68908 Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 410 

RIN 0970–AC93 

Unaccompanied Children Program 

Foundational Rule 

AGENCY: Office of Refugee Resettlement 

(ORR), Administration for Children and 

Families (ACF), U.S. Department of 

Health and Human Services (HHS). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This NPRM proposes to adopt 

and replace regulations relating to the 

key aspects of the placement, care, and 

services provided to unaccompanied 

children referred to the Office of 

Refugee Resettlement (ORR), pursuant 

to ORR’s responsibilities for 

coordinating and implementing the care 

and placement of unaccompanied 

children who are in Federal custody by 

reason of their immigration status under 

the Homeland Security Act of 2002 

(HSA) and the William Wilberforce 

Trafficking Victims Protection 

Reauthorization Act of 2008 (TVPRA). 

ORR intends to promulgate a final rule 

that would establish a foundation for 

the Unaccompanied Children Program 

(UC Program) that is consistent with its 

statutory duties, for the benefit of 

unaccompanied children and to 

enhance public transparency as to the 

policies governing the operation of the 

UC Program. ORR also proposes this 

rule for the purpose of implementing 

the 1997 Flores Settlement Agreement 

(FSA), which remains in effect as a 

court-ordered consent decree to which 

the UC Program is subject. As modified 

in 2001, the FSA provides that it will 

terminate forty-five days after 

publication of final regulations 

implementing the agreement. ORR 

anticipates that any termination of the 

settlement based on the adoption of this 

proposal as a final rule would only be 

effective for those provisions that affect 

ORR and would not terminate 

provisions of the FSA for other Federal 

Government agencies. 

DATES: Consideration will be given to 

comments on this NPRM on or before 

December 4, 2023. 

ADDRESSES: You may send comments, 

identified by Regulatory Information 

Number (RIN), by any of the following 

methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: UCPolicy-RegulatoryAffairs@

acf.hhs.gov. Include the RIN in the 

subject line of the message. 

Instructions: All submissions received 

must include the agency name and RIN 

for this rulemaking. All comments 

received will be posted without change 

to www.regulations.gov, including any 

personal information provided. For 

detailed instructions on submitting 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: 

Toby Biswas, Director of Policy, 

Unaccompanied Children Program, 

Office of Refugee Resettlement, 

Administration for Children and 

Families, Department of Health and 

Human Services, Washington, DC, (202) 

205–4440 or UCPolicyRegulatoryAffairs@acf.hhs.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

A. Submitting Comments 

B. Viewing Comments and Documents 

C. Privacy Act 

II. Table of Abbreviations 

III. Executive Summary 

A. Purpose of the Proposed Rule 

B. Summary of the Major Provisions 

C. Summary of Costs and Benefits 

IV. Background and Purpose 

A. The UC Program 

B. History and Statutory Structure 

C. Statutory and Regulatory Authority 

D. Basis and Purpose of Regulatory Action 

E. Severability 

V. Discussion of Elements of the Proposed 

Rule 

VI. Collection of Information Requirements 

VII. Regulatory Impact Analysis 

A. Economic Analysis 

B. Regulatory Flexibility Analysis 

C. Unfunded Mandates Reform Act 

D. Paperwork Reduction Act 

E. Executive Order 13132: Federalism 

F. Executive Order 12988: Civil Justice 

Reform 

VIII. Assessment of Federal Regulation and 

Policies on Families 

IX. Alternatives Considered 

I. Public Participation 

We encourage all interested parties to 

participate in this rulemaking by 

submitting written comments, views, 

and data on all aspects of this proposed 

rule. ORR also invites comments that 

relate to the economic, environmental, 

or federalism effects that might result 

from this proposed rule. All comments 

received will be posted, without change, 

to https://www.regulations.gov as part of 

the public record and will include any 

personal or commercial information you 

provide. 

A. Submitting Comments 

Comments that will provide the most 

assistance to ORR will reference a 

specific portion of the proposed rule, 

explain the reason for any 

recommended change, and include data, 

information, or authority that support 

such recommended change. If you 

submit comments, please indicate the 

specific section of this document to 

which each comment applies and 

provide a reason for each suggestion or 

recommendation. You may submit your 

comments and materials online or by 

email, but please use only one of these 

means. If you submit a comment online 

via https://www.regulations.gov, it will 

be considered received when it is 

received at the Docket Management 

Facility. 

Instructions: To submit your 

comments online, go to https://

www.regulations.gov and insert ‘‘0970– 

AC93’’ in the ‘‘Search’’ box. Click on the 

‘‘Comment Now!’’ box and input your 

comment in the text box provided. Click 

the ‘‘Continue’’ box, and if you are 

satisfied with your comment, follow the 

prompts to submit it. 

All comments received by the 

accepted methods and due date 

specified above may be posted without 

change to content to https://

www.regulations.gov, which may 

include personal information provided 

about the commenter, and such posting 

may occur after the closing of the 

comment period. However, the 

Department may redact certain content 

from comments before posting, 

including threatening language, hate 

speech, profanity, graphic images, or 

individually identifiable information 

about a third-party individual other 

than the commenter. 

For additional information, please 

read the ‘‘Privacy and Security Notice’’ 

that is available via the link in the footer 

of https://www.regulations.gov. 

ORR will consider all comments and 

materials received during the comment 

period and may change this rule based 

on your comments. 

B. Viewing Comments and Documents 

Docket: To view comments, as well as 

documents mentioned in this preamble 

as being available in the docket, go to 

https://www.regulations.gov and insert 

‘‘0970–AC93’’ in the ‘‘Search’’ box. 

Click on the ‘‘Open Docket Folder,’’ and 

you can click on ‘‘View Comment’’ or 

‘‘View All’’ under the ‘‘Comments’’ 

section of the page. Individuals without 

internet access can make alternate 

arrangements for viewing comments and 

documents related to this rulemaking by 

contacting ORR through the FOR


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1Public Law 107–296, sec. 462, 116 Stat. 2135, 

2202. 

2Public Law 110–457, title II, subtitle D, 122 Stat. 

5044. 

3 8 U.S.C. 1232. 4 6 U.S.C. 279. 

FURTHER INFORMATION CONTACT section 

above. You may sign up for email alerts 

on the online docket to be notified when 

comments are posted or a final rule is 

published. 

C. Privacy Act 

As stated in the Submitting 

Comments section above, please be 

aware that anyone can search the 

electronic form of comments received 

into any dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). 

II. Table of Abbreviations 

ACF—Administration for Children and 

Families 

DHS—U.S. Department of Homeland 

Security 

DOJ—U.S. Department of Justice 

EOIR—Executive Office for Immigration 

Review 

FSA—Flores Settlement Agreement 

HHS—U.S. Department of Health and Human 

Services 

HSA—Homeland Security Act of 2002 

INS—Immigration and Naturalization Service 

OMB—Office of Management and Budget 

ORR—Office of Refugee Resettlement, U.S. 

Department of Health and Human Services 

TVPRA—William Wilberforce Trafficking 

Victims Protection Reauthorization Act of 

2008 

UC Program—Unaccompanied Children 

Program 

III. Executive Summary 

A. Purpose of the Proposed Rule 

In this notice of proposed rulemaking 

(NPRM), the Office of Refugee 

Resettlement (ORR) proposes to replace 

and supersede regulations at 45 CFR 

part 410, and to codify policies and 

requirements concerning the placement, 

care, and services provided to 

unaccompanied children in Federal 

custody by reason of their immigration 

status and referred to ORR. This NPRM 

is based on statutory authorities and 

requirements provided under the 

Homeland Security Act of 2002 (HSA) 1

and the William Wilberforce Trafficking 

Victims Protection Reauthorization Act 

of 2008 (TVPRA),2 and would 

implement those terms of the 1997 

Flores Settlement Agreement (FSA) that 

create responsibilities for HHS and 

ORR. These proposed regulations are 

published under the authority granted 

to the Secretary of Health and Human 

Services (HHS) by the TVPRA 3 and to 

the Director of ORR by the HSA.4 The 

proposed regulations would implement 

requirements that are consistent with 

the substantive protections provided by, 

and the underlying purpose of, the FSA 

with regard to unaccompanied children 

who are placed in ORR care. The 

proposed requirements would apply to 

all care provider facilities, including 

both standard programs and nonstandard programs, as defined below, 

unless otherwise specified. ORR 

believes that this proposed rule is 

warranted at this time in order to codify 

a uniform set of standards and 

procedures that will help to ensure the 

safety and well-being of unaccompanied 

children in ORR care, implement the 

substantive terms of the FSA, and 

enhance public transparency as to the 

policies governing the operation of the 

Unaccompanied Children Program (UC 

Program). 

B. Summary of the Major Provisions 

This proposed rule would codify ORR 

policies and requirements for the 

placement, care, and services provided 

to unaccompanied children in Federal 

custody by reason of their immigration 

status and referred to ORR, as discussed 

in section V. of this proposed rule. In 

subpart A, ORR proposes to define 

terms that are relevant to the criteria 

and requirements in this proposed rule 

and to codify the general principles that 

apply to the care and placement of 

unaccompanied children in ORR care. 

In subpart B, ORR proposes the criteria 

and requirements that apply with 

respect to placement of unaccompanied 

children at ORR care provider facilities, 

including specific criteria for placement 

at particular types of ORR care provider 

facilities. ORR proposes, in subpart C, 

policies and procedures regarding the 

release of an unaccompanied child from 

ORR care to a vetted and approved 

sponsor. In subpart D, ORR proposes the 

standards and services that it must meet 

and provide to unaccompanied children 

in ORR care provider facilities. ORR 

proposes requirements for the safe 

transportation of each unaccompanied 

child while in ORR’s care in subpart E 

of this proposed rule. ORR proposes, in 

subpart F, guidelines for care provider 

facilities to report information such that 

ORR may compile and maintain 

statistical information and other data on 

unaccompanied children. In subpart G, 

ORR proposes to codify requirements 

and policies regarding the transfer of 

unaccompanied children in ORR care. 

Subpart H discusses proposed 

guidelines for determining the age of an 

individual in ORR care. ORR proposes, 

in subpart I, to codify guidelines for 

emergency or influx facilities, which are 

ORR facilities that are opened during a 

time of emergency or influx. In subpart 

J, ORR proposes guidelines and 

requirements regarding the availability 

of administrative review of ORR 

decisions. Finally, in subpart K, ORR 

proposes to establish an independent 

ombud’s office that would promote 

important protections for all children in 

ORR care. 

C. Summary of Costs and Benefits 

This rule proposes to codify current 

ORR requirements for compliance with 

the FSA, court orders, and statutes, as 

well as certain requirements under 

existing ORR policy and cooperative 

agreements. As discussed in section 

VII.A of this proposed rule, ORR expects 

this proposed rule to impose limited 

additional costs, including those costs 

incurred by the Federal Government to 

increase the provision of legal services 

to unaccompanied children in limited 

circumstances, supplement costs 

incurred by grant recipients in order to 

comply with the proposed requirements 

(see below), establish a risk 

determination hearing process, and also 

to establish the Unaccompanied 

Children Office of the Ombuds (UC 

Office of the Ombuds) and other 

administrative staffing needs. In 

proposed subpart D at § 410.1309, ORR 

is proposing, to the greatest extent 

practicable, subject to available 

resources as determined by ORR, and 

consistent with section 292 of the 

Immigration and Nationality Act (8 

U.S.C. 1362), that all unaccompanied 

children who are or have been in ORR 

care would have access to legal advice 

and representation in immigration legal 

proceedings or matters funded by ORR. 

In proposed subpart J, ORR proposes the 

establishment of a risk determination 

hearing process. In proposed subpart K, 

ORR discusses its proposal to establish 

an Office of the Ombuds for the UC 

Program. In addition to the Ombuds 

position itself, ORR anticipates the need 

for support staff in the office. ORR 

estimates the annual cost of establishing 

and maintaining this office would be 

$1,718,529 which includes the cost of 

10 full-time personnel, as discussed in 

further detail in VII.A.2 of this proposed 

rule. 

ORR also notes that all care provider 

facilities and service providers 

discussed in this proposed rule are 

recipients of Federal awards (e.g., 

cooperative agreements or contracts), 

and the costs of maintaining compliance 

with these proposed requirements are 

allowable costs under the Basic 

Considerations for cost provisions at 45 


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5See also 45 CFR 75.101. 

6 6 U.S.C. 279(g)(2). 7 6 U.S.C. 279(a). 

8See 6 U.S.C. 279(b)(1). 

9 6 U.S.C. 279(b)(2). 

10Memorandum of Agreement Among the Office 

of Refugee Resettlement of the U.S. Department of 

Health and Human Services and U.S. Immigration 

and Customs Enforcement and U.S. Customs and 

Border Protection of the U.S. Department of 

Homeland Security Regarding Consultation and 

Information Sharing in Unaccompanied Alien 

Children Matters (Mar. 11, 2021). 

CFR 75.403 through 75.405,5 in that the 

costs are reasonable, necessary, 

ordinary, treated consistently, and are 

allocable to the award. If there are 

additional costs associated with the 

policies discussed in this proposed rule 

that were not budgeted, and cannot be 

absorbed within existing budgets, the 

recipient would be able to submit a 

request for supplemental funds to cover 

the costs. 

IV. Background and Purpose 

A. The UC Program 

The purpose of this proposed rule is 

to codify policies, standards, and 

protections for the UC Program, 

consistent with the HSA and TVPRA, as 

well as with the substantive 

requirements of the FSA as they pertain 

to ORR. On March 1, 2003, section 462 

of the HSA transferred responsibilities 

for the care and placement of 

unaccompanied children from the 

Commissioner of the Immigration and 

Naturalization Service to the Director of 

ORR. The HSA defines unaccompanied 

children and establishes ORR 

responsibilities with respect to 

unaccompanied children. The HSA 

defines ‘‘unaccompanied alien child,’’ a 

term ORR uses synonymously with 

‘‘unaccompanied child,’’ as ‘‘a child 

who—(A) has no lawful immigration 

status in the United States; (B) has not 

attained 18 years of age; and (C) with 

respect to whom—(i) there is no parent 

or legal guardian in the United States; 

or (ii) no parent or legal guardian in the 

United States is available to provide 

care and physical custody.’’ 6 The 

TVPRA, meanwhile, added 

requirements for other executive branch 

departments and agencies to 

expeditiously transfer unaccompanied 

children in their custody to ORR’s care 

and custody once identified, and 

requires ORR to ensure unaccompanied 

children are protected from human 

trafficking and other crimes. Both 

statutes are described in further detail in 

the paragraphs below. Pursuant to these 

statutory requirements, the UC Program 

provides a safe and appropriate 

environment to children and youth who 

come to the United States without 

immigration status and who have no 

parent or legal guardian in the United 

States or one available in the United 

States to provide for their care and 

physical custody. In most cases, 

unaccompanied children enter ORR 

custody via transfer from DHS. When 

DHS immigration officials with an 

unaccompanied child in custody 

transfer that child to ORR, ORR 

promptly places the unaccompanied 

child in the least restrictive setting that 

is in the best interests of the child, 

taking into consideration danger to self, 

danger to the community, and risk of 

flight. ORR considers the unique nature 

of each child’s situation, the best 

interest of the child, and child welfare 

principles when making placement, 

clinical, case management, and release 

decisions. To carry out its statutory 

responsibilities for the care and custody 

of unaccompanied children as 

established in the TVPRA and the HSA, 

and consistent with its responsibilities 

under the FSA, ORR currently funds 

residential care providers that provide 

temporary housing and other services to 

unaccompanied children in ORR 

custody. These care providers have been 

primarily state-licensed and must also 

meet ORR requirements to ensure a 

high-quality level of care. These 

multiple providers create a continuum 

of care for children, including 

placements in individual and group 

homes, shelter, heightened supervision, 

and secure facilities, and residential 

treatment centers. While under ORR 

care, unaccompanied children are 

provided with classroom education, 

healthcare, socialization/recreation, 

mental health services, access to 

religious and legal services, and case 

management. Unaccompanied children 

generally remain in ORR custody until 

they are released to a parent or other 

sponsor in the United States, are 

repatriated to their home country, 

obtain legal status, or otherwise no 

longer meet the statutory definition of 

unaccompanied children (e.g., turn 18). 

In accordance with current ORR policy, 

all children who turn 18 years old while 

in ORR’s care and custody are 

transferred to DHS for a custody 

determination. Once transferred to DHS, 

that agency considers placement in the 

least restrictive setting available after 

taking into account the individual’s 

danger to self, danger to the community, 

and risk of flight and in accordance with 

all applicable legal authority. 

B. History and Statutory Structure 

1. HSA and TVPRA 

The HSA abolished the former 

Immigration and Naturalization Service 

(INS) and created DHS. The HSA 

transferred many of the immigration 

functions from the INS to DHS, but it 

transferred functions under the 

immigration laws with respect to the 

care and custody of unaccompanied 

children to ORR.7 The HSA makes the 

ORR Director responsible for a number 

of functions with respect to 

unaccompanied children, including 

coordinating and implementing their 

care and placement, ensuring that 

unaccompanied children’s interests are 

considered in actions and decisions 

relating to their care, making and 

implementing placement 

determinations, implementing policies 

with respect to the care and placement 

of children, and overseeing the 

infrastructure and personnel of facilities 

in which unaccompanied children 

reside.8 The HSA also states that ORR 

shall not release unaccompanied 

children from custody upon their own 

recognizance, and requires ORR to 

consult with appropriate juvenile justice 

professionals and certain Federal 

agencies in relation to placement 

determinations to ensure that 

unaccompanied children are likely to 

appear at all hearings and proceedings 

in which they are involved; are 

protected from smugglers, traffickers, 

and others who might seek to victimize 

or otherwise engage them in criminal, 

harmful, or exploitative activity; and are 

placed in a setting in which they are not 

likely to pose a danger to themselves or 

others.9 ORR notes that under its 

current policies, such consultation is 

subject to privacy protections for 

unaccompanied children. For example, 

ORR restricts sharing certain casespecific information with the Executive 

Office for Immigration Review (EOIR) 

and DHS that may dissuade a child from 

seeking legal relief, or that may bias the 

court’s length of continuances. Subject 

to such protections, ORR provides 

notification of the placement decisions 

to U.S. Immigration and Customs 

Enforcement (ICE) and, if referred by 

U.S. Customs and Border Protection 

(CBP), to CBP. ORR provides the 

following notification information: 

identifying information of the 

unaccompanied child, ORR care 

provider name and address, and ORR 

care provider point of contact (name 

and telephone number).10

In 2008, Congress passed the TVPRA, 

which further elaborated duties with 

respect to the care and custody of 

unaccompanied children. The TVPRA 

provides that, consistent with the HSA, 

the care and custody of all 


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11 8 U.S.C. 1232(b)(2) 12 8 U.S.C. 1232(c)(1). 13See Delegation of Authority, 74 FR 14564 (Mar. 

31, 2009); see also Delegation of Authority, 74 FR 

19232 (Apr. 28, 2009). 14As discussed further, below, INS was abolished 

when the Department of Homeland Security was 

established in 2002. 6 U.S.C. 291. 15See Complaint for Injunctive and Declaratory 

Relief, and Relief in the Nature of Mandamus at 2, 

Flores v. Meese, No. 85–4544 (C.D. Cal. filed July 

11, 1985). 

16 Id. Flores Compl. at paragraph 1. 

17See id. at ¶ 66–69. 

18See Stipulated Settlement Agreement, Flores v. 

Reno, No. CV 85–4544–RJK(Px) (C.D. Cal. Jan. 17, 

1997, as amended Dec. 7, 2001). 

19See Flores v. Lynch, 828 F.3d 898 (9th Cir. 

2016) (holding that the FSA applies to accompanied 

minors as well as unaccompanied minors). 

20 Id. at ¶ 11. 

21 Id. at ¶¶ 12A, 14. 

22 Id. at ¶ 24A. 

23 Id. at ¶ 9. 

24See 63 FR 39759 (July 24, 1998). 

25Stipulated Settlement Agreement, Flores v. 

Reno, No. CV 85–4544–RJK(Px) (C.D. Cal. Jan. 17, 

1997, as amended Dec. 7, 2001), at ¶ 40. 

26 67 FR 1670 (Jan. 14, 2002). 

27 83 FR 45486 (Sep. 7, 2018). 

unaccompanied children, including 

responsibility for their detention, where 

appropriate, is the responsibility of the 

Secretary of HHS, except as otherwise 

specified. The TVPRA states that each 

department or agency of the Federal 

Government must notify HHS within 48 

hours upon the apprehension or 

discovery of an unaccompanied child or 

any claim or suspicion that a noncitizen individual in the custody of such 

department is under the age of 18.11 The 

TVPRA states further that, except in 

exceptional circumstances, any 

department or agency of the Federal 

Government that has an unaccompanied 

child in its custody shall transfer the 

custody of such child to HHS not later 

than 72 hours after determining such 

child is an unaccompanied child. 

Furthermore, the TVPRA requires the 

Secretary of HHS to establish policies 

and programs to ensure that 

unaccompanied children in the United 

States are protected from traffickers and 

other persons seeking to victimize or 

otherwise engage such children in 

criminal, harmful, or exploitative 

activity.12 The TVPRA describes 

requirements with respect to safe and 

secure placements for unaccompanied 

children, safety and suitability 

assessments of proposed sponsors for 

unaccompanied children, legal 

orientation presentations, access to 

counsel, and child advocates, among 

other requirements. HHS delegated its 

authority under the TVPRA to the 

Assistant Secretary for Children and 

Families, which then re-delegated the 

authority to the Director of ORR.13

2. The Flores Settlement Agreement 

Terms and Implementation 

On July 11, 1985, four non-citizen 

children in Immigration and 

Naturalization Service (INS) 14 custody 

filed a class action lawsuit in the U.S. 

District Court for the Central District of 

California on behalf of a class of minors 

detained in the custody of the INS 

(Flores litigation).15 At that time, the 

INS was responsible for the custody of 

minors entering the United States 

unaccompanied by a parent or legal 

guardian. The Flores litigation 

challenged ‘‘(a) the [INS] policy to 

condition juveniles’ release on bail on 

their parents’ or legal guardians’ 

surrendering to INS agents for 

interrogation and deportation; (b) the 

procedures employed by the INS in 

imposing a condition on juveniles’ bail 

that their parents’ or legal guardians’ 

[sic] surrender to INS agents for 

interrogation and deportation; and (c) 

the conditions maintained by the INS in 

facilities where juveniles are 

incarcerated.’’ 16 The plaintiffs claimed 

that the INS’s release and bond practices 

and policies violated, among other 

things, the Immigration and Nationality 

Act (INA), the Administrative Procedure 

Act (APA), and the Due Process Clause 

and Equal Protection Guarantee under 

the Fifth Amendment.17 After over ten 

years of litigation, the U.S. Government 

and Flores plaintiffs entered into the 

‘‘Flores Settlement Agreement’’ (FSA), 

which was approved by the district 

court as a consent decree on January 28, 

1997.18

The FSA applies to both 

unaccompanied children, as defined in 

the HSA, and to children accompanied 

by their parents or legal guardians,19 but 

ORR notes that this proposed rule is 

intended specifically to codify 

requirements regarding the care of 

unaccompanied children who have been 

transferred to the care and custody of 

ORR. As relevant to ORR, the FSA 

imposes several substantive 

requirements for government custody of 

unaccompanied children, requiring first 

and foremost that minors be placed in 

the ‘‘least restrictive setting appropriate 

to the minor’s age and special needs,’’ 20

and establishing a general policy 

favoring release of unaccompanied 

children where it is determined that 

detention of the unaccompanied child is 

not required either to secure the child’s 

timely appearance for immigration 

proceedings or to ensure the 

unaccompanied child’s safety or that of 

others.21 When release is appropriate, 

the FSA establishes the following order 

of priority with respect to potential 

sponsors: a parent, legal guardian, adult 

relative, or another adult designated by 

the parent or legal guardian as capable 

and willing to care for the minor’s wellbeing. If no sponsor is available, an 

unaccompanied child will be placed at 

a care provider facility licensed by an 

appropriate state agency. Under the 

original terms of the FSA, 

unaccompanied children who were not 

released remained in INS custody; 

currently, under the FSA, 

unaccompanied children who are not 

released remain in ORR legal custody 

and may be transferred or released only 

under the authority of ORR. The FSA 

also mandates that any non-citizen child 

who remains in government custody for 

removal proceedings is entitled to a 

bond hearing before an immigration 

judge, ‘‘unless the minor indicates on 

the Notice of Custody Determination 

form that he or she refuses such a 

hearing.’’ 22 The FSA contains many 

other provisions relating to the care of 

unaccompanied children, including 

Exhibit 1, which describes the 

minimum standards required at licensed 

care provider facilities caring for 

unaccompanied children. 

The FSA states that within 120 days 

of the final district court approval of the 

agreement, the Government shall 

initiate action to publish the relevant 

and substantive terms of this Agreement 

in regulation.23 In 1998, the INS 

published a proposed rule having a 

basis in the substantive terms of the 

FSA, entitled ‘‘Processing, Detention, 

and Release of Juveniles.’’ 24 Over the 

subsequent years, that proposed rule 

was not finalized. The FSA originally 

included a termination date, but in 

2001, the parties agreed to extend the 

agreement and added a stipulation that 

terminates the FSA ‘‘45 days following 

defendants’ publication of final 

regulations implementing t[he] 

Agreement.’’ 25 In January 2002, the INS 

reopened the comment period on the 

1998 proposed rule,26 but the 

rulemaking was ultimately terminated. 

Thus, as a result of the 2001 Stipulation, 

the FSA has not terminated. The U.S. 

District Court for the Central District of 

California has continued to rule on 

various motions filed in the case and 

oversee enforcement of the FSA. 

3. The 2019 Final Rule 

On September 7, 2018, DHS and HHS 

issued a joint proposed rule, entitled 

‘‘Apprehension, Processing, Care, and 

Custody of Alien Minors and 

Unaccompanied Alien Children’’ (2018 

Proposed Rule).27 The purpose of the 

proposed rule was to implement the 

substantive terms of the FSA, and thus 

enable the district court to terminate the 


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28 Id. 

29Apprehension, Processing, Care, and Custody 

of Alien Minors and Unaccompanied Alien 

Children, 84 FR 44392, 44530–44535 (Aug. 23, 

2019). 

30 Id. at 44526. 

31 Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal. 

2019). 

32 Flores v. Rosen, 984 F. 3d 720 (9th Cir. 2020). 

33The underlying District Court case also found 

a third problematic aspect of the HHS regulations, 

that the HHS regulations were inconsistent with the 

FSA because they used descriptive, not mandatory, 

language in implementing certain provisions (e.g., 

while the FSA requires that minors not released 

‘‘shall be placed temporarily in a licensed program’’ 

whose homes and facilities ‘‘shall be non-secure as 

required under state law,’’ FSA ¶¶ 6, 19, the 

regulations stated that ‘‘ORR places 

[unaccompanied minors] into a licensed program’’ 

and that ‘‘ORR places each [minor] in the least 

restrictive setting that is in the best interest of the 

child and appropriate to the [minor’s] age and 

special needs,’’ 84 FR 44,392, 44,531.). But on 

appeal, the Ninth Circuit ruled that where the 2019 

Final Rule did not use mandatory language, 

nevertheless ‘‘HHS and ORR are bound by and must 

comply with the descriptive language in the HHS 

regulations as equivalent to the mandatory 

requirements in the Agreement. So interpreted, the 

descriptive language in the regulations is consistent 

with the Agreement.’’ Flores v. Rosen, 984 F.3d 720, 

731 (9th Cir. 2020). 

34 984 F.3d 720, 737 (9th Cir. 2020). 

35 Id. With respect to the DHS portions of the 

2019 Final Rule, the Ninth Circuit held that some 

of the DHS regulations regarding initial 

apprehension and detention were consistent with 

the FSA and could take effect, but that the 

remaining DHS regulations were inconsistent with 

the FSA and the district court properly enjoined 

them and the inconsistent HHS regulations from 

taking effect. See id. at 744. 

36California v. Mayorkas, No. 2:19–v–07390 (C.D. 

Cal. filed Aug. 26, 2019). 

37See Stipulation re Request to Hold Plaintiffs’ 

Claims as to HHS Under Abeyance, California v. 

Mayorkas, No. 2:19–v–07390 (C.D. Cal. Apr. 12, 

2022), ECF No. 159. See also Order Approving 

Stipulation, ECF No. 160. 

38See id. 

39Pending E.O. 12866 Regulatory Review, https:// 

www.reginfo.gov/public/do/eoDetails?rrid=312162. 

agreement. The rule proposed to adopt 

provisions that were intended to 

parallel the relevant substantive terms 

of the FSA, with some modifications to 

reflect statutory and operational changes 

put in place since the FSA was entered 

into in 1997, along with certain other 

changes.28 A final rule was promulgated 

on August 23, 2019 (2019 Final Rule), 

which comprised two sets of 

regulations: one issued by DHS and the 

other by HHS. The HHS regulations 

addressed only the care and custody of 

unaccompanied children.29 The DHS 

regulations addressed other provisions 

of the FSA that pertained to DHS, 

including the requirement that after 

DHS apprehends unaccompanied 

children it should transfer them to the 

custody of HHS.30

After DHS and HHS issued the 2018 

Proposed Rule and before the 2019 Final 

Rule was published, plaintiffs in the 

Flores litigation filed a Motion to 

Enforce the FSA. The court deferred 

ruling on the Motion, ordering DHS and 

HHS to file a notice upon issuance of 

final regulations, which DHS and HHS 

did in August 2019. Later that month 

DHS and HHS also filed a Notice of 

Termination and Motion in the 

Alternative to Terminate the FSA, while 

Plaintiffs filed a supplemental brief 

addressing their Motion to Enforce. 

Plaintiffs’ Motion to Enforce presented 

two separate but related issues: (1) 

whether the 2019 Final Rule would 

effectively terminate the FSA, and (2) if 

not, to what extent the Court should 

enjoin the government from 

implementing the 2019 Final Rule. On 

September 27, 2019, approximately one 

month after the 2019 Final Rule was 

published, the District Court for the 

Central District of California entered an 

Order granting Plaintiffs’ Motion to 

Enforce insofar as it sought an order 

declaring that the Government failed to 

terminate the FSA, denied the 

Government’s Motion to Terminate the 

FSA, and issued a permanent injunction 

consistent with its order.31

On December 29, 2020, in Flores v. 

Rosen, the U.S. Court of Appeals for the 

Ninth Circuit affirmed in part and 

reversed in part the District Court 

Order.32 Regarding the HHS regulations 

applicable to the care and custody of 

unaccompanied children in the 2018 

Proposed Rule, the Court of Appeals 

held that the regulations were ‘‘largely 

consistent’’ with the FSA, with two 

exceptions.33 First, it held that the HHS 

regulation allowing placement of a 

minor in a secure facility upon an 

agency determination that the minor is 

otherwise a danger to self or others 

broadened the circumstances in which a 

minor may be placed in a secure facility, 

and therefore was inconsistent with the 

FSA. Second, it held that provisions 

providing a hearing to unaccompanied 

children held in secure or staff-secure 

placement only if requested was 

inconsistent with the FSA’s opt-out 

process for obtaining a bond hearing. 

Although the Ninth Circuit held that the 

majority of the HHS regulations could 

take effect, it also held that the District 

Court did not abuse its discretion in 

declining to terminate the portions of 

the FSA covered by those regulations, 

noting that the Government moved to 

‘‘terminate the Agreement in full, not to 

modify or terminate it in part.’’ 34

Consistent with its findings, the Ninth 

Circuit held that the FSA ‘‘therefore 

remains in effect, notwithstanding the 

overlapping HHS regulations’’ and that 

the Government if it wished could move 

to terminate those portions of the FSA 

covered by the valid portions of the 

HHS regulations.35

Separately, a group of states brought 

litigation in the District Court for the 

Central District of California seeking to 

enjoin the government from 

implementing the 2019 Final Rule 

(California v. Mayorkas), based on other 

grounds including the Administrative 

Procedure Act.36 The court stayed the 

case, given the related litigation brought 

by Flores plaintiffs, which culminated 

in the Ninth Circuit decision in Flores 

v. Rosen. After that decision, the 

plaintiffs in California v. Mayorkas filed 

supplemental briefing requesting a 

narrowed preliminary injunction, 

alleging that several portions of the HHS 

provisions of the 2019 Final Rule 

violated the Administrative Procedure 

Act. Subsequently, the parties entered 

into settlement discussions. As of 

December 10, 2021, the parties informed 

the court that HHS did not plan to seek 

termination of the FSA under the terms 

of the stipulation or to ask the court to 

lift its injunction of the HHS 

regulations. Instead, HHS would 

consider a future rulemaking that would 

more broadly address issues related to 

the custody of unaccompanied children 

by HHS and that would replace the rule 

being challenged in California v. 

Mayorkas. Based on this agreement, the 

court ordered that the California v. 

Mayorkas litigation should be placed 

into abeyance with regard to the 

Plaintiffs’ claims against HHS while 

HHS engaged in new rulemaking to 

replace and supersede the HHS 

regulations in the 2019 Final Rule.37

Further, among other things, HHS 

agreed that while it underwent new 

rulemaking, it would not seek to lift the 

injunction of the 2019 Final Rule, nor 

seek to terminate the FSA as to HHS 

under the 2019 Final Rule, and that it 

would make best efforts to submit a 

notice of proposed rulemaking to the 

OMB by April 15, 2023, providing 

quarterly updates to the Court should it 

not meet that deadline.38 In accord with 

the relevant order ORR made best efforts 

to submit the NPRM to OMB, and 

ultimately sent the document to OMB 

on April 28, 2023.39 This NPRM 

initiates that broader rulemaking effort, 

and reflects the stipulated agreement in 

California v. Mayorkas, and applies, as 

relevant, the findings of the Ninth 

Circuit regarding the 2019 Final Rule in 

Flores v. Rosen. Note, because the 

permanent injunction of the 2019 Final 

Rule was never lifted, and the FSA 

continued to remain in effect, ORR does 

not anticipate that any third parties 

would have developed reliance interests 


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40 Lucas R. v. Becerra, Case No. 2:18–cv–5741 

(C.D. Cal. filed Jun. 29, 2018). 

41Order re Defendants’ Motion to Dismiss [101] 

and Plaintiff’s Motion for Class Certification [97], 

Lucas R. v. Becerra, No. 2:18–cv–05741 (C.D. Cal. 

Nov. 2, 2018), ECF No. 126. 

42 Id. 

43 8 U.S.C. 1232(b)(2). 

44 74 FR 14564 (2009) 

45 74 FR 1232 (2009). 

46 8 U.S.C. 1232(c)(1); see also 6 U.S.C. 

279(b)(1)(L) (describing ORR’s responsibility to 

conduct investigations and inspections of facilities 

and other entities in which unaccompanied 

children reside, including regular follow-up visits 

to such facilities, placements, and other entities, to 

assess the continued suitability of such 

placements). 

on the HHS regulations in the 2019 

Final Rule. 

4. Lucas R. Litigation 

Another ongoing litigation involving 

ORR, filed in 2018, also has 

ramifications for this NPRM. Lucas R. v. 

Becerra,40 a class action lawsuit, was 

filed in the U.S. District Court for the 

Central District of California, alleging 

ORR had violated the FSA, the TVPRA, 

the U.S. Constitution, and section 504 of 

the Rehabilitation Act of 1973 (section 

504). Based on the plaintiffs’ allegations, 

the court certified five plaintiff classes 

comprising of all children in ORR 

custody: 

(1) who are or will be placed in a 

secure facility, medium-secure facility, 

or residential treatment center (RTC), or 

whom ORR has continued to detain in 

any such facility for more than 30 days, 

without being afforded notice and an 

opportunity to be heard before a neutral 

and detached decisionmaker regarding 

the grounds for such placement (i.e., the 

‘‘step-up class’’); 

(2) whom ORR is refusing or will 

refuse to release to parents or other 

available custodians within 30 days of 

the proposed custodian’s submission of 

a complete family reunification packet 

on the ground that the proposed 

custodian is or may be unfit (i.e., the 

‘‘unfit custodian class’’); 

(3) who are or will be prescribed or 

administered one or more psychotropic 

medications without procedural 

safeguards (i.e., the ‘‘drug 

administration class’’); 

(4) who are natives of non-contiguous 

countries and to whom ORR is 

impeding or will impede legal 

assistance in legal matters or 

proceedings involving their custody, 

placement, release, and/or 

administration of psychotropic drugs 

(i.e., the ‘‘legal representation class’’); 

and 

(5) who have or will have a 

behavioral, mental health, intellectual, 

and/or developmental disability as 

defined in 29 U.S.C. [section] 705, and 

who are or will be placed in a secure 

facility, medium-secure facility, or 

[RTC] because of such disabilities (i.e., 

the ‘‘disability class’’).41

On August 30, 2022, the U.S. District 

Court for the Central District of 

California granted preliminary 

injunctive relief concerning the 

allegations of the unfit custodian, stepup, and legal representation classes. As 

of October 31, 2022, ORR implemented 

new policies and procedures on issues 

identified in the Court’s preliminary 

injunction order. As of September 2023, 

ORR remains in active litigation in the 

Lucas R. class action. Depending on 

developments in the case, ORR may 

incorporate additional provisions in the 

final rule as discussed in this preamble. 

C. Statutory and Regulatory Authority 

As discussed above, under the HSA 

and TVPRA, the ORR Director is 

responsible for the care and placement 

of unaccompanied children. Under the 

HSA, ORR is responsible for 

‘‘coordinating and implementing the 

care and placement of [unaccompanied 

children] who are in Federal custody by 

reason of their immigration status,’’ 

‘‘identifying a sufficient number of 

qualified individuals, entities, and 

facilities to house [unaccompanied 

children],’’ ‘‘overseeing the 

infrastructure and personnel of facilities 

in which [unaccompanied children 

reside],’’ and ‘‘conducting investigations 

and inspections of facilities and other 

entities in which [unaccompanied 

children] reside, including regular 

follow-up visits to such facilities, 

placements, and other entities, to assess 

the continued suitability of such 

placements.’’ 42 Under the TVPRA, 

Federal agencies are required to notify 

HHS within 48 hours of apprehending 

or discovering a UC or receiving a claim 

or having suspicion that a non-citizen in 

their custody is an unaccompanied 

child under 18 years of age.43 The 

TVPRA further requires that, absent 

exceptional circumstances, any Federal 

agency must transfer an unaccompanied 

child to the care and custody of HHS 

within 72 hours of determining that a 

non-citizen child in its custody is an 

unaccompanied child. With respect to 

the care and placement of 

unaccompanied children, the TVPRA 

requires that HHS establish policies and 

programs to ensure that unaccompanied 

children are protected from traffickers 

and other persons seeking to victimize 

or exploit children. Among other things, 

it also requires HHS to place 

unaccompanied children in the least 

restrictive setting that is in the best 

interest of the child, and states that in 

making such placements it may 

consider danger to self, danger to the 

community, and risk of flight. As 

previously discussed, the Secretary of 

HHS delegated the authority under the 

TVPRA to the Assistant Secretary for 

Children and Families,44 who in turn 

delegated the authority to the Director of 

ORR.45 It is under this delegation of 

authority that ORR now proposes to 

issue regulations describing how ORR 

meets its statutory responsibilities 

under the HSA and TVPRA and to 

implement the relevant and substantive 

terms of the FSA for the care and 

custody of unaccompanied children. 

In addition to requirements and 

standards related to the direct care of 

unaccompanied children, ORR proposes 

to establish a new UC Office of the 

Ombuds, to create a mechanism that 

allows unaccompanied children and 

stakeholders to raise concerns with ORR 

policies and practices to an independent 

body. The Ombuds will be tasked with 

fielding concerns from any party 

relating to the implementation of ORR 

regulations, policies, and procedures; 

reviewing individual cases, conducting 

site visits and publishing reports 

including reports on systemic issues in 

ORR custody, particularly where there 

are concerns about access to services or 

release from ORR care; and following up 

on grievances made by children, 

sponsors, or other stakeholders. HHS 

has authority to establish this office 

under its authority to ‘‘establish policies 

and programs to ensure that 

unaccompanied alien children in the 

United States are protected from 

traffickers and other persons seeking to 

victimize or otherwise engage such 

children in criminal, harmful, or 

exploitative activity.’’ 46

D. Basis and Purpose of Regulatory 

Action 

The purpose of this NPRM is to 

propose a regulatory framework that 

would: (1) codify policies and practices 

related to the care and custody of 

unaccompanied children, consistent 

with ORR’s statutory authorities; and (2) 

implement relevant provisions 

described by the FSA. The FSA 

describes ‘‘minimum’’ standards for care 

of unaccompanied children at licensed 

care provider facilities, but Congress 

subsequently enacted legislation 

establishing requirements for the UC 

Program. This NPRM proposes both to 

implement the protections set forth in 

the FSA and to broaden them consistent 

with the current legal and operational 

environment, which has significantly 


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47ORR Unaccompanied Children Program Policy 

Guide, https://www.acf.hhs.gov/orr/policyguidance/unaccompanied-children-program-policyguide. 

48Unaccompanied Children’s Program Field 

Guidance, https://www.acf.hhs.gov/orr/policyguidance/uc-program-field-guidance. 

changed since the FSA was signed over 

25 years ago. 

E. Severability 

To the extent that any portion of the 

requirements arising from the final rule 

is declared invalid by a court, ORR 

intends for all other parts of the final 

rule that are capable of operating in the 

absence of the specific portion that has 

been invalidated to remain in effect. 

While our expectation is that all parts of 

the final rule that are operable in such 

an environment would remain in effect, 

ORR will assess at that time whether 

further rulemaking is necessary to 

amend any provisions subsequent to 

any holding that ORR exceeded its 

discretion or the provisions are 

inconsistent with the FSA or are vacated 

or enjoined on any other basis. 

V. Discussion of Elements of the 

Proposed Rule 

Subpart A—Care and Placement of 

Unaccompanied Children 

In this NPRM, ORR proposes to codify 

requirements and policies regarding the 

placement, care, and services provided 

to unaccompanied children in ORR 

custody. The following provisions 

identify the scope of this part, the 

definitions used throughout this part, 

and principles that apply to ORR 

placement, care, and services decisions. 

Section 410.1000 Scope of This Part 

ORR proposes, in § 410.1000(a), that 

the scope of this part pertain to the 

placement, care, and services provided 

to unaccompanied children in Federal 

custody by reason of their immigration 

status and referred to ORR. As described 

in section IV. of this proposed rule, 

ORR’s care, custody, and placement of 

unaccompanied children is governed by 

the HSA and TVPRA, and ORR provides 

its services to unaccompanied children 

in accordance with the terms of the 

FSA. ORR also clarifies that proposed 

part 410 would not govern or describe 

the entire program. For example, part 

411 (describing requirements related to 

the prevention of sexual abuse of 

unaccompanied children in ORR care) 

would remain in effect under this 

proposed rule. ORR notes that its 

current policies and practices are 

described in the online ORR Policy 

Guide,47 Field Guidance,48 manuals 

describing compliance with ORR 

policies and procedures, and other 

communications from ORR to care 

provider facilities. ORR will continue to 

utilize these vehicles for its 

subregulatory guidance and will revise 

them in connection with publication of 

the final rule as needed to ensure 

compliance with the final rule. The 

proposed provisions of this part would, 

in many cases, codify existing ORR 

policies and practices. Further, upon 

publication of a final rule, ORR would 

continue to publish subregulatory 

guidance as needed to clarify the 

application of these regulations. 

ORR also proposes, in § 410.1000(b), 

that the provisions of this part are 

separate and severable from one another 

and that if any provision is stayed or 

determined to be invalid, the remaining 

provisions shall continue in effect. 

Additionally, ORR proposes in 

§ 410.1000(c) that ORR does not fund or 

operate facilities other than standard 

programs, restrictive placements (which 

includes secure facilities, including 

residential treatment centers, and 

heightened supervision facilities), or 

emergency or influx facilities, absent a 

specific waiver as described under 

proposed § 410.1801(d) or such 

additional waivers as are permitted by 

law. 

Section 410.1001 Definitions 

ORR proposes, in § 410.1001, to 

codify the definitions of terms that 

apply to this part. Some definitions are 

the same as those found in statute, or 

other authorities (e.g., the definition of 

‘‘unaccompanied child’’ is the same as 

the definition of ‘‘unaccompanied alien 

child’’ as found in the HSA, 6 U.S.C. 

279(g)(2)). Notably, for purposes of this 

proposed rule, ORR would update 

certain terms and definitions provided 

in the FSA (e.g., the definition of 

‘‘influx’’). Below is an explanation for 

certain definitions, to further explain 

ORR’s rationale when the proposed rule 

applies the relevant terms. 

The proposed definition of ‘‘care 

provider facility’’ is intended to 

generally describe any placement type 

for unaccompanied children, except out 

of network (OON) placements, and as a 

result is broader than the term 

‘‘standard program,’’ provided below, 

which for example does not include 

emergency or influx facilities. ORR also 

notes that this proposed definition does 

not reference ‘‘facilities for children 

with special needs,’’ a term used in the 

definition of ‘‘licensed program’’ in the 

FSA and 45 CFR 411.5. ORR is 

considering not using the term 

‘‘facilities for children with special 

needs’’ within the part for the reasons 

set forth below in this section at the 

proposed definition of ‘‘standard 

program.’’ Moreover, ORR understands 

this proposed definition for ‘‘care 

provider facility’’ to encompass any 

facility in which an unaccompanied 

child may be placed while in the 

custody of ORR, including any facility 

exclusively serving children in need of 

particular services and treatment. 

The proposed definition of 

‘‘disability’’ is distinct from its proposed 

definition for a ‘‘special needs 

unaccompanied child,’’ discussed later 

in this section and which is derived 

specifically from the FSA. Although 

some unaccompanied children may 

have a disability and also have special 

needs, the terms are not synonymous. 

For example, an unaccompanied child 

exiting ORR custody may be considered 

to have a disability within the definition 

set forth in section 504 of the 

Rehabilitation Act of 1973 even if the 

child does not require services or 

treatments for a mental and/or physical 

impairment. 

The proposed definition of 

‘‘emergency’’ differs from the definition 

finalized at 45 CFR 411.5, which defines 

the term as ‘‘a sudden, urgent, usually 

unexpected occurrence or occasion 

requiring immediate action.’’ 

‘‘Emergency,’’ for purposes of this 

proposed rule, would reflect the term’s 

usage in the context of the requirements 

in this proposed rule. 

With respect to the proposed 

definition of ‘‘EOIR accredited 

representative,’’ ORR notes that DOJ 

refers to these individuals simply as 

‘‘accredited representatives,’’ see 8 CFR 

1292.1(a)(4), but for purposes of this 

proposed rule, ORR adopts the term 

‘‘EOIR accredited representative.’’ 

The proposed definition of 

‘‘heightened supervision facility’’ 

incorporates language consistent with 

the definition of ‘‘medium secure 

facility’’ provided in the FSA at 

paragraph 8. This term is meant to 

replace the term ‘‘staff secure facility’’ 

as used under existing ORR policies. 

ORR has decided to change its 

terminology because it has become clear 

that the prior term was not well 

understood and did not effectively 

convey information about the nature of 

such facilities. 

The proposed definition of ‘‘influx’’ 

would change the threshold for 

declaring an influx, for ORR’s purposes, 

from the FSA standard, which ORR 

believes is out of date considering 

current migration patterns and its 

organizational capacity. The FSA 

defines influx as ‘‘those circumstances 

where the INS has, at any given time, 

more than 130 minors eligible for 

placement in a licensed program.’’ 

ORR’s proposed definition, however, 


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49 8 U.S.C. 1232(c)(2)(A). 

50See e.g., hearings conducted by the Department 

of Justice’s Executive Office for Immigration Review 

to decide custody redeterminations under section 

236(a) of the Immigration and Nationality Act, 8 

U.S.C. 1226(a), ‘‘where an alien must establish that 

the alien does not present a danger to others, a 

threat to the national security, or a flight risk.’’ 

Matter of Guerra, 24 I&N Dec. 37, 40 (BIA 2006). 

51See, e.g., Proclamation by the Governor of the 

State of Texas, May 31, 2021, available at: https:// 

gov.texas.gov/uploads/files/press/DISASTER_

border_security_IMAGE_05-31-2021.pdf (directing 

the Texas Health and Human Service Commission 

(HHSC) to amend its regulations to ‘‘discontinue 

state licensing of any child-care facility in this state 

that shelters or detains [UC] under a contract with 

the Federal government.’’); see also Fl. Executive 

Order No. 21–223 (Sep. 28, 2021), available at: 

https://www.flgov.com/wp-content/uploads/orders/ 

2021/EO_21-223.pdf. 

would not impact the rights, and 

responsibilities of other parties of the 

FSA. ORR believes that the proposed 

definition more appropriately reflects 

significantly changed circumstances 

since the inception of the FSA and 

provides a more realistic, fair, and 

workable threshold for implementing 

safeguards necessary in cases where a 

high percentage of ORR’s bed capacity 

is in use. The 1997 standard of 130 

minors awaiting placement does not 

reflect the realities of unaccompanied 

children referrals in the past decade, in 

which the number of unaccompanied 

children referrals each day typically 

exceeds, and sometimes greatly exceeds, 

130. To leave this standard as the 

definition of influx would mean, in 

effect, that the program was always in 

influx status. Accordingly, ORR has 

developed a more realistic and workable 

threshold for implementing safeguards 

necessary in cases where a high 

percentage of ORR bed capacity is in 

use. 

With respect to the proposed 

definition of ‘‘post-release services,’’ 

ORR notes that assistance linking 

families to educational resources may 

include but is not limited to, in 

appropriate circumstances, assisting 

with school enrollment; requesting an 

English language proficiency 

assessment; seeking an evaluation to 

determine whether the child is eligible 

for a free appropriate public education 

(which can include special education 

and related services) or reasonable 

modifications and auxiliary aids and 

services under the Individuals with 

Disabilities Education Act or section 

504 of the Rehabilitation Act of 1973; 

and monitoring the unaccompanied 

child’s attendance at and progress in 

school. ORR notes that while the 

TVPRA requires that follow-up services 

must be provided during the pendency 

of removal proceedings in cases in 

which a home study occurred, the 

nature and extent of those services 

would be subject to available resources. 

With respect to the proposed 

definition of ‘‘runaway risk,’’ ORR notes 

that the FSA and ORR policy currently 

uses the term ‘‘escape risk.’’ See FSA 

paragraph 22 (defining ‘‘escape risk’’ as 

‘‘a serious risk that the minor will 

attempt to escape from custody,’’ and 

providing a non-exhaustive list of 

factors ORR may consider when 

determining whether an unaccompanied 

child is an escape risk—e.g., whether 

the unaccompanied child is currently 

under a final order of removal, the 

unaccompanied child’s immigration 

history, and whether the 

unaccompanied child has previously 

absconded or attempted to abscond from 

government custody). ORR proposes to 

update this term to ‘‘runaway risk,’’ 

which is a term used by state child 

welfare agencies and Federal agencies to 

describe children at risk from running 

away from home or their care setting. 

Rather than basing its determination of 

runaway risk solely on the factors 

described in the FSA, ORR proposes 

under this rule that such determinations 

must be made in view of a totality of the 

circumstances and should not be based 

solely on a past attempt to run away. 

This proposed definition of runaway 

risk is meant to be consistent with how 

the term is used in the FSA to describe 

escape from ORR care, i.e., from a care 

provider facility. ORR notes here and 

throughout this proposed rule that the 

TVPRA uses the term ‘‘risk of flight,’’ 

stating HHS ‘‘may’’ consider ‘‘risk of 

flight,’’ among other factors, when 

making placement determinations.49

ORR understands that in the 

immigration law context, ‘‘risk of flight’’ 

refers to an individual’s risk of not 

appearing for their immigration 

proceedings.50 ORR proposes, with 

respect to its responsibilities toward 

unaccompanied children in its custody, 

to interpret ‘‘risk of flight’’ as including 

‘‘runaway risk,’’ thereby adding 

runaway risk to the list of factors it 

would consider in making placement 

determinations. Runaway risk often 

overlaps with concern that an 

unaccompanied child may not appear 

for the child’s immigration proceedings. 

ORR also notes that runaway risk may 

also relate to potential danger to self or 

the community, given the inherent risks 

to unaccompanied children who run 

away from custody. 

With respect to the proposed 

definition of ‘‘secure facility,’’ ORR 

notes that the FSA uses but does not 

provide a definition for this term. 

Nevertheless, the proposed definition is 

consistent with the provisions of the 

FSA applying to secure facilities. Also, 

this proposed definition differs from the 

definition in the 2019 Final Rule, which 

could have been read to indicate that 

any contract or cooperative agreement 

for a facility with separate 

accommodations for minors is a secure 

facility. Such a definition risks 

erroneously confusing other types of 

ORR placements that are not secure 

with secure placements and therefore 

ORR is proposing an updated definition 

in this proposed rule. 

With respect to the proposed 

definition of ‘‘special needs 

unaccompanied child,’’ ORR notes that 

this definition has been included to 

incorporate the term ‘‘special needs 

minor’’ as described within the FSA at 

paragraph 7, except ORR proposes to 

update the definition by using the 

phrase ‘‘intellectual or developmental 

disability’’ instead of ‘‘mental illness or 

retardation’’ as used in the FSA. ORR 

understands that this update reflects 

current terminology which has 

superseded the terminology used in the 

FSA (‘‘retardation’’). Although an 

unaccompanied child with a disability, 

as defined in this section, could also be 

a ‘‘special needs unaccompanied child’’ 

as incorporated here, the definition of 

disability is broader and thus the terms 

are not synonymous. To further this 

clarification, ORR proposes a separate 

definition for disability earlier in this 

section that incorporates the meaning of 

the term across applicable governing 

statutory authorities. ORR is also 

considering not defining and not using 

the term ‘‘special needs unaccompanied 

child’’ within the part for the reasons set 

forth below at proposed §§ 410.1103 and 

410.1106. 

The proposed definition of ‘‘standard 

program’’ reflects and updates the term 

‘‘licensed program’’ at paragraph 6 of 

the FSA. The FSA does not discuss 

situations where states discontinue 

licensing, or exempt from licensing, 

child care facilities that contract with 

the Federal Government to care for 

unaccompanied children, as has 

happened recently in some states.51

ORR has included this proposed 

definition of ‘‘standard program’’ that is 

broader in scope to account for 

circumstances wherein licensure is 

unavailable in the state to programs that 

provide residential, group, or home care 

services for dependent children when 

those programs are serving 

unaccompanied children. ORR notes 

that most states where ORR has care 

provider facilities have not taken such 

actions, and that wherever possible 

standard programs would continue to be 

licensed consistent with current 

practice under the FSA. However, ORR 


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52Separate from this notice of proposed 

rulemaking and in the spirit of current FSA 

requirements, ACF is currently developing a notice 

of proposed rulemaking that would describe the 

creation of a Federal licensing scheme for ORR care 

providers located in states where licensure is 

unavailable to programs serving unaccompanied 

children. 

53Office to Monitor and Combat Trafficking in 

Persons. (2020, June). Trauma Bonding in Human 

Trafficking. U.S. Department of State. https://

www.state.gov/wp-content/uploads/2020/10/TIP_

Factsheet-Trauma-Bonding-in-Human-Trafficking508.pdf. 

54See 6 U.S.C. 279(b)(1)(B); 8 U.S.C. 

1232(c)(2)(A). 

55See, e.g., 6 U.S.C. 279(b)(1) (making ORR 

responsible for, among other things, ‘‘coordinating 

and implementing the care and placement of 

unaccompanied alien children who are in Federal 

custody by reason of their immigration status,’’ 

‘‘ensuring that the interest of the child are 

considered in decisions and actions relating to the 

care and custody of an unaccompanied alien child,’’ 

and ‘‘overseeing the infrastructure and personnel of 

facilities in which unaccompanied alien children 

reside.’’); see also 8 U.S.C. 1232(c)(1) (requiring 

HHS to ‘‘establish policies and programs to ensure 

that unaccompanied alien children in the United 

States are protected from traffickers and other 

persons seeking to victimize or otherwise engage 

such children in criminal, harmful, or exploitative 

activity, including policies and programs reflecting 

best practices in witness security programs.’’); 

1232(c)(2)(A) (‘‘. . . an unaccompanied alien child 

in the custody of the Secretary of Health and 

Human Services shall be promptly placed in the 

least restrictive setting that is in the best interest of 

the child . . .’’). 

is considering substituting the term 

‘‘licensed program’’ with the proposed 

updated term ‘‘standard program’’ in 

order to establish that the requirement 

that facilities in those states must still 

meet minimum standards, consistent 

with requirements for licensed facilities 

expressed in the FSA at Exhibit 1, in 

any circumstance in which a state 

refuses to license a facility because the 

facility is housing unaccompanied 

children.52 ORR solicits comments on 

using the proposed definition of 

‘‘standard program’’ in lieu of the term 

‘‘licensed program.’’ 

ORR understands this proposed 

definition for ‘‘standard program’’ to 

encompass any program operating nonsecure facilities that provide services to 

unaccompanied children in need of 

particular services and treatment or 

children with particular mental or 

physical conditions. Given this, ORR 

believes the continued use of language 

such as ‘‘facilities for children with 

special needs’’ and ‘‘facilities for special 

needs minors,’’ as used in the FSA 

definition of ‘‘licensed program,’’ is 

unnecessary for this regulation, and 

potentially problematic for reasons 

discussed elsewhere within this section 

and at proposed §§ 410.1103 and 

410.1106. For now, ORR has included 

this language in the proposed rule to 

ensure consistency with the FSA, but it 

is considering not using the term 

‘‘special needs unaccompanied child’’ 

or specifying that facilities for special 

needs unaccompanied children 

operated by a standard program are 

covered by the requirements that apply 

to standard programs in the part. 

Therefore, ORR also solicits comments 

in this section on its proposal to not 

include in the definition of ‘‘standard 

program’’ the FSA terminology used in 

the term ‘‘licensed program’’ referencing 

facilities for special needs 

unaccompanied children or a facility for 

special needs unaccompanied children. 

The proposed definition of ‘‘trauma 

bond’’ is consistent with how the Office 

to Monitor and Combat Trafficking in 

Persons, Department of State defined 

the term in its factsheet, Trauma 

Bonding in Human Trafficking.53

With respect to the proposed 

definition of ‘‘trauma-informed,’’ ORR 

believes that a trauma-informed 

approach to the care and placement of 

unaccompanied children is essential to 

ensuring that the interests of children 

are considered in decisions and actions 

relating to their care and custody.54 ORR 

understands trauma-informed system, 

standard, process, or practices 

consistently with the 6 Guidelines To A 

Trauma-Informed Approach developed 

by the Centers for Disease Control and 

Prevention (CDC) in collaboration with 

the Substance Abuse and Mental Health 

Services Administration (SAMHSA). 

Section 410.1002 ORR Care and 

Placement of Unaccompanied Children 

ORR proposes, at § 410.1002, a 

description of ORR’s authority to 

coordinate and implement the care and 

placement of unaccompanied children 

who are in ORR custody by reason of 

their immigration status. ORR notes that 

this substantive requirement is aligned 

with the requirement established in the 

2019 Final Rule at 45 CFR 410.102(a), 

concerning the scope of authority of 

ORR regarding the care and placement 

of unaccompanied children. That 

section of the 2019 Final Rule was not 

found to be inconsistent with the FSA 

by the 9th Circuit in Flores v. Rosen, but 

as discussed in section IV.B.3 of this 

proposed rule, the 2019 Final Rule in its 

entirety is currently enjoined and will 

be superseded by the standards 

proposed in this proposed rule, once 

finalized. 

Section 410.1003 General Principles 

That Apply to the Care and Placement 

of Unaccompanied Children 

ORR proposes, at § 410.1003, to 

describe principles that would apply to 

the care and placement for 

unaccompanied children in its custody. 

These principles are based on ORR’s 

statutory duties to provide care and 

custody for unaccompanied children in 

a manner that is consistent with their 

best interests.55

At § 410.1003(a), ORR proposes that 

for all placements, unaccompanied 

children shall be treated with dignity, 

respect, and special concern for their 

particular vulnerability as 

unaccompanied children. In addition to 

ORR’s statutory authorities, this 

proposal is consistent with the 

substantive criteria set forth at 

paragraph 11 of the FSA, and current 

ORR policies. 

At § 410.1003(b), ORR proposes that 

ORR shall hold unaccompanied 

children in facilities that are safe and 

sanitary and that are consistent with 

ORR’s concern for the particular 

vulnerability of unaccompanied 

children. This is consistent with the 

substantive requirement from paragraph 

12A of the FSA that ‘‘[f]ollowing arrest, 

the INS shall hold minors in facilities 

that are safe and sanitary and that are 

consistent with the INS’s concern for 

the particular vulnerability of minors.’’ 

ORR notes that although this provision 

applies to the arrest and detention of 

unaccompanied children prior to their 

placement in an ORR care provider 

facility, and not to unaccompanied 

children after they are placed in ORR’s 

care, ORR is proposing to adopt this 

standard for its facilities and custody of 

unaccompanied children as well. ORR 

also notes that it is proposing the 

phrasing ‘‘the particular vulnerability of 

unaccompanied children’’ as opposed to 

‘‘the particular vulnerability of minors,’’ 

as it believes that the specific 

vulnerability of the population of 

unaccompanied children should be 

considered when providing them with 

safe and sanitary conditions. 

At proposed § 410.1003(c), ORR 

would be required to plan and provide 

care and services based on the 

individual needs of and focusing on the 

strengths of the unaccompanied child. 

As a complementary provision, ORR 

proposes, at § 410.1003(d), to encourage 

unaccompanied children, as 

developmentally appropriate and in 

their best interests, to be active 

participants in ORR’s decision-making 

process relating to their care and 

placement. ORR believes that these 

collaborative approaches to care 

provision allow for the recognition of 

each child’s specific needs and 

strengths while providing opportunities 

for unaccompanied children to become 

more empowered, resilient, and selfefficacious. 


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56See 8 U.S.C. 1232(b)(1) (‘‘Consistent with 

section 279 of title 6, and except as otherwise 

provided under subsection (a), the care and custody 

of all unaccompanied alien children, including 

responsibility for their detention, where 

appropriate, shall be the responsibility of the 

Secretary of Health and Human Services.’’). 57See FSA at ¶ 19. 58 6 U.S.C. 279(b)(1). See also 8 U.S.C. 

1232(c)(2)(A). 

59The TVPRA also contains specific provisions 

for DHS to screen children who are from contiguous 

countries to determine whether such children meet 

statutory criteria to be returned to the child’s 

country of nationality or of last habitual residence. 

Such screening should occur within 48 hours of 

apprehension. If the child does not meet the criteria 

to be returned or no determination can be made 

within 48 hours of apprehension, the TVPRA states 

that the child shall ‘‘immediately be transferred to 

the Secretary of HHS and treated in accordance 

with subsection (b).’’ 8 U.S.C. 1232(a)(4). We read 

this language in concert with the language in 8 

U.S.C. 1232(b)(3) and, thus, include the one 72-hour 

standard in this proposed rule. 

ORR proposes, at § 410.1003(e), to 

codify a requirement that care of 

unaccompanied children be tailored to 

the individualized needs of each 

unaccompanied child in ORR custody, 

ensuring the interests of the child are 

considered, and that unaccompanied 

children are protected from traffickers 

and other persons seeking to victimize 

or otherwise engage them in criminal, 

harmful, or exploitative activity, both 

while in ORR custody and upon release 

from the UC Program. ORR recognizes 

the utmost importance of protecting 

unaccompanied children from 

traffickers and other persons seeking to 

victimize or otherwise engage in 

harmful activities, including 

unscrupulous employers. ORR believes 

the provisions proposed at § 410.1003(e) 

reinforce ORR’s commitment to 

ensuring the best interests of 

unaccompanied children are considered 

and actions are taken to safeguard them 

from harm. ORR also believes that 

codifying the requirement to consider 

each unaccompanied child’s 

individualized needs reinforces that 

unaccompanied children will be 

assessed by ORR to determine whether 

they may require particular services and 

treatment while in the UC Program, 

such as to address the ramifications of 

a history of severe neglect or abuse, as 

provided for in paragraph 7 of the FSA. 

Consistent with the substantive 

criteria set forth in the TVPRA, 8 U.S.C. 

1232(c)(2)(A), ORR proposes at 

§ 410.1003(f) to require that 

unaccompanied children be promptly 

placed in the least restrictive setting that 

is in the best interest of the child, with 

placement considerations including 

danger to self; danger to the community; 

and runaway risk, as defined in 

§ 410.1001. In addition to ORR’s 

statutory authorities, this proposal is 

consistent with the substantive criteria 

set forth at paragraph 11 of the FSA, and 

current ORR policies. 

At proposed § 410.1003(g), ORR 

would require consultation with 

parents, legal guardians, child 

advocates, and attorneys of record or 

EOIR accredited representatives as 

needed when requesting information or 

consent from all unaccompanied 

children. 

Section 410.1004 ORR Custody of 

Unaccompanied Children 

Proposed § 410.1004 describes the 

scope of ORR’s custody of 

unaccompanied children. Consistent 

with its statutory authorities and the 

FSA, this proposed provision specifies 

that all unaccompanied children placed 

by ORR in care provider facilities 

remain in the legal custody of ORR and 

may be transferred or released only with 

ORR approval.56 The provision would 

also provide that in the event of an 

emergency, a care provider facility may 

transfer temporary physical custody of 

an unaccompanied child prior to 

securing approval from ORR but shall 

notify ORR of the transfer as soon as is 

practicable thereafter, and in all cases 

within 8 hours.57

Subpart B—Determining the Placement 

of an Unaccompanied Child at a Care 

Provider Facility 

In subpart B of this proposed rule, 

ORR proposes to codify the criteria and 

requirements that apply to placement of 

unaccompanied children at particular 

types of care provider facilities. The 

HSA makes ORR responsible for, among 

other things, ‘‘coordinating and 

implementing the care and placement of 

unaccompanied alien children who are 

in federal custody by reason of their 

immigration status,’’ ‘‘making 

placement determinations for all 

unaccompanied alien children who are 

in federal custody by reason of their 

immigration status,’’ ‘‘implementing the 

placement determinations,’’ and 

‘‘implementing policies with respect to 

the care and placement of 

unaccompanied alien children.’’ 58 In 

addition, subpart B would clarify and 

strengthen placement criteria to better 

ensure appropriate placement based on 

each unaccompanied child’s individual 

background, characteristics, and needs. 

ORR believes that these proposed 

provisions can help to protect the 

interests of unaccompanied children in 

ORR care by supporting safe and 

appropriate placement in the least 

restrictive setting appropriate to the 

child’s age and individualized needs, 

consistent with existing legal 

requirements and child welfare best 

practices. 

Section 410.1100 Purpose of This 

Subpart 

Proposed § 410.1100 describes the 

purposes of subpart B, which are to set 

forth the process by which ORR receives 

referrals from other Federal agencies 

and the factors ORR considers when 

placing an unaccompanied child in a 

particular care provider facility. In 

addition, proposed § 410.1100 would 

clarify that, as used in this subpart, 

‘‘placement determinations’’ or 

‘‘placements’’ refers to placements in 

ORR-approved care provider facilities 

during the time an unaccompanied 

child is in ORR care, and not to the 

location of an unaccompanied child 

once the child is released in accordance 

with provisions proposed in subpart C. 

Section 410.1101 Process for the 

Placement of an Unaccompanied Child 

After Referral From Another Federal 

Agency 

ORR proposes, at new § 410.1101, to 

codify its existing process for accepting 

referrals of unaccompanied children 

from another Federal agency and for 

placement of an unaccompanied child 

in a care provider facility upon such 

referral. Consistent with the TVPRA at 

8 U.S.C. 1232(b)(3), which requires any 

department or agency of the Federal 

Government that has an unaccompanied 

child in its custody to transfer the 

custody of such child to HHS not later 

than 72 hours after determining that the 

child is an unaccompanied child, unless 

there are exceptional circumstances,59

and with existing policy, under 

proposed § 410.1101(a), ORR accepts 

referrals from any department or agency 

of the Federal Government of 

unaccompanied children in the referring 

department or agency’s custody. 

Further, consistent with existing policy 

and in cooperation with referring 

agencies, ORR accepts such referrals at 

any time of day, every day of the year. 

ORR may seek clarification about the 

information provided by the referring 

agency (including about how the 

referred individual meets the statutory 

definition of unaccompanied child). In 

such instances, ORR shall notify the 

referring agency and work with the 

referring agency, including by 

requesting additional information, in 

accordance with statutory time frames 

for transferring unaccompanied children 

to ORR. 

At § 410.1101(b) and (c), ORR 

proposes timeframes for identifying, and 

notifying a referring Federal agency of 

ORR’s identification of, an appropriate 

placement for an unaccompanied child, 

and for accepting transfer of custody of 


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60See 8 U.S.C. 1232(b)(2) and (3). 

an unaccompanied child after a 

referring Federal agency determines that 

a child is an unaccompanied child who 

should be referred to ORR. At 

§ 410.1101(b), ORR proposes to codify 

its current policy that upon notification 

from any department or agency of the 

Federal Government that a child is an 

unaccompanied child and therefore 

must be transferred to ORR custody, 

ORR must identify an appropriate 

placement for the unaccompanied child 

and notify the referring Federal agency 

within 24 hours of receiving the 

referring agency’s notification whenever 

possible, and no later than 48 hours of 

receiving the referring agency’s 

notification, barring exceptional 

circumstances (see paragraph below). 

ORR believes that setting a maximum 

time frame of 48 hours for ORR to 

identify a placement and notify a 

referring Federal agency of ORR’s 

identification of a placement would 

help to expedite transfer of 

unaccompanied children from the 

referring Federal agency to ORR care, 

but also that certain exceptions to this 

time frame may be necessary in certain 

circumstances, as discussed in the 

following paragraph. Proposed 

§ 410.1101(c) would require ORR to 

work with the referring Federal 

department or agency to accept transfer 

of custody of the unaccompanied child, 

consistent with the statutory 

requirements at 8 U.S.C. 1232(b)(3) (the 

referring Federal agency must transfer 

custody of an unaccompanied child to 

HHS not later than 72 hours after 

determining that the child is an 

unaccompanied child, except in the 

case of exceptional circumstances). 

As noted above, the TVPRA provides 

that referring Federal agencies must 

transfer custody of unaccompanied 

children to HHS within 72 hours unless 

there are exceptional circumstances. In 

order to help facilitate this requirement 

in coordination with referring agencies, 

proposed § 410.1101(b) and (c) describe 

internal timeframes for ORR to identify 

and notify referring Federal agencies of 

placements and to accept transfer of 

custody from referring agencies. But 

ORR notes that it may in certain 

‘‘exceptional circumstances’’ be unable 

to timely identify placements for and 

help facilitate other agencies’ timely 

transfers of unaccompanied children to 

its custody. For purposes of proposed 

§ 410.1101(b) and (c), proposed 

§ 410.1101(d) describes circumstances 

which would prevent ORR from timely 

identifying a placement for an 

unaccompanied child or accepting 

transfer of custody. At proposed 

§ 410.1101(d), ORR describes these 

exceptional circumstances consistent 

with those described in paragraph 12.A 

of the FSA, some of which were also 

incorporated into the 2019 Final Rule at 

§ 410.202. The proposed ‘‘exceptional 

circumstances,’’ for ORR’s purposes, 

would include the following: (1) any 

court decree or court-approved 

settlement that requires otherwise; (2) 

an influx, as defined in proposed 

§ 410.1001; (3) an emergency, including 

a natural disaster, such as an earthquake 

or hurricane, and other events, such as 

facility fires or civil disturbances; (4) a 

medical emergency, such as a viral 

epidemic or pandemic among a group of 

unaccompanied children; (5) the 

apprehension of an unaccompanied 

child in a remote location, and (6) the 

apprehension of an unaccompanied 

child whom the referring agency 

indicates (i) poses a danger to self or 

others or (ii) has been charged with or 

has been convicted of a crime, or is the 

subject of delinquency proceedings, 

delinquency charge, or has been 

adjudicated delinquent, and additional 

information is essential in order to 

determine an appropriate ORR 

placement. Notably, the unavailability 

of documents will not necessarily 

prevent the prompt transfer of a child to 

ORR. In addition, ‘‘exceptional 

circumstances,’’ for ORR’s purposes, 

would include an act or event that could 

not be reasonably foreseen that prevents 

the placement of or accepting transfer of 

custody of an unaccompanied child 

within the proposed timeframes. Given 

the mandate under the TVPRA, 8 U.S.C. 

1232(c)(2), that ORR place an 

unaccompanied child in the least 

restrictive setting that is in the best 

interests of the unaccompanied child, 

subject to consideration of danger to 

self, danger to the community/others, 

and risk of flight, additional time may 

be needed in some circumstances to 

determine the most appropriate and safe 

placement that comports with the best 

interests of the unaccompanied child. 

Thus, ORR believes that this general 

exception for acts or events that could 

not be reasonably foreseen is 

appropriate to afford additional time to 

assess these considerations, though ORR 

is mindful of avoiding prolonged 

placements in DHS facilities that are not 

designed for the long-term care of 

children. As discussed previously, these 

proposed exceptional circumstances 

would, as appropriate, modify the 

timeframes applicable to ORR under 

proposed § 410.1101(b) and (c). 

ORR notes that the FSA also includes 

an exception to these timeframe 

requirements for unaccompanied 

children who do not speak English and 

for whom an interpreter is unavailable. 

However, ORR does not propose to 

include this as an exceptional 

circumstance for purposes of 

§ 410.1101(b) and (c). Because ORR is 

able to serve unaccompanied children 

regardless of their primary language 

through the use of telephonic 

interpreters, ORR does not view this as 

an insurmountable impediment to the 

prompt placement of unaccompanied 

children. In addition, the FSA includes 

an exception in which a reasonable 

person would conclude that an 

individual is an adult despite the 

individual’s claim to be an 

unaccompanied child. However, ORR 

does not propose to include this as an 

exceptional circumstance for purposes 

of proposed § 410.1101(b) and (c) 

because ORR does not believe that such 

a situation poses the type of urgency 

inherent in exceptional circumstances 

as described above. For further 

information on ORR’s proposed policies 

regarding age determinations, ORR 

refers readers to its discussion of 

proposed subpart H. 

As discussed previously, the TVPRA 

contemplates the referral and transfer of 

unaccompanied children to ORR from 

other Federal agencies or departments, 

requiring that, absent exceptional 

circumstances, such transfer must occur 

no later than 72 hours after determining 

that a child is an unaccompanied 

child.60 ORR seeks to accept transfer of 

unaccompanied children as quickly as 

possible after a placement has been 

identified within this time frame. In 

identifying placements for 

unaccompanied children, ORR balances 

the need for expeditious identification 

of placement with the need to ensure 

safe and appropriate placement in the 

best interests of the unaccompanied 

child, which necessitates a 

comprehensive review of information 

regarding an unaccompanied child’s 

background and needs before 

placement. Under existing policy, to 

determine the appropriate placement for 

an unaccompanied child, ORR requests 

and assesses extensive background 

information on the unaccompanied 

child from the referring agency, 

including the following: (1) how the 

referring agency made the determination 

that the child is an unaccompanied 

child; (2) health related information; (3) 

whether the unaccompanied child has 

any medication or prescription 

information, including how many days’ 

supply of the medication will be 

provided with the unaccompanied child 

when transferred into ORR custody; (4) 

biographical and biometric information, 


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61A Saravia class member is defined as a 

noncitizen minor who (1) came to the United States 

as an unaccompanied child, as defined at 6 U.S.C. 

279(g)(2); (2) was previously detained in the 

custody of the Department of Health and Human 

Services (HHS), Office of Refugee Resettlement 

(ORR) but then released to a sponsor by ORR; and 

(3) has been or will be rearrested by the Department 

of Homeland Security (DHS) on the basis of a 

removability warrant based in whole or in part on 

allegations of gang affiliation. In Saravia bond 

hearings DHS bears the burden to demonstrate 

changed circumstances since the minor’s release by 

ORR which demonstrate the minor is a danger to 

the community. DHS must demonstrate that 

circumstances have changed since the child’s 

release from ORR custody such that the child poses 

a danger to the community or is a flight-risk. See 

Order Certifying the Settlement Class and Granting 

Final Approval of Class Action Settlement, Saravia 

v. Barr, Case No.: 3:17–cv–03615 (N.D. Cal. Jan. 19, 

2021), ECF No. 249. 

62 8 U.S.C. 1232(b)(3). 

63See generally 6 U.S.C. 279(b)(1). 

64See FSA at paragraph 19 and Exhibit 3. 

such as name, gender, alien number, 

date of birth, country of birth and 

nationality, date(s) of entry and 

apprehension, place of entry and 

apprehension, manner of entry, and the 

unaccompanied child’s current location; 

(5) any information concerning whether 

the unaccompanied child is a victim of 

trafficking or other crimes; (6) whether 

the unaccompanied child was 

apprehended with a sibling or other 

relative; (7) identifying information and 

contact information for a parent, legal 

guardian, or other related adult 

providing care for the unaccompanied 

child prior to apprehension, if known, 

and information regarding whether the 

unaccompanied child was separated 

from a parent, legal guardian, or adult 

relative after apprehension, and the 

reason for separation; (8) if the 

unaccompanied child was apprehended 

in transit to a final destination, what the 

final destination was and who the 

unaccompanied child planned to meet 

or live with at that destination, if 

known; (9) whether the unaccompanied 

child is a runaway risk, and if so, the 

runaway risk indicators; (10) any 

information on a history of violence, 

juvenile or criminal background, or gang 

involvement known or suspected, risk 

of danger to self or others, state court 

proceedings, and probation; (11) if the 

unaccompanied child is being returned 

to ORR custody after arrest on alleged 

gang affiliation or involvement, ORR 

requests all documentation confirming 

whether the unaccompanied child is a 

Saravia class member and information 

on the Saravia hearing, including the 

date and time; 61 and (12) any particular 

needs or other information that would 

affect the care and placement of the 

unaccompanied child, including, as 

applicable, information about services, 

supports, or program modifications 

provided to the child on the basis of 

disability. 

Furthermore, the TVPRA places the 

responsibility for the transfer of custody 

on referring Federal agencies.62 ORR 

custody begins when it assumes 

physical custody from the referring 

agency. Proposed § 410.1101(e) would 

codify this practice, which is currently 

reflected at section 1.1 of the Policy 

Guide. 

Section 410.1102 Care Provider 

Facility Types 

Proposed § 410.1102 describes the 

types of care provider facilities in which 

unaccompanied children may be placed. 

The basis for this section is ORR’s 

statutory authority to make placement 

determinations for unaccompanied 

children in its care, as well as other 

responsibilities such as implementing 

policies with respect to their care and 

overseeing the infrastructure and 

personnel of facilities in which 

unaccompanied children reside.63

Specifically, this section proposes that 

ORR may place an unaccompanied 

child in a care provider facility as 

defined at proposed § 410.1001, 

including but not limited to shelters, 

group homes, individual family homes, 

heightened supervision facilities, or 

secure facilities, including RTCs. ORR 

proposes that it may also place 

unaccompanied children in out-ofnetwork (OON) placements under 

certain, limited circumstances, such as 

an OON RTC (which would need to 

meet the standards that apply to RTCs 

that are ORR care provider facilities) or 

a temporary stay at hospital (for 

example, for surgery). ORR would make 

such placements taking into account the 

considerations and criteria set forth in 

proposed §§ 410.1103 through 410.1109 

and 410.1901, as further discussed 

below. In addition, ORR proposes that 

in times of influx or emergency, as 

further discussed in proposed subpart I 

(Emergency and Influx Operations), 

ORR may place unaccompanied 

children in facilities that may not meet 

the standards of a standard program, but 

rather meet the standards in subpart I. 

ORR believes that this proposed 

provision is consistent with the FSA 

requirement that unaccompanied 

children be placed in licensed programs 

until such time as release can be 

effected or until immigration 

proceedings are concluded, except that 

in the event of an emergency or influx 

of children into the United States, ORR 

must place unaccompanied children 

into licensed programs as expeditiously 

as possible.64

Consistent with proposed § 410.1102, 

ORR would place unaccompanied 

children in group homes or individual 

family homes, including long-term and 

transitional home care settings, as 

appropriate, based on the 

unaccompanied child’s age and 

individualized needs and 

circumstances. Proposed definitions of 

‘‘ORR long-term home care’’ and ‘‘ORR 

transitional home care’’ are included in 

§ 410.1001, which would replace the 

terms ‘‘long-term foster care’’ and 

‘‘transitional foster care’’ as those terms 

are used in the definition of ‘‘traditional 

foster care’’ provided at 45 CFR 411.5. 

Where possible, ORR believes that based 

on an unaccompanied child’s age, 

individualized needs, and 

circumstances, as well as a care 

provider facility’s capacity, it should 

favor placing unaccompanied children 

in transitional and long-term home care 

settings while they are awaiting release 

to sponsors. Having said that, ORR notes 

that efforts to place more 

unaccompanied children out of 

congregate care shelters that house more 

than 25 children together is a long-term 

aspiration, given the large number of 

children in its custody and the number 

of additional programs that would be 

required to care for them in home care 

settings or small-scale shelters of 25 

children or less. Given this reality, care 

provider facilities structured and 

licensed to accommodate more than 25 

children continue to serve a vital role in 

meeting this need. 

Finally, for the final rule, ORR is also 

considering replacing its current longterm and transitional home care 

placement approach with a communitybased care model that would expand 

upon the current types of care provider 

facilities that may care for 

unaccompanied children in communitybased settings. This is in line with a 

vision of moving towards a framework 

of community-based care as described 

in the following paragraphs. ORR 

believes such a framework would be 

consistent with the language of this 

proposed rule and that ORR would be 

able to implement it in a manner 

consistent with this proposed rule. 

If ORR were to finalize the 

community-based care model in the 

final rule, references to ORR long-term 

home care and ORR transitional home 

care as used in this proposed rule would 

be replaced with the term communitybased care, and ORR would define 

‘‘community-based care’’ in § 410.1001 

as an ORR-funded and administered 

family or group home placement in a 

community-based setting, whether for a 

short-term or a long-term placement. 

The proposed definition of 


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‘‘community-based care’’ encompasses 

the term ‘‘traditional foster care’’ that is 

codified at existing § 411.5. 

‘‘Community-based care’’ would be a 

continuum of care that would include 

basic and therapeutic foster family 

settings as well as supervised 

independent living group home settings 

for unaccompanied children, which are 

funded and administered by ORR. It 

aims to more effectively place and 

support unaccompanied children who 

are best served in family settings, such 

as tender age unaccompanied children, 

pregnant/parenting unaccompanied 

children, unaccompanied children with 

extended stays, and unaccompanied 

children who are moving towards 

independent living or close to aging out 

of ORR care. Thus, a community-based 

care model would include placements 

in care provider facilities capable of 

accommodating unaccompanied 

children with both long-term (e.g., 

where there is no reasonable prospect of 

release to a sponsor) and short-term 

(e.g., rapid release expected) care needs. 

For purposes of UC Program 

management, the term communitybased care would encompass and 

replace the term ‘‘traditional foster care’’ 

provided at existing § 411.5 as well as 

the terms ‘‘ORR long-term home care’’ 

and ‘‘ORR transitional home care’’ as 

used in this proposed rule. Components 

of the ORR community-based care 

model would include caregivers (either 

the foster parent or the designated 

official for a child care institution, 

inclusive of care provider facility staff) 

providing care in a manner consistent 

with their state licensing requirements, 

such as exercising the Reasonable and 

Prudent Parent Standard, as defined at 

42 U.S.C. 675(10)(A), to make daily 

decisions on age-appropriate activities 

for the child. The Reasonable and 

Prudent Parent Standard is the standard 

characterized by careful and sensible 

parental decisions that maintain the 

health, safety, and best interests of a 

child, while at the same time 

encouraging the emotional and 

developmental growth of the child, that 

a caregiver shall use when determining 

whether to allow a child in foster care 

to participate in extracurricular, 

enrichment, cultural, and social 

activities. Under an ORR communitybased care model, when unaccompanied 

children are in community-based 

settings on an extended basis, they 

would be eligible to attend local schools 

under applicable school policies to the 

same extent that unaccompanied 

children in long-term home care 

placements can, to facilitate integration 

into the local community and the 

development of relationships with peers 

and adults. Under a community-based 

care model, caregivers would support: 

(1) unaccompanied children’s 

integration into their local communities, 

development of healthy and nurturing 

relationships with adults and peers, and 

engagement and connection to local 

services, activities, and opportunities; 

(2) the development of unaccompanied 

children’s independent living skills 

when they are of the age that supports 

transition to adulthood (e.g., 16 years or 

older); and (3) proactive permanency 

planning for unaccompanied children 

who do not have a viable sponsor, 

including identification of trusted 

adults and alternative care options that 

promote permanency for the 

unaccompanied children. Additionally, 

under a community-based care model, 

in consultation as appropriate with the 

child’s attorney or other relevant 

stakeholder such as a legal service 

provider or child advocate, ORR will 

consider a child’s eligibility for or 

access to legal relief (including, for 

example, a special immigrant juvenile 

predicate order) in a specific 

jurisdiction as part of the placement 

decision. ORR welcomes public 

comment on this vision of communitybased care, its inclusion as a care 

provider facility type in the final rule in 

place of ORR’s current long-term and 

transitional home care placement 

approach, and any other concerns 

relevant to this change based on existing 

language in the proposed rule. 

Section 410.1103 Considerations 

Generally Applicable to the Placement 

of an Unaccompanied Child 

Proposed § 410.1103 sets forth 

considerations generally applicable to 

the placement of unaccompanied 

children consistent with the TVPRA, 8 

U.S.C. 1232(c)(2)(A) and the FSA. The 

TVPRA mandates that ORR place each 

unaccompanied child in the least 

restrictive setting that is in the best 

interest of the unaccompanied child, 

with due consideration by HHS of 

danger to self, danger to community, 

and risk of flight. Similarly, paragraph 

11 of the FSA requires that each 

unaccompanied child be placed in the 

least restrictive setting appropriate to 

the child’s age and ‘‘special needs,’’ 

provided that such setting is consistent 

with the interest in ensuring the 

unaccompanied child’s timely 

appearance before DHS and the 

immigration courts and protecting the 

unaccompanied child’s well-being and 

that of others. Consistent with the 

statutory mandate and the FSA 

provision, as well as existing policy, 

under proposed § 410.1103(a), ORR 

would place each unaccompanied child 

in the least restrictive setting that is in 

the best interest of the unaccompanied 

child and appropriate to the 

unaccompanied child’s age and 

individualized needs, provided that 

such setting is consistent with the 

interest in ensuring the unaccompanied 

child’s timely appearance before DHS 

and the immigration courts and 

protecting the unaccompanied child’s 

well-being and that of others. 

ORR considers the following factors 

when evaluating an unaccompanied 

child’s best interest: the unaccompanied 

child’s expressed interests, in 

accordance with the unaccompanied 

child’s age and maturity; the 

unaccompanied child’s mental and 

physical health; the wishes of the 

unaccompanied child’s parents or legal 

guardians; the intimacy of 

relationship(s) between the 

unaccompanied child and the child’s 

family, including the interactions and 

interrelationship of the unaccompanied 

child with the child’s parents, siblings, 

and any other person who may 

significantly affect the unaccompanied 

child’s well-being; the unaccompanied 

child’s adjustment to the community; 

the unaccompanied child’s cultural 

background and primary language; 

length or lack of time the 

unaccompanied child has lived in a 

stable environment; individualized 

needs, including any needs related to 

the unaccompanied child’s disability; 

and the unaccompanied child’s 

development and identity. ORR also 

notes that its care provider facilities are 

usually congregate care settings. As a 

result, consistent with prioritizing the 

safety and well-being of all 

unaccompanied children, when making 

a placement determination, ORR 

evaluates the best interests of both the 

individual unaccompanied child being 

placed and the best interests of the other 

unaccompanied children at the care 

provider facility where the individual 

unaccompanied child may be placed. 

ORR notes that the factors and 

considerations in proposed 

§ 410.1103(b) and proposed § 410.1105 

also are evaluated in determining the 

best interest of the child for purposes of 

placement. 

ORR also proposes to use the term 

‘‘individualized needs,’’ in proposed 

§ 410.1103(a), rather than ‘‘special 

needs’’ (as used in the FSA and 

regulations established in the 2019 Final 

Rule at 45 CFR 410.201(a)), because it 

believes the term ‘‘special needs’’ has 

created confusion. The term ‘‘special 

needs’’ may imply that, in determining 

placement, ORR considers only a 

limited range of needs that fall within 


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65See 8 U.S.C. 1232(c). 

66See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 

1232(c)(2). 

67See 8 U.S.C. 1232(c)(2)(A); see also 2019 Final 

Rule at § 410.203(c). 

a special category. Instead, in assessing 

the appropriate placement of an 

unaccompanied child, ORR takes into 

account any need it becomes aware of 

that is specific to the individual being 

assessed, regardless of the nature of that 

need. In addition, the term ‘‘special 

needs’’ may imply that, in determining 

placement, ORR considers only those 

needs related to an unaccompanied 

child’s disability, which as explained, is 

not the case. To avoid the suggestion 

that, in determining placement of an 

unaccompanied child, ORR only takes 

into account a limited range of needs 

that fall within a special category, we 

are using the broader term 

‘‘individualized needs’’ for purposes of 

proposed § 410.1103(a). 

ORR further notes that as used in the 

FSA, including the considerations 

required at paragraph 11, ‘‘special 

needs’’ is not synonymous with 

disability or disability-related needs. 

The term ‘‘special needs’’ has no clear 

legal meaning; of note, it is not used in 

section 504 or the HHS implementing 

regulations at 45 CFR part 85. Aside 

from its particular usage in the FSA, the 

term ‘‘special needs’’ is often 

understood to be a placeholder or 

euphemism for ‘‘disability.’’ As with the 

term ‘‘handicapped,’’ ORR is concerned 

about perpetuating language that has 

become stigmatized over time. For these 

reasons, as discussed above at 

§ 410.1001, ORR invites comments 

concerning the continued use of the 

terms ‘‘special needs minor’’ or ‘‘special 

needs unaccompanied child’’ but has 

included these terms in the proposed 

rule in order to ensure consistency with 

the FSA. 

Under proposed § 410.1103(b), 

consistent with existing policy and with 

certain requirements under the 

TVPRA,65 ORR proposes that it would 

consider additional factors that may be 

relevant to the unaccompanied child’s 

placement, to the extent such 

information is available, including but 

not limited to the following: danger to 

self and the community/others, runaway 

risk, trafficking in persons or other 

safety concerns, age, gender, LGBTQI+ 

status, disability, any specialized 

services or treatment required or 

requested by the unaccompanied child, 

criminal background, location of 

potential sponsor and safe and timely 

release options, behavior, siblings in 

ORR custody, language access, whether 

the unaccompanied child is pregnant or 

parenting, location of the 

unaccompanied child’s apprehension, 

and length of stay in ORR custody. ORR 

believes that this information, to the 

extent available, is necessary for a 

comprehensive review of an 

unaccompanied child’s background and 

needs, and for appropriate and safe 

placement of an unaccompanied child. 

In addition, with respect to the 

consideration of whether any 

specialized services or treatments are 

required, ORR is aware of the 

importance of ascertaining an 

unaccompanied child’s health status, 

including the need for proximity to 

medical specialists, the child’s 

reproductive health status (such as 

information relating to pregnancy or 

post-partum status; use of birth control; 

and any recent procedures, medications, 

or current needs related to pregnancy), 

and whether the child is a victim of a 

sex crime (e.g., sexual assault, sex 

trafficking)), and other healthcare needs, 

upon entering ORR care in order to 

ensure the most appropriate placement, 

and relies on information provided from 

referring Federal agencies to make 

appropriate placements. For further 

discussion of proposed policies related 

to access to medical care, ORR refers 

readers to proposed § 410.1307(b). 

When it receives a referral of an 

unaccompanied child from another 

Federal agency, ORR documents and 

reviews the unaccompanied child’s 

biographical and apprehension 

information, as submitted by the 

referring Federal agency in ORR’s case 

management system, including any 

information about an unaccompanied 

child’s health status, including their 

reproductive health status and need for 

medical specialists. 

Under proposed § 410.1103(c), ORR 

would be able to utilize information 

provided by the referring Federal 

agency, child assessment tools, 

interviews, and pertinent 

documentation to determine the 

placement of all unaccompanied 

children. In addition, ORR proposes that 

it may obtain any relevant records from 

local, State, and Federal agencies 

regarding an unaccompanied child to 

inform placement decisions. Such 

information is vital in carrying out 

ORR’s general duty to coordinate the 

care and placement of unaccompanied 

children, including determining 

whether a restrictive placement may be 

necessary.66 ORR is proposing to add 

these provisions to the regulations to 

clarify the broad range of information it 

may utilize in making placement 

determinations. 

The TVPRA requires that the 

placement of an unaccompanied child 

in a secure facility be reviewed on a 

monthly basis to determine if such 

placement remains warranted.67 ORR 

notes that it exceeds the statutory 

requirement here because under its 

current policies all restrictive 

placements, not only secure placements, 

must be reviewed at least every thirty 

days. Proposed § 410.1103(d) would 

codify the practice of reviewing 

restrictive placements at least every 

thirty days to determine if such 

placements remain warranted. 

Additionally, in proposed 

§ 410.1103(e), ORR proposes to codify 

its existing policy that ORR make 

reasonable efforts to provide placements 

in those geographical areas where DHS 

encounters the majority of 

unaccompanied children. ORR believes 

this provision is justified in order to 

facilitate the orderly and expeditious 

transfer of children from DHS border 

facilities to ORR care provider facilities, 

which is in the child’s best interest. 

This requirement reflects the 

requirement at paragraph 6 of the FSA. 

ORR notes that in making any 

placement decision, it also would take 

into account the considerations set forth 

in proposed § 410.1103(a) and (b). 

Finally, ORR proposes at § 410.1103(f) 

to codify a requirement that care 

provider facilities accept all 

unaccompanied children placed by ORR 

at their facilities, except in limited 

circumstances. Such a requirement is 

consistent with ORR’s authority to make 

and implement placement 

determinations, and to oversee its care 

provider facilities, as established at 6 

U.S.C. 279(b)(1). Consistent with 

existing policy, under proposed 

§ 410.1103(f), a care provider facility 

may only deny ORR’s request for 

placement based on the following 

reasons: (1) lack of available bed space; 

(2) the placement of the unaccompanied 

child would conflict with the care 

provider facility’s state or local 

licensing rules; (3) the initial placement 

involves an unaccompanied child with 

a significant physical or mental illness 

for which the referring Federal agency 

does not provide a medical clearance; or 

(4) in the case of the placement of an 

unaccompanied child with a disability, 

the care provider facility concludes it is 

unable to meet the child’s disabilityrelated needs without fundamentally 

altering its program, even by providing 

reasonable modifications and even with 

additional support from ORR. ORR 

proposes that if a care provider facility 

wishes to deny a placement, it must 

make a written request to ORR 

providing the individualized reasons for 


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68 8 U.S.C. 1232(c)(2)(A). 

the denial. ORR proposes that any such 

request must be approved by ORR 

before the care provider facility may 

deny a placement. In addition, under 

proposed § 410.1103(f), ORR would be 

able to follow up with a care provider 

facility about a placement denial to find 

a solution to the reason for the denial. 

ORR is not proposing to codify in 

subpart B the provisions finalized in the 

2019 Final Rule at § 410.201(b) or (e), 

which were based on requirements set 

forth in paragraph 12A of the FSA. The 

2019 Final Rule at § 410.201(b) provided 

that ORR separates unaccompanied 

children from delinquent offenders. 

However, ORR notes that paragraph 12A 

of the FSA concerns detention of 

unaccompanied children following 

arrest by the former INS, and currently 

DHS, before transfer of custody to ORR. 

ORR is not involved in the 

apprehension or encounter of 

unaccompanied children or their 

immediate detention following 

apprehension or encounter and thus 

ORR proposes to omit this provision 

from this regulation. Having said that, 

ORR proposes that it will apply the 

facility standards described as 

paragraph 12A of the FSA to its care 

provider facilities, consistent with 

standards set forth in proposed subpart 

D (Minimum Standards and Required 

Services) and proposed subpart I 

(Emergency and Influx Operations). 

The 2019 Final Rule at § 410.201(c) 

provides that if there is no appropriate 

licensed program immediately available 

for placement, and no one to whom 

ORR may release an unaccompanied 

child, the unaccompanied child may be 

placed in an ORR-contracted facility, 

having separate accommodations for 

children, or a state or county juvenile 

detention facility, shall be separated 

from delinquent offenders, and that 

every effort must be taken to ensure the 

safety and well-being of the 

unaccompanied child detained in these 

facilities. ORR proposes omitting this 

provision from these regulations. This 

provision was also based on paragraph 

12A of the FSA, which concerns 

detention of the unaccompanied child 

following arrest by the former INS, and 

currently following encounter by DHS, 

before transfer of custody to placement 

in an ORR care provider facility. 

Instead, consistent with existing 

policies, under proposed § 410.1101(b) 

ORR would identify an appropriate 

placement for the unaccompanied child 

at a care provider facility within 24 

hours of receiving the referring agency’s 

notification, whenever possible, and no 

later than 48 hours of receiving such 

notification, barring exceptional 

circumstances. Also, as further 

discussed in the next section 

(addressing proposed § 410.1104), in the 

event of an emergency or influx of 

unaccompanied children into the 

United States, ORR would place 

unaccompanied children as 

expeditiously as possible in accordance 

with proposed subpart I (Emergency and 

Influx Operations). 

Section 410.1104 Placement of an 

Unaccompanied Child in a Standard 

Program That Is Not Restrictive 

At proposed § 410.1104, ORR 

proposes to codify substantive criteria 

for placement of an unaccompanied 

child in a standard program that is not 

a restrictive placement. The TVPRA 

requires ORR to promptly place 

unaccompanied children ‘‘in the least 

restrictive setting that is in the best 

interest of the child,’’ and states that in 

making such placements ORR ‘‘may 

consider danger to self, danger to the 

community, and risk of flight.’’ 68 ORR 

also notes that under paragraph 19 of 

the FSA, with certain exceptions, an 

unaccompanied child must be placed 

temporarily in a licensed program until 

release can be effectuated or until 

immigration proceedings are concluded. 

Consistent with the TVPRA and existing 

policy, under proposed § 410.1104, ORR 

would place all unaccompanied 

children in a standard program that is 

not a restrictive placement (in other 

words, that is not a heightened 

supervision facility) after the 

unaccompanied child is transferred to 

ORR legal custody, except in the 

following circumstances: (a) the 

unaccompanied child meets the criteria 

for placement in a restrictive placement 

set forth at proposed § 410.1105; or (b) 

in the event of an emergency or influx 

of unaccompanied children into the 

United States, in which case ORR shall 

place the unaccompanied child as 

expeditiously as possible in accordance 

with proposed subpart I (Emergency and 

Influx Operations). ORR understands 

these exceptions to be consistent with 

placement considerations described in 

the TVPRA at 8 U.S.C. 1232(c)(2)(A) 

(noting, for example, that in making 

placements HHS ‘‘may consider danger 

to self, danger to the community, and 

risk of flight’’), and exceptions provided 

for in section paragraph 19 of the FSA. 

ORR does not propose to codify 

certain other exceptions described in 

the FSA and included in the 2019 Final 

Rule at § 410.202(b) and (d). The 2019 

Final Rule at § 410.202(b) provided that 

unaccompanied children do not have to 

be placed in a standard program as 

otherwise required by any court decree 

or court-approved settlement. ORR does 

not believe it is necessary to include 

this exception, as any court decree or 

settlement that would require ORR to 

implement placement criteria that differ 

from those at proposed § 410.1104 

would take effect pursuant to its own 

terms even without specifying these 

potential circumstances in the 

regulation. Section 410.202(d) provided 

that an unaccompanied child does not 

have to be placed in a standard program 

if a reasonable person would conclude 

that the unaccompanied child is an 

adult despite the individual’s claims to 

be a child. ORR also does not believe it 

is necessary to include this exception in 

proposed § 410.1104 because a person 

determined by ORR to be an adult (has 

attained 18 years of age) would be 

excluded from the definition of 

unaccompanied child and thus would 

not be placed in any ORR care provider 

facility (see proposed subpart H for 

discussion of age determinations). 

Section 410.1105 Criteria for Placing 

an Unaccompanied Child in a 

Restrictive Placement 

Proposed § 410.1105 addresses the 

criteria for placing unaccompanied 

children in restrictive placements. As 

defined in proposed § 410.1001, 

restrictive placements would include 

secure facilities, heightened supervision 

facilities, and RTCs. The proposed 

criteria for placement in each of these 

facilities are further discussed below. 

Proposed § 410.1105(a) addresses 

placement at secure facilities that are 

not RTCs. At proposed § 410.1105(a)(1), 

ORR proposes that, consistent with 

existing policies, it may place an 

unaccompanied child in a secure 

facility (that is not also an RTC) either 

upon referral from another agency or 

department of the Federal Government 

(i.e., as an initial placement), or through 

a transfer to another care provider 

facility after the initial placement. 

Under proposed § 410.1105(a)(2), ORR 

would not place an unaccompanied 

child in a secure facility (that is not also 

an RTC) if less restrictive alternative 

placements are available. Such 

placements must also be appropriate 

under the circumstances, and in the best 

interests of the unaccompanied child. In 

determining whether there is a less 

restrictive placement available to meet 

the individualized needs of an 

unaccompanied child with a disability, 

consistent with section 504 of the 

Rehabilitation Act, 29 U.S.C. 794(a), 

ORR must consider whether there are 

any reasonable modifications to the 

policies, practices, or procedures of an 

available less restrictive placement or 

any provision of auxiliary aids and 


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69See 8 U.S.C. 1232(c)(2)(A) (‘‘A child shall not 

be placed in a secure facility absent a determination 

that the child poses a danger to self or others or has 

been charged with having committed a criminal 

offense.’’). 

70See, e.g., 8 U.S.C. 1232(c)(2)(A) (requiring that 

unaccompanied children ‘‘shall be promptly placed 

in the least restrictive setting that is in the best 

interest of the child.’’). 

71FSA at paragraph 21C. 

services that would allow the 

unaccompanied child with a disability 

to be placed in that less restrictive 

facility. However, ORR is not required 

to take any action that it can 

demonstrate would result in a 

fundamental alteration in the nature of 

a program or activity. The proposed 

regulation text is consistent with 8 

U.S.C. 1232(c)(2)(A). Also, ORR notes 

that this proposed requirement is 

consistent with paragraph 23 of the 

FSA, which provides that ORR may not 

place an unaccompanied child in a 

secure facility if there are less restrictive 

alternatives that are available and 

appropriate in the circumstances. Under 

the FSA, less restrictive alternatives 

include transfer to (a) a medium 

security facility, which is equivalent to 

‘‘heightened supervision facility’’ as 

defined at proposed § 410.1001, or (b) 

another licensed program, a term which 

for purposes of this proposed rule is 

superseded by ‘‘standard program’’ as 

defined at proposed § 410.1001. 

Consistent with the FSA, ORR further 

proposes in § 410.1105(a)(2) that it may 

place an unaccompanied child in a 

heightened supervision facility or other 

non-secure care provider facility as an 

alternative, provided that the 

unaccompanied child does not pose a 

danger to self or others. ORR believes 

that such alternative placements may 

not be appropriate for unaccompanied 

children who pose a danger to self or 

others, as less restrictive placements 

may not have the level of staff 

supervision and requisite security 

procedures to address the needs of such 

unaccompanied children. 

ORR proposes to place 

unaccompanied children in secure 

facilities (that are not RTCs) in limited, 

enumerated circumstances set forth at 

proposed § 410.1105(a)(3). Specifically, 

ORR proposes that it may place an 

unaccompanied child in a secure 

facility (that is not an RTC) only if the 

unaccompanied child meets one of three 

criteria. First, ORR proposes at 

§ 410.1105(a)(3)(i) that it may place the 

unaccompanied child in a secure 

facility (that is not an RTC) if the 

unaccompanied child has been charged 

with or has been convicted of a crime, 

or is the subject of delinquency 

proceedings, a delinquency charge, or 

has been adjudicated delinquent, and 

where ORR deems that those 

circumstances demonstrate that the 

unaccompanied child poses a danger to 

self or others, not including: (1) an 

isolated offense that was not within a 

pattern or practice of criminal activity 

and did not involve violence against a 

person or the use or carrying of a 

weapon; or (2) a petty offense, which is 

not considered grounds for stricter 

means of detention in any case. These 

proposed provisions were also included 

in the 2019 Final Rule at § 410.203(a)(1), 

except that proposed § 410.1105(a)(3) 

omits language from the FSA and 

previous § 410.203(a)(1) that allows an 

unaccompanied child to be placed in a 

secure facility if the unaccompanied 

child is ‘‘chargeable with a delinquent 

act’’ (which under the FSA means that 

ORR has probable cause to believe that 

the unaccompanied child has 

committed a specified offense). ORR 

believes it is appropriate to omit such 

language because being ‘‘chargeable’’ 

with an offense is not a permissible 

reason for placement in a secure facility 

identified by the TVPRA.69 Further, 

because it is not a law enforcement 

agency, unlike the former INS, ORR is 

not in a position to make determinations 

such as whether an unaccompanied 

child is ‘‘chargeable.’’ Even without this 

language, ORR believes this proposed 

provision is consistent with the 

substantive criteria of the FSA. 

Furthermore, consistent with 8 U.S.C. 

1232(c)(2)(A) (which does not list 

runaway risk as a permissible reason for 

placement in a secure facility), ORR 

does not propose runaway risk as a 

factor in determining placement in a 

secure facility, even though that is a 

permissible ground under the FSA for 

placement in a secure facility. 

Second, ORR proposes in 

§ 410.1105(a)(3)(ii) that it may place an 

unaccompanied child in a secure 

facility (that is not an RTC) if the 

unaccompanied child, while in DHS or 

ORR custody, or while in the presence 

of an immigration officer, ORR official, 

or ORR contracted staff, has committed, 

or has made credible threats to commit, 

a violent or malicious act (whether 

directed at the unaccompanied child or 

others). The 2019 Final Rule at 

§ 410.203(a)(2) and paragraph 21B of the 

FSA contain a similar provision, except 

that in contrast to § 410.203(a)(2) and 

the FSA, this proposed provision would 

include acts committed in the presence 

of an ‘‘ORR official or ORR contracted 

staff.’’ ORR believes that the addition of 

this language is appropriate given that 

ORR officials and contracted staff would 

more often be in a position to observe 

an unaccompanied child’s behavior and 

actions and to assess whether an 

unaccompanied child has committed, or 

made credible threats to commit, the 

acts referenced in this provision. Again, 

ORR does not believe this proposed 

change constitutes a substantive 

deviation from the requirements of the 

FSA. 

Third, ORR proposes at 

§ 410.1105(a)(3)(iii) that it may place an 

unaccompanied child in a secure 

facility (that is not an RTC) if the 

unaccompanied child has engaged, 

while in a restrictive placement, in 

conduct that has proven to be 

unacceptably disruptive of the normal 

functioning of the care provider facility, 

and removal is necessary to ensure the 

welfare of the unaccompanied child or 

others, as determined by the staff of the 

care provider facility (e.g., substance or 

alcohol use, stealing, fighting, 

intimidation of others, or sexually 

predatory behavior), and ORR 

determines the unaccompanied child 

poses a danger to self or others based on 

such conduct. The 2019 Final Rule 

contained a similar provision at 

§ 410.203(a)(3), which was based on 

paragraph 21C of the FSA. But in 

contrast to § 410.203(a)(3) of the 2019 

Final Rule and the FSA, the proposed 

provision requires that the conduct at 

issue be engaged in while in a 

‘‘restrictive placement,’’ rather than a 

‘‘licensed program.’’ ORR believes that 

such disruptive behavior should 

initially result in potential transfer to a 

heightened supervision facility before 

placement in a secure facility (that is 

not an RTC)—in other words, that 

disruptive behavior in a standard 

program that is not a restrictive 

placement should not result in 

immediate transfer, or ‘‘step up,’’ to 

such a secure facility. As discussed 

above, the 2019 Final Rule was intended 

to implement the provisions of the FSA 

that relate to HHS; however, ORR is 

proposing this change in order to ensure 

that unaccompanied children in such 

circumstances are stepped up to a more 

structured program rather than being 

immediately placed in a secure facility. 

ORR believes this update is consistent 

with its authorities under the HSA and 

TVPRA,70 and does not believe it 

constitutes a substantive deviation from 

the requirements of the FSA, which 

provides that unaccompanied children 

‘‘may’’ be transferred to secure facilities 

based on unacceptably disruptive 

conduct where transfer is necessary to 

ensure the welfare of the 

unaccompanied child or others but does 

not require such transfer.71


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72See also Order Re Plaintiffs’ Motion to Enforce 

Class Action Settlement at *11, Flores vs. Sessions, 

No. 2:85–cv–04544, (C.D. Cal. Jul. 30, 2018), ECF 

No. 470 (ordering ORR to transfer all 

unaccompanied children placed at a particular RTC 

out of that facility unless a licensed psychologist or 

psychiatrist determined that a particular child 

posed a risk of harm to self or others). 73 8 U.S.C. 1232(c)(2)(A) (‘‘In making such 

placements, the Secretary may consider danger to 

self, danger to the community, and risk of flight.’’). 74See 6 U.S.C. 279(b)(1)(G). 

At proposed § 410.1105(b), ORR 

outlines the policies and criteria that it 

would apply in placing unaccompanied 

children in heightened supervision 

facilities. The term ‘‘heightened 

supervision facility,’’ as defined at 

proposed § 410.1001, would be used in 

place of the term ‘‘medium secure’’ 

facility provided in the FSA, and in 

place of the term ‘‘staff secure facility’’ 

currently used by ORR in its regulations 

and sub-regulatory guidance. ORR 

believes that the term ‘‘heightened 

supervision facility,’’ as defined in this 

proposed rule, better reflects the nature 

and purpose of such facilities, which is 

to provide care to unaccompanied 

children who require close supervision 

but do not need placement at a secure 

facility, including an RTC. As reflected 

in the proposed definition, heightened 

supervision facilities maintain stricter 

security measures than a shelter such as 

intensive staff supervision in order to 

provide supports, manage problem 

behavior and prevent an 

unaccompanied child from running 

away. ORR proposes at § 410.1105(b)(1) 

that it may place unaccompanied 

children in this type of facility either at 

initial placement (upon referral from 

another agency or department of the 

Federal Government) or through a 

transfer from the initial placement. 

Furthermore, at proposed 

§ 410.1105(b)(2), ORR proposes to 

codify factors it would consider in 

determining whether to place 

unaccompanied children in a 

heightened supervision facility. 

Specifically, ORR would consider if the 

unaccompanied child (1) has been 

unacceptably disruptive to the normal 

functioning of a shelter such that 

transfer is necessary to ensure the 

welfare of the unaccompanied child or 

others; (2) is a runaway risk, based on 

the criteria at proposed § 410.1107; (3) 

has displayed a pattern of severity of 

behavior, either prior to entering ORR 

custody or while in ORR care, that 

requires an increase in supervision by 

trained staff; (4) has a non-violent 

criminal or delinquent history not 

warranting placement in a secure 

facility, such as isolated or petty 

offenses as described previously; or (5) 

is assessed as ready for step-down from 

a secure facility, including an RTC. ORR 

believes that each of these proposed 

criteria identifies pertinent background 

and behavioral concerns that may 

warrant heightened supervision, rather 

than placement in a secure facility, 

including an RTC, consistent with the 

purpose of heightened supervision 

facilities. 

Proposed § 410.1105(c) sets forth the 

criteria ORR would consider for placing 

an unaccompanied child in an RTC, as 

defined at proposed § 410.1001. ORR 

would place an unaccompanied child at 

an RTC only if it is the least restrictive 

setting that is in the best interest of the 

unaccompanied child and appropriate 

to the unaccompanied child’s age and 

individualized needs, consistent with 

the TVPRA at 8 U.S.C. 1232(c)(2)(A) 

(‘‘an unaccompanied alien child shall be 

promptly placed in the least restrictive 

setting that is in the best interest of the 

child.’’). Similar to other secure 

facilities and heightened supervision 

facilities, ORR proposes that an 

unaccompanied child may be placed at 

an RTC both as an initial placement 

upon referral from another agency or 

department of the Federal Government, 

and upon transfer from another care 

provider facility. In addition, ORR 

proposes at § 410.1105(c)(1) that 

unaccompanied children who have 

serious mental or behavioral health 

issues may be placed in an RTC only if 

the unaccompanied child is evaluated 

and determined to be a danger to self or 

others by a licensed psychologist or 

psychiatrist consulted by ORR or a care 

provider facility, which includes a 

determination by clear and convincing 

evidence documented in the 

unaccompanied child’s case file or 

referral documentation by a licensed 

psychologist or psychiatrist that an RTC 

is appropriate. This requirement is 

consistent with the factors the Secretary 

of HHS may consider under the TVPRA 

at 8 U.S.C. 1232(c)(2)(A) in making 

placement determinations for 

unaccompanied children and was also 

included in the 2019 Final Rule at 

§ 410.203(a)(4).72 ORR also notes that 

when it determines whether placement 

in an RTC, or any care provider facility 

is appropriate, it considers the best 

interests not only of the unaccompanied 

child being placed, but also the best 

interests of other unaccompanied 

children who are housed at the 

proposed receiving care provider 

facility, including their safety and wellbeing. ORR believes it is authorized to 

consider these factors under the 

TVPRA.73 ORR also considers the safety 

of care provider facility staff when 

making placement determinations for 

unaccompanied children, consistent 

with its duty to oversee the 

infrastructure and personnel of facilities 

in which unaccompanied children 

reside.74 For an unaccompanied child 

with one or more disabilities, consistent 

with section 504 of the Rehabilitation 

Act, 29 U.S.C. 794(a), the determination 

whether to place the unaccompanied 

child in an RTC would need to consider 

whether reasonable modifications to 

policies, practices, and procedures in 

the unaccompanied child’s current 

placement or any provision of auxiliary 

aids or services, could sufficiently 

reduce the danger to the child or others. 

However, ORR is not required to take 

any action that it can demonstrate 

would result in a fundamental alteration 

in the nature of a program or activity. 

Finally, consistent with its existing 

policies, ORR proposes at 

§ 410.1105(c)(1) that it would use the 

criteria for placement in a secure facility 

described at proposed § 410.1105(a) to 

assess whether the unaccompanied 

child is a danger to self or others. ORR 

believes that it is appropriate to apply 

these criteria in making this assessment 

in the context of RTC placement, 

because all secure facilities (including 

RTCs) are intended for unaccompanied 

children who pose a danger to self and 

others (although RTCs are intended for 

unaccompanied children who also have 

a serious mental health or behavioral 

health issue that warrants placement in 

an RTC). 

Consistent with existing policies, 

under proposed § 410.1105(c)(2), ORR 

would be able to place an 

unaccompanied child at an out-ofnetwork (OON) RTC when a licensed 

clinical psychologist or psychiatrist 

consulted by ORR or a care provider 

facility has determined that the 

unaccompanied child requires a level of 

care only found in an OON RTC (either 

because the unaccompanied child has 

identified needs that cannot be met 

within the ORR network of RTCs or no 

placements are available within ORR’s 

network of RTCs), or that an OON RTC 

would best meet the unaccompanied 

child’s identified needs. Also consistent 

with existing policies, in these 

circumstances, even though an 

unaccompanied child would be 

physically located at the OON RTC, the 

unaccompanied child would remain in 

ORR legal custody. ORR would monitor 

the unaccompanied child’s progress and 

ensure the unaccompanied child is 

receiving required services. OON RTCs 

are vetted prior to placement via state 

licensing authorities to ensure that the 

program is in good standing and is 


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75 53 FR 25591, 25600 (July 8, 1988). 

76 8 U.S.C. 1232(c)(2)(A). Note that 8 U.S.C. 

1232(c)(2)(A) does not list risk of flight as a ground 

for placing an unaccompanied child in a secure 

facility. Therefore, even though paragraph 21.D of 

the FSA states that being an escape risk (or runaway 

risk as proposed in this rule) is a ground upon 

which ORR may place an unaccompanied child in 

a secure facility, ORR does not propose in this rule 

that runaway risk is a basis for placement in a 

secure facility. 

complying with all applicable state 

welfare laws and regulations and state 

and local building, fire, health, and 

safety codes. ORR also may confer with 

other Federal agencies and nongovernmental stakeholders (e.g., the 

protection and advocacy (P&A) systems) 

when vetting OON RTCs to determine, 

in its discretion, the appropriateness of 

such OON RTCs for placement of 

unaccompanied children. ORR 

appreciates that P&As may have 

valuable information relating to the 

vetting process because they may have 

prior experience with certain facilities 

with respect to their past care and 

treatment of individuals with 

disabilities (e.g., findings of abuse and 

neglect, compliance issues). 

Under proposed § 410.1105(c)(3), the 

criteria for placement in or transfer to an 

RTC would also apply to transfers to or 

placements in OON RTCs (that is, the 

clinical criteria considered in placing an 

unaccompanied child at an RTC level of 

care would not change regardless of 

whether the RTC is in ORR’s network or 

OON). Proposed § 410.1105(c)(3) would 

also permit care provider facilities to 

request that ORR transfer certain 

unaccompanied children to RTCs. 

Proposed § 410.1601(d), discussed later 

in this preamble, further addresses 

when a care provider facility may make 

such a request. 

Section 410.1106 Unaccompanied 

Children Who Need Particular Services 

and Treatment 

Proposed § 410.1106 would codify the 

requirements for ORR when placing 

unaccompanied children assessed to 

have a need for particular services, 

equipment, and treatment by staff. This 

section satisfies and updates paragraph 

7 of the FSA, which requires ORR to 

assess unaccompanied children to 

determine if they have ‘‘special needs,’’ 

and, if so, to place such unaccompanied 

children, whenever possible, in licensed 

programs in which ORR places 

unaccompanied children without 

‘‘special needs,’’ but which provide 

services and treatment for such ‘‘special 

needs.’’ As indicated by the definition 

for ‘‘special needs unaccompanied 

child’’ from the FSA and included 

above at proposed § 410.1001, an 

unaccompanied child is considered to 

have ‘‘special needs’’ if ORR determines 

that the unaccompanied child has a 

mental and/or physical condition that 

requires particular services and 

treatment by staff. ORR may determine 

that an unaccompanied child needs 

particular services and treatment by 

staff for a variety of reasons including, 

but not limited to, those delineated 

within the definition of ‘‘special needs 

unaccompanied child’’ and specified in 

paragraph 7 of the FSA. For this reason, 

ORR is proposing this section without 

limiting its scope to ‘‘special needs 

unaccompanied child.’’ ORR notes that 

an unaccompanied child may need 

particular services and treatment due to 

a disability, as defined at proposed 

§ 410.1001, but not all unaccompanied 

children with disabilities necessarily 

require particular services and treatment 

by staff. Likewise, an unaccompanied 

child does not need to have been 

identified as having a disability to be 

determined to require particular 

services and treatment to meet their 

individualized needs. 

To avoid confusion, ORR refers in this 

section to unaccompanied children with 

individualized needs rather than using 

the outdated ‘‘special needs’’ 

terminology found in the FSA at 

paragraph 7. As noted above regarding 

proposed § 410.1103, the term ‘‘special 

needs’’ has created confusion and may 

imply that in determining placement, 

ORR considers only a limited range of 

needs that fall within a special category. 

Instead, in assessing the appropriate 

placement of an unaccompanied child, 

ORR considers any need it becomes 

aware of that is specific to each 

unaccompanied child being assessed, 

regardless of the nature of that need. 

The examples provided in this section 

of individualized needs that may 

require particular services, equipment, 

and treatment by staff are illustrative, 

and not exhaustive. Furthermore, as also 

discussed above at proposed 

§§ 410.1001 and 410.1103, ORR is 

concerned about using the term ‘‘special 

needs’’ given its association as a 

placeholder or euphemism for disability 

whereas this section does not apply 

only to unaccompanied children with 

disabilities who require particular 

services and treatment. 

ORR also notes that this section 

incorporates the preference for inclusive 

placements that serve unaccompanied 

children with a diversity of needs, 

including the need for particular 

services or treatments, whenever 

possible, as provided in paragraph 7 of 

the FSA, and particular equipment. This 

section is distinct from, but in 

alignment with, HHS’ implementing 

regulation for section 504 of the 

Rehabilitation Act of 1973 at 45 CFR 

85.21(d) that prohibits discrimination 

on the basis of disability by requiring 

that the agency administer programs 

and activities in the most integrated 

setting appropriate to the needs of 

individuals with disabilities. The most 

integrated setting appropriate to the 

needs of an individual with a disability 

is a setting that enables individuals with 

disabilities to interact with individuals 

without disabilities to the fullest extent 

possible.75

Section 410.1107 Considerations 

When Determining Whether an 

Unaccompanied Child Is a Runaway 

Risk for Purposes of Placement 

Decisions 

Proposed § 410.1107 would codify 

factors that ORR considers in 

determining whether an unaccompanied 

child is a runaway risk for purposes of 

placement decisions. As described in 

§ 410.1001, the FSA and ORR policy 

currently use the term ‘‘escape risk,’’ 

and ORR proposes in this proposed rule 

to update the terminology to ‘‘runaway 

risk’’ and also proposes to update the 

definition provided in the FSA. ORR 

notes that the TVPRA provides that 

HHS ‘‘may’’ consider ‘‘risk of flight,’’ 

among other factors, when making 

placement determinations.76 As 

proposed, ORR would interpret ‘‘risk of 

flight,’’ which is used in immigration 

law regarding an individual’s risk of not 

appearing for their immigration 

proceedings, as including runaway risk. 

In its discretion, ORR considers these 

runaway risk factors when evaluating 

whether to transfer an unaccompanied 

child to another care provider facility, 

in accordance with proposed 

§ 410.1601. For example, an 

unaccompanied child may be 

transferred from a non-secure level of 

care to a heightened supervision facility 

where there is higher staff ratio and a 

secure perimeter (stepped up) if ORR 

determines the unaccompanied child is 

a runaway risk in accordance with 

proposed § 410.1107. 

Proposed § 410.1107(a) through (c) 

would codify the risk factors to consider 

when evaluating whether an 

unaccompanied child is a runaway risk 

for purposes of placement. These factors 

are consistent with paragraph 22 of the 

FSA, which are also included in the 

2019 Final Rule at § 410.204. 

Specifically, ORR proposes it would 

consider the following factors: (a) 

whether the unaccompanied child is 

currently under a final order of removal 

(i.e., the unaccompanied child has a 

legal duty to report for deportation); (b) 

whether the unaccompanied child’s 

immigration history includes: (1) a prior 


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77See FSA at paragraph 22 (‘‘Factors to consider 

when determining whether a minor is an escaperisk or not include, but are not limited to . . .’’). 

78Existing § 410.204 also does not limit ORR to 

considering just the factors listed in the regulation 

and states ‘‘ORR considers, among other factors 

. . .’’ 

79See, e.g., 6 U.S.C. 279(b)(1)(B) (making ORR 

responsible for ‘‘ensuring that the interests of the 

child are considered in decisions and actions 

relating to the care and custody of an 

unaccompanied alien child’’). 

breach of bond, (2) a failure to appear 

before DHS or the immigration court, (3) 

evidence that the unaccompanied child 

is indebted to organized smugglers for 

their transport, or (4) a previous removal 

from the U.S. pursuant to a final order 

of removal; and (c) whether the 

unaccompanied child has previously 

absconded or attempted to abscond from 

state or Federal custody. ORR notes that 

under paragraph 22(B) of the FSA, a 

voluntary departure from the U.S. by the 

unaccompanied child is also a risk 

factor. Based on ORR’s experience in 

placing an unaccompanied child, ORR 

proposes not to codify whether the 

child’s immigration history includes a 

voluntary departure because this factor 

has not been relevant in determining 

whether the child is a runaway risk. 

ORR notes that paragraph 22 of the 

FSA provides a non-exhaustive list of 

factors to consider when evaluating 

runaway risk.77 78 Consistent with this 

language, as well as with ORR’s 

authority generally to consider runaway 

risk in making placement 

determinations, ORR proposes 

additional factors at § 410.1107(d) and 

(e) for ORR to consider when 

determining whether an unaccompanied 

child is a runaway risk for purposes of 

placement decisions. Proposed 

§ 410.1107(d) would require ORR to 

consider whether the unaccompanied 

child has displayed behaviors indicative 

of flight or has expressed intent to run 

away. Under proposed § 410.1107(e), 

ORR would consider evidence that the 

unaccompanied child is indebted to, 

experiencing a strong trauma bond to, or 

is threatened by a trafficker in persons 

or drugs, in determining whether the 

unaccompanied child is a runaway risk. 

ORR developed this proposal through 

its practical experience of making 

runaway risk placement decisions and 

believes it is appropriate to add as an 

additional factor to consider. ORR seeks 

public comment on these proposed 

factors and welcomes feedback on other 

factors ORR should or should not 

consider when determining if an 

unaccompanied child is a runaway risk 

for purposes of placement decisions. 

Section 410.1108 Placement and 

Services for Children of Unaccompanied 

Children 

At proposed § 410.1108, ORR 

proposes the requirements for the 

placement of children of 

unaccompanied children and services 

they would receive while in ORR care. 

ORR believes that when unaccompanied 

children are parents of children, it is in 

the best interests of the children to be 

placed in the same facility as their 

unaccompanied children parents. 

Accordingly, ORR proposes at 

§ 410.1108(a) to codify its existing 

policy that it will place unaccompanied 

children and their children together at 

the same care provider facilities, except 

in unusual or emergency situations. 

ORR considered limiting this proposal 

to the biological children of 

unaccompanied children; however, at 

the time of intake and placement, it may 

not be known whether the children are 

the biological children of the 

unaccompanied children. Accordingly, 

ORR proposes to not limit this proposal 

to the biological children of 

unaccompanied children and instead 

proposes broader language to allow for 

flexibility in placing unaccompanied 

children and their children to account 

for other situations (for example, the 

unaccompanied child may not be the 

biological parent of a child but is the 

child’s caretaker). 

Consistent with existing policy, and 

with its responsibility to consider the 

best interests of children in making 

placement decisions, ORR proposes that 

unusual or emergency situations would 

include, but not be limited to: 

hospitalization or need for a specialized 

care or treatment setting that cannot 

provide appropriate care for the child of 

the unaccompanied child; a request by 

the unaccompanied child for alternate 

placement of the child of the 

unaccompanied child; and when the 

unaccompanied child is the subject of 

substantiated allegations of abuse or 

neglect against the child of the 

unaccompanied child (or temporarily in 

urgent cases where there is sufficient 

evidence of child abuse or neglect 

warranting temporary separation for the 

child’s protection). ORR proposes to 

codify these requirements into 

regulation at § 410.1108(a)(1) through 

(3). 

ORR is aware that children of 

unaccompanied children may not be 

unaccompanied children within the 

definition provided in the HSA at 6 

U.S.C. 279(g)(2). For example, a child 

born in the United States will likely be 

a U.S. citizen at birth under section 

1401(a) of the Immigration and 

Nationality Act, 8 U.S.C. 1401(a), and 

the U.S. Constitution, as amended, XIV 

section 2. Additionally, a noncitizen 

child who is in the custody of a parent 

who is an unaccompanied child who is 

available to provide care and physical 

custody, is not an unaccompanied child. 

ORR understands that it has custody of 

the unaccompanied child, consistent 

with its statutory authorities, and that 

the unaccompanied child has custody of 

their child. Under the proposed rule, 

ORR would not seek to place the parent 

and child in different facilities or 

shelters except in the limited 

circumstances noted above. ORR 

understands this to be consistent with 

its responsibility to consider the 

interests of unaccompanied children.79

If the child who is in the custody of 

their unaccompanied child parent has 

another parent who is a citizen present 

in the U.S., ORR would consider 

whether it is in the best interests of the 

child to place the child with the 

unaccompanied child parent or the 

parent who is a U.S. citizen. ORR 

requests comments regarding this 

interpretation of its authorities under 

the TVPRA and the HSA, because 

neither statute expressly contemplates 

scenarios where an unaccompanied 

child is a parent. 

Proposed § 410.1108(b) describes 

requirements for providing services to 

children of unaccompanied children 

while in ORR care. Under proposed 

§ 410.1108(b)(1), children of 

unaccompanied children would receive 

the same care and services as ORR 

provides to the unaccompanied 

children, as appropriate, regardless of 

the children’s immigration or 

citizenship status. Additionally, U.S. 

citizen children of unaccompanied 

children would be eligible for 

mainstream public benefits and services 

to the same extent as other U.S. citizens 

(for example, Medicaid). Application(s) 

for public benefits and services shall be 

submitted on behalf of the U.S. citizen 

children of unaccompanied children by 

the care provider facilities. This may 

include, but is not limited to, helping 

file for birth certificates or other legal 

documentation as necessary. Further, 

under proposed § 410.1108(b)(2), 

utilization of those public benefits and 

services should be exhausted to the 

greatest extent practicable for U.S. 

citizen children of unaccompanied 

children before ORR-funded services are 

utilized for these children. 

Section 410.1109 Required Notice of 

Legal Rights 

In proposed § 410.1109(a), ORR 

would be required to promptly provide 

each unaccompanied child in its 

custody with the information described 

in § 410.1109(a)(1) through (3) in a 


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80Exhibit 6 of the FSA provides the following 

notice language: ‘‘The INS usually houses persons 

under the age of 18 in an open setting, such as a 

foster or group home, and not in detention facilities. 

If you believe that you have not been properly 

placed or that you have been treated improperly, 

you may ask a federal judge to review your case. 

You may call a lawyer to help you do this. If you 

cannot afford a lawyer, you may call one from the 

list of free legal services given to you with this 

form.’’ 

81See, e.g., Nat’l Archives & Records Admin. v. 

Favish, 541 U.S. 157, 174 (2004). 

82 8 U.S.C. 1232(c)(3)(A). 

83See, e.g., FSA at paragraph 15 (requiring 

sponsors to sign an Affidavit of Support and an 

agreement to, among other things, provide for the 

unaccompanied child’s physical, mental, and 

financial well-being); see also paragraph 19 (noting 

that in any case where an unaccompanied child is 

not released to a sponsor, the unaccompanied child 

‘‘shall remain in INS legal custody.’’). 

language and manner the 

unaccompanied child understands. 

First, ORR would require, under 

proposed § 410.1109(a)(1), that 

unaccompanied children in ORR 

custody be promptly provided with a 

state-by-state list of free legal service 

providers compiled and annually 

updated by ORR and that is provided to 

unaccompanied children as part of a 

Legal Resource Guide for 

unaccompanied children. This proposed 

requirement is consistent with TVPRA 

at 8 U.S.C. 1232(c)(5) (requiring that 

HHS ‘‘ensure, to the greatest extent 

practicable and consistent with section 

292 of the Immigration and Nationality 

Act (8 U.S.C. 1362), that all 

unaccompanied alien children who are 

or have been in the custody of the 

Secretary or the Secretary of Homeland 

Security, and who are not described in 

subsection (a)(2)(A), have counsel to 

represent them in legal proceedings or 

matters and protect them from 

mistreatment, exploitation, and 

trafficking,’’ and that to the greatest 

extent practicable HHS ‘‘make every 

effort to utilize the services of pro bono 

counsel who agree to provide 

representation to such children without 

charge.’’). In addition, the proposed 

requirement is consistent with the HSA 

at 6 U.S.C. 279(b)(1)(I) (requiring ORR to 

compile, update, and publish ‘‘at least 

annually a state-by-state list of 

professionals or other entities qualified 

to provide guardian and attorney 

representation services for 

unaccompanied alien children’’). ORR 

notes that the list of free legal service 

providers may also be compiled and 

updated by an ORR contractor or 

grantee. 

Second, under proposed 

§ 410.1109(a)(2), ORR would also be 

required to provide the following 

explanation of the right of potential 

review: ‘‘ORR usually houses persons 

under the age of 18 in the least 

restrictive setting that is in an 

unaccompanied child’s best interest, 

and generally not in restrictive 

placements (which means secure 

facilities, heightened supervision 

facilities, or residential treatment 

centers). If you believe that you have not 

been properly placed or that you have 

been treated improperly, you may call a 

lawyer to seek assistance. If you cannot 

afford a lawyer, you may call one from 

the list of free legal services given to you 

with this form.’’ This requirement 

updates language described in the 

requirement to deliver a similar notice 

under Exhibit 6 of the FSA,80 to reflect 

current placement requirements 

detailed in this proposed rule. The FSA 

language, for example, refers to the 

former INS, instead of ORR, and to 

‘‘detention facilities’’ rather than 

restrictive settings or placements. 

ORR also proposes at § 410.1109(a)(3) 

that a presentation regarding their legal 

rights would be provided to each 

unaccompanied child as provided under 

proposed § 410.1309(a)(2). We refer 

readers to proposed § 410.1309(a) for 

additional information regarding this 

presentation. ORR would take 

appropriate steps to ensure that the 

information it presents to 

unaccompanied children is 

communicated effectively to individuals 

with disabilities, including through the 

provision of auxiliary aids and services 

as required by section 504 of the 

Rehabilitation Act of 1973 and HHS’ 

implementing regulations at 45 CFR 

85.51. ORR would also take reasonable 

steps to ensure that individuals with 

limited English proficiency have a 

meaningful opportunity to access 

information and participate in ORR 

programs, including through the 

provision of interpreters or translated 

documents. We request comments on 

steps ORR should take to ensure that it 

provides effective communication 

access to unaccompanied children who 

are individuals with disabilities. We 

also request comment on steps ORR 

should take to ensure meaningful access 

to unaccompanied children who are 

limited English proficient regarding 

information about and participation in 

ORR programs. 

Finally, under proposed 

§ 410.1109(b), consistent with ORR’s 

existing policy, ORR shall not engage in 

retaliatory actions against legal service 

providers or any other practitioner 

because of advocacy or appearance in an 

action adverse to ORR. ORR proposes 

this text, notwithstanding the general 

presumption that government agencies 

and officials act with integrity and 

regularity,81 to further express ORR’s 

intent to promote and protect 

unaccompanied children’s ability to 

access legal counsel. For discussion 

regarding the availability of 

administrative review of ORR placement 

decisions, ORR refers readers to 

proposed subpart J of this proposed 

rule. 

Subpart C—Releasing an 

Unaccompanied Child From ORR 

Custody 

Section 410.1200 Purpose of This 

Subpart 

This proposed subpart regards ORR’s 

policies and procedures regarding 

release, without unnecessary delay, of 

an unaccompanied child from ORR 

custody to a vetted and approved 

sponsor. Release is defined in subpart A 

as the ORR-approved transfer of an 

unaccompanied child from ORR care 

and custody to a vetted and approved 

sponsor in the United States. 

Accordingly, release does not include 

discharge for other reasons, including 

but not limited to those such as the 

child turning 18, attaining legal 

immigration status, or being removed to 

their home country. 

As discussed in this proposed 

subpart, once an unaccompanied child 

is released by ORR to a sponsor, that 

unaccompanied child is no longer in 

ORR’s custody. The TVPRA 

distinguishes minors in HHS custody 

from those released to ‘‘proposed 

custodians’’ determined by ORR to be 

‘‘capable of providing for the child’s 

physical and mental well-being.’’ 82 In 

addition, under the FSA, once an 

unaccompanied child is released to a 

sponsor, the sponsor assumes custody.83

This subpart includes the proposed 

process for determining that sponsors 

are able to care for the child’s physical 

and mental well-being. 

Subpart C also proposes notice and 

appeal processes and procedures that 

certain potential sponsors will be 

afforded. This NPRM proposes that 

parents or legal guardians of an 

unaccompanied child who are denied 

sponsorship of that unaccompanied 

child be afforded the ability to appeal 

such denials. Because issues relating to 

procedures for non-parent relatives are 

currently in litigation in the Lucas R. 

case, they are not part of this 

rulemaking. 

Section 410.1201 Sponsors to Whom 

ORR Releases an Unaccompanied Child 

Proposed § 410.1201 describes 

sponsors to whom ORR may release an 

unaccompanied child and criteria that 


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84See 6 U.S.C. 279(b)(1). See also 8 U.S.C. 

1232(c)(2)(A). 

85See FSA at paragraph 14. 

86See 8 U.S.C. 1232(c)(3)(A). See also FSA 

paragraph 17. 

ORR employs when assessing a 

potential sponsor. As discussed, the 

HSA makes ORR responsible for making 

and implementing placement 

determinations for unaccompanied 

children.84 In addition to these statutory 

requirements, the FSA establishes a 

general policy favoring release of 

unaccompanied children to sponsors, 

and further describes a preferred order 

of release, which ORR follows as a 

matter of policy.85

Consistent with its statutory authority 

and the FSA, proposed § 410.1201(a) 

lists potential sponsors in order of 

release preference. ORR notes that this 

order of preference reflects its strong 

belief that, generally, placement with a 

vetted and approved family member or 

other vetted and approved sponsor, as 

opposed to in an ORR care provider 

facility, whenever feasible, is in the best 

interests of unaccompanied children. 

Proposed § 410.1201(a) would therefore 

codify the following order of preference 

for release of unaccompanied children: 

(1) to a parent; (2) to a legal guardian; 

(3) to an adult relative; (4) to an adult 

individual or entity, designated by the 

parent or legal guardian as capable and 

willing to care for the unaccompanied 

child’s well-being through a declaration 

signed by the parent or legal guardian 

under penalty of perjury before an 

immigration or consular officer, or 

through such other document(s) that 

establish(es) to the satisfaction of ORR, 

in its discretion, the affiant’s maternity, 

paternity, or guardianship; (5) to a 

standard program willing to accept legal 

custody of the unaccompanied child; or 

(6) to an adult individual or entity 

seeking custody, in the discretion of 

ORR, when it appears that there is no 

other likely alternative to long term 

custody and release to family members 

does not appear to be a reasonable 

possibility. Possible scenarios in which 

ORR envisions (6) may be applicable 

include, for example, foster parents or 

other adults who have built or are 

building a relationship with an 

unaccompanied child while in ORR 

care, such as a teacher or coach, and in 

which it is possible to ensure that a 

healthy and viable relationship exists 

between the unaccompanied child and 

proposed sponsor. Proposed § 410.1202, 

discussed below, describes ORR’s 

proposed sponsor suitability assessment 

process, which includes an assessment 

of the potential sponsor’s previous and 

existing relationship with the 

unaccompanied child. 

Under proposed § 410.1201(b), 

consistent with existing policy, ORR 

would not disqualify potential sponsors 

based solely on their immigration status. 

In addition, ORR proposes that it shall 

not collect information on immigration 

status of potential sponsors for law 

enforcement or immigration 

enforcement related purposes. ORR will 

not share any immigration status 

information relating to potential 

sponsors with any law enforcement or 

immigration related entity at any time. 

To the extent ORR does collect 

information on the immigration status of 

a potential sponsor, it would be only for 

the purposes of evaluating the potential 

sponsor’s ability to provide care for the 

child (e.g., whether there is a plan in 

place to care for the child if the 

potential sponsor is undocumented and 

detained). 

Proposed § 410.1201(c) provides that, 

in making determinations regarding the 

release of unaccompanied children to 

potential sponsors, ORR shall not 

release unaccompanied children on 

their own recognizance. 

Section 410.1202 Sponsor Suitability 

Before releasing an unaccompanied 

child to a sponsor, ORR has a 

responsibility to ensure that the sponsor 

has been determined to be able to care 

for the child’s physical and mental 

wellbeing and has not engaged in 

activity that would indicate a potential 

risk to the child.86 Further, under the 

FSA, ORR may require a positive result 

in a suitability assessment of an 

individual or program prior to releasing 

an unaccompanied child to that entity, 

which may include an investigation of 

the living conditions in which the 

unaccompanied child would be placed 

and the standard of care the child would 

receive, verification of the identity and 

employment of the individuals offering 

support, interviews of members of the 

household, and a home visit. The FSA 

also provides that any such assessment 

should also take into consideration the 

wishes and concerns of the minor. ORR 

believes that this assessment of 

suitability may also include review of 

past criminal history, if any, and 

fingerprinting, as discussed 

subsequently in this section. 

Consistent with statutory authorities 

and the FSA, and with existing policy, 

proposed § 410.1202(a) would require 

potential sponsors to complete an 

application package to be considered as 

a sponsor for an unaccompanied child. 

Application packages, in the potential 

sponsor’s native or preferred language, 

would be able to be obtained from either 

the care provider facility or from ORR 

directly to ensure sponsors have access 

to the application. 

Also consistent with existing policy, 

proposed § 410.1202(b) establishes that 

suitability assessments will be 

conducted for all sponsors prior to 

release of a child to a potential sponsor 

and describes the minimum 

requirements for a suitability 

assessment. Consistent with ORR’s 

responsibilities under 8 U.S.C. 

1232(c)(3)(A), and with its current 

policies, suitability assessments would, 

at minimum, consist of review of the 

proposed sponsor’s application package 

described in § 410.1202(a), including 

verification of the proposed sponsor’s 

identity and the proposed sponsor’s 

relationship to the child. ORR may 

consult with the issuing agency (e.g., 

consulate or embassy) of the sponsor’s 

identity documentation to verify the 

validity of the sponsor identity 

document presented and may also 

conduct a background check on the 

proposed sponsor. 

Proposed § 410.1202(c) through (i) 

describe additional requirements or 

discretionary provisions related to 

completion of a suitability assessment. 

These proposed requirements are in 

addition to those described at 8 U.S.C. 

1232(c)(3)(A) (describing ‘‘minimum’’ 

requirements for suitability 

assessments), and ORR proposes them 

consistent with its authority to 

implement policies with respect to the 

care and placement of unaccompanied 

children as described at 6 U.S.C. 

279(b)(1)(E). Proposed § 410.1202(c) 

would provide ORR the discretion to 

evaluate the overall living conditions 

into which the unaccompanied child 

would be placed upon release to the 

potential sponsor. Proposed paragraph 

(c) therefore provides that ORR may 

interview members of the potential 

sponsor’s household, conduct a home 

visit or home study pursuant to 

proposed § 410.1204, and conduct 

background and criminal records 

checks, which may include biometric 

checks such as fingerprint-based 

criminal record checks on a potential 

sponsor and on adult household 

members, consistent with the TVPRA 

requirement to make an independent 

finding that the proposed sponsor has 

not engaged in any activity that would 

indicate a potential risk to the child. 

Proposed § 410.1202(c) also permits 

ORR to verify the employment, income, 

or other information provided by the 

individuals offering support. The 

TVPRA at 8 U.S.C. 1232(c)(3) does not 

require a verification of the sponsor’s 

employment. However, ORR is 


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proposing to include this as a 

permissible consideration as part of the 

suitability assessment to ensure 

sponsors can show they have resources 

to provide for the child’s physical and 

mental well-being. Although ORR 

believes this information may be 

relevant, it will not automatically deny 

an otherwise qualified sponsor solely on 

the basis of low income or employment 

status (either formal or informal). 

Finally, proposed § 410.1202(c) 

establishes that any suitability 

assessment also take into consideration 

the wishes and concerns of the 

unaccompanied child, consistent with 

FSA paragraph 17. 

As part of a suitability assessment and 

determining whether a proposed 

sponsor can care for not just an 

unaccompanied child’s physical wellbeing but also an unaccompanied 

child’s mental well-being, ORR 

proposes to include additional 

assessment components to evaluate the 

environment into which the 

unaccompanied child may be placed. 

Under proposed § 410.1202(d), ORR 

would assess the nature and extent of 

the sponsor’s previous and current 

relationship with the unaccompanied 

child and, if applicable, the child’s 

family. ORR proposes that it would be 

able to deny release of an 

unaccompanied child to unrelated 

sponsors who have no pre-existing 

relationship with the child or the child’s 

family prior to the child’s entry into 

ORR custody. ORR intends that this 

proposed language be read consistently 

with proposed § 410.1201(a)(4), such 

that ORR may release an 

unaccompanied child to an individual 

with no pre-existing relationship with 

the child if the individual is designated 

by the child’s parent or legal guardian, 

but ORR would not be required to do so. 

Additionally, under proposed 

§ 410.1202(e), ORR would consider the 

sponsor’s motivation for sponsorship; 

the opportunity for the potential 

sponsor and unaccompanied child to 

have the opportunity to build a healthy 

relationship while the child is in ORR 

care; the unaccompanied child’s 

preferences and perspective regarding 

release to the sponsor; and the 

unaccompanied child’s parent’s or legal 

guardian’s preferences and perspective 

on release to the sponsor, as applicable. 

Proposed § 410.1202(f) specifies an 

unaccompanied child’s risks or specific, 

individual concerns that should be 

evaluated in conjunction with ORR’s 

evaluation of the child’s current 

functioning and strengths. ORR 

proposes that these shall include risks 

or concerns such as: (1) whether the 

unaccompanied child is a victim of sex 

or labor trafficking or other crime, or is 

considered to be at risk for such 

trafficking due, for example, to observed 

or expressed current needs, e.g., 

expressed need to work or earn money 

because of indebtedness or financial 

hardship; (2) the child’s history of 

involvement with the criminal justice 

system or juvenile justice system 

(including evaluation of the nature of 

the involvement, for example, whether 

the child was adjudicated and 

represented by counsel, and the type of 

offense), or gang involvement; (3) the 

child’s history of behavioral issues; (4) 

the child’s history of violence; (5) any 

individualized needs, including those 

related to disabilities or other medical 

or behavioral/mental health issues; (6) 

the child’s history of substance use; 

and/or (7) the child is either a parent or 

is pregnant. 

In proposed § 410.1202(g), ORR 

establishes a non-exhaustive list of 

factors that it would consider when 

evaluating a potential sponsor’s ability 

to ensure the physical or mental wellbeing of a child. ORR proposes it would 

consider the potential sponsor’s 

strengths and resources in conjunction 

with any risks or concerns including: (1) 

the potential sponsor’s criminal 

background; (2) the potential sponsor’s 

current illegal drug use or history of 

abuse or neglect; (3) the physical 

environment of the home; and/or (4) 

other child welfare concerns. ORR notes 

that the term ‘‘other child welfare 

concerns’’ is intentionally broad to 

allow for discretion and notes that the 

term may include the wellbeing of any 

other unaccompanied children currently 

or previously under the potential 

sponsor’s care. Pursuant to section 504 

of the Rehabilitation Act and HHS’ 

implementing regulations at 45 CFR part 

85, ORR notes that it shall not 

discriminate against a qualified 

individual with a disability when 

evaluating their ability to serve as a 

sponsor. In addition, ORR notes that it 

does not consider these listed risks or 

concerns as necessarily disqualifying to 

potential sponsorship; however, in 

keeping with its responsibility to ensure 

the best interest of the child, ORR must 

assess the extent to which any of these 

risks or concerns could be detrimental 

to or seriously impede a potential 

sponsor’s ability to care for the 

unaccompanied child and the 

possibility of safe release given 

thorough consideration of the sponsor’s 

specific situation and adaptation of a 

release plan to ensure the 

unaccompanied child’s well-being 

pursuant to proposed § 410.1202(i). 

Under proposed § 410.1202(h), ORR 

would assess the potential sponsor’s 

understanding of the unaccompanied 

child’s needs, plan to provide the child 

with adequate care, supervision, and 

housing, understanding and awareness 

of responsibilities related to compliance 

with the UC’s immigration court 

proceedings, school attendance, and 

U.S. child labor laws and awareness of 

and ability to access community 

resources. 

Finally, under proposed § 410.1202(i), 

ORR would develop a release plan that 

could enable a safe release to the 

potential sponsor through the provision 

of post-release services, if needed. 

Section 410.1203 Release Approval 

Process 

Section 410.1203 proposes ORR’s 

process for approving an 

unaccompanied child’s release. 

Proposed § 410.1203(a) reflects the FSA 

requirement that ORR makes and 

records timely and continuous efforts 

towards safe and timely release of 

unaccompanied children. These efforts 

include intakes and admissions 

assessments and the provision of 

ongoing case management services to 

identify potential sponsors. 

Under proposed § 410.1203(b), if a 

potential sponsor is identified, ORR 

would provide an explanation to both 

the unaccompanied child and the 

potential sponsor of the requirements 

and procedures for release. 

Proposed § 410.1203(c) details the 

information that a potential sponsor 

must provide to ORR in the required 

sponsor application package for release 

of the unaccompanied child. Proposed 

information requirements include 

supporting information and 

documentation regarding: the sponsor’s 

identity; the sponsor’s relationship to 

the child; background information on 

the potential sponsor and the potential 

sponsor’s household members; the 

sponsor’s ability to provide care for the 

child; and the sponsor’s commitment to 

fulfill the sponsor’s obligations in the 

Sponsor Care Agreement. The Sponsor 

Care Agreement, which shall be made 

available in a potential sponsor’s native 

or preferred language pursuant to 

proposed § 410.1306(f), requires a 

potential sponsor to commit to: (1) 

provide for the unaccompanied child’s 

physical and mental well-being; (2) 

ensure the unaccompanied child’s 

compliance with DHS and immigration 

courts’ requirements; (3) adhere to 

existing Federal and applicable state 

child labor and truancy laws; (4) notify 

DHS, EOIR at the Department of Justice, 

and other relevant parties of changes of 

address; (5) provide notice of initiation 

of any dependency proceedings or any 

risk to the unaccompanied child as 


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87See, e.g., 6 U.S.C. 279(b)(2). 

88Regarding education, ORR understands that 

under the laws of every state, children up to a 

certain age must attend school and have a right to 

attend public school. Public schools may not refuse 

to enroll children, including unaccompanied 

children, because of their (or their parents or 

sponsors’) immigration status or race, color, or 

national origin. See, e.g., Plyler v. Doe, 457 U.S. 202 

(1982) (finding that under the Equal Protection 

Clause of the Fourteenth Amendment of the U.S. 

Constitution, a State may not deny access to a basic 

public education to any child residing in the State, 

whether present in the United States legally or 

otherwise). Additionally, Title VI of the Civil Rights 

Act of 1964, 42 U.S.C. 2000d et seq., and the Equal 

Educational Opportunity Act of 1974, 20 U.S.C. 

1701 et seq., prohibit public schools from 

discriminating on the basis of race, color, or 

national origin. ORR also understands that school 

districts may not insist on documentation 

requirements that effectively prevent enrollment of 

an unaccompanied child. See 42 U.S.C. 2000d; see 

also U.S. Dep’t of Justice, Civil Rights Division & 

U.S. Dep’t of Education, Office for Civil Rights, 

Information on the Rights of All Children to Enroll 

in School: Questions and Answers for States, 

School Districts and Parents, Answers 3, 5, 7, and 

8 (rev. May 8, 2014), https://www2.ed.gov/about/ 

offices/list/ocr/docs/qa-201405.pdf. 

89See 8 U.S.C. 1232(c)(3)(B). 

90 8 U.S.C. 1232(c)(3)(A). 

91 8 U.S.C. 1232(c)(1). 

described in the Sponsor Care 

Agreement; and (6) in the case of 

sponsors other than parents or legal 

guardians, notify ORR of a child moving 

to another location with another 

individual or change of address. This 

provision also proposes that in the event 

of an emergency (for example, a serious 

illness or destruction of the sponsor’s 

home), a sponsor may transfer 

temporary physical custody of the 

unaccompanied child, but the sponsor 

must notify ORR as soon as possible and 

no later than 72 hours after the transfer. 

ORR notes that this departs from the 

2019 Final Rule and the FSA to the 

extent that ORR is not proposing to 

require the sponsor to seek ORR’s 

permission to transfer custody of the 

unaccompanied child. This departure 

reflects that ORR does not retain legal 

custody of an unaccompanied child 

after the child is released to a sponsor; 

however, ORR retains an interest in 

knowing this information for the 

provision of post-release services, 

tracking concerns related to potential 

trafficking, and for potential future 

sponsor assessments should the child’s 

sponsor step forward to sponsor a 

different child.87

Under proposed § 410.1203(d), ORR 

would conduct a sponsor suitability 

assessment consistent with the 

requirements of proposed § 410.1202. 

Under proposed § 410.1203(e), 

consistent with existing policies, ORR 

would not release an unaccompanied 

child to any person or agency it has 

reason to believe may harm or neglect 

the unaccompanied child, or that it has 

reason to believe will fail to present the 

unaccompanied child before DHS or the 

immigration courts when requested to 

do so. For example, ORR would deny 

release to a potential sponsor if the 

potential sponsor is not willing or able 

to provide for the unaccompanied 

child’s physical or mental well-being; 

the physical environment of the home 

presents risks to the unaccompanied 

child’s safety and well-being; or the 

release of the unaccompanied child to 

that potential sponsor would present a 

risk to him or herself or others. 

Furthermore, in proposed 

§ 410.1203(f), ORR shall educate the 

potential sponsor about the needs of the 

unaccompanied child as part of the 

release process and would also work 

with the sponsor to develop an 

appropriate plan to care for the 

unaccompanied child if the child is 

released to the sponsor. Such plans 

would cover a broad range of topics 

including providing the unaccompanied 

child with adequate care, supervision, 

access to community resources, 

housing, and education.88

Section 410.1204 Home Studies 

The TVPRA requires a home study be 

performed for the release of an 

unaccompanied child in certain 

circumstances.89 In this section of the 

proposed rule, therefore, ORR proposes 

both required and discretionary home 

studies depending upon specific 

circumstances, including for those 

circumstances in which the safety and 

well-being of the child is in question. 

In proposed § 410.1204(a), ORR 

establishes that, as part of the sponsor 

suitability assessment, it may require a 

home study which includes an 

investigation of the living conditions in 

which the unaccompanied child would 

be placed, the standard of care the child 

would receive, and interviews with the 

potential sponsor and others in the 

sponsor’s households. If ORR requires a 

home study, such home study shall take 

place prior to the child’s physical 

release. 

In § 410.1204(b), ORR proposes three 

circumstances in which a home study 

shall be required. The first is under the 

conditions identified in the TVPRA at 8 

U.S.C. 1232(c)(3)(B): ‘‘a home study 

shall be conducted for a child who is a 

victim of a severe form of trafficking in 

persons, a special needs child with a 

disability (as defined in section 12102 of 

title 42), a child who has been a victim 

of physical or sexual abuse under 

circumstances that indicate that the 

child’s health or welfare has been 

significantly harmed or threatened, or a 

child whose proposed sponsor clearly 

presents a risk of abuse, maltreatment, 

exploitation, or trafficking to the child 

based on all available objective 

evidence.’’ 

Consistent with existing policy, ORR 

also proposes other circumstances in 

which it would require a home study. 

The second circumstance in which a 

home study is proposed to be required 

is before releasing any child to a nonrelative sponsor who is seeking to 

sponsor multiple children, or who has 

previously sponsored or sought to 

sponsor a child and is seeking to 

sponsor additional children. The third 

circumstance in which a home study is 

proposed to be required is before 

releasing any child who is 12 years old 

or younger to a non-relative sponsor. 

ORR believes that these latter two 

categories are consistent with the 

statutory requirement that HHS 

determine that a proposed sponsor ‘‘is 

capable of providing for the child’s 

physical and mental well-being,’’ 90 to 

‘‘establish policies and programs to 

ensure that unaccompanied alien 

children in the United States are 

protected from traffickers and other 

persons seeking to victimize or 

otherwise engage such children in 

criminal, harmful, or exploitative 

activity.’’ 91

Under proposed § 410.1204(c), ORR 

would have the discretion to initiate 

home studies if it determines that a 

home study is likely to provide 

additional information which could 

assist in determining that the potential 

sponsor is able to care for the health, 

safety, and well-being of the 

unaccompanied child. 

Under proposed § 410.1204(d), the 

care provider would inform a potential 

sponsor whenever it plans to conduct a 

home study, explain the scope and 

purpose of the study to the potential 

sponsor, and answer questions the 

potential sponsor has about the process. 

In addition, under this proposed 

paragraph, the home study would 

provide its report to the potential 

sponsor if the release request is denied, 

as well as any subsequent addendums if 

created. 

Finally, proposed § 410.1204(e) 

establishes that an unaccompanied 

child for whom a home study is 

conducted shall receive post-release 

services as described at § 410.1210. This 

requirement would be consistent with 8 

U.S.C. 1232(c)(3)(B), which states that 

‘‘The Secretary of Health and Human 

Services shall conduct follow-up 

services, during the pendency of 

removal proceedings, on children for 

whom a home study was conducted and 

is authorized to conduct follow-up 


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92See generally 6 U.S.C. 279(b)(1); 8 U.S.C. 

1232(c). 

services in cases involving children 

with mental health or other needs who 

could benefit from ongoing assistance 

from a social welfare agency.’’ 

Section 410.1205 Release Decisions; 

Denial of Release to a Sponsor 

Proposed § 410.1205 would provide 

guidance for situations in which ORR 

denies the release of an unaccompanied 

child to a potential sponsor. Under 

proposed § 410.1205(a), a sponsorship 

would be denied if, as part of the 

sponsor assessment process described at 

proposed § 410.1202 or the release 

process described at proposed 

§ 410.1203, ORR determines that the 

proposed sponsor is not capable of 

providing for the physical and mental 

well-being of the unaccompanied child 

or that the placement would result in 

danger to the unaccompanied child or 

the community. 

Under proposed § 410.1205(b), if ORR 

denies release of an unaccompanied 

child to a potential sponsor who is a 

parent or legal guardian, ORR must 

notify the parent or legal guardian of the 

denial in writing. Such Notification of 

Denial letter would include: (1) an 

explanation of the reason(s) for the 

denial; (2) evidence and information 

supporting ORR’s denial decision, 

including the evidentiary basis for the 

denial; (3) instructions for requesting an 

appeal of the denial; (4) notice that the 

potential sponsor may submit additional 

evidence, in writing before a hearing 

occurs, or orally during a hearing; (5) 

notice that the potential sponsor may 

present witnesses and cross-examine 

ORR’s witnesses, if such witnesses are 

willing to voluntarily testify; and (6) 

notice that the potential sponsor may be 

represented by counsel in proceedings 

related to the release denial at no cost 

to the Federal Government. Relatedly, in 

§ 410.1205(c), ORR proposes that if a 

potential sponsor who is the 

unaccompanied child’s parent or legal 

guardian is denied, ORR shall inform 

the unaccompanied child, the child 

advocate, and the unaccompanied 

child’s attorney of record or EOIR 

accredited representative (or if the 

unaccompanied child has no attorney of 

record or EOIR accredited 

representative, the local legal service 

provider) of that denial. 

ORR proposes in § 410.1205(d) that if 

the sole reason for denial of release is 

a concern that the unaccompanied child 

is a danger to themself or the 

community, ORR must send the 

unaccompanied child a copy of the 

Notification of Denial letter, in a 

language that the child understands, 

described at § 410.1205(b). If the 

potential sponsor who has been denied 

is the unaccompanied child’s parent or 

legal guardian and is not already 

seeking appeal of the decision, the 

unaccompanied child may appeal the 

denial. 

Proposed § 410.1205(e) recognizes 

that unaccompanied children may have 

the assistance of counsel, at no cost to 

the Federal Government, with respect to 

release or the denial of release to a 

proposed sponsor. 

ORR notes that as part of the Lucas R. 

litigation, it is currently subject to a 

preliminary injunction that includes 

certain requirements regarding 

notification and appeal rights for 

individuals who have applied to 

sponsor unaccompanied children, 

including potential sponsors who are 

not an unaccompanied child’s parent or 

legal guardian. ORR is complying with 

the requirements of applicable court 

orders and has issued sub-regulatory 

policy guidance to do so. Once the 

Lucas R. litigation is resolved, ORR will 

evaluate whether further rulemaking is 

warranted. 

Section 410.1206 Appeals of Release 

Denials 

Proposed § 410.1206 would establish 

procedures for parents and legal 

guardians of unaccompanied children to 

appeal a release denial. ORR is 

responsible for making and 

implementing placement 

determinations for unaccompanied 

children and must do so in a manner 

that protects the best interest of the 

unaccompanied children, including 

ensuring they are protected from 

traffickers and other persons seeking to 

victimize or otherwise engage such 

children in criminal, harmful, or 

exploitative activity.92 ORR also 

recognizes the strong interest of parents 

and legal guardians in custody of their 

children. Consistent with its statutory 

responsibilities and existing policy, 

ORR proposes to create an 

administrative appeal process for 

parents and legal guardians who are 

denied sponsorship of an 

unaccompanied child. Subject to the 

availability of resources, as determined 

by ORR, ORR may consider providing 

language services to parents and legal 

guardians during the appeals process, if 

the parent or guardian is unable to 

obtain such services on their own. 

Section 410.1206(a) proposes that 

parents and legal guardians of 

unaccompanied children who are 

denied sponsorship by ORR may seek 

an appeal of ORR’s decision by 

submitting a written request to the 

Assistant Secretary of ACF or the 

Assistant Secretary’s neutral and 

detached designee. 

Proposed § 410.1206(b) would 

provide that parents and legal guardians 

of unaccompanied children who are 

denied sponsorship by ORR may seek 

an appeal either with or without a 

hearing and pursuant to processes 

described by ORR in agency guidance. 

ORR proposes that the Assistant 

Secretary or their neutral and detached 

designee will acknowledge the request 

for appeal within a reasonable time. 

Additionally, proposed § 410.1206(c) 

establishes a procedure for the 

unaccompanied child to also appeal a 

release denial if the sole reason for 

denial is a concern that the 

unaccompanied child poses a danger to 

self or others. In such a case, ORR 

proposes that the unaccompanied child 

may seek an appeal of the denial as 

described in § 410.1206(a). If the 

unaccompanied child expresses a desire 

to appeal, the unaccompanied child 

may consult with their attorney of 

record or a legal service provider for 

assistance with the appeal. The 

unaccompanied child may seek such 

appeal at any time after denial of release 

while still in ORR custody. 

Section 410.1207 Ninety (90)-Day 

Review of Pending Release Applications 

In the interest of the timely and 

efficient placement of unaccompanied 

children with sponsors, proposed 

§ 410.1207 describes a process to review 

release applications that have been 

pending for 90 days. Consistent with 

existing policy, proposed § 410.1207(a) 

would require ORR Federal staff, who 

supervise case management services 

performed by ORR grantees and 

contractors, to review all pending 

sponsor applications or Family 

Reunification Packets (FRP) for 

unaccompanied children who have been 

in ORR custody for 90 days after 

submission of the sponsor application 

or FRP in order to identify and resolve 

the reasons that a release application 

remains pending in a timely manner, as 

well as to determine possible steps to 

accelerate the children’s safe release. 

Proposed § 410.1207(b) would 

establish that, upon completion of the 

review, UC Program case managers or 

other designated agency or care provider 

staff must update the potential sponsor 

and unaccompanied child on the status 

of the case and explain the reasons that 

the release process is incomplete. ORR 

proposes that UC Program case 

managers or other designated agency or 

care provider staff would work with the 

potential sponsor, relevant stakeholders, 

and ORR to address the portions of the 


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93 8 U.S.C. 1232(c)(2)(A). 

94See 45 CFR 400.115. 

95See 8 U.S.C. 1101(a)(27)(J) (providing that ‘‘no 

juvenile court has jurisdiction to determine the 

custody status or placement of an alien in the 

custody of the Secretary of Health and Human 

Services unless the Secretary of Health and Human 

Services specifically consents to such jurisdiction 

. . .’’). See also 8 U.S.C. 1232(d)(2) (‘‘All 

applications for special immigrant status under 

section 101(a)(27)(J) of the Immigration and 

Nationality Act (8 U.S.C. 1101(a)(27)(J)) shall be 

adjudicated by the Secretary of Homeland Security 

not later than 180 days after the date on which the 

application is filed.’’). 

96Although the TVPRA refers to special 

immigrant ‘‘status,’’ see, e.g., 8 U.S.C. 1232(d), in 

this proposed rule ORR uses the term special 

immigrant ‘‘classification,’’ consistent with current 

United States Citizenship and Immigration Services 

(USCIS) policy. See generally U.S. Citizenship and 

Immigration Services Policy Manual, Vol. 6, Part J, 

Ch. 1, available at: https://www.uscis.gov/policymanual/volume-6-part-j-chapter-1. 

sponsorship application or FRP that 

remain unresolved. 

Further, to ensure that timeliness of 

placement remains a priority, for cases 

that are not resolved after the initial 90- 

Day Review, ORR proposes that ORR 

Federal staff supervising the case 

management process would conduct 

additional reviews at least every 90 days 

until the pending sponsor application or 

FRP is resolved as described in 

§ 410.1207(c). 

Section 410.1208 ORR’s Discretion To 

Release an Unaccompanied Child to the 

Unaccompanied Refugee Minors 

Program 

Proposed § 410.1208 describes 

specific eligibility criteria for release of 

an unaccompanied child to the 

Unaccompanied Refugee Minors (URM) 

Program. The TVPRA permits ORR to 

place unaccompanied children in a 

URM Program, pursuant to section 

412(d) of the Immigration and 

Nationality Act, if a suitable family 

member is not available to provide 

care.93 Proposed § 410.1208(a) states 

that an unaccompanied child may be 

eligible for services through the ORR 

Unaccompanied Refugee Minors (URM) 

Program, including unaccompanied 

children in the following categories: (1) 

Cuban and Haitian entrant as defined in 

section 501 of the Refugee Education 

Assistance Act of 1980, 8 U.S.C. 1522 

note and as provided for at 45 CFR 

400.43; (2) an individual determined to 

be a victim of a severe form of 

trafficking as defined in 22 U.S.C. 

7105(b)(1)(C); (3) an individual DHS has 

classified as a Special Immigrant 

Juvenile (SIJ) under section 101(a)(27)(J) 

of the Immigration and Nationality Act 

(INA), 8 U.S.C. 1101(a)(27)(J), and who 

was either in the custody of HHS at the 

time a dependency order was granted 

for such child or who was receiving 

services pursuant to section 501(a) of 

the Refugee Education Assistance Act of 

1980, 8 U.S.C. 1522 note, at the time 

such dependency order was granted; (4) 

an individual with U nonimmigrant 

status under 8 U.S.C. 1101(a)(15)(U), as 

authorized by TVPRA, pursuant to 

section 1263 of the Violence Against 

Women Reauthorization Act of 2013, 

which amends section 235(d)(4) of the 

TVPRA to add individuals with U 

nonimmigrant status who were in ORR 

custody as unaccompanied children 

eligible for the URM Program; or (5) 

other populations of children as 

authorized by Congress. 

With respect to unaccompanied 

children described in proposed 

paragraph (a) of this section, under 

proposed § 410.1208(b), ORR would 

evaluate each case to determine whether 

it is in an unaccompanied child’s best 

interests to be referred to the URM 

Program. 

At proposed § 410.1208(c), ORR notes 

that when it discharges an 

unaccompanied child pursuant to this 

section to receive services through the 

URM Program, relevant requirements of 

the ORR Refugee Resettlement Program 

regulations would apply, including the 

requirement that the receiving entity 

establish legal responsibility of the 

unaccompanied child, including legal 

custody or guardianship, under state 

law.94 Under proposed § 410.1208(c), 

until such legal custody or guardianship 

is established, the ORR Director would 

retain legal custody of the child. 

Section 410.1209 Requesting Specific 

Consent From ORR Regarding Custody 

Proceedings 

Proposed § 410.1209 addresses the 

specific consent process and is informed 

by the TVPRA. Specific consent is a 

process through which an 

unaccompanied child in ORR custody 

obtains consent from HHS to have a 

state juvenile court make decisions 

concerning the unaccompanied child’s 

placement or custody. As relevant to 

this proposed section, ORR notes that 

the TVPRA modified section 

101(a)(27)(J) of the Immigration and 

Nationality Act, concerning SIJ 

classification.95 To obtain SIJ 

classification under the TVPRA 

modifications, a child must be declared 

dependent or legally committed to or 

placed under the custody of an 

individual or entity by a state juvenile 

court. However, an unaccompanied 

child in ORR custody who seeks to 

invoke the jurisdiction of a state 

juvenile court to determine or alter their 

custody status or placement must first 

receive ‘‘specific consent’’ from HHS to 

such jurisdiction. For example, if an 

unaccompanied child wishes to have a 

state juvenile court of competent 

jurisdiction, not HHS, decide to move 

them out of HHS custody and into a 

state-funded foster care home, the 

unaccompanied child must first receive 

‘‘specific consent’’ from HHS to go 

before the state juvenile court. If the 

unaccompanied child wishes to go to 

state juvenile court to be declared 

dependent in order to petition for SIJ 

classification (i.e., receive an ‘‘SIJpredicate order’’), the unaccompanied 

child does not need HHS’ consent. 

Although the TVPRA transferred 

authority to grant specific consent from 

DHS to ORR, DHS retains sole authority 

over the ultimate determination on SIJ 

classification.96

Proposed § 410.1209(a) states that an 

unaccompanied child in ORR custody is 

required to request specific consent 

from ORR if the unaccompanied child 

seeks to invoke the jurisdiction of a state 

juvenile court to determine or alter the 

child’s custody status or release from 

ORR custody. 

Under proposed § 410.1209(b), if an 

unaccompanied child seeks to invoke 

the jurisdiction of a state juvenile court 

for a dependency order so that they can 

petition for SIJ classification or to 

otherwise permit a state juvenile court 

to establish jurisdiction regarding 

placement, but does not seek the state 

juvenile court’s jurisdiction to 

determine or alter the child’s custody 

status or release, the unaccompanied 

child would not need to request specific 

consent from ORR. 

Proposed § 410.1209(c) through (g) 

explain the process to make a specific 

consent request to ORR. Under 

proposed § 410.1209(c), prior to a state 

juvenile court determining or altering 

the unaccompanied child’s custody 

status or release from ORR, attorneys or 

others acting on behalf of an 

unaccompanied child would be 

required to complete a request for 

specific consent. ORR proposes in 

§ 410.1209(d) that it would acknowledge 

receipt of the request within two 

business days. 

ORR proposes in § 410.1209(e) that it 

will consider whether ORR custody is 

required to: (1) ensure a child’s safety; 

or (2) ensure the safety of the 

community. As ORR does not consider 

runaway risk for purposes of release, it 

does not intend to do so here for 

purposes of adjudicating specific 

consent requests. ORR notes that such 

requirements would be consistent with 

8 U.S.C. 1232(c)(2)(A) (stating that when 

making placement determinations, HHS 


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97See 8 U.S.C. 1232(c)(3)(B) (‘‘The Secretary of 

Health and Human Services shall conduct followup services, during the pendency of removal 

proceedings, on children for whom a home study 

was conducted and is authorized to conduct followup services in cases involving children with mental 

health or other needs who could benefit from 

ongoing assistance from a social welfare agency.’’). 

98ORR Guide section 2.4.2 requires a home study 

before releasing an unaccompanied child to a nonrelative sponsor who is seeking to sponsor: (1) 

multiple unaccompanied children; (2) additional 

unaccompanied children and the non-relative 

sponsor has previously sponsored or sought to 

sponsor an unaccompanied child; or (3) 

unaccompanied children who are 12 years and 

under. 

‘‘may consider danger to self, danger to 

the community, and risk of flight.’’). 

Under proposed § 410.1209(f), ORR 

shall make determinations on specific 

consent requests within 60 business 

days of receipt. ORR proposes that it 

shall attempt to expedite urgent requests 

when possible. 

In § 410.1209(g), ORR proposes that it 

shall inform the unaccompanied child, 

the unaccompanied child’s attorney, or 

other authorized representative of the 

unaccompanied child of the decision on 

the specific consent request in writing, 

along with the evidence used to make 

the decision. Finally, proposed 

§ 410.1209(h) and (i) detail procedures 

related to a request for reconsideration 

in the event ORR denies specific 

consent. Under proposed § 410.1209(h), 

the unaccompanied child, the child’s 

attorney of record, or EOIR accredited 

representative of the child would be 

able to request reconsideration of ORR’s 

denial with the Assistant Secretary for 

ACF within 30 business days of receipt 

of the ORR notification of denial of the 

request. The unaccompanied child, the 

child’s attorney, or the child’s 

authorized representative may submit 

additional (including new) evidence to 

be considered with the reconsideration 

request. 

Under proposed § 410.1209(i), the 

Assistant Secretary for ACF or designee 

would consider the request for 

reconsideration and any additional 

evidence, and send a final 

administrative decision to the 

unaccompanied child, the child’s 

attorney, or the child’s other authorized 

representative, within 15 business days 

of receipt of the request. 

Section 410.1210 Post-Release 

Services 

Proposed § 410.1210 sets forth the 

requirements for post-release services 

(PRS). The TVPRA authorizes, and in 

some cases requires, HHS to provide 

PRS during the pendency of removal 

proceedings for certain unaccompanied 

children.97 ORR provides PRS by 

funding providers to facilitate access to 

relevant services. Generally, ORR 

believes that providing necessary 

services after an unaccompanied child’s 

release from ORR care is essential to 

promote the child’s safety and wellbeing. 

Under proposed § 410.1210(a)(1), 

consistent with existing policy, care 

provider facilities would work with 

sponsors and unaccompanied children 

to prepare them for the unaccompanied 

children’s safe and timely release, to 

assess the sponsors’ ability to access 

community resources, and to provide 

guidance regarding safety planning and 

accessing services. 

Proposed § 410.1210(a)(2) and (3) 

describe circumstances when ORR 

would be required to provide PRS to 

unaccompanied children. Consistent 

with 8 U.S.C. 1232(c)(3)(B), under 

proposed § 410.1210(a)(2), ORR would 

conduct follow-up services, or PRS, 

during the pendency of removal 

proceedings for unaccompanied 

children for whom a home study was 

conducted. ORR proposes to apply this 

requirement to any case where a home 

study is conducted, including home 

studies that are explicitly required by 

the TVPRA and those that ORR 

performs under other circumstances as 

described at proposed § 410.1204. 

Under proposed § 410.1210(a)(3), ORR 

proposes it would have the discretion, 

to the extent ORR determines that 

appropriations are available, to provide 

PRS to unaccompanied children with 

mental health or other needs who would 

benefit from the ongoing assistance of a 

community-based service provider, even 

if their case did not involve a home 

study pursuant to proposed § 410.1204. 

ORR notes that proposed § 410.1210(c) 

further lists certain situations where 

ORR may, within its discretion, refer 

unaccompanied children for PRS. These 

proposals expand upon the situations 

whereby ORR may provide PRS. ORR’s 

current practice, described in the ORR 

Guide at section 6.2, requires ORR to 

provide PRS for an unaccompanied 

child whose sponsor required a home 

study 98 or for whom ORR determines 

the release is safe and appropriate but 

the unaccompanied child and sponsor 

would benefit from ongoing assistance 

from a community-based service 

provider. ORR also proposes that PRS 

furnished to these unaccompanied 

children may include home visits by the 

PRS provider. ORR seeks public 

comment on proposed § 410.1210(a)(2) 

and (3), particularly with respect to the 

possible expansion of PRS to additional 

unaccompanied children. 

ORR is aware of concerns that, in 

some cases, release of UC to sponsors 

may be unduly delayed by a lack of 

available PRS providers and services 

near the sponsor. Accordingly, ORR 

proposes in § 410.1210(a)(4) that ORR 

would not delay the release of an 

unaccompanied child if PRS are not 

immediately available (e.g., due to a 

referral delay or waitlist for PRS). ORR 

notes that § 410.1210(g) specifies the 

timeframes in which PRS providers are 

required to start PRS for unaccompanied 

children once they are released from 

ORR care. 

Proposed § 410.1210(b) lists the types 

of services that would be available as 

part of PRS, as described in section 6.2.2 

of the ORR Guide. PRS providers would 

be required to ensure PRS are furnished 

in a manner that is sensitive to the 

individual needs of the unaccompanied 

child and in a way the child effectively 

understands regardless of spoken 

language, reading comprehension, or 

disability to ensure meaningful access 

for all eligible children, including those 

with limited English proficiency. The 

comprehensiveness of PRS shall depend 

on the extent appropriations are 

available. Specifically, ORR proposes to 

codify the availability of PRS to support 

unaccompanied children and sponsors 

in accessing services in the following 

areas: placement and stability; 

immigration proceedings; guardianship; 

legal services; education; medical 

services; individual mental health 

services; family stabilization and 

counseling; substance use; gang 

prevention; education about 

employment laws and workers’ rights; 

and other specialized services based on 

need and at the request of 

unaccompanied children. In addition, 

ORR believes that PRS should 

specifically include service areas such 

as: assisting in school enrollment, 

including connecting unaccompanied 

children and sponsors to educational 

programs for students with disabilities 

where appropriate; ensuring access to 

family reunification and medical 

support services, including support and 

counseling for the family and mental 

health counseling; supporting sponsors 

in obtaining necessary medical records 

and necessary personal documentation; 

and ensuring that sponsors of 

unaccompanied children with medical 

needs receive support in accessing 

appropriate medical care. ORR notes 

that these services areas are currently 

covered in section 6.2.2 of the ORR 

Guide, which ORR is proposing to 

codify in § 410.1210(b). In conducting 

PRS, ORR and any entities through 


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99CDC; SAMHSA. (2020, Sept. 17). 6 Guidelines 

To A Trauma-Informed Approach. https://

www.cdc.gov/orr/infographics/6_principles_

trauma_info.htm. The six guidelines include: 

safety; trustworthiness and transparency; peer 

support; collaboration and mutuality; 

empowerment and choice; and cultural, historical, 

and gender issues. 

which ORR provides PRS shall make 

reasonable modifications in their 

policies, practices, and procedures if 

needed to enable released 

unaccompanied children with 

disabilities to live in the most integrated 

setting appropriate to their needs, such 

as with a sponsor. ORR is not required, 

however, to take any action that it can 

demonstrate would result in a 

fundamental alteration in the nature of 

a program or activity. Additionally, ORR 

is aware of the importance of health 

literacy for unaccompanied children to 

increase awareness of health issues and 

to ensure continuity of care after their 

release, and so proposes at 

§ 410.1210(b)(7) that PRS providers 

would be required to provide 

unaccompanied children and sponsors 

with information and services relevant 

to health-related considerations for the 

unaccompanied child. ORR seeks public 

comment on this paragraph, specifically 

on how to protect the 

comprehensiveness of PRS against 

significant reductions in funding 

allocated to PRS while still balancing 

the need to maintain funding for 

capacity during emergencies and 

influxes. ORR also seeks public 

comment on what other services should 

be within the scope of PRS. 

Under proposed § 410.1210(c), ORR 

proposes to require that unaccompanied 

children with certain needs receive 

additional consideration of those casespecific needs, and may be referred for 

PRS to address those needs. Consistent 

with 8 U.S.C. 1232(c)(3)(B), ORR 

proposes that unaccompanied children 

who would receive additional 

consideration include those that are 

especially vulnerable unaccompanied 

children and would include, but are not 

limited to: unaccompanied children in 

need of particular services or treatment; 

unaccompanied children with 

disabilities; unaccompanied children 

with LGBTQI+ status; unaccompanied 

children who are adjudicated 

delinquent or have been involved in, or 

are at high risk of involvement with, the 

juvenile justice system; unaccompanied 

children who entered ORR care after 

being separated from a parent or legal 

guardian by DHS; unaccompanied 

children who are victims of human 

trafficking or other crimes; 

unaccompanied children who are 

victims of worker exploitation; 

unaccompanied children who are at risk 

for labor trafficking; unaccompanied 

children enrolled in school who are 

chronically absent or retained at the end 

of their school year; and certain 

parolees. ORR typically considers 

certain parolees who are also 

unaccompanied children to include 

Unaccompanied Afghan Minors, 

Unaccompanied Ukrainian children, 

and other children who are in the UC 

program (such as those eligible for 

humanitarian parole). ORR notes that 

under this proposed section it may refer 

unaccompanied children for PRS, based 

on these concerns, even after they have 

been released. Such referrals may be 

made pursuant to ORR becoming aware 

of the situations listed above—e.g., 

through post-release notifications of 

concern or calls to its national call 

center. In that event, ORR would require 

the relevant PRS provider to follow up 

with the child and assess whether PRS 

would be appropriate. 

Under proposed § 410.1210(d), the 

PRS provider assigned to a particular 

unaccompanied child’s case would 

assess the released unaccompanied 

child and sponsor for services needed 

and document the assessment. The 

assessment would be developmentally 

appropriate for the unaccompanied 

child, meaning the PRS provider would 

be required to tailor it to the released 

unaccompanied child’s level of 

cognitive, physical, and emotional 

ability. Further, the assessment is 

proposed to be trauma-informed, as 

defined in proposed § 410.1001, and 

consistent with the 6 Guidelines To A 

Trauma-Informed Approach developed 

by the CDC in collaboration with the 

SAMHSA.99 During the assessment, PRS 

providers should also identify any 

traumatic events and symptoms by 

using validated screening measures 

developed for use when screening and 

assessing trauma in children. 

ORR notes that under existing policy, 

it provides Safety and Well Being 

Follow Up Calls (SWB calls) for all 

unaccompanied children who are 

released to sponsors. The purpose of 

SWB calls is to determine whether the 

child is still residing with the sponsor, 

is enrolled in or attending school, is 

aware of upcoming court dates, and is 

safe. ORR understands that these calls 

are authorized under 8 U.S.C. 

1232(c)(3)(B) as a form of follow-up 

services. Although ORR plans to 

continue conducting SWB calls under 

this proposed rule, nevertheless ORR 

does not propose to codify them, to 

preserve its flexibility in making 

continuous improvements to the reach 

and nature of the SWB calls themselves, 

as well as in integrating SWB calls into 

the suite of available PRS. ORR seeks 

public comment on whether it should 

consider codifying SWB calls in this 

proposed rule or in future rulemaking 

and whether ORR should integrate SWB 

call into PRS, including what factors 

ORR should consider in integrating 

SWB calls into PRS. 

In the final version of this rule, ORR 

is considering codifying a requirement 

that the PRS provider’s assessment must 

include a recommendation regarding the 

‘‘level’’ of PRS to be provided in direct 

response to the unaccompanied child’s 

and the sponsor’s needs, based on 

regular and repeated assessments. As 

described in proposed § 410.1210(b), 

PRS include services in a range of 

service areas. But ORR notes that 

unaccompanied children and sponsors 

receiving PRS do not necessarily require 

follow-up services in every service area; 

rather, unaccompanied children and 

sponsors who are referred for PRS have 

individual needs reflecting their own 

circumstances. Similarly, ORR believes 

that the appropriate level of 

involvement by the PRS provider in 

coordinating the delivery of those 

services should accord with the 

unaccompanied child’s and/or sponsor’s 

individual needs. Consistent with this 

approach, ORR currently provides two 

‘‘levels’’ of PRS—Level One and Level 

Two. Level One services currently 

include assessments of the needs of 

unaccompanied children and their 

sponsors in accessing community 

services, including enrolling in school. 

Further, unaccompanied children and 

their sponsors receive Level One 

services if they do not require intensive 

case management as provided with 

Level Two PRS. Unaccompanied 

children and their sponsors receive 

Level Two services if they received 

Level One Services, and the PRS 

providers assessed them to need more 

intensive case management, or the 

unaccompanied children require a 

higher level of services as assessed 

during the unaccompanied children’s 

release from ORR care (e.g., during the 

sponsor suitability assessment). Level 

Two services provide a higher level of 

engagement between the PRS provider 

and the unaccompanied child and 

sponsor and include regularlyscheduled home visits (at least once a 

month), ongoing needs assessments of 

the unaccompanied child, 

comprehensive case management, and 

access to therapeutic support services. 

ORR is considering updating the levels 

of PRS available to unaccompanied 

children and sponsors, from a 

framework that contains two levels of 


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100ORR notes that care provider facilities 

currently conduct safety and well-being follow-up 

calls 30 days after the unaccompanied child’s 

release date. 

PRS to a framework that contains three 

levels, and further, ORR is considering 

codifying this PRS level framework. To 

that end, ORR seeks input from the 

public on one potential way to update 

its policies to incorporate additional 

levels, as described below. 

ORR is considering requiring the PRS 

provider’s assessment to include the 

level of PRS recommended to be 

provided be in direct response to the 

unaccompanied child’s and the 

sponsor’s needs, based on regular and 

repeated assessments. Under a revised 

framework for PRS levels, ORR is 

considering an option in which Level 

One PRS would include safety and wellbeing virtual check-ins; 100 Level Two 

PRS would cover case management 

services; and Level Three PRS would 

include intensive home engagements. 

Additionally, ORR is considering 

requiring that a released 

unaccompanied child may receive one 

or more levels of PRS depending on the 

needs and circumstances of the 

unaccompanied child and sponsor. ORR 

is considering codifying a requirement 

that PRS providers would be required to 

furnish specific levels of PRS to 

unaccompanied children required to 

receive PRS under the TVPRA to ensure 

the safety and well-being of these 

unaccompanied children post-release 

and their successful transition into the 

community. ORR is also considering 

time limits on the availability of PRS at 

each level that the PRS provider would 

furnish to the unaccompanied child and 

sponsor, which at a minimum would be 

furnished for six (6) months after 

release. For example, an 

unaccompanied child and sponsor 

referred to Level Three PRS would 

receive this level of service for at least 

six months after release, and ORR 

would subsequently assess every 30 

days thereafter whether services are still 

needed. Further, ORR is considering 

requiring PRS providers to furnish 

levels of PRS to unaccompanied 

children required to receive PRS under 

the TVPRA and their sponsors for 

timeframes that may continue beyond 

the timeframes to be established for the 

levels. ORR notes that the timeframes 

for providing PRS would not extend 

past the circumstances in which PRS 

would be terminated as specified in 

proposed § 410.1210(h). 

Under proposed § 410.1210(e)(1), the 

PRS provider would, in consultation 

with the unaccompanied child and 

sponsor, decide the appropriate 

methods, timeframes, and schedule for 

ongoing contact with the released 

unaccompanied child and sponsor 

based on the level of need and support 

needed. PRS providers would be 

required in proposed § 410.1210(e)(2) to 

make, at a minimum, monthly contact 

with their assigned released 

unaccompanied children and their 

sponsors, either in person or virtually 

for six months after release. ORR is 

considering limiting the minimum 

monthly contact to unaccompanied 

children and sponsors receiving Level 

Two and/or Level Three PRS. ORR seeks 

public comment on this proposal 

including consideration for applicable 

factors that should be included in 

determining how often PRS providers 

would be required to contact their 

assigned unaccompanied children and 

sponsors after release. Under proposed 

§ 410.1210(e)(3), PRS providers would 

be required to document all ongoing 

check-ins and in-home visits as well as 

the progress and outcomes of those 

home visits. 

Under proposed § 410.1210(f)(1), PRS 

providers would work with released 

unaccompanied children and their 

sponsors to ensure they can access 

community resources. ORR has opted 

not to enumerate ways that PRS 

providers could comply with this 

proposed requirement, because the 

nature of such assistance would vary by 

case. But as examples, ORR anticipates 

that PRS providers could assist 

unaccompanied children and sponsors 

with issues such as making 

appointments; communicating 

effectively with their service provider; 

requesting interpretation services, if 

needed; understanding a service’s costs, 

if applicable; enrollment in school; for 

younger children, enrollment in child 

care where needed; for three-and fouryear old children, enrollment in 

preschool where accessible; and other 

issues relevant to accessing relevant 

services. ORR also anticipates that PRS 

providers would assist the released 

unaccompanied children and sponsors 

in accessing the following communitybased resources: legal services; 

education and English classes; youthand community-based programming; 

medical care and behavioral healthcare; 

services related to the unaccompanied 

children’s cultural and other traditions; 

and supporting the unaccompanied 

children’s independence and 

integration. 

Under proposed § 410.1210(f)(2), PRS 

providers would be required to 

document any community resource 

referrals and their outcomes. 

ORR proposes to codify at 

§ 410.1210(g) timeframes for when PRS 

providers would be required to start 

PRS. ORR notes that although the 

TVPRA mandates PRS in certain cases, 

it does not address the timing of 

providing PRS. ORR proposes to codify 

in § 410.1210(g)(1) its existing policy 

from section 6.2.3 of the ORR Guide that 

specifies a timeframe for the delivery of 

PRS to released unaccompanied 

children who are required to receive 

PRS pursuant to the TVPRA at 8 U.S.C. 

1232(c)(3)(B). As proposed, PRS 

providers would be required, to the 

greatest extent practicable, to start 

services within two (2) days of the 

unaccompanied children’s release from 

ORR care. PRS shall start no later than 

30 days after release if PRS providers 

are unable to start services within two 

(2) days of release. Further, at 

§ 410.1210(g)(2), ORR proposes to codify 

its policy from section 6.2.3 of the ORR 

Guide that for released unaccompanied 

children who are referred to PRS but 

who are not mandated to receive PRS 

following a home study, PRS providers 

would be required, to the greatest extent 

practicable, to start services within two 

(2) days of accepting a referral. 

Proposed § 410.1210(h) describes the 

circumstances required for termination 

of PRS, which are based on ORR’s 

existing policy at section 6.2.3 of the 

ORR Guide. At § 410.1210(h)(1), ORR 

would require that PRS for an 

unaccompanied child required to 

receive PRS pursuant to the TVPRA at 

8 U.S.C. 1232(c)(3)(B) would continue 

until the unaccompanied child turns 18 

or the unaccompanied child is granted 

voluntary departure, immigration status, 

or the child receives an order of 

removal. In the event the 

unaccompanied child is granted 

voluntary departure or receives an order 

of removal, PRS would be discontinued 

until the child is repatriated, and PRS 

would end once the unaccompanied 

child’s case is closed. Under proposed 

§ 410.1210(h)(2), ORR would require 

that PRS for an unaccompanied child 

receiving PRS, but who is not required 

to receive PRS following a home study, 

would continue for not less than six 

months or until the unaccompanied 

child turns 18, whichever occurs first; 

or until the PRS provider assesses the 

unaccompanied child and determines 

PRS are no longer needed, but in that 

case for not less than six months. 

Finally, proposed (i) describes records 

and reporting requirements for PRS 

providers. Keeping accurate and 

confidential records is important to 

ensure the security of any information 

the PRS provider documents about the 

unaccompanied child and sponsor. 

Accordingly, under proposed 

§ 410.1210(i)(1)(i), ORR would require 


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PRS providers to maintain 

comprehensive, accurate, and current 

case files that are kept confidential and 

secure, and that are accessible to ORR 

upon request. PRS providers would be 

required to keep all case file information 

together in the PRS provider’s physical 

and electronic files. Section 

410.1210(i)(1)(ii) would also require 

PRS providers to upload all 

documentation related to services 

provided to unaccompanied children 

and sponsors to ORR’s case management 

system, as available, within seven (7) 

days of completion of the services. 

To prevent unauthorized access to 

electronic and paper records, proposed 

§ 410.1210(i)(2)(i) would require PRS 

providers establish and maintain 

written policies and procedures for 

organizing and maintaining the content 

of active and closed case files. Under 

proposed § 410.1210(i)(2)(ii), prior to 

providing PRS, PRS providers would be 

required to have established 

administrative and physical controls to 

prevent unauthorized access to the 

records that include keeping sensitive 

health information in a locked space 

when not in use. ORR believes that any 

information collected from the 

unaccompanied child or sponsor should 

not be shared for any other purposes 

except for coordinating services for 

them. ORR therefore proposes to codify 

a requirement at § 410.1210(i)(2)(iii) that 

PRS providers may not release records 

to any third party without the prior 

approval of ORR. If a PRS provider is no 

longer providing PRS for ORR, ORR 

proposes further that the PRS provider 

would be required to provide all active 

and closed case file records in their 

original format to ORR according to 

ORR’s instructions. 

Proposed § 410.1210(i)(3) sets forth 

requirements to protect the privacy of 

all unaccompanied children receiving 

PRS. Under proposed § 410.1210(i)(3)(i), 

PRS providers would be required to 

have a written policy and procedure 

that protects the sensitive information of 

released unaccompanied children from 

access by unauthorized users, such as 

encrypting electronic communication 

(including, but not limited to, email and 

text messaging) containing sensitive 

healthcare or identifying information of 

released unaccompanied children. PRS 

providers would be required under 

proposed § 410.1210(i)(3)(ii) to explain 

to released unaccompanied children 

and their sponsors how, when, and 

under what circumstances sensitive 

information may be shared during the 

course of their PRS. PRS providers 

would also be required to have 

appropriate controls on information 

sharing within the PRS provider 

network. ORR believes these controls 

are necessary to ensure that sensitive 

information is not exploited by 

unauthorized users to the detriment of 

the released unaccompanied children. 

ORR proposes that if a PRS provider 

is concerned about the unaccompanied 

child’s safety and well-being, it must 

notify ORR and other appropriate 

agencies of such concerns. Proposed 

§ 410.1210(i)(4)(i) covers the procedures 

and requirements regarding such 

notifications of concern (NOC). A PRS 

provider concerned about an 

unaccompanied child’s safety and wellbeing would be required to document 

and report a NOC to ORR and, as 

applicable, to other investigative 

agencies (e.g., law enforcement or child 

protective services). Consistent with 

section 6.1 of the ORR Guide, ORR 

anticipates that situations when PRS 

providers would submit a NOC would 

include: an emergency; a current case of 

human trafficking; abuse, abandonment, 

neglect, and maltreatment; possible 

exploitative employment situation; 

kidnapping, disappearances, or a 

runaway; alleged criminal activity; child 

protection services involvement; 

potential fraud, such as document fraud 

or fees charged for services that are to 

be provided free of charge; 

unaccompanied child behavioral 

incident that raises safety concern; 

media attention; sponsor declined 

services; contact or involvement with 

organized crime; PRS provider unable to 

contact the unaccompanied child within 

30 days of release; and when PRS 

provider is providing services to an 

unaccompanied child, loses contact 

with that child, and there are safety 

concerns. 

Additionally, under proposed 

§ 410.1210(i)(4)(ii), a PRS provider 

would be required to submit a NOC to 

ORR within 24 hours of first knowledge 

or suspicion of events raising concerns 

about the unaccompanied child’s safety 

and well-being, and to document the 

NOC. 

Proposed § 410.1210(i)(5) would 

codify requirements for PRS providers 

regarding case closures. ORR proposes 

that a case file be formally closed when 

the PRS are terminated by ORR, and that 

ORR would supply instructions, 

including relevant forms, that the PRS 

provider would be required to follow 

when closing out a case. For example, 

similar to current practice, ORR 

anticipates that it may require PRS 

providers to complete a case closure 

form and upload it to ORR’s online case 

management system within 72 hours of 

a case’s closure. 

Subpart D—Minimum Standards and 

Required Services 

Section 410.1300 Purpose of This 

Subpart 

In order to ensure that all 

unaccompanied children receive the 

same minimum services and at least a 

specified level of quality of those 

services, ORR is proposing a set of 

minimum standards and required 

services. ORR proposes to establish 

these standards and requirements 

consistent with its authorities at 6 

U.S.C. 279(b)(1) (making ORR 

responsible for, among other things, 

ensuring that the interest of 

unaccompanied children are considered 

in decisions and actions relating to their 

care and custody, implementing policies 

with respect to the care and placement 

of unaccompanied children, and 

overseeing the infrastructure and 

personnel of facilities in which 

unaccompanied children reside), and 8 

U.S.C. 1232(c) (requiring HHS to 

establish policies and programs to 

ensure that unaccompanied children are 

protected from certain risks, and 

requiring placement of unaccompanied 

children in the least restrictive setting 

that is in their best interest). As 

described at proposed § 410.1300, the 

purpose of this subpart would be to 

establish the standards and services that 

care provider facilities must meet and 

provide in keeping with the principles 

of treating unaccompanied children in 

ORR care with dignity, respect and 

special concern for their particular 

vulnerability. ORR welcomes public 

comment on this proposal. 

Section 410.1301 Applicability of This 

Subpart 

ORR believes that care provider 

facilities serving unaccompanied 

children should be required to meet 

standards and requirements tailored to 

their particular placement setting so that 

children receive at least the same 

standard of care within a given 

placement setting. In proposed 

§ 410.1301, ORR proposes to apply these 

care provider facility standards to all 

standard programs and to non-standard 

programs where specified. 

Section 410.1302 Minimum Standards 

Applicable to Standard Programs 

In proposed § 410.1302, ORR 

proposes minimum standards of care 

and services applied to standard 

programs; these standards closely reflect 

the minimum standards of care listed in 

Exhibit 1 of the FSA, which ORR 

believes are consistent with the concern 

for unaccompanied children’s interests 

expressed in the HSA and TVPRA. 


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101 Dietary Guidelines for Americans. Available at 

https://www.dietaryguidelines.gov/current-dietaryguidelines. 

Under proposed § 410.1302(a), ORR 

would require standard programs be 

licensed by an appropriate state or 

Federal agency, or meet other 

requirements specified by ORR if 

licensure is unavailable in a state to 

programs providing services to 

unaccompanied children, to provide 

residential, group, or foster care services 

for dependent children. ORR is 

including this requirement to ensure 

unaccompanied children are cared for 

in facilities that are safe and sanitary, 

and that the facilities have needed 

oversight. Additionally, because there 

are other state and local laws and other 

ORR requirements that are critical to 

ensuring the safe and sanitary 

conditions at care provider facilities, 

ORR would further require, in proposed 

§ 410.1302(b), that standard programs 

comply with all applicable state child 

welfare laws and regulations and all 

state and local building, fire, health and 

safety codes, or other requirements 

specified by ORR if licensure is 

unavailable in their state to standard 

programs providing services to 

unaccompanied children. In many 

instances, ORR requirements exceed 

requirements of state law, and a 

provider can comply with both without 

acting inconsistent with either. If there 

is a potential conflict between ORR’s 

regulations and state law, ORR will 

review the circumstances to determine 

how to ensure that it is able to meet its 

statutory responsibilities. It is important 

to note, however, that if a State law or 

license, registration, certification, or 

other requirement conflicts with an ORR 

employee’s duties within the scope of 

their ORR employment, the ORR 

employee is required to abide by their 

Federal duties. 

In order to ensure that each 

unaccompanied child receives the same 

minimum services that are necessary to 

support their safety and wellbeing for 

daily living while in ORR care, under 

proposed § 410.1302(c), ORR would 

establish that the services that standard 

programs must provide or arrange for 

each unaccompanied child in care. 

Under proposed § 410.1302(c)(1), ORR 

would establish minimum requirements 

related to the provision of proper 

physical care and maintenance, 

including suitable living 

accommodations, food, drinking water, 

appropriate clothing, personal grooming 

and hygiene items, access to toilets and 

sinks, adequate temperature control and 

ventilation, and adequate supervision to 

protect unaccompanied children from 

others. ORR is additionally proposing to 

require that food be of adequate variety, 

quality, and in sufficient quantity to 

supply the nutrients needed for proper 

growth and development according to 

the USDA Dietary Guidelines for 

Americans,101 and appropriate for the 

child and activity level, and that 

drinking water is always available to 

each unaccompanied child. 

ORR believes that the unique needs 

and background of each unaccompanied 

child should be assessed by standard 

programs to ensure that these needs are 

being addressed and supported by the 

standard program. Therefore, under 

proposed § 410.1302(c)(2), and 

consistent with ORR’s existing policy 

and practice, ORR would require that 

each unaccompanied child receive an 

individualized needs assessment that 

includes: various initial intake forms; 

essential data relating to identification 

and history of the unaccompanied child 

and their family; identification of any 

special needs the unaccompanied child 

may have, including any specific 

problems that appear to require 

immediate intervention; an education 

assessment and plan; whether an 

indigenous language speaker; an 

assessment of family relationships and 

interaction with adults, peers and 

authority figures; a statement of 

religious preference and practice; 

assessment of personal goals, strengths, 

and weaknesses; and identifying 

information regarding immediate family 

members, other relatives, or friends who 

may be residing in the United States and 

may be able to assist in the safe and 

timely release of the unaccompanied 

child to a sponsor. ORR notes that the 

use of ‘‘special needs’’ in this paragraph 

is being included to match Appendix 1 

of the FSA; it is ORR’s preference, for 

the reasons articulated in the preamble 

to §§ 410.1103 and 410.1106, to update 

the language to ‘‘individualized needs,’’ 

and solicits comments on such 

substitution. 

Access to education services for 

unaccompanied children in care from 

qualified professionals is critical to 

avoid lost instructional time while in 

care and ensure unaccompanied 

children are receiving appropriate 

social, emotional and academic 

supports and services. Under proposed 

§ 410.1302(c)(3), ORR would require 

standard programs to provide 

educational services appropriate to the 

unaccompanied child’s level of 

development, communication skills, 

and disability, if applicable. ORR 

believes that this requirement helps 

ensure that educational services are 

tailored to meet the educational and 

developmental needs of unaccompanied 

children, including children with 

disabilities who may require program 

modifications (such as specialized 

instruction), reasonable modifications, 

or auxiliary aids and services. ORR is 

also proposing that educational services 

are required to take place in a structured 

classroom setting, Monday through 

Friday, which concentrate primarily on 

the development of basic academic 

competencies and secondarily on 

English Language Training (ELT). The 

educational services must include 

instruction and educational and other 

reading materials in such languages as 

needed. Basic academic areas must 

include science, social studies, math, 

reading, writing and physical education. 

The services must provide 

unaccompanied children with 

appropriate reading materials in 

languages other than English and 

spoken by the unaccompanied children 

in care for use during their leisure time. 

ORR notes that under 45 CFR 85.51, 

care provider facilities shall also ensure 

effective communication with 

unaccompanied children with 

disabilities. This means the 

communication is as effective as 

communication with children without 

disabilities in terms of affording an 

equal opportunity to participate in the 

UC Program and includes furnishing 

appropriate auxiliary aids and services 

such as qualified sign language 

interpreters, Braille materials, audio 

recordings, note-takers, and written 

materials, as appropriate for the 

unaccompanied child. ORR also notes 

that it is specifying additional staffing 

requirements inclusive of the provision 

of educational and other services 

proposed under § 410.1305. 

ORR strongly believes that time for 

recreation is essential to supporting the 

health and wellbeing of unaccompanied 

children. Under proposed 

§ 410.1302(c)(4), ORR would require 

standard programs to have a recreation 

and leisure time plan that includes daily 

outdoor activity, weather permitting, 

and at least one hour per day of large 

muscle activity and one hour per day of 

structured leisure time activities, which 

does not include time spent watching 

television. Activities must be increased 

to at least three hours on days when 

school is not in session. 

The psychological and emotional 

wellbeing of unaccompanied children 

are an important component of their 

overall health and wellbeing, and 

therefore, consistent with existing 

policy and practice, ORR is proposing 

that these needs must be met by 

standard programs. Under proposed 

§ 410.1302(c)(5), ORR would require 


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102See 45 CFR part 87. 

standard programs to provide 

counseling and mental health supports 

to unaccompanied children that 

includes at least one individual 

counseling session per week conducted 

by certified counseling staff with the 

specific objectives of reviewing the 

unaccompanied child’s progress, 

establishing new short and long-term 

objectives, and addressing both the 

developmental and crisis-related needs 

of each unaccompanied child. Group 

counseling sessions are another way 

that the psychological and emotional 

wellbeing of unaccompanied children 

can be supported while in ORR care. 

Therefore, ORR is proposing to require 

under § 410.1302(c)(6) that group 

counseling sessions are provided at least 

twice a week. These sessions can be 

informal and can take place with all 

unaccompanied children present, 

providing a time when new 

unaccompanied children are given the 

opportunity to get acquainted with the 

staff, other children, and the rules of the 

program. Group counseling sessions can 

provide an open forum where each 

unaccompanied child has an 

opportunity to speak and discuss what 

is on their minds and to resolve 

problems. Group counseling sessions 

can be informal and designed so that 

unaccompanied children do not feel 

pressured to discuss their private issues 

in front of other children. Daily program 

management may be discussed at group 

counseling sessions, allowing 

unaccompanied children to be part of 

the decision-making process regarding 

recreational and other program 

activities, for example. In addition, ORR 

notes that additional mental health and 

substance use disorder treatment 

services are provided to unaccompanied 

children based on their medical needs, 

including specialized care, as 

appropriate, and in person and virtual 

options, depending on what best fits the 

child’s needs. 

Under proposed § 410.1302(c)(7), ORR 

would require that unaccompanied 

children receive acculturation and 

adaptation services that include 

information regarding the development 

of social and inter-personal skills that 

contribute to those abilities necessary to 

live independently and responsibly. 

ORR believes these services are 

important to supporting the social 

development and meeting the cultural 

needs of unaccompanied children in 

standard programs. 

Establishing an admissions process 

that includes assessments that 

unaccompanied children should receive 

upon admission to a standard program 

helps ensure the immediate needs of 

unaccompanied children are met in a 

consistent way, that other needs are 

identified and can be supported while 

in ORR care, and that all 

unaccompanied children are provided a 

standardized orientation and 

information about their care in ORR 

custody. ORR is therefore proposing to 

require in proposed § 410.1302(c)(8)(i) 

that upon admission standard programs 

must address unaccompanied children’s 

immediate needs for food, hydration, 

and personal hygiene needs including 

the provision of clean clothing and 

bedding. Under proposed 

§ 410.1302(c)(8)(ii), standard programs 

must conduct an initial intakes 

assessment covering biographic, family, 

migration, health history, substance use, 

and mental health history of the 

unaccompanied child. If the 

unaccompanied child’s responses to 

questions during any examination or 

assessment indicate the possibility that 

the unaccompanied child may have 

been a victim of human trafficking or 

labor exploitation, the care provider 

facility must notify the ACF Office of 

Trafficking in Persons within twentyfour (24) hours. Care providers must 

also provide unaccompanied children 

with a comprehensive orientation in 

formats accessible to all children 

regarding program intent, services, rules 

(provided in writing and orally), 

expectations, the availability of legal 

assistance, information about U.S. 

immigration and employment/labor 

laws, and services from the Office of the 

Ombuds that are proposed in § 410.2002 

in simple, non-technical terms and in a 

language and manner that the child 

understands, if possible, under 

proposed § 410.1302(c)(8)(iii). In 

conjunction with services supporting 

visitation and contact with family 

members required under proposed 

§ 410.1302(c)(10), newly admitted 

unaccompanied children would receive 

assistance with contacting family 

members, following ORR guidance and 

the standard program’s internal safety 

procedures under proposed 

§ 410.1302(c)(8)(iv). ORR notes that 

medical needs upon admission are 

required to be assessed 

comprehensively under § 410.1307. 

Finally, ORR notes that standard 

programs are required under existing 

§ 411.33 to provide orientation 

information related to sexual abuse and 

sexual harassment and must follow 45 

CFR part 411, subpart E, regarding 

assessment of an unaccompanied child’s 

risk of sexual victimization and 

abusiveness. 

ORR believes the cultural, religious, 

and spiritual needs of unaccompanied 

children should be provided for while 

in ORR care. Therefore, under proposed 

§ 410.1302(c)(9) ORR would require that 

standard programs, whenever possible, 

provide access to religious services of an 

unaccompanied child’s choice, 

celebrating culture-specific events and 

holidays, being culturally aware in daily 

activities as well as food menus, choice 

of clothing, and hygiene routines, and 

covering various cultures in educational 

services. ORR notes that it operates the 

UC Program in compliance with the 

requirements of the Religious Freedom 

Restoration Act and other applicable 

Federal conscience protections, as well 

as all other applicable Federal civil 

rights laws and applicable HHS 

regulations.102

Under proposed § 410.1302(c)(10), 

ORR would require standard programs 

to provide unaccompanied children 

with visitation and contact with family 

members (regardless of their 

immigration status) which is structured 

to encourage such visitation, such as 

offering visitation and contact at regular, 

scheduled intervals throughout the 

week. Standard programs should 

provide unaccompanied children with 

at least 15 minutes of phone or video 

contact three times a week with parents 

and legal guardians, other family 

members, and caregivers located in the 

United States and abroad, in a private 

space that ensures confidentiality and at 

no cost to the unaccompanied child, 

parent, legal guardian, family member, 

or caregiver. ORR emphasizes that this 

is the minimum amount of phone or 

video time that standard programs must 

provide to unaccompanied children and 

that standard programs may provide 

additional time over and above this 

requirement, like daily phone or videos 

calls. Standard programs would also be 

required to respect the unaccompanied 

children’s privacy during visitation 

while reasonably preventing 

unauthorized release of the 

unaccompanied children. ORR notes 

that standard programs should also 

encourage in-person visitation between 

unaccompanied children and parents, 

legal guardians, family members, or 

caregivers (unless there is a documented 

reason to believe there is a safety 

concern) and have policies in place to 

ensure the safety and privacy of 

unaccompanied children and staff, such 

as an alternative public place for visits. 

To facilitate the safe and timely 

release of unaccompanied children to 

sponsors or their family, under 

proposed § 410.1302(c)(11) ORR would 

require standard programs to assist with 

family unification services designed to 

identify and verify relatives in the 


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103See, e.g., 6 U.S.C. 279(b)(1) (describing ORR 

responsibilities including implementing policies 

with the respect to the care of unaccompanied 

children, ensuring the interests of unaccompanied 

children are considered, and overseeing the 

infrastructure and personnel of facilities where 

unaccompanied children reside). 

104ORR also notes that to the extent that a care 

provider has acted contrary to the terms and 

conditions of its funding, they may be subject to 

consequences described at 45 CFR part 75, subpart 

D. 

United States as well as in foreign 

countries and assistance in obtaining 

legal guardianship when necessary for 

release of the unaccompanied children. 

Under proposed § 410.1302(c)(12), 

ORR would require standard programs 

to provide unaccompanied children 

with information on legal services, 

including the availability of free legal 

assistance, and that they may be 

represented by counsel at no expense to 

the government; the right to a removal 

hearing before an immigration judge; the 

ability to apply for asylum with United 

States Citizenship and Immigration 

Services (USCIS) in the first instance; 

and the ability to request voluntary 

departure in lieu of removal. These 

services are foundational to ensuring 

that unaccompanied children are aware 

of their legal rights and have access to 

legal resources. 

Finally, under proposed 

§ 410.1302(c)(13), ORR would require 

standard programs to provide 

information about U.S. child labor laws 

and education around permissible work 

opportunities in a manner that is 

sensitive to the age, culture and native 

language of each unaccompanied child. 

Cultural competency among ORR 

standard programs is considered an 

important component of a successful 

program by ORR and under the FSA. 

Under proposed § 410.1302(d), standard 

programs are required to deliver the 

services included in § 410.1302(c) in a 

manner that is sensitive to the age, 

culture, native language, and the 

complex needs of each unaccompanied 

child. 

Under proposed § 410.1302(e), 

standard programs would be required to 

develop a comprehensive and realistic 

individual service plan for each 

unaccompanied child in accordance 

with the child’s needs as determined by 

the individualized needs assessment. 

Individual plans would be implemented 

and closely coordinated through an 

operative case management system. To 

ensure that service plans are addressing 

meaningful and appropriate goals in 

partnership with unaccompanied 

children, service plans should identify 

individualized, person-centered goals 

with measurable outcomes and note 

steps or tasks to achieve the goals, be 

developed with input from the children, 

and be reviewed and updated at regular 

intervals. Under current practice, this is 

every 30 days the child is in custody 

following the child’s case review. 

Unaccompanied children aged 14 and 

older should be given a copy of the 

plan, and unaccompanied children 

under age 14 should be given a copy of 

the plan when appropriate for that 

particular child’s development. 

Individual plans shall be in that child’s 

native language or other mode of 

auxiliary aid or services and/or by the 

use of clear, easily understood language, 

using concise and concrete sentences 

and/or visual aids and check for 

understanding where appropriate. 

Section 410.1303 Reporting, 

Monitoring, Quality Control, and 

Recordkeeping Standards 

ORR conducts ongoing and multilayered monitoring of all components of 

care provider facilities’ activities. These 

efforts ensure consistent oversight, 

accountability standards and put in 

place checkpoints at regular intervals, 

consistent with ORR’s authorities.103

Proposed § 410.1303 describes how ORR 

would ensure that care provider 

facilities are providing services as 

required by these regulations. Under 

proposed § 410.1303(a), ORR would 

monitor all care provider facilities for 

compliance with the terms of the 

regulations in parts 410 and 411. ORR 

is proposing the types of monitoring 

activities that it would perform: desk 

monitoring, routine site visits, site visits 

in response to ORR or other reports, and 

monitoring visits. Desk monitoring 

would include ongoing oversight from 

ORR headquarters. Examples of desk 

monitoring include monthly check-ins 

by ORR Federal staff with the care 

provider facility, regular record and 

report reviews, financial/budget 

statements analysis, ongoing reviews of 

staff background checks and vetting of 

employees, subcontractors, and 

grantees, and communications review. 

Routine site visits would be day-long 

visits to facilities to review compliance 

for policies, procedures, and practices 

and guidelines. Typically, routine site 

visits occur on a once or twice monthly 

basis, both unannounced and 

announced. Site visits in response to 

ORR or other requests would be visits 

for a specific purpose or investigation 

(e.g., regarding a corrective action plan). 

Routine monitoring visits would be 

conducted as part of comprehensive 

reviews of all care provider facilities. 

Typically, these may be week-long visits 

and are usually conducted by ORR not 

less than every two (2) years. 

When care provider facilities are out 

of compliance with ORR policies and 

procedures, ORR issues a corrective 

action. A list of corrective actions may 

be communicated by ORR to care 

provider facilities, for example, as part 

of a report provided to the care provider 

facility after a monitoring visit. Under 

proposed § 410.1303(b), ORR would 

issue corrective actions to care provider 

facilities when it finds that a care 

provider facility is out of compliance 

with its regulations and sub-regulatory 

policies, including guidance and terms 

of its contracts and cooperative 

agreements. If ORR finds a care provider 

facility to be out of compliance, under 

this paragraph it would communicate 

the concerns in writing to the care 

provider facility’s facility director or 

appropriate person through a written 

monitoring or site visit report, with a 

list of corrective actions and child 

welfare best practice recommendations, 

as appropriate. ORR would request a 

response to the corrective action 

findings from the care provider facility 

and specify a time frame for resolution 

and the disciplinary consequences for 

not responding within the required 

timeframes. Examples of disciplinary 

consequences would include stopping 

placements at the care provider facility 

until all corrective actions have been 

addressed or possible non-renewal of 

the grant for the program, as 

appropriate.104

Proposed § 410.1303(c) describes 

additional monitoring activities that 

ORR would conduct at secure facilities. 

In addition to other monitoring 

activities, consistent with existing 

policy and practice, ORR would review 

individual unaccompanied children’s 

case files to ensure unaccompanied 

children placed in secure facilities are 

assessed at least every 30 days for the 

possibility of a transfer to a less 

restrictive setting. 

Proposed § 410.1303(d) describes 

monitoring of long-term home care and 

transitional home care facilities. ORR 

proposes that long-term and transitional 

foster care homes be subject to the same 

types of monitoring as other ORR care, 

but tailored to the foster care 

arrangement. For example, under 

proposed § 410.1303(d), during on site 

monitoring visits, ORR would be able to 

schedule a visit with the staff of a 

particular home care facility to conduct 

a first-hand assessment of the home 

environment and the care provider’s 

oversight of the home. In addition to 

ORR monitoring, ORR proposes that 

ORR long-term home care and 

transitional home care facilities that 

provide services through a sub-contract 

or sub-grant be responsible for 


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105ORR Unaccompanied Children Policy Guide 

4.3.5. Available at https://www.acf.hhs.gov/orr/ 

policy-guidance/unaccompanied-children-programpolicy-guide-section-4#4.3.5. 

106See 6 U.S.C. 279(b). 

107See 8 U.S.C. 1232(c)(1); see also id. at 1232(b). 

conducting annual monitoring or site 

visits of the sub-recipient, as well as 

weekly desk monitoring. Finally, ORR 

proposes to require that care providers 

provide the findings of such reviews to 

the designated ORR point of contact. 

In proposed § 410.1303(e), ORR 

proposes that the care provider facilities 

develop quality assurance assessment 

procedures that accurately measure and 

evaluate service delivery in compliance 

with the requirements of this part, as 

well as those delineated in 45 CFR part 

411. 

Under proposed § 410.1303(f), ORR 

would establish care provider facility 

reporting requirements. The purpose of 

such reporting is to help ensure that 

incidents involving unaccompanied 

children are documented and responded 

to in a way that protects the best 

interests of children in ORR care, 

including their safety and well-being. 

Requirements on reporting can increase 

safety for children in ORR’s care, and 

promote transparency, accuracy, and 

improvement in the care provided. ORR 

would require care provider facilities to 

report any emergency incident, 

significant incident, or program-level 

event to ORR, and in accordance with 

any applicable Federal, State, and local 

reporting laws. Accurately documenting 

incidents and program-level events is 

essential to ensuring the health and 

wellbeing of all unaccompanied 

children in care. 

ORR proposes under § 410.1303(f)(1) 

to require that care provider facilities 

document incidents and events with 

sufficient detail to ensure that any 

relevant entity can facilitate any 

required follow-up; document incidents 

in a way that is trauma-informed and 

grounded in child welfare best 

practices; and update the report with 

any findings or documentation that are 

made after the fact. Additionally, 

proposed § 410.1303(f)(2) states that 

care provider facilities must never: 

fabricate, exaggerate, or minimize 

incidents; use disparaging or judgmental 

language about unaccompanied children 

in incident reports; use incident 

reporting or the threat of incident 

reporting as a way to manage the 

behavior of unaccompanied children or 

for any other illegitimate reason. By 

‘‘illegitimate reason,’’ ORR means a 

reason that is unrelated to the purposes 

of incident reporting, which as stated 

above are to help ensure that incidents 

involving unaccompanied children are 

documented and responded to in a way 

that protects the best interest of children 

in ORR care, including their safety and 

well-being. Further, illegitimate reasons 

include those that would be 

inconsistent with ORR’s statutory 

responsibilities (e.g., to ensure that the 

interest of the child are considered in 

decisions and actions relating to the 

care and custody of an unaccompanied 

child, to place unaccompanied children 

in the least restrictive setting that is in 

the best interest of the child); or 

inconsistent with these proposed 

regulations and sub-regulatory policies, 

including ORR guidance and the terms 

of its contracts or cooperative 

agreements. 

ORR is proposing limitations on how 

certain reports may be used by ORR or 

care provider facilities. ORR believes 

that these limitations will protect the 

best interests of unaccompanied 

children and put their safety first as 

well as help ensure that reports do not 

become a potential hindrance to 

placement in the least restrictive setting. 

Under proposed § 410.1303(f)(3), ORR 

would prohibit care provider facilities 

from using reports of significant 

incidents as a method of punishment or 

threat towards any child in ORR care for 

any reason. Under proposed 

§ 410.1303(f)(4), ORR is proposing that 

the existence of a report of a significant 

incident may not be used by ORR as a 

basis for an unaccompanied child’s step 

up to a restrictive placement or as the 

sole basis for a refusal to step a child 

down to a less restrictive placement. 

Care provider facilities would likewise 

be prohibited from using the existence 

of a report of a significant incident as a 

basis for refusing an unaccompanied 

child’s placement in their facilities. 

Reports of significant incidents could be 

used as examples or citations of 

concerning behavior; however, the 

existence of a report itself would not be 

sufficient for a step up, a refusal to step 

down, or a care provider facility to 

refuse a placement. 

ORR notes that 45 CFR part 411, 

subpart G, requires reporting to ORR of 

any allegation, suspicion, or knowledge 

of sexual abuse, sexual harassment, 

inappropriate sexual behavior, and Staff 

Code of Conduct 105 violations occurring 

in ORR care, along with any retaliatory 

actions resulting from reporting such 

incidents; ORR also notes that part 411 

requires compliance with required staff 

background checks at subpart B. 

ORR also notes that in proposed 

§ 410.1307(c) ORR proposes to require 

that ORR monitor compliance with the 

requirements to issue required notices 

and documentation for medical services 

requiring heightened ORR involvement, 

as well as the other listed requirements. 

ORR proposes to initiate a Graduated 

Corrective Action Plan, with reporting 

requirements increasing along with 

oversight measures if programs remain 

non-compliant. Please see proposed 

§ 410.1307(c) for more discussion. 

Safeguarding and maintaining the 

confidentiality of unaccompanied 

children’s case file records is critical to 

carrying out ORR’s responsibilities 

under the HSA and the TVPRA. The 

HSA places responsibility on ORR for 

implementing policies with respect to 

the care and placement of 

unaccompanied children, ensuring that 

the interests of the child are considered 

in decisions and actions relating to their 

care and custody, overseeing the 

infrastructure and personnel of facilities 

in which unaccompanied children 

reside, and maintaining data on 

unaccompanied children.106

Additionally, the TVPRA places 

responsibility for the care and custody 

of unaccompanied children on HHS and 

requires HHS to ‘‘establish policies and 

programs to ensure that unaccompanied 

alien children in the United States are 

protected from traffickers and other 

persons seeking to victimize or 

otherwise engage such children in 

criminal, harmful, or exploitative 

activity, including policies and 

programs reflecting best practices in 

witness security programs.’’ 107 These 

program statutes recognize that ORR is 

responsible for maintaining 

unaccompanied children’s records and 

data and that unaccompanied children 

are vulnerable persons, and therefore, 

the privacy and confidentiality of their 

records is paramount. Unaccompanied 

children may have histories of abuse, 

may be seeking safety from threats of 

violence, or may have been trafficked or 

smuggled into the U.S. Accordingly, 

HHS’ longstanding policy is to protect 

from disclosure information about 

unaccompanied children that could 

compromise the children’s and 

sponsors’ location, identity, safety, and 

privacy. 

Consistent with its statutory 

responsibilities, ORR proposes in 

§ 410.1303(g) that all care provider 

facilities must develop, maintain, and 

safeguard the individual case file 

records of unaccompanied children. The 

provisions in § 410.1303(g) would apply 

to all care provider facilities responsible 

for the care and custody of 

unaccompanied children, whether the 

program is a standard program or not. 

ORR notes that under its current 

policies the records of unaccompanied 

children generated in the course of postVerDate Sep<11>2014 21:02 Oct 03, 2023 Jkt 262001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\04OCP2.SGM 04OCP2

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108See 8 FR 46682 (July 18, 2016) (stating that 

‘‘[t]he case file contains information that is 

pertinent to the care and placement of 

unaccompanied children, including . . . postrelease service records[.]’’). 

release services (PRS) are not always 

considered to be included in the 

individual case files of unaccompanied 

children. However, under this proposed 

rule, ORR would consider all 

unaccompanied children’s records, 

including those produced for PRS, to be 

included in the individual case file 

records of unaccompanied children, 

whether generated while the child is in 

ORR custody or after release to their 

sponsor.108 PRS records are created by, 

or on behalf of, ORR and assist ORR in 

coordinating supportive services for the 

child and their sponsor in the 

community where the child resides, as 

authorized under 8 U.S.C. 1232(c)(3)(B), 

which provides HHS authority to 

‘‘conduct follow-up services in cases 

involving children with mental health 

or other needs who could benefit from 

ongoing assistance from a social welfare 

agency.’’ ORR facilitates the provision of 

PRS services through its network of PRS 

providers under cooperative agreements 

with ORR. 

Under proposed § 410.1303(g)(1), ORR 

would require care provider facilities 

and PRS providers to maintain the 

confidentiality of case file records and 

protect them from unauthorized use or 

disclosure. ORR also proposes in 

§ 410.1303(g)(2) that the records in 

unaccompanied children’s case files are 

the property of ORR, whether in the 

possession of ORR a care provider 

facility, or PRS provider, including 

those entities that receive funding from 

ORR through cooperative agreements, 

and care provider facilities and PRS 

providers may not release 

unaccompanied children’s case file 

records or information contained in the 

case files for purposes other than 

program administration without prior 

approval from ORR. This provision 

allows ORR to ensure that disclosure of 

unaccompanied children’s records is 

compatible with program goals, to 

ensure the safety and privacy of 

unaccompanied children, to not 

discourage unaccompanied children 

from disclosing information relevant to 

their care and placement, and to prevent 

potential sponsors from being deterred 

from sponsoring unaccompanied 

children. Further, under 

§ 410.1303(g)(3), ORR would require 

care provider facilities and PRS 

providers to provide the case files of 

unaccompanied children to ORR 

immediately upon ORR’s request. 

Under § 410.1303(g)(4), ORR proposes 

that employees, former employees, or 

contractors of a care provider facility or 

PRS provider must not disclose 

unaccompanied children’s case file 

records or provide information about 

unaccompanied children, their 

sponsors, family or household members 

to anyone except for purposes of 

program administration, without first 

providing advance notice to ORR of the 

request, allowing ORR to ensure that 

disclosure of unaccompanied children’s 

information is compatible with program 

goals and ensures the safety and privacy 

of unaccompanied children. 

Safeguarding unaccompanied children’s 

information is consistent with ORR’s 

responsibilities under its program 

statutes, including 8 U.S.C. 1232(c)(1), 

which requires the Secretary to establish 

‘‘policies and programs reflecting best 

practices in witness security programs,’’ 

and House Report 116–450 

recommendations to restrict sharing 

certain information with other Federal 

agencies. A request for UC case file 

information must be made directly to 

ORR, allowing ORR to consider whether 

disclosure meets these requirements, is 

in the best interest of the 

unaccompanied child, safeguards the 

unaccompanied child’s and their 

sponsor’s, family and household 

member’s personally identifiable and 

protected health information, and is 

compatible with statutory program goals 

and all applicable Federal laws and 

regulations. 

Finally, for purposes of facilitating 

efficient program administration, ORR 

policy is to pre-approve certain limited 

disclosures by ORR grantees and 

contractors such as (1) registration for 

school and for other routine educational 

purposes; (2) routine medical, dental, or 

mental health treatment; (3) emergency 

medical care; (4) to obtain services for 

unaccompanied children in accordance 

with ORR policies; and (5) pursuant to 

all available whistleblower protection 

laws. This pre-approved disclosure 

policy allows ORR to protect the privacy 

and safety of each unaccompanied child 

while also ensuring that certain routine 

and emergency services and treatment 

are provided expeditiously without 

waiting for approval from ORR. 

Proposed § 410.1303(h) would require 

standard programs to maintain adequate 

records and make regular reports as 

required by ORR that permit ORR to 

monitor and enforce the regulations in 

parts 410 and 411 and other 

requirements and standards as ORR may 

determine are in the best interests of 

each unaccompanied child. ORR 

welcomes public comment on these 

proposals. 

Section 410.1304 Behavior 

Management and Prohibition on 

Seclusion and Restraint 

Proposed § 410.1304 describes the 

requirements for behavior management 

and the prohibition on seclusion and 

restraint. ORR proposes these 

requirements consistent with its 

statutory responsibilities to implement 

policies with respect to the care and 

placement of unaccompanied children, 

to place unaccompanied children in the 

least restrictive setting available that is 

in their best interest, and to ensure the 

interest of unaccompanied children are 

considered in decisions and actions 

related to their care and custody. ORR 

understands that its responsibilities 

apply to each unaccompanied child in 

its care, including unaccompanied 

children who are subject to behavioral 

interventions, as well as to other 

unaccompanied children placed at the 

same care provider facility as an 

unaccompanied child who are subject to 

behavioral interventions. 

Effective behavior management is 

critical to supporting the health, safety, 

and wellbeing of unaccompanied 

children in ORR care and can help 

prevent emergencies and safety 

situations. Consistent with ORR’s 

statutory responsibilities, proposed 

§ 410.1304(a) would incorporate FSA 

paragraph 11 requirements and child 

welfare best practices by requiring care 

provider facilities to have behavior 

management strategies that include 

techniques for care provider facilities to 

follow. Under proposed § 410.1304(a), 

care provider facilities must develop 

behavior management strategies that 

include evidence-based, traumainformed, and linguistically responsive 

program rules and behavior 

management policies that take into 

consideration the range of ages and 

maturity of unaccompanied children in 

the program and that are culturally 

sensitive to the needs of each 

unaccompanied child. Examples of 

evidence-based standards and 

approaches may include setting clear 

and healthy expectations and limits for 

their behaviors and the behaviors of 

others, creating a healthy structured 

environment with routines and 

schedules, utilizing positive 

reinforcement strategies and avoiding 

negative reinforcement strategies, and 

fostering a supportive environment that 

encourages cooperation, problemsolving, healthy de-escalation strategies, 

and positive behavioral management 

skills. Further, ORR proposes that the 

behavior management strategies must 

not use any practices that involve 

negative reinforcement or involve 


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consequences or measures that are not 

constructive or not logically related to 

the behavior being regulated. This 

would include, as proposed under 

§ 410.1304(a)(1), prohibiting the use or 

threatened use of corporal punishment, 

significant incident reports as 

punishment, and unfavorable 

consequences related to family/sponsor 

unification or legal matters (e.g., 

immigration, asylum). It would also 

include prohibiting the use of use forced 

chores or activities that serves no 

purpose except to demean or humiliate 

an unaccompanied child, forced 

physical movement, such as push-ups 

and running, or uncomfortable physical 

positions as a form of punishment or 

humiliation; search an unaccompanied 

child’s personal belongings solely for 

the purpose of behavior management, 

and medical interventions that are not 

prescribed by a medical provider acting 

within the usual course of professional 

practice for a medical diagnosis or that 

increase risk of harm to the 

unaccompanied child or others. Under 

proposed § 410.1304(a)(2), ORR would 

require that any sanctions employed not 

adversely affect either an 

unaccompanied child’s health or 

physical, emotional, or psychological 

well-being; or deny an unaccompanied 

child meals, hydration, sufficient sleep, 

routine personal grooming activities, 

exercise (including daily outdoor 

activity), medical care, correspondence 

or communication privileges, or legal 

assistance. ORR notes that under 

proposed § 410.1305 it would require 

training for care provider facility staff 

on the behavior management strategies, 

including the use of de-escalation 

strategies. Under proposed 

§ 410.1304(a)(3), ORR is prohibiting the 

use prone physical restraints, chemical 

restraints, or peer restraints for any 

reason in any care provider facility 

setting. 

Under proposed § 410.1304(b), 

involvement of law enforcement would 

be a last resort and a call by a care 

provider facility to law enforcement 

may trigger an evaluation of staff 

involved regarding their qualifications 

and training in trauma-informed, deescalation techniques. ORR notes that 

calls to law enforcement are not 

considered a behavior management 

strategy, and care provider facilities are 

expected to apply other means to deescalate concerning behavior. But in 

some cases, such as emergencies or 

where the safety of unaccompanied 

children or staff are at issue, care 

provider facilities may need to call 9– 

1–1. ORR also notes that proposed 

§ 410.1302(f) describes requirements for 

care provider facilities regarding the 

sharing of information about 

unaccompanied children. Additionally, 

because ORR would like to ensure law 

enforcement is called in response to an 

unaccompanied child’s behavior only as 

a last resort in emergencies or where the 

safety of unaccompanied children or 

staff are at issue, ORR is requesting 

comment on the process ORR should 

require care provider facilities to follow 

before engaging law enforcement, such 

as the de-escalation strategies that must 

first be attempted and the specific sets 

of behaviors exhibited by 

unaccompanied children that warrant 

intervention from law enforcement. 

Proposed § 410.1304(c) would 

prohibit standard programs and RTCs 

from the use of seclusion as a behavioral 

intervention. ORR notes that this 

prohibition on the use of seclusion 

specifically relates to its potential use as 

a behavioral intervention, and not to a 

medical need for isolation or 

quarantine, as discussed in 

§ 410.1307(a)(10). Standard programs 

and RTCs would also be prohibited from 

using restraints, except as described at 

proposed § 410.1304(d) and (f). In 

emergency safety situations only, ORR 

is proposing that standard programs and 

RTCs are permitted to use personal 

restraint under § 410.1304(d). ORR 

believes that emergency safety 

situations should be prevented 

wherever possible and that personal 

restraint should only be used after deescalation strategies and less restrictive 

approaches have been attempted and 

failed. As such, ORR emphasizes its 

proposed requirements under 

§ 410.1304(a) that behavior management 

strategies used by care provider 

facilities be evidence-based, traumainformed, and linguistically responsive. 

ORR further emphasizes its 

requirements under proposed 

§ 410.1305 that staff must be trained in 

these behavior management strategies, 

including de-escalation techniques, 

In secure facilities, not including 

RTCs, there may be situations where an 

unaccompanied child becomes a danger 

to themselves, other unaccompanied 

children, care provider facility staff, or 

property. As a result, secure facilities 

may need to employ more restrictive 

forms of behavior management than 

shelters or other types of care provider 

facilities in emergency safety situations 

or during transport to or at immigration 

court or asylum interviews when there 

are certain imminent safety concerns. 

ORR notes that under proposed 

§ 410.1303(f) and ORR’s current policy, 

all care provider facilities, regardless of 

setting, are required to report any 

emergency incident, significant 

incident, or program-level event to ORR, 

and in accordance with any applicable 

Federal, State, and local reporting laws. 

Therefore, ORR is proposing under 

§ 410.1304(e)(1) to allow secure 

facilities except for RTCs to use 

personal restraints, mechanical 

restraints, and/or seclusion in 

emergency safety situations. ORR notes 

that under proposed § 410.1304(a)(3) 

that the use of prone physical restraints, 

chemical restraints, or peer restraints is 

prohibited for any reason for all care 

provider facilities, including secure 

facilities. Proposed § 410.1304(e)(2) 

would allow secure facilities to restrain 

an unaccompanied child for their own 

immediate safety or that of others 

during transport to an immigration court 

or an asylum interview. ORR is 

proposing under proposed 

§ 410.1304(e)(3) that secure facilities 

may restrain an unaccompanied child 

while at an immigration court or asylum 

interview if the child exhibits imminent 

runaway behavior, makes violent 

threats, demonstrates violent behavior, 

or if the secure facility has made an 

individualized determination that the 

child poses a serious risk of violence or 

running away if the child is 

unrestrained in court or the interview. 

ORR notes that while secure facilities 

may have safety or runaway risk 

concerns for which they deem restraints 

necessary for certain unaccompanied 

children, immigration judges retain 

discretion to provide input as to 

whether the unaccompanied child 

remains in restraints while in their 

courtroom. ORR is proposing to require 

under § 410.1304(e)(4) that secure 

facilities must provide all mandated 

services under this subpart to an 

unaccompanied child to the greatest 

extent practicable under the 

circumstances while ensuring the safety 

of the unaccompanied child, other 

unaccompanied children at the secure 

facility, and others. Finally, under 

proposed § 410.1304(f) ORR would 

allow care provider facilities to use soft 

restraints (e.g., zip ties and leg or ankle 

weights) only during transport to and 

from secure facilities, and only when 

the care provider believes a child poses 

a serious risk of physical harm to self or 

others or a serious risk of running away 

from ORR custody. 

Section 410.1305 Staff, Training, and 

Case Manager Standards 

Having standards for staff, training, 

and case managers is in the best interest 

of unaccompanied children and is 

supportive to their health and 

development while in ORR care. 

Proposed § 410.1305 would establish 

certain requirements consistent with 


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109See 6 U.S.C. 279(b)(1)(G). 110Operational Challenges Within ORR and the 

ORR Emergency Intake Site at Fort Bliss Hindered 

Case Management for Children. Available at: 

https://oig.hhs.gov/oei/reports/OEI-07-21- 

00251.pdf. 

ORR’s authority to oversee the 

infrastructure and personnel of facilities 

in which unaccompanied children 

reside.109 Under proposed 

§ 410.1305(a), ORR would require that 

standard programs, restrictive 

placements, and post-release service 

providers, must provide training to all 

staff, contractors, and volunteers; and 

that training ensures that staff, 

contractors, and volunteers understand 

their obligations under ORR regulations 

and policies and are responsive to the 

challenges faced by staff and 

unaccompanied children at the facility. 

ORR anticipates that examples of 

training topics under this proposed 

paragraph would include the rights of 

unaccompanied children, including to 

educational services, creating bias free 

environments, supporting children with 

disabilities, supporting the mental 

health needs of unaccompanied 

children, trauma, child development, 

prevention of sexual abuse, the 

identification of victims of human 

trafficking, and racial and cultural 

sensitivity. Standard programs and 

restrictive placements would also be 

required to ensure that staff are 

appropriately trained on its behavior 

management strategies, including deescalation techniques, as established 

pursuant to proposed § 410.1304. All 

trainings would be required to be 

tailored to the unique needs, attributes, 

and gender of the unaccompanied 

children in care at the individual care 

provider facility. For example, staff who 

work with early childhood 

unaccompanied children should be 

provided training in early childhood 

care best practices. Additionally, case 

managers should be trained on child 

welfare best practices before providing 

services to children.110 Care provider 

facilities must document the completion 

of all trainings in personnel files. In 

addition to training, ORR would require 

all staff to complete background check 

requirements and vetting for their 

respective roles prior to service 

provision and care provider facilities 

would need to provide documentation 

to ORR of compliance. 

Under proposed § 410.1305(b) 

standard programs and restrictive 

placements would be required to meet 

the staff to child ratios established by 

their respective states or other licensing 

entities, or ratios established by ORR if 

state licensure is not available. Under 

current practice, ORR generally requires 

staffing ratios of a minimum of 1 staff 

to 8 unaccompanied children during the 

day and 1 staff to 16 unaccompanied 

children at night while children are 

sleeping. If, however, state requirements 

require a stricter staff to child ratio, then 

under proposed § 410.1305(b), ORR 

likewise would require the care 

provider to abide by that smaller ratio. 

Standard programs and restrictive 

placements are required to provide case 

management services in their facilities. 

Effective case management systems and 

policy are important to ensuring care 

provider facilities are effective in 

attaining positive outcomes for 

unaccompanied children. Areas for 

attention include specifying case 

manager to unaccompanied child ratios 

that take the occupancy level of the 

facility into account, ensuring that case 

management staff are site-based and 

provide their services in person, and 

ensuring that case management staffing 

levels are appropriate to meet ORR’s 

standards for the length of care of 

unaccompanied children. ORR is 

proposing to require under § 410.1305(c) 

that standard programs and restrictive 

placements have case managers based at 

the facility’s site. To meet the unique 

needs of a given facility, ORR could 

then determine the appropriate ratio of 

case managers per unaccompanied child 

through its cooperative agreements and 

contracts with care provider facilities, as 

appropriate. This will allow ORR to 

include changes in the staffing ratio 

relative to the occupancy of 

unaccompanied children at the facility 

and consider the policies related to 

unaccompanied children’s length of 

stay. 

Section 410.1306 Language Access 

Services 

Proposed § 410.1306 describes 

requirements to provide language 

accessibility for unaccompanied 

children. ORR believes that it is 

important to establish specific, 

minimum language access requirements, 

which are critical to ensuring that 

unaccompanied children understand 

their rights, the release process, and the 

services they may receive while in ORR 

care. 

Under proposed § 410.1306(a), 

standard programs and restrictive 

placements would be required, to the 

greatest extent practicable, to 

consistently offer all unaccompanied 

children the option of interpretation and 

translation services in their native or 

preferred language, depending on their 

preference, and in a way they 

understand to the greatest extent 

practicable. ORR notes that under 45 

CFR 85.51, standard programs and 

restrictive placements shall also ensure 

effective communication with 

unaccompanied children with 

disabilities. This includes furnishing 

appropriate auxiliary aids and services 

such as qualified sign language 

interpreters, Braille materials, audio 

recordings, note-takers, and written 

materials, as appropriate for the 

unaccompanied child. Under ORR’s 

existing policies, standard programs and 

restrictive placements are required to 

make every effort possible to provide 

interpretation and translation services; 

however, ORR believes it is important to 

propose the additional requirement that 

standard programs and restrictive 

placements consistently offer each 

unaccompanied child the option of 

effective interpretation and translation 

services to ensure meaningful and 

timely access to these services. If 

standard programs and restrictive 

placements are unable to obtain a 

qualified interpreter or translator in the 

unaccompanied children’s native or 

preferred language, depending on their 

preference, after taking reasonable 

efforts, standard programs and 

restrictive placements would then be 

required to consult with qualified ORR 

staff (under current policy, the Federal 

Field Specialist and Project Officer) for 

guidance on how to provide meaningful 

access to their programs and activities to 

children with limited English 

proficiency. Standard programs and 

restrictive placements would be 

permitted to use professional telephonic 

interpreter services after they take 

reasonable efforts to obtain in-person, 

qualified interpreters (as defined). ORR 

believes that these proposals strike a 

good balance between the importance of 

interpretation and translation services 

and the reality of the vast array of 

language access needs of 

unaccompanied children. Standard 

programs and restrictive placements 

would also be required to translate all 

documents and materials shared with 

unaccompanied children in their native 

or preferred language, depending on 

their preference, and in a timely 

manner. 

To ensure efficient and reliable access 

to necessary interpretation and 

translation services during placement, 

under § 410.1306(b) ORR would be 

required to make placement decisions 

informed by language access 

considerations. To the extent it is 

appropriate and practicable, giving due 

consideration to unaccompanied child’s 

individualized needs, ORR would place 

unaccompanied children with similar 

language needs within the same 

standard program or restrictive 


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111See 45 CFR 87.3(a). 

placement. ORR believes that this 

would further ensure the efficient use of 

resources while also considering the 

need for timely and appropriate 

placement. 

Proposed § 410.1306(c) would codify 

language access requirements during 

intake, orientation, and while informing 

unaccompanied children of their rights 

to confidentiality and limits of 

confidentiality of information while in 

ORR care. Under current ORR practice, 

among other things, standard programs 

and heightened supervision facilities 

complete an initial intakes assessment 

of an unaccompanied child; provide a 

standardized orientation that is 

appropriate for the age, culture, 

language, and accessibility needs of the 

unaccompanied child; and complete a 

UC Assessment that covers biographic, 

family, legal/migration, medical, 

substance use, and mental health 

history and is subject to ongoing 

updates. Under current practice, 

standard programs and restrictive 

placements provide unaccompanied 

children with a Disclosure Notice, 

which is an ORR document explaining 

the limits to the confidentiality of 

information unaccompanied children 

share while in ORR care and custody, as 

well as the types of information that 

standard programs and restrictive 

placements and ORR must share if 

disclosed by the unaccompanied 

children for the safety of the 

unaccompanied children or for the 

safety of others. 

Under proposed § 410.1306(c)(1), 

standard programs and restrictive 

placements would be required both to 

provide a written notice of the limits of 

confidentiality they share while in ORR 

care and custody, and to orally explain 

the contents of the written notice to the 

unaccompanied children, in their native 

preferred language, depending on their 

preference, and in a way they can 

effectively understand. Standard 

programs and restrictive placements 

would be required to do both prior to 

the completion of the UC Assessment, 

and prior to unaccompanied children 

starting counseling services as proposed 

at § 410.1302(c)(5) and (6). 

Under proposed § 410.1306(c)(2), 

standard programs and restrictive 

placements would be required to ensure 

assessments and initial medical exams 

are conducted in the unaccompanied 

children’s native or preferred language, 

depending on their preference, and in a 

way they effectively understand. 

Proposed § 410.1306(c)(3) would require 

that standard programs and heightened 

supervision facilities provide a 

standardized and comprehensive 

orientation to all unaccompanied 

children within 48 hours of admission 

in the unaccompanied children’s native 

or preferred language and in a way they 

effectively understand regardless of 

spoken language, reading 

comprehension level, or disability. 

Further, under proposed 

§ 410.1306(c)(4), for all step-ups to and 

step-downs from restrictive placements, 

standard programs and restrictive 

placements would be required to 

specifically explain to the 

unaccompanied children why they were 

placed in a restrictive placement or, if 

stepped down, why their placement was 

changed, while doing so in the 

unaccompanied children’s native or 

preferred language, and in a way they 

effectively understand. 

Under proposed § 410.1306(c)(5), if 

the unaccompanied children are not 

literate, or if documents provided 

during intakes and/or orientation are 

not in a language that they can read and 

effectively understand, standard 

programs and restrictive placements 

would be required to have a qualified 

interpreter orally translate or sign 

language translate and explain all the 

documents in the unaccompanied 

children’s native or preferred language, 

depending on their preference, and 

confirm with the unaccompanied 

children that they fully comprehend all 

materials. Additionally, at proposed 

§ 410.1306(c)(6) and (7), standard 

programs and restrictive placements 

would be required to provide 

unaccompanied children information 

regarding grievance and ORR’s sexual 

abuse and harassment policies and 

procedures in the unaccompanied 

children’s native or preferred language, 

based on their preference, and in a way 

they effectively understand. Under 

§ 410.1306(c)(8), standard programs and 

restrictive placements would be 

required to notify the unaccompanied 

children that standard programs and 

restrictive placements will 

accommodate the unaccompanied 

children’s language needs while they 

remain in ORR care. 

Under proposed § 410.1306(c)(9), with 

respect to all requirements described in 

proposed § 410.1306(c), standard 

programs and restrictive placements 

would be required to document in each 

unaccompanied children’s case file that 

they acknowledged that they effectively 

understand what was provided to them. 

Proposed § 410.1306(d) describes 

requirements regarding language access 

and education. In order to provide 

meaningful education services to 

unaccompanied children, ORR believes 

that it is important to ensure that 

educational services are presented to 

unaccompanied children in a language 

that is accessible to them. Proposed 

§ 410.1306(d)(1) would require standard 

programs and heightened supervision 

facilities to provide educational 

instruction and relevant materials in a 

format and language accessible to all 

unaccompanied children, regardless of 

their native or preferred language, 

including by providing in-person 

interpretation, professional telephonic 

interpretation, and written translations, 

all by qualified interpreters or 

translators. Proposed § 410.1306(d)(2) 

would require standard programs and 

heightened supervision facilities to 

provide recreational reading materials 

in formats and languages accessible to 

all unaccompanied children, which 

would facilitate their out-of-class 

enrichment and engagement. Proposed 

§ 410.1306(d)(3) would require standard 

programs and heightened supervision 

facilities to translate all ORR-required 

documents provided to unaccompanied 

children for use in educational lessons, 

in formats and languages accessible to 

all unaccompanied children. 

ORR believes that it is important to 

ensure that the unaccompanied 

children’s religious and cultural 

expressions, practices, and identities are 

accommodated to the extent practicable. 

Accordingly, under proposed 

§ 410.1306(e), when an unaccompanied 

child makes a reasonable request for 

religious and/or cultural information or 

other religious/cultural items, such as 

books or clothing, the standard program 

or heightened supervision facility 

would be required to provide the 

applicable items, in the unaccompanied 

child’s native or preferred language, 

depending on the unaccompanied 

child’s preference. At the same time, 

with respect to the obligations of care 

provider facilities, ORR notes that it 

operates the Unaccompanied Children 

program in compliance with the 

requirements of the Religious Freedom 

Restoration Act and other applicable 

Federal conscience protections, as well 

as all other applicable Federal civil 

rights laws and applicable HHS 

regulations.111

ORR proposes in § 410.1306(f) that 

standard programs and restrictive 

placements would be required to utilize 

any necessary professional 

interpretation or translation services 

needed to ensure meaningful access by 

an unaccompanied child’s parent(s), 

guardian(s), and/or potential sponsor(s). 

Standard programs and restrictive 

placements would also be required to 

translate all documents and materials 

shared with the parent(s), guardian(s), 

and/or potential sponsors in their native 


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or preferred language, depending on 

their preference. ORR notes that under 

45 CFR 85.51, standard programs and 

restrictive placements shall also ensure 

effective communication with parent(s), 

guardian(s), and/or potential sponsor(s) 

with disabilities. 

ORR acknowledges the importance of 

making appropriate interpretation and 

translation services available to all 

unaccompanied children while 

receiving healthcare services so that 

they understand the services that are 

being offered and/or provided. Under 

proposed § 410.1306(g), while 

unaccompanied children are receiving 

healthcare services, standard programs 

and restrictive placements would be 

required to ensure that unaccompanied 

children are able to communicate with 

physicians, clinicians, and other 

healthcare staff in their native or 

preferred language, depending on their 

preference, and in a way they effectively 

understand, prioritizing services from 

an in-person, qualified interpreter 

before using professional telephonic 

interpretation services. 

Section 410.1306(h) proposes 

language access requirements for 

standard programs and restrictive 

placements while unaccompanied 

children receive legal services. To 

facilitate unaccompanied children 

receiving effective legal services, ORR 

believes that it is essential that 

unaccompanied children understand 

the legal services offered to them and 

the process for participation in removal 

proceedings post-release, and 

accordingly, unaccompanied children 

should be provided with meaningful 

access to language services as relates to 

legal services. ORR is proposing to 

require that standard programs and 

restrictive placements make qualified 

interpretation and translation services 

available upon request to 

unaccompanied children, child 

advocates, and legal service providers 

while unaccompanied children are 

being provided with legal services. 

Additionally, ORR proposes in 

§ 410.1306(i) that interpreters and 

translators would be required to keep 

information about the unaccompanied 

children’s cases and/or services 

confidential from non-ORR grantees, 

contractors, and Federal staff. 

Section 410.1307 Healthcare Services 

The provision of healthcare to 

unaccompanied children is 

foundational to their health and 

wellbeing and to supporting their 

childhood development. Therefore, 

proposed § 410.1307(a) would codify 

that ORR shall ensure the provision of 

appropriate routine medical and dental 

care; access to medical services 

requiring heightened ORR involvement, 

consistent with § 410.1307(c); family 

planning services; and emergency 

health services in standard programs 

and restrictive placements. This 

proposed paragraph would codify 

corresponding requirements from 

Exhibit 1 of the FSA. Further, under 

proposed § 410.1307(b), care providers 

must establish a network of licensed 

healthcare providers, including 

specialists, emergency care services, 

mental health practitioners, and dental 

providers that will accept ORR’s fee-forservice billing system under proposed 

§ 410.1307(b)(1). To assess the unique 

healthcare needs of each 

unaccompanied child, consistent with 

existing policy and practice, ORR is 

including a requirement that 

unaccompanied children receive a 

complete medical examination 

(including screening for infectious 

disease) within two business days of 

admission unless an unaccompanied 

child was recently examined at another 

facility and if an unaccompanied child 

is still in ORR custody 60 to 90 days 

after admission, an initial dental exam, 

or sooner if directed by state licensing 

requirements under proposed 

§ 410.1307(b)(2). 

In order to prevent the spread of 

diseases in care provider facilities and 

avoid preventable illness among 

unaccompanied children, ORR is also 

proposing to require appropriate 

immunizations as recommended by the 

Advisory Committee on Immunization 

Practices’ Child and Adolescent 

Immunization Schedule and approved 

by HHS’ Centers for Disease Control and 

Prevention under proposed 

§ 410.1307(b)(3). To aid in the early 

detection of potential health conditions 

and ensure unaccompanied children’s 

health conditions are appropriately 

managed, under proposed 

§ 410.1307(b)(4) ORR would require an 

annual physical examination, including 

hearing and vision screening, and 

follow-up care for acute and chronic 

conditions. ORR notes that it facilitates 

an array of health services, such as 

medications, surgeries, or other followup care, that have been ordered or 

prescribed by a healthcare provider. 

ORR would require the administration 

of prescribed medication and special 

diets under proposed § 410.1307(b)(5) 

and appropriate mental health 

interventions when necessary under 

proposed § 410.1307(b)(6). ORR notes 

that it is proposing to require routine 

individual and group counseling session 

at proposed § 410.1302(c)(5) and (6). 

There are a number of policies and 

procedures related to medical care and 

medications that ORR is proposing to 

require in order to promote health and 

safety at their facilities. Under proposed 

§ 410.1307(b)(7), care provider facilities 

must have policies and procedures for 

identifying, reporting, and controlling 

communicable diseases that are 

consistent with applicable State, local, 

and Federal laws and regulations. Under 

proposed § 410.1307(b)(8), care provider 

facilities must have policies and 

procedures that enable unaccompanied 

children, including those with language 

and literacy barriers, to convey written 

and oral requests for emergency and 

non-emergency healthcare services. 

Finally, under proposed 

§ 410.1307(b)(9), ORR would require 

care provider facilities have policies and 

procedures based on state or local laws 

and regulations to ensure the safe, 

discreet, and confidential provision of 

prescription and nonprescription 

medications to unaccompanied 

children, secure storage of medications, 

and controlled administration and 

disposal of all drugs. A licensed 

healthcare provider must write or orally 

order all nonprescription medications 

and oral orders must be documented in 

the unaccompanied child’s file. 

At times, the use of medical isolation 

or quarantine for unaccompanied 

children may be required to prevent the 

spread of an infectious disease due to a 

potential exposure. Proposed 

§ 410.1307(b)(10) would allow 

unaccompanied children to be placed in 

medical isolation and excluded from 

contact with general population when 

medically necessary to prevent the 

spread of an infectious disease due to a 

potential exposure, protect other 

unaccompanied children and care 

provider facility staff for a medical 

purpose or as required under state, 

local, or other licensing rules, as long as 

the medically required isolation is 

limited to only the extent necessary to 

ensure the health and welfare of the 

unaccompanied child, other 

unaccompanied children at a care 

provider facility and care provider 

facility staff, or the public at large. To 

ensure that unaccompanied children 

have access to necessary services during 

medical isolation, ORR is proposing that 

care provider facilities must provide all 

mandated services under this subpart to 

the greatest extent practicable under the 

circumstances of the medical isolation. 

A medically isolated unaccompanied 

child still must be supervised under 

state, local, or other licensing ratios, 

and, if multiple unaccompanied 

children are in medical isolation, they 

should be placed in units or housing 

together (as practicable, given the nature 


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112See, e.g., Administration for Children and 

Families. FIELD GUIDANCE—Issued Oct. 1, 2021, 

revised Nov. 10, 2022, RE: Field Guidance #21— 

Compliance with Garza Requirements and 

Procedures for Unaccompanied Children Needing 

Reproductive Healthcare, available at https://

www.acf.hhs.gov/sites/default/files/documents/orr/ 

field-guidance-21.pdf. See also 45 CFR 411.92(d). 

See also 45 CFR 411.92(d) (requiring timely and 

comprehensive information about lawful 

pregnancy-related medical services and timely 

access to such services for unaccompanied children 

who experience sexual abuse while in ORR care). 

ORR notes that it was a party to a settlement 

agreement reached in Federal litigation concerning 

unaccompanied children’s access to abortion (Garza 

settlement). See Joint Stipulation of Dismissal 

Without Prejudice, J.D. v. Azar, No. 1:17–cv–02122 

(D.D.C. Sep. 29, 2020), ECF No. 168. ORR 

implemented various policies to effectuate the 

terms of the Garza settlement. 

113See 6 U.S.C. 279(b)(1)(B), (E). 

114See, e.g., Consolidated Appropriations Act, 

2023, Public Law 117–328, Div. H, tit. V, sections 

506–507; see also Department of Justice, Office of 

Legal Counsel, Application of the Hyde 

Amendment to the Provision of Transportation for 

Women Seeking Abortions (Sept. 27, 2022), https:// 

www.justice.gov/d9/2022-11/2022-09-27-hyde_

amendment_application_to_hhs_

transportation.pdf. 

115See 45 CFR part 87. 

116See GAO, April 19, 2016, ‘‘Unaccompanied 

Children: HHS Should Improve Monitoring and 

Information Sharing Policies to Enhance Child 

Advocate Program Effectiveness,’’ GAO–16–367. 

or type of medical issue giving rise to 

the requirement for isolation in the first 

instance). 

In § 410.1307(c), ORR proposes 

requirements ensuring access to medical 

care for unaccompanied children. At 

§ 410.1307(c)(1), consistent with the 

requirements of proposed § 410.1103, 

ORR proposes that to the greatest extent 

possible, an unaccompanied child 

whom ORR determines requires medical 

care or who reasonably requests such 

medical care will be placed in a care 

provider facility that has available and 

appropriate bed space, is able to care for 

such an unaccompanied child, and is in 

a location where the relevant medical 

services are accessible. This proposal 

aligns with proposed subpart B, 

Determining the Placement of an 

Unaccompanied Child at a Care 

Provider Facility, which would require 

that ORR place unaccompanied children 

in the least restrictive setting that is in 

the best interest of the child and 

appropriate to the child’s age and 

individualized needs, and that ORR 

considers ‘‘any specialized services or 

treatment required’’ when determining 

placement of all unaccompanied 

children. 

Additionally, ORR proposes that if an 

initial placement in a care provider 

facility that meets the requirements in 

§ 410.1307(c)(1) is not immediately 

available or if a medical need or 

reasonable request, as described in 

§ 410.1307(c)(1), arises after the Initial 

Medical Exam, ORR shall transfer the 

unaccompanied child to a care provider 

facility that is able to accommodate the 

medical needs of the unaccompanied 

child. If the medical need is identified, 

or the reasonable request is received, 

after the Initial Medical Exam, the care 

provider facility shall immediately 

notify ORR. This proposal aligns with 

subpart G, Transfers, which would 

require transfer of an unaccompanied 

child within the ORR care provider 

facility network when it is determined 

that an alternate placement for the 

unaccompanied child that would best 

meet the child’s individual needs. Care 

provider facilities would be required to 

follow the process proposed in subpart 

G such as submitting a transfer 

recommendation to ORR for approval 

within three (3) business days of 

identifying the need for a transfer. 

As described in § 410.1307(c)(2), ORR 

proposes to codify requirements 

ensuring that unaccompanied children 

are provided transportation to access 

medical services, including across state 

lines if necessary, and associated 

ancillary services. This would ensure 

unaccompanied children can access 

appointments with medical specialists 

(e.g., neonatologists, oncologists, 

pediatric cardiologists, pediatric 

surgeons, or others), family planning 

services, prenatal services and 

pregnancy care, or care that may be 

geographically limited including but not 

limited to an unaccompanied child’s 

need or request for medical services 

requiring heightened ORR involvement. 

This proposal is consistent with current 

policy, as noted in subpart E, 

Transportation of an Unaccompanied 

Child, that ORR, or its care provider 

facilities, provide transportation for 

purposes of service provision including 

medical services. If there is a potential 

conflict between ORR’s regulations and 

state law, ORR will review the 

circumstances to determine how to 

ensure that it is able to meet its statutory 

responsibilities. It is important to note, 

however, that if a State law or license, 

registration, certification, or other 

requirement conflicts with an ORR 

employee’s duties within the scope of 

their ORR employment, the ORR 

employee is required to abide by their 

Federal duties. 

These proposals maintain existing 

policy that ORR must not prevent 

unaccompanied children in ORR care 

from accessing healthcare services, 

which may include medical services 

requiring heightened ORR involvement 

or family planning services, and must 

make reasonable efforts to facilitate 

access to those services if requested by 

the unaccompanied child.112 This 

includes providing transport across state 

lines and associated ancillary services if 

necessary to access appropriate medical 

services, including access to medical 

specialists and medical services 

requiring heightened ORR involvement. 

Under these proposals, ORR will 

continue to facilitate access to medical 

services requiring heightened ORR 

involvement, including access to 

abortions, in light of ORR’s statutory 

responsibility to ensure that the 

interests of the unaccompanied child 

are considered in decisions and actions 

relating to their care and custody, and 

to implement policies with respect to 

their care and placement.113 ORR would 

continue to permit such access in a 

manner consistent with limitations on 

the use of Federal funds for abortions 

which are regularly included in HHS’ 

annual appropriations, commonly 

referred to as the ‘‘Hyde 

Amendment.’’ 114 Consistent with 

current policy, ORR will facilitate such 

access regardless of whether the Federal 

Government may pay for the abortion 

under the Hyde Amendment. ORR 

further notes that it operates the UC 

Program in compliance with the 

requirements of the Religious Freedom 

Restoration Act and other applicable 

Federal conscience protections, as well 

as all other applicable Federal civil 

rights laws and applicable HHS 

regulations.115

Lastly, ORR proposes a requirement 

in § 410.1307(d) that care provider 

facilities shall notify ORR within 24 

hours of an unaccompanied child’s need 

or request for a medical service 

requiring heightened ORR involvement 

or the discovery of a pregnancy. This 

proposal is consistent with ORR’s 

current policy requirements for 

notifying ORR of significant incidents 

and medical services requiring 

heightened ORR involvement. 

Section 410.1308 Child Advocates 

ORR proposes, at § 410.1308, to codify 

standards and requirements relating to 

the appointment of independent child 

advocates for child trafficking victims 

and other vulnerable unaccompanied 

children (see particularly statement at 

proposed § 410.1308(a). The TVPRA, at 

8 U.S.C. 1232(c)(6), authorizes HHS to 

appoint child advocates for child 

trafficking victims and other vulnerable 

unaccompanied children. In 2016, the 

Government Accountability Office 

(GAO) carried out an assessment of the 

ORR child advocate program 116 and 

recommended improving ORR 

monitoring of contractor referrals to the 

program, as well as improving 

information sharing with child 


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117See 8 U.S.C. 1232(c)(6)(A) (‘‘. . . A child 

advocate shall be provided access to materials 

necessary to effectively advocate for the best 

interest of the child . . .’’). 

advocates regarding the unaccompanied 

children assigned to them. ORR notes 

that the need for child advocates in 

helping to protect the interests of 

unaccompanied children has continued 

to grow over time, especially given the 

increasing numbers of unaccompanied 

children who are referred to ORR 

custody. Proposed § 410.1308 is 

intended to codify specific child 

advocates’ roles and responsibilities 

which are currently described primarily 

in ORR policy documents. 

At § 410.1308(b), ORR proposes to 

define the role of child advocates as 

third parties who identify and make 

independent recommendations 

regarding the best interest of 

unaccompanied children. The 

recommendations of child advocates are 

based on information obtained from the 

unaccompanied children and other 

sources (including the unaccompanied 

child’s parents, family, potential 

sponsors/sponsors, government 

agencies, legal service providers, 

protection and advocacy system 

representatives in appropriate cases, 

representatives of the unaccompanied 

child’s care provider, health 

professionals, and others). Child 

advocates formally submit their 

recommendations to ORR and/or the 

immigration court as written best 

interest determinations (BIDs). ORR 

considers BIDs when making decisions 

regarding the care, placement, and 

release of unaccompanied children, but 

it is not bound to follow BID 

recommendations. 

With respect to the role of child 

advocates, ORR considered several ways 

to strengthen or expand the role, 

including granting child advocates 

rights of access to ORR records and 

information on unaccompanied children 

(in order to advocate for unaccompanied 

children more effectively); allowing 

advocates to be present at all ORR 

hearings and interviews with their 

client (excepting meetings between an 

unaccompanied child and their attorney 

or EOIR accredited representative); and 

expanding the child advocates program 

to operate at more locations, or 

expanding eligibility for the program to 

allow unaccompanied children who age 

past their 18th birthday to continue 

receiving advocates’ services. ORR 

considered the suggestions it received, 

and notes that, as required by the 

TVPRA, it already provides child 

advocates with access to materials 

necessary to effectively advocate for the 

best interest of unaccompanied 

children. In particular, per current ORR 

policies, and as reflected in this section, 

child advocates have access both to 

their clients and to their clients’ records. 

Child advocates may access their 

clients’ entire original case files at care 

provider facilities, or request copies 

from care providers. Further, they may 

participate in case staffings, which are 

meetings organized by an 

unaccompanied child’s care provider 

with other relevant stakeholders to help 

discuss and plan for the unaccompanied 

child’s care. In drafting this NPRM, ORR 

believes that the proposed language at 

§ 410.1308(b) (together with other 

paragraphs proposed in § 410.1308) 

represent an appropriate balance in 

codifying the role of child advocates. 

ORR invites comment on these issues, 

and on the proposals of § 410.1308(b). 

At paragraph § 410.1308(c), ORR 

proposes to specify the responsibilities 

of child advocates, which include: (1) 

visiting with their unaccompanied 

children clients, (2) explaining the 

consequences and potential outcomes of 

decisions that may affect the 

unaccompanied child, (3) advocating for 

the unaccompanied child client’s best 

interest with respect to care, placement, 

services, release, and, where 

appropriate, within proceedings to 

which the child is a party, (4) providing 

best interest determinations, where 

appropriate and within a reasonable 

time to ORR, an immigration court, and/ 

or other interested parties involved in a 

proceeding or matter in which the child 

is a party or has an interest, and (5) 

regularly communicating case updates 

with the care provider, ORR, and/or 

other interested parties in the planning 

and performance of advocacy efforts, 

including updates related to services 

provided to unaccompanied children 

after their release from ORR care. 

Consistent with the TVPRA at 8 

U.S.C. 1232(c)(6)(A), under proposed 

§ 410.1308(d), ORR may appoint child 

advocates for unaccompanied children 

who are victims of trafficking or are 

especially vulnerable. Under proposed 

§ 410.1308(d)(1), an interested party 

may refer an unaccompanied child to 

ORR for a child advocate after notifying 

ORR that a particular unaccompanied 

child in or previously in ORR’s care is 

a victim of trafficking or is especially 

vulnerable. As used in this section, 

‘‘interested parties’’ means individuals 

or organizations involved in the care, 

service, or proceeding involving an 

unaccompanied child, including but not 

limited to, ORR Federal or contracted 

staff; an immigration court judge; DHS 

staff; a legal service provider, attorney of 

record, or EOIR accredited 

representative; an ORR care provider; a 

healthcare professional; or a child 

advocate organization. Under proposed 

§ 410.1308(d)(2), ORR would make an 

appointment decision within five (5) 

business days of referral for a child 

advocate, except under exceptional 

circumstances including, but not 

limited to, natural disasters (such as 

hurricane, fire, or flood) or operational 

capacity issues due to influx which may 

delay a decision regarding an 

appointment. ORR typically would 

consider the available resources, 

including the availability of child 

advocates in a particular region, when 

appointing a child advocate for 

unaccompanied children in ORR care. 

ORR would appoint child advocates 

only for unaccompanied children who 

are currently in or were previously in 

ORR care. And under proposed 

§ 410.1308(d)(3), child advocate 

appointments would terminate upon the 

closure of the unaccompanied child’s 

case by the child advocate, when the 

unaccompanied child turns 18, or when 

the unaccompanied child obtains lawful 

immigrant status. Regarding the 

appointment of child advocates, ORR 

considered allowing that any 

stakeholder should be able to make a 

confidential referral of an 

unaccompanied child for child advocate 

services, and also that any termination 

of such services should be determined 

in collaboration with the 

unaccompanied child and the 

unaccompanied child’s parent or legal 

guardian (if applicable). In terms of 

referrals, proposed § 410.1308(d) would 

allow for referrals for child advocate 

services from a broad range of possible 

individuals. In terms of terminating 

child advocate services, ORR considered 

making terminations contingent on a 

collaborative process between the child 

advocate, the unaccompanied child, and 

the unaccompanied child’s sponsor, but 

ORR believes that the current proposal 

at § 410.1308(d)(3) would impose 

reasonable limits for the termination of 

child advocate services, and that 

termination itself otherwise falls within 

the role and responsibilities of child 

advocates when advocating for an 

unaccompanied child’s best interests. 

Under § 410.1308(e), ORR proposes 

standards concerning child advocates’ 

access to information about 

unaccompanied children for whom they 

are appointed. After a child advocate is 

appointed for an unaccompanied child, 

the child advocate would be provided 

access to materials to effectively 

advocate for the best interest of the 

unaccompanied child.117 Consistent 

with existing policy, child advocates 

would be provided access to their 


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

119See 8 U.S.C. 1232(c)(6)(A). 

120See 6 U.S.C. 279(b)(1)(B), (E), and (G). 

clients during normal business hours at 

an ORR care provider facility in a 

private area, would be provided access 

to all their client’s case file information, 

and may request copies of the case file 

directly from the unaccompanied 

child’s care provider without going 

through ORR’s standard case file request 

process, subject to confidentiality 

requirements described below. A child 

advocate would receive timely notice 

concerning any transfer of an 

unaccompanied child assigned to them. 

Under § 410.1308(f), ORR proposes 

standards for a child advocate’s 

responsibility with respect to 

confidentiality of information. 

Notwithstanding the access to their 

clients’ case file information granted to 

child advocates under proposed 

paragraph (e), child advocates would be 

required to keep the information in the 

case file, and information about the 

unaccompanied child’s case, 

confidential. Child advocates would be 

prohibited from sharing case file 

information with anyone except with 

ORR grantees, contractors, and Federal 

staff. Child advocates would not be 

permitted to disclose case file 

information to other parties, including 

parties with an interest in a child’s case. 

Other parties are able to request an 

unaccompanied child’s case file 

information according to existing 

procedures. ORR proposes these 

protections consistent with its interest 

in protecting the privacy of 

unaccompanied children in its care, and 

for effective control and management of 

its records. Proposed § 410.1308(f) also 

establishes that, with regard to an 

unaccompanied child in ORR care, ORR 

would allow the child advocate of that 

unaccompanied child to conduct private 

communications with the child, in a 

private area that allows for 

confidentiality for in-person and virtual 

or telephone meetings. In drafting 

proposed § 410.1308(f), ORR considered 

suggestions that a child advocate should 

be protected from compelled disclosure 

of any information concerning an 

unaccompanied child shared with them 

in the course of their advocacy work 

and that unaccompanied children and 

child advocates must have access to 

private space to ensure confidentiality 

of in-person meetings and virtual 

meetings. ORR notes that proposed 

§ 410.1308(f) is to be read consistently 

with the TVPRA requirement that child 

advocates ‘‘shall not be compelled to 

testify or provide evidence in any 

proceeding concerning any information 

or opinion received from the child in 

the course of serving as a child 

advocate.’’ 118 Also, ORR is seeking 

comment on specific ways to ensure 

confidentiality of unaccompanied childchild advocate meetings, and invites 

public comment on that issue, in 

particular on appropriate ways to ensure 

privacy, as well as on the proposed text 

of § 410.1308(f) generally. 

Under proposed § 410.1308(g), ORR 

proposes that it would not retaliate 

against a child advocate for actions 

taken within the scope of their 

responsibilities. For example, ORR 

would not retaliate against a child 

advocate because of any disagreement 

with a best interest determination or 

because of a child advocate’s advocacy 

on behalf of an unaccompanied child. 

ORR notes that proposed § 410.1308(g) 

is intended to be read consistently with 

its statutory obligation to provide access 

to materials necessary to effectively 

advocate for the best interest of the 

child, and consistently with a 

presumption that the child advocate 

acts in good faith with respect to their 

advocacy on behalf of the child.119 At 

the same time, ORR has the 

responsibility and authority to 

effectively manage its unaccompanied 

children’s program which includes, for 

example, ensuring that the interests of 

the child are considered in decisions 

and actions relating to care and custody, 

implementing policies with respect to 

the care and placement of 

unaccompanied children, and 

overseeing the infrastructure and 

personnel of facilities in which 

unaccompanied children reside.120

Section 410.1309 Legal Services 

ORR proposes, at § 410.1309, 

standards and requirements relating to 

the provision of legal services to 

unaccompanied children following 

entry into ORR care. The proposals 

under § 410.1309 also include standards 

relating to ORR funding for Legal 

Service Providers for unaccompanied 

children. 

ORR believes that Legal Service 

Providers who represent 

unaccompanied children undertake an 

important function by representing such 

children while in ORR care and in some 

instances after release. The proposals 

under § 410.1309 build on current ORR 

policies, which articulate standards for 

legal services for unaccompanied 

children. ORR strives for 100% legal 

representation of unaccompanied 

children and will continue to work 

towards that goal to the extent possible. 

ORR invites public comment as to 

whether and how there are further ways 

to broaden representation for 

unaccompanied children. 

ORR notes that under the TVPRA, at 

8 U.S.C. 1232(c)(5), the Secretary of 

HHS must ‘‘ensure, to the greatest extent 

practicable and consistent with section 

292 of the Immigration and Nationality 

Act (8 U.S.C. 1362),’’ that all 

unaccompanied children who are or 

have been in its the custody or in the 

custody of DHS, with exceptions for 

children who are habitual residents of 

certain countries, have counsel ‘‘to 

represent them in legal proceedings or 

matters and protect them from 

mistreatment, exploitation, and 

trafficking.’’ The Secretary of Health and 

Human Services ‘‘shall make every 

effort to utilize the services of pro bono 

counsel who agree to provide 

representation to such children without 

charge.’’ The INA, 8 U.S.C. 1362, 

provides, ‘‘In any removal proceedings 

before an immigration judge and in any 

appeal proceedings before the Attorney 

General from any such removal 

proceedings, the person concerned shall 

have the privilege of being represented 

(at no expense to the Government) by 

such counsel, authorized to practice in 

such proceedings, as he shall choose.’’ 

Thus, under the TVPRA, HHS has an 

obligation, ‘‘to the greatest extent 

practicable,’’ to ensure that 

unaccompanied children have counsel 

in (1) immigration proceedings and (2) 

to protect them from mistreatment, 

exploitation, and trafficking. Because 8 

U.S.C. 1232(c)(5) states these 

responsibilities are ‘‘consistent with’’ 8 

U.S.C. 1362, ORR reads these provisions 

together as establishing that, while the 

statute establishes HHS’ obligations in 

relation to legal services, there is not a 

right to government-funded counsel 

under 8 U.S.C. 1232(c)(5). Rather, ORR 

understands that it has a duty to ensure 

to the greatest extent practicable that 

unaccompanied children have counsel 

at no expense to the government, for 

both purposes described by the TVPRA. 

Further, the second sentence of 8 U.S.C. 

1232(c)(5) states that the Secretary of 

HHS shall, to the greatest extent 

practicable, make every effort to utilize 

the services of pro bono counsel. ORR 

understands this requirement as 

establishing the preferred means by 

which counsel is provided to 

unaccompanied children, but also that 

the Secretary has authority to utilize 

other types of services—namely services 

that are not pro bono—in areas where 

pro bono services are not available. In 

summary, insofar as it is not practicable 

for the Secretary of HHS to utilize the 

services of pro bono counsel for all 

unaccompanied children specified at 8 


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121This language is intended, consistent with 

ORR’s statutory authorities, to implement paragraph 

A.14 of Exhibit 1 of the FSA, which states: ‘‘Legal 

services information regarding the availability of 

free legal assistance, the right to be represented by 

counsel at no expense to the government, the right 

to deportation or exclusion hearing before an 

immigration judge, the right to apply for political 

asylum or to request voluntary departure in lieu of 

deportation.’’ With respect to information regarding 

the availability of free legal assistance, ORR 

understands the proposed language at 

§ 410.1309(a)(2)(ii) to be consistent with paragraph 

A.14, but updated to avoid potential confusion. As 

discussed above, 8 U.S.C. 1232(c)(5) does not 

describe an unaccompanied child’s ability to access 

legal counsel as a ‘‘right;’’ and ORR cannot, by 

regulation, confer such a right. Rather, by reference 

to the Immigration and Nationality Act, the TVPRA 

describes unaccompanied children’s access to 

counsel as a ‘‘privilege,’’ and also makes HHS 

responsible for ensuring such privilege ‘‘to the 

greatest extent practicable.’’ ORR notes that this 

clarification does not represent a change in ORR’s 

existing policies or practices, and as described 

elsewhere in this section, ORR proposes to expand 

the availability of legal services to unaccompanied 

children beyond current practice. 

U.S.C. 1232(c)(5), the Secretary has 

discretion under that section (but not 

the obligation) also to fund client 

representation for counsel for the 

unaccompanied children both (1) in 

immigration proceedings, and (2) to 

protect them from mistreatment, 

exploitation, and trafficking—as such 

concerns may arise outside the context 

of immigration proceedings (e.g., other 

discrete services outside the context of 

immigration proceedings as described in 

the paragraphs below). 

ORR proposes, at § 410.1309(a)(1), 

that ORR would ensure, to the greatest 

extent practicable and consistent with 

section 292 of the Immigration and 

Nationality Act (8 U.S.C. 1362), that all 

unaccompanied children who are or 

have been in ORR care, and who are not 

subject to special rules for children from 

contiguous countries, have access to 

legal advice and representation in 

immigration legal proceedings or 

matters, consistent with current policy 

and as further described in this section. 

ORR understands ‘‘to the greatest extent 

practicable’’ to reflect that the provision 

of legal services must be subject to 

available resources, as determined by 

ORR, and otherwise practicable. 

ORR proposes, at § 410.1309(a)(2), 

that an unaccompanied child in ORR 

care receive (1) a presentation 

concerning the rights and 

responsibilities of unaccompanied 

children in the immigration system, 

including information about protections 

under child labor laws and educational 

rights, presented in the language of the 

unaccompanied child and in an in ageappropriate manner; (2) information 

regarding availability of free legal 

assistance, and that they may be 

represented by counsel, at no expense to 

the government; 121 (3) notification of 

the ability to petition for SIJ 

classification, to request that a state 

juvenile court determine dependency or 

placement, and notification of the 

ability to apply for asylum or other 

forms of relief from removal; (4) 

information regarding the 

unaccompanied child’s right to a 

removal hearing before an immigration 

judge, the ability to apply for asylum 

with USCIS in the first instance, and the 

ability to request voluntary departure in 

lieu of removal; and (5) a confidential 

legal consultation with a qualified 

attorney (or paralegal working under the 

direction of an attorney, or EOIR 

accredited representative) to determine 

possible forms of legal relief in relation 

to the unaccompanied child’s 

immigration case. ORR also proposes in 

§ 410.1309(a)(2) that an unaccompanied 

child in ORR care be able to 

communicate privately with their 

attorney of record, EOIR accredited 

representative, or legal service provider, 

in a private enclosed area that allows for 

confidentiality for in-person and virtual 

or telephone meetings. ORR notes that 

these proposed services go beyond that 

which is required under the FSA. For 

example, although both the FSA and 

proposed § 410.1309(a)(2) require that 

unaccompanied children receive 

information regarding their legal rights 

and availability of free legal assistance, 

proposed § 410.1309(a)(2) would 

provide additional specificity to the 

type of information that would be 

provided. Additionally, ORR notes that 

proposed § 410.1309(a)(2) goes beyond 

the scope of what is required under the 

FSA by providing that unaccompanied 

children receive not just information 

regarding the availability of legal 

counsel, but also requiring that 

unaccompanied children receive a 

confidential legal consultation with a 

qualified attorney (or paralegal working 

under the direction of an attorney, or a 

DOJ accredited representative) to help 

them understand their individual 

immigration case. Finally, although the 

FSA requires that unaccompanied 

children have ‘‘a reasonable right to 

privacy,’’ which includes the right to 

talk privately on the phone and meet 

privately with guests (as permitted by 

the facility’s house rules and 

regulations), FSA Exhibit 1 at paragraph 

A.12, proposed § 410.1309(a)(2) would 

go beyond the FSA’s requirement to 

make explicit that communications and 

meetings with the unaccompanied 

child’s attorney of record, EOIR 

accredited representative, and legal 

service provider must be held in 

enclosed designated spaces, without 

reference to any limitation on such 

rights by the facility’s house rules and 

regulations. 

With respect to the confidential legal 

consultation, ORR notes the importance 

of allowing unaccompanied children 

and their legal service providers, 

attorneys of record, or EOIR accredited 

representatives access to private space, 

to ensure that any communications or 

meetings about legal matters can be held 

confidentially. In addition, in 

developing the proposal to require a 

presentation on the rights of 

unaccompanied children in the 

immigration system, ORR is considering 

including a requirement for additional 

presentations for unaccompanied 

children who remain in ORR care 

beyond six months. 

ORR proposes, at § 410.1309(a)(3), 

that ORR would require this 

information, regarding unaccompanied 

children’s legal rights and access to 

services while in ORR care, be posted in 

an age-appropriate format and translated 

into each child’s preferred language 

consistent with proposed § 410.1306, in 

any ORR contracted or grant-funded 

facility where unaccompanied children 

are in ORR care. 

ORR proposes, at § 410.1309(a)(4), 

that to the extent that appropriations are 

available, and insofar as it is not 

practicable to secure pro bono counsel 

for unaccompanied children as 

specified at 8 U.S.C. 1232(c)(5), ORR 

would fund legal service providers to 

provide direct immigration legal 

representation to certain 

unaccompanied children subject to 

ORR’s discretion to the extent it 

determines appropriations are available. 

Examples of direct immigration legal 

representation include, but are not 

limited to: (1) for unrepresented 

unaccompanied children who become 

enrolled in ORR URM Programs, 

provided they have not yet obtained 

lawful status or reached 18 years of age 

at the time of retention of an attorney; 

(2) for unaccompanied children in ORR 

care who must appear before EOIR, 

including children seeking voluntary 

departure, or who must appear before 

U.S. Citizenship and Immigration 

Services (USCIS); (3) for 

unaccompanied children released to a 

sponsor residing in the defined service 

area of the same legal service provider 

who provided the child legal services in 

ORR care, to promote continuity of legal 

services; and (4) for other 

unaccompanied children, in ORR’s 

discretion. 

Under proposed § 410.1309(b), ORR 

would fund legal services for the 

protection of an unaccompanied child’s 


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122See 6 U.S.C. 279(b)(1)(I). See also Office of 

Refugee Resettlement Division of Unaccompanied 

Children Operations, Legal Resource Guide—Legal 

Service Provider List for [UC] in ORR Care, https:// 

www.acf.hhs.gov/sites/default/files/documents/orr/ 

english_legal_service_providers_guide_with_form_

508.pdf. 

interests in certain matters not involving 

direct immigration representation, 

consistent with its obligations under the 

HSA, 6 U.S.C. 279(b)(1)(B), and the 

TVPRA, 8 U.S.C. 1232(c)(5). In addition 

to the direct immigration representation 

outlined in § 410.1309(a)(4), to the 

extent ORR determines that 

appropriations are available and use of 

pro bono counsel is impracticable, ORR 

proposes that ORR may (but is not 

required to) make funding for additional 

access to counsel available for 

unaccompanied children in the 

following enumerated situations for 

proceedings outside of the immigration 

system when appropriations allow and 

subject to ORR’s discretion in no 

particular order of prioritization: (1) 

ORR appellate procedures, including 

the Placement Review Panel (PRP) 

related to placement in restrictive 

facilities under § 410.1902, risk 

determination hearings under 

§ 410.1903, and the denial of a release 

to the child’s parent or legal guardian 

under § 410.1206; (2) for 

unaccompanied children upon their 

placement in ORR long-term home care 

or in an RTC outside a licensed ORR 

facility and for whom other legal 

assistance does not satisfy the legal 

needs of the individual child; (3) for 

unaccompanied children with no 

identified sponsor who are unable to be 

placed in ORR long-term home care or 

ORR transitional home care; (4) for 

purposes of judicial bypass or similar 

legal processes as necessary to enable an 

unaccompanied child to access certain 

lawful medical procedures that require 

the consent of the parent or legal 

guardian under state law and the 

unaccompanied child is unable or 

unwilling to obtain such consent; (5) for 

the purpose of representing an 

unaccompanied child in state juvenile 

court proceedings, when the 

unaccompanied child already possesses 

SIJ classification; and (6) for the purpose 

of helping an unaccompanied child to 

obtain an employment authorization 

document. ORR invites comment on 

these proposals under § 410.1309(b), 

and also with regard to how a 

mechanism might be incorporated into 

the rule to help prevent, or reduce the 

likelihood of, the zeroing-out of funding 

for legal representation, while also 

ensuring sufficient funding for capacity 

to address influxes. 

At § 410.1309(c), ORR proposes to 

establish relevant requirements and 

expectations for the provision of the 

legal services described at § 410.1309(a) 

and (b). ORR proposes at 

§ 410.1309(c)(1) that in the course of 

funding legal counsel for any 

unaccompanied children under 

proposed § 410.1309(a)(4) or (b)(2), inperson meetings would be preferred, 

although unaccompanied children and 

their representatives would be able to 

meet by telephone or teleconference as 

an alternative option when needed and 

when such meetings can be facilitated 

in such a way as to preserve the 

unaccompanied child’s privacy. Either 

the unaccompanied child’s attorney of 

record or EOIR accredited representative 

or an ORR staff member or care provider 

would always accompany the 

unaccompanied child to any in-person 

hearing or proceeding, in connection 

with any legal representation of an 

unaccompanied child pursuant to 

§ 410.1309. 

When developing proposed 

§ 410.1309(c)(1), ORR considered the 

alternatives of enacting a requirement 

that an unaccompanied child’s attorney 

of record or BIA accredited 

representative always be required to 

attend court hearings and proceedings 

in-person with the unaccompanied 

child, or that the attorney of record or 

EOIR accredited representative always 

engage in in-person meetings with the 

unaccompanied child while 

representing them, absent a good cause 

reason not to do so. ORR concluded that 

the current proposal at § 410.1309(c)(1) 

reflects a balance between ensuring that 

unaccompanied children have effective 

access to legal representation and 

services, while establishing a preference 

for in-person meetings, and ensuring 

that unaccompanied children will not 

have to walk into physical proceedings 

alone. 

Under proposed § 410.1309(c)(2), ORR 

would require the sharing of certain 

information with an unaccompanied 

child’s representative, including certain 

notices. Under paragraph (c)(2), upon 

receipt by ORR of (1) proof of 

representation and (2) authorization for 

release of records signed by the 

unaccompanied child or other 

authorized representative, ORR would, 

upon request, share the unaccompanied 

child’s complete case file apart from any 

legally required redactions to assist with 

legal representation of that child. 

Section 410.1309(c)(2) reflects current 

ORR policy guidance describing the 

process by which an individual will be 

recognized by ORR as the attorney of 

record or EOIR accredited representative 

for an unaccompanied child. Under 

current practice, ORR recognizes an 

individual as an unaccompanied child’s 

attorney of record or EOIR accredited 

representative through the submission 

of an ORR form, the ORR Notice of 

Attorney Representation. ORR notes that 

this form is not identified specifically in 

the proposed regulatory text, so as to 

preserve operational flexibility for ORR 

to accept different forms of proof as 

appropriate, as needed. ORR also 

considered the importance of timely 

notice by ORR to the unaccompanied 

child’s representative in order to allow 

for effective legal representation, in 

connection with law enforcement 

events, age redetermination processes, 

and allegations of sexual abuse or 

harassment. 

ORR seeks public comment on these 

issues, including the scope of reportable 

events or interactions with law 

enforcement and scope of notice 

depending on the unaccompanied 

child’s involvement in the reportable 

event (i.e., as an alleged victim, alleged 

perpetrator, or as a witness). With 

allegations or accusations of sexual 

abuse or harassment, ORR solicits 

public comment on privacy concerns 

and other considerations. ORR also 

solicits comment on the appropriate 

timeframes for various types of 

notification. 

As discussed in section IV.B of this 

NPRM, the Secretary’s authority under 8 

U.S.C. 1232 has been delegated to the 

ORR Director. As discussed above, ORR 

understands that in addition to 

expanding access to pro bono services 

and funding legal services in 

immigration-related proceedings or 

matters, it may also promote pro bono 

services and fund legal services for 

broader purposes that relate to 

protecting unaccompanied children 

from mistreatment, exploitation, and 

trafficking. Consistent with the TVPRA, 

ORR makes every effort to use pro bono 

legal services to the greatest extent 

practicable to secure counsel for 

unaccompanied children in these 

contexts. Specifically, ORR-funded legal 

service providers may help coordinate a 

referral to pro bono services, and ORR 

provides each unaccompanied child 

with lists of pro bono legal service 

providers by state and pro bono services 

available through a national 

organization upon admission into a care 

provider facility.122 That said, in some 

cases it is impracticable for ORR to 

secure pro bono legal services for 

unaccompanied children. For example, 

it may be impracticable to secure pro 

bono services if the demand for such 

services exceeds the supply of pro bono 

services, as may occur at certain 

locations or during times of influx. To 


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123Amended Order re Defendants’ Mot. to 

Dismiss and Plaintiffs’ Mot. for Class Cert., Lucas 

R., et al. v. Xavier Becerra, et al., No. 18–CV–5741 

(C.D. Cal. Dec. 27, 2018). 

124 Lucas R., et al. v. Xavier Becerra, et al., 18– 

CV–5741 (DMG) (C.D. Cal. filed Jun. 29, 2018). 

125Amended Order re Defendants’ Mot. to 

Dismiss and Plaintiffs’ Mot. for Class Cert., Lucas 

R., et al. v. Xavier Becerra, et al., No. 18–CV–5741 

(C.D. Cal. Dec. 27, 2018). 126 45 CFR 85.21(d). 127 53 FR 25595, 25600 (July 8, 1988). 

the extent pro bono legal services are 

unavailable or impracticable to secure 

because it has limited resources, ORR 

must be selective in the kinds of legal 

services it funds. As a result, ORR 

proposes through this rule to establish 

its discretion to fund legal services for 

specific purposes, based on its judgment 

and priorities. 

In terms of funding legal services, at 

proposed § 410.1309(d), ORR also 

proposes to, in its discretion and subject 

to available resources, make available 

funds (if appropriated) to relevant 

agencies or organizations to provide 

legal services for unaccompanied 

children who have been released from 

ORR care and custody. ORR would 

establish authority to make available 

grants—including formula grants 

distributed geographically in proportion 

to the population of released 

unaccompanied children—or contracts 

for immigration legal representation, 

assistance, and related services to 

unaccompanied children. 

To prevent retaliation against legal 

service providers, at § 410.1309(e), ORR 

proposes that it shall presume that legal 

service providers are acting in good 

faith with respect to their advocacy on 

behalf of unaccompanied children, and 

ORR shall not retaliate against a legal 

service provider for actions taken within 

the scope of the legal service providers’ 

responsibilities. For example, ORR shall 

not engage in retaliatory actions against 

legal service providers or any other 

representative for reporting harm or 

misconduct on behalf of an 

unaccompanied child. As noted at 

proposed § 410.1309(e), ORR will not 

retaliate against legal service providers; 

however, ORR has the responsibility 

and authority to effectively manage its 

unaccompanied children’s program 

which includes, for example, ensuring 

that the interests of the child are 

considered in decisions and actions 

relating to care and custody, 

implementing policies with respect to 

the care and placement of 

unaccompanied children, and 

overseeing the infrastructure and 

personnel of facilities in which 

unaccompanied children reside. 

Section 410.1310 Psychotropic 

Medications 

ORR is proposing requirements 

related to the administration of 

psychotropic medications to 

unaccompanied children while in ORR 

care. ORR notes that the third of the five 

plaintiff classes certified by the United 

States District Court for the Central 

District of California in the Lucas R. v. 

Becerra case, as discussed in section 

IV.A.4. of this proposed rule, is the 

‘‘drug administration class.’’ The class is 

comprised of unaccompanied children 

in ORR custody ‘‘who are or will be 

prescribed or administered one or more 

psychotropic medications without 

procedural safeguards[.]’’ 123 ORR will 

be bound by any potential future court 

decisions or settlements in the case.124

The Court’s Preliminary Injunction 

ordered on August 30, 2022, did not 

address this claim and, as of April 2023, 

ORR remains in active litigation 

regarding this claim. 

ORR believes that psychotropic 

medications should only be 

administered appropriately and in the 

best interest of the child and with 

meaningful oversight. Therefore, ORR is 

proposing in § 410.1310(a) that, except 

in the case of a psychiatric emergency, 

ORR must ensure that, whenever 

possible, authorized individuals provide 

informed consent prior to the 

administration of psychotropic 

medications to unaccompanied 

children. In § 410.1310(b), ORR 

proposes that it would ensure 

meaningful oversight of the 

administration of psychotropic 

medication(s) to unaccompanied 

children. Examples of such oversight are 

the review of cases flagged by care 

providers, and secondary retrospective 

reviews of the administration of 

psychotropic medication(s) in certain 

circumstances, such as based on the 

child’s age, the number of psychotropic 

medications that have been prescribed, 

or the dosages of such psychotropic 

medications. 

Section 410.1311 Unaccompanied 

Children With Disabilities 

ORR believes that protection against 

discrimination and equal access to the 

UC Program is inherent to ensuring that 

unaccompanied children with 

disabilities receive appropriate care 

while in ORR custody. ORR notes that 

the Lucas R. case, discussed in the 

Background of this proposed rule, is 

relevant to this topic area and that ORR 

will be bound by any potential future 

court decisions or settlements in the 

case. The fifth of the five plaintiff 

classes certified by the United States 

District Court for the Central District of 

California in Lucas R. is the ‘‘disability 

class’’ that includes unaccompanied 

children ‘‘who have or will have a 

behavioral, mental health, intellectual, 

and/or developmental disability as 

defined in 29 U.S.C. 705, and who are 

or will be placed in a secure facility, 

medium-secure facility, or [RTC] 

because of such disabilities [(i.e., the 

‘disability class’)].’’ 125 The Court’s 

Preliminary Injunction ordered on 

August 30, 2022, did not settle this 

claim and, as of April 2023, ORR 

remains in active litigation regarding 

this claim. ORR is proposing 

requirements to ensure the UC 

Program’s compliance with the HHS 

section 504 implementing regulations at 

45 CFR part 85. ORR is therefore 

proposing at § 410.1311(a) to provide 

notice of the protections against 

discrimination assured to 

unaccompanied children with 

disabilities by section 504 at 45 CFR 

part 85 while in the custody of ORR and 

the available procedures for seeking 

reasonable modifications or making a 

complaint about alleged discrimination 

against children with disabilities in 

ORR’s custody. 

ORR understands its obligations 

under section 504 to administer 

programs and activities in the most 

integrated setting appropriate to the 

needs of qualified unaccompanied 

children with disabilities.126 ORR is 

proposing at § 410.1311(b) ORR shall 

administer the UC Program in the most 

integrated setting appropriate to the 

needs of children with disabilities, in 

accordance with 45 CFR 85.21(d), 

unless ORR can demonstrate that this 

would fundamentally alter the nature of 

its UC Program. As noted, the most 

integrated setting is a setting that 

enables individuals with disabilities to 

interact with non-disabled individuals 

to the fullest extent possible.127

ORR is proposing at § 410.1311(c) that 

it would provide reasonable 

modifications to the UC Program for 

each unaccompanied child with one or 

more disabilities as needed to ensure 

equal access to the UC Program. ORR 

would not, however, be required to take 

any action that it can demonstrate 

would result in a fundamental alteration 

in the nature of a program or activity. 

Under proposed § 410.1311(d), ORR 

would require that services, supports, 

and program modifications being 

provided to an unaccompanied child 

with one or more disabilities be 

documented in the child’s case file, 

where applicable. 

Under proposed § 410.1311(e), in 

addition to the requirements for release 

of unaccompanied children established 

elsewhere in this regulation and through 


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128See 8 U.S.C. 1232(b)(3). 129 6 U.S.C. 279(b)(1)(J). 

any subregulatory guidance ORR may 

issue, ORR is proposing requirements 

regarding the release of an 

unaccompanied child with one or more 

disabilities to a sponsor. Section 

410.1311(e)(1) would require that ORR’s 

assessment under § 410.1202 of a 

potential sponsor’s capability to provide 

for the physical and mental well-being 

of the unaccompanied child must 

include explicit consideration of the 

impact of the child’s disability or 

disabilities. Under § 410.1311(e)(2), in 

conducting PRS, ORR and any entities 

through which ORR provides PRS shall 

make reasonable modifications in their 

policies, practices, and procedures if 

needed to enable released 

unaccompanied children with 

disabilities to live in the most integrated 

setting appropriate to their needs, such 

as with a sponsor. ORR is not required, 

however, to take any action that it can 

demonstrate would result in a 

fundamental alteration in the nature of 

a program or activity. Additionally, ORR 

would affirmatively support and assist 

otherwise viable potential sponsors in 

accessing and coordinating appropriate 

post-release, community-based services 

and supports available in the 

community to support the sponsor’s 

ability to care for the unaccompanied 

child with one or more disabilities, as 

provided for under proposed 

§ 410.1210. Under § 410.1311(e)(3), ORR 

would not delay the release of an 

unaccompanied child with one or more 

disabilities solely because post-release 

services are not in place prior to the 

child’s release. 

Subpart E—Transportation of an 

Unaccompanied Child 

Section 410.1400 Purpose of This 

Subpart 

This proposed subpart concerns the 

safe transportation of each 

unaccompanied child while in ORR’s 

care. ORR notes that ORR generally does 

not provide transport for initial 

placements upon referral from another 

Federal agency, but rather, it is the 

responsibility of other Federal agencies 

to transfer the unaccompanied child to 

ORR custody within 72 hours of 

determining the individual is an 

unaccompanied child.128 ORR, or its 

care provider facilities, does provide 

transportation while the 

unaccompanied child is under its care 

including in the following 

circumstances: (1) for purposes of 

service provision, such as for medical 

services, immigration court hearings, or 

community services; (2) when 

transferring between facilities or to an 

out of network placement; (3) group 

transfers due to an emergency or influx; 

and (4) for release of an unaccompanied 

child to a sponsor who is not able to 

pick up the unaccompanied child, as 

approved by ORR. Proposed subpart E 

provides certain requirements for such 

transportation while unaccompanied 

children are under ORR care. 

Section 410.1401 Transportation of an 

Unaccompanied Child in ORR’s Care 

ORR proposes transportation 

requirements for care provider facilities 

to help ensure that unaccompanied 

children are safely transported during 

their time in ORR care. Proposed 

§ 410.1401(a) would require care 

provider facilities to transport an 

unaccompanied child in a manner that 

is appropriate to the child’s age and 

physical and mental needs, including 

proper use of car seats for young 

children, and consistent with proposed 

§ 410.1304. For example, individuals 

transporting unaccompanied children 

would be able to use de-escalation or 

other positive behavior management 

techniques to ensure safety, as 

explained in the discussion of proposed 

§ 410.1304(a). As discussed in proposed 

§ 410.1304(f), care provider facilities 

may only use soft restraints (e.g., zip ties 

and leg or ankle weights) during 

transport to and from secure facilities, 

and only when the care provider facility 

believes the child poses a serious risk of 

physical harm to self or others or a 

serious risk of running away from ORR 

custody. As discussed in proposed 

§ 410.1304(e)(2), secure facilities, except 

for RTCs, may restrain a child for their 

own immediate safety or that of others 

during transport to an immigration court 

or an asylum interview. ORR believes 

the proposed requirements at 

§ 410.1401(a) are important to ensuring 

the safety of unaccompanied children as 

well as those around them while being 

transported in ORR care. 

Under proposed § 410.1401(b), ORR 

would codify a requirement in the FSA 

that it assist without undue delay in 

making transportation arrangements 

where it has approved the release of an 

unaccompanied child to a sponsor, 

pursuant to proposed §§ 410.1202 and 

410.1203. ORR also proposes that it 

would have the authority to require the 

care provider facility to transport an 

unaccompanied child. In these 

circumstances, ORR may, in its 

discretion, reimburse the care provider 

facility or pay directly for the child and/ 

or sponsor’s transportation, as 

appropriate, to facilitate timely release. 

To further ensure safe transportation 

of unaccompanied children, proposed 

§ 410.1401(c) proposes to codify existing 

ORR policy that care provider facilities 

shall comply with all relevant State and 

local licensing requirements and state 

and Federal regulations regarding 

transportation of children, such as 

meeting or exceeding the minimum 

staff/child ratio required by the care 

provider facility’s licensing agency, 

maintaining and inspecting all vehicles 

used for transportation, etc. If there is a 

potential conflict between ORR’s 

regulations and state law, ORR will 

review the circumstances to determine 

how to ensure that it is able to meet its 

statutory responsibilities. It is important 

to note, however, that if a State law or 

license, registration, certification, or 

other requirement conflicts with an ORR 

employee’s duties within the scope of 

their ORR employment, the ORR 

employee is required to abide by their 

Federal duties, which ORR proposes at 

§ 410.1401(d). Under proposed 

§ 410.1401(e), ORR proposes to require 

the care provider facility to conduct all 

necessary background checks for drivers 

transporting unaccompanied children, 

in compliance with proposed 

§ 410.1305(a). Finally, proposed 

§ 410.1401(f) proposes to codify existing 

ORR policy that if a care provider 

facility is transporting an 

unaccompanied child, then at least one 

transport staff of the same gender as the 

unaccompanied child being transported 

must be present in the vehicle to the 

greatest extent possible under the 

circumstances. 

Subpart F—Data and Reporting 

Requirements 

Proposed 45 CFR part 410, subpart F, 

provides guidelines for care provider 

facilities to report information such that 

ORR may compile and maintain 

statistical information and other data on 

unaccompanied children. 

Section 410.1500 Purpose of This 

Subpart 

The HSA requires the collection of 

certain data about the children in ORR’s 

care and custody.129 Specifically, ORR 

is required to maintain statistical and 

other information on unaccompanied 

children for whom ORR is responsible, 

including information available from 

other government agencies and 

including information related to a 

child’s biographical information, the 

date the child entered Federal custody 

due to immigration status, 

documentation of placement, transfer, 

removal, and release from ORR 

facilities, documentation of and 

rationale for any detention, and 


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

information about the disposition of any 

actions in which the child is the subject. 

Section 410.1501 Data on 

Unaccompanied Children 

This proposed section implements the 

HSA by requiring care provider facilities 

to maintain and periodically report to 

ORR data described in proposed 

§ 410.1501(a) through (e): biographical 

information, such as an unaccompanied 

child’s name, gender, date of birth, 

country of birth, whether of indigenous 

origin and country of habitual 

residence; the date on which the 

unaccompanied child came into Federal 

custody by reason of immigration status; 

information relating to the 

unaccompanied child’s placement, 

removal, or release from each care 

provider facility in which the child has 

resided, including the date and to whom 

and where placed, transferred, removed, 

or released in any case in which the 

unaccompanied child is placed in 

detention or released, an explanation 

relating to the detention or release; and 

the disposition of any actions in which 

the child is the subject. In addition, for 

purposes of ensuring that ORR can 

continue to appropriately support and 

care for children in its care throughout 

their time in ORR care provider 

facilities, as well as to allow additional 

program review, ORR proposes in 

§ 410.1501(f) and (g) that care provider 

facilities also document and 

periodically report to ORR information 

gathered from assessments, evaluations, 

or reports of the child and data 

necessary to evaluate and improve the 

care and services for unaccompanied 

children. ORR notes that some of the 

information described in this section, 

such as requirements described at 

paragraphs (f) and (g), or reporting 

regarding whether an unaccompanied 

child is of indigenous origin, is not 

specifically enumerated at 6 U.S.C. 

279(b)(1)(J). Nevertheless, ORR proposes 

including such information in the rule 

text because it understands maintaining 

such information to be consistent with 

other duties under the HSA to 

coordinate and implement the care and 

placement of unaccompanied children. 

Subpart G—Transfers 

In this NPRM, ORR proposes to codify 

requirements and policies regarding the 

transfer of an unaccompanied child in 

ORR care. The following provisions 

identify general requirements for the 

transfer of an unaccompanied child, as 

well as certain circumstances in which 

transfers are necessary, such as in 

emergencies. 

Section 410.1600 Purpose of This 

Subpart 

ORR proposes at § 410.1600 to codify 

the purpose of this subpart as providing 

the guidelines for the transfer of an 

unaccompanied child. 

Section 410.1601 Transfer of an 

Unaccompanied Child Within the ORR 

Care Provider Facility Network 

ORR proposes, at § 410.1601(a), to 

codify general requirements for transfers 

of an unaccompanied child within the 

ORR care provider network. ORR 

proposes that care provider facilities 

would be required to continuously 

assess an unaccompanied child in their 

care to ensure the unaccompanied child 

placements are appropriate. This 

proposed requirement is consistent with 

the TVPRA, which provides that an 

unaccompanied child shall be placed in 

the least restrictive setting that is in 

their best interests, subject to 

considerations of danger to self or the 

community and runaway risk.130

Additionally, care provider facilities 

would be required to follow ORR policy 

guidance, including guidance regarding 

placement considerations, when making 

transfer recommendations. ORR also 

proposes requirements for care provider 

facilities to ensure the health and safety 

of an unaccompanied child. The 

proposed requirements align with 

proposed § 410.1307(b), where ORR 

proposes procedures related to 

placements upon the ORR transfer of an 

unaccompanied child to a facility that is 

able to accommodate the medical needs 

or requests of the unaccompanied child. 

At proposed § 410.1601(a)(1), care 

provider facilities would be required to 

make transfer recommendations to ORR 

if they identify an alternate placement 

for a child that best meets a child’s 

needs. Under proposed § 410.1601(a)(2), 

when ORR transfers an unaccompanied 

child, the unaccompanied child’s 

current care provider facility would be 

required to ensure that the 

unaccompanied child is medically 

cleared for transfer within three 

business days, provided the 

unaccompanied child’s health allows 

and unless otherwise waived by ORR. 

For an unaccompanied child with acute 

or chronic medical conditions, or 

seeking medical services requiring 

heightened ORR involvement, the 

appropriate care provider facility staff 

and ORR would be required to meet to 

review the transfer recommendation. 

Should the unaccompanied child not be 

medically cleared for transfer within 

three business days, the care provider 

facility would be required to notify 

ORR. ORR would provide the final 

determination of a child’s fitness for 

travel if the child is not medically 

cleared for transfer by a care provider 

facility. Should ORR determine the 

unaccompanied child is not fit for 

travel, ORR would be required to notify 

the unaccompanied child’s current care 

provider facility of the denial and 

specify a timeframe for the care provider 

facility to re-evaluate the transfer of the 

unaccompanied child. ORR welcomes 

public comment on these proposals. 

At proposed § 410.1601(a)(3), ORR 

describes notifications that would be 

required when ORR transfers an 

unaccompanied child to another care 

provider facility, including required 

timeframes for such notifications. 

Specifically, ORR proposes that within 

48 hours prior to the unaccompanied 

child’s physical transfer, the referring 

care provider facility would be required 

to notify all appropriate interested 

parties of the transfer, including the 

child, the child’s attorney of record, 

legal service provider, or Child 

Advocate, as applicable. ORR notes, in 

addition, that interested parties may 

include EOIR. Proposed § 410.1601(a)(3) 

further provides that advanced notice 

shall not be required in unusual and 

compelling circumstances. In such a 

case, notice to interested parties must be 

provided within 24 hours following the 

transfer of an unaccompanied child in 

such circumstances. ORR is aware of 

concerns around notifications regarding 

the transfer of an unaccompanied child 

and believes that these proposed 

requirements provide an effective 

timeline and notice while still allowing 

for flexibility if there are unusual and 

compelling circumstances. ORR believes 

proposed § 410.1601(a)(3) is consistent 

with, and even goes beyond, the 

requirements set out in the FSA at 

paragraph 27, which requires only 

‘‘advance notice’’ to counsel when an 

unaccompanied child is transferred but 

does not specify how much advance 

notice is required. 

Proposed § 410.1601(a)(4) and (5) 

would codify requirements from 

paragraph 27 of the FSA that children 

be transferred with their possessions 

and legal papers, and any possessions 

that exceed the normally permitted 

amount by carriers be shipped in a 

timely manner to where the child is 

placed. ORR would also require that 

children be transferred with a 30-day 

supply of medications if applicable. 

Consistent with existing practice, ORR 

would require that the accepting care 

provider is instructed in the proper 

administration of the unaccompanied 

child’s medications. 


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131See 8 U.S.C. 1232(b)(4). 132See 6 U.S.C. 279(g)(2). 

Proposed § 410.1601(b) would codify 

current ORR practices regarding the 

review of restrictive placements. When 

unaccompanied children are placed in a 

restrictive setting (secure, heightened 

supervision, or Residential Treatment 

Center), the receiving care provider 

facility and ORR would be required to 

review their placement at least every 30 

days to determine if another level of 

care is appropriate. Should the care 

provider facility and ORR determine 

that continued placement in a restrictive 

setting is necessary, the care provider 

facility would be required to document, 

and as requested, provide the rationale 

for continued placement to the child’s 

attorney of record, legal service 

provider, and their Child Advocate. 

Proposed § 410.1601(c) describes 

requirements related to group transfers. 

Group transfers are described as 

circumstances where a care provider 

facility transfers more than one child at 

a time, due to emergencies or program 

closures, for example. Under proposed 

§ 410.1601(c), when group transfers are 

necessary, care provider facilities would 

be required to follow ORR policy 

guidance and additionally be required 

to follow the substantive requirements 

provided in § 410.1601(a). ORR believes 

that clarifying these requirements for 

care provider facilities engaging in 

group transfers would help to ensure the 

safety and health of unaccompanied 

children in emergency and other 

situations that require the transfer of 

multiple unaccompanied children. ORR 

seeks public comment on these 

proposals. 

Proposed § 410.1601(d) describes 

requirements related to the transfer of 

an unaccompanied child in a care 

provider facility’s care to an RTC. Under 

this proposed provision, care provider 

facilities would be permitted to request 

the transfer of an unaccompanied child 

in their care pursuant to the 

requirements of proposed § 410.1105(c). 

ORR proposes, at § 410.1601(e), 

requirements concerning the temporary 

transfer of an unaccompanied child 

during emergency situations. In 

§ 410.1601(e), ORR makes clear that, 

consistent with the HSA and TVPRA, an 

unaccompanied child remains in the 

legal custody of ORR and may only be 

transferred or released by ORR. As 

allowed under the FSA, ORR proposes, 

in emergency situations, to allow care 

provider facilities to temporarily change 

the physical placement of an 

unaccompanied child prior to securing 

permission from ORR. But in these 

situations, ORR would require the care 

provider to notify ORR of the change of 

placement as soon as possible, but in all 

cases within eight hours of transfer. 

As a general matter and given the 

standard that placements must be in the 

best interests of the child, it is ORR’s 

preference to minimize the transfer of 

an unaccompanied child and limit 

transfers to situations in which a 

transfer is necessary in order to promote 

stability and encourage establishment of 

relationships, particularly among 

vulnerable children in ORR care. ORR 

broadly invites public comment on all 

of the proposals under subpart G, and 

solicits input regarding the specifics, 

language, and scope of additional 

provisions related to minimizing the 

transfers of an unaccompanied child 

and the placement of an unaccompanied 

child with disabilities. 

Subpart H—Age Determinations 

In subpart H of this proposed rule, 

ORR provides guidelines for 

determining the age of an individual in 

ORR care. The TVPRA instructs HHS to 

devise age determination procedures for 

individuals without lawful immigration 

status in consultation with DHS.131

Consistent with the TVPRA, HHS and 

DHS jointly developed policies and 

procedures to assist in the process of 

determining the correct age of 

individuals in Federal custody. 

Establishing the age of the individual is 

critical because, for purposes of the UC 

Program, HHS only has authority to 

provide care to unaccompanied 

children, who are defined in relevant 

part as individuals who have not 

attained 18 years of age. ORR also notes 

that the FSA allows for age 

determinations in the event there is a 

question as to veracity of the 

individual’s alleged age. 

Section 410.1700 Purpose of This 

Subpart 

ORR acknowledges the challenges in 

determining the age of individuals who 

are in Federal care and custody. These 

challenges include but are not limited 

to: lack of available documentation; 

contradictory or fraudulent identity 

documentation and/or statements; 

ambiguous physical appearance of the 

individual; and diminished capacity of 

the individual. Proposed § 410.1700 sets 

forth the purpose of this subpart as 

providing the provisions for 

determining the age of an individual in 

ORR custody. ORR notes that under this 

proposed section, and as a matter of 

current practice, it would only conduct 

age determination procedures if there is 

a reasonable suspicion that an 

individual is not a minor. ORR believes 

that the proposed requirements and 

standards described within this subpart 

properly balance the concerns of 

children who are truly unaccompanied 

children with the importance of 

ensuring individuals are appropriately 

identified as a minor. ORR notes that 

proposed § 410.1309 regards required 

notification to legal counsel regarding 

age determinations. 

Section 410.1701 Applicability 

Proposed § 410.1701 states that this 

subpart would apply to individuals in 

the custody of ORR. This would be 

consistent with 8 U.S.C. 1232(b)(4), 

which specifies that DHS’ and HHS’ age 

determination procedures ‘‘shall’’ be 

used by each department ‘‘for children 

in their respective custody.’’ Proposed 

§ 410.1701 also reiterates that under the 

statutory definition of an 

unaccompanied child,132 an individual 

must be under 18 years of age. 

Section 410.1702 Conducting Age 

Determinations 

Proposed § 410.1702 would codify 

general requirements for conducting age 

determinations. The TVPRA requires 

that age determination procedures, at a 

minimum, consider multiple forms of 

evidence, including non-exclusive use 

of radiographs. Given these minimum 

requirements, proposed § 410.1702 

would allow for the use of medical or 

dental examinations, including X-rays, 

conducted by a medical professional, 

and other appropriate procedures. The 

terms ‘‘medical’’ and ‘‘dental 

examinations’’ are taken from the FSA 

at paragraph 13, and ORR interprets 

them to include ‘‘radiographs’’ as 

discussed in the TVPRA. Under 

proposed § 410.1702, ORR would 

require that procedures for determining 

the age of an individual consider the 

totality of the circumstances and 

evidence rather than rely on any single 

piece of evidence to the exclusion of all 

others. 

Section 410.1703 Information Used as 

Evidence To Conduct Age 

Determinations 

Proposed § 410.1703 describes 

information that ORR would be able to 

use as evidence to conduct age 

determination. Under proposed 

§ 410.1703(a), ORR would establish that 

it considers multiple forms of evidence, 

and that it makes age determinations 

based upon a totality of evidence. Under 

proposed § 410.1703(b), ORR may 

consider information or documentation 

to make an age determination, including 

but not limited to: (1) birth certificate, 

including a certified copy, photocopy, 

or facsimile copy if there is no 


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133ORR Policy Guide 1.6.2, ‘‘Instructions for Age 

Determinations’’. Available at: https://

www.acf.hhs.gov/orr/policy-guidance/ 

unaccompanied-children-program-policy-guidesection-1. 

acceptable original birth certificate and 

proposes that ORR may consult with the 

consulate or embassy of the individual’s 

country of birth to verify the validity of 

the birth certificate presented; (2) 

authentic government-issued documents 

issued to the bearer; (3) other 

documentation, such as baptismal 

certificates, school records, and medical 

records, which indicate an individual’s 

date of birth; (4) sworn affidavits from 

parents or other relatives as to the 

individual’s age or birth date; (5) 

statements provided by the individual 

regarding the individual’s age or birth 

date; (6) statements from parents or legal 

guardians; (7) statements from other 

persons apprehended with the 

individual; and (8) medical age 

assessments, which should not be used 

as a sole determining factor but only in 

concert with other factors. 

Regarding the proposed use of 

medical age assessments, at proposed 

§ 410.1703(b)(8), ORR would codify a 75 

percent probability threshold, that, 

when used in conjunction with other 

evidence, reflects a reasonable standard 

that would prevent inappropriate 

placements in housing intended for 

unaccompanied children. The 

examining doctor would be required to 

submit a written report indicating the 

probability percentage that the 

individual is a minor or an adult. If an 

individual’s estimated probability of 

being 18 or older is 75 percent or greater 

according to a medical age assessment, 

then ORR would accept the assessment 

as one piece of evidence in favor of a 

finding that the individual is not an 

unaccompanied child. But consistent 

with the TVPRA, ORR would not be 

permitted to rely on such a finding 

alone; only if such a finding has been 

considered together with other forms of 

evidence, and the totality of the 

evidence supports such a finding would 

ORR determines that the individual is 

18 or older. The 75 percent probability 

threshold applies to all medical 

methods and approaches identified by 

the medical community as appropriate 

methods for assessing age. Ambiguous, 

debatable, or borderline forensic 

examination results are resolved in 

favor of finding the individual is a 

minor. ORR believes that requirements 

at proposed § 410.1703 would enable 

ORR to utilize multiple forms of 

evidence. 

Section 410.1704 Treatment of an 

Individual Who Appears To Be an Adult 

Proposed § 410.1704 would codify the 

substantive requirement from paragraph 

13 of the FSA regarding treatment of an 

individual who appears to be an adult. 

Specifically, if the procedures in this 

subpart would result in a reasonable 

person concluding, based on the totality 

of the evidence, that an individual is an 

adult, despite the individual’s claim to 

be under the age of 18, ORR would treat 

such person as an adult for all purposes. 

As provided in current ORR policy,133

an individual in ORR care or their 

attorney of record may, at any time, 

present new information or evidence 

that they are 18 or older for reevaluation of an age determination. If 

the new information or evidence 

indicates that an individual who is 

presumed to be an unaccompanied 

child is an adult, then ORR will 

coordinate with DHS to take appropriate 

actions, which may include transferring 

the individual out of ORR custody back 

to DHS custody. 

Subpart I—Emergency and Influx 

Operations 

In subpart I of this proposed rule, 

ORR proposes to codify guidelines 

applicable to emergency or influx 

facilities that ORR opens or operates 

during a time of and in response to 

emergency or influx. This subpart 

applies the requirement at paragraph 

12.C of the FSA to have a written plan 

that describes the reasonable efforts the 

former INS, now ORR, will take to place 

all unaccompanied children as 

expeditiously as possible. 

As a matter of policy, ORR has a 

strong preference to house 

unaccompanied children in standard 

programs; however, ORR recognizes that 

in times of emergency or influx 

additional facilities may be needed, on 

short notice, to house unaccompanied 

children. As used in this subpart, 

emergency means an act or event 

(including, but not limited to, a natural 

disaster, facility fire, civil disturbance, 

or medical or public health concerns at 

one or more facilities) that prevents 

timely transport or placement of 

unaccompanied children, or impacts 

other conditions provided by this part. 

Influx means a situation in which the 

net bed capacity of ORR’s existing 

capacity in standard programs that is 

occupied or held for placement by 

unaccompanied children meets or 

exceeds 85 percent for a period of seven 

consecutive days. In this proposed rule, 

ORR defines ‘‘Emergency or Influx 

Facilities’’ as a single term to encompass 

a care provider facility opened in 

response to either an emergency or 

influx and to propose that such a facility 

would meet the minimum requirements 

described in this subpart. These 

facilities may be contracted for and 

stood up in advance of an emergency or 

an influx in preparation of such an 

event, but no children would be placed 

in such a facility until an emergency or 

influx exists. 

Importantly, this definition of 

‘‘influx’’ departs from that used in the 

FSA which defined ‘‘influx’’ as a 

situation in which 130 or more 

unaccompanied children were awaiting 

placement. In this proposed rule, ORR 

takes a new approach to defining 

‘‘influx’’ based on its experiences in the 

years after the settlement agreement and 

in light of the increased numbers of 

unaccompanied children over time. In 

this rule, ORR proposes to define an 

‘‘influx’’ without reference to a set 

number of unaccompanied children, but 

rather to circumstances reflecting a 

significant increase in the number of 

unaccompanied children that exceeds 

the standard capabilities of the Federal 

Government to process and transport 

them timely and/or to shelter them with 

existing resources. ORR believes that 

using the 85 percent threshold provides 

a reasonable measure to determine 

when bed capacity in the standard 

programs is strained to the point that 

accepting referrals from DHS within 72 

hours becomes very challenging. ORR 

notes that this 85 percent threshold 

would align with ORR’s current 

practices and is based on ORR’s 

experience with influx trends and 

organizational capacity. During these 

times of emergency or influx, ORR may 

house unaccompanied children at 

emergency or influx facilities. ORR 

notes that, consistent with current 

policy, placements of unaccompanied 

children at emergency or influx 

facilities during a period of influx cease 

when operational capacity in standard 

programs drops below 85 percent for a 

period of at least seven consecutive 

days. 

Section 410.1800 Contingency 

Planning and Procedures During an 

Emergency or Influx 

ORR recognizes that during times of 

emergency or when there is an influx of 

unaccompanied children, it is important 

to have policies and procedures in place 

to ensure that all unaccompanied 

children have their needs met and 

receive appropriate care and protection. 

ORR opens additional facilities in times 

of influx or emergency when its 

standard provider network does not 

have sufficient bed space available to 

provide shelter and services for 

children. Because these facilities are 

intended to be a temporary response to 

an influx or emergency, when speed 


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may be critical, they may not be 

licensed or may be exempted from 

licensing requirements by state or local 

licensing agencies, or both. Although 

ORR’s preference is to place 

unaccompanied children in licensed 

facilities whenever possible, these 

emergency or influx facilities may be 

used to house unaccompanied children 

temporarily when time is of the essence. 

Regardless of licensure status, these 

facilities must meet ORR standards and 

must comply to the greatest extent 

possible with state child welfare laws 

and regulations. If there is a potential 

conflict between ORR’s regulations and 

state law, ORR will review the 

circumstances to determine how to 

ensure that it is able to meet its statutory 

responsibilities. It is important to note, 

however, that if a State law or license, 

registration, certification, or other 

requirement conflicts with an ORR 

employee’s duties within the scope of 

their ORR employment, the ORR 

employee is required to abide by their 

Federal duties. ORR proposes at 

§ 410.1800 to codify guidelines for 

contingency planning and procedures to 

use during an emergency or influx. 

Under proposed § 410.1800(a), ORR 

would regularly reevaluate the number 

of placements needed for 

unaccompanied children to determine 

whether the number of shelters, 

heightened supervision facilities, and 

ORR transitional home care beds should 

be adjusted to accommodate an 

increased or decreased number of 

unaccompanied children eligible for 

placement in care in ORR custody 

provider facilities. 

At § 410.1800(b), consistent with 

paragraph 12A of the FSA, ORR 

proposes that in the event of an 

emergency or influx that prevents the 

prompt placement of unaccompanied 

children in standard programs, ORR 

shall make all reasonable efforts to place 

each unaccompanied child in a standard 

program as expeditiously as possible. As 

described in proposed § 410.1800(a) and 

consistent with ORR’s preference to 

place unaccompanied children in 

standard care provider facilities, ORR’s 

commitment to regularly reevaluating 

the number of placements needed will 

help this effort to place unaccompanied 

children in licensed programs quickly. 

At § 410.1800(c), ORR proposes that 

activities during an influx or emergency 

include the following: (1) ORR 

implements its contingency plan on 

emergencies and influxes, which may 

include opening facilities in times of 

emergency or influx; (2) ORR 

continually develops standard programs 

that are available to accept emergency or 

influx placements; and (3) ORR 

maintains a list of unaccompanied 

children affected by the emergency or 

influx including each unaccompanied 

child’s: (i) name; (ii) date and country 

of birth; (iii) date of placement in ORR’s 

custody; and (iv) place and date of 

current placement. 

Section 410.1801 Minimum Standards 

for Emergency or Influx Facilities 

At § 410.1801(a), ORR notes that in 

addition to the standards it has for 

standard programs and restrictive 

placements, this section provides a set 

of minimum standards that must be 

followed for emergency or influx 

facilities. ORR notes, as described 

§ 410.1000(c), that it does not operate 

facilities other than standard programs, 

restrictive placements, or emergency or 

influx facilities, absent a specific waiver 

as described below at § 410.1801(d) or 

such additional waivers as are permitted 

by law. 

At § 410.1801(b), ORR proposes a list 

of minimum services that must be 

provided to all unaccompanied children 

in the care of emergency or influx 

facilities, and available at the time of the 

facility opening. These services, which 

are consistent with Exhibit 1 of the FSA, 

would apply the same minimum service 

requirements that apply under the FSA 

to standard care facilities to emergency 

or influx facilities. Under 

§ 410.1801(b)(1), these proposed 

minimum services would require that 

emergency or influx facilities provide 

unaccompanied children with proper 

physical care and maintenance, 

including suitable living 

accommodations, food, appropriate 

clothing, and personal grooming items. 

ORR proposes at § 410.1801(b)(2) that 

emergency and influx facilities provide 

unaccompanied children with 

appropriate routine medical and dental 

care; family planning services, 

including pregnancy tests; medical 

services requiring heightened ORR 

involvement; emergency healthcare 

services; a complete medical 

examination (including screenings for 

infectious diseases) generally within 48 

hours of admission; appropriate 

immunizations as recommended by the 

Advisory Committee on Immunization 

Practices’ Child and Adolescent 

Immunization Schedule and approved 

by HHS’ Centers for Disease Control and 

prevention; administration of prescribed 

medication and special diets; and 

appropriate mental health interventions 

when necessary. 

ORR believes that the unique needs 

and background of each unaccompanied 

child should be assessed by emergency 

or influx facilities to ensure that these 

needs are being addressed and 

supported by the emergency or influx 

facility. Therefore, under proposed 

§ 410.1801(b)(3), and consistent with 

ORR’s existing policy and practice, ORR 

would require that each unaccompanied 

child receive an individualized needs 

assessment that includes: the various 

initial intake forms, collection of 

essential data relating to the 

identification and history of the child 

and the child’s family, identification of 

the unaccompanied child’s special 

needs including any specific problems 

which appear to require immediate 

intervention, an educational assessment 

and plan, and an assessment of family 

relationships and interaction with 

adults, peers and authority figures; a 

statement of religious preference and 

practice; an assessment of the 

unaccompanied child’s personal goals, 

strengths and weaknesses; identifying 

information regarding immediate family 

members, other relatives, godparents or 

friends who may be residing in the 

United States and may be able to assist 

in connecting the child with family 

members. 

Access to education services for 

unaccompanied children in care from 

qualified professionals is critical to 

avoid learning loss while in care and 

ensure unaccompanied children are 

developing academically. Under 

proposed § 410.1801(b)(4), ORR would 

require that emergency or influx 

facilities provide educational services 

appropriate to the unaccompanied 

child’s level of development and 

communication skills in a structured 

classroom setting Monday through 

Friday, which concentrates primarily on 

the development of basic academic 

competencies, and secondarily on 

English Language Training. ORR 

proposes that, as part of these minimum 

services for unaccompanied children in 

emergency or influx facilities, the 

educational program shall include 

instruction and educational and other 

reading materials in such languages as 

needed. Basic academic areas should 

include Science, Social Studies, Math, 

Reading, Writing and Physical 

Education. The program must provide 

unaccompanied children with 

appropriate reading materials in 

languages other than English for use 

during leisure time. 

ORR strongly believes that time for 

recreation is essential to supporting the 

health and wellbeing of unaccompanied 

children. Under proposed 

§ 410.1801(b)(5), ORR would require 

that emergency or influx facilities 

provide unaccompanied children with 

activities according to a recreation and 

leisure time plan that include daily 

outdoor activity—weather permitting— 


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134See 45 CFR 87.3(a). 

with at least one hour per day of large 

muscle activity and one hour per day of 

structured leisure time activities (that 

should not include time spent watching 

television). Activities should be 

increased to a total of three hours on 

days when school is not in session. 

The psychological and emotional 

wellbeing of unaccompanied children 

are an important component of their 

overall health and wellbeing, and 

therefore ORR is proposing that these 

needs must be met by emergency or 

influx facilities. Under proposed 

§ 410.1801(b)(6), emergency or influx 

facilities would be required to provide 

at least one individual counseling 

session per week conducted by trained 

social work staff with the specific 

objective of reviewing the child’s 

progress, establishing new short-term 

objectives, and addressing both the 

developmental and crisis-related needs 

of each child. Group counseling 

sessions are another way that the 

psychological and emotional wellbeing 

of unaccompanied children can be 

supported while in ORR care. Therefore, 

under § 410.1801(b)(7), ORR proposes 

that unaccompanied children would 

also receive group counseling sessions 

at least twice a week. Sessions are 

usually informal and take place with all 

unaccompanied children present. ORR 

believes that these group sessions would 

give new children the opportunity to get 

acquainted with staff, other children, 

and the rules of the program, as well as 

provide them with an open forum where 

everyone gets a chance to speak. Daily 

program management is discussed, and 

decisions are made about recreational 

and other activities. ORR notes that 

these group sessions would provide a 

meaningful opportunity to allow staff 

and unaccompanied children to discuss 

whatever is on their minds and to 

resolve problems. 

At proposed § 410.1801(b)(8), 

emergency or influx facilities would be 

required to provide unaccompanied 

children with acculturation and 

adaptation services, which include 

information regarding the development 

of social and interpersonal skills which 

contribute to those abilities necessary to 

live independently and responsibly. 

ORR believes these services are 

important to supporting the social 

development and meeting the cultural 

needs of unaccompanied children in 

emergency or influx facilities. ORR 

proposes to require, under 

§ 410.1801(b)(9), that emergency or 

influx facilities provide a 

comprehensive orientation regarding 

program intent, services, rules (written 

and verbal), expectations, and the 

availability of legal assistance. In an 

effort to support each child’s spiritual 

and religious practices, ORR proposes at 

§ 410.1801(b)(10), that emergency or 

influx facilities would be required to 

provide unaccompanied children access 

to religious services of the child’s choice 

whenever possible. At the same time, 

with respect to the obligations of care 

provider facilities, ORR notes that it 

operates the Unaccompanied Children 

program in compliance with the 

requirements of the Religious Freedom 

Restoration Act and other applicable 

Federal conscience protections, as well 

as all other applicable Federal civil 

rights laws and applicable HHS 

regulations.134

ORR proposes at § 410.1801(b)(11) 

that emergency or influx facilities 

would make visitation and contact with 

family members (regardless of their 

immigration status) available to 

unaccompanied children in such a way 

that is structured to encourage such 

visitation. ORR notes that the staff must 

respect the child’s privacy while 

reasonably preventing the unauthorized 

release of the unaccompanied child. 

Under proposed § 410.1801(b)(12), 

unaccompanied children at emergency 

or influx facilities would have a 

reasonable right to privacy, which 

includes the right to wear the child’s 

own clothes when available, retain a 

private space in the residential facility, 

group or foster home for the storage of 

personal belongings, talk privately on 

the phone and visit privately with 

guests, as permitted by the house rules 

and regulations, receive and send 

uncensored mail unless there is a 

reasonable belief that the mail contains 

contraband. ORR proposes at 

§ 410.1801(b)(13) that unaccompanied 

children at emergency or influx 

facilities would be provided services 

designed to identify relatives in the 

United States as well as in foreign 

countries and assistance in obtaining 

legal guardianship when necessary for 

the release of the unaccompanied child. 

Under proposed § 410.1801(b)(14), 

emergency or influx facilities would be 

required to provide unaccompanied 

children with legal services information, 

including the availability of free legal 

assistance, and that they may be 

represented by counsel at no expense to 

the government the right to a removal 

hearing before an immigration judge; the 

ability to apply for asylum with USCIS 

in the first instance; and the ability to 

request voluntary departure in lieu of 

deportation. 

ORR proposes at § 410.1801(b)(15) 

that emergency or influx facilities, 

whether state-licensed or not, must 

comply, to the greatest extent possible, 

with State child welfare laws and 

regulations (such as mandatory 

reporting of abuse), as well as State and 

local building, fire, health and safety 

codes, that ORR determines are 

applicable to non-State licensed 

facilities. If there is a potential conflict 

between ORR’s regulations and state 

law, ORR will review the circumstances 

to determine how to ensure that it is 

able to meet its statutory 

responsibilities. It is important to note, 

however, that if a State law or license, 

registration, certification, or other 

requirement conflicts with an ORR 

employee’s duties within the scope of 

their ORR employment, the ORR 

employee is required to abide by their 

Federal duties. Under proposed 

§ 410.1801(b)(16), emergency or influx 

facilities must deliver services in a 

manner that is sensitive to the age, 

culture, native language, and needs of 

each unaccompanied child. To support 

this proposed minimum service, 

emergency or influx facilities would be 

required to develop an individual 

service plan for the care of each child. 

Finally, proposed § 410.1801(b)(17) 

would require that the emergency or 

influx facility maintains records of case 

files and make regular reports to ORR. 

Emergency or influx facilities must have 

accountability systems in place, which 

preserve the confidentiality of client 

information and protect the records 

from unauthorized use or disclosure. 

At § 410.1801(c), ORR proposes that 

emergency or influx facilities must do 

the following when providing services 

to unaccompanied children: (1) 

Maintain safe and sanitary conditions 

that are consistent with ORR’s concern 

for the particular vulnerability of 

minors; (2) Provide access to toilets, 

showers and sinks, as well as personal 

hygiene items such as soap, toothpaste 

and toothbrushes, floss, towels, 

feminine care items, and other similar 

items; (3) Provide drinking water and 

food; (4) Provide medical assistance if 

the unaccompanied child is in need of 

emergency services; (5) Maintain 

adequate temperature control and 

ventilation; (6) Provide adequate 

supervision to protect unaccompanied 

children; (7) separate from other 

unaccompanied children those 

unaccompanied children who are 

subsequently found to have past 

criminal or juvenile detention histories 

or have perpetrated sexual abuse that 

present a danger to themselves or 

others; (8) Provide contact with family 

members who were arrested with the 

unaccompanied child; and (9) Provide 

access to legal services as proposed at 


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135ORR Policy Guide 7.2.1, ‘‘Criteria for 

Placement’’. Available at: https://www.acf.hhs.gov/ 

orr/policy-guidance/unaccompanied-childrenprogram-policy-guide-section-7. 

136 In § 410.1001, restrictive placement is defined 

to include a secure facility, heightened supervision 

facility, or RTC. 

§ 410.1309 in this proposed rule. ORR 

notes that these requirements are based 

in part on standards described in the 

FSA at paragraph 12A. Although ORR 

understands these requirements apply 

specifically to the conditions in DHS 

facilities following initial arrest or 

encounter by immigration officers at 

DHS, nevertheless, because they set out 

additional safeguards for 

unaccompanied children, ORR proposes 

to adopt them for purposes of 

emergency or influx facilities under this 

rule. In addition to these proposed 

minimum standards, ORR proposes in 

subpart D at § 410.1306, certain 

language access requirements for care 

provider facilities which directly relate 

to these minimum requirements 

described. Specifically, ORR proposes 

that care provider facilities be required 

to consistently offer unaccompanied 

children the option of interpretation 

services in their native or preferred 

language to the greatest extent 

practicable. This includes, but is not 

limited to, providing language access 

during intake and orientation, while 

receiving healthcare services, while 

receiving information related to the 

sexual assault and abuse program, and 

while being provided with legal 

services. Additionally, consistent with 

paragraph 12A of the FSA, ORR would 

transfer an unaccompanied child to 

another care provider facility if 

necessary to provide adequate language 

services. These language access 

requirements are intended to protect 

unaccompanied children’s interests and 

ensure that they understand their legal 

rights and options available to them, the 

nature of ORR custody and the general 

ORR principles regarding their care, and 

that they have access to adequate and 

effective legal representation if 

necessary. Many of these services are 

provided by case managers, who must 

have a presence onsite at the emergency 

or influx facility. 

At § 410.1801(d), ORR proposes 

certain scenarios in which ORR may 

grant waivers for an emergency or influx 

facility operator, either a contractor or 

grantee, from the standards proposed 

under § 410.1801(b). Specifically, 

waivers may be granted for one or all of 

the services identified under 

§ 410.1801(b) if the facility is activated 

for a period of six consecutive months 

or less and ORR determines that such 

standards are operationally infeasible. 

For example, an emergency or influx 

facility operator may be unable to 

provide services at the site within the 

timeframe required by ORR. ORR 

determines whether certain standards 

are operationally infeasible on a caseby-case basis, taking into consideration 

the circumstances presented by a 

specific emergency or influx facility. 

ORR also would require that such 

waivers be made publicly available. 

Section 410.1802 Placement Standards 

for Emergency or Influx Facilities 

ORR proposes at § 410.1802 to codify 

the criteria and requirements that apply 

to placement of unaccompanied 

children at emergency or influx 

facilities. ORR notes that these proposed 

requirements are consistent with 

existing ORR practices currently 

provided under section 7.2.1 of the ORR 

Policy Guide.135

Under proposed § 410.1802(a), ORR 

would require that, to the extent 

feasible, unaccompanied children who 

are placed in an emergency or influx 

facility meet all of the following criteria: 

the child (1) is expected to be released 

to a sponsor within 30 days; (2) is age 

13 or older; (3) speaks English or 

Spanish as their preferred language; (4) 

does not have a known disability or 

other mental health or medical issue or 

dental issue requiring additional 

evaluation, treatment, or monitoring by 

a healthcare provider; (5) is not a 

pregnant or parenting teen; (6) would 

not have a diminution of legal services 

as a result of the transfer to an 

unlicensed facility; and (7) is not a 

danger to themselves or to others 

(including not having been charged with 

or convicted of a criminal offense). 

Additionally, if ORR becomes aware 

that a child does not meet any of the 

criteria specified under § 410.1802(a) at 

any time after placement into an 

emergency or influx facility, ORR will 

transfer the unaccompanied child to the 

least restrictive setting appropriate for 

that child’s need as expeditiously as 

possible. ORR believes that these 

proposed criteria will help to ensure 

that the unaccompanied child is placed 

in a setting that is appropriate to 

accommodate the child’s specific needs. 

ORR proposes at § 410.1802(b) that it 

shall also consider the following factors 

for the placement of an unaccompanied 

child in an emergency or influx facility: 

(1) the unaccompanied child should not 

be part of a sibling group with a 

sibling(s) age 12 years or younger; (2) 

the unaccompanied child should not be 

subject to a pending age determination; 

(3) the unaccompanied child should not 

be involved in an active State licensing, 

child protective services, or law 

enforcement investigation, or an 

investigation resulting from a sexual 

abuse allegation; (4) the unaccompanied 

child should not have a pending home 

study; (5) the unaccompanied child 

should not be turning 18 years old 

within 30 days of the transfer to an 

emergency or influx facility; (6) the 

unaccompanied child should not be 

scheduled to be discharged in three 

days or less; (7) the unaccompanied 

child should not have a current set 

docket date in immigration court or 

State/family court (juvenile included), 

not have a pending adjustment of legal 

status, and not have an attorney of 

record or EOIR accredited 

representative; (8) the unaccompanied 

child should be medically cleared and 

vaccinated as required by the emergency 

or influx care facility (for instance, if the 

influx care facility is on a U.S. 

Department of Defense site); and (9) the 

unaccompanied child should have no 

known mental health, dental, or medical 

issues, including contagious diseases 

requiring additional evaluation, 

treatment, or monitoring by a healthcare 

provider. ORR believes that these 

proposed provisions will help support 

the safe and appropriate placement of 

unaccompanied children in ORR care. 

Subpart J—Availability of Review of 

Certain ORR Decisions 

Section 410.1900 Purpose of This 

subpart 

Ensuring that placement decisions 

involving restrictive placements,136

such as decisions to place 

unaccompanied children in a restrictive 

placement, to step-up a child to a more 

restrictive level of care, to step-down a 

child from one restrictive placement to 

another (e.g., from secure to a 

heightened supervision facility), or to 

continue to keep a child in a restrictive 

placement, are subject to review is 

fundamental to ensuring 

unaccompanied children are placed in 

the least restrictive setting that is in 

their best interest while also considering 

the safety of others and runaway risk. 

ORR believes that establishing the 

availability of administrative review 

helps ensure, for the minority of 

unaccompanied children that are placed 

in restrictive placements, that such 

placement is appropriate and based on 

clear and convincing evidence, as 

discussed in subpart B. ORR notes that 

its proposals in this subpart are 

consistent with the preliminary 

injunction issued on August 30, 2022 in 

Lucas R. v. Becerra, as discussed in 

section IV.A.4. of this proposed rule. 


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

138 If, hypothetically, an unaccompanied child 

was in secure care for 90 days, they would receive 

both their third 30-day review and their second, 

more intensive 45-day review concurrently. 

Under proposed § 410.1900, ORR would 

establish that the purpose of this 

subpart is to describe the availability of 

review of certain ORR decisions 

regarding the care and placement of 

unaccompanied children. 

Section 410.1901 Restrictive 

Placement Case Reviews 

ORR is required under the TVPRA to 

place unaccompanied children in the 

least restrictive setting that is in their 

best interests, and in making placements 

may consider danger to self, danger to 

the community, and runaway risk.137

ORR believes that this requirement 

entails consideration of the safety of 

individual unaccompanied children 

whom it places, as well as the other 

unaccompanied children who have 

already been placed at the same care 

provider facility. ORR continually and 

routinely assesses whether an 

unaccompanied child’s placement in a 

restrictive placement meets the criteria 

for such placements as discussed in 

proposed § 410.1105 Criteria for Placing 

an Unaccompanied Child in Restrictive 

Placement. Under proposed 

§ 410.1901(a), and consistent with the 

preliminary injunction in the Lucas R. 

case discussed above, in all cases 

involving restrictive placements, ORR 

would determine, based on clear and 

convincing evidence, that sufficient 

grounds exist for stepping up or 

continuing to hold an unaccompanied 

child in a restrictive placement. ORR is 

further proposing a requirement that the 

evidence supporting a restrictive 

placement decision be recorded in the 

unaccompanied child’s case file. 

ORR believes that it is imperative that 

unaccompanied children placed in 

restrictive placements understand the 

reasons for their placement and their 

rights, including their right to contest 

such a placement and their right to 

counsel. Therefore, under proposed 

§ 410.1901(b), ORR would require that a 

written Notice of Placement (NOP) be 

provided to unaccompanied children no 

later than 48 hours after step-up to a 

restrictive placement, as well as at least 

every 30 days an unaccompanied child 

remains in a restrictive placement. ORR 

notes that whenever possible, ORR 

seeks to provide NOPs in advance of a 

step-up to a restrictive placement. ORR 

further proposes requiring that the NOP 

clearly and thoroughly set forth the 

reason(s) for placement and a summary 

of supporting evidence under proposed 

§ 410.1901(b)(1); inform the 

unaccompanied child of their right to 

contest the restrictive placement before 

the Placement Review Panel (PRP) upon 

receipt of the NOP, the procedures by 

which the unaccompanied child may do 

so, and all other available 

administrative review processes under 

§ 410.1901(b)(2); and include an 

explanation of the unaccompanied 

child’s right to be represented by 

counsel in challenging such restrictive 

placements under § 410.1901(b)(3). 

Finally, to ensure that the 

unaccompanied child understands the 

information provided under this 

paragraph, ORR is proposing that a case 

manager would be required to explain 

the NOP to the unaccompanied child, in 

the child’s native or preferred language, 

depending on the child’s preference, 

and in a way the child understands, 

under § 410.1901(b)(4). ORR notes that 

communications with unaccompanied 

children would be required to meet 

ORR’s proposed language access 

standards under § 410.1306. 

As part of ensuring that 

unaccompanied children are informed 

regarding their restrictive placement, it 

is critical that any legal counsel or other 

representative or advocate, and parent 

or guardian for an unaccompanied child 

also receive such notification. 

Therefore, under § 410.1901(c), ORR is 

proposing to require that the care 

provider facility provide a copy of the 

NOP to the unaccompanied child’s legal 

counsel of record, legal service provider, 

child advocate, and to a parent or legal 

guardian of record, no later than 48 

hours after step-up, as well as every 30 

days the unaccompanied child remains 

in a restrictive placement. ORR notes 

that this proposed requirement may be 

subject to specific child welfare-related 

exceptions. 

ORR believes that placements of 

unaccompanied children in restrictive 

placements should be routinely assessed 

to ensure they meet the criteria at 

proposed § 410.1105. If unaccompanied 

children do not meet the criteria, they 

should accordingly be stepped up or 

stepped down to a placement that is the 

least restrictive setting that is in their 

best interests, prioritizing their safety 

and the safety of others. Under proposed 

§ 410.1901(d), ORR would establish 

regular administrative reviews for 

restrictive placements. ORR is 

proposing regular intervals for 

administrative reviews depending on 

the type of restrictive placement: 30- 

day, at minimum, for all restrictive 

placements under proposed 

§ 410.1901(d)(1); more intensive 45-day 

reviews by ORR supervisory staff for 

unaccompanied children in secure 

facilities, under proposed 

§ 410.1901(d)(2).138 For unaccompanied 

children in RTCs, the 30-day review at 

proposed § 410.1901(d)(1) would be 

required to involve a psychiatrist or 

psychologist to determine whether the 

unaccompanied child should remain in 

restrictive residential care, under 

proposed § 410.1901(d)(3). ORR 

welcomes public comment on these 

proposals. 

Section 410.1902 Placement Review 

Panel. 

ORR believes that unaccompanied 

children who are placed in a restrictive 

placement should have the ability to 

request reconsideration of their 

placement at any time after receiving an 

NOP. Consistent with existing policy, 

under proposed paragraph (a), ORR 

would convene a Placement Review 

Panel (PRP) when an unaccompanied 

child requests reconsideration of their 

placement in a restrictive placement, for 

the purposes of reviewing the 

unaccompanied child’s reconsideration 

request. Under current practice, the PRP 

is a three-member panel consisting of 

ORR’s senior-level career staff with 

requisite experience in child welfare, 

including restorative justice, adverse 

childhood experiences, special 

populations, and/or mental health. 

Under proposed § 410.1902(a), upon 

request for reconsideration of their 

placement in a restrictive placement, 

ORR would afford the unaccompanied 

child a hearing before the PRP, at which 

the unaccompanied child may, with the 

assistance of counsel if preferred, 

present evidence on their own behalf. 

An unaccompanied child may present 

witnesses and cross-examine ORR’s 

witnesses, if such witnesses are willing 

to voluntarily testify. ORR notes that an 

unaccompanied child and/or their legal 

counsel of record are provided with the 

child’s case file information, in 

accordance with ORR’s case file 

policies. An unaccompanied child that 

does not wish to request a hearing may 

also have their placement reconsidered 

by submitting a request for a 

reconsideration along with any 

supporting documents as evidence. 

Under proposed § 410.1902(b), the 

PRP would afford any unaccompanied 

children in a restrictive placement the 

opportunity to request a PRP review as 

soon as the unaccompanied child 

receives a NOP and anytime thereafter. 

Under proposed § 410.1902(c), ORR 

would require itself to convene the PRP 

within a reasonable timeframe, to allow 


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139See FSA at paragraph 24A. 

140See 6 U.S.C. 279(a). 

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

2020). 

142See 8 CFR 1003.19, 1236.1. 

143See Flores v. Lynch, 392 F. Supp. 3d 1144, 

1150 (C.D. Cal. 2017) (‘‘Assuming an immigration 

judge reduces a child’s bond, or decides he or she 

presents no flight risk or danger such that he needs 

to remain in HHS/ORR custody, HHS can still 

exercise its coordination and placement duties 

under the TVPRA.’’). 

144 In contrast, under paragraph 14 of the FSA the 

former INS would detain a minor if detention was 

required ‘‘to secure his or her timely appearance 

before the INS or immigration court.’’ As a result, 

as they pertained to the former INS, bond hearings 

afforded an opportunity for the unaccompanied 

children to have a hearing before an independent 

officer to determine whether the unaccompanied 

children in fact posed a risk of flight if released 

from custody. 

the unaccompanied child to have a 

hearing without undue delay. ORR 

would require, under proposed 

§ 410.1902(d), that the PRP would issue 

a decision within 30 calendar days of 

the PRP request whenever possible. 

ORR believes these requirements would 

help ensure reconsideration requests are 

decisioned in a timely manner. 

Finally, ORR believes ORR staff 

members should be recused from 

participation in a PRP under certain 

circumstances to help ensure an 

impartial reconsideration of an 

unaccompanied child’s placement. 

Under proposed § 410.1902(e), ORR 

would require that an ORR staff member 

who was involved with the decision to 

step up an unaccompanied child to a 

restrictive placement may not serve as a 

Placement Review Panel member with 

respect to that unaccompanied child’s 

placement. 

ORR welcomes public comment on 

these proposals. 

Section 410.1903 Risk Determination 

Hearings 

The decision in Flores v. Sessions, 

862 F.3d 863 (9th Cir. 2017), held that 

notwithstanding the passage of the HSA 

and the TVPRA, unaccompanied 

children in ORR custody continue to 

have the ability to seek a bond hearing 

before an immigration judge in every 

case, unless waived by the 

unaccompanied child.139 The proposed 

regulations under this section are 

intended to afford the same type of 

hearing for unaccompanied children, 

while recognizing that the HSA, enacted 

after the FSA went into effect, 

transferred the responsibility of care and 

custody of unaccompanied children 

from the former INS to ORR.140

Under proposed § 410.1903, ORR 

would establish a hearing process that 

provides the same substantive 

protections as immigration court bond 

hearings under the FSA, but through an 

independent and neutral HHS hearing 

officer. Further, these hearings would 

take place at HHS rather than the 

Department of Justice (DOJ). This 

arrangement would parallel the 

arrangement under the FSA because 

when the FSA was enacted, the former 

INS, which then was responsible for the 

custody of unaccompanied minors, and 

the immigration courts were located in 

the same department, DOJ. Similarly, 

ORR proposes the availability of risk 

determination hearings before hearing 

officers who are within the same 

department, HHS, but independent of 

ORR. ORR believes that utilizing an 

independent hearing officer within HHS 

would help prevent undue delay for a 

hearing while the unaccompanied child 

is in ORR care because generally HHS 

hearing schedules have greater 

availability in the short term, 

particularly as compared to immigration 

courts. ORR notes that it codified a 

similar provision in the 2019 Final Rule 

which the Ninth Circuit held was 

consistent with the FSA, except where 

it did not automatically place 

unaccompanied children in restrictive 

placements in bond hearings.141 ORR 

now proposes to implement a process 

substantially the same as the one in the 

2019 Final Rule, but updated to conform 

with the Ninth Circuit’s ruling. 

Unlike typical ‘‘bond redetermination 

hearings’’ in the immigration court 

context, which refer to an immigration 

judge’s review of a custody decision, 

including any bond set, by DHS,142 ORR 

does not require payment of money in 

relation to any aspect of its care and 

placement. Instead, the function of risk 

determination hearings in the ORR 

context is to determine whether an 

unaccompanied child would be a 

danger to the community or a runaway 

risk if released.143 With respect to these 

functions, ORR notes, first, that 

consistent with its discretion as 

described at 8 U.S.C. 1232(c)(2)(A), it 

does not consider runaway risk when 

making release decisions regarding 

unaccompanied children in its care. As 

a result, unlike when the FSA was 

implemented in 1997, runaway risk is 

no longer a relevant issue in risk 

determination hearings for 

unaccompanied children.144 Therefore, 

the relevant issue for risk determination 

hearings for unaccompanied children is 

whether they would present a danger if 

released from ORR custody. With 

respect to this function, ORR notes that 

for the great majority of unaccompanied 

children in ORR custody, it has 

determined they are not a danger and 

therefore has placed them in nonrestrictive placements such as shelters 

and group homes. These 

unaccompanied children remain in ORR 

care only because a suitable sponsor has 

not yet been found. 

Under proposed § 410.1903(a), ORR 

would codify that all unaccompanied 

children in restrictive placements 

would be afforded a risk determination 

hearing before an independent HHS 

hearing officer to determine, through a 

written decision, whether the 

unaccompanied child would present a 

risk of danger to the community if 

released, unless the unaccompanied 

child indicates in writing that they 

refuse such a hearing. For all other 

unaccompanied children in ORR 

custody, ORR proposes that they may 

request such a hearing. 

ORR is proposing to establish a 

process for providing notifications and 

receiving requests related to risk 

determination hearings. Under proposed 

§ 410.1903(a)(1), ORR would require 

that requests under this section be made 

in writing by the unaccompanied child, 

their attorney of record, or their parent 

or legal guardian by submitting a form 

provided by ORR to the care provider 

facility or by making a separate written 

request that contains the information 

requested in ORR’s form. Under 

proposed § 410.1903(a)(2), 

unaccompanied children in restrictive 

placements based on a finding of 

dangerousness would automatically be 

provided a risk determination hearing, 

unless they refuse in writing. They 

would also receive a notice of the 

procedures under this section and 

would be able to use a form provided to 

them to decline a hearing under this 

section. ORR proposes that 

unaccompanied children in restrictive 

placements may decline the hearing at 

any time, including after consultation 

with counsel. ORR would require that 

such choice be communicated to ORR in 

writing. 

ORR is proposing to establish 

procedures related to risk determination 

hearings so that the roles of each party 

are clear. Under proposed § 410.1903(b), 

ORR would bear an initial burden of 

production, providing relevant 

arguments and documents to support its 

determination that an unaccompanied 

child would pose a danger if discharged 

from ORR care and custody. Then, ORR 

is proposing that the unaccompanied 

child would have a burden of 

persuasion to show that they would not 

be a danger to the community if 

released, under a preponderance of the 

evidence standard. ORR notes that it has 

established a subregulatory process to 

ensure access to case files and 

documents for unaccompanied children 


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145See 8 U.S.C. 1232(c)(3); see also Flores v. 

Sessions, 862 F.3d 863, 868 (9th Cir. 2017) (‘‘As was 

the case under the Flores Settlement prior to the 

passage of the HSA and TVPRA, the determinations 

made at hearings held under Paragraph 24A will 

not compel a child’s release. Regardless of the 

outcome of a bond hearing, a minor may not be 

released unless the agency charged with his or her 

care identifies a safe and appropriate placement.’’). 

146To the extent the hearing officer or Assistant 

Secretary, or designee, makes other findings with 

respect to the unaccompanied children, ORR will 

consider those in making placement and release 

decisions. For example, if a hearing officer finds 

that the child is not a flight risk, ORR will consider 

that finding when assessing the child’s placement 

and conditions of placement—though the decision 

does not affect release because ORR does not make 

a determination of flight risk for purposes of 

deciding whether a child will be released. 

and their legal counsel in a timely 

manner for these purposes. Under 

proposed paragraph (c), the 

unaccompanied child would have the 

ability to be represented by a person of 

the unaccompanied child’s choosing, 

would be permitted to present oral and 

written evidence to the hearing officer, 

and would be permitted to appear by 

video or teleconference. Finally, ORR is 

proposing that ORR may also choose to 

present evidence at the hearing, whether 

in writing, or by appearing in person or 

by video or teleconference. 

ORR is also proposing regulations 

related to hearing officers’ decisions in 

risk determination hearings. First, under 

proposed paragraph (d), a decision that 

an unaccompanied child would not be 

a danger to the community if released 

would be binding upon ORR unless 

appealed. ORR believes that 

unaccompanied children must also have 

the availability to appeal decisions 

finding that they are a danger to the 

community if released. However, HHS 

does not have a two-tier administrative 

appellate system that closely mirrors 

that of the EOIR within the DOJ, where 

immigration court decisions may be 

appealed to the Board of Immigration 

Appeals. To provide similar protections 

without such a two-tier system, ORR is 

proposing to allow appeals to the 

Assistant Secretary of ACF or their 

designee. Therefore, under 

§ 410.1903(e), ORR is proposing that 

decisions under this section may be 

appealed to the Assistant Secretary of 

ACF, or the Assistant Secretary’s 

designee. ORR is proposing that appeal 

requests be in writing and be received 

by the Assistant Secretary or their 

designee within 30 days of the hearing 

officer’s decision under § 410.1903(e)(1). 

Under § 410.1903(e)(2), ORR is 

proposing that the Assistant Secretary, 

or their designee, will reverse a hearing 

officer decision only if there is a clear 

error of fact, or if the decision includes 

an error of law. Further, under 

§ 410.1903(e)(3), ORR is proposing that 

if the hearing officer finds that the 

unaccompanied child would not pose a 

danger to the community if released, 

and such decision would result in ORR 

releasing the unaccompanied child from 

its custody (e.g., because ORR had 

otherwise completed its assessment for 

the release of the unaccompanied child 

to a sponsor, and the only factor 

preventing release was its determination 

that the unaccompanied child posed a 

danger to the community), an appeal to 

the Assistant Secretary would not effect 

a stay of the hearing officer’s decision, 

unless the Assistant Secretary or their 

designee issues a decision in writing 

within five business days of such 

hearing officer decision that release of 

the unaccompanied child would likely 

result in a danger to the community. 

ORR is proposing to require that such a 

stay decision must include a description 

of behaviors of the unaccompanied 

child while in ORR custody and/or 

documented criminal or juvenile 

behavior records from the 

unaccompanied child demonstrating 

that the unaccompanied child would 

present a danger to community, if 

released. 

Alternatively, ORR is considering an 

appeal structure under which a 

politically accountable official (e.g., the 

Assistant Secretary of ACF, or their 

designee) would have discretion to 

conduct de novo review of hearing 

officer determinations. As under the 

current proposed approach, the official 

conducting de novo review would be 

able to reverse hearing officer 

determinations. But unlike the current 

proposed approach, the official would 

not be constrained to reversing hearing 

officer determinations based only on 

clear error of fact, or error of law. 

Instead, the official would step into the 

position of the hearing officer and redecide the issues. We request comments 

as to whether ORR should adopt this 

alternative scheme. 

ORR reiterates that in the context of 

risk determination hearings, although a 

finding of non-dangerousness may 

result in an unaccompanied child’s 

release, neither the hearing officer nor 

the Assistant Secretary, on appeal, may 

order the release or change of placement 

of an unaccompanied child. Placement 

and release decision-making authority is 

vested in the Director of ORR under the 

HSA and TVPRA.145 The fundamental 

question at issue in an ORR risk 

determination hearing is whether an 

unaccompanied child would pose a 

danger to the community if released.146

ORR is proposing under § 410.1903(f) 

that decisions under this section would 

be final and binding on the Department, 

meaning that when deciding whether to 

release an unaccompanied child (in 

accordance with the ordinary 

procedures on release for 

unaccompanied children as discussed 

in subpart C of this proposed rule), the 

ORR Director would not be able to 

disregard a determination that an 

unaccompanied child is not a danger. 

Further, in the case of an 

unaccompanied child who was 

determined to pose a danger to the 

community if released, the child would 

be permitted to seek another hearing 

under this section only if they can 

demonstrate a material change in 

circumstances. Similarly, because ORR 

may not have located a suitable sponsor 

at the time a hearing officer issues a 

decision, it may find that circumstances 

have changed by the time a sponsor is 

found such that the original hearing 

officer decision should no longer apply. 

Therefore, ORR is proposing that it may 

request the hearing officer to make a 

new determination under this section if 

at least one month has passed since the 

original decision, and/or ORR can show 

that a material change in circumstances 

means the unaccompanied child should 

no longer be released due to presenting 

a danger to the community. Based on 

experience under current policies, ORR 

believes one month is a reasonable 

length of time for a material change in 

circumstances to have occurred and best 

balances operational constraints with 

the safety concerns of all children under 

ORR care. It also ensures that children 

who have newly exhibited dangerous 

behaviors are accurately adjudicated. 

ORR notes that it previously proposed 

and finalized this same length of time 

(one month) in the 2019 Final Rule. 

ORR notes that because it always seeks 

to release an unaccompanied child to a 

sponsor whenever appropriate, ORR can 

make determinations to release a child 

previously determined to be a danger to 

the community without a new risk 

determination hearing because the 

purpose of a risk determination hearing 

is to ensure a child who is not a danger 

to the community is not kept in ORR 

custody. 

ORR is proposing under § 410.1903(g) 

that this section cannot be used to 

determine whether an unaccompanied 

child has a suitable sponsor, and neither 

the hearing officer nor the Assistant 

Secretary, or the Assistant Secretary’s 

designee, would be authorized to order 

the unaccompanied child released. This 

means that an unaccompanied child 

that has been determined by a hearing 

officer to not present a danger would 

only be released in accordance with the 


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

148For example, see Standards Committee of the 

United States Ombudsman Association, 

Governmental Ombudsmen Standards (2003) at 1, 

https://www.usombudsman.org/wp-content/ 

uploads/USOA-STANDARDS1.pdf (promoting a 

model that defines a governmental ombudsman as 

an independent, impartial public official with 

authority and responsibility to receive, investigate 

or informally address complaints about Government 

actions, and, when appropriate, make findings and 

recommendations, and publish reports). See also 

Houk et al., A Reappraisal–The Nature and Value 

of Ombudsmen in Federal Agencies, Administrative 

Conference of the United States (2016) at 258–67, 

https://www.acus.gov/report/ombudsman-federalagencies-final-report-2016 (‘‘2016 ACUS Report’’) 

(reviewing association standards and practices of 

different Federal ombudsman offices, and 

concluding that independent, confidentiality, and 

impartiality are essential to the ombudsman 

profession.). 

149 2016 ACUS Report at 28. 

ordinary procedures on release for 

unaccompanied children as discussed 

in subpart C of this proposed rule. 

Finally, ORR is proposing under 

§ 410.1903(h) that this section may not 

be invoked to determine an 

unaccompanied child’s placement while 

in ORR custody or to determine level of 

custody for the unaccompanied child. 

Under this proposed section, the 

purpose of a risk determination hearing 

is only to determine whether an 

unaccompanied child presents a danger 

to the community if released, not to 

determine placement or level of 

custody. ORR would determine 

placement and level of custody as part 

of its ordinary procedures for the 

placement of unaccompanied children 

as discussed in subpart B of this 

proposed rule. That said, ORR would be 

able to take into consideration the 

hearing officer’s decision on an 

unaccompanied child’s level of danger 

(and runaway risk) for those purposes. 

Subpart K—UC Office of the Ombuds 

ORR proposes establishing an 

independent ombuds office that would 

promote important protections for all 

children in ORR care. An ombuds office 

to address unaccompanied children’s 

issues does not currently exist, and ORR 

believes that the creation of an ombuds 

office would advance its duty to 

‘‘ensur[e] that the interests of the child 

are considered in decisions and actions 

relating to the care and custody of an 

unaccompanied alien child.’’ 147 An 

ombuds for the UC Program would be 

an independent, impartial, and 

confidential public official with 

authority and responsibility to receive, 

investigate and informally address 

complaints about government actions, 

make findings and recommendations 

and publicize them when appropriate, 

and publish reports on its activities. 

Although an ombud’s office would not 

have authority to compel ORR to take 

certain actions, ORR believes an Office 

of the Ombuds would provide a 

mechanism by which unaccompanied 

children, sponsors, and other 

stakeholders, including ORR agency 

staff and care provider facility staff, 

could confidentially raise concerns with 

an independent, impartial entity that 

could conduct investigations and make 

recommendations to ORR regarding 

program operations and decisionmaking, and refer concerns to other 

Federal agencies (e.g., HHS Office of the 

Inspector General, Department of 

Justice, etc.) or entities. ORR believes 

that an Office of the Ombuds is a sound 

solution to serve a similar function as 

the oversight currently provided by the 

Flores monitor. While this proposed 

section would not create an oversight 

mechanism with authorities that equate 

with court oversight under a consent 

decree, ORR notes that it is important to 

maintain an independent mechanism to 

identify and report concerns regarding 

the care of unaccompanied children; it 

further believes that this independent 

mechanism should have the ability to 

investigate such claims, to work 

collaboratively with ORR to potentially 

resolve such issues, and publish reports 

on its activities. ORR therefore proposes 

to add new subpart K to part 410 to 

establish the UC Office of the Ombuds. 

Key Principles of an Office of the 

Ombuds 

ORR reviewed literature published by 

several national organizations— 

including the Administrative 

Conference of the United States (ACUS), 

American Bar Association (ABA), 

International Ombudsman Association 

(IOA), the United States Ombudsman 

Association (USOA), and the Coalition 

of Federal Ombudsman (COFO)— 

pertaining to standards of practice and 

establishment of ombuds offices.148 The 

literature identifies independence, 

confidentiality, and impartiality as core 

standards of any Federal ombuds office. 

The literature also identifies common 

definitional characteristics among 

Federal ombuds offices, such as 

informality (i.e., ombuds offices do not 

make decisions binding on the agency 

or provide formal rights-based processes 

for redress) and a commitment to 

credible practices and procedures. In 

addition, most ombuds offices adhere to 

the concepts of providing credible 

review of the issues that come to the 

office, a commitment to fairness, and 

assistance in the resolution of issues 

without making binding agency 

decisions.149 These attributes align with 

ORR’s goals for the creation of an office 

that can provide an independent and 

impartial body that can receive reports 

and grievances regarding the care, 

placement, services, and release of 

unaccompanied children. ORR therefore 

proposes the creation of an Office of the 

Ombuds that incorporates lessons and 

recommendations identified in the 2016 

ACUS report, follows the model of other 

established Federal ombuds offices, and 

takes into consideration feedback from 

interested parties. 

Section 410.2000 Establishment of the 

UC Office of the Ombuds 

ORR proposes, at § 410.2000, to 

establish a UC Office of the Ombuds. As 

the literature identified independence of 

the office as one of the key standards of 

an ombuds, ORR proposes in 

§ 410.2000(a) that the ombuds will 

report directly to the ACF Assistant 

Secretary and will be managed as a 

distinct entity separate from the UC 

Program. ORR requests input on options 

relating to placement and reporting 

structure of this office within ORR or in 

another part of ACF. 

At § 410.2000(b), ORR proposes that 

the UC Office of the Ombuds would be 

an independent, impartial office with 

authority to confidentially and 

informally receive and investigate 

complaints and concerns related to 

unaccompanied children’s experiences 

in ORR care. This paragraph captures 

two additional key standards of an 

ombuds identified by literature: 

impartiality and confidentiality. ORR 

notes the UC Office of the Ombuds 

would not serve as a legal advocate for 

any person or issue binding decisions; 

rather, it would work as a neutral third 

party that can investigate concerns and 

attempt to resolve issues which are 

brought to the office. ORR intends for 

the UC Office of the Ombuds to be an 

additional resource for the UC Program 

and ORR, unaccompanied children, 

their sponsors and advocates, and other 

interested parties. The UC Office of the 

Ombuds will not supplant other roles 

and responsibilities of other entities 

such as the HHS/Office of Inspector 

General, ORR’s own monitoring 

activities of its grants and contracts, or 

services included in this proposed rule, 

such as child advocate services 

(discussed in § 410.1308 of this 

proposed rule) or Legal Services 

(discussed in § 410.1309 of this 

proposed rule). Rather, the UC Office of 

the Ombuds would be responsible for 

acting as a neutral third party to receive, 

investigate, or address complaints about 

Government actions. 


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150See, e.g., 9 NYCRR 177.7 (NYS Office of 

Children and Family Services; Regulations for the 

Office of the Ombudsman; Visits to Facilities and 

Programs) and 6 U.S.C. 205 (Ombudsman for 

Immigration Detention). 151 2016 ACUS Report at 2. 

152 2016 ACUS Report at 56. 

153 2016 ACUS Report at 66. 

Section 410.2001 UC Office of the 

Ombuds Policies and Procedures; 

Contact Information. 

At proposed § 410.2001(a) and (b), the 

UC Office of the Ombuds shall develop 

and make publicly available the office’s 

standards, practices, and policies and 

procedures giving consideration to the 

recommendations by nationally 

recognized ombuds organizations. ORR 

requests comments identifying potential 

standards, practices, and policies and 

procedures for ombuds consideration. 

For example, ORR requests comments 

regarding whether the UC Office the 

Ombuds should adopt standards, 

practices, and policies and procedures 

that are consistent with the ABA, IOA, 

USOA, COFO, or another nationally 

recognized ombuds organization that 

ORR should consider. 

ORR further proposes in § 410.2001(c) 

that the UC Office of the Ombuds ensure 

that information about the office, 

including how to contact the office, is 

publicly available and that the office 

provide notice to unaccompanied 

children, sponsors, and others of its 

scope and responsibilities, in both 

English and other languages spoken and 

understood by unaccompanied children 

in ORR care. Notice shall be provided in 

an accessible manner, including through 

the provision of auxiliary aids and 

services and in clear, easily understood 

language, using concise and concrete 

sentences and/or visual aids. ORR’s 

review of other ombuds office outreach 

activities found multiple approaches to 

raising awareness about an ombuds 

office, such as flyers, information posted 

at care provider facilities, a website and 

onsite visits to facilities or 

constituents.150 ORR proposes 

providing the UC Office of the Ombuds 

with the discretion to determine the best 

approaches to providing outreach and 

awareness of the ability to act as a 

neutral third party, including visiting 

ORR facilities and publishing aggregated 

information annually about the number 

and types of concerns the UC Office of 

the Ombuds receives. 

Section 410.2002 UC Office of the 

Ombuds Scope and Responsibilities 

The 2016 ACUS Report described 

different kinds of ombuds offices which 

perform different functions based on 

their mandates. They may identify new 

issues and patterns of concerns that are 

not well known or are being ignored; 

support procedural changes; contribute 

to significant cost savings by dealing 

with identified issues, often at the 

earliest or pre-complaint stages, thereby 

reducing litigation and settling serious 

disputes; prevent problems through 

training and briefings; and serve as an 

important liaison between colleagues, 

units, or agencies.151 ORR intends to 

establish an ombuds office as an 

independent, impartial office with 

authority to receive and investigate 

issues and concerns related to 

unaccompanied children’s experience 

in ORR care. 

In § 410.2002(a), ORR proposes that 

the scope of the activities of the UC 

Office of the Ombuds may include: 

reviewing ORR compliance with Federal 

law and meeting with interested parties 

to hear input on ORR’s implantation of 

and adherence to Federal law; visiting 

ORR facilities where unaccompanied 

children are or will be housed; 

investigating issues or concerns related 

to unaccompanied children’s access to 

services while in ORR care; reviewing 

the implementation and execution of 

ORR policy and procedures; reviewing 

individual circumstances that raise 

concerns such as issues with access to 

services, communications with 

advocates or sponsors, transfers, or 

discharge from ORR care; and providing 

general education and information 

about ORR and the legal and regulatory 

landscape relevant to unaccompanied 

children. ORR proposes that the UC 

Office of the Ombuds may request 

information and documents from ORR 

and ORR care provider facilities and 

shall be provided with the information 

and documents to the fullest extent 

possible. ORR further proposes that the 

UC Office of the Ombuds may 

recommend new or revised UC Program 

policies and procedures, or other 

process improvements. ORR includes 

these anticipated areas of activity at 

proposed § 410.2002(a). 

ORR anticipates that the UC Office of 

the Ombuds may have the opportunity 

to not only field individual concerns 

from unaccompanied children, their 

representatives, and program and 

facility staff, but may also identify 

patterns of concerns and may be well 

positioned to offer recommendations to 

improve ORR program processes and 

procedures. ORR proposes that, as an 

independent office reporting to the ACF 

Assistant Secretary, the UC Office of the 

Ombuds may determine its caseload and 

agenda and expects that such caseload 

may vary due to a variety of 

circumstances. 

In § 410.2002(b), ORR proposes that, 

because the UC Office of the Ombuds is 

not an enforcement entity, it should 

have the discretion to refer matters to 

other offices or entities, such as state or 

local law enforcement or the Office of 

Inspector General (OIG), as appropriate. 

Finally, to assist the UC Office of the 

Ombuds in accomplishing its 

responsibilities, ORR proposes in 

§ 410.2002(c) that the Ombuds must be 

able to meet with unaccompanied 

children in ORR care upon receiving a 

complaint or based on relevant findings 

during the course of investigating issues 

or concerns; have access to ORR 

facilities, premises, and case file 

information; and have access to care 

provider and Federal staff responsible 

for the children’s care. 

Section 410.2003 Organization of the 

UC Office of the Ombuds 

The 2016 ACUS Report recommends 

that agencies should support the 

credibility of offices of the ombuds by 

selecting an ombuds with sufficient 

professional stature and requisite 

knowledge, skills, and abilities to 

effectively execute the duties of the 

office.152 This should include, at a 

minimum, knowledge of informal 

dispute resolution practices as well as, 

depending on the office mandate, 

familiarity with process design, training, 

data analysis, and facilitation and group 

work with diverse populations.153 To 

align with the recommendations, ORR 

proposes in § 410.2003(a) that the UC 

Ombuds should be hired as a career 

civil servant. ORR believes that 

requiring the UC Ombuds position be 

hired as a career civil servant, rather 

than a political appointee, will support 

the important goal of impartiality. In 

§ 410.2003(b), ORR proposes that the UC 

Ombuds have the requisite knowledge 

and experience to effectively fulfill the 

work and role, including membership in 

good standing in a nationally recognized 

organization, state bar association, or 

association of ombudsmen. Expertise 

should include but is not limited to 

informal dispute resolution practices, 

services and matters related to 

unaccompanied children and in child 

welfare, familiarity and experience with 

oversight and regulatory matters, and 

knowledge of ORR policy and 

regulations. In addition, ORR proposes 

in § 410.2003(c) that the Ombuds may 

engage additional staff as it deems 

necessary and practicable to support the 

functions and responsibilities of the 

Office; and, at § 410.2003(d), ORR 

proposes that the UC Ombuds shall 

establish procedures for training, 

certification, and continuing education 


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154 2016 ACUS Report at 41. 

for staff and other representatives of the 

Office. 

Section 410.2004 Confidentiality 

At proposed § 410.2004(a), ORR 

proposes basic requirements that the 

Ombuds ensure that records and 

proceedings should be kept in a 

confidential manner, except to address 

an imminent risk of serious harm or in 

response to judicial action. 

Additionally, the Ombuds is prohibited 

from using or sharing information for 

any immigration enforcement related 

purpose. This proposal is in line with 

the 2016 ACUS Report identification of 

confidentiality of ombuds 

communications and proceedings as 

being of paramount importance to 

encourage reporting of concerns, 

thereby affording the ombuds the 

opportunity to assist the constituent and 

the agency in resolving the concern.154

ORR also proposes at § 410.2004(b) that 

the UC Office of the Ombuds may 

accept reports from anonymous 

reporters. 

To align to these goals and to help in 

the development of the UC Office of the 

Ombuds, ORR requests public comment 

on best practices for preserving the 

confidentiality of parties that may 

submit a complaint, as well as building 

trust in the confidentiality of the office 

so that individuals feel comfortable and 

safe, without the fear of retaliation, to 

report concerns. 

Request for Information 

ORR believes the UC Office of the 

Ombuds should be intentionally 

designed and requests any other 

comments and input on how the 

Ombuds should handle concerns 

relating to ORR practices. ORR therefore 

includes a request for information for 

additional public input on the proposed 

UC Office of the Ombuds. ORR seeks 

public comment on whether the Office 

should provide services relating to 

oversight in other areas, including more 

generalized concerns about ORR 

conduct and services. ORR also seeks 

comment on potential intersections 

between the Ombuds and other avenues 

for mitigation or redress of grievances 

(e.g., the ORR Placement Review Panel). 

Additionally, ORR seeks comment on 

additional independent and impartial 

mechanisms to address grievances or 

complaints related to children’s 

experiences in ORR care. 

Finally, ORR welcomes comments on 

other organizational and structural 

matters relevant to the proposed UC 

Office of the Ombuds. 

VI. Collection of Information 

Requirements 

Under the Paperwork Reduction Act 

of 1995 (PRA), HHS is required to 

provide 60-day notice in the Federal 

Register and solicit public comment 

before a collection of information 

requirement is submitted to the Office of 

Management and Budget (OMB) for 

review and approval. An agency may 

not conduct or sponsor, and a person is 

not required to respond to, a collection 

of information unless it displays a 

control number assigned by OMB. This 

proposed rule does not require 

information collections for which HHS 

plans to seek OMB approval. 

Under proposed § 410.1902, as 

discussed in section V. of this proposed 

rule, ORR proposes to establish 

processes for unaccompanied children 

to appeal the denial of release and for 

certain prospective sponsors to appeal 

sponsorship denials. While this appeals 

process may require unaccompanied 

children or prospective sponsors to 

submit information to ORR, information 

collections imposed subsequent to an 

administrative action are not subject to 

the PRA under 5 CFR 1320.4(a)(2). 

Therefore, ORR is not estimating any 

information collection burden 

associated with this process. 

ORR has reviewed the requirements 

being codified in subparts A and B and 

determined that the regulatory burden 

associated with reporting and 

recordkeeping requirements is 

accounted for under OMB control 

number 0970–0554 (Placement and 

Transfer of Unaccompanied Children 

into ORR Care Provider Facilities) and 

OMB control number 0970–0547 

(Administration and Oversight of the 

Unaccompanied Children Program). 

ORR is not proposing any new 

requirements which result in a change 

in burden. 

ORR has reviewed the requirements 

being codified in subpart C and 

determined that the regulatory burden 

associated with reporting and 

recordkeeping requirements is 

accounted for under OMB control 

number 0970–0278 (Family 

Reunification Packet for Sponsors of 

Unaccompanied Children), OMB 

control number 0970–0552 (Release of 

Unaccompanied Children from ORR 

Custody) and OMB control number 

0970–0553 (Services Provided to 

Unaccompanied Children). ORR is not 

proposing any new requirements which 

result in a change in burden. 

ORR has reviewed the requirements 

being codified in subpart D and 

determined that the regulatory burden 

associated with reporting and 

recordkeeping requirements is 

accounted for under OMB control 

number 0970–0547 (Administration and 

Oversight of the Unaccompanied 

Children Program), OMB control 

number 0970–0564 (Monitoring and 

Compliance for Office of Refugee 

Resettlement (ORR) Care Provider 

Facilities), and OMB control number 

0970–0565 (Legal Services for 

Unaccompanied Children). ORR is not 

proposing any new requirements which 

result in a change in burden. 

ORR has reviewed the requirements 

being codified in subparts E through I 

and determined that the regulatory 

burden associated with reporting and 

recordkeeping requirements is 

accounted for under OMB control 

number 0970–0554 (Placement and 

Transfer of Unaccompanied Children 

into ORR Care Provider Facilities). ORR 

is not proposing any new requirements 

which result in a change in burden. 

ORR has reviewed the requirements 

being codified in subpart J and 

determined that the regulatory burden 

associated with reporting and 

recordkeeping requirements is 

accounted for under OMB control 

number 0970–0565 (Legal Services for 

Unaccompanied Children). ORR is not 

proposing any new requirements which 

result in a change in burden. 

VII. Regulatory Impact Analysis 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Section 3(f) of Executive Order 

12866, as amended by Executive Order 

14094, defines a ‘‘significant regulatory 

action’’ as an action that is likely to 

result in a rule: (1) having an annual 

effect on the economy of $200 million 

or more (adjusted every 3 years for 

changes in gross domestic product), or 

adversely affecting in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, territorial, or tribal 

governments or communities; (2) 

creating a serious inconsistency or 

otherwise interfering with an action 

taken or planned by another agency; (3) 

materially altering the budgetary impact 

of entitlement grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raising legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 


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155Annual Report to Congress, Office of Refugee 

Resettlement (FY 2019), https://www.acf.hhs.gov/ 

sites/default/files/documents/orr/orr-arcfy2019.pdf. 

156ACF, Justification of Estimates for 

Appropriations Committees, page 70, (FY 2024) 

https://www.acf.hhs.gov/sites/default/files/ 

documents/olab/fy-2024-congressionaljustification.pdf. 

157 Id. at 77. 

set forth in the Executive order. 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. While there is uncertainty 

about the magnitude of effects 

associated with these regulations, it 

cannot be ruled out that they exceed the 

threshold for significance set forth in 

section 3(f)(1) of Executive Order 12866. 

Therefore, the regulation is section 

3(f)(1) significant and has been reviewed 

by OMB. 

A. Economic Analysis 

1. Baseline of Current Costs 

In order to properly evaluate the 

benefits and costs of regulations, 

agencies must evaluate the costs and 

benefits against a baseline. OMB 

Circular A–4 defines the ‘‘no action’’ 

baseline as ‘‘the best assessment of the 

way the world would look absent the 

proposed action.’’ ORR considers its 

current operations and procedures for 

implementing the terms of the FSA, the 

HSA, and the TVPRA to be an 

informative baseline for this analysis, 

from which it estimates the costs and 

benefits that would result from 

implementing the proposals in this 

proposed rule if finalized. The section 

below discusses some examples of the 

current cost for ORR’s operations and 

procedures under this baseline. The 

costs described below are already being 

incurred as part of ORR’s 

implementation of the terms of FSA, the 

HSA, and the TVPRA; however, the 

future in the absence of the rule is 

unclear, including because the end of 

temporary legal structures could change 

the UC Program’s operations. Relative to 

some future trajectories—that is, other 

analytic baselines—there could be 

additional new costs (and new effects 

more generally) associated with the 

policies being promulgated in this 

proposed rule. 

Referrals of unaccompanied children 

to the UC Program vary considerably 

from one year to the next, even from 

month to month, and are largely 

unpredictable. Funding for the UC 

Program’s services are dependent on 

annual appropriations, which rely in 

part on fluctuating migration numbers. 

For example, in fiscal year (FY) 2019, 

the UC Program served 69,488 

unaccompanied children and received 

$1.3 billion in appropriations.155 In 

contrast, in FY 2022, ORR served 

128,904 unaccompanied children and 

received $5.5 billion in 

appropriations.156 Appropriations 

account for uncertainty inherent in 

migration numbers by providing 

additional resources in any month when 

the UC Program receives referrals over 

a certain threshold. For example, in FY 

2023, a contingency fund provided $27 

million for each increment of 500 

referrals (or pro rata share) above a 

threshold of 13,000 unaccompanied 

children referrals in a month.157

The UC Program funds private nonprofit and for-profit agencies to provide 

shelter, counseling, medical care, legal 

services, and other support services to 

children in custody. In addition, some 

funding is provided for limited postrelease services to certain 

unaccompanied children. Care provider 

facilities receive grants or contracts to 

provide shelter, including therapeutic 

care, foster care, shelter with increased 

staff supervision, and secure detention 

care. The majority of program costs 

(approximately 82 percent) are for care 

in ORR shelters. Other services for 

unaccompanied children, such as 

medical care, background checks, and 

family unification services, make up 

approximately 16 percent of the budget. 

Administrative expenses to carry out the 

program total approximately 2 percent 

of the budget. 

2. Estimated Costs 

This proposed rule would codify 

current ORR and HHS requirements for 

compliance with the HSA, the TVPRA, 

the FSA, court orders, and other 

requirements described under existing 

ORR policies and cooperative 

agreements. Because the majority of 

requirements being codified in this 

proposed rule are already enforced by 

ORR, ORR does not expect this 

proposed rule to impose any additional 

costs aside from those costs incurred by 

the Federal Government to establish the 

risk determination hearing process 

described in proposed § 410.1903 and 

the UC Office of the Ombuds described 

in proposed subpart K. Existing staff are 

currently responsible for conducting 

both Internal Compliance Reviews and 

Placement Review Panels as described 

in §§ 410.1901 and 410.1902, 

respectively, therefore no additional 

cost will be incurred. 

In § 410.1309, ORR is proposing to the 

greatest extent practicable and 

consistent with section 292 of the 

Immigration and Nationality Act (8 

U.S.C. 1362), that all unaccompanied 

children who are or have been in ORR 

care would have access to legal advice 

and representation in immigration legal 

proceedings or other matters, consistent 

with current policy. ORR is also 

proposing that to the extent that 

appropriations are available, and insofar 

as it is not practicable to secure pro 

bono counsel for unaccompanied 

children as specified at 8 U.S.C. 

1232(c)(5), ORR would have discretion 

to fund legal service providers to 

provide direct immigration legal 

representation. 

In § 410.1903, ORR proposes to 

establish a hearing process that provides 

the same substantive protections as 

immigration court bond hearings under 

the FSA, but through an independent 

and neutral HHS adjudicator. This 

proposal would shift responsibility for 

these hearings from DOJ to HHS. ORR 

estimates that some resources will be 

required to implement this shift. ORR 

believes that this burden will fall on 

DOJ and HHS staff, and estimates that 

it will require approximately 2,000– 

4,000 hours to implement. This estimate 

reflects six to 12 staff working full-time 

for two months to create the new 

system. After this shift in responsibility 

has been implemented, ORR estimates 

that the rule will lead to no change in 

net resources required for risk 

determination hearings, and therefore 

estimate no incremental costs or 

savings. ORR seeks public comment on 

these estimates. 

In subpart K, ORR discusses its 

proposal to establish an Office of the 

Ombuds for the UC Program. Although 

the scope of the proposed Office of the 

Ombuds may be varied, ORR anticipates 

that it would provide a mechanism by 

which unaccompanied children, 

sponsors, and other relevant parties 

could raise concerns, be empowered to 

independently investigate claims, issue 

findings and make recommendations to 

ORR, and refer findings to other Federal 

agencies or Congress as appropriate. 

ORR proposes that the Ombuds role 

would be filled by a career civil servant 

who has expertise in dispute resolution, 

familiarity with oversight and regulatory 

matters, experience working with 

unaccompanied children or in child 

welfare, and knowledge of ORR policy 

and regulations. In addition to the 

Ombuds position itself, ORR anticipates 

the need for support staff as well. In 

order to estimate the costs associated 

with the proposed Office of the Ombuds 

and its potential staffing requirements, 

ORR conferred with budgetary experts 

and analyzed the needs anticipated to 

accommodate the likely case load. ORR 

assumes the Ombuds would be a GS–15 


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158https://www.whitehouse.gov/wp-content/ 

uploads/legacy_drupal_files/omb/circulars/A76/ 

a76_incl_tech_correction.pdf. 

($176,458 per year) while support staff 

would consist of one GS–14 ($150,016 

per year), four GS–13s ($126,949 per 

year), and four GS–12s ($106,759 per 

staff per year). For estimating purposes, 

ORR assumes each position will be a 

Step 5 and include a factor 36.25% for 

overhead, per OMB.158 In total, ORR 

estimates the cost of establishing this 

office would be $1,718,529 per year 

[($176,458 + 150,016 + ($126,949 × 4) + 

($106,759 × 4) × 136.25%]. ORR 

welcomes comments on the proposed 

staffing and structure for the Office of 

the Ombuds. 

ORR also notes that all care provider 

facilities discussed in this proposed rule 

are ORR grantees and the costs of 

maintaining compliance with these 

requirements are allowable costs to 

grant awards under the Basic 

Considerations for cost provisions at 45 

CFR 75.403 through 75.405, in that the 

costs are reasonable, necessary, 

ordinary, treated consistently, and are 

allocable to the award. Additional costs 

associated with the policies discussed 

in this proposed rule that were not 

budgeted, and cannot be absorbed 

within existing budgets, would be 

allowable for the grant recipient to 

submit a request for supplemental funds 

to cover the costs. 

Table 1 shows the changes to ORR’s 

current operational status compared to 

the FSA. It contains a preliminary, highlevel overview of how the rule would 

change ORR’s current operations, for 

purposes of the economic analysis. The 

table does not provide a comprehensive 

description of all provisions and their 

basis and purpose. 

BILLING CODE 4184–45–P 


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Table 1-FSA AND ORR CURRENT OPERATIONAL STATUS 

FSA Description of FSA ORR cite ORR change from current practice 

paragraph .. prov1s1on (45 CFR) 

No. 

1, 2, 3 "Party, "plaintiff'' and NIA None. (Note: These definitions are only 

'' class member'' relevant to the FSA as it is a consent decree. 

definitions The proposed rule does not include them 

because following the promulgation of a final 

rule, these definitions would no longer be 

relevant.) 

4 "Minor" definition 410.1001 ORR uses the term ''unaccompanied 

child/children" (UC) that has the same 

meaning as the statutory term 

"unaccompanied alien child" (UAC) as 

defined under 6 U.S.C. 279(g)(2) pursuant to 

8 U.S.C. 1232(b)(l). 

5 ''Emancipated minor'' NIA "Emancipated minor" does not appear in the 

definition proposed rule; and is only relevant to other 

agencies. 

6 "Licensed program" 410.1001 FSA defines a "licensed program" as one 

definition licensed by an appropriate State agency. 

ORR proposes the term "standard program" 

to replace "licensed program." The proposed 

definition of "standard program" is broader in 

scope to account for circumstances wherein 

licensure is unavailable in the state to 

childcare facilities that provide residential, 

group, or home care services for UC. ORR 

notes that it also proposes to define "care 

provider facility" as a term to encompass 

virtually all placement types for UC, 

including standard programs and nonstandard programs. These proposals would 

not result in additional costs beyond current 

practice. 

7 '' Special needs minor" 410.1001, None. (Note: ORR proposes to use the term 

410.1103, "UC with special needs" in this rule to replace 

410.1106 the term "special needs minor" that is used in 

410.1302 the FSA. For the final rule, ORR is 

considering further updating the language by 

replacing "special needs" with 

"individualized needs," and to use the terms 

"intellectual or developmental disability" and 

"emotional disorder or disability" or "mental 

health disorder" to replace the FSA term 

"mental illness or retardation.") 
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FSA Description of FSA ORR cite ORR change from current practice 

paragraph provision (45 CFR) 

No. 

8 ''Medium security 410.1001 None. (Note: ORR proposes to use the term 

facility'' "heightened supervision facility" that 

incorporates language consistent with the 

term "medium secure facility" in the FSA.) 

9 Scope of Settlement NIA None. (Note: This provision imposes a series 

Agreement, of deadlines that passed years ago, and/ or do 

Effective Date, and not impose obligations on ORR that would 

Publication continue following termination of the FSA. 

As a result, the proposed rule does not include 

this provision.) 

10 Class Definition NIA None. (Note: This provision is specific to the 

litigation that culminated in the FSA and is 

not a relevant of substantive term of the FSA, 

so it is not included in the proposed rule.) 

11 Statements of General 410.1003, None. (Note: The proposed rule would only 

Applicability apply to the care of UC in ORR custody.) 

12(A) Procedures and 410.1103, None. (Note: ORR is not involved in the 

Temporary Placement 410.1800, apprehension of UC or their immediate 

Following Arrest 410.1801 detention following arrest. ORR is proposing 

to adopt standards of paragraph 12(A), as 

applicable, for its care provider facilities.) 

12(B); Defining ''emergency'' 410.1001 ORR is proposing to define "influx" 

12(C) and "influx" respective to the capacity at a facility over a 

given period of time, rather than a static 

number of UC eligible for placement because 

it more accurately reflects current 

circumstances. ORR is not proposing 

changes to the definition of"emergency." The 

proposals would not result in additional costs 

beyond current practice. 

ORR is proposing a new term, "emergency or 

influx facility" that means a facility opened in 

times of emergency or influx where such 

emergency or influx prevents the placement 

of minors in standard programs. ORR is 

proposing a single set of standards for an 

emergency or influx facility, which would 

apply to such a facility whether it was opened 

in response to an "emergency" or an "influx." 

This would not result in additional costs 

bevond current practice. 

13 Age determination 410.1700 None (Note: Sections 410.1700 through 

through 410 .1704 set forth the requirements for age 

410.1704 determinations in compliance with 8 U.S.C. 

1232(b )( 4) They would not result in 

additional costs beyond current practice.). 
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FSA Description of FSA ORR cite ORR change from current practice 

paragraph .. prov1s1on (45 CFR) 

No. 

14 Release from custody 410.120 l(a) None. 

where the INS 

determines that the 

detention of the minor is 

not required either to 

secure the minor's 

timely appearance 

before the INS or the 

immigration court, or to 

ensure the minor's 

safety or that of others. 

Release is to, in order of 

preference: parent, legal 

guardian, adult relative, 

adult or entity, licensed 

program, adult seeking 

custodv. 

15 Before release from 410.1202, None. (Note: unlike the former INS, ORR 

custody, Form 1-134 and 410.1203, does not issue Form 1-134. Rather, under 

agreement to certain 410.1204 current practice, ORR requires sponsors to 

terms must be executed. sign an affidavit consistent with the 

If emergency, then requirements described in FSA para. 15) 

minor can be transferred 

temporarily to custodian 

but must notify INS in 

72 hours. 

16 INS may terminate the NIA NIA. 

custody if terms are not 

met. 

17 Positive suitability 410.1202, None. 

assessment 410.1203, 

410.1204 

18 INS or licensed program 410.1203(a) None. 

must make and record 

the prompt and 

continuous efforts on its 

part toward family 

reunification efforts and 

release of minor 

consistent with FSA 

paragraph 14. 

19 INS custody in licensed 410.1004 None. 

facilities until release or 

until immigration 

proceedings are 

concluded. Temporary 
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FSA Description of FSA ORR cite ORR change from current practice 

paragraph .. prov1s1on (45 CFR) 

No. 

transfers in event of an 

emergencv 

20 INS must publish a NIA None. (Note: This provision imposes a 

''Program deadline that passed years ago. As a result, 

Announcement'' within the proposed rule does not include this 

60 Days of the FSA's provision). 

aooroval. 

21(A) Transfer to a suitable 410.1 l0S(a) None. (Note: Pursuant to 8 U.S.C. 

State or 1232(c)(2)(A), ORR can only place a UC in a 

county juvenile secure facility (which are state or county 

detention facility if a juvenile detention facilities) if they are a 

minor has been charged danger to self or others or has been charged 

or convicted of a crime with committing a criminal offense. 

with exceptions Therefore, ORR has removed the factors 

listed in FSA paragraph 21D-E as 

considerations for a placement in a secure 

facility ( escape-risk and to protect UC from 

smugglers, respectively). Additionally, ORR 

adds the requirements of the TVPRA to place 

a UC in the least restrictive setting 

appropriate). This does not result in 

additional costs beyond current practice. 

21(C) Transfer to a suitable 410.ll0S(a) ORR proposes to require that the conduct at 

State or issue be engaged in while in a "restrictive 

county juvenile placement" rather than a "licensed program" 

detention facility if a to ensure that unaccompanied children in such 

minor has engaged, circumstances are initially stepped up to a 

while in a licensed heightened supervision facility rather than 

program, in conduct that immediately placed in a secure facility. This has proven to be 

unacceptably disruptive does not result in additional costs beyond 

to the normal current practice. 

functioning of the 

licensed program and 

removal is necessary to 

ensure the welfare of the 

minor and others 

22 Escape risk definition 410.1001, ORR is proposing to update the term "escape 

410.1107 risk" to "runaway risk" which is a term used 

by state child welfare agencies and Federal 

agencies to describe children at risk from 

running away from home or their care setting. 

ORR also proposes to update the definition 

provided in the FSA which provides a nonexhaustive list of factors ORR may consider 
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FSA Description of FSA ORR cite ORR change from current practice 

paragraph .. prov1s10n (45 CFR) 

No. 

when determining whether an unaccompanied 

child is an escape risk. Rather than basing its 

determination of runaway risk solely on such 

factors, ORR proposes under this rule that 

such determinations must be made in view of 

a totality of the circumstances and should not 

be based solely on a past attempt to run away. 

(Note: ORR does not use escape or runaway 

risk as a factor for placing a UC in a secure 

facility, as explained above. UC who present 

a runaway risk may be placed in a heightened 

supervision facility). There would be no 

additional costs beyond current practice. 

22(B) Voluntary departure is a 410.1107(b) ORR is proposing to not consider previous 

factor to consider when voluntary departure as a risk factor when 

determining whether a determining runaway risk. 

minor is an escape-risk. 

23 Placement of minors in 410.1103, None. (Note: ORR adds that placement in the 

least restrictive setting 410.1104, least restrictive setting include the best 

available and 410.1105 interest standard which was not included into 

appropriate the FSA This does not result in additional 

costs beyond current practice.) 

24(A) Bond redetermination 410.1903 The proposed rule would establish a risk 

hearing afforded determination hearing process that provides 

the same substantive protections as 

immigration court bond hearings under the 

FSA, but through an independent and neutral 

adjudicator at HHS rather than the 

Department of Justice to determine whether a 

UC is a danger to others. Costs related to 

bond hearings are discussed in the Estimated 

Cost section of this NPRM. ORR does not 

consider runaway risk when making release 

decisions regarding UC in its care. 

24(B) Judicial review of NIA. None. (Note: The proposed rule does not 

placement in a particular expressly provide for judicial review of 

type of facility permitted placement/compliance, as a regulation cannot 

or that facility does not confer jurisdiction on Federal court.) 

comply with standards 

in Ex. 1 

24(C) Notice of reasons 410.190l(b ), None. (Note: The proposed rule would 

provided to 410.1306(c)(4) require that a written Notice of Placement 

minor not in a licensed (NOP) be provided to UC in a restrictive 

program/judicial review placement containing notice of their right to 
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FSA Description of FSA ORR cite ORR change from current practice 

paragraph .. prov1s1on (45 CFR) 

No. 

review before a Placement Review Panel. 

This would not result in additional costs 

beyond current practice.) 

24(D) All minors "not 410.1901, None. (Note: See above note. A list of free 

released" shall be given 410.1109(a) legal services is provided to all UC in ORR' s 

Form 1-770, notice of legal custody regardless of the type of facility 

right to judicial review, they are placed in. This would not result in 

and list of free legal additional costs beyond current practice.) 

services. 

24(E) Additional information NIA None. (Note: Responsibilities of the UC prior 

on precursors to seeking to bringing litigation are not relevant or 

judicial review substantive terms of the FSA, and are not 

included in the proposed rule.) 

25 Unaccompanied minors NIA NI A. (Note: ORR does not have adults in 

in INS custody should custody.) 

not be transported in 

vehicles with detained 

adults except when 

transport is from place 

of arrest/apprehension to 

an INS office, or when 

separate transportation 

would otherwise be 

impractical. 

26 Provide assistance in 410.1401(b) None. 

making transportation 

arrangement for release 

of minor to person or 

facility to whom 

released. 

27 Transfer between 410.1601 None. 

placements with 

possessions, notice to 

counsel 

28(A) INS Juvenile 410.1303, None. (Note: This provision is mainly 

Coordinator to monitor 410.1500, specific to other agencies. ORR would 

compliance with FSA 410.1501 monitor compliance to the proposed rule's 

and maintain records on provisions through its policies and procedures 

all minors placed in that implement the FSA.) proceedings and remain 

in custody for longer 

than 72 hours 

28(B) Plaintiffs' counsel may NIA Note: Special provisions for Plaintiffs' 

contact INS Juvenile counsel are not relevant or substantive terms 

Coordinator to request of the FSA, and are not included in the 

an investigation on why proposed rule. 
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FSA Description of FSA ORR cite ORR change from current practice 

paragraph provision (45 CFR) 

No. 

a minor has not been 

released. 

29 Plaintiffs' counsel must NIA Note: Special provisions for Plaintiffs' 

be provided information counsel are not relevant or substantive terms 

pursuant to FSA of the FSA, and are not included in the 

paragraph 28 on a semi- proposed rule. 

annual basis; Plaintiffs' 

counsel has the 

opportunity to submit 

questions. 

30 INS Juvenile NIA Note: Special provisions for Plaintiffs' 

Coordinator must report counsel are not relevant or substantive terms 

to the court annually of the FSA, and are not included in the 

proposed rule. 

31 Defendants can request NIA None. (Note: This provision imposed a 

a substantial compliance timeframe related to court supervision of the 

determination after one FSA and is therefore not relevant to and is not 

year of the FSA included in the proposed rule.) 

32(A), Attorney-client visits NIA Special provisions for Plaintiffs' counsel are 

(B), (C), with class members not relevant or substantive terms of the FSA, 

and (D) allowed for Plaintiffs' and are not included in the proposed rule. 

counsel at a facility 

33 Plaintiffs' counsel NIA Special provisions for Plaintiffs' counsel are 

allowed to request not relevant or substantive terms of the FSA 

access to, and visit and are not included in the proposed rule. 

licensed program 

facility or medium 

security facility or 

detention facility 

34 INS employees must be NIA None. (Note: This provision imposed a 

trained on FSA within deadline that passed years ago. As a result, 

120 days of court the proposed rule does not include this 

Approval. provision.) 

35 Dismissal of action after NIA None. (Note: Provisions specific to 

court has determined terminating the action are not relevant or 

substantial compliance substantive terms of the FSA, and are not 

included in the proposed rule.) 

36 Reservation of Rights NIA None. (Note: This provision is only relevant 

to the FSA insofar as the FSA exists in the 

form of a consent decree. Following 

promulgation of a final rule, it would no 

longer be relevant for ORR. As a result, the 

proposed rule does not include this provision.) 

37 Notice and Dispute NIA None. (Note: This provision provides for 

Resolution ongoing enforcement of the FSA bv the 
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FSA Description of FSA ORR cite ORR change from current practice 

paragraph .. prov1s1on (45 CFR) 

No. 

district court. As a result, the proposed rule 

does not include this provision.) 

38 Publicity-joint press NIA None. (Note: This provision relates to an 

conference event that occurred years ago. As a result, the 

proposed rule does not include this provision.) 

39 Attorneys' Fees and NIA None. (Note: This provision imposed a 

Costs deadline that passed years ago. As a result, 

the proposed rule does not include this 

provision.) 

40 Termination 45 days NIA None. (Note: Provisions specific to 

after publication of final terminating the FSA are not relevant or 

rule substantive terms, and are not included in the 

proposed rule.) 

41 Representations and NIA None. (Note: This provision is only relevant 

Warranty to the FSA insofar as the FSA exists in the 

form of a consent decree. The proposed rule 

does not include this provision because 

following the promulgation of a final rule, it 

would terminate the FSA as an agreement 

binding on ORR.) 

Exhibit 1 Minimum Standards for 410.1300 ORR proposes minimum standards and 

Licensed Programs through requirements for standard programs (see note 

410.1309 above regarding the definition of licensed 

program), and for non-standard programs 

where specified. ORR proposes standards 

above and beyond the terms of the FSA 

related to reporting, monitoring, and quality 

control provisions, behavior management, 

staff training, and care manager requirements, 

language access services, healthcare services, 

child advocates, and legal services. None of 

this would result in additional costs beyond 

current practice. 

Exhibit 2 Instructions to Service NIA None. (Note: ORR provides notice to its 

Officers re: Processing, Federal, contractor, and care provider facility 

Treatment, and staff of provisions for the processing, 

Placement of Minors treatment, and placement of UC in the ORR 

Policy Guide and Manual of Procedures. The 

provisions specified in Ex. 2 are incorporated 

into these documents.) 

Exhibit 3 Contingency Plan 410.1800, None. (Note: The proposed rule also includes 

410.1801 provisions for facilities used in times of influx 

or emergency. These provisions would not 

result in additional costs beyond current 

practice.) 
Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules 68975 

159See, e.g., Flores v. Sessions, 862 F.3d 863 (9th 

Cir. 2017); Flores v. Lynch, 828 F.3d 898 (9th Cir. 

2016); Flores v. Sessions, No. 2:85-cv-04544 (C.D. 

Cal. June 27, 2017). 

160 6 U.S.C. 279(a). 

161 6 U.S.C. 279(f)(1). 

162 8 U.S.C. 1232(b)(1) (referencing 6 U.S.C. 279). 

163 INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (2002); 

8 CFR 2.1 (2002). 

164See 6 U.S.C. 279(e) and (f). See also 6 U.S.C. 

552, 557; 8 U.S.C. 1232(b)(1). 

BILLING CODE 4184–45–C 

ORR seeks public comment on any 

additional costs associated with the 

proposals in this proposed rule which 

have not been otherwise addressed. 

3. Benefits 

The primary benefit of the proposed 

rule would be to ensure that applicable 

regulations reflect ORR’s custody and 

treatment of unaccompanied children in 

accordance with the relevant and 

substantive terms of the FSA, the HSA, 

and the TVPRA. Additionally, the 

proposed codification of minimum 

standards for licensed facilities and the 

release process, ensures a measure of 

consistency across the programs 

network of standard facilities. ORR also 

anticipates that many of the previously 

discussed costs will be partially offset 

by a reduction in legal costs and staff 

time associated with the FSA and 

associated motions to enforce that 

require significant usage of staff time— 

often at extremely short notice—and 

require ORR to pay attorneys’ fees. 

B. Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, as amended, 

requires Federal agencies to consider 

the potential impact of regulations on 

small entities during rulemaking. The 

term ‘‘small entities’’ comprises small 

business, not-for-profit organizations 

that are independently owned and 

operated and are not dominant in their 

fields, and governmental jurisdictions 

with populations of less than 50,000. 

Individuals are not considered by the 

RFA to be a small entity. 

The purpose of this action is to 

promulgate regulations that implement 

the relevant and substantive terms of the 

FSA and provisions of the HSA and 

TVPRA where they necessarily intersect 

with the FSA’s provisions. Publication 

of final regulations would result in 

termination of the FSA, as provided for 

in FSA paragraph 40. The FSA provides 

standards for the detention, treatment, 

and transfer of minors and 

unaccompanied children. Section 462 of 

the HSA and section 235 of the TVPRA 

prescribe substantive requirements and 

procedural safeguards to be 

implemented by ORR with respect to 

unaccompanied children. Additionally, 

court decisions have dictated how the 

FSA is to be implemented.159

Section 462 of the HSA also 

transferred to the ORR Director 

‘‘functions under the immigration laws 

of the United States with respect to the 

care of unaccompanied children that 

were vested by statute in, or performed 

by, the Commissioner of Immigration 

and Naturalization.’’ 160 The ORR 

Director may, for purposes of 

performing a function transferred by 

this section, ‘‘exercise all authorities 

under any other provision of law that 

were available with respect to the 

performance of that function to the 

official responsible for the performance 

of the function’’ immediately before the 

transfer of the program.161

Consistent with provisions in the 

HSA, the TVPRA places the 

responsibility for the care and custody 

of unaccompanied children with the 

Secretary of Health and Human 

Services.162 Prior to the enactment of 

the HSA, the Commissioner of 

Immigration and Naturalization, 

through a delegation from the Attorney 

General, had authority ‘‘to establish 

such regulations . . . as he deems 

necessary for carrying out his authority 

under the provisions of this Act.’’ 163 In 

accordance with the relevant savings 

and transfer provisions of the HSA,164

the ORR Director now possesses the 

authority to promulgate regulations 

concerning ORR’s administration of its 

responsibilities under the HSA and 

TVPRA. 

This proposed rule would directly 

regulate ORR. As of June 2018, ORR is 

funding non-profit and private 

organizations to provide shelter, 

counseling, medical care, legal services, 

and other support services to 

unaccompanied children in custody. 

Because the requirements being codified 

in this proposed rule are already 

enforced by ORR, ORR does not expect 

this proposed rule to impose any 

additional costs to any of their grantees 

or contractors related to the provision of 

these services. It is possible that some 

grantees or contractors may experience 

costs to remedy any unmet 

requirements, however ORR is unable to 

make any specific assumptions due to 

the unique nature of each grantee and 

contractor. Additional costs associated 

with remedial actions necessary to meet 

requirements promulgated in this 

proposed rule that were not budgeted, 

and cannot be absorbed within existing 

budgets, would be allowable for the 

grant recipient to submit a request for 

supplemental funds to cover the costs. 

The SBA size standard for NAICS 

561210 Facilities Support Services is 

$38.5 million. The SBA size standards 

for NAICS 561612 Security Guards and 

Patrol Services is $20.3 million. 

Currently, ORR funds 52 grantees to 

provide services to unaccompanied 

children. ORR finds that all 52 current 

grantees are non-profits that do not 


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FSA Description of FSA ORR cite ORR change from current practice 

paragraph .. prov1s1on (45 CFR) 

No. 

Exhibit 4 Agreement Concerning NIA Special provisions for Plaintiffs' counsel are 

Facility Visits Under not relevant or substantive terms of the FSA, 

Paragraph 33 and are not included in the proposed rule. 

Exhibit 5 List of Organizations to NIA Special provisions for Plaintiffs' counsel are 

Receive Information not relevant or substantive terms of the FSA 

and are not included in the proposed rule. 

Exhibit 6 Notice of Right to 410.1109(a) None. (Note: The proposed rule does not 

Judicial Review expressly provide for judicial review of 

placement/compliance, as a regulation cannot 

confer jurisdiction on Federal court.) 
68976 Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules 

appear to be dominant in their field. 

Consequently, ORR believes all 52 

grantees are likely to be small entities 

for the purposes of the RFA. The 

proposed changes to ORR regulations 

would not directly financially impact 

any small entities. ORR reiterates that 

additional costs associated with 

remedial actions necessary to meet 

requirements promulgated in this 

proposed rule that were not budgeted, 

and cannot be absorbed within existing 

budgets, would be allowable for the 

small entity grantee to submit a request 

for supplemental funds to cover the 

costs. 

ORR requests information and data 

from the public that would assist in 

better understanding the direct effects of 

this proposed rule on small entities. 

Members of the public should submit a 

comment, as described in this proposed 

rule under Public Participation, if they 

think that their business, organization, 

or governmental jurisdiction qualifies as 

a small entity and that this proposed 

rule would have a significant economic 

impact on it. It would be helpful if 

commenters provide as much 

information as possible as to why this 

proposed rule would create an impact 

on small businesses. 

ORR is unaware of any relevant 

Federal rule that may duplicate, 

overlap, or conflict with the proposed 

rule and is not aware of any alternatives 

to the proposed rule which accomplish 

the stated objectives that would 

minimize economic impact of the 

proposed rule on small entities. ORR 

requests comment and also seeks 

alternatives from the public that will 

accomplish the same objectives and 

minimize the proposed rule’s economic 

impact on small entities. 

Based on this analysis, the Secretary 

proposes to certify that the proposed 

rule, if finalized, will not have a 

significant economic impact on a 

substantial number of small entities. 

C. Unfunded Mandates Reform Act 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 requires 

that agencies assess anticipated costs 

and benefits before issuing any rule 

whose mandates require spending in 

any 1 year of $100 million in 1995 

dollars, updated annually for inflation. 

The current threshold after adjustment 

for inflation is $177 million, using the 

most current (2022) Implicit Price 

Deflator for the Gross Domestic Product. 

This proposed rule would not mandate 

any requirements that meet or exceed 

the threshold for state, local, or tribal 

governments, or the private sector. 

Though this rule would not result in 

such an expenditure, we do discuss the 

effects of this rule elsewhere in this 

preamble. Additionally, UMRA 

excludes from its definitions of ‘‘Federal 

intergovernmental mandate,’’ and 

‘‘Federal private sector mandate’’ those 

regulations imposing an enforceable 

duty on other levels of government or 

the private sector which are a 

‘‘condition of Federal assistance’’ 2 

U.S.C. 658(5)(A)(i)(I), (7)(A)(i). The FSA 

provides ORR with no direct authority 

to mandate binding standards on 

facilities of state and local governments 

or on operations of private sector 

entities. Instead, these requirements 

would impact such governments or 

entities only to the extent that they 

make voluntary decisions to contract 

with ORR. Compliance with any 

standards that are not already otherwise 

in place resulting from this rule would 

be a condition of ongoing Federal 

assistance through such arrangements. 

Therefore, this rulemaking contains 

neither a Federal intergovernmental 

mandate nor a private sector mandate. 

D. Paperwork Reduction Act 

All Departments are required to 

submit to OMB for review and approval, 

any reporting or recordkeeping 

requirements inherent in a rule under 

the Paperwork Reduction Act of 1995, 

Public Law 104–13, 109 Stat. 163 (1995) 

(codified at 44 U.S.C. 3501 et seq.). This 

proposed rule does not create or change 

a collection of information, therefore, is 

not subject to the Paperwork Reduction 

Act requirements. 

However, as required by the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3507(d)), ORR submitted a copy 

of this section to the Office of 

Management and Budget (OMB) for its 

review. This proposed rule complies 

with settlement agreements, court 

orders, and statutory requirements, most 

of whose terms have been in place for 

over 20 years. This proposed rule would 

not require additional information 

collection requirements beyond those 

requirements. The reporting 

requirements associated with those 

practices have been approved under the 

requirements of the Paperwork 

Reduction Act and in accordance with 

5 CFR part 1320. ORR received approval 

from OMB for use of its forms under 

OMB control number 0970–0278, with 

an expiration date of August 31, 2025. 

Separately, ORR received approval from 

OMB for its placement and service 

forms under OMB control number 

0970–0498, with an expiration date of 

August 31, 2023. A form associated with 

the specific consent process is currently 

pending approval with OMB (OMB 

Control Number 0970–0385). 

E. Executive Order 13132: Federalism 

This proposed rule would not have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. This proposed 

rule would implement ORR statutory 

responsibilities and the FSA by 

codifying ORR practices that comply 

with the terms of the FSA and relevant 

law for the care and custody of 

unaccompanied children. In proposing 

to codify these practices, ORR was 

mindful of its obligations to meet the 

requirements of Federal statutes and the 

FSA while also minimizing conflicts 

between State law and Federal interests. 

At the same time, ORR is also mindful 

that its fundamental obligations are to 

ensure that it implements its statutory 

responsibilities and the agreement that 

the Federal Government entered into 

through the FSA. 

Typically, ORR enters into 

cooperative agreements or contracts 

with non-profit and private 

organizations to provide shelter and 

care for unaccompanied children in a 

facility licensed by the appropriate state 

or local licensing authority if the state 

licensing agency provides for licensing 

of facilities that provide services to 

unaccompanied children. Where ORR 

enters into a cooperative agreement or 

contract with a facility, ORR requires 

that the organization administering the 

facility abide by all applicable State or 

local licensing regulations and laws. 

ORR designed agency policies and 

proposed regulations, as well as the 

terms of ORR cooperative agreements 

and contracts with the agency’s 

grantees/contractors, to complement 

applicable State and licensing rules, not 

to supplant or replace the requirements. 

Therefore, in accordance with section 

6 of Executive Order 13132, it is 

determined that this proposed rule does 

not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. 

Notwithstanding the determination 

that the formal consultation process 

described in Executive Order 13132 is 

not required for this rule, ORR 

welcomes any comments from 

representatives of State and local 

juvenile or family residential facilities— 

among other individuals and groups— 

during the course of this rulemaking. 

F. Executive Order 12988: Civil Justice 

Reform 

This proposed rule meets the 

applicable standards set forth in 


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sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

VIII. Assessment of Federal Regulation 

and Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 requires Federal agencies to 

determine whether a proposed policy or 

regulation may affect family well-being. 

If the agency’s determination is 

affirmative, then the agency must 

prepare an impact assessment 

addressing criteria specified in the law. 

This regulation will not have an impact 

on family well-being as defined in this 

legislation, which asks agencies to 

assess policies with respect to whether 

the policy: strengthens or erodes family 

stability and the authority and rights of 

parents in the education, nurture, and 

supervision of their children; helps the 

family perform its functions; and 

increases or decreases disposable 

income. 

IX. Alternatives Considered 

ORR considered several alternatives 

to the proposed regulations set forth in 

this proposed rule. First, ORR 

considered not promulgating this 

proposed rule in which it proposes to 

codify requirements that would protect 

unaccompanied children in ORR care. 

However, ORR decided not to pursue 

this alternative as it would likely 

require the Government to operate 

through non-regulatory means in an 

uncertain environment subject to 

currently unknown future court 

interpretations of the FSA that may be 

difficult or operationally impracticable 

to implement and that could otherwise 

hamper operations. Furthermore, ORR 

believes that this proposed rule is 

warranted at this time in order to codify 

a uniform set of standards and 

procedures open to public inspection 

and feedback that will help to ensure 

the safety and wellbeing of 

unaccompanied children in ORR care, 

implement the substantive terms of the 

FSA, and enhance public transparency 

as to the policies governing the 

operation of the UC Program. 

Once ORR decided to pursue 

proposing a framework of regulatory 

requirements through a proposed rule, it 

considered the scope of a proposed rule 

and whether to propose additional 

regulations addressing further areas of 

authority under the TVPRA, such as 

those related to asylum proceedings for 

unaccompanied children. ORR rejected 

this alternative in order to solely focus 

this proposed rule on proposing 

requirements that relate specifically to 

the care and placement of 

unaccompanied children in ORR 

custody, pursuant to 6 U.S.C. 279 and 

8 U.S.C. 1232, and that would 

implement the terms of the FSA. ORR 

notes that its decision to propose more 

targeted regulations in this proposed 

rule does not preclude ORR or other 

agencies from subsequently issuing 

regulations to address broader issues, 

including issues ORR has declined to 

address at this time that are the subject 

of pending litigation, as noted in this 

preamble. 

After considering these alternatives, 

ORR determined to draft the proposed 

standards to reflect and be consistent 

with current ORR practices and 

requirements, proposing enhanced 

standards, procedures, and oversight 

mechanisms to help ensure the safety 

and wellbeing of unaccompanied 

children in ORR care where appropriate, 

consistent with ORR’s statutory 

authorities and the FSA. In this way, it 

would be possible to propose standards 

and requirements that are uniform 

across care provider facilities and in a 

way that accords with the way the UC 

Program functions. Legacy INS’s 

successors are obligated under the FSA 

to initiate action to publish the relevant 

and substantive terms of the FSA as 

regulations. In the 2001 Stipulation, the 

parties agreed to a termination of the 

FSA ‘‘45 days following the defendants’ 

publication of final regulations 

implementing this Agreement.’’ In 2020, 

the U.S. Court of Appeals for the Ninth 

Circuit ruled that if the Government 

wishes to terminate those portions of 

the FSA covered by valid portions of 

HHS regulations, it may do so by 

proposing regulations. In this proposed 

rule, ORR is therefore proposing to 

codify terms of the FSA that prescribe 

ORR responsibilities for unaccompanied 

children in order to ensure that 

unaccompanied children continue to be 

treated in accordance with the FSA, the 

HSA, and the TVPRA. 

Robin Dunn Marcos, Director, Office 

of Refugee Resettlement approved this 

document on September 18, 2023. 

Jeff Hild, Acting Assistant Secretary of 

the Administration for Children and 

Families, approved this document on 

September 20, 2023. 

List of Subjects in 45 CFR Part 410 

Administrative practice and 

procedure, Aliens, Child welfare, 

Immigration, Reporting and 

recordkeeping requirements, 

Unaccompanied children. 

■ For the reasons set forth in the 

preamble, we propose to revise 45 CFR 

part 410 to read as follows: 

PART 410—CARE AND PLACEMENT 

OF UNACCOMPANIED CHILDREN 

Subpart A—Care and Placement of 

Unaccompanied Children 

Sec. 

410.1000 Scope of this part. 

410.1001 Definitions. 

410.1002 ORR care and placement of 

unaccompanied children. 

410.1003 General principles that apply to 

the care and placement of 

unaccompanied children. 

410.1004 ORR custody of unaccompanied 

children. 

Subpart B—Determining the Placement of 

an Unaccompanied Child at a Care Provider 

Facility 

410.1100 Purpose of this subpart. 

410.1101 Process for the placement of an 

unaccompanied child after referral from 

another Federal agency. 

410.1102 Care provider facility types. 

410.1103 Considerations generally 

applicable to the placement of an 

unaccompanied child. 

410.1104 Placement of an unaccompanied 

child in a standard program that is not 

restrictive. 

410.1105 Criteria for placing an 

unaccompanied child in a restrictive 

placement. 

410.1106 Unaccompanied children who 

need particular services and treatment. 

410.1107 Considerations when determining 

whether an unaccompanied child is a 

runaway risk for purposes of placement 

decisions. 

410.1108 Placement and services for 

children of unaccompanied children. 

410.1109 Required notice of legal rights. 

Subpart C—Releasing an Unaccompanied 

Child From ORR Custody 

410.1200 Purpose of this subpart. 

410.1201 Sponsors to whom ORR releases 

an unaccompanied child. 

410.1202 Sponsor suitability. 

410.1203 Release approval process. 

410.1204 Home studies. 

410.1205 Release decisions; denial of 

release to a sponsor. 

410.1206 Appeals of release denials. 

410.1207 Ninety (90)-day review of pending 

release applications. 

410.1208 ORR’s discretion to release an 

unaccompanied child to the 

Unaccompanied Refugee Minors 

Program. 

410.1209 Requesting specific consent from 

ORR regarding custody proceedings. 

410.1210 Post-release services. 

Subpart D—Minimum Standards and 

Required Services 

410.1300 Purpose of this subpart. 

410.1301 Applicability of this subpart. 

410.1302 Minimum standards applicable to 

standard programs. 

410.1303 Reporting, monitoring, quality 

control, and recordkeeping standards. 

410.1304 Behavior management and 

prohibition on seclusion and restraint. 

410.1305 Staff, training, and case manager 

requirements. 


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410.1306 Language access services. 

410.1307 Healthcare services. 

410.1308 Child advocates. 

410.1309 Legal services. 

410.1310 Psychotropic medications. 

410.1311 Unaccompanied children with 

disabilities. 

Subpart E—Transportation of an 

Unaccompanied Child 

410.1400 Purpose of this subpart. 

410.1401 Transportation of an 

unaccompanied child in ORR’s care. 

Subpart F—Data and Reporting 

Requirements 

410.1500 Purpose of this subpart. 

410.1501 Data on unaccompanied children. 

Subpart G—Transfers 

410.1600 Purpose of this subpart. 

410.1601 Transfer of an unaccompanied 

child within the ORR care provider 

facility network. 

Subpart H—Age Determinations 

410.1700 Purpose of this subpart. 

410.1701 Applicability. 

410.1702 Conducting age determinations. 

410.1703 Information used as evidence to 

conduct age determinations. 

410.1704 Treatment of an individual who 

appears to be an adult. 

Subpart I—Emergency and Influx 

Operations 

410.1800 Contingency planning and 

procedures during an emergency or 

influx. 

410.1801 Minimum standards for 

emergency or influx facilities. 

410.1802 Placement standards for 

emergency or influx facilities. 

Subpart J—Availability of Review of Certain 

ORR Decisions 

410.1900 Purpose of this subpart. 

410.1901 Restrictive placement case 

reviews. 

410.1902 Placement Review Panel. 

410.1903 Risk determination hearings. 

Subpart K—Unaccompanied Children Office 

of the Ombuds (UC Office of the Ombuds) 

410.2000 Establishment of the UC Office of 

the Ombuds. 

410.2001 UC Office of the Ombuds policies 

and procedures; contact information. 

410.2002 UC Office of the Ombuds scope 

and responsibilities. 

410.2003 Organization of the UC Office of 

the Ombuds. 

410.2004 Confidentiality. 

Authority: 6 U.S.C. 279, 8 U.S.C. 

1103(a)(3), 8 U.S.C. 1232. 

Subpart A—Care and Placement of 

Unaccompanied Children 

§ 410.1000 Scope of this part. 

(a) This part governs those aspects of 

the placement, care, and services 

provided to unaccompanied children in 

Federal custody by reason of their 

immigration status and referred to the 

Unaccompanied Children Program (UC 

Program) as authorized by section 462 of 

the Homeland Security Act of 2002, 

Public Law 107–296, 6 U.S.C. 279, and 

section 235 of the William Wilberforce 

Trafficking Victims Protection 

Reauthorization Act of 2008 (TVPRA), 

Public Law 110–457, 8 U.S.C. 1232. 

This part includes provisions 

implementing the settlement agreement 

reached in Jenny Lisette Flores v. Janet 

Reno, Attorney General of the United 

States, Case No. CV 85–4544–RJK (C.D. 

Cal. 1996). 

(b) The provisions of this part are 

separate and severable from one 

another. If any provision is stayed or 

determined to be invalid, the remaining 

provisions shall continue in effect. 

(c) ORR does not fund or operate 

facilities other than standard programs, 

restrictive placements (which includes 

secure facilities, including residential 

treatment centers, and heightened 

supervision facilities), or emergency or 

influx facilities, absent a specific waiver 

as described under § 410.1801(d) or 

such additional waivers as are permitted 

by law. 

§ 410.1001 Definitions. 

For the purposes of this part, the 

following definitions apply. 

ACF means the Administration for 

Children and Families, Department of 

Health and Human Services. 

Attorney of record means an attorney 

who represents an unaccompanied child 

in legal proceedings or matters and 

protects them from mistreatment, 

exploitation, and trafficking, consistent 

with 8 U.S.C. 1232(c)(5), subject to the 

consent of the unaccompanied child. In 

order to be recognized as an 

unaccompanied child’s attorney of 

record by the Office of Refugee 

Resettlement (ORR), for matters within 

ORR’s authority, the individual must 

provide proof of representation of the 

child to ORR. ORR notes that that 

attorneys of record may engage with 

ORR in the course of this representation 

in order to obtain custody-related 

document and to engage in other 

communications necessary to facilitate 

the representation. 

Best interest is a standard ORR 

applies in determining the types of 

decisions and actions it makes in 

relation to the care of an 

unaccompanied child. When evaluating 

what is in a child’s best interests, ORR 

considers, as appropriate, the following 

inexhaustive list of factors: the 

unaccompanied child’s expressed 

interests, in accordance with the 

unaccompanied child’s age and 

maturity; the unaccompanied child’s 

mental and physical health; the wishes 

of the unaccompanied child’s parents or 

legal guardians; the intimacy of 

relationship(s) between the 

unaccompanied child and the child’s 

family, including the interactions and 

interrelationship of the unaccompanied 

child with the child’s parents, siblings, 

and any other person who may 

significantly affect the unaccompanied 

child’s well-being; the unaccompanied 

child’s adjustment to the community; 

the unaccompanied child’s cultural 

background and primary language; 

length or lack of time the 

unaccompanied child has lived in a 

stable environment; individualized 

needs, including any needs related to 

the unaccompanied child’s disability; 

and the unaccompanied child’s 

development and identity. 

Care provider facility means any 

physical site that houses 

unaccompanied children in ORR 

custody, operated by an ORR-funded 

program that provides residential 

services for children, including but not 

limited to a program of shelters, group 

homes, individual family homes, 

residential treatment centers, secure or 

heightened supervision facilities, and 

emergency or influx facilities. Out of 

network (OON) facilities are not 

included within this definition. 

Case file means the physical and 

electronic records for each 

unaccompanied child that are pertinent 

to the care and placement of the child. 

Case file materials include biographical 

information on each unaccompanied 

child; birth and marriage certificates; 

various ORR forms and supporting 

documents (and attachments, e.g., 

photographs); incident reports; medical 

and dental records; mental health 

evaluations; case notes and records, 

including educational records clinical 

notes and records; immigration forms 

and notifications; legal papers; home 

studies and/or post-release service 

records on a sponsor of an 

unaccompanied child; family 

reunification information including the 

sponsor’s individual and financial data; 

case disposition; correspondence; and 

Social Security number (SSN); juvenile/ 

criminal history records; and other 

relevant records. The records of 

unaccompanied children are the 

property of ORR, whether in the 

possession of ORR or a grantee or 

contractor, and grantees and contractors 

may not release these records without 

prior approval from ORR. 

Case manager means the individual 

that coordinates, in whole or in part, 

assessments of unaccompanied 

children, individual service plans, and 

efforts to release unaccompanied 

children from ORR custody. Case 

managers also ensure services for 


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unaccompanied children are 

documented within the case files for 

each unaccompanied child. 

Chemical restraints include, but are 

not limited to, drugs administered to 

children to chemically restrain them, 

and external chemicals such as pepper 

spray or other forms of inflammatory 

and/or aerosol agents. 

Child advocates means third parties, 

appointed by ORR consistent with its 

authority under TVPRA at 8 U.S.C. 

1232(c)(6), who make independent 

recommendations regarding the best 

interests of an unaccompanied child. 

Clear and convincing evidence means 

a standard of evidence requiring that a 

factfinder be convinced that a 

contention is highly probable—i.e., 

substantially more likely to be true than 

untrue. 

Corrective action means steps taken to 

correct any care provider facility 

noncompliance identified by ORR. 

DHS means the U.S. Department of 

Homeland Security. 

Director means the Director of the 

Office of Refugee Resettlement (ORR), 

Administration for Children and 

Families, Department of Health and 

Human Services. 

Disability means, with respect to an 

individual, the definition provided by 

section 3 of the Americans with 

Disabilities Act of 1990, 42 U.S.C. 

12102, which is adopted by reference in 

section 504 of the Rehabilitation Act of 

1973, 29 U.S.C. 794(a), and its 

implementing regulations, 45 CFR 84.3 

(programs receiving Department of 

Health and Human Services (HHS) 

financial assistance) and 85.3 (programs 

conducted by HHS), as well as in the 

TVPRA at 8 U.S.C. 1232(c)(3)(B). 

Discharge means an unaccompanied 

child that exits ORR custody, or the act 

of an unaccompanied child exiting ORR 

custody. 

Emergency means an act or event 

(including, but not limited to, a natural 

disaster, facility fire, civil disturbance, 

or medical or public health concerns at 

one or more facilities) that prevents 

timely transport or placement of 

unaccompanied children, or impacts 

other conditions provided by this part. 

Emergency incidents means urgent 

situations in which there is an 

immediate and severe threat to a child’s 

safety and well-being that requires 

immediate action, and also includes 

unauthorized absences of 

unaccompanied children from a care 

provider facility. Emergency incidents 

include, but are not limited to: 

(1) Abuse or neglect in ORR care 

where there is an immediate and severe 

threat to the child’s safety and wellbeing, such as physical assault resulting 

in serious injury, sexual abuse, or 

suicide attempt; 

(2) Death of an unaccompanied child 

in ORR custody, including out-ofnetwork facilities; 

(3) Medical emergencies; 

(4) Mental health emergencies 

requiring hospitalization; and 

(5) Unauthorized absences of 

unaccompanied children in ORR 

custody. 

Emergency or influx facility means a 

type of care provider facility that opens 

temporarily to provide shelter and 

services for unaccompanied children 

during an influx or emergency. These 

facilities are not otherwise categorized 

as a standard or secure facility in this 

part. Because of the emergency nature of 

emergency or influx facilities, they may 

not be licensed or may be exempted 

from licensing requirements by State 

and/or local licensing agencies. 

Emergency or influx facilities may also 

be operated on federally-owned or 

leased properties, in which case, the 

facility may not be subject to State or 

local licensing standards. 

Emergency safety situation means a 

situation in which a child presents a 

risk of imminent physical harm to 

themselves, or others, as demonstrated 

by overt acts or expressed threats. 

Executive Office for Immigration 

Review accredited representative, or 

EOIR accredited representative, means a 

representative of a qualified nonprofit 

religious, charitable, social service, or 

other similar organization established in 

the United States and recognized by the 

Department of Justice in accordance 

with 8 CFR part 1292. An EOIR 

accredited representative who is 

representing a child in ORR custody 

may file a notice of such representation 

in order to receive updates on the 

unaccompanied child. 

Family planning services include, but 

are not limited to, Food and Drug 

Administration (FDA)-approved 

contraceptive products (including 

emergency contraception), pregnancy 

testing and counseling, sexually 

transmitted infection (STI) services, and 

referrals to appropriate specialists. ORR 

notes that the term ‘‘family planning 

services’’ does not include abortions. 

Instead, abortion is included in the 

definition of medical services requiring 

heightened ORR involvement, and is 

further discussed in § 410.1307. 

Family Reunification Packet means an 

application and supporting 

documentation which must be 

completed by a potential sponsor who 

wishes to have an unaccompanied child 

released from ORR to their care. ORR 

uses the application and supporting 

documentation, as well as other 

procedures, to determine the sponsor’s 

ability to provide for the 

unaccompanied child’s physical and 

mental well-being. 

Heightened supervision facility means 

a facility that is operated by a program, 

agency or organization licensed by an 

appropriate State agency and that meets 

the standards for standard programs set 

forth in § 410.1302, and that is designed 

for an unaccompanied child who 

requires close supervision but does not 

need placement in a secure facility, 

including a residential treatment center 

(RTC). It provides 24-hour supervision, 

custody, care, and treatment. It 

maintains stricter security measures 

than a shelter, such as intensive staff 

supervision, in order to provide 

supports, manage problem behavior, 

and prevent children from running 

away. A heightened supervision facility 

may have a secure perimeter but shall 

not be equipped internally with major 

restraining construction or procedures 

typically associated with juvenile 

detention centers or correctional 

facilities. 

HHS means the U.S. Department of 

Health and Human Services. 

Home study means an in-depth 

investigation of the potential sponsor’s 

ability to ensure the child’s safety and 

well-being, initiated by ORR as part of 

the sponsor suitability assessment. A 

home study includes an investigation of 

the living conditions in which the 

unaccompanied child would be placed 

if released to a particular potential 

sponsor, the standard of care that the 

unaccompanied child would receive, 

and interviews with the proposed 

sponsor and other household members. 

A home study is conducted for any case 

where it is required by the TVPRA, this 

part, and for other cases at ORR’s 

discretion, including for those in which 

the safety and well-being of the 

unaccompanied child is in question. 

Influx means, for purposes of this 

part, a situation in which the net bed 

capacity of ORR’s standard programs 

that is occupied or held for placement 

by unaccompanied children meets or 

exceeds 85 percent for a period of seven 

consecutive days. 

Legal guardian means an individual 

who has been lawfully vested with the 

power, and charged with the duty of 

caring for, including managing the 

property, rights, and affairs of, a child 

or incapacitated adult by a court of 

competent jurisdiction, whether foreign 

or domestic. 

Legal service provider means an 

organization or individual attorney who 

provides legal services to 

unaccompanied children, either on a 

pro bono basis or through ORR funding 


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for unaccompanied children’s legal 

services. Legal service providers provide 

Know Your Rights presentations and 

screenings for legal relief to 

unaccompanied children, and/or direct 

legal representation to unaccompanied 

children. 

LGBTQI+ means lesbian, gay, 

bisexual, transgender, queer or 

questioning, and intersex. 

Mechanical restraint means any 

device attached or adjacent to the 

child’s body that the child cannot easily 

remove that restricts freedom of 

movement or normal access to the 

child’s body. 

Medical services requiring heightened 

ORR involvement means: 

(1) Significant surgical or medical 

procedures; 

(2) Abortions; and 

(3) Medical services necessary to 

address threats to the life of or serious 

jeopardy to the health of an 

unaccompanied child. 

Notification of Concern (NOC) means 

an instrument used by home study and 

post-release services providers, ORR 

care providers, and the ORR National 

Call Center staff to document and notify 

ORR of certain concerns that arise after 

a child is released from ORR care and 

custody. 

Notice of Placement (NOP) means a 

written notice provided to 

unaccompanied children placed in 

restrictive placements, explaining the 

reasons for placement in the restrictive 

placement and kept as part of the child’s 

case file. The care provider facility 

where the unaccompanied child is 

placed must provide the NOP to the 

child within 48 hours after an 

unaccompanied child’s arrival at a 

restrictive placement, as well as at 

minimum every 30 days the child 

remains in a restrictive placement. 

ORR means the Office of Refugee 

Resettlement, Administration for 

Children and Families, U.S. Department 

of Health and Human Services. 

ORR long-term home care means an 

ORR-funded family or group home 

placement in a community-based 

setting. An unaccompanied child may 

be placed in long-term home care if ORR 

is unable to identify an appropriate 

sponsor with whom to place the 

unaccompanied child during the 

pendency of their legal proceedings. 

‘‘Long-term home care’’ has the same 

meaning as ‘‘long-term foster care,’’ as 

that term is used in the definition of 

traditional foster care provided at 45 

CFR 411.5. 

ORR transitional home care means an 

ORR-funded short-term placement in a 

family or group home. ‘‘Transitional 

home care’’ has the same meaning as 

‘‘transitional foster care,’’ as that term is 

used in the definition of traditional 

foster care provided at 45 CFR 411.5. 

Out of network placement (OON) 

means a facility that provides physical 

care and services for individual 

unaccompanied children as requested 

by ORR on a case-by-case basis, that 

operates under a single case agreement 

for care of a specific child between ORR 

and the OON provider. OON may 

include hospitals, restrictive settings, or 

other settings outside of the ORR 

network of care. 

Peer restraints mean asking or 

permitting other children to physically 

restrain another child. 

Personal restraint means the 

application of physical force without 

the use of any device, for the purpose 

of restraining the free movement of a 

child’s body. This does not include 

briefly holding a child without undue 

force in order to calm or comfort them. 

Placement means delivering the 

unaccompanied child to the physical 

custody and care of either a care 

provider facility or an alternative to 

such a facility. An unaccompanied child 

who is placed pursuant to this part is in 

the legal custody of ORR and may only 

be transferred or released by ORR. An 

unaccompanied child remains in the 

custody of a referring agency until the 

child is physically transferred to a care 

provider facility or an alternative to 

such a facility. 

Placement Review Panel means a 

three-member panel consisting of ORR’s 

senior-level career staff with requisite 

experience in child welfare that is 

convened for the purposes of reviewing 

requests for reconsideration of 

restrictive placements. An ORR staff 

member who was involved with the 

decision to step up an unaccompanied 

child to a restrictive placement may not 

serve as a Placement Review Panel 

member with respect to that 

unaccompanied child’s placement. 

Post-release services (PRS) mean 

follow-up services as that term is used 

in the William Wilberforce Trafficking 

Victims Protection Reauthorization Act 

at 8 U.S.C. 1232(c)(3)(B). PRS are ORRapproved services which may, and 

when required by statute must, be 

provided to an unaccompanied child 

and the child’s sponsor, subject to 

available resources as determined by 

ORR, after the child’s release from ORR 

custody. Assistance may include linking 

families to educational and community 

resources, home visits, case 

management, in-home counseling, and 

other social welfare services, as needed. 

When follow-up services are required by 

statute, the nature and extent of those 

services would be subject to available 

resources. 

Program-level events mean situations 

that affect the entire care provider 

facility and/or unaccompanied children 

and its staff within and require 

immediate action and include, but are 

not limited to: 

(1) Death of a staff member, other 

adult, or a child who is not an 

unaccompanied child but is in the care 

provider facility’s care under non-ORR 

funding; 

(2) Major disturbances such as a 

shooting, attack, riot, protest, or similar 

occurrence; 

(3) Natural disasters such as an 

earthquake, flood, tornado, wildfire, 

hurricane, or similar occurrence; 

(4) Any event that affects normal 

operations for the care provider facility 

such as, for instance, a long-term power 

outage, gas leaks, inoperable fire alarm 

system, infectious disease outbreak, or 

similar occurrence. 

Prone physical restraint means a 

restraint restricting a child’s breathing, 

restricting a child’s joints or 

hyperextending a child’s joints, or 

requiring a child to take an 

uncomfortable position. 

PRS provider means an organization 

funded by ORR to connect the sponsor 

and unaccompanied child to 

community resources for the child and 

for other child welfare services, as 

needed, following the release of the 

unaccompanied child from ORR 

custody. 

Psychotropic medication(s) means 

medication(s) that are prescribed for the 

treatment of symptoms of psychosis or 

another mental, emotional, or 

behavioral disorder and that are used to 

exercise an effect on the central nervous 

system to influence and modify 

behavior, cognition, or affective state. 

The term includes the following 

categories: 

(1) Psychomotor stimulants; 

(2) Antidepressants; 

(3) Antipsychotics or neuroleptics; 

(4) Agents for control of mania or 

depression; 

(5) Antianxiety agents; and 

(6) Sedatives, hypnotics, or other 

sleep-promoting medications. 

Qualified interpreter means: 

(1) For an individual with a disability, 

an interpreter who, via a video remote 

interpreting service (VRI) or an on-site 

appearance, is able to interpret 

effectively, accurately, and impartially, 

both receptively and expressively, using 

any necessary specialized vocabulary. 

Qualified interpreters include, for 

example, sign language interpreters, oral 

transliterators, and cued-language 

transliterators. 


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(2) For a limited English proficient 

individual, an interpreter who via a 

remote interpreting service or an on-site 

appearance: 

(i) Has demonstrated proficiency in 

speaking and understanding both 

spoken English and at least one other 

spoken language; 

(ii) Is able to interpret effectively, 

accurately, and impartially to and from 

such language(s) and English, using any 

necessary specialized vocabulary or 

terms without changes, omissions, or 

additions and while preserving the tone, 

sentiment, and emotional level of the 

original oral statement; and 

(iii) Adheres to generally accepted 

interpreter ethics principles, including 

client confidentiality. 

Qualified translator means a 

translator who: 

(1) Has demonstrated proficiency in 

writing and understanding both written 

English and at least one other written 

non-English language; 

(2) Is able to translate effectively, 

accurately, and impartially to and from 

such language(s) and English, using any 

necessary specialized vocabulary or 

terms without changes, omissions, or 

additions and while preserving the tone, 

sentiment, and emotional level of the 

original written statement; and 

(3) Adheres to generally accepted 

translator ethics principles, including 

client confidentiality. 

Release means discharge of an 

unaccompanied child to an ORR-vetted 

and approved sponsor. After release, 

ORR does not have legal custody of the 

unaccompanied child, and the sponsor 

becomes responsible for providing for 

the unaccompanied child’s physical and 

mental well-being. 

Residential treatment center (RTC) 

means a sub-acute, time limited, 

interdisciplinary, psycho-educational, 

and therapeutic 24-hour-a-day 

structured program with community 

linkages, provided through noncoercive, coordinated, individualized 

care, specialized services, and 

interventions. RTCs provide highly 

customized care and services to 

individuals following either a 

community-based placement or more 

intensive intervention, with the aim of 

moving individuals toward a stable, less 

intensive level of care or independence. 

RTCs are a type of secure facility and 

are not a standard program under this 

part. 

Restrictive placement means a secure 

facility, including RTCs, or a heightened 

supervision facility. 

Runaway risk means it is highly 

probable or reasonably certain that an 

unaccompanied child will attempt to 

abscond from ORR care. Such 

determinations must be made in view of 

a totality of the circumstances and 

should not be based solely on a past 

attempt to run away. 

Seclusion means the involuntary 

confinement of a child alone in a room 

or area from which the child is 

physically prevented from leaving. 

Secure facility means a State or 

county juvenile detention facility or a 

secure ORR detention facility, or a 

facility with an ORR contract or 

cooperative agreement having separate 

accommodations for minors, in a 

physically secure structure with staff 

able to control violent behavior. ORR 

uses a secure facility as the most 

restrictive placement option for an 

unaccompanied child who poses a 

danger to self or others or has been 

charged with having committed a 

criminal offense. A secure facility does 

not need to meet the requirements of 

§ 410.1302 and is not defined as a 

standard program or shelter under this 

part. 

Shelter means a kind of standard 

program in which all of the 

programmatic components are 

administered on-site, consistent with 

the standards set forth in § 410.1302. 

Significant incidents mean nonemergency situations that may 

immediately affect the safety and wellbeing of a child. Significant incidents 

include, but are not limited to: 

(1) Abuse or neglect in ORR care; 

(2) Sexual harassment or 

inappropriate sexual behavior; 

(3) Staff Code of Conduct violations; 

(4) Contact or threats to an 

unaccompanied child while in ORR care 

from trafficking or smuggling 

syndicates, organized crime, or other 

criminal actors; 

(5) Incidents involving law 

enforcement on site; 

(6) Potential fraud schemes 

perpetrated by outside actors on 

unaccompanied children’s sponsors; 

(7) Pregnancy; 

(8) Separation from a parent or legal 

guardian upon apprehension by a 

Federal agency; 

(9) Mental health concerns; and 

(10) Use of safety measures, such as 

restraints. 

Special needs unaccompanied child 

means an unaccompanied child whose 

mental and/or physical condition 

requires special services and treatment 

by staff. An unaccompanied child may 

have special needs due to alcohol or 

substance use, serious emotional 

disturbance, mental illness, intellectual 

or developmental disability, or a 

physical condition or chronic illness 

that requires special services or 

treatment. An unaccompanied child 

who has suffered serious neglect or 

abuse may be considered a special 

needs minor if the child requires special 

services or treatment as a result of 

neglect or abuse. 

Sponsor means an individual (or 

entity) to whom ORR releases an 

unaccompanied child out of ORR 

custody, in accordance with ORR’s 

sponsor suitability assessment process 

and release procedures. 

Staff Code of Conduct means the set 

of personnel requirements established 

by ORR in order to promote a safe 

environment for unaccompanied 

children in its care, including protecting 

unaccompanied children from sexual 

abuse and sexual harassment. 

Standard program means any 

program, agency, or organization that is 

licensed by an appropriate State agency, 

or that meets other requirements 

specified by ORR if licensure is 

unavailable in the State to programs 

providing services to unaccompanied 

children, to provide residential, group, 

or transitional or long-term home care 

services for dependent children, 

including a program operating family or 

group homes, or facilities for special 

needs unaccompanied children. A 

standard program must meet the 

standards set forth in § 410.1302. All 

homes and facilities operated by a 

standard program, including facilities 

for special needs unaccompanied 

children, shall be non-secure. However, 

a facility for special needs 

unaccompanied children may maintain 

that level of security permitted under 

State law, or under the requirements 

specified by ORR if licensure is 

unavailable in the State, which is 

necessary for the protection of an 

unaccompanied child or others in 

appropriate circumstances. 

Tender age means twelve years of age 

or younger. 

Transfer means the movement of an 

unaccompanied child from one ORR 

care provider facility to another ORR 

care provider facility, such that the 

receiving care provider facility takes 

over physical custody of the child. ORR 

sometimes uses the terms ‘‘step up’’ and 

‘‘step down’’ to describe transfers of 

unaccompanied children to or from 

restrictive placements. For example, if 

ORR transfers an unaccompanied child 

from a shelter facility to a heightened 

supervision facility, that transfer would 

be a ‘‘step up,’’ and a transfer from a 

heightened supervision facility to a 

shelter facility would be a ‘‘step down.’’ 

But a transfer from a shelter to a 

community-based care facility, or vice 

versa, would be neither a step up nor a 

step down, because both placement 

types are not considered restrictive. 


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Trauma bond means when a trafficker 

uses rewards and punishments within 

cycles of abuse to foster a powerful 

emotional connection with the victim. 

Trauma-informed means a system, 

standard, process, or practice that 

realizes the widespread impact of 

trauma and understands potential paths 

for recovery; recognizes the signs and 

symptoms of trauma in unaccompanied 

children, families, staff, and others 

involved with the system; and responds 

by fully integrating knowledge about 

trauma into policies, procedures, and 

practices, and seeks to actively resist retraumatization. 

Unaccompanied child/children 

means a child who: 

(1) Has no lawful immigration status 

in the United States; 

(2) Has not attained 18 years of age; 

and 

(3) With respect to whom: 

(i) There is no parent or legal guardian 

in the United States; or 

(ii) No parent or legal guardian in the 

United States is available to provide 

care and physical custody. 

Unaccompanied Refugee Minors 

(URM) Program means the child welfare 

services program available pursuant to 8 

U.S.C. 1522(d). 

§ 410.1002 ORR care and placement of 

unaccompanied children. 

ORR coordinates and implements the 

care and placement of unaccompanied 

children who are in ORR custody by 

reason of their immigration status. 

§ 410.1003 General principles that apply to 

the care and placement of unaccompanied 

children. 

(a) Within all placements, 

unaccompanied children shall be 

treated with dignity, respect, and 

special concern for their particular 

vulnerability. 

(b) ORR shall hold unaccompanied 

children in facilities that are safe and 

sanitary and that are consistent with 

ORR’s concern for the particular 

vulnerability of unaccompanied 

children. 

(c) ORR plans and provides care and 

services based on the individual needs 

of and focusing on the strengths of the 

unaccompanied child. 

(d) ORR encourages unaccompanied 

children, as developmentally 

appropriate and in their best interests, 

to be active participants in ORR’s 

decision-making process relating to 

their care and placement. 

(e) ORR strives to provide quality care 

tailored to the individualized needs of 

each unaccompanied child in its 

custody, ensuring the interests of the 

child are considered, and that 

unaccompanied children are protected 

from traffickers and other persons 

seeking to victimize or otherwise engage 

them in criminal, harmful, or 

exploitative activity, both while in ORR 

custody and upon release from the UC 

Program. 

(f) In making placement 

determinations, ORR places each 

unaccompanied child in the least 

restrictive setting that is in the best 

interests of the child, giving 

consideration to the child’s danger to 

self, danger to others, and runaway risk. 

(g) When requesting information or 

consent from unaccompanied children 

ORR consults with parents, legal 

guardians, child advocates, and 

attorneys of record or EOIR accredited 

representatives as needed. 

§ 410.1004 ORR custody of 

unaccompanied children. 

All unaccompanied children placed 

by ORR in care provider facilities 

remain in the legal custody of ORR and 

may be transferred or released only with 

ORR approval; provided, however, that 

in the event of an emergency, a care 

provider facility may transfer temporary 

physical custody of an unaccompanied 

child prior to securing approval from 

ORR but shall notify ORR of the transfer 

as soon as is practicable thereafter, and 

in all cases within 8 hours. 

Subpart B—Determining the Placement 

of an Unaccompanied Child at a Care 

Provider Facility 

§ 410.1100 Purpose of this subpart. 

This subpart sets forth the process by 

which ORR receives referrals of 

unaccompanied children from other 

Federal agencies and the factors ORR 

considers when placing an 

unaccompanied child in a particular 

care provider facility. As used in this 

subpart, ‘‘placement determinations’’ or 

‘‘placements’’ refers to placements in 

ORR-approved care provider facilities 

during the time an unaccompanied 

child is in ORR care, and not to the 

location of an unaccompanied child 

once the unaccompanied child is 

released in accordance with subpart C of 

this part. 

§ 410.1101 Process for placement of an 

unaccompanied child after referral from 

another Federal agency. 

(a) ORR accepts referrals of 

unaccompanied children, from any 

department or agency of the Federal 

Government at any time of day, every 

day of the year. 

(b) Upon notification from any 

department or agency of the Federal 

Government that a child is an 

unaccompanied child and therefore 

must be transferred to ORR custody, 

ORR identifies an appropriate 

placement for the unaccompanied child 

and notifies the referring Federal agency 

within 24 hours of receiving the 

referring agency’s notification whenever 

possible, and no later than within 48 

hours of receiving notification, barring 

exceptional circumstances. 

(c) ORR works with the referring 

Federal Government department or 

agency to accept transfer of custody of 

the unaccompanied child, consistent 

with the statutory requirements at 8 

U.S.C. 1232(b)(3). 

(d) For purposes of paragraphs (b) and 

(c) of this section, ORR may be unable 

to timely identify a placement for and 

accept transfer of custody of an 

unaccompanied child due to 

exceptional circumstances, including: 

(1) Any court decree or courtapproved settlement that requires 

otherwise; 

(2) An influx, as defined at 

§ 410.1001; 

(3) An emergency, including a natural 

disaster, such as an earthquake or 

hurricane, and other events, such as 

facility fires or civil disturbances; 

(4) A medical emergency, such as a 

viral epidemic or pandemic among a 

group of unaccompanied children; 

(5) The apprehension of an 

unaccompanied child in a remote 

location; 

(6) The apprehension of an 

unaccompanied child whom the 

referring Federal agency indicates: 

(i) Poses a danger to self or others; or 

(ii) Has been charged with or has been 

convicted of a crime, or is the subject of 

delinquency proceedings, delinquency 

charge, or has been adjudicated 

delinquent, and additional information 

is essential in order to determine an 

appropriate ORR placement; or 

(7) An act or event that could not be 

reasonably foreseen that prevents the 

placement of or accepting transfer of 

custody of an unaccompanied child 

within the timeframes in paragraph (b) 

or (c) of this section. 

(e) ORR takes legal custody of an 

unaccompanied child begins when it 

assumes physical custody from the 

referring agency. 

§ 410.1102 Care provider facility types. 

ORR may place unaccompanied 

children in care provider facilities as 

defined at § 410.1001, including but not 

limited to shelters, group homes, 

individual family homes, heightened 

supervision facilities, or secure 

facilities, including RTCs. ORR may 

place unaccompanied children in outof-network (OON) placements under 

certain, limited circumstances. In times 


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of influx or emergency, as further 

discussed in subpart I of this part, ORR 

may place unaccompanied children in 

facilities that may not meet the 

standards of a standard program, but 

rather meet the standards in subpart I. 

§ 410.1103 Considerations generally 

applicable to the placement of an 

unaccompanied child. 

(a) ORR shall place each 

unaccompanied child in the least 

restrictive setting that is in the best 

interest of the child and appropriate to 

the unaccompanied child’s age and 

individualized needs, provided that 

such setting is consistent with the 

interest in ensuring the unaccompanied 

child’s timely appearance before DHS 

and the immigration courts and in 

protecting the unaccompanied child’s 

well-being and that of others. 

(b) ORR considers the following 

factors that may be relevant to the 

unaccompanied child’s placement, 

including: 

(1) Danger to self; 

(2) Danger to the community/others; 

(3) Runaway risk; 

(4) Trafficking in persons or other 

safety concerns; 

(5) Age; 

(6) Gender; 

(7) LGBTQI+ status; 

(8) Disability; 

(9) Any specialized services or 

treatment required or requested by the 

unaccompanied child; 

(10) Criminal background; 

(11) Location of potential sponsor and 

safe and timely release options; 

(12) Behavior; 

(13) Siblings in ORR custody; 

(14) Language access; 

(15) Whether the unaccompanied 

child is pregnant or parenting; 

(16) Location of the unaccompanied 

child’s apprehension; and 

(17) Length of stay in ORR custody. 

(c) ORR may utilize information 

provided by the referring Federal 

agency, child assessment tools, 

interviews, and pertinent 

documentation to determine the 

placement of all unaccompanied 

children. ORR may obtain any records 

from local, State, and Federal agencies 

regarding an unaccompanied child to 

inform placement decisions. 

(d) ORR shall review, at least every 30 

days, the placement of an 

unaccompanied child in a restrictive 

placement to determine whether a new 

level of care is appropriate. 

(e) ORR shall make reasonable efforts 

to provide placements in those 

geographical areas where DHS 

encounters the majority of 

unaccompanied children. 

(f) A care provider facility must 

accept the placement of unaccompanied 

children as determined by ORR, and 

may deny placement only for the 

following reasons: 

(1) Lack of available bed space; 

(2) Placement of the unaccompanied 

child would conflict with the care 

provider facility’s State or local 

licensing rules; 

(3) Initial placement involves an 

unaccompanied child with a significant 

physical or mental illness for which the 

referring Federal agency does not 

provide a medical clearance; or 

(4) In the case of the placement of an 

unaccompanied child with a disability, 

the care provider facility concludes it is 

unable to meet the child’s disabilityrelated needs, without fundamentally 

altering its program, even by providing 

reasonable modifications and even with 

additional support from ORR. 

(g) Care provider facilities must 

submit a written request to ORR for 

authorization to deny placement of 

unaccompanied children, providing the 

individualized reasons for the denial. 

Any such request must be approved by 

ORR before the care provider facility 

may deny a placement. ORR may follow 

up with a care provider facility about a 

placement denial to find a solution to 

the reason for the denial. 

§ 410.1104 Placement of an 

unaccompanied child in a standard 

program that is not restrictive. 

ORR places all unaccompanied 

children in standard programs that are 

not restrictive placements, except in the 

following circumstances: 

(a) An unaccompanied child meets 

the criteria for placement in a restrictive 

placement set forth in § 410.1105; or 

(b) In the event of an emergency or 

influx of unaccompanied children into 

the United States, in which case ORR 

shall place the unaccompanied child as 

expeditiously as possible in accordance 

with subpart I of this part. 

§ 410.1105 Criteria for placing an 

unaccompanied child in a restrictive 

placement. 

(a) Criteria for placing an 

unaccompanied child in a secure 

facility that is not a residential 

treatment center. (1) ORR may place an 

unaccompanied child in a secure 

facility (that is not an RTC) either at 

initial placement or through a transfer to 

another care provider facility from the 

initial placement. 

(2) ORR will not place an 

unaccompanied child in a secure 

facility (that is not an RTC) if less 

restrictive alternatives in the best 

interests of the unaccompanied child 

are available and appropriate under the 

circumstances. ORR may place an 

unaccompanied child in a heightened 

supervision facility or other non-secure 

care provider facility as an alternative, 

provided that the unaccompanied child 

does not pose a danger to self or others. 

(3) ORR may place an unaccompanied 

child in a secure facility (that is not an 

RTC) only if the unaccompanied child: 

(i) Has been charged with or has been 

convicted of a crime, or is the subject of 

delinquency proceedings, delinquency 

charge, or has been adjudicated 

delinquent, and where ORR deems that 

those circumstances demonstrate that 

the unaccompanied child poses a 

danger to self or others, not including: 

(A) An isolated offense that was not 

within a pattern or practice of criminal 

activity and did not involve violence 

against a person or the use or carrying 

of a weapon; or 

(B) A petty offense, which is not 

considered grounds for stricter means of 

detention in any case; 

(ii) While in DHS or ORR’s custody, 

or while in the presence of an 

immigration officer or ORR official or 

ORR contracted staff, has committed, or 

has made credible threats to commit, a 

violent or malicious act (whether 

directed at the unaccompanied child or 

others); or 

(iii) Has engaged, while in a 

restrictive placement, in conduct that 

has proven to be unacceptably 

disruptive of the normal functioning of 

the care provider facility, and removal 

is necessary to ensure the welfare of the 

unaccompanied child or others, as 

determined by the staff of the care 

provider facility (e.g., substance or 

alcohol use, stealing, fighting, 

intimidation of others, or sexually 

predatory behavior), and ORR 

determines the unaccompanied child 

poses a danger to self or others based on 

such conduct. 

(b) Criteria for placing an 

unaccompanied child in a heightened 

supervision facility. (1) ORR may place 

an unaccompanied child in a 

heightened supervision facility either at 

initial placement or through a transfer to 

another facility from the initial 

placement. 

(2) In determining whether to place an 

unaccompanied child in a heightened 

supervision facility, ORR considers if 

the unaccompanied child: 

(i) Has been unacceptably disruptive 

to the normal functioning of a shelter 

such that transfer is necessary to ensure 

the welfare of the unaccompanied child 

or others; 

(ii) Is a runaway risk; 

(iii) Has displayed a pattern of 

severity of behavior, either prior to 


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entering ORR custody or while in ORR 

care, that requires an increase in 

supervision by trained staff; 

(iv) Has a non-violent criminal or 

delinquent history not warranting 

placement in a secure facility, such as 

isolated or petty offenses as described in 

paragraph (b)(2)(iii) of this section; or 

(v) Is assessed as ready for step-down 

from a secure facility, including an RTC. 

(c) Criteria for placing an 

unaccompanied child in an RTC. (1) An 

unaccompanied child with serious 

mental health or behavioral health 

issues may be placed into an RTC only 

if the unaccompanied child is evaluated 

and determined to be a danger to self or 

others by a licensed psychologist or 

psychiatrist consulted by ORR or a care 

provider facility, which includes a 

determination by clear and convincing 

evidence documented in the 

unaccompanied child’s case file or 

referral documentation by a licensed 

psychologist or psychiatrist that an RTC 

is appropriate. In assessing danger to 

self or others, ORR uses the criteria for 

placement in a secure facility at 

paragraph (a) of this section. 

(2) ORR may place an unaccompanied 

child at an OON RTC when a licensed 

clinical psychologist or psychiatrist 

consulted by ORR or a care provider 

facility has determined that the 

unaccompanied child requires a level of 

care only found in an OON RTC either 

because the unaccompanied child has 

identified needs that cannot be met 

within the ORR network of RTCs or no 

placements are available within ORR’s 

network of RTCs, or that an OON RTC 

would best meet the unaccompanied 

child’s identified needs. 

(3) The criteria for placement in or 

transfer to an RTC also apply to 

transfers to or placements in OON RTCs. 

Care provider facilities may request 

ORR to transfer an unaccompanied 

child to an RTC in accordance with 

§ 410.1601(d). 

§ 410.1106 Unaccompanied children who 

need particular services and treatment. 

ORR shall assess each unaccompanied 

child in its care to determine whether 

the unaccompanied child requires 

particular services and treatment by 

staff to address their individual needs 

while in the care of the UC Program. An 

unaccompanied child’s assessed needs 

may require particular services, 

equipment, and treatment by staff for 

various reasons, including, but not 

limited to disability, alcohol or 

substance use, a history of serious 

neglect or abuse, tender age, pregnancy, 

or parenting. If ORR determines that an 

unaccompanied child’s individualized 

needs require particular services and 

treatment by staff or particular 

equipment, ORR shall place the 

unaccompanied child, whenever 

possible, in a licensed program in which 

unaccompanied children with 

disabilities can interact with people 

without disabilities to the fullest extent 

possible, and shall make reasonable 

modifications to its programs, including 

the provision of services, equipment 

and treatment, so that children with 

disabilities can have equal access to the 

program in the most integrated setting 

appropriate. 

§ 410.1107 Considerations when 

determining whether an unaccompanied 

child is a runaway risk for purposes of 

placement decisions. 

When determining whether an 

unaccompanied child is a runaway risk 

for purposes of placement decisions, 

ORR considers, among other factors, 

whether: 

(a) The unaccompanied child is 

currently under a final order of removal. 

(b) The unaccompanied child’s 

immigration history includes: 

(1) A prior breach of a bond; 

(2) A failure to appear before DHS or 

the immigration court; 

(3) Evidence that the unaccompanied 

child is indebted to organized smugglers 

for the child’s transport; or 

(4) A previous removal from the 

United States pursuant to a final order 

of removal. 

(c) The unaccompanied child has 

previously absconded or attempted to 

abscond from State or Federal custody. 

(d) The unaccompanied child has 

displayed behaviors indicative of flight 

or has expressed intent to run away. 

(e) Evidence that the unaccompanied 

child is indebted to, experiencing a 

strong trauma bond to, or is threatened 

by a trafficker in persons or drugs. 

§ 410.1108 Placement and services for 

children of unaccompanied children. 

(a) Placement. If unaccompanied 

children and their children are referred 

together to ORR, ORR shall place the 

unaccompanied children and their 

children in the same facility, except in 

unusual or emergency situations. 

Unusual or emergency situations 

include, but are not limited to: 

(1) The unaccompanied child requires 

alternate placement due to 

hospitalization or need for a specialized 

care or treatment setting that cannot 

provide appropriate care for the child of 

the unaccompanied child; 

(2) The unaccompanied child requests 

alternate placement for the child of the 

unaccompanied child; or 

(3) The unaccompanied child is the 

subject of allegations of abuse or neglect 

against the child of the unaccompanied 

child (or temporarily in urgent cases 

where there is sufficient evidence of 

child abuse or neglect warranting 

temporary separation for the child’s 

protection). 

(b) Services. (1) ORR provides the 

same care and services to the children 

of unaccompanied children as it 

provides to unaccompanied children, as 

appropriate, regardless of the children’s 

immigration or citizenship status. 

(2) U.S. citizen children of 

unaccompanied children are eligible for 

public benefits and services to the same 

extent as other U.S. citizens. 

Application(s) for public benefits and 

services shall be submitted on behalf of 

the U.S. citizen children of 

unaccompanied children by care 

provider facilities. Utilization of those 

benefits and services shall be exhausted 

to the greatest extent practicable before 

ORR-funded services are utilized. 

§ 410.1109 Required notice of legal rights. 

(a) ORR shall promptly provide each 

unaccompanied child in its custody, in 

a language and manner the 

unaccompanied child understands, 

with: 

(1) A State-by-State list of free legal 

service providers compiled and 

annually updated by ORR and that is 

provided to unaccompanied children as 

part of a Legal Resource Guide for 

unaccompanied children; 

(2) The following explanation of the 

right of potential review: ‘‘ORR usually 

houses persons under the age of 18 in 

the least restrictive setting that is in an 

unaccompanied child’s best interest, 

and generally not in restrictive 

placements (which means secure 

facilities, heightened supervision 

facilities, or residential treatment 

centers). If you believe that you have not 

been properly placed or that you have 

been treated improperly, you may call a 

lawyer to seek assistance. If you cannot 

afford a lawyer, you may call one from 

the list of free legal services given to you 

with this form.’’; and 

(3) A presentation regarding their 

legal rights, as provided under 

§ 410.1309(a)(2). 

(b) ORR shall not engage in retaliatory 

actions against legal service providers or 

any other representative because of 

advocacy or appearance in an action 

adverse to ORR. 

Subpart C—Releasing an 

Unaccompanied Child From ORR 

Custody 

§ 410.1200 Purpose of this subpart. 

This subpart covers the policies and 

procedures used to release, without 


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unnecessary delay, an unaccompanied 

child from ORR custody to a vetted and 

approved sponsor. 

§ 410.1201 Sponsors to whom ORR 

releases an unaccompanied child. 

(a) Subject to an assessment of 

sponsor suitability, when ORR 

determines that the detention of the 

unaccompanied child is not required 

either to secure the child’s timely 

appearance before DHS or the 

immigration court, or to ensure the 

minor’s safety or that of others, ORR 

shall release a minor from its custody 

without unnecessary delay, in the 

following order of preference, to: 

(1) A parent; 

(2) A legal guardian; 

(3) An adult relative; 

(4) An adult individual or entity 

designated by the parent or legal 

guardian as capable and willing to care 

for the unaccompanied child’s wellbeing in: 

(i) A declaration signed under penalty 

of perjury before an immigration or 

consular officer; or 

(ii) Such other document that 

establishes to the satisfaction of ORR, in 

its discretion, the affiant’s parental 

relationship or guardianship; 

(5) A standard program willing to 

accept legal custody; or 

(6) An adult individual or entity 

seeking custody, in the discretion of 

ORR, when it appears that there is no 

other likely alternative to long term 

custody, and family reunification does 

not appear to be a reasonable 

possibility. 

(b) ORR shall not disqualify potential 

sponsors based solely on their 

immigration status and shall not collect 

information on immigration status of 

potential sponsors for law enforcement 

or immigration enforcement related 

purposes. ORR will not share any 

immigration status information relating 

to potential sponsors with any law 

enforcement or immigration 

enforcement related entity at any time. 

(c) In making determinations 

regarding the release of unaccompanied 

children to potential sponsors, ORR 

shall not release unaccompanied 

children on their own recognizance. 

§ 410.1202 Sponsor suitability. 

(a) Potential sponsors shall complete 

an application package to be considered 

as a sponsor for an unaccompanied 

child. The application package may be 

obtained from either the care provider 

facility or ORR directly. 

(b) Prior to releasing an 

unaccompanied child, ORR shall 

conduct a suitability assessment to 

determine whether the potential 

sponsor is capable of providing for the 

unaccompanied child’s physical and 

mental well-being. At minimum, such 

assessment shall consist of review of the 

potential sponsor’s application package, 

including verification of the potential 

sponsor’s identity, physical 

environment of the sponsor’s home, and 

relationship to the unaccompanied 

child, if any, and an independent 

finding that the individual has not 

engaged in any activity that would 

indicate a potential risk to the 

unaccompanied child. ORR may consult 

with the issuing agency (e.g., consulate 

or embassy) of the sponsor’s identity 

documentation to verify the validity of 

the sponsor identity document 

presented. 

(c) As part of its suitability 

assessment, ORR may also require such 

components as an investigation of the 

living conditions in which the 

unaccompanied child would be placed 

and the standard of care the 

unaccompanied child would receive, 

verification of the employment, income, 

or other information provided by the 

potential sponsor as evidence of the 

ability to support the child, interviews 

with members of the household, a home 

visit or home study as discussed at 

§ 410.1204, background and criminal 

records checks, which may include a 

fingerprint based background check, on 

the potential sponsor and on adult 

residents of the potential sponsor’s 

household. Any such assessment also 

takes into consideration the wishes and 

concerns of the unaccompanied child. 

(d) ORR shall assess the nature and 

extent of the potential sponsor’s 

previous and current relationship with 

the unaccompanied child, and the 

unaccompanied child’s family, if 

applicable. ORR may deny release to 

unrelated individuals who have applied 

to be a sponsor but who have no preexisting relationship with the child or 

the child’s family prior to the child’s 

entry into ORR custody. 

(e) ORR shall consider the potential 

sponsor’s motivation for sponsorship; 

the unaccompanied child’s preferences 

and perspective regarding release to the 

potential sponsor; and the 

unaccompanied child’s parent’s or legal 

guardian’s preferences and perspective 

on release to the potential sponsor, as 

applicable. 

(f) ORR shall evaluate the 

unaccompanied child’s current 

functioning and strengths in 

conjunction with any risks or concerns 

such as: 

(1) Victim of sex or labor trafficking 

or other crime, or is considered to be at 

risk for such trafficking due, for 

example, to observed or expressed 

current needs, e.g., expressed need to 

work or earn money; 

(2) History of criminal or juvenile 

justice system involvement (including 

evaluation of the nature of the 

involvement, for example, whether the 

child was adjudicated and represented 

by counsel, and the type of offense) or 

gang involvement; 

(3) History of behavioral issues; 

(4) History of violence; 

(5) Any individualized needs, 

including those related to disabilities or 

other medical or behavioral/mental 

health issues; 

(6) History of substance use; or 

(7) Parenting or pregnant 

unaccompanied child. 

(g) For individual sponsors, ORR shall 

consider the potential sponsor’s 

strengths and resources in conjunction 

with any risks or concerns that could 

affect their ability to function as a 

sponsor including: 

(1) Criminal background; 

(2) Substance use or history of abuse 

or neglect; 

(3) The physical environment of the 

home; and/or 

(4) Other child welfare concerns. 

(h) ORR shall assess the potential 

sponsor’s: 

(1) Understanding of the 

unaccompanied child’s needs; 

(2) Plan to provide adequate care, 

supervision, and housing to meet the 

unaccompanied child’s needs; 

(3) Understanding and awareness of 

responsibilities related to compliance 

with the unaccompanied child’s 

immigration court proceedings, school 

attendance, and U.S. child labor laws; 

and 

(4) Awareness of and ability to access 

community resources. 

(i) ORR shall develop a release plan 

that will enable a safe release to a 

potential sponsor through the provision 

of post-release services if needed. 

§ 410.1203 Release approval process. 

(a) ORR or the care provider providing 

care for the unaccompanied child shall 

make and record the prompt and 

continuous efforts on its part towards 

family unification and the release of the 

unaccompanied child pursuant to the 

provisions of this section. These efforts 

include intakes and admissions 

assessments and the provision of 

ongoing case management services to 

identify potential sponsors. 

(b) If a potential sponsor is identified, 

ORR shall explain to both the 

unaccompanied child and the potential 

sponsor the requirements and 

procedures for release. 

(c) Pursuant to the requirements of 

§ 410.1202, the potential sponsor shall 


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complete an application for release of 

the unaccompanied child, which 

includes supporting information and 

documentation regarding the sponsor’s 

identity; the sponsor’s relationship to 

the child; background information on 

the potential sponsor and the potential 

sponsor’s household members; the 

sponsor’s ability to provide care for the 

unaccompanied child; and the sponsor’s 

commitment to fulfill the sponsor’s 

obligations in the Sponsor Care 

Agreement, which requires the sponsor 

to: 

(1) Provide for the unaccompanied 

child’s physical and mental well-being; 

(2) Ensure the unaccompanied child’s 

compliance with DHS and immigration 

courts’ requirements; 

(3) Adhere to existing Federal and 

applicable state child labor and truancy 

laws; 

(4) Notify DHS, the Executive Office 

for Immigration Review (EOIR) at the 

Department of Justice, and other 

relevant parties of changes of address; 

(5) Provide notice of initiation of any 

dependency proceedings or any risk to 

the unaccompanied child as described 

in the Sponsor Care Agreement; and 

(6) In the case of sponsors other than 

parents or legal guardians, notify ORR of 

a child moving to another location with 

another individual or change of address. 

Also, in the event of an emergency (e.g., 

serious illness or destruction of the 

home), a sponsor may transfer 

temporary physical custody of the 

unaccompanied child to another person 

who will comply with the Sponsor Care 

Agreement, but the sponsor must notify 

ORR as soon as possible and no later 

than 72 hours after the transfer. 

(d) ORR shall conduct a sponsor 

suitability assessment consistent with 

the requirements of § 410.1202. 

(e) ORR shall not be required to 

release an unaccompanied child to any 

person or agency it has reason to believe 

may harm or neglect the 

unaccompanied child or fail to present 

the unaccompanied child before DHS or 

the immigration courts when requested 

to do so. 

(f) During the release approval 

process, ORR shall educate the sponsor 

about the needs of the unaccompanied 

child and develop an appropriate plan 

to care for the unaccompanied child. 

§ 410.1204 Home studies. 

(a) As part of assessing the suitability 

of a potential sponsor, ORR may require 

a home study. A home study includes 

an investigation of the living conditions 

in which the unaccompanied child 

would be placed and takes place prior 

to the child’s physical release, the 

standard of care the child would 

receive, and interviews with the 

potential sponsor and others in the 

sponsor’s household. 

(b) ORR requires home studies under 

the following circumstances: 

(1) Under the conditions identified in 

TVPRA at 8 U.S.C. 1232(c)(3)(B), which 

requires home studies for the following: 

(i) A child who is a victim of a severe 

form of trafficking in persons; 

(ii) A special needs child with a 

disability (as defined in 42 U.S.C. 

12102); 

(iii) A child who has been a victim of 

physical or sexual abuse under 

circumstances that indicate that the 

child’s health or welfare has been 

significantly harmed or threatened; or 

(iv) A child whose proposed sponsor 

clearly presents a risk of abuse, 

maltreatment, exploitation, or 

trafficking to the child based on all 

available objective evidence. 

(2) Before releasing any child to a 

non-relative sponsor who is seeking to 

sponsor multiple children, or who has 

previously sponsored or sought to 

sponsor a child and is seeking to 

sponsor additional children. 

(3) Before releasing any child who is 

12 years old or younger to a non-relative 

sponsor. 

(c) ORR may, in its discretion, initiate 

home studies if it determines that a 

home study is likely to provide 

additional information which could 

assist in determining that the potential 

sponsor is able to care for the health, 

safety, and well-being of the 

unaccompanied child. 

(d) The care provider must inform the 

potential sponsor whenever a home 

study is conducted, explaining the 

scope and purpose of the study and 

answering the potential sponsor’s 

questions about the process. In addition, 

the home study report, as well as any 

subsequent addendums if created, will 

be provided to the potential sponsor if 

the release request is denied. 

(e) An unaccompanied child for 

whom a home study is conducted shall 

receive post-release services as 

described at § 410.1210. 

§ 410.1205 Release decisions; denial of 

release to a sponsor. 

(a) A potential sponsorship will be 

denied, if as part of the sponsor 

assessment process described at 

§ 410.1202 or the release process 

described at § 410.1203, ORR 

determines that the potential sponsor is 

not capable of providing for the physical 

and mental well-being of the 

unaccompanied child or that the 

placement would result in danger to the 

unaccompanied child or the 

community. 

(b) ORR shall adjudicate a potential 

sponsor who is an unaccompanied 

child’s parent or legal guardian within 

10 calendar days of receipt of a 

completed sponsor application or 

Family Reunification Package (FRP). If 

ORR denies release of an 

unaccompanied child to a potential 

sponsor who is a parent or legal 

guardian, it must notify the potential 

sponsor of the denial in writing via a 

Notification of Denial letter, which 

includes: 

(1) An explanation of the reason(s) for 

the denial; 

(2) Evidence and information 

supporting ORR’s denial decision, 

including the evidentiary basis for the 

denial; 

(3) Instructions for requesting an 

appeal of the denial; 

(4) Notice that the potential sponsor 

may submit additional evidence, in 

writing before a hearing occurs, or orally 

during a hearing; 

(5) Notice that the potential sponsor 

may present witnesses and crossexamine ORR’s witnesses, if such 

witnesses are willing to voluntarily 

testify; and 

(6) Notice that the potential sponsor 

may be represented by counsel in 

proceedings related to the release denial 

at no cost to the Federal Government. 

(c) ORR shall inform the 

unaccompanied child, the 

unaccompanied child’s child advocate, 

and the unaccompanied child’s counsel 

(or if the unaccompanied child has no 

attorney of record or EOIR accredited 

representative, the local legal service 

provider) of a denial of sponsorship 

involving an unaccompanied child’s 

parent or legal guardian. 

(d) If the sole reason for denial of 

release is a concern that the 

unaccompanied child is a danger to self 

or others, and the potential sponsor is 

the unaccompanied child’s parent or 

legal guardian, ORR must send the 

unaccompanied child a copy of the 

Notification of Denial described at 

paragraph (b) of this section. If the 

parent or legal guardian is not already 

seeking an appeal, the child may seek 

an appeal of the denial. 

(e) ORR shall permit unaccompanied 

children to have the assistance of 

counsel, at no cost to the Federal 

Government, with respect to release or 

the denial of release to a proposed 

sponsor. 

§ 410.1206 Appeals of release denials. 

(a) Denied parent or legal guardian 

sponsors to whom ORR must send 

Notification of Denial letters pursuant to 

§ 410.1205 may seek an appeal of ORR’s 

decision by submitting a written request 


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to the Assistant Secretary of ACF, or the 

Assistant Secretary’s neutral and 

detached designee. 

(b) The requestor may seek an appeal 

with a hearing or without a hearing. The 

Assistant Secretary, or their neutral and 

detached designee, will acknowledge 

the request for appeal within a 

reasonable time. 

(c) If the sole reason for denial of 

release is concern that the 

unaccompanied child is a danger to self 

or others, the unaccompanied child also 

may seek an appeal of the denial as 

described in paragraphs (a) and (b) of 

this section. If the unaccompanied child 

expresses a desire to seek an appeal, the 

unaccompanied child may consult with 

their attorney of record or a legal service 

provider for assistance with the appeal. 

The unaccompanied child may seek 

such appeal at any time after denial of 

release while the unaccompanied child 

is in ORR custody. 

§ 410.1207 Ninety (90)-day review of 

pending release applications. 

(a) ORR Federal staff who supervise 

case management services performed by 

ORR grantees and contractors shall 

review all pending sponsor applications 

or Family Reunification Packets (FRP) 

for unaccompanied children who are in 

ORR custody for 90 days after the 

complete sponsor application or FRP 

has been submitted to identify and 

resolve in a timely manner the reasons 

that a release application remains 

pending and to determine possible steps 

to accelerate the unaccompanied child’s 

safe release. 

(b) Upon completion of the initial 90- 

day review, unaccompanied child case 

managers or other designated agency or 

care provider staff shall update the 

potential sponsor and unaccompanied 

child on the status of the case, 

explaining the reasons that the release 

process is incomplete. Case managers or 

other designated agency or care provider 

staff shall work with the potential 

sponsor, relevant stakeholders, and ORR 

to address the portions of the 

sponsorship application or FRP that 

remain unresolved. 

(c) For cases that are not resolved after 

the initial 90-day review, ORR Federal 

staff supervising the case management 

process shall conduct additional 

reviews at least every 90 days until the 

pending sponsor application or FRP is 

resolved. ORR may in its discretion and 

subject to resource availability conduct 

additional reviews on a more frequent 

basis than every 90 days. 

§ 410.1208 ORR’s discretion to release an 

unaccompanied child to the 

Unaccompanied Refugee Minors Program. 

(a) An unaccompanied child may be 

eligible for services through the ORR 

Unaccompanied Refugee Minors (URM) 

Program. Eligible categories of 

unaccompanied children include: 

(1) Cuban and Haitian entrant as 

defined in section 501 of the Refugee 

Education Assistance Act of 1980, 8 

U.S.C. 1522 note, and as provided for at 

45 CFR 400.43; 

(2) An individual determined to be a 

victim of a severe form of trafficking as 

defined in 22 U.S.C. 7105(b)(1)(C); 

(3) An individual DHS has classified 

as a Special Immigrant Juvenile (SIJ) 

under section 101(a)(27)(J) of the 

Immigration and Nationality Act (INA), 

8 U.S.C. 1101(a)(27)(J), and who was 

either in the custody of HHS at the time 

a dependency order was granted for 

such child or who was receiving 

services pursuant to section 501(a) of 

the Refugee Education Assistance Act of 

1980, 8 U.S.C. 1522 note, at the time 

such dependency order was granted; 

(4) U nonimmigrant status recipients 

under 8 U.S.C. 1101(a)(15)(U); or 

(5) Other populations of children as 

authorized by Congress. 

(b) With respect to unaccompanied 

children described in paragraph (a) of 

this section, ORR will evaluate each 

unaccompanied child case to determine 

whether it is in the child’s best interests 

to be referred to the URM Program. 

(c) When ORR discharges an 

unaccompanied child pursuant to this 

section to receive services through the 

URM Program, legal responsibility of 

the child, including legal custody or 

guardianship, must be established under 

State law as required by 45 CFR 

400.115. Until such legal custody or 

guardianship is established, the ORR 

Director retains legal custody of the 

child. 

§ 410.1209 Requesting specific consent 

from ORR regarding custody proceedings. 

(a) An unaccompanied child in ORR 

custody is required to request specific 

consent from ORR if the child seeks to 

invoke the jurisdiction of a juvenile 

court to alter the child’s custody status 

or release from ORR custody. 

(b) If an unaccompanied child seeks 

to invoke the jurisdiction of a juvenile 

court for a dependency order to petition 

for SIJ classification or to otherwise 

permit a juvenile court to establish 

jurisdiction regarding a child’s 

placement and does not seek the 

juvenile court’s jurisdiction to 

determine or alter the child’s custody 

status or release, the unaccompanied 

child does not need to request specific 

consent from ORR. 

(c) Prior to a juvenile court 

determining or altering the 

unaccompanied child’s custody status 

or release from ORR, attorneys or others 

acting on behalf of an unaccompanied 

child must complete a request for 

specific consent. 

(d) ORR shall acknowledge receipt of 

the request within two business days. 

(e) Consistent with its duty to 

promptly place unaccompanied 

children in the least restrictive setting 

that is in the best interest of the child, 

ORR shall consider whether ORR 

custody is required to: 

(1) Ensure a child’s safety; or 

(2) Ensure the safety of the 

community. 

(f) ORR shall make determinations on 

specific consent requests within 60 

business days of receipt of a request. 

When possible, ORR shall expedite 

urgent requests. 

(g) ORR shall inform the 

unaccompanied child, or the 

unaccompanied child’s attorney or other 

authorized representative of the 

decision on the specific consent request 

in writing, along with the evidence 

utilized to make the decision. 

(h) The unaccompanied child, the 

unaccompanied child’s attorney of 

record, or other authorized 

representative may request 

reconsideration of ORR’s denial with 

the Assistant Secretary for ACF within 

30 business days of receipt of the ORR 

notification of denial of the request. The 

unaccompanied child, the 

unaccompanied child’s attorney, or 

authorized representative may submit 

additional (including new) evidence to 

be considered with the reconsideration 

request. 

(i) The Assistant Secretary for ACF or 

designee considers the request for 

reconsideration and any additional 

evidence, and sends a final 

administrative decision to the 

unaccompanied child, or the 

unaccompanied child’s attorney or other 

authorized representative, within 15 

business days of receipt of the request. 

§ 410.1210 Post-release services. 

(a) General. (1) Before releasing 

unaccompanied children, care provider 

facilities shall work with sponsors and 

unaccompanied children to prepare for 

safe and timely release of the 

unaccompanied children, to assess 

whether the unaccompanied children 

may need assistance in accessing 

community resources, and to provide 

guidance regarding safety planning and 

accessing services. 


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(2) ORR shall conduct PRS, during the 

pendency of removal proceedings, for 

unaccompanied children for whom a 

home study was conducted pursuant to 

§ 410.1204. An unaccompanied child 

who receives a home study and PRS 

may also receive home visits by a PRS 

provider. 

(3) To the extent that ORR determines 

appropriations are available, and in its 

discretion, ORR may conduct PRS in 

additional cases involving 

unaccompanied children with mental 

health or other needs who could benefit 

from ongoing assistance from a 

community-based service provider. ORR 

shall determine the level and extent of 

PRS, if any, based on the needs of the 

unaccompanied children and the 

sponsors and the extent appropriations 

are available. 

(4) ORR shall not delay the release of 

an unaccompanied child if PRS are not 

immediately available. 

(b) Service areas. PRS include 

services in the areas listed in paragraphs 

(b)(1) through (12) of this section, which 

shall be provided in a manner that is 

sensitive to the individual needs of the 

unaccompanied child and in a way they 

effectively understand regardless of 

spoken language, reading 

comprehension, or disability to ensure 

meaningful access for all eligible 

children, including those with limited 

English proficiency. The 

comprehensiveness of PRS shall depend 

on the extent appropriations are 

available. 

(1) Placement stability and safety. 

PRS providers shall work with sponsors 

to address challenges in parenting and 

caring for unaccompanied children. 

This may include guidance about 

maintaining a safe home; supervision of 

unaccompanied children; protecting 

unaccompanied children from threats 

by smugglers, traffickers, and gangs; and 

information about child abuse, neglect, 

separation, grief and loss, and how these 

issues affect children. 

(2) Immigration proceedings. The PRS 

provider shall help facilitate the 

sponsor’s plan to ensure the 

unaccompanied child’s attendance at all 

immigration court proceedings and 

compliance with DHS requirements. 

(3) Guardianship. If the sponsor is not 

a parent or legal guardian of the 

unaccompanied child, then the PRS 

provider shall provide the sponsor 

information about the benefits of 

obtaining legal guardianship of the 

unaccompanied child. If the sponsor is 

interested in becoming the 

unaccompanied child’s legal guardian, 

then the PRS provider may assist the 

sponsor in identifying the legal 

resources to do so. 

(4) Legal services. PRS providers shall 

assist sponsors in accessing relevant 

legal service resources including 

resources for immigration matters and 

unresolved juvenile justice issues. 

(5) Education. PRS providers shall 

assist sponsors with school enrollment 

and addressing issues relating to the 

unaccompanied children’s progress in 

school, including attendance. PRS 

providers may also assist with 

alternative education plans for 

unaccompanied children who exceed 

the State’s minimum age requirement 

for mandatory school attendance. PRS 

providers may also assist sponsors with 

obtaining evaluations for 

unaccompanied children reasonably 

suspected of having a disability to 

determine eligibility for a free 

appropriate public education (which 

can include special education and 

related services) or reasonable 

modifications and auxiliary aids and 

services. 

(6) Employment. PRS providers shall 

educate sponsors on U.S. child labor 

laws and requirements. 

(7) Medical services. PRS providers 

shall assist the sponsor in obtaining 

medical insurance for the 

unaccompanied child if available and in 

locating medical providers that meet the 

individual needs of the unaccompanied 

child and the sponsor. If the 

unaccompanied child requires 

specialized medical assistance, the PRS 

provider shall assist the sponsor in 

making and keeping medical 

appointments and monitoring the 

unaccompanied child’s medical 

requirements. PRS providers shall 

provide the unaccompanied child and 

sponsor with information and referrals 

to services relevant to health-related 

considerations for the unaccompanied 

child. 

(8) Individual mental health services. 

PRS providers shall provide the sponsor 

with relevant mental health resources 

and referrals for the unaccompanied 

child. The resources and referrals shall 

take into account the individual needs 

of the unaccompanied child and 

sponsor. If an unaccompanied child 

requires specialized mental health 

assistance, PRS providers shall assist 

the sponsor in making and keeping 

mental health appointments and 

monitoring the unaccompanied child’s 

mental health requirements. 

(9) Family stabilization/counseling. 

PRS providers shall provide the sponsor 

with relevant resources and referrals for 

family counseling and/or individual 

counseling that meet individual needs 

of the unaccompanied child and the 

sponsor. 

(10) Substance use. PRS providers 

shall assist the sponsor in locating 

resources to help address any substance 

use-related needs of the unaccompanied 

child. 

(11) Gang prevention. PRS providers 

shall provide the sponsor information 

about gang prevention programs in the 

sponsor’s community. 

(12) Other services. PRS providers 

may assist the sponsor and 

unaccompanied child with accessing 

local resources in other specialized 

service areas based on the needs and at 

the request of the unaccompanied child. 

(c) PRS for unaccompanied children 

requiring additional consideration. 

Additional unaccompanied children 

may be referred to PRS based on their 

individual needs, including, but not 

limited to: 

(1) Unaccompanied children in need 

of particular services or treatment; 

(2) Unaccompanied children with 

disabilities; 

(3) LGBTQI+ status unaccompanied 

children; 

(4) Unaccompanied children who are 

adjudicated delinquent or who have 

been involved in, or are at high risk of 

involvement with the juvenile justice 

system; 

(5) Unaccompanied children who 

entered ORR care after being separated 

by DHS from a parent or legal guardian; 

(6) Unaccompanied children who are 

victims of human trafficking or other 

crimes; 

(7) Unaccompanied children who are 

victims of, or at risk of, worker 

exploitation; 

(8) Unaccompanied children who are 

at risk for labor trafficking; 

(9) Unaccompanied children who are 

certain parolees; and 

(10) Unaccompanied children 

enrolled in school who are chronically 

absent or retained at the end of their 

school year. 

(d) Assessments. The PRS provider 

shall assess the released unaccompanied 

child and sponsor for PRS needs and 

shall document the assessment. The 

assessment shall be developmentally 

appropriate, trauma-informed, and 

focused on the needs of the 

unaccompanied child and sponsor. 

(e) Ongoing check-ins and in-home 

visits. (1) In consultation with the 

released unaccompanied child and 

sponsor, the PRS provider shall make a 

determination regarding the appropriate 

methods, timeframes, and schedule for 

ongoing contact with the released 

unaccompanied child and sponsor 

based on the level of need and support 

needed. 

(2) PRS providers shall make monthly 

contact, at a minimum, with their 


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assigned released unaccompanied 

children and their sponsors, either in 

person or virtually for six (6) months 

after release. 

(3) PRS providers shall document all 

ongoing check-ins and in-home visits, as 

well as document progress and 

outcomes of their home visits. 

(f) Referrals to community resources. 

(1) PRS providers shall work with 

released unaccompanied children and 

their sponsors to access community 

resources. 

(2) PRS providers shall document any 

community resource referrals and their 

outcomes. 

(g) Timeframes for PRS. (1) For a 

released unaccompanied child who is 

required under the TVPRA at 8 U.S.C. 

1232(c)(3)(B) to receive PRS, the PRS 

provider shall to the greatest extent 

practicable start services within two (2) 

days of the unaccompanied child’s 

released from ORR care. If a PRS 

provider is unable to start PRS within 

two (2) days of the unaccompanied 

child’s release, PRS shall start no later 

than 30 days after release. 

(2) For a released unaccompanied 

child who is referred by ORR to receive 

PRS but is not required to receive PRS 

following a home study, the PRS 

provider shall to the greatest extent 

practicable start services within two (2) 

days of accepting a referral. 

(h) Termination of PRS. (1) For a 

released unaccompanied child who is 

required to receive PRS under the 

TVPRA at 8 U.S.C. 1232(c)(3)(B), PRS 

for the unaccompanied child shall 

continue until the unaccompanied child 

turns 18 or the unaccompanied child is 

granted voluntary departure, 

immigration status, or the child receives 

an order of removal, whichever occurs 

first. 

(2) For a released unaccompanied 

child who is not required to receive PRS 

under the TVPRA at 8 U.S.C. 

1232(c)(3)(B), but who receives PRS as 

authorized under the TVPRA, PRS for 

the unaccompanied child shall 

presumptively continue for not less than 

six months or until the unaccompanied 

child turns 18, whichever occurs first; 

or until the PRS provider assesses the 

unaccompanied child and determines 

PRS are no longer needed, but in that 

case for not less than six months. 

(i) Records and reporting 

requirements for PRS providers—(1) 

General. (i) PRS providers shall 

maintain comprehensive, accurate, and 

current case files on unaccompanied 

children that are kept confidential and 

secure at all times and shall be 

accessible to ORR upon request. PRS 

providers shall keep all case file 

information together in the PRS 

provider’s physical and electronic files. 

(ii) PRS providers shall upload all 

PRS documentation on services 

provided to unaccompanied children 

and sponsors to ORR’s case management 

system within seven (7) days of 

completion of the services. 

(2) Records management and 

retention. (i) PRS providers shall have 

written policies and procedures for 

organizing and maintaining the content 

of active and closed case files, which 

incorporate ORR policies and 

procedures. The PRS provider’s policies 

and procedures shall also address 

preventing the physical damage or 

destruction of records. 

(ii) Before providing PRS, PRS 

providers shall have established 

administrative and physical controls to 

prevent unauthorized access to both 

electronic and physical records. 

(iii) PRS providers may not release 

records to any third party without prior 

approval from ORR. 

(iv) If a PRS provider is no longer 

providing PRS for ORR, the PRS 

provider shall provide all active and 

closed case file records to ORR 

according to instructions issued by 

ORR. 

(3) Privacy. (i) PRS providers shall 

have written policy and procedure in 

place that protects the sensitive 

information of released unaccompanied 

children from access by unauthorized 

users. 

(ii) PRS providers shall explain to 

released unaccompanied children and 

their sponsors how, when, and under 

what circumstances sensitive 

information may be shared while the 

unaccompanied children receive PRS. 

(iii) PRS providers shall have 

appropriate controls on informationsharing within the PRS provider 

network, including, but not limited to, 

subcontractors. 

(4) Notification of Concern. (i) If the 

PRS provider is concerned about the 

about the unaccompanied child’s safety 

and well-being, the PRS provider shall 

document a Notification of Concern 

(NOC) and report the concern(s) to ORR, 

and as applicable, the appropriate 

investigative agencies (including law 

enforcement and child protective 

services). 

(ii) PRS providers shall document and 

submit NOCs to ORR within 24 hours of 

first suspicion or knowledge of the 

event(s). 

(5) Case closures. (i) PRS providers 

shall formally close a case when ORR 

terminates PRS in accordance with 

paragraph (h) of this section. 

(ii) ORR shall provide appropriate 

instructions, including any relevant 

forms, that PRS providers must follow 

when closing a case. 

Subpart D—Minimum Standards and 

Required Services 

§ 410.1300 Purpose of this subpart. 

This subpart covers standards and 

required services that care provider 

facilities must meet and provide in 

keeping with the principles of treating 

unaccompanied children in custody 

with dignity, respect, and special 

concern for their particular 

vulnerability. 

§ 410.1301 Applicability of this subpart. 

This subpart applies to all standard 

programs and to non-standard programs 

where specified. 

§ 410.1302 Minimum standards applicable 

to standard programs. 

Standard programs shall: 

(a) Be licensed by an appropriate State 

or Federal agency, or meet other 

requirements specified by ORR if 

licensure is unavailable to programs 

providing services to unaccompanied 

children in their State, to provide 

residential, group, or foster care services 

for dependent children. 

(b) Comply with all applicable State 

child welfare laws and regulations and 

all State and local building, fire, health, 

and safety codes, or other requirements 

specified by ORR if licensure is 

unavailable in their State to care 

provider facilities providing services to 

unaccompanied children. If there is a 

potential conflict between ORR’s 

regulations and State law, ORR will 

review the circumstances to determine 

how to ensure that it is able to meet its 

statutory responsibilities. It is important 

to note, however, that if a State law or 

license, registration, certification, or 

other requirement conflicts with an ORR 

employee’s duties within the scope of 

their ORR employment, the ORR 

employee is required to abide by their 

Federal duties. 

(c) Provide or arrange for the 

following services for each 

unaccompanied child in care: 

(1) Proper physical care and 

maintenance, including suitable living 

accommodations, food that is of 

adequate variety, quality, and in 

sufficient quantity to supply the 

nutrients needed for proper growth and 

development, which can be 

accomplished by following the U.S. 

Department of Agriculture (USDA) 

Dietary Guidelines for Americans, and 

appropriate for the child and activity 

level, drinking water that is always 

available to each unaccompanied child, 

appropriate clothing, personal grooming 

and hygiene items, access to toilets and 


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sinks, adequate temperature control and 

ventilation, and adequate supervision to 

protect unaccompanied children from 

others; 

(2) An individualized needs 

assessment that shall include: 

(i) Various initial intake forms; 

(ii) Essential data relating to the 

identification and history of the 

unaccompanied child and family; 

(iii) Identification of the 

unaccompanied child’s special needs 

including any specific problems that 

appear to require immediate 

intervention; 

(iv) An educational assessment and 

plan; 

(v) whether an indigenous language 

speaker; 

(vi) An assessment of family 

relationships and interaction with 

adults, peers and authority figures; 

(vii) A statement of religious 

preference and practice; 

(viii) An assessment of the 

unaccompanied child’s personal goals, 

strengths and weaknesses; and 

(iv) Identifying information regarding 

immediate family members, other 

relatives, godparents, or friends who 

may be residing in the United States and 

may be able to assist in family 

reunification; 

(3) Educational services appropriate 

to the unaccompanied child’s level of 

development, communication skills, 

and disability, if applicable, in a 

structured classroom setting, Monday 

through Friday, which concentrate 

primarily on the development of basic 

academic competencies and secondarily 

on English Language Training (ELT), 

including: 

(i) Instruction and educational and 

other reading materials in such 

languages as needed; 

(ii) Instruction in basic academic 

areas that include science, social 

studies, math, reading, writing, and 

physical education; and 

(iii) The provision to an 

unaccompanied child of appropriate 

reading materials in languages other 

than English for use during the 

unaccompanied child’s leisure time; 

(4) Activities according to a recreation 

and leisure time plan that include daily 

outdoor activity, weather permitting, at 

least one hour per day of large muscle 

activity and one hour per day of 

structured leisure time activities, which 

do not include time spent watching 

television. Activities must be increased 

to at least three hours on days when 

school is not in session; 

(5) At least one individual counseling 

session per week conducted by certified 

counseling staff with the specific 

objectives of reviewing the 

unaccompanied child’s progress, 

establishing new short and long-term 

objectives, and addressing both the 

developmental and crisis-related needs 

of each unaccompanied child; 

(6) Group counseling sessions at least 

twice a week; 

(7) Acculturation and adaptation 

services that include information 

regarding the development of social and 

inter-personal skills that contribute to 

those abilities necessary to live 

independently and responsibly; 

(8) An admissions process, including: 

(i) Meeting unaccompanied children’s 

immediate needs to food, hydration, and 

personal hygiene including the 

provision of clean clothing and bedding; 

(ii) An initial intakes assessment 

covering biographic, family, migration, 

health history, substance use, and 

mental health history of the 

unaccompanied child. If the 

unaccompanied child’s responses to 

questions during any examination or 

assessment indicate the possibility that 

the unaccompanied child may have 

been a victim of human trafficking or 

labor exploitation, the care provider 

facility must notify the ACF Office of 

Trafficking in Persons within twentyfour (24) hours; 

(iii) A comprehensive orientation 

regarding program purpose, services, 

rules (provided in writing and orally), 

expectations, their rights in ORR care, 

and the availability of legal assistance, 

information about U.S. immigration and 

employment/labor laws, and services 

from the Unaccompanied Children 

Office of the Ombuds (UC Office of the 

Ombuds) in simple, non-technical terms 

and in a language and manner that the 

child understands, if practicable; and 

(iv) Assistance with contacting family 

members, following the ORR Guide and 

the care provider facility’s internal 

safety procedures; 

(9) Whenever possible, access to 

religious services of the unaccompanied 

child ’s choice, celebrating culturespecific events and holidays, being 

culturally aware in daily activities as 

well as food menus, choice of clothing, 

and hygiene routines, and covering 

various cultures in children’s 

educational services; 

(10) Visitation and contact with 

family members (regardless of their 

immigration status) which is structured 

to encourage such visitation. Standard 

programs should provide 

unaccompanied children with at least 

15 minutes of phone or video contact 

three times a week with parents and 

legal guardians, family members, and 

caregivers located in the United States 

and abroad, in a private space that 

ensures confidentiality and at no cost to 

the unaccompanied child, parent, legal 

guardian, family member, or caregiver. 

The staff shall respect the 

unaccompanied child’s privacy while 

reasonably preventing the unauthorized 

release of the unaccompanied child; 

(11) Assistance with family 

unification services designed to identify 

and verify relatives in the United States 

as well as in foreign countries and 

assistance in obtaining legal 

guardianship when necessary for release 

of the unaccompanied child; 

(12) Legal services information 

regarding the availability of free legal 

assistance, and that they may be 

represented by counsel at no expense to 

the government, the right to a removal 

hearing before an immigration judge; the 

ability to apply for asylum with U.S. 

Citizenship and Immigration Services 

(USCIS) in the first instance, and the 

ability to request voluntary departure in 

lieu of removal; and 

(13) Information about U.S. child 

labor laws and education around 

permissible work opportunities in a 

manner that is sensitive to the age, 

culture, and native language of each 

unaccompanied child. 

(d) Deliver services in a manner that 

is sensitive to the age, culture, native 

language, and the complex needs of 

each unaccompanied child. 

(e) Develop a comprehensive and 

realistic individual service plan for the 

care of each unaccompanied child in 

accordance with the unaccompanied 

child’s needs as determined by the 

individualized needs assessment. 

Individual plans must be implemented 

and closely coordinated through an 

operative case management system. 

Service plans should identify 

individualized, person-centered goals 

with measurable outcomes and with 

steps or tasks to achieve the goals, be 

developed with input from the 

unaccompanied child, and be reviewed 

and updated at regular intervals. 

Unaccompanied children ages 14 and 

older should be given a copy of the 

plan, and unaccompanied children 

under age 14 should be given a copy of 

the plan when appropriate for that 

particular child’s development. 

Individual plans shall be in that child’s 

native language or other mode of 

auxiliary aid or services and/or use 

clear, easily understood language, using 

concise and concrete sentences and/or 

visual aids and checking for 

understanding where appropriate. 

§ 410.1303 ORR Reporting, monitoring, 

quality control, and recordkeeping 

standards. 

(a) Monitoring activities. ORR 

monitors all care provider facilities for 


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compliance with the terms of the 

regulations in this part and 45 CFR part 

411. ORR monitoring activities include: 

(1) Desk monitoring that is ongoing 

oversight from ORR headquarters; 

(2) Routine site visits that are daylong visits to facilities to review 

compliance for policies, procedures, 

and practices and guidelines; 

(3) Site visits in response to ORR or 

other reports that are for a specific 

purpose or investigation; and 

(4) Monitoring visits that are part of 

comprehensive reviews of all care 

provider facilities. 

(b) Corrective actions. If ORR finds a 

care provider facility to be out of 

compliance with the regulations in this 

part and 45 CFR part 411 or subregulatory policies such as its guidance 

and the terms of its contracts or 

cooperative agreements, ORR will 

communicate the concerns in writing to 

the care provider facility director or 

appropriate person through a written 

monitoring or site visit report, with a 

list of corrective actions and child 

welfare best practice recommendations, 

as appropriate. ORR will request a 

response to the corrective action 

findings from the care provider facility 

and specify a time frame for resolution 

and the disciplinary consequences for 

not responding within the required 

timeframes. 

(c) Monitoring of secure facilities. At 

secure facilities, in addition to other 

monitoring activities, ORR reviews 

individual unaccompanied child case 

files to make sure children placed in 

secure facilities are assessed at least 

every 30 days for the possibility of a 

transfer to a less restrictive setting. 

(d) Monitoring of long-term home care 

and transitional home care facilities. 

ORR long-term home care and 

transitional home care facilities are 

subject to the same types of monitoring 

as other care provider facilities, but the 

activities are tailored to the foster care 

arrangement. ORR long-term home care 

and transitional home care facilities that 

provide services through a sub-contract 

or sub-grant are responsible for 

conducting annual monitoring or site 

visits of the sub-recipient, as well as 

weekly desk monitoring. Upon request, 

care provider facilities must provide 

findings of such reviews to the 

designated ORR point of contact. 

(e) Care provider facility quality 

assurance. ORR requires care provider 

facilities to develop quality assurance 

assessment procedures that accurately 

measure and evaluate service delivery 

in compliance with the requirements of 

the regulations in this part, as well as 

those delineated in 45 CFR part 411. 

(f) Reporting. Care provider facilities 

shall report to ORR any emergency 

incident, significant incident, or 

program-level event and in accordance 

with any applicable Federal, State, and 

local reporting laws. Such reports are 

subject to the following rules: 

(1) Care provider facilities must 

document incidents with sufficient 

detail to ensure that any relevant entity 

can facilitate any required follow-up; 

document incidents in a way that is 

trauma-informed and grounded in child 

welfare best practices; and update the 

report with any findings or 

documentation that are made after the 

fact. 

(2) Care provider facilities must never: 

fabricate, exaggerate, or minimize 

incidents; use disparaging or judgmental 

language about unaccompanied children 

in incident reports; use incident 

reporting or the threat of incident 

reporting as a way to manage the 

behavior of unaccompanied children or 

for any other illegitimate reason. 

(3) Care provider facilities are 

prohibited from using reports of 

significant incidents as a method of 

punishment or threat towards any child 

in ORR care for any reason. 

(4) The existence of a report of a 

significant incident may not be used by 

ORR as a basis for an unaccompanied 

child’s step up to a restrictive placement 

or as the sole basis for a refusal to step 

a child down to a less restrictive 

placement. Care provider facilities are 

likewise prohibited from using the 

existence of a report of a significant 

incident as a basis for refusing an 

unaccompanied child’s placement in 

their facilities. Reports of significant 

incidents may be used as examples or 

citations of concerning behavior; 

however, the existence of a report itself 

is not sufficient for a step up, a refusal 

to step down, or a care provider facility 

to refuse a placement. 

(g) Develop, maintain, and safeguard 

each individual unaccompanied child’s 

case file. This paragraph (g) applies to 

all care provider facilities responsible 

for the care and custody of 

unaccompanied children, whether the 

program is a standard program or not. 

(1) Care provider facilities and PRS 

providers must preserve the 

confidentiality of unaccompanied child 

case file records and information, and 

protect the records and information 

from unauthorized use or disclosure; 

(2) The records included in 

unaccompanied child case files are the 

property of ORR, whether in the 

possession of ORR or a care provider 

facility or PRS provider, and care 

provider facilities and PRS providers 

may not release those records without 

prior approval from ORR except for 

limited program administration 

purposes; 

(3) Care provider facilities and PRS 

providers must provide unaccompanied 

child case file records to ORR 

immediately upon ORR’s request; and 

(4) Employees, former employees, or 

contractors of a care provider facility or 

PRS provider must not disclose case file 

records or information about 

unaccompanied children, their 

sponsors, family, or household members 

to anyone for any purpose, except for 

purposes of program administration, 

without first providing advanced notice 

to ORR to allow ORR to ensure that 

disclosure of unaccompanied children’s 

information is compatible with program 

goals and to ensure the safety and 

privacy of unaccompanied children. 

(h) Records. Maintain adequate 

records in the unaccompanied child 

case file and make regular reports as 

required by ORR that permit ORR to 

monitor and enforce the regulations in 

this part and other requirements and 

standards as ORR may determine are in 

the interests of the unaccompanied 

child. 

§ 410.1304 Behavior management and 

prohibition on seclusion and restraint. 

(a) Care provider facilities must 

develop behavior management strategies 

that include evidence-based, traumainformed, and linguistically responsive 

program rules and behavior 

management policies that take into 

consideration the range of ages and 

maturity in the program and that are 

culturally sensitive to the needs of each 

unaccompanied child. The behavior 

management strategies must not use any 

practices that involve negative 

reinforcement or involve consequences 

or measures that are not constructive 

and are not logically related to the 

behavior being regulated. Care provider 

facilities must not: 

(1) Use or threaten use of corporal 

punishment, significant incident reports 

as punishment, unfavorable 

consequences related to family/sponsor 

unification or legal matters (e.g., 

immigration, asylum); use forced chores 

or work that serves no purpose except 

to demean or humiliate the child, forced 

physical movement, such as push-ups 

and running, or uncomfortable physical 

positions as a form of punishment or 

humiliation; search an unaccompanied 

child’s personal belongings solely for 

the purpose of behavior management; 

apply medical interventions that are not 

prescribed by a medical provider acting 

within the usual course of professional 

practice for a medical diagnosis or that 


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increase risk of harm to the 

unaccompanied child or others; and 

(2) Use any sanctions employed in 

relation to an individual 

unaccompanied child that: 

(i) Adversely affect an 

unaccompanied child’s health, or 

physical, emotional, or psychological 

well-being; or 

(ii) Deny unaccompanied children 

meals, hydration, sufficient sleep, 

routine personal grooming activities, 

exercise (including daily outdoor 

activity), medical care, correspondence 

or communication privileges, or legal 

assistance. 

(3) Use prone physical restraints, 

chemical restraints, or peer restraints for 

any reason in any care provider facility 

setting. 

(b) Involving law enforcement should 

be a last resort. A call by a facility to law 

enforcement may trigger an evaluation 

of staff involved regarding their 

qualifications and training in traumainformed, de-escalation techniques. 

(c) Standard programs and RTCs are 

prohibited from using seclusion as a 

behavioral intervention. Standard 

programs and RTCs are also prohibited 

from using restraints, except as 

described at paragraphs (d) and (f) of 

this section. 

(d) Standard programs and RTCs may 

use personal restraint only in emergency 

safety situations. 

(e) Secure facilities, except for RTCs: 

(1) May use personal restraints, 

mechanical restraints and/or seclusion 

in emergency safety situations. 

(2) May restrain an unaccompanied 

child for their own immediate safety or 

that of others during transport to an 

immigration court or an asylum 

interview. 

(3) May restrain an unaccompanied 

child while at an immigration court or 

asylum interview if the child exhibits 

imminent runaway behavior, makes 

violent threats, demonstrates violent 

behavior, or if the secure facility has 

made an individualized determination 

that the child poses a serious risk of 

violence or running away if the child is 

unrestrained in court or the interview. 

(4) Must provide all mandated 

services under this subpart to the 

unaccompanied child to the greatest 

extent practicable under the 

circumstances while ensuring the safety 

of the unaccompanied child, other 

unaccompanied children at the secure 

facility, and others. 

(f) Care provider facilities may only 

use soft restraints (e.g., zip ties and leg 

or ankle weights) during transport to 

and from secure facilities, and only 

when the care provider believes a child 

poses a serious risk of physical harm to 

self or others or a serious risk of running 

away from ORR custody. 

§ 410.1305 Staff, training, and case 

manager requirements. 

(a) Standard programs, restrictive 

placements, and post-release service 

providers shall provide training to all 

staff, contractors, and volunteers, to 

ensure that they understand their 

obligations under ORR regulations in 

this part and policies and are responsive 

to the challenges faced by staff and 

unaccompanied children at the facility. 

All trainings should be tailored to the 

unique needs, attributes, and gender of 

the unaccompanied children in care at 

the individual care provider facility. 

Standard programs and restrictive 

placements must document the 

completion of all trainings in personnel 

files. All staff, contractors, and 

volunteers must have completed all 

required background checks and vetting 

for their respective roles prior to service 

provision and care provider facilities 

must provide documentation to ORR of 

compliance; 

(b) Standard programs and restrictive 

placements shall meet the staff to child 

ratios established by their respective 

States or other licensing entities, or 

ratios established by ORR if State 

licensure is not available; and 

(c) Standard programs and restrictive 

placements must have case managers 

based on site at the facility. 

§ 410.1306 Language access services. 

(a) General. (1) To the greatest extent 

practicable, standard programs and 

restrictive placements shall consistently 

offer unaccompanied children the 

option of interpretation and translation 

services in their native or preferred 

language, depending on the 

unaccompanied children’s preference, 

and in a way they effectively 

understand. If after taking reasonable 

efforts, standard programs and 

restrictive placements are unable to 

obtain a qualified interpreter or 

translator for the unaccompanied 

children’s native or preferred language, 

depending on the children’s preference, 

standard programs and restrictive 

placements shall consult with qualified 

ORR staff for guidance on how to ensure 

meaningful access to their programs and 

activities for the children, including 

those with limited English proficiency. 

(2) Standard programs and restrictive 

placements shall prioritize the ability to 

provide in-person, qualified interpreters 

for unaccompanied children who need 

them, particularly for rare or indigenous 

languages. After the standard programs 

and restrictive placements take 

reasonable efforts to obtain in-person, 

qualified interpreters, then they may use 

professional telephonic interpreter 

services. 

(3) Standard programs and restrictive 

placements shall translate all 

documents and materials shared with 

the unaccompanied children, including 

those posted in the facilities, in the 

unaccompanied children’s native or 

preferred language, depending on the 

children’s preference, and in a timely 

manner. 

(b) Placement considerations. ORR 

shall make placement decisions for the 

unaccompanied children that are 

informed in part by language access 

considerations and other factors as 

listed in § 410.1103(b). To the extent 

appropriate and practicable, giving due 

consideration to an unaccompanied 

child’s individualized needs, ORR shall 

place unaccompanied children with 

similar language needs within the same 

standard program or restrictive 

placement. 

(c) Intake, orientation, and 

confidentiality.(1) Prior to completing 

the UC Assessment and starting 

counseling services, standard programs 

and restrictive placements shall provide 

a written notice of the limits of 

confidentiality they share while in ORR 

care and custody, and orally explain the 

contents of the written notice to the 

unaccompanied children, in their native 

or preferred language, depending on the 

children’s preference, and in a way they 

can effectively understand. 

(2) Standard programs and restrictive 

placements shall conduct assessments 

and initial medical exams with 

unaccompanied children in their native 

or preferred language, depending on the 

children’s preference, and in a way they 

effectively understand. 

(3) Standard programs and heightened 

supervision facilities shall provide a 

standardized and comprehensive 

orientation to all unaccompanied 

children in their native or preferred 

language, depending on the children’s 

preference, and in a way they effectively 

understand regardless of spoken 

language, reading comprehension level, 

or disability. 

(4) For all step-ups to and step-downs 

from restrictive placements, standard 

programs and restrictive placements 

shall explain to the unaccompanied 

children why they were placed in a 

restrictive setting and/or if their 

placement was changed and do so in the 

unaccompanied children’s native or 

preferred language, depending on the 

children’s preference, and in a way they 

effectively understand. All documents 

shall be translated into the 

unaccompanied children’s and/or 


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sponsor’s native or preferred language, 

depending on the children’s preference. 

(5) If unaccompanied children are not 

literate, or if the documents provided 

during intakes and/or orientation are 

not translated into a language that they 

can read and effectively understand, the 

standard program or restrictive 

placement shall have a qualified 

interpreter orally translate or sign 

language translate and explain all the 

documents in the unaccompanied 

children’s native or preferred language, 

depending on the children’s preference, 

and confirm with the unaccompanied 

children that they fully comprehend all 

material. 

(6) Standard programs and restrictive 

placements shall provide information 

regarding grievance policies and 

procedures in the unaccompanied 

children’s native or preferred language, 

depending on the children’s preference, 

and in a way they effectively 

understand. 

(7) Standard programs and restrictive 

placements shall educate 

unaccompanied children on ORR’s 

sexual abuse and sexual harassment 

policies in the unaccompanied 

children’s native or preferred language, 

depending on the children’s preference, 

and in a way they effectively 

understand. 

(8) Standard programs and restrictive 

placements shall notify the 

unaccompanied children that the 

standard programs and restrictive 

placements shall accommodate the 

unaccompanied children’s language 

needs while they remain in ORR care. 

(9) For paragraphs (c)(1) through (8) of 

this section, standard programs and 

restrictive placements shall document 

that the unaccompanied children 

acknowledge that they effectively 

understand what was provided to them 

in the child’s case files. 

(d) Education. (1) Standard programs 

and heightened supervision facilities 

shall provide educational instruction 

and relevant materials in a format and 

language accessible to all 

unaccompanied children, regardless of 

the child’s native or preferred language, 

including, but not limited to, providing 

services from an in-person, qualified 

interpreter, written translations of 

materials, and professional telephonic 

interpretation when in-person 

interpretation options have been 

exhausted. 

(2) Standard programs and heightened 

supervision facilities shall provide 

unaccompanied children with 

appropriate recreational reading 

materials in languages in formats and 

languages accessible to all 

unaccompanied children for use during 

their leisure time. 

(3) Standard programs and heightened 

supervision facilities shall translate all 

ORR-required documents provided to 

unaccompanied children that are part of 

educational lessons in formats and 

languages accessible to all 

unaccompanied children. If written 

translations are not available, standard 

programs and heightened supervision 

facilities shall orally translate or sign 

language translate all documents, 

prioritizing services from an in-person, 

qualified interpreter and translation 

before using professional telephonic 

interpretation and translation services. 

(e) Religious and cultural 

accommodations. If an unaccompanied 

child requests religious and/or cultural 

information or items, the standard 

program or heightened supervision 

facility shall provide the requested 

items in the unaccompanied child’s 

native or preferred language, depending 

on the child’s preference, and as long as 

the request is reasonable. 

(f) Parent and sponsor 

communications. Standard programs 

and restrictive placements shall utilize 

any necessary professional 

interpretation or translation services 

needed to ensure meaningful access by 

an unaccompanied child’s parent(s), 

guardian(s), and/or potential sponsor(s). 

Standard programs and restrictive 

placements shall translate all 

documents and materials shared with 

the parent(s), guardian, and/or potential 

sponsors in their native or preferred 

language, depending on their 

preference. 

(g) Healthcare services. While 

providing or arranging healthcare 

services for unaccompanied children, 

standard programs and restrictive 

placements shall ensure that 

unaccompanied children are able to 

communicate with physicians, 

clinicians, and healthcare staff in their 

native or preferred language, depending 

on the unaccompanied children’s 

preference, and in a way the 

unaccompanied children effectively 

understand, prioritizing services from 

an in-person, qualified interpreter 

before using professional telephonic 

interpretation services. 

(h) Legal services. Standard programs 

and restrictive placements shall make 

qualified interpretation and/or 

translation services available to 

unaccompanied children, child 

advocates, and legal service providers 

upon request while unaccompanied 

children are being provided with those 

services. Such services shall be 

available to unaccompanied children in 

enclosed, confidential areas. 

(i) Interpreter’s and translator’s 

responsibility with respect to 

confidentiality of information. 

Interpreters and translators shall keep 

all information about the 

unaccompanied children’s cases and/or 

services, confidential from non-ORR 

grantees, contractors, and Federal staff. 

Interpreters and translators shall not 

disclose case file information to other 

interested parties in the unaccompanied 

child’s cases. 

§ 410.1307 Healthcare services. 

(a) ORR shall ensure that all 

unaccompanied children in ORR 

custody will be provided with routine 

medical and dental care; access to 

medical services requiring heightened 

ORR involvement, consistent with 

paragraph (c) of this section; family 

planning services; and emergency 

healthcare services. 

(b) Standard programs and restrictive 

placements shall be responsible for: 

(1) Establishment of a network of 

licensed healthcare providers 

established by the care provider facility, 

including specialists, emergency care 

services, mental health practitioners, 

and dental providers that will accept 

ORR’s fee-for-service billing system; 

(2) A complete medical examination 

(including screening for infectious 

disease) within 2 business days of 

admission, excluding weekends and 

holidays, unless the unaccompanied 

child was recently examined at another 

facility and if unaccompanied children 

are still in ORR custody 60 to 90 days 

after admission, an initial dental exam, 

or sooner if directed by State licensing 

requirements; 

(3) Appropriate immunizations as 

recommended by the Advisory 

Committee on Immunization Practices’ 

Child and Adolescent Immunization 

Schedule and approved by HHS’ 

Centers for Disease Control and 

Prevention; 

(4) An annual physical examination, 

including hearing and vision screening, 

and follow-up care for acute and 

chronic conditions; 

(5) Administration of prescribed 

medication and special diets; 

(6) Appropriate mental health 

interventions when necessary; 

(7) Having policies and procedures for 

identifying, reporting, and controlling 

communicable diseases that are 

consistent with applicable State, local, 

and Federal laws and regulations. 

(8) Having policies and procedures 

that enable unaccompanied children, 

including those with language and 

literacy barriers, to convey written and 

oral requests for emergency and nonemergency healthcare services; 


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(9) Having policies and procedures 

based on State or local laws and 

regulations to ensure the safe, discreet, 

and confidential provision of 

prescription and nonprescription 

medications to unaccompanied 

children, secure storage of medications, 

and controlled administration and 

disposal of all drugs. A licensed 

healthcare provider must write or orally 

order all nonprescription medications, 

and oral orders must be documented in 

the unaccompanied child’s file; and 

(10) Medical isolation may be used 

according to the following requirements: 

(i) An unaccompanied child may be 

placed in medical isolation and 

excluded from contact with the general 

population in order to prevent the 

spread of an infectious disease due to a 

potential exposure, protect other 

unaccompanied children, and care 

provider facility staff for a medical 

purpose or as required under State, 

local, or other licensing rules, as long as 

the medically required isolation is 

limited only to the extent necessary to 

ensure the health and welfare of the 

unaccompanied child, other 

unaccompanied children at a care 

provider facility and care provider 

facility staff, or the public at large. 

(ii) Standard programs and restrictive 

placements must provide all mandated 

services under this subpart to the 

greatest extent practicable under the 

circumstances to unaccompanied 

children in medical isolation. Medically 

isolated unaccompanied children still 

must be supervised under State, local, 

or other licensing ratios, and, if multiple 

unaccompanied children are in medical 

isolation, they should be placed in units 

or housing together (as practicable, 

given the nature or type of medical issue 

giving rise to the requirement for 

isolation in the first instance). 

(c) Access to medical care—(1) Initial 

placement and transfer 

considerations—(i) Initial placement. 

Consistent with § 410.1103, when 

placing an unaccompanied child, ORR 

considers the child’s individualized 

needs and any specialized services or 

treatment required or reasonably 

requested. Such services or treatment 

include but are not limited to access to 

medical specialists, family planning 

services, and medical services requiring 

heightened ORR involvement. When 

such care is determined to be medically 

necessary during the referral, intake 

process, Initial Medical Exam, or at any 

point while the unaccompanied child is 

in ORR custody, or the unaccompanied 

child reasonably requests such medical 

care while in ORR custody, ORR shall, 

to the greatest extent possible, identify 

available and appropriate bed space and 

place the unaccompanied child at a care 

provider facility that is able to provide 

or arrange such care, is in an 

appropriate location to support the 

unaccompanied child’s healthcare 

needs, and affords access to an 

appropriate medical provider who is 

able to perform any reasonably 

requested or medically necessary 

services. 

(ii) Transfers. If an appropriate initial 

placement is not immediately available 

or if the unaccompanied child’s need or 

request for medical care is identified 

after the Initial Medical Exam, care 

providers shall immediately notify ORR 

and ORR shall, to the greatest extent 

possible, transfer the unaccompanied 

child needing medical care to an ORR 

program that meets the qualifications in 

paragraph (c)(1)(i) of this section. 

(2) Transportation. ORR shall ensure 

unaccompanied children have access to 

medical care, including transportation 

across State lines and associated 

ancillary services if necessary to access 

appropriate medical services, including 

access to medical specialists, family 

planning services, and medical services 

requiring heightened ORR involvement. 

The requirement in this paragraph (c)(2) 

applies regardless of whether Federal 

appropriations law prevents ORR from 

paying for the medical care itself. If 

there is a potential conflict between 

ORR’s regulations in this part and State 

law, ORR will review the circumstances 

to determine how to ensure that it is 

able to meet its statutory 

responsibilities. It is important to note, 

however, that if a State law or license, 

registration, certification, or other 

requirement conflicts with an ORR 

employee’s duties within the scope of 

their ORR employment, the ORR 

employee is required to abide by their 

Federal duties. 

(d) Notifications. Care provider 

facilities shall notify ORR within 24 

hours of an unaccompanied child’s need 

or request for medical services requiring 

heightened ORR involvement or the 

discovery of a pregnancy. 

§ 410.1308 Child advocates. 

(a) Child advocates. This section sets 

forth the provisions relating to the 

appointment and responsibilities of 

independent child advocates for child 

trafficking victims and other especially 

vulnerable unaccompanied children. 

(b) Role of the child advocate. Child 

advocates are third parties who make 

independent recommendations 

regarding the best interests of an 

unaccompanied child. Their 

recommendations are based on 

information obtained from the 

unaccompanied child and other sources 

(including, but not limited to, the 

unaccompanied child’s parents, the 

family, potential sponsors/sponsors, 

government agencies, legal service 

providers, protection and advocacy 

system representatives in appropriate 

cases, representatives of the 

unaccompanied child’s care provider, 

health professionals, and others). Child 

advocates formally submit their 

recommendations to ORR and/or the 

immigration court, where appropriate, 

in the form of best interest 

determinations (BIDs). 

(c) Responsibilities of the child 

advocate. The child advocate’s 

responsibilities include, but are not 

limited to: 

(1) Visiting with their unaccompanied 

child clients; 

(2) Explaining the consequences and 

potential outcomes of decisions that 

may affect their unaccompanied child; 

(3) Advocating for their 

unaccompanied child client’s best 

interest with respect to care, placement, 

services, release, and within 

proceedings to which the child is a 

party; 

(4) Providing best interest 

determinations, where appropriate and 

within a reasonable time to ORR, an 

immigration court, and/or other 

stakeholders involved in a proceeding 

or matter in which the unaccompanied 

child is a party or has an interest; and, 

(5) Regularly communicating case 

updates with the care provider facility, 

ORR, and/or other stakeholders in the 

planning and performance of advocacy 

efforts, including updates related to 

services provided to an unaccompanied 

child after their release from ORR care. 

(d) Appointment of child advocates. 

ORR may appoint child advocates for 

unaccompanied children who are 

victims of trafficking or especially 

vulnerable. 

(1) An interested party may refer an 

unaccompanied child to ORR for a child 

advocate after notifying ORR that a 

particular unaccompanied child who is 

currently in or was previously in, ORR’s 

care and custody, is a victim of 

trafficking or is especially vulnerable. 

As used in this paragraph (d)(1), 

interested parties means individuals or 

organizations involved in the care, 

service, or proceeding involving an 

unaccompanied child, including but not 

limited to, ORR Federal or contracted 

staff; an immigration judge; DHS Staff; 

a legal service provider, attorney of 

record, or EOIR accredited 

representative; an ORR care provider; 

healthcare professional; or a child 

advocate organization. 

(2) ORR shall make an appointment 

decision within five (5) business days of 


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a referral for a child advocate, except 

under exceptional circumstances which 

may delay a decision regarding an 

appointment. ORR will appoint child 

advocates for unaccompanied children 

who are currently in or were previously 

in ORR care and custody. ORR does not 

appoint child advocates for 

unaccompanied children who are not in 

or were not previously in ORR care and 

custody. 

(3) Child advocate appointments 

terminate upon the closure of the 

unaccompanied child’s case by the 

child advocate; when the 

unaccompanied child turns 18; or when 

the unaccompanied child obtains lawful 

immigration status. 

(e) Child advocate’s access to 

information. After a child advocate is 

appointed for an unaccompanied child, 

the child advocate shall be provided 

access to materials to effectively 

advocate for the best interest of the 

unaccompanied child. Child advocates 

shall be provided access to their clients 

during normal business hours at an ORR 

care provider facility and shall be 

provided access to all their client’s case 

file information and may request copies 

of the case file directly from the 

unaccompanied child’s care provider 

without going through ORR’s standard 

case file request process. 

(f) Child advocate’s responsibility 

with respect to confidentiality of 

information. Child advocates must keep 

the information in the case file, and 

information about the unaccompanied 

child’s case, confidential. Child 

advocates shall not disclose case file 

information except to ORR grantees, 

contractors, and Federal staff. Child 

advocates shall not disclose case file 

information to other parties, including 

parties with an interest in a child’s case. 

With regard to an unaccompanied child 

in ORR care, ORR shall allow the child 

advocate of that unaccompanied child 

to conduct private communications 

with the unaccompanied child, in a 

private area that allows for 

confidentiality for in-person and virtual 

or telephone meetings. 

(g) Non-retaliation against child 

advocates. ORR shall presume that child 

advocates are acting in good faith with 

respect to their advocacy on behalf of 

unaccompanied children, and shall not 

retaliate against a child advocate for 

actions taken within the scope of their 

responsibilities. For example, ORR shall 

not retaliate against child advocates 

because of any disagreement with a best 

interest determination in regard to an 

unaccompanied child, or because of a 

child advocate’s advocacy on behalf of 

an unaccompanied child. 

§ 410.1309 Legal services. 

(a) Unaccompanied children’s access 

to immigration legal services—(1) 

Purpose. This paragraph (a) describes 

ORR’s responsibilities in relation to 

legal services for unaccompanied 

children, consistent with 8 U.S.C. 

1232(c)(5). 

(2) Orientation. An unaccompanied 

child in ORR’s legal custody shall 

receive: 

(i) An in-person, telephonic, or video 

presentation concerning the rights and 

responsibilities of undocumented 

children in the immigration system, 

presented in the language of the 

unaccompanied child and in an ageappropriate manner. 

(A) Such presentation shall be 

provided by an independent legal 

service provider that has appropriate 

qualifications and experience, as 

determined by ORR, to provide such 

presentation and shall include 

information notifying the 

unaccompanied child of their legal 

rights and responsibilities, including 

protections under child labor laws, and 

of services to which they are entitled, 

including educational services. The 

presentation must be delivered in the 

language of the unaccompanied child 

and in an age-appropriate manner. 

(B) Such presentation must occur 

within 10 business days of child’s 

admission to ORR, within 10 business 

days of a child’s transfer to a new ORR 

facility (except ORR long-term home 

care or ORR transitional home care), and 

every 6 months for unrepresented 

children who remain in ORR custody, as 

practicable. If the unaccompanied child 

is released before 10 business days, a 

legal service provider shall follow up as 

soon as practicable to complete the 

presentation, in person or remotely. 

(ii) Information regarding the 

availability of free legal assistance and 

that they may be represented by counsel 

at no expense to the government. 

(iii) Notification regarding the child’s 

ability to petition for SIJ classification, 

to request that a juvenile court 

determine dependency or placement in 

accordance with § 410.1209, and 

notification of the ability to apply for 

asylum or other forms of relief from 

removal. 

(iv) Information regarding the 

unaccompanied child’s right to a 

removal hearing before an immigration 

judge, the ability to apply for asylum 

with USCIS in the first instance, and the 

ability to request voluntary departure in 

lieu of removal. 

(v) A confidential legal consultation 

with a qualified attorney (or paralegal 

working under the direction of an 

attorney, or EOIR accredited 

representative) to determine possible 

forms of relief from removal in relation 

to the unaccompanied child’s 

immigration case, as well as other case 

disposition options such as, but not 

limited to, voluntary departure. Such 

consultation shall occur within 10 

business days of a child’s transfer to a 

new ORR facility (except ORR long-term 

home care or ORR transitional home 

care) or upon request from ORR. ORR 

shall request an additional legal 

consultation on behalf of a child, if the 

child has been identified as: 

(A) A potential victim of a severe form 

of trafficking; 

(B) Having been abused, abandoned, 

or neglected; or 

(C) Having been the victim of a crime 

or domestic violence; or 

(D) Persecuted or in fear of 

persecution due to race, religion, 

nationality, membership in a particular 

social group, or for a political opinion. 

(vi) An unaccompanied child in ORR 

care shall be able to conduct private 

communications with their attorney of 

record, EOIR accredited representative, 

or legal service provider in a private 

enclosed area that allows for 

confidentiality for in-person, virtual, or 

telephone meetings. 

(3) Accessibility of information. In 

addition to the requirements in 

paragraphs (a)(1) and (2) of this section 

for orienting and informing 

unaccompanied children of their legal 

rights and access to services while in 

ORR care, ORR shall also require this 

information be posted for 

unaccompanied children in an ageappropriate format and translated into 

each child’s preferred language, in any 

ORR contracted or grant-funded facility 

where unaccompanied children are in 

ORR care. 

(4) Direct immigration legal 

representation services for 

unaccompanied children currently or 

previously under ORR care. To the 

extent ORR determines that 

appropriations are available, and insofar 

as it is not practicable for ORR to secure 

pro bono counsel, ORR shall fund legal 

service providers to provide direct 

immigration legal representation for 

certain unaccompanied children, 

subject to ORR’s discretion and 

available appropriations. Examples of 

direct immigration legal representation 

include, but are not limited to: 

(i) For unrepresented unaccompanied 

children who become enrolled in ORR 

Unaccompanied Refugee Minor (URM) 

programs, provided they have not yet 

obtained immigration relief or reached 

18 years of age at the time of retention 

of an attorney; 


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(ii) For unaccompanied children in 

ORR care who are in proceedings before 

the Executive Office for Immigration 

Review (EOIR), including 

unaccompanied children seeking 

voluntary departure, and for whom 

other available assistance does not 

satisfy the legal needs of the individual 

child; 

(iii) For unaccompanied children 

released to a sponsor residing in the 

defined service area of the same legal 

service provider who provided the child 

legal services in ORR care, to promote 

continuity of legal services; and 

(iv) For other unaccompanied 

children, to the extent ORR determines 

that appropriations are available. 

(b) Legal services for the protection of 

unaccompanied children’s interests in 

certain matters not involving direct 

immigration representation—(1) 

Purpose. This paragraph (b) provides for 

the use of additional funding for legal 

services, to the extent that ORR 

determines it to be available, to help 

ensure that the interests of 

unaccompanied children are considered 

in certain matters relating to their care 

and custody, to the greatest extent 

practicable. 

(2) Funding. To the extent ORR 

determines that appropriations are 

available, and insofar as it is not 

practicable for ORR to secure pro bono 

counsel, ORR may fund access to 

counsel for unaccompanied children, 

including for purposes of legal 

representation, in the following 

enumerated non-immigration related 

matters, subject to ORR’s discretion and 

in no particular order of priority: 

(i) ORR appellate procedures, 

including Placement Review Panel 

(PRP), under § 410.1902, and risk 

determination hearings, under 

§ 410.1903; 

(ii) For unaccompanied children upon 

their placement in ORR long-term home 

care or in a residential treatment center 

outside a licensed ORR facility, and for 

whom other legal assistance does not 

satisfy the legal needs of the individual 

child; 

(iii) For unaccompanied children with 

no identified sponsor who are unable to 

be placed in ORR long-term home care 

or ORR transitional home care; 

(iv) For purposes of judicial bypass or 

similar legal processes as necessary to 

enable an unaccompanied child to 

access certain lawful medical 

procedures that require the consent of 

the parent or legal guardian under State 

law, and when the unaccompanied 

child is unable or unwilling to obtain 

such consent; 

(v) For the purpose of representing an 

unaccompanied child in state juvenile 

court proceedings, when the 

unaccompanied child already possesses 

SIJ classification; and 

(vi) For the purpose of helping an 

unaccompanied child to obtain an 

employment authorization document. 

(c) Standards for legal services for 

unaccompanied children. (1) In-person 

meetings are preferred during the course 

of providing legal counsel to any 

unaccompanied child under paragraph 

(a) or (b) of this section, though 

telephonic or teleconference meetings 

between the unaccompanied child’s 

attorney or EOIR accredited 

representative and the unaccompanied 

child may substitute as appropriate. 

Either the unaccompanied child’s 

attorney, EOIR accredited 

representative, or a care provider staff 

member or care provider shall always 

accompany the unaccompanied child to 

any in-person courtroom hearing or 

proceeding, in connection with any 

legal representation of an 

unaccompanied child pursuant to this 

section. 

(2) Information and notice shared 

with an unaccompanied child’s attorney 

or EOIR accredited representative. Upon 

receipt by ORR of proof of 

representation and authorization for 

release of records signed by the 

unaccompanied child or other 

authorized representative, ORR shall 

share, upon request, the unaccompanied 

child’s complete case file apart from any 

legally required redactions to assist in 

the legal representation of the 

unaccompanied child. 

(d) Grants or contracts for 

unaccompanied children’s immigration 

legal services. (1) This paragraph (d) 

prescribes requirements concerning 

grants or contracts to legal service 

providers to ensure that all 

unaccompanied children who are or 

have been in ORR care have access to 

counsel to represent them in 

immigration legal proceedings or 

matters and to protect them from 

mistreatment, exploitation and 

trafficking, to the greatest extent 

practicable, in accordance with the 

TVPRA [at 8 U.S.C. 1232(c)(5)] and 292 

of the Immigration and Nationality Act 

[at 8 U.S.C. 1362]. 

(2) ORR may make grants, in its 

discretion and subject to available 

resources—including formula grants 

distributed geographically in proportion 

to the population of released 

unaccompanied children—or contracts 

under this section to qualified agencies 

or organizations, as determined by ORR 

and in accordance with the eligibility 

requirements outlined in the 

authorizing statute, for the purpose of 

providing immigration legal 

representation, assistance and related 

services to unaccompanied children 

who are in ORR care, or who have been 

released from ORR care and living in a 

State or region. 

(3) Subject to the availability of funds, 

grants or contracts shall be calculated 

based on the historic proportion of the 

unaccompanied child population in the 

State within a lookback period 

determined by the Director, provided 

annually by the State. 

(e) Non-retaliation against legal 

service providers. ORR shall presume 

that legal service providers are acting in 

good faith with respect to their 

advocacy on behalf of unaccompanied 

children and ORR shall not retaliate 

against a legal service provider for 

actions taken within the scope of the 

legal service providers’ responsibilities. 

For example, ORR shall not engage in 

retaliatory actions against legal service 

providers or any other representative for 

reporting harm or misconduct on behalf 

of an unaccompanied child. 

§ 410.1310 Psychotropic medications. 

(a) Except in the case of a psychiatric 

emergency, ORR shall ensure that, 

whenever possible, authorized 

individuals provide informed consent 

prior to the administration of 

psychotropic medications to 

unaccompanied children. 

(b) ORR must ensure meaningful 

oversight of the administration of 

psychotropic medication(s) to 

unaccompanied children. 

§ 410.1311 Unaccompanied children with 

disabilities. 

(a) ORR must provide notice to the 

unaccompanied children in its custody 

of the protections against discrimination 

under section 504 of the Rehabilitation 

Act at 45 CFR part 85 assured to 

children with disabilities in its custody. 

ORR must also provide notice of the 

available procedures for seeking 

reasonable modifications or making a 

complaint about alleged discrimination 

against children with disabilities in 

ORR’s custody. 

(b) ORR shall administer the UC 

Program in the most integrated setting 

appropriate to the needs of 

unaccompanied children with 

disabilities in accordance with 45 CFR 

85.21(d), unless ORR can demonstrate 

that this would fundamentally alter the 

nature of its UC Program. 

(c) ORR shall provide reasonable 

modifications needed for an 

unaccompanied child with one or more 

disabilities to have equal access to the 

UC Program. ORR is not required, 

however, to take any action that it can 

demonstrate would result in a 


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fundamental alteration in the nature of 

a program or activity. 

(d) Where applicable, ORR shall 

document in the child’s ORR case file 

any services, supports, or program 

modifications being provided to an 

unaccompanied child with one or more 

disabilities. 

(e) In addition to the requirements for 

release of unaccompanied children 

established elsewhere in this part and 

through any subregulatory guidance 

ORR may issue, ORR shall adhere to the 

following requirements when releasing 

unaccompanied children with 

disabilities to a sponsor: 

(1) ORR’s assessment under 

§ 410.1202 of a potential sponsor’s 

capability to provide for the physical 

and mental well-being of the child must 

necessarily include explicit 

consideration of the impact of the 

child’s disability or disabilities. 

(2) In conducting PRS, ORR and any 

entities through which ORR provides 

PRS shall make reasonable 

modifications in their policies, 

practices, and procedures if needed to 

enable released unaccompanied 

children with disabilities to live in the 

most integrated setting appropriate to 

their needs, such as with a sponsor. 

ORR is not required, however, to take 

any action that it can demonstrate 

would result in a fundamental alteration 

in the nature of a program or activity. 

ORR will affirmatively support and 

assist otherwise viable potential 

sponsors in accessing and coordinating 

appropriate post-release communitybased services and supports available in 

the community to support the sponsor’s 

ability to care for a child with one or 

more disabilities, as provided for under 

§ 410.1210. 

(3) ORR shall not delay the release of 

a child with one or more disabilities 

solely because post-release services are 

not in place before the child’s release. 

Subpart E—Transportation of an 

Unaccompanied Child 

§ 410.1400 Purpose of this subpart. 

This subpart concerns the safe 

transportation of each unaccompanied 

child while in ORR’s care. 

§ 410.1401 Transportation of an 

unaccompanied child in ORR’s care. 

(a) ORR care provider facilities shall 

transport an unaccompanied child in a 

manner that is appropriate to the child’s 

age and physical and mental needs, 

including proper use of car seats for 

young children, and consistent with 

§ 410.1304. 

(b) When ORR plans to release an 

unaccompanied child from its care to a 

sponsor under the provisions at subpart 

C of this part, ORR assists without 

undue delay in making transportation 

arrangements. In its discretion, ORR 

may request the care provider facility to 

transport an unaccompanied child. In 

these circumstances, ORR may, in its 

discretion, reimburse the care provider 

facility or directly pay for the child and/ 

or sponsor’s transportation, as 

appropriate, to facilitate timely release. 

(c) The care provider facility shall 

comply with all relevant State and local 

licensing requirements and state and 

Federal regulations regarding 

transportation of children, such as 

meeting or exceeding the minimum 

staff/child ratio required by the care 

provider facility’s licensing agency, 

maintaining and inspecting all vehicles 

used for transportation, etc. 

(d) If there is a potential conflict 

between ORR’s regulations in this part 

and State law, ORR will review the 

circumstances to determine how to 

ensure that it is able to meet its statutory 

responsibilities. It is important to note, 

however, that if a State law or license, 

registration, certification, or other 

requirement conflicts with an ORR 

employee’s duties within the scope of 

their ORR employment, the ORR 

employee is required to abide by their 

Federal duties. 

(e) The care provider facility shall 

conduct all necessary background 

checks for drivers transporting 

unaccompanied children, in compliance 

with § 410.1305(a). 

(f) If a care provider facility is 

transporting an unaccompanied child, it 

shall assign at least one transport staff 

of the same gender as the child being 

transported to the greatest extent 

possible under the circumstances. 

Subpart F—Data and Reporting 

Requirements 

§ 410.1500 Purpose of this subpart. 

ORR maintains statistical and other 

data on the unaccompanied children for 

whom it is responsible. ORR shall be 

responsible for coordinating with other 

Departments to obtain some of the 

statistical data and shall obtain 

additional data from care provider 

facilities. This subpart describes 

information that care provider facilities 

shall report to ORR such that ORR may 

compile and maintain statistical 

information and other data on 

unaccompanied children. 

§ 410.1501 Data on unaccompanied 

children. 

Care provider facilities are required to 

report information necessary for ORR to 

maintain data in accordance with this 

section. Data include: 

(a) Biographical information, such as 

an unaccompanied child’s name, 

gender, date of birth, country of birth, 

whether of indigenous origin, and 

country of habitual residence; 

(b) The date on which the 

unaccompanied child came into Federal 

custody by reason of the child’s 

immigration status; 

(c) Information relating to the 

unaccompanied child’s placement, 

removal, or release from each care 

provider facility in which the 

unaccompanied child has resided, 

including date and to whom and where 

placed, transferred, removed, or 

released; 

(d) In any case in which the 

unaccompanied child is placed in 

detention or released, an explanation 

relating to the detention or release; 

(e) The disposition of any actions in 

which the unaccompanied child is the 

subject; 

(f) Information gathered from 

assessments, evaluations, or reports of 

the child; and, 

(g) Data necessary to evaluate and 

improve the care and services for 

unaccompanied children. 

Subpart G—Transfers 

§ 410.1600 Purpose of this subpart. This 

subpart provides guidelines for the transfer 

of an unaccompanied child. 

§ 410.1601 Transfer of an unaccompanied 

child within the ORR care provider facility 

network. 

(a) General requirements for transfers. 

The care provider facility shall 

continuously assess unaccompanied 

children in their care to review whether 

the children’s placements are 

appropriate. An unaccompanied child 

shall be placed in the least restrictive 

setting that is in the best interests of the 

child, subject to considerations 

regarding danger to self or the 

community and runaway risk. Care 

providers shall follow ORR guidance, 

including guidance regarding placement 

considerations, when making transfer 

recommendations. 

(1) If the care provider facility 

identifies an alternate placement for the 

unaccompanied child that would best 

meet the child’s needs, the care provider 

facility shall make a transfer 

recommendation to ORR for approval 

within three (3) business days of 

identifying the need for a transfer. 

(2) The care provider facility shall 

ensure the unaccompanied child is 

medically cleared for transfer within 

three (3) business days of ORR 

identifying the need for a transfer, 

unless otherwise waived by ORR. For an 

unaccompanied child with acute or 


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chronic medical conditions, or seeking 

medical services requiring heightened 

ORR involvement, the appropriate care 

provider facility staff and ORR shall 

meet to review the transfer 

recommendation. If a child is not 

medically cleared for transfer within 

three (3) business days, the care 

provider facility shall notify ORR, and 

ORR shall review and determine if the 

child is fit for travel. If ORR determines 

the child is not fit for travel, ORR shall 

notify the care provider facility of the 

denial and specify a timeframe for the 

care provider facility to re-evaluate the 

child for transfer. 

(3) Within 48 hours prior to the 

unaccompanied child’s physical 

transfer, the referring care provider 

facility shall notify all appropriate 

interested parties of the transfer, 

including the child’s attorney of record 

or EOIR accredited representative, legal 

service provider, or child advocate, as 

applicable. However, such advance 

notice is not required in unusual and 

compelling circumstances, such as the 

following in which cases notices shall 

be provided within 24 hours following 

transfer: 

(i) Where the safety of the 

unaccompanied child or others has been 

threatened; 

(ii) Where the unaccompanied child 

has been determined to be a runaway 

risk consistent with § 410.1108; or 

(iii) Where the interested party has 

waived such notice. 

(4) The unaccompanied child shall be 

transferred with the child’s possessions 

and legal papers, including, but not 

limited to: 

(i) Personal belongings; 

(ii) The transfer request and tracking 

form; 

(iii) 30-day medication supply, if 

applicable; 

(iv) All health records; and 

(v) Original documents (including 

birth certificates). 

(5) If the unaccompanied child’s 

possessions exceed the amount 

permitted normally by the carrier in use, 

the care provider shall ship the 

possessions to a subsequent placement 

of the unaccompanied child in a timely 

manner. 

(b) Restrictive care provider facility 

placements and transfers. When an 

unaccompanied child is placed in a 

restrictive setting (secure, heightened 

supervision, or residential treatment 

center), the care provider facility in 

which the child is placed and ORR shall 

review the placement at least every 30 

days to determine whether a new level 

of care is appropriate for the child. If the 

care provider facility and ORR 

determine in the review that continued 

placement in a restrictive setting is 

appropriate, the care provider facility 

shall document the basis for its 

determination and, upon request, 

provide documentation of the review 

and rationale for continued placement 

to the child’s attorney of record, legal 

service provider, and/or child advocate. 

(c) Group transfers. At times, 

circumstances may require a care 

provider facility to transfer more than 

one (1) unaccompanied child at a time 

(e.g., emergencies, natural disasters, 

program closures, and bed capacity 

constraints). For group transfers, the 

care provider facility shall follow ORR 

guidance and the requirements in 

paragraph (a) of this section. 

(d) Residential treatment center 

placements. A care provider facility 

may request ORR to transfer an 

unaccompanied child in its care to a 

residential treatment center (RTC), 

pursuant to the requirements described 

at § 410.1105(c). The care provider 

facility shall review the placement of a 

child into an RTC every 30 days in 

accordance with paragraph (b) of this 

section. 

(e) Emergency placement changes. An 

unaccompanied child who is placed 

pursuant to subpart B of this part 

remains in the legal custody of ORR and 

may only be transferred or released by 

ORR. However, in the event of an 

emergency, a care provider facility may 

temporarily change the physical 

placement of an unaccompanied child 

prior to securing permission from ORR 

but shall notify ORR of the change of 

physical placement, as soon as possible, 

but in all cases within eight hours of 

transfer. 

Subpart H—Age Determinations 

§ 410.1700 Purpose of this subpart. 

This subpart sets forth the provisions 

for determining the age of an individual 

in ORR custody. 

§ 410.1701 Applicability. 

This subpart applies to individuals in 

the custody of ORR. To meet the 

definition of an unaccompanied child 

and remain in ORR custody, an 

individual must be under 18 years of 

age. 

§ 410.1702 Conducting age 

determinations. 

Procedures for determining the age of 

an individual must take into account the 

totality of the circumstances and 

evidence, including the non-exclusive 

use of radiographs, to determine the age 

of the individual. ORR may require an 

individual in ORR’s custody to submit 

to a medical or dental examination, 

including X-rays, conducted by a 

medical professional or to submit to 

other appropriate procedures to verify 

their age. If ORR subsequently 

determines that such an individual is an 

unaccompanied child, the individual 

will be treated in accordance with 

ORR’s UC Program regulations in this 

part for all purposes. 

§ 410.1703 Information used as evidence 

to conduct age determinations. 

(a) ORR considers multiple forms of 

evidence in making age determinations, 

and determinations are made based 

upon a totality of evidence. 

(b) ORR may consider information or 

documentation to make an age 

determination, including but not limited 

to: 

(1) If there is no original birth 

certificate, certified copy, or photocopy 

or facsimile copy of a birth certificate 

acceptable to ORR, ORR may consult 

with the consulate or embassy of the 

individual’s country of birth to verify 

the validity of the birth certificate 

presented. 

(2) Authentic government-issued 

documents issued to the bearer. 

(3) Other documentation, such as 

baptismal certificates, school records, 

and medical records, which indicate an 

individual’s date of birth. 

(4) Sworn affidavits from parents or 

other relatives as to the individual’s age 

or birth date. 

(5) Statements provided by the 

individual regarding the individual’s 

age or birth date. 

(6) Statements from parents or legal 

guardians. 

(7) Statements from other persons 

apprehended with the individual. 

(8) Medical age assessments, which 

should not be used as a sole 

determining factor but only in concert 

with other factors. If an individual’s 

estimated probability of being 18 years 

or older is 75 percent or greater 

according to a medical age assessment, 

and the totality of the evidence 

indicates that the individual is 18 years 

old or older, ORR must determine that 

the individual is 18 years old or older. 

The 75 percent probability threshold 

applies to all medical methods and 

approaches identified by the medical 

community as appropriate methods for 

assessing age. Ambiguous, debatable, or 

borderline forensic examination results 

are resolved in favor of finding the 

individual is a minor. 

§ 410.1704 Treatment of an individual who 

appears to be an adult. 

If the procedures in this subpart 

would result in a reasonable person 

concluding that an individual is an 

adult, despite the individual’s claim to 


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be under the age of 18, ORR shall treat 

such person as an adult for all purposes. 

Subpart I—Emergency and Influx 

Operations 

§ 410.1800 Contingency planning and 

procedures during an emergency or influx. 

(a) ORR regularly reevaluates the 

number of placements needed for 

unaccompanied children to determine 

whether the number of shelters, 

heightened supervision facilities, and 

ORR transitional home care beds should 

be adjusted to accommodate an 

increased or decreased number of 

unaccompanied children eligible for 

placement in care in ORR care provider 

facilities. 

(b) In the event of an emergency or 

influx that prevents the prompt 

placement of unaccompanied children 

in standard programs, ORR shall make 

all reasonable efforts to place each 

unaccompanied child in a standard 

program as expeditiously as possible. 

(c) ORR activities during an influx or 

emergency include the following: 

(1) ORR implements its contingency 

plan on emergencies and influxes, 

which may include opening facilities to 

house unaccompanied children and 

prioritization of placement at such 

facilities of certain unaccompanied 

children; 

(2) ORR continually develops 

standard programs that are available to 

accept emergency or influx placements; 

and 

(3) ORR maintains a list of 

unaccompanied children affected by the 

emergency or influx including each 

unaccompanied child’s: 

(i) Name; 

(ii) Date and country of birth; 

(iii) Date of placement in ORR’s 

custody; and 

(iv) Place and date of current 

placement. 

§ 410.1801 Minimum standards for 

emergency or influx facilities. 

(a) In addition to the ‘‘standard 

program’’ and ‘‘restrictive placements’’ 

defined in this part, ORR provides 

standards in this section for all 

emergency or influx facilities. 

(b) Emergency or influx facilities must 

provide the following minimum 

services for all unaccompanied children 

in their care: 

(1) Proper physical care and 

maintenance, including suitable living 

accommodations, food, appropriate 

clothing, and personal grooming items. 

(2) Appropriate routine medical and 

dental care; family planning services, 

including pregnancy tests; medical 

services requiring heightened ORR 

involvement; and emergency healthcare 

services; a complete medical 

examination (including screenings for 

infectious diseases) within 48 hours of 

admission, excluding weekends and 

holidays, unless the unaccompanied 

child was recently examined at another 

ORR care provider facility; appropriate 

immunizations as recommended by the 

Advisory Committee on Immunization 

Practices’ Child and Adolescent 

Immunization Schedule and approved 

by HHS’ Centers for Disease Control and 

Prevention; administration of prescribed 

medication and special diets; and 

appropriate mental health interventions 

when necessary. 

(3) An individualized needs 

assessment, which includes the various 

initial intake forms, collection of 

essential data relating to the 

identification and history of the child 

and the child’s family, identification of 

the unaccompanied child’s special 

needs including any specific problems 

which appear to require immediate 

intervention, an educational assessment 

and plan, and an assessment of family 

relationships and interaction with 

adults, peers and authority figures; a 

statement of religious preference and 

practice; an assessment of the 

unaccompanied child’s personal goals, 

strengths and weaknesses; identifying 

information regarding immediate family 

members, other relatives, godparents or 

friends who may be residing in the 

United States and may be able to assist 

in connecting the child with family 

members. 

(4) Educational services appropriate 

to the unaccompanied child’s level of 

development and communication skills 

in a structured classroom setting 

Monday through Friday, which 

concentrates primarily on the 

development of basic academic 

competencies, and secondarily on 

English Language acquisition. The 

educational program shall include 

instruction and educational and other 

reading materials in such languages as 

needed. Basic academic areas should 

include science, social studies, math, 

reading, writing, and physical 

education. The program must provide 

unaccompanied children with 

appropriate reading materials in 

languages other than English for use 

during leisure time. 

(5) Activities according to a recreation 

and leisure time plan that include daily 

outdoor activity—weather permitting— 

with at least one hour per day of large 

muscle activity and one hour per day of 

structured leisure time activities (that 

should not include time spent watching 

television). Activities should be 

increased to a total of three hours on 

days when school is not in session. 

(6) At least one individual counseling 

session per week conducted by trained 

social work staff with the specific 

objective of reviewing the child’s 

progress, establishing new short-term 

objectives, and addressing both the 

developmental and crisis-related needs 

of each child. 

(7) Group counseling sessions at least 

twice a week. Sessions are usually 

informal and take place with all 

unaccompanied children present. The 

sessions give new children the 

opportunity to get acquainted with staff, 

other children, and the rules of the 

program. It is an open forum where 

everyone gets a chance to speak. Daily 

program management is discussed and 

decisions are made about recreational 

and other activities. The sessions allow 

staff and unaccompanied children to 

discuss whatever is on their minds and 

to resolve problems. 

(8) Acculturation and adaptation 

services, which include information 

regarding the development of social and 

interpersonal skills which contribute to 

those abilities necessary to live 

independently and responsibly. 

(9) A comprehensive orientation 

regarding program intent, services, rules 

(written and verbal), expectations, and 

the availability of legal assistance. 

(10) Whenever possible, access to 

religious services of the child’s choice. 

(11) Visitation and contact with 

family members (regardless of their 

immigration status), which is structured 

to encourage such visitation. The staff 

must respect the child’s privacy while 

reasonably preventing the unauthorized 

release of the unaccompanied child. 

(12) A reasonable right to privacy, 

which includes the right to wear the 

child’s own clothes when available, 

retain a private space in the residential 

facility, group or foster home for the 

storage of personal belongings, talk 

privately on the phone and visit 

privately with guests, as permitted by 

the house rules and regulations, receive 

and send uncensored mail unless there 

is a reasonable belief that the mail 

contains contraband. 

(13) Services designed to identify 

relatives in the United States as well as 

in foreign countries and assistance in 

obtaining legal guardianship when 

necessary for the release of the 

unaccompanied child. 

(14) Legal services information, 

including the availability of free legal 

assistance, and that they may be 

represented by counsel at no expense to 

the government, the right to a removal 

hearing before an immigration judge, the 

ability to apply for asylum with USCIS 


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in the first instance, and the ability to 

request voluntary departure in lieu of 

deportation. 

(15) Emergency or influx facilities, 

whether state-licensed or not, must 

comply, to the greatest extent possible, 

with State child welfare laws and 

regulations (such as mandatory 

reporting of abuse), as well as State and 

local building, fire, health and safety 

codes, that ORR determines are 

applicable to non-State licensed 

facilities. If there is a potential conflict 

between ORR’s regulations and State 

law, ORR will review the circumstances 

to determine how to ensure that it is 

able to meet its statutory 

responsibilities. It is important to note, 

however, that if a State law or license, 

registration, certification, or other 

requirement conflicts with an ORR 

employee’s duties within the scope of 

their ORR employment, the ORR 

employee is required to abide by their 

Federal duties. 

(16) Emergency or influx facilities 

must deliver services in a manner that 

is sensitive to the age, culture, native 

language, and needs of each 

unaccompanied child. Emergency or 

influx facilities must develop an 

individual service plan for the care of 

each child. 

(17) The emergency or influx facility 

maintains records of case files and make 

regular reports to ORR. Emergency or 

influx facilities must have 

accountability systems in place, which 

preserve the confidentiality of client 

information and protect the records 

from unauthorized use or disclosure. 

(c) Emergency or influx facilities must 

do the following when providing 

services to unaccompanied children: 

(1) Maintain safe and sanitary 

conditions that are consistent with 

ORR’s concern for the particular 

vulnerability of minors; 

(2) Provide access to toilets, showers 

and sinks, as well as personal hygiene 

items such as soap, toothpaste and 

toothbrushes, floss, towels, feminine 

care items, and other similar items; 

(3) Provide drinking water and food; 

(4) Provide medical assistance if the 

unaccompanied child is in need of 

emergency services; 

(5) Maintain adequate temperature 

control and ventilation; 

(6) Provide adequate supervision to 

protect unaccompanied children; 

(7) Separate from other 

unaccompanied children those 

unaccompanied children who are 

subsequently found to have past 

criminal or juvenile detention histories 

or have perpetrated sexual abuse that 

present a danger to themselves or 

others; 

(8) Provide contact with family 

members who were arrested with the 

unaccompanied child; and 

(9) Provide access to legal services 

described in § 410.701(a). 

(d) ORR may grant waivers for an 

emergency or influx facility from 

standards under paragraph (b) of this 

section, if the facility is activated for a 

period of six consecutive months or less 

and such standards are operationally 

infeasible and done in accordance with 

law. Such waiver must be made 

publicly available. 

§ 410.1802 Placement standards for 

emergency or influx facilities. 

(a) Unaccompanied children who are 

placed in an emergency or influx facility 

must meet all of the following criteria to 

the extent feasible. If ORR becomes 

aware that a child does not meet any of 

the following criteria at any time after 

placement into an emergency or influx 

facility, ORR will transfer the 

unaccompanied child to the least 

restrictive setting appropriate for that 

child’s need as expeditiously as 

possible. 

(1) Is expected to be released to a 

sponsor within 30 days; 

(2) Is age 13 or older; 

(3) Speaks English or Spanish as their 

preferred language; 

(4) Does not have a known disability 

or other mental health or medical issue 

or dental issue requiring additional 

evaluation, treatment, or monitoring by 

a healthcare provider; 

(5) Is not a pregnant or parenting teen; 

(6) Would not have a diminution of 

legal services as a result of the transfer 

to an unlicensed facility; and 

(7) Is not a danger to self or others 

(including not having been charged with 

or convicted of a criminal offense). 

(b) ORR shall also consider the 

following factors for the placement of an 

unaccompanied child in an emergency 

or influx facility: 

(1) The unaccompanied child should 

not be part of a sibling group with a 

sibling(s) age 12 years or younger; 

(2) The unaccompanied child should 

not be subject to a pending age 

determination; 

(3) The unaccompanied child should 

not be involved in an active State 

licensing, child protective services, or 

law enforcement investigation, or an 

investigation resulting from a sexual 

abuse allegation; 

(4) The unaccompanied child should 

not have a pending home study; 

(5) The unaccompanied child should 

not be turning 18 years old within 30 

days of the transfer to an emergency or 

influx facility; 

(6) The unaccompanied child should 

not be scheduled to be discharged in 

three days or less; 

(7) The unaccompanied child should 

not have a current set docket date in 

immigration court or State/family court 

(juvenile included), not have a pending 

adjustment of legal status, and not have 

an attorney of record or EOIR accredited 

representative; 

(8) The unaccompanied child should 

be medically cleared and vaccinated as 

required by the emergency or influx care 

facility (for instance, if the influx care 

facility is on a U.S. Department of 

Defense site); and 

(9) The unaccompanied child should 

have no known mental health, dental, or 

medical issues, including contagious 

diseases requiring additional evaluation, 

treatment, or monitoring by a healthcare 

provider. 

Subpart J—Availability of Review of 

Certain ORR Decisions 

§ 410.1900 Purpose of this subpart. 

This subpart describes the availability 

of review of certain ORR decisions 

regarding the care and placement of 

unaccompanied children. 

§ 410.1901 Restrictive placement case 

reviews. 

(a) In all cases involving placement in 

a restrictive setting, ORR shall 

determine, based on clear and 

convincing evidence, that sufficient 

grounds exist for stepping up or 

continuing to hold an unaccompanied 

child in a restrictive placement. The 

evidence supporting a restrictive 

placement decision shall be recorded in 

the unaccompanied child’s case file. 

(b) ORR shall provide an 

unaccompanied child with a Notice of 

Placement (NOP) no later than 48 hours 

after step-up to a restrictive placement, 

as well as every 30 days the 

unaccompanied child remains in a 

restrictive placement. 

(1) The NOP shall clearly and 

thoroughly set forth the reason(s) for 

placement and a summary of supporting 

evidence. 

(2) The NOP shall inform the 

unaccompanied child of their right to 

contest the restrictive placement before 

a Placement Review Panel (PRP) upon 

receipt of the NOP and the procedures 

by which the unaccompanied child may 

do so. The NOP shall further inform the 

unaccompanied child of all other 

available administrative review 

processes. 

(3) The NOP shall include an 

explanation of the unaccompanied 

child’s right to be represented by 

counsel in challenging such restrictive 

placement. 


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(4) A case manager shall explain the 

NOP to the unaccompanied child, in a 

language the unaccompanied child 

understands. 

(c) The care provider facility shall 

provide a copy of the NOP to the 

unaccompanied child’s legal counsel of 

record, legal service provider, child 

advocate, and to a parent or legal 

guardian of record, no later than 48 

hours after step-up as well as every 30 

days the unaccompanied child remains 

in a restrictive placement. 

(d) ORR shall further ensure the 

following automatic administrative 

reviews: 

(1) At minimum, a 30-day 

administrative review for all restrictive 

placements; 

(2) A more intensive 45-day review by 

ORR supervisory staff for 

unaccompanied children in secure 

facilities; and 

(3) For unaccompanied children in 

RTCs, the 30-day review at paragraph 

(d)(1) of this section must involve a 

psychiatrist or psychologist to 

determine whether the unaccompanied 

child should remain in restrictive 

residential care. 

§ 410.1902 Placement Review Panel. 

(a) An unaccompanied child placed in 

a restrictive placement may request 

reconsideration of such placement. 

Upon such request, ORR shall afford the 

unaccompanied child a hearing before 

the Placement Review Panel (PRP) at 

which the unaccompanied child may, 

with the assistance of counsel if 

preferred, present evidence on their 

own behalf. An unaccompanied child 

may present witnesses and crossexamine ORR’s witnesses, if such 

witnesses are willing to voluntarily 

testify. An unaccompanied child that 

does not wish to request a hearing may 

also have their placement reconsidered 

by submitting a request for a 

reconsideration along with any 

supporting documents as evidence. 

(b) The PRP shall afford any 

unaccompanied child in a restrictive 

placement the opportunity to request a 

PRP review as soon as the 

unaccompanied child receives a Notice 

of Placement (NOP). 

(c) ORR shall convene the PRP in a 

reasonable timeframe without undue 

delay in all requisite cases. 

(d) The PRP shall issue a decision 

within 30 calendar days of the PRP 

request whenever possible. 

(e) An ORR staff member who was 

involved with the decision to step up an 

unaccompanied child to a restrictive 

placement may not serve as a Placement 

Review Panel member with respect to 

that unaccompanied child’s placement. 

§ 410.1903 Risk determination hearings. 

(a) All unaccompanied children in 

restrictive placements shall be afforded 

a hearing before an independent HHS 

hearing officer to determine, through a 

written decision, whether the 

unaccompanied child would present a 

risk of danger to the community, unless 

the unaccompanied child indicates in 

writing that they refuse such a hearing. 

All other unaccompanied children in 

ORR custody may request such a 

hearing. 

(1) Requests under this section must 

be made in writing by the 

unaccompanied child, their attorney of 

record, or their parent or legal guardian 

by submitting a form provided by ORR 

to the care provider facility or by 

making a separate written request that 

contains the information requested in 

ORR’s form. 

(2) Unaccompanied children placed 

in restrictive placements based on a 

finding of dangerousness shall be 

provided a risk determination hearing 

automatically, whether or not they 

request one, unless they refuse the 

hearing in writing. Unaccompanied 

children placed in restrictive 

placements shall receive a notice of the 

procedures under this section and may 

use a form provided to them to decline 

a hearing under this section. 

Unaccompanied children in restrictive 

placements may decline the hearing at 

any time, including after consultation 

with counsel. 

(b) In hearings conducted under this 

section, ORR bears the initial burden of 

production to support its determination 

that an unaccompanied child would 

pose a danger if discharged from ORR’s 

care and custody. The burden of 

persuasion is then on the 

unaccompanied child to show that they 

will not be a danger to the community 

if released, using a preponderance of the 

evidence standard. 

(c) In hearings under this section, the 

unaccompanied child may be 

represented by a person of their 

choosing. The unaccompanied child 

may present oral and written evidence 

to the hearing officer and may appear by 

video or teleconference. ORR may also 

present evidence at the hearing, whether 

in writing, or by appearing in person or 

by video or teleconference. 

(d) A hearing officer’s decision that an 

unaccompanied child would not be a 

danger to the community if released is 

binding upon ORR, unless the 

provisions of paragraph (e) of this 

section apply. 

(e) A hearing officer’s decision under 

this section may be appealed by either 

the unaccompanied child or ORR to the 

Assistant Secretary of ACF, or the 

Assistant Secretary’s designee. 

(1) Any such appeal request shall be 

in writing and must be received by ACF 

within 30 days of the hearing officer 

decision. 

(2) The Assistant Secretary, or the 

Assistant Secretary’s designee, shall 

review the record of the underlying 

hearing, and will reverse a hearing 

officer decision only if there is a clear 

error of fact, or if the decision includes 

an error of law. 

(3) If the hearing officer’s decision 

found that the unaccompanied child 

would not pose a danger to the 

community if released from ORR 

custody, and such decision would result 

in ORR releasing the unaccompanied 

child from its custody (e.g., because the 

only factor preventing release was 

ORR’s determination that the 

unaccompanied child posed a danger to 

the community), an appeal to the 

Assistant Secretary shall not effect a 

stay of the hearing officer’s decision, 

unless the Assistant Secretary issues a 

decision in writing within five business 

days of such hearing officer decision 

that release of the unaccompanied child 

would result in a danger to the 

community. Such a stay decision must 

include a description of behaviors of the 

unaccompanied child while in ORR 

custody and/or documented criminal or 

juvenile behavior records from the 

unaccompanied child demonstrating 

that the unaccompanied child would 

present a danger to community if 

released. 

(f) Decisions under this section are 

final and binding on the Department, 

and an unaccompanied child who was 

determined to pose a danger to the 

community if released may only seek 

another hearing under this section if the 

unaccompanied child can demonstrate a 

material change in circumstances. 

Similarly, ORR may request the hearing 

officer to make a new determination 

under this section if at least one month 

has passed since the original decision, 

and/or ORR can show that a material 

change in circumstances means the 

unaccompanied child should no longer 

be released due to presenting a danger 

to the community. 

(g) This section cannot be used to 

determine whether an unaccompanied 

child has a suitable sponsor, and neither 

the hearing officer nor the Assistant 

Secretary may order the unaccompanied 

child released. 

(h) This section may not be invoked 

to determine the unaccompanied child’s 

placement while in ORR custody. Nor 

may this section be invoked to 

determine level of custody for the 

unaccompanied child. 


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Subpart K—Unaccompanied Children 

Office of the Ombuds (UC Office of the 

Ombuds) 

§ 410.2000 Establishment of the UC Office 

of the Ombuds. 

(a) The Unaccompanied Children 

Office of the Ombuds (hereafter, the 

‘‘UC Office of the Ombuds’’) is located 

within the Office of the ACF Assistant 

Secretary, and reports to the ACF 

Assistant Secretary. 

(b) The UC Office of the Ombuds shall 

be an independent, impartial office with 

authority to receive reports, including 

confidential and informal reports, of 

concerns regarding the care of 

unaccompanied children; to investigate 

such reports; to work collaboratively 

with ORR to potentially resolve such 

reports; and issue reports concerning its 

efforts. 

§ 410.2001 UC Office of the Ombuds 

policies and procedures; contact 

information. 

(a) The UC Office of the Ombuds shall 

develop appropriate standards, 

practices, and policies and procedures, 

giving consideration to the 

recommendations by nationally 

recognized Ombudsperson 

organizations. 

(b) The UC Office of the Ombuds shall 

make its standards, practices, certain 

reports and findings, and policies and 

procedures publicly available. 

(c) The UC Office of the Ombuds shall 

make information about the office and 

how to contact it publicly available, in 

both English and other languages 

spoken and understood by 

unaccompanied children in ORR care. 

The Ombuds may identify preferred 

methods for raising awareness of the 

office and its activities, which may 

include, but not be limited to, visiting 

ORR facilities or publishing aggregated 

information about the type and number 

of concerns the office receives, as well 

as giving recommendations. 

§ 410.2002 UC Office of the Ombuds scope 

and responsibilities. 

(a) The UC Office of the Ombuds may 

engage in activities consistent with 

§ 410.2100, including but not limited to: 

(1) Receiving reports from 

unaccompanied children, potential 

sponsors, other stakeholders in a child’s 

case, and the public regarding ORR’s 

adherence to its own regulations and 

standards. 

(2) Investigating implementation of or 

adherence to Federal law and ORR 

regulations, in response to reports it 

receives, and meeting with interested 

parties to receive input on ORR’s 

compliance with Federal law and ORR 

policy; 

(3) Requesting and receiving 

information or documents, such as the 

Ombuds deems relevant, from ORR and 

ORR care provider facilities, to 

determine implementation of and 

adherence to Federal law and ORR 

policy; 

(4) Preparing formal reports and 

recommendations on findings to publish 

or present, including an annual report 

describing activities conducted in the 

prior year; 

(5) Conducting investigations, 

interviews, and site visits at care 

provider facilities as necessary to aid in 

the preparation of reports and 

recommendations; 

(6) Visiting ORR care providers in 

which unaccompanied children are or 

will be housed; 

(7) Reviewing individual 

circumstances, including but not 

limited to concerns about 

unaccompanied children’s access to 

services, ability to communicate with 

service providers, parents/legal 

guardians of children in ORR custody, 

sponsors, and matters related to 

transfers within or discharge from ORR 

care; 

(8) Making efforts to resolve 

complaints or concerns raised by 

interested parties as it relates to ORR’s 

implementation or adherence to Federal 

law or ORR policy; 

(9) Hiring and retaining others, 

including but not limited to 

independent experts, specialists, 

assistants, interpreters, and translators 

to assist the Ombuds in the performance 

of their duties; 

(10) Making non-binding 

recommendations to ORR regarding its 

policies and procedures, specific to 

protecting unaccompanied children in 

the care of ORR; 

(11) Providing general educational 

information about pertinent laws, 

regulations and policies, ORR child 

advocates, and legal services as 

appropriate; and 

(12) Advising and updating the 

Director of ORR, Assistant Secretary, 

and the Secretary, as appropriate, on the 

status of ORR’s implementation and 

adherence with Federal law or ORR 

policy. 

(b) The UC Office of the Ombuds may 

in its discretion refer matters to other 

Federal agencies or offices with 

jurisdiction over a particular matter, for 

further investigation where appropriate, 

including to Federal or State law 

enforcement. 

(c) To accomplish its work, the UC 

Office of the Ombuds may, as needed, 

have timely and direct access to: 

(1) Unaccompanied children in ORR 

care; 

(2) ORR care provider facilities; 

(3) Case file information; 

(4) Care provider and Federal staff 

responsible for children’s care; and 

(5) Statistical and other data that ORR 

maintains. 

§ 410.2003 Organization of the UC Office 

of the Ombuds. 

(a) The UC Ombuds shall be hired as 

a career civil servant. 

(b) The UC Ombuds should have the 

requisite knowledge and experience to 

effectively fulfill the work and the role, 

including membership in good standing 

of a nationally recognized organization, 

association of ombudsmen, or State bar 

association throughout the course of 

employment as the Ombuds, and to also 

include but not be limited to having 

demonstrated knowledge and 

experience in: 

(1) Informal dispute resolution 

practices; 

(2) Services and matters related to 

unaccompanied children and child 

welfare; 

(3) Oversight and regulatory matters; 

and 

(4) ORR policy and regulations. 

(c) The Ombuds may engage 

additional staff as it deems necessary 

and practicable to support the functions 

and responsibilities of the Office. 

(d) The Ombuds shall establish 

procedures for training, certification, 

and continuing education for staff and 

other representatives of the Office. 

§ 410.2004 Confidentiality. 

(a) The Ombuds shall manage the 

files, records, and other information of 

the program, regardless of format, and 

such files must be maintained in a 

manner that preserves the 

confidentiality of the records except in 

instances of imminent harm or judicial 

action and is prohibited from using or 

sharing information for any immigration 

enforcement related purpose. 

(b) The UC Office of the Ombuds may 

accept reports of concerns from 

anonymous reporters. 

Dated: September 22, 2023. 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2023–21168 Filed 9–29–23; 4:15 pm] 

BILLING CODE 4184–45–P 


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