December 4, 2023
Toby Biswas, Director of Policy
Unaccompanied Children Program
Office of Refugee Resettlement
Administration for Children and Families
Department of Health and Human Services
Washington, DC
Re:
ACF Docket No. ACF-2023-0009-0001, RIN: 0970–AC93, Comments in
Response to Notice of Proposed Rulemaking: Unaccompanied Children Program
Foundational Rule
Dear Mr. Biswas:
We submit this comment regarding the Department of Health and Human Services(HHS)’s Office of Refugee Resettlement (ORR)’s proposed rule, “Unaccompanied Children
Foundational Rule,” published in the Federal Register on October 4, 2023.
Current U.S. laws provide an essential foundation for the care and custody of
unaccompanied alien children (hereinafter, UC or unaccompanied children), given the uniquevulnerabilities they face. These protections are governed by the Flores Settlement Agreement of1997 (Flores Agreement), the Homeland Security Act of 2002, and the William Wilberforce
Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA). 1 As members ofCongress, we have an interest in ensuring that federal regulations regarding unaccompanied
children reflect congressional intent to ensure the safety and well-being of children ingovernment custody. In addition, given that a final regulation could lead to the termination ofparts of the Flores Agreement that relate to unaccompanied children in ORR custody, we have aninterest in ensuring that any final regulation implements and properly enforces that agreement. 2
We write to offer our views on the proposed rule, as well as recommendations in furtherance of
the aforementioned goals.
A. Building on Congressional Intent
In addition to the minimum standards set by the Flores Agreement, Congress
subsequently enacted legislation establishing requirements for the UC program. In 2000, thenSenator Feinstein introduced the bipartisan Unaccompanied Alien Child Protection Act(UACPA).3 The Senate Judiciary Committee’s Subcommittee on Immigration held a hearing
about the bill in February 2002, during which Senator Kennedy, the then-Chair of the
Subcommittee, reported “that more than 30 percent of unaccompanied children detained . . .
Flores v. Meese—Stipulated Settlement Agreement (U.S. District Court, Central District of California, 1997)(hereinafter Flores Agreement); 6 U.S.C. §279(g)(2); 8 USC § 1232(a)(5)(D) and 8 USC § 1232(b)(3); Immigration
and Nationality Act (INA) § 235(a)(2)(A).
2
Flores Agreement., ¶ 9.
3
S. 3117, 106th Congress.
1were held in juvenile jails, often with dangerous criminals, subject to shackling and strip
searches.”4 Portions of UACPA were subsequently incorporated into and enacted into law withthe passage of the Homeland Security Act (HSA) of 2002. 5 Specifically, the HSA divided
responsibilities for UC between the Department of Homeland Security (DHS) and HHS’s Officeof Refugee Resettlement (ORR). DHS would be responsible for the apprehension, transfer, andrepatriation of UC. ORR would then be responsible for coordinating and implementing the careand placement of UC in appropriate custody.6 Concerns remained, however, after the passage ofthe HSA, about the screening of UC for human trafficking or persecution, as well as their legal
representation in immigration proceedings.7 In 2007, Senator Feinstein introduced an updated
version of the bipartisan UACPA, which was then incorporated into and enacted as part of the
TVPRA, which passed the Senate unanimously and was subsequently signed into law by
President George W. Bush.8
Pursuant to the TVPRA and consistent with the Flores Agreement, UC who remain in
ORR custody must be placed in the least restrictive setting that is in their best interest. 9 The
TVPRA also requires that before placing a child with a sponsor, ORR must determine that a
proposed sponsor is “capable of providing for the child’s physical and mental well-being.” 10 Thisrequires, at a minimum, “an independent finding that the individual has not engaged in any
activity that would indicate a potential risk to the child.” 11 Prior to placement, ORR is statutorily
required to conduct a home study for the following children: trafficking victims, children withdisabilities, certain victims of physical or sexual abuse, and any child whose “proposed sponsor
clearly presents a risk of abuse, maltreatment, exploitation, or trafficking” based on “all available
objective evidence.”12 Under the TVPRA, ORR is required to provide post-release follow-up
services for all UC who received home studies prior to placement with a sponsor. 13 ORR is also
authorized to conduct follow-up services in cases involving UC who could benefit from ongoing
assistance from a social welfare agency, such as “children with mental health or other needs.”14
We strongly support the proposed rule’s expanded implementation of statutory policies
regarding pre-release home studies, sponsor vetting, and post-release services to provide
additional safeguards and care to unaccompanied children. We welcome the codification ofcurrent ORR policy to conduct home studies not only on children in certain circumstances
required by the TVPRA, but also for children in additional vulnerable situations. 15 Specifically,
Unaccompanied Alien Child Protection Act, Hearing Before the Subcommittee on Immigration, Committee on the
Judiciary, United States Senate, S. Hrg. 107-867 (Feb. 28, 2002), https://www.govinfo.gov/content/pkg/CHRG107shrg85520/html/CHRG-107shrg85520.htm.
5
6 U.S.C. § 279.
6
CRS, Unaccompanied Alien Children: An Overview (Sept. 1, 2021), https://sgp.fas.org/crs/homesec/R43599.pdf.
7Id.
8
See generally William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, P.L. 110-457.
9
8 U.S.C. §1232(2).
10
8 U.S.C. §1232(c)(3)(A)
11
8 U.S.C. §1232(c)(3)(A)
12
8 U.S.C. §1232(3)(C)(B)
13
8 U.S.C. §1232(3)(B).
14
8 U.S.C. §1232(3)(B).
15
HHS ORR, Unaccompanied Children Program Policy Guide at Section 2.4.2 Home Study Requirement (Revised
Mar. 28, 2023) https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guidesection-2.
42

the proposed rule requires home studies for children whose sponsor is not a relative and isseeking or has sought to sponsor multiple children16 (a circumstance that may indicate a risk to
the child of human trafficking) and children aged 12 or younger to a sponsor who is not a
relative.17 Such children would also be required to receive post-release services,18 consistent with
the TVPRA.19 In addition, the proposed rule expands the sponsor suitability assessment toinclude an evaluation of the sponsor’s previous relationship with the unaccompanied child andthe child’s family, as well as the sponsor’s motivation for sponsorship, 20 factors that also mirror
current ORR policy.21 Finally, we are pleased to see a proposed definition of “post-releaseservices,” among other key terms, as well as proposed guidelines for providing timely postrelease release services for children statutorily required to receive such services.22
B. Building on the Foundation of Flores – Improving Oversight Safeguards
Under its terms, the Flores Agreement will terminate when regulations consistent withthe agreement are put in place.23 Although the federal government has on several occasions
attempted to publish relevant regulations, none of these efforts resulted in the promulgation of a
final rule.24 The proposed rule is accordingly intended to implement relevant provisions of theFlores Agreement, as well as codify policies and practices authorized by relevant statutes. 25 In
addition to enacting laws that mirror certain protections within the Flores Agreement, membersof Congress have explicitly affirmed the settlement’s minimum health and safety requirements
and have opposed past efforts to promulgate regulations counter to these requirements. 26 We
strongly support the proposed rulemaking’s efforts to implement and broaden the protections in
the Flores Agreement. Consistent with these aims, we note below portions of the rule that should
be strengthened prior to finalization.
The proposed rule creates a new Office of the Ombuds to allow UC and stakeholders toraise concerns with ORR policies and practices to an independent body to ensure ORR’s
adherence to law and policy. While we applaud the creation of such an office, a concept that has
88 Fed. Reg. 68986 (2023) at Proposed Rule § 410.1204(b)(2) https://www.federalregister.gov/d/2023-21168/p882.
17
88 Fed. Reg. 68986 (2023) at Proposed Rule § 410.1204(b)(3) https://www.federalregister.gov/d/2023-21168/p883.
18
88 Fed. Reg. 68988 (2023) at Proposed Rule § 410.1210(a)(2) https://www.federalregister.gov/d/2023-21168/p924
19
8 U.S.C. §1232(3)(B).
20
88 Fed. Reg. 68985 (2023) at Proposed Rule § 410.1202(d), § 410.1202(e)https://www.federalregister.gov/d/2023-21168/p-843.
21
HHS ORR, Unaccompanied Children Program Policy Guide at Section 2 https://www.acf.hhs.gov/orr/policyguidance/unaccompanied-children-program-policy-guide-section-2
22
88 Fed. Reg. 68989 (2023) at Proposed Rule § 410.1001, § 410.1210(g) https://www.federalregister.gov/d/202321168/p-957.
23
Flores Agreement, ¶ 11 - 12A.
24
88 Fed. Reg. 68911 (2023) https://www.federalregister.gov/d/2023-21168/p-87.
25
88 Fed. Reg. 68913 (2023) https://www.federalregister.gov/d/2023-21168/p-125.
26
Duckworth, Durbin, Bicameral Congressional Leaders Call on Ninth Circuit to Uphold Protections for MigrantChildren in Flores Amicus Brief (Jan. 28, 2020) https://www.duckworth.senate.gov/news/press-releases/duckworthdurbin-bicameral-congressional-leaders-call-on-ninth-circuit-to-uphold-protections-for-migrant-children-in-floresamicus-brief-; see generally 88 Fed. Reg. 68911-68912 (2023) https://www.federalregister.gov/d/2023-21168/p-92.
16

3

been included in legislation introduced to strengthen protections for children in ORR custody, 27
we are concerned that the structure for the office proposed in the rule lacks sufficient
independence. Counsel and court-appointed monitors have played a critical role in enforcing theprotections of the Flores Agreement.28 An independent Office of Ombuds will be key to ensuringthat the protections included in the Flores Agreement—and any final regulation implementing
such agreement—continue to be properly enforced. To ensure this, we strongly recommend
improvements to protect the independence of the Office of Ombuds, including requiring that the
Ombuds be appointed by and directly report to the Secretary of HHS and that the Ombuds berequired to issue annual, public reports on the accomplishments, challenges, andrecommendations of the Office. We also recommend you consider additional authorities toensure the Ombuds has unobstructed access to necessary information to conduct investigations
and resolve complaints.
Furthermore, the Flores Agreement generally requires that any children who cannot bereleased from government custody be transferred to state-licensed facilities appropriate forhousing dependent children.29 The settlement defines 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 grouphomes, foster homes, or facilities for special needs minors.”30 This requirement is intended toprovide appropriate standards for children’s care, education, and well-being, as well as the abilityof an independent third party to investigate alleged abuses.31 We strongly support housing
children in such state-licensed facilities.
Given that some states have recently refused to license facilities housing UC, instead of“licensed program,” the proposed rule includes a definition of a “standard program.”32 The
proposed rule requires such “standard programs” to “[b]e licensed by an appropriate State orFederal agency, or meet other requirements specified by ORR if licensure is unavailable toprograms providing services to unaccompanied children in their State . . ..”33 State licensure isessential to providing a baseline of safety requirements to which facilities must adhere and a vital
structure for oversight and accountability. We also note the proposed rule’s reference to a future
proposed rulemaking regarding the creation of a federal licensing scheme for providers locatedin states that do not license programs serving UC.34 Without any information on this potential
federal licensing scheme, we cannot opine on whether these options would adequately
Protection of Unaccompanied Children Act (S. 382, 118th Congress), Protection of Kids in Immigrant Detention
Act or PROKID Act (S. 3323, 118th Congress; H.R. 1238, 117th Congress), Children’s Safe Welcome Act (S. 4529,
117th Congress).
28
Center for Human Rights and Constitutional Law & National Center for Youth Law, Practice Advisory:
Appointment of Independent Monitor in the Flores Settlement Agreement, (Jul. 2018)https://law.ucdavis.edu/sites/g/files/dgvnsk10866/files/media/documents/flores-pa-monitor.pdf.
29
Flores Agreement, ¶ 11 - 12A.
30
Flores Agreement, ¶ 6.
31
See generally HHS ACF, FY 2024 Justification of Estimates for Appropriations Committees,
https://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2024-congressional-justification.pdf.
32
88 Fed. Reg. 68915-68916 (2023) https://www.federalregister.gov/d/2023-21168/p-145.
33
88 Fed. Reg. 68989 (2023) at Proposed Rule § 410.1302(a).
https://www.federalregister.gov/documents/2023/10/04/2023-21168/unaccompanied-children-programfoundational-rule#sectno-reference-410.1302.
34
88 Fed. Reg. 68916 at FN52 (2023) https://www.federalregister.gov/d/2023-21168/p-147.
27

4

incorporate the minimum standards and oversight mechanisms of state licensure. We urge theincorporation of additional language in the final rule to indicate that unlicensed placements, suchas emergency and influx sites, should only be utilized as a last resort.
C. Access to Counsel
As noted in the proposed rule, the TVPRA requires the Secretary of HHS to ensure that
UC have counsel to represent them in legal proceedings and protect them from mistreatment,
exploitation, and trafficking. The Secretary is also required to make every effort to utilize theservices of pro bono counsel. Both of these provisions are required to the greatest extent
practicable.35 Experts have long lamented that federal law does not guarantee governmentappointed counsel for UC. Without an attorney, it is virtually impossible for unaccompanied
children to navigate the complex U.S. immigration system. As envisioned in the TVPRA,
attorneys can help screen children for protection needs and assist them in accessing lifesaving
protections to prevent their return to trafficking and other harm and provide assistance to protect
children from situations of exploitation.36 Members of Congress have introduced several
legislative proposals attempting to address gaps in current law by providing legal counsel
appointed by or funded by the federal government.37
We applaud ORR’s recently stated goal of achieving universal legal representation for
unaccompanied children by FY 2027.38 However, we are concerned that the proposed ruleconditions the provision of such services on ORR’s discretion and practicability, allowing forbroad latitude to decline to provide legal representation to vulnerable children even whensufficient resources for such representation are available.39 We urge you to consider amending
these conditions to more closely mirror the provisions of the TVPRA. Such changes would bringthis regulation in line with congressional intent for ORR to make its best effort to provide legal
representation for every unaccompanied child.
D. Responding to Today’s Challenges
Years after enactment of the HSA and TVPRA, many new challenges have arisen for thefederal government’s system for caring for unaccompanied children. As we face the worst global
refugee crisis in recent history, the number of unaccompanied children has increased as well,with 137,275 encountered at our southern border in fiscal year 2023. 40 As noted earlier, some
8 U.S.C. 1232(c)(5).
Kids in Need of Defense, Protecting Unaccompanied Children from Labor Exploitation (Mar. 2023),
https://supportkind.org/wp-content/uploads/2023/03/Protecting-UCs-From-Labor-Exploitation.pdf
37
Protection of Unaccompanied Children Act (S. 382, 118th Congress), Fair Day in Court for Kids Act of 2023 (S.
3065, 118th Congress), Protection of Kids in Immigrant Detention Act or PROKID Act (S. 3323, 118 th Congress),
Children’s Safe Welcome Act of 2022 (S. 4529, 117th Congress), Funding Attorneys for Indigent Removal
Proceedings Act or the FAIR Proceedings Act (S. 901, 117th Congress).
38
HHS ACF, Fiscal Year 2024 Administration for Children and Families Justification of Estimates for
Appropriations Committees ://www.acf.hhs.gov/sites/default/files/documents/olab/fy-2024-congressionaljustification.pdf.
39
88 Fed. Reg. 68996 (2023) https://www.federalregister.gov/d/2023-21168/p-1124.
40
U.S. Customs and Border Protection, Southwest Land Border Encounters,
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters.
35
36

5

states refuse to license ORR facilities serving unaccompanied children, limiting the ability ofchildren and staff in those facilities to report safety violations to local child welfare
authorities.41 Furthermore, since 2018 alone, the Department of Labor (DOL) has seen a 69
percent increase in child labor violations, including many unaccompanied children who may beplaced with exploitative sponsors or labor trafficking situations after they leave ORR custody.
Therefore, we welcome the proposed rule’s increased focus on the vulnerability of UC tochild labor exploitation. The proposed rule codifies the legal orientation presentation that UC
receive in ORR custody and explicitly requires that it inform children of their legal rights andresponsibilities, including regarding child labor protections and educational services.42 In
addition, we appreciate that the proposed regulation requires an unaccompanied child’s potential
sponsor to demonstrate understanding and awareness of the sponsor’s responsibilities related tocompliance with the child’s immigration court proceedings, school attendance, and U.S. childlabor laws43 and to adhere to existing federal and state child labor laws as part of the Sponsor
Care Agreement.44 These new requirements would take much-needed steps toward ensuring that
UC and their sponsors are informed of their rights with respect to safe and appropriate work forchildren. We strongly encourage their inclusion in the final rule.
E. Information Sharing
Congress has expressed concerns with information-sharing between the Departments ofHealth and Human Services and Homeland Security for purposes of immigration enforcement
through recently enacted appropriations legislation.45 The sharing of information from HHS to
DHS for immigration enforcement purposes has had a chilling effect on sponsor engagement andcontributed to delayed release and therefore prolonged government custody of UC.46 We
therefore strongly encourage you to include strict prohibitions on information-sharing for
immigration enforcement purposes.
F. Conclusion
Implementing regulations consistent with the HSA, the TVPRA, and the Flores
Agreement are long overdue, and we appreciate ORR’s efforts to provide a comprehensive
framework for upholding and improving key protections to provide for the safety and well-beingof unaccompanied children that reflect their unique vulnerabilities upon arrival to the UnitedStates, as well as their release from ORR custody. We welcome the opportunity to comment on
See, e.g., Proclamation by the Governor of the State of Texas, May 31, 2021, available at: https://gov.texas.gov/
uploads/files/press/DISASTER_border_security_IMAGE_05-31-2021.pdf (directing the Texas Health and Human
Service Commission (HHSC) to amend its regulations to “discontinue state licensing of any child-care facility inthis state that shelters or detains [UC] under a contract with the Federal government.”); see also Fl. Executive OrderNo. 21–223 (Sep. 28, 2021), available at: https://www.flgov.com/wp-content/uploads/orders/2021/EO_21-223.pdf.
42
88 Fed. Reg. 68995 (2023) https://www.federalregister.gov/d/2023-21168/p-1106.
43
88 Fed. Reg. 68985 (2023) https://www.federalregister.gov/d/2023-21168/p-860.
44
88 Fed. Reg. 68986 (2023) https://www.federalregister.gov/d/2023-21168/p-868.
45House Report 116-450 at 184 https://www.congress.gov/116/crpt/hrpt450/CRPT-116hrpt450.pdf; HHS ORR,
Unaccompanied Children Program Policy Guide at 5.10.2 (Effective August 21, 2023)
https://www.acf.hhs.gov/orr/policy-guidance/unaccompanied-children-program-policy-guide-section-5#5.10.2
46
House Report 116-450 at 185 https://www.congress.gov/116/crpt/hrpt450/CRPT-116hrpt450.pdf.
41

6

this rule and strongly support many of its proposals to improve safeguards and services to ensurechildren are safe and thrive upon release from ORR custody.
Sincerely,

Richard J. Durbin
Chair
Senate Committee on the Judiciary

Jeffrey A. Merkley
United States Senator

Alex Padilla
Chair
Senate Committee on the Judiciary
Subcommittee on Immigration,
Citizenship, and Border Safety

Jerrold Nadler
Ranking Member
House Committee on the Judiciary

Mazie K. Hirono
United States Senator

Pramila Jayapal
Ranking Member
House Committee on the Judiciary
Subcommittee on Immigration
Integrity, Security, and Enforcement

Cory A. Booker
United States SenatorHenry C. "Hank" Johnson, Jr.
Member of Congress

7

Ben Ray Luján
United States Senator

J. Luis Correa
Member of Congress

Ron Wyden
United States Senator

Veronica Escobar
Member of Congress

Elizabeth Warren
United States Senator

Mary Gay Scanlon
Member of Congress

Robert Menendez
United States Senator

Edward J. Markey
United States Senator8