December 4, 2023
VIA ELECTRONIC TRANSMISSION
Robin Dunn Marcos
Director
Office of Refugee Resettlement
Washington, DC 20201
Jeff HildActing Assistant Secretary
Administration for Children and Families
Washington, DC 20201
Dear Director Dunn Marcos and Acting Assistant Secretary Hild:
In September, you approved the “Unaccompanied Children Program Foundational Rule”(“Proposed Rule”), which contains a number of alarming, dangerous, and potentially illegal
provisions. 1 This Proposed Rule ignores nearly seven years of oversight conducted by Congress
and the Office of Inspector General and reveals chronic foot-dragging—if not total reluctance—
when it comes to protecting vulnerable children. 2 It provides ample protections to government
bureaucrats at the expense of children. Even more concerning, “the requirements being [adopted]
in this proposed rule are already enforced by [the Office of Refugee Resettlement (ORR)].” 3
In FY2021, the Office on Trafficking in Persons saw a more than 140% increase from theprevious year in requests for assistance on behalf of foreign national children. 4 The majority ofthese requests were for unaccompanied alien children between the ages of 13 and 17. 5 Despite
the staggering number of unaccompanied children, the Proposed Rule makes most vetting for
Unaccompanied Children Program Foundational Rule, 88 FR 68908, at 114 (proposed Oct. 4, 2023) (to be adopted
at 45 CFR 410).
2
See e.g., Senators Grassley and Wyden, Senate Finance Committee, Exposing the Risks of Deliberate Ignorance:
Years of Mismanagement and Lack of Oversight by the Office of Refugee Resettlement, Leading to Abuses andSubstandard Care of Unaccompanied Children (Oct. 28, 2021),
https://www.grassley.senate.gov/imo/media/doc/finance_committee_report__orr_unaccompanied_children_program.pdf ; Senators Portman and Carper, United States Senate Permanent
Subcommittee on Investigations Committee on Homeland Security and Governmental Affairs, Oversight of HHS
Shelter Grants For Unaccompanied Alien Children (Aug. 12, 2020), https://www.hsgac.senate.gov/wpcontent/uploads/imo/media/doc/2020-12-08%20PSI%20Staff%20Report%20%20Oversight%20of%20HHS%20Shelter%20Grants%20for%20UACs.pdf.
3
Proposed Rule at 110.
4
Administration for Children and Families, Office on Trafficking in Persons Annual Report, Fiscal Year 2021, at 9,(Jan. 31, 2023),
https://www.acf.hhs.gov/sites/default/files/documents/otip/OTIP%20FY21%20Annual%20Report.pdf
5Id.
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sponsors of unaccompanied minors simply optional. ORR may require “an investigation of theliving conditions,” “verification of the identity and employment of the individuals offering
support,” “interviews of members of the household,” “a home visit,” “review of [the sponsor’s]
past criminal history,” “fingerprinting,” consulate checks of sponsor identification, or “abackground check on the proposed sponsor.” 6 However, these basic checks are not necessary toreceive custody of a child.
In fact, ORR does not even consider a sponsor’s criminal record, current illegal drug use,
history of abuse or neglect, or other child welfare concerns “necessarily disqualifying to potentialsponsorship.” 7 “ORR would not disqualify potential sponsors based solely on their immigration
status” 8 or “employment status,” 9 even if the sponsor was a complete stranger to the child.
In effect, ORR accepts a sponsor’s representations almost entirely on face value. ORR
then delivers the child at taxpayer expense and free-of-cost to the un-vetted sponsor, opening up
the possibility that a vulnerable child could fall into the hands of a potentially criminal or drugaddicted sponsor. 10 At this point, ORR considers its work largely done. 11ORR assumes no role or responsibility in preventing a child’s sponsor from giving him or
her away after placement. According to the Proposed Rule, “ORR is not proposing to require thatthe sponsor seek ORR’s permission to transfer custody of the unaccompanied [alien] child.” 12 It
simply “retains an interest in knowing this information.” 13 ORR will conduct a home study for “achild who has been a victim of physical or sexual abuse,” if the physical or sexual abuseoccurred “under circumstances that indicate the child’s health or welfare has been significantly
harmed or threatened.” 14 However, the rule goes on to note that, if ORR checks-up on the child,
it will “inform the potential sponsor whenever it plans to conduct a home study.” 15 This would
allow a criminal sponsor enough time to destroy evidence and intimidate the child. Worse, theProposed Rule allows ORR to conduct certain safety and well-being check-ins virtually. 16
ORR also neglects to ensure a sponsor’s legal immigration status. ORR “will not shareany immigration status information relating to potential sponsors with any law enforcement orimmigration related entity at any time.” 17 ORR appears equally ambivalent to the child’s
criminal conduct. Its influx facilities simply “separate … those unaccompanied [alien] children

Proposed Rule § 410.1202 at 37-38 (Sponsor Suitability).
Proposed Rule § 410.1202 at 39 (Sponsor Suitability).
8
Proposed Rule § 410.1201 at 37 (Sponsors to Whom ORR Releases and Unaccompanied [Alien] Child).
9
Proposed Rule § 410.1202 at 38 (Sponsor Suitability).
10
Proposed Rule § 410.1400 (Subpart E-Transportation of an Unaccompanied Child – Purpose of this Subpart).
11
Proposed Rule, Definition Section (“Release means discharge of an unaccompanied [alien] child to an ORRvetted an approved sponsor. After release, ORR does not have legal custody of the unaccompanied [alien] child, andthe sponsor becomes responsible for providing for the unaccompanied [alien] child’s physical and mental wellbeing.”)
12
Proposed Rule § 410.1203 at 40 (Release Approval Process).
13Id.
14
Proposed Rule § 410.1204 at 40-41 (Home Studies).
15
Proposed Rule § 410.1204 at 41(Home Studies).
16
Proposed Rule § 410.1210 at 48 (Post-Release Services).
17
Proposed Rule § 410.1201 at 37 (emphasis added).
6
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who … have perpetrated sexual abuse.” 18 In fact, “ORR would like to ensure law enforcement iscalled in response to an unaccompanied [alien] child’s behavior only as a last resort” 19 and “acall by a care provider facility to law enforcement may trigger an evaluation of staff involved
regarding their qualifications…” 20Recognizing its conduct is objectionable, ORR’s Proposed Rule protects the organizationfrom congressional scrutiny by forcing whistleblowers to identify themselves to ORR before
going to Congress. ORR’s whistleblower retaliation is so pervasive 21 that the Department ofHealth and Human Services Office of Inspector General recommended mandatory whistleblower
protection training in 2022. 22 The Assistant Secretary for Children and Families concurred withthis recommendation and acknowledged “whistleblower protections are a key mechanisms for
ensuring the safety and wellbeing of all children in ORR care.” 23 Yet in a shocking reversal,
ORR now “proposes that employees, former employees, or contractors … must not disclose
unaccompanied [alien] children’s case file records or provide information about unaccompanied[alien] children, their sponsors, family or house hold members to anyone … without firstproviding advanced notice to ORR.” This advanced notice requirement expressly capturesprotected whistleblower disclosures and appears designed to keep employees quiet in violation of
the Whistleblower Protection Act and other whistleblower protection provisions. 24
ORR’s Proposed Rule abdicates the agency’s responsibility for protecting the vulnerable
children in its custody from harmful behavior by poorly vetted, potential criminals. For these
services, the taxpayer paid ORR $5.5 billion in FY2022. 25 The Proposed Rule is wholly
unworkable and ORR should discard it and its current practices. If not, Congress will have nochoice but to introduce a resolution of disapproval under the Congressional Review Act.
Sincerely,

Chuck Grassley
United States Senator

Lindsey O. Graham
United States Senator

Proposed Rule § 410.1801 at 87 (Minimum Standards For Emergency or Influx Facilities).
Proposed Rule § 410.1303 at 61 (Reporting, Monitoring, Quality Control, and Recordkeeping Standards).
20
Id. at 60.
21
Ted Hesson, U.S. Whistleblowers Aiding Migrant Children Feared Retaliation, Watchdog Report says, Reuters(Sept. 27, 2022), https://www.reuters.com/world/us/us-whistleblowers-aiding-migrant-children-feared-retaliationwatchdog-2022-09-27/; Hannah Drier, As Migrant Children Were Put to Work, U.S. Ignored Warnings, The New
York Times (Apr. 17, 2023), https://www.nytimes.com/2023/04/17/us/politics/migrant-child-labor-biden.html
22
Inspector General, U.S. Department of Health and Human Services, Operational Challenges Within ORR and theORR Emergency Intake Sire at Fort Bliss Hindered Case Management for Children (Sept. 2022), OperationalChallenges Within ORR and the ORR Emergency Intake Site at Fort Bliss Hindered Case Management for Children(hhs.gov)
23
Id. at Appx. D, page 42.
24
Proposed Rule § 410.1303 at 59 (Reporting, Monitoring, Quality Control, and Recordkeeping Standards) (“ORRpolicy is to pre-approve certain limited disclosures by ORR grantees and contractors such as … pursuant to all
available whistleblower protection laws.”).
25
Proposed Rule at 99 (Baseline of Current Costs).
18
19

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Shelley Moore Capito
United States Senator

Marsha BlackburnUnited States Senator

Markwayne Mullin
United States Senator

Ted Cruz
United States SenatorBill Hagerty
United States Senator

Tim Scott
United States Senator

Pete Ricketts
United States Senator

Rick Scott
United States Senator

Michael S. Lee
United States Senator

Cynthia LummisUnited States Senator

Eric S. Schmitt
United States Senator

Katie Boyd Britt
United States Senator

Page 4 of 6Joni K. Ernst
United States Senator

Mike Braun
United States Senator

Thom Tillis
United States Senator

JD Vance
United States Senator

Roger Marshall, M.D.
United States Senator

M. Michael Rounds
United States Senator

Ted BuddUnited States SenatorJames Lankford
United States Senator

Steve Daines
United States Senator

Ron Johnson
United States SenatorJohn Kennedy
United States Senator

Deb Fischer
United States SenatorJohn Hoeven
United States SenatorJames E. Risch
United States Senator

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John Thune
United States SenatorJohn Cornyn
United States Senator

Josh Hawley
United States Senator

Todd Young
United States Senator

Mike Crapo
United States Senator

Tom Cotton
United States Senator

Kevin Cramer
United States Senator

Jerry Moran
United States SenatorJohn Barrasso, M.D.
United States Senator

Tommy Tuberville
United States Senator

Cindy Hyde-Smith
United States Senator

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