted that the BIA has held that immigration courts can rule on UAC bond redeterminations cases.

Response. HHS disagrees with the commenter's conclusion regarding the Ninth Circuit's analysis as it pertains to the bond hearing requirement under paragraph 24A of the FSA (for the reasons stated above, as well as in the NPRM). In addition, Congress also has already determined that HHS is the agency with expertise in child-welfare issues, including in making release determinations that are in best interest of the child. Immigration judges—sitting in a different Department of the Executive Branch, and generally able to release individuals “on bond” on their own recognizance, are unfamiliar with the HHS system and do not always recognize the limits of their authorities (i.e., to determine only dangerousness or risk of flight, without necessarily being able to release a child for whom a suitable custodian has not yet been determined). While the Ninth Circuit itself recognized that the “bond hearing” under FSA paragraph 24A would not result in a dispositive release decision, this limitation on the authority of immigration courts is not a limitation typically experienced with such administrative courts. Thus, not only do the statutory authorities support an HHS administrative process for the hearings that will affect HHS legal custody, but also, even if the statutes could be read to allow EOIR to retain authority over the UAC bond hearings, the Government nonetheless has the authority to implement the FSA by moving the hearings to an HHS framework. The language of the HSA shows that Congress knows how to preserve DOJ authorities where it chooses to do so. In the rule of construction governing immigration benefits, Congress stated that “Nothing in this section may be construed to transfer the responsibility for adjudicating benefit determinations under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) from the authority of any official of the Department of Justice, the Department of Homeland Security, or the Department of State.” 6 U.S.C. 279(c). No similar language exists for bond hearings. Such a discrepancy shows that where Congress wished to preserve DOJ authority for UACs, it did so explicitly. In addition, Congress has recognized that HHS would assume responsibilities that previously resided within the Department of Justice. See 6 U.S.C. 279(f)(1) (authorizing Federal officials to perform the functions, and exercise the 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 effective date” of the HSA). Finally, even assuming commenters are correct in their analysis (which HHS disputes), binding HHS (and EOIR) to the commenters' reading of Paragraph 24A would mean that the Government is indefinitely bound by a decades-old consent decree—a consent decree signed by an Administration no longer in office, that can never be altered, even through Congress' sanctioned method of adopting binding policies through notice and comment rulemaking under the Administrative Procedure Act. HHS does not believe such an unyielding and indefinite hold on agency policy-making, across Administrations, can arise from a consent decree, especially where, as here, Congress abolished the signatory to the Agreement and divided its responsibilities among new Parties. Decisions on whether a minor must be maintained in HHS custody solely due to his or her danger or risk of flight are properly within the purview of the very agency charged with making child-welfare determinations. Once Congress made clear that UACs are to be the responsibility of an agency not involved in immigration enforcement, it does not make sense for the immigration courts—which are primarily involved in aspects of such immigration enforcement—to retain jurisdiction.

BIA precedent is not dispositive on the question of whether immigration judges may review custodial determinations of ORR. While the district court and Ninth Circuit may have altered this ruling as it pertained to implementation of the FSA, a final rule that provides the substantive elements and practical benefits of bond hearings, especially protection of UACs' due process rights, settles the matter as it relates to HHS custody of UACs. DHS immigration detention is a separate matter, and this rule provides for bond hearings for minors in DHS custody.

Comment. Commenters argue that it would be inefficient and more expensive to create a new type of tribunal system for UAC bond redetermination cases.

Response. Although it would arguably be less expensive for HHS to preserve UAC bond redetermination hearings in the immigration court system rather than creating a new process within HHS, there are at least two efficiencies that would result from a new independent hearing process. First, removing these cases from immigration court dockets would allow the courts to focus on cases within their expertise and authority (i.e., immigration detention and removal hearings). It is well known that the immigration courts face an extreme backlog of cases, with many aliens waiting months if not longer for their hearings. The sudden addition of UAC custody hearings in 2017, which the immigration courts prioritized in terms of scheduling, only added to the already heavy caseload placed on the immigration courts. Second, placing 810 hearings within an independent HHS office would also promote the speed of adjudications and appeals through the development of specific expertise, and through centralization. Currently, bond hearings take place around the country, in courtrooms with varying rules and scheduling demands. By centralizing all 810 hearings in an independent office within HHS, protocols would be standardized. In addition, the independent hearing office would accrue specialized expertise and at least in theory be able to make adjudications more quickly and effectively than immigration judges who remain largely unfamiliar with ORR policies and practices.

Comment. One commenter asserted that 810 hearings fail to protect rights Start Printed Page 44484under the INA and international customary law.

Response. As noted above, the purpose of this final rule is to promulgate final rules implementing the FSA, and HHS believes the 810 hearing process does so. HHS is not aware of any provision in the INA or customary international law that would preclude this process and so it does not accept that 810 hearings are governed by customary international law. The commenter appears to suggest that there are requirements of impartial custodial review under customary international law, but it is not clear what the commenter's argument is. Without taking a position on this assertion and as HHS already stated, 810 hearings will be conducted by independent hearing officers.

Comment. One commenter wrote that the proposed 810 hearings ignore the interest that state courts may have in the custody of a child in the state, particularly if state courts had previously been involved in the child's life through, for example, a custody hearing.

Response. State courts have no jurisdiction over UACs, who are in Federal custody, other than that which ORR specifically consents to in writing. See, e.g., FSA at paragraph 24B (permitting UACs to seek judicial review of placement decisions not in state court, but rather in the United States District Court with jurisdiction and venue). See also Perez-Olano, et al. v. Eric Holder et al., Case No. CV 05-3604 (C.D. Cal., Dec. 14, 2010) (creating a uniform notification process for notifying UAC in Federal custody of their right to seek Special Immigrant Juvenile status; establishing procedures for the Federal Government and UAC and UAC representatives to follow for filing specific consent requests to juvenile court jurisdiction).

Changes to Final Rule

HHS has changed the final rule text to make clear that once the UAC has made a claim that s/he is not dangerous or a risk of flight, HHS bears the initial burden to produce evidence supporting its determination of dangerousness or flight risk; however, the UAC, who may introduce his or her own evidence, bears the burden of persuading the independent hearing officer to overrule HHS, under a preponderance of the evidence standard.

C. Other Comments Received

1. Detention as Deterrent

Public Comments and Response

Comments. Many commenters stated the Government failed to provide data and/or methodologies used to make an assessment regarding detention as a deterrent, and multiple others stated that detention has been shown to be an ineffective deterrent. Several commenters stated that while harsher enforcement may impact migration flows, so do push factors, something for which they say the proposed rule did not account.

Various commenters asserted that using detention of families or individuals as a way to deter migration is unlawful. One commenter added that deterrence is a concept that applies in the criminal justice system, not the civil immigration context. Commenters pointed out that the Supreme Court has ruled that civil detention may not be used as a mechanism for deterrence and that detention used as a deterrent abandons the protections of the due process clause of the Fifth Amendment. A few commenters insisted that the government must show the justification for detaining immigrants outweighs countervailing liberty interests and that detaining asylum seekers to deter other migrants does not meet the standard. A few commenters stated that detention as a deterrent has been both proven ineffective and decried as unlawful by a Federal judge.[57] Others stated that when the previous administration attempted a similar policy of detaining families for the purpose of deterring future migration, a Federal court issued a preliminary injunction blocking the practice.

Multiple commenters stated that DHS makes a flawed assertion in the proposed rule by stating that a 20-day limit on family detention imposed as part of a July 2015 court ruling “correlated with a sharp increase in family migration.” These commenters argued that available evidence indicates the increase in migration is more directly related to root causes of poverty and violence in migrants' home countries and that the NPRM erroneously presented correlation as causation.

Numerous commenters cited research and testimonials indicating that the migration trend from the Northern Triangle is due to high rates of violence in that region. They cited statistics about significant danger accompanying travel to the United States to underscore the severity of the situation that they are fleeing. Several commenters asserted that the families who would be affected by this rule have grounds for asylum, citing USCIS data showing that nearly 88 percent of families in its detention centers have exhibited credible fear. The commenters stated that the rules set forth in the NPRM will not deter these individuals who are trying to save their lives and the lives of their children. Commenters suggested that by ignoring violence and persecution as a migratory cause, DHS evades its responsibilities as a signatory to the 1967 Protocol Relating to the Status of Refugees; increases likely litigation regarding protection of asylum seekers; risks returning asylum seekers to persecutory harm; and risks undermining confidence in the rule of law in the United States by both asylum seekers and U.S. citizens.

Several commenters mentioned that the migrants have no or minimal knowledge of U.S. immigration laws, while others noted that the policy is ineffective even if migrants are aware of the consequences of entering the United States illegally.

One commenter stated that the NPRM shows the government is struggling to comply with the FSA and is attempting to alter the standards agreed upon by the parties in the FSA. The commenter stated that the FSA was focused on establishing procedures and conditions that meet child welfare principles, but the purposes demonstrated in the NPRM are in direct contrast to the FSA's intent. The commenter asserted that the proposed rule cannot be interpreted as a good faith attempt to be consistent with the FSA's provisions.

Commenters also stated concern with family “incarceration.” For example, one commenter stated that incarceration of families is a cruel response to the humanitarian crisis at the border and will exacerbate the trauma that survivors of violence have endured. The commenter stated that many women and children arriving at the border from the Northern Triangle are fleeing terrible violence at the hands of intimate partners, criminal gangs, or police or other authorities, who perpetrate these acts of violence without any accountability.

Response. As DHS specified in the proposed rule, the primary objective of the rule is to implement the FSA in regulations, thereby terminating the FSA; it is not to utilize detention as a deterrent to migration. Congress has authorized DHS, as a general matter, to detain aliens during the immigration enforcement process to ensure that, at the conclusion of that process, they can be removed if so ordered. In some Start Printed Page 44485circumstances, detention is at the discretion of DHS and, in others, detention is mandatory. Detained cases are handled by the immigration courts on a priority basis, and DHS's policy preference is to be able to exercise its discretion to maintain custody in appropriate family unit cases pending the completion of removal proceedings. This rule will enable DHS to maintain family unity while also enforcing the laws passed by Congress, including appropriately exercising the enforcement discretion Congress has vested in DHS. To the extent that the effect of enforcing the laws passed by Congress is to deter some migrants from making the journey to the United States, that effect is merely a result of enforcing the laws currently in place.

Commenters misinterpreted DHS's position concerning the operational consequences of the FSA. In particular, the absence of state licensing for FRCs has prevented the Government from maintaining custody of many families for a period of time sufficient to resolve their immigration cases, including expedited removal proceedings. This often leads to the release of families, many of whom abscond, adding to a large alien fugitive backlog, as discussed elsewhere in this rule. DHS has encountered cases where this confluence of the FSA and its interpretation have created an incentive for adults to bring minors to the United States with the aim of securing prompt release from custody. That being said, consistent with the view expressed by many commenters, DHS acknowledges that the incentive structure informing the decision of migrants whether to travel to the United States is complex and multifaceted, and that potential detention for criminal or civil violations of U.S. law is not the only consideration at issue. This rule does not purport to—and indeed, cannot—address all potential incentives for migrants to travel to the United States, including “push factors” such as those described in the comments.

DHS declines to amend the proposed regulatory text in the final rule in response to these public comments.

2. Indefinite Detention

Public Comments and Response

Comments. Many commenters stated that they were concerned that minors, particularly accompanied minors, could be detained indefinitely under the proposed rule. They requested that DHS maintain a fixed detention limitation for children and that families with children be released rather than detained. Many commenters also requested that DHS maintain the existing list of relatives to whom it will release children.

Many commenters stated that the proposed rule is contrary to the principles underlying the FSA, namely that immigrant children are uniquely vulnerable and, thus, should be released from detention as quickly as possible. These commenters expressed concern that the proposed rule fails to prioritize community placement, and they argued that elimination of the 20-day limitation on detention conflicts with the FSA's general policy favoring release as “expeditiously as possible” without “unnecessary delay.” Many commenters wrote that the proposed rule constitutes a modification of the FSA, rather than a codification of it, and could not be used to justify termination of the FSA. These commenters noted that the FSA's detention limitation applies to both accompanied and unaccompanied children under a 2015 District Court ruling.

Several other commenters stated that the proposed rule violates the FSA's requirement that children be placed in the least restrictive setting, along with additional Federal laws. One commenter stated that the least restrictive setting requirement should be interpreted consistently with similar language in the Individuals with Disabilities Education Act (IDEA), which requires that students with disabilities be placed in the least restrictive appropriate setting possible. The commenter wrote that the IDEA and the FSA are both intended to prevent disadvantaged children from being taken advantage of by those in power, and that the FSA's “least restrictive setting” language should therefore be interpreted to prohibit detention in most circumstances. Another commenter stated that indefinite detention of children would violate the Child Abuse Prevention and Treatment Act, a Federal law which prohibits caretakers of children from causing, or failing to mitigate serious imminent threats of, physical and emotional harm. Still other commenters wrote that indefinite detention runs contrary to the spirit of the Family First Prevention Services Act, a Federal law which attempted to reduce the number of children in congregate settings. These commenters stated that indefinite detention contradicts best practices, state policy, and Federal policy in the criminal justice, juvenile detention, and child welfare areas.

Other commenters recommended specific changes to the language of the rule to avoid the prospect of indefinite detention. One commenter recommended adding language regarding continuing efforts to release minors and reunify families for the duration of a child's time in custody to § 410.201(f). Another commenter wrote that the possibility of indefinite detention is exacerbated by the use of permissive and future-tense verbs (“may” and “will”) rather than the mandatory verbs found in the FSA (“shall” and “must”). This commenter recommended retaining the verbs used in the FSA. This commenter also wrote that the “or is otherwise appropriate” clause should be stricken from § 236.3(h) because it provides an opportunity for indefinite detention.

Many commenters stated that the TVPRA did not justify changing the conditions imposed by paragraph 14 of the FSA with regard to accompanied minors, because the TVPRA only addresses UACs and, in any event, is not inconsistent with the FSA.

Many commenters expressed concern that indefinite detention would violate detained children's human rights or civil liberties. These commenters asserted that detaining migrants in order to deter migration violates international prohibitions on torture. One commenter stated that prolonged detention of asylum seekers violates Article 31(1) of the UN Refugee Convention. Another commenter stated that detaining children for prolonged periods of time violates international law protecting the dignity of the family unit as well as guidance from the United Nations that children should not be detained due to migration status. Another commenter wrote that the indefinite detention of children violates Articles 37, 22, and 9 of the United Nations Convention on the Rights of the Child. One commenter wrote that the proposed rule should explicitly mandate consideration of the best interest of the child in order to comply with these provisions of international law. This commenter also stated that indefinite detention violates Article V of the American Declaration of the Rights and Duties of Man.

Many commenters expressed concern that prolonged or indefinite detention would negatively impact detained children's health, growth, and development. These commenters stated that, while there is no safe amount of detention, harms to children from detention increase as the length of detention increases. They argued that the conditions in existing detention facilities are inappropriate for, and dangerous to, children and do not provide sufficient medical and developmental services to children.

Specific concerns were raised with respect to the mental health of children including the prospect that detention Start Printed Page 44486could cause depression, suicidal ideation, and anxiety. Many commenters stated that indefinite detention could cause behavioral changes in children after release and inhibit their educational attainment and success in life. Several commenters worried that prolonged detention may cause “toxic stress,” and one commenter stated that the trauma caused by detention could require years of psychotherapy and medications. Another commenter stated that, although parents can typically buffer children from stressful situations, when the parent is also experiencing intense stress, the parent's “buffering capacity” may be undermined and lead to additional harm to the child.

One commenter expressed concern that prolonged family detention would force children and their families to give up their culture. This commenter described a state's experience with Native American assimilation and Japanese-American internment and the negative effects these events had on those communities and noted that it does not want the United States to return to this past practice of childhood detention.

Finally, one commenter expressed concern that indefinite detention of immigrant children could lead to indefinite confinement of U.S. citizen children abroad because the proposed rule would damage the reputation and credibility of the United States abroad.

Response. This rule does not contemplate or authorize “indefinite detention” of anybody, much less minors. “Indefinite detention” is inconsistent with DHS's mission. The purpose of immigration detention is to effectuate removal and to keep custody over an alien while a decision is made on whether removal should occur. If the alien establishes that she merits relief from removal, she will be released at the end of the proceedings; if not, she will be removed. That is not “indefinite detention” because it has a definite end point, namely, the end of proceedings and removal itself. See Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018); Demore v. Kim, 538 U.S. 510, 529 (2003). ICE notes that the majority of minor and family unit removals involve countries in the Northern Triangle, and removals are normally effectuated promptly in these countries. DHS notes that minors and family units are not likely to face long periods in detention because immigration proceedings involving detained family units and minors are placed on a priority docket by EOIR. Family units and minors can also benefit from release during the pendency of removal proceedings if they qualify for release on recognizance, bond, or parole.

Aliens subject to final orders of removal may remain in custody until removal can be effectuated. For those aliens detained pursuant to INA 241, this includes a presumptively reasonable period of 180 days after a final order of removal has been issued, and thereafter, the alien must generally be released absent a significant likelihood of removal in the reasonably foreseeable future (in compliance with current law and regulation).

Detention remains an important tool to ensure that proceedings are completed. EOIR found that for completed cases from January 1, 2014, through March 31, 2019 that started at an FRC, 43 percent of family unit members were issued final orders of removal in absentia out of a total of 5,326 completed cases. DHS OIS has found that when looking at all family unit aliens encountered at the Southwest Border from FY 2014 through FY 2018, the in absentia rate for completed cases as of the end of FY 2018 was 66 percent. As a result, the authority to detain minors in family units continues to be an important component of immigration enforcement. But “indefinite detention” is not consistent with DHS's mission.

DHS reiterates that while this rule would allow DHS to hold non-UAC minors with their parents or legal guardians at FRCs for more than 20 days, this intent does not clash with the intent of the FSA. The FSA provides that minors subject to its provisions will all be transferred to a licensed program until they can be released. FSA paragraphs 12A, 14, 19. The provisions of this rule will allow properly managed FRCs to qualify as licensed, non-secure facilities once its terms go into effect, and the FSA itself provides no specific time limit for a minor to be in a licensed program. That ICE generally does not hold family units in FRCs beyond approximately 20 days is a result of a district court opinion holding that ICE's FRCs, as they currently exist under law, are not appropriately licensed and are not “non-secure.” Once this rule permits properly managed FRCs to qualify as licensed, non-secure facilities, their operation will be consistent with the operation of licensed programs under the FSA. Importantly, as explained previously, FRCs are designed to be a safe location where families can be together in an environment that will foster their children's development during the pendency of immigration proceedings. They are not secure facilities—which means that, while it is discouraged, individuals in those facilities can exit them. Doing so, however, may give rise to arrest given that those in the facilities are subject to apprehension under the immigration laws and, in many instances, mandatory immigration detention.

Bond determinations will be made pursuant to the ordinary statutory and regulatory standards, under which an alien is released if he can establish he is not a flight risk or danger. See INA 236(a). The rule here would not alter such authorities governing custody, but instead would allow the determination of whether to detain a family to be made under all appropriate legal authorities, and not under the FSA system through which a different set of rules applies to the minor and another to his parent(s) even though they are being held together in the same place.

DHS has added new language at § 236.3(j)(4) to state clearly that paroling minors in DHS custody pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason. DHS adds that it may also consider aggregate and historical data, officer experience, statistical information, or any other probative information in determining whether detention of a minor is required to secure the minor's timely appearance before DHS or the immigration court or to ensure the minor's safety and well-being or the safety of others. Furthermore, current limitations on bed space in FRCs are significant and will likely mean that, as a practical matter, unless the amount of bed space is significantly expanded or the number of families drops dramatically, families that have established a credible fear and who are not a flight risk or danger will often be released from detention. For a discussion release of minors from DHS custody, please see Section B.10., Release of Minors from DHS Custody.

Changes to Final Rule

DHS is amending § 236.3(j)(4) to state that paroling minors in DHS custody pursuant to section 235(b)(1)(B)(ii) of the INA or 8 CFR 235.3(c) who do not present a safety risk or risk of absconding will generally serve an urgent humanitarian reason.

3. Alternatives to Detention

Public Comments and Response

Comments. Many commenters proposed alternatives to keeping family units or unaccompanied minors in detention. Several commenters pointed to the Juvenile Detention Alternatives Start Printed Page 44487Initiative (JDAI) as evidence that alternatives to detention are effective and preferable over detention. Numerous commenters recommended use of the Family Case Management Program instead of detention, because the program is significantly cheaper and is effective at ensuring that a family appears for their immigration proceedings.

Commenters compared ATD programs such as the Intensive Supervision Appearance Program (ISAP) at $4 per day per person and the Family Case Management Pilot Program (FCMP) at approximately $36 per family per day to the cost of detention, which they cited as approximately $319 per individual per day in FY 2019. One commenter estimated that the costs of detention for a family of two in an FRC for 40 days, the average time to process an individual on the detained docket costs would be $25,520 ($319 × 2 people × 40 days). The commenter estimated the costs of ISAP for the head of household at $3,008 for 752 days, the average time to process an individual on the non-detained docket ($4 × 752 = $3,008).

The commenters noted that participants in the FCMP had a 100 percent attendance record at court hearings and a 99 percent rate of check-ins and appointments with ICE.[58] The commenters also stated that the FCMP would have fewer negative impacts on the well-being of minors when compared to detention, and that the Program resulted in, among other things, lower return-rates of children into foster programs and lower rates of abuse, neglect, or other crimes when compared to minors and families in detention.

Relatedly, several commenters stated that DHS should utilize a community-based, case-management program as an alternative to detention. The commenters stated that such a program should provide case management services, facilitate access to legal counsel, and facilitate access to safe and affordable housing. They cited studies showing that a sense of belonging in schools and neighborhoods is a strong factor for positive health outcomes for immigrant and refugee families. The commenters also stated that such a program has been shown to substantially increase program compliance, without the extensive use of electronic monitoring, and cited pilot programs conducted by the Lutheran Immigration and Refugee Service and the Vera Institute of Justice as support. Still other commenters presented alternatives to detention. Some commenters stated DHS should more heavily rely on NGOs, non-profits, and religious organizations to provide necessary services, including housing, to immigrants and ensure that they attend their immigration hearings. One commenter focused on foster family placement, stating that it would provide better outcomes for youth than detention or large shelter placement.

Several commenters stated that DHS should release more aliens on bond, or if the aliens lack any indicia of being a flight risk, on their own recognizance. Several commenters supported electronic monitoring as an alternative to detention. Other commenters, however, expressed concern that electronic monitoring can be stigmatizing for aliens and interfere in daily life activities, and stated that such monitoring, while preferable to detention, should only be used as a last resort, such as when the alien is a flight risk, presents a safety concern, or otherwise would be a candidate for secure detention.

One commenter expressed support for a program that includes a combination of electronic ankle monitors, voice-recognition software, and unannounced home visits, and stated that similar programs have been found to be affordable and highly effective. One commenter, citing a GAO report,[59] noted that a similar program resulted in over 99 percent of aliens with a scheduled court hearing appearing at their scheduled court hearings, and more than 95 percent of aliens with a scheduled final hearing appearing at their final removal hearing.

Several commenters stated that providing needed services to alien families and minors would help ensure their attendance at court hearings. Several commenters stated that DHS should provide legal orientation programs to aliens to help ensure their appearance at hearings, as well as inform families of their legal rights and obligations. These commenters expressed a belief that the high rate of in absentia removal orders is because asylum seekers lack basic information about the immigration process. Another commenter suggested that the government provide the families and minors with case workers, transportation to and from their hearings, and a small financial incentive for showing up at their hearings. The commenter also suggested that aliens who appear at their hearings should also have their immigration cases looked upon more favorably.

Finally, commenters cited to a report on a non-profit organization's case management program, the Family Placement Alternatives (FPA), piloted in 2015. The commenters present the FPA as a human-centric alternative to detention through a holistic social service approach. The report highlights the benefits of community-based services and cites several examples of immigrants who were able to navigate the asylum system better with the help of an assigned case manager. The report also annexes several findings directly related to compliance with removal proceedings, discusses the cost-effectiveness of running the program and recommends its adoption on a larger scale.

Response. DHS agrees with the commentators that ATD has an important role to play as an effective compliance tool for some aliens. DHS accordingly uses ATD in some cases, consistent with resource limitations, and will continue to do so. But ATD is only a partial solution, not a complete answer. Congress has authorized, and in some instances required, immigration detention as a tool for fulfilling ICE's mission. Although ATD can be used as an effective compliance tool, unlike detention, such alternatives generally do not provide a means to effectively remove those who are illegally present and have a final order of removal. Moreover, DHS does not have the resources to keep aliens on ATD throughout proceedings, or to locate and arrest those who abscond. Enrolling aliens in ATD instead of detaining and removing them also contributes to the growing immigration court backlog. Many of those in the program are enrolled for years (as opposed to an average length of stay in detention of 30-40 days). ATD thus cannot completely replace immigration detention.

ICE is, however, currently utilizing ATD for certain qualified family units. The current ATD—Intensive Supervision Appearance Program (ISAP) is a flight-mitigation program that uses technology and case management tools to facilitate compliance with release conditions, court appearance, and final orders of removal while allowing aliens to remain in their community—contributing to their families and community organizations and, if necessary, wrapping-up their affairs in the United Start Printed Page 44488States—as they move through immigration proceedings.

ATD-ISAP may be appropriate for aliens who are in some stage of removal proceedings and released from DHS custody pursuant to an order of release on recognizance, an order of supervision, or a grant of parole or bond, e.g., individuals considered not to be a danger to the community or a high flight risk. The ATD-ISAP contractor provides case managers who supervise participants utilizing a combination of home visits, office visits, alert response, court